NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Healdsburg hereby:
1. Conditionally awards an asphalt maintenance contract to Engelke Construction.
2. Authorizes the City Manager to execute the three-year contract and two annual extensions for an initial not-to-exceed amount of $495,000, and a maximum five-year not-to-exceed mount of $825,000.
3. Finds the repair and maintenance of existing public facilities is categorically exempt per the California Environmental Quality Act Guidelines Section 15301.
PASSED, APPROVED AND ADOPTED this 16th day of September 2024, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAINING: Councilmembers:
SO ORDERED: ATTEST:
_________________________________ ___________________________________ David Hagele, Mayor Raina Allan, City Clerk
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Packet Pg. 159 Attachment: Resolution (4606 : Asphalt Maintenance Contract 2024) Item Item Description
Estimated
Annual
Quanity
Unit of
Measure
Unit Cost (in
figures)
Total Cost (in
figures
Unit Cost (in
figures)
Total Cost (in
figures
Unit Cost (in
figures)
Total Cost (in
figures
1 Asphalt Concrete Paving 2000 SF/INCH
DEPTH 40 $80,000.00 6.85 $13,700.00 $ 7.15 $14,300.00
2 Asphalt Concrete Dike 10 LF
75 $750.00 25 $250.00 $ 27.00 $270.00
3 Adjust Utility Boxes 5 EA1200 $6,000.00 500 $2,500.00 $ 535.00 $2,675.00 4 Pavement Reinforcing Fabric 100 SF1 $100.00 1.1 $110.00 $ 2.00 $200.00 5 Aggregate Base 5 CY
100 $500.00 140 $700.00 $ 215.00 $1,075.00
$87,350.00 $17,260.00 $18,520.00
Engelke Construction WestPac Construction
Base Bid Total
Always Paving, Inc.
Bid Opening: IFB-13-024 Asphalt Maintenance 2024
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Packet Pg. 160 Attachment: Bid Summary IFB-13-024 (4606 : Asphalt Maintenance Contract 2024)
CITY OF HEALDSBURG
CITY COUNCIL AGENDA STAFF REPORT
MEETING DATE: September 16, 2024
SUBJECT: Ordinance Amending Healdsburg Municipal Code Chapter 10 Related to Vehicles
PREPARED BY: Matt Jenkins, Chief of Police
STRATEGIC INITIATIVE(S):
Provide Effective Governance
Maintain and Enhance Public Health and Safety
RECOMMENDED ACTION(S):
Introduce for first reading, by title only and waiving further reading of the text, an Ordinance amending Title 10 of the Healdsburg Municipal Code related to vehicles and traffic.
COMMUNITY ENGAGEMENT/OUTREACH:
Not Applicable
BACKGROUND:
In 2003, the City Council adopted Ordinance 1005, which established the current parking regulations in the City. The regulations were amended in 2018 by Ordinance 1180 to establish a 2-hour parking restriction in certain areas of the downtown business district.
DISCUSSION/ANALYSIS:
Since the last amendment to Title 10 (Vehicles and Traffic) of the Healdsburg Municipal Code, the City has developed the need for new sections to cover additional parking regulations related to electric vehicle charging and designated motorcycle parking. While looking to address these issues, staff also reviewed the entire chapter for additional changes and updates to the Code to maintain effective governance.
The City has publicly available electric vehicle charging stations; however, the Municipal Code lacks sections to enforce parking regulations related to these spaces. Staff has seen an increase in the misuse of those spaces, including non-electric vehicles parking in the spaces, electric vehicles parking in the spaces but not charging, and parking in charging spaces for longer than the designated maximum time. The addition of section 10.28.220 (Electric Vehicle Parking) addresses these parking-related issues.
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Additionally, motorcycle only parking zones have been established in the City in locations where there is not sufficient room for a standard or compact parking stall. Section 10.28.210 (Motorcycle Parking Zone) codifies these motorcycle only parking zones and provides that failure to abide by these regulations constitutes a violation.
After a thorough review, Staff also recommends the following amendments to Title 10:
• Remove references to “his/her” and replaced with “their.” • Remove penalty for 10.28.110 and moved it to the attached resolution related to parking fines.
• Remove section 10.48 related to Parade permits, as this was superseded by the updates to the Special Event code in December 2023.
• Remove the requirement that tow service providers enter into agreements in January each year. This change allows for operational efficiencies as the need for provides increases or operators cease operations.
• Remove section 10.72.030 related to minimum equipment standards for tow trucks, as the tow service agreement covers this
• Remove section 10.72.080 related to 2-way radio communication capability for tow trucks as this section is outdated due to current technologies.
With the addition of two new parking sections, the City’s resolution related to parking fines should be updated to reflect the changes. California Vehicle Code (CVC) § 40200 allows each city to collect fines and penalties for parking violations under civil administrative procedures outlined in the CVC. CVC § 40203.5 authorizes issuing agencies to establish “the schedule of parking penalties for parking violations and late penalties…[and] to the extent possible, issuing agencies within the same county shall standardize parking penalties.” Staff surveyed other agencies in Sonoma County and found that the City’s parking fines are relatively consistent with fees being charged in other jurisdictions. Currently, staff is not recommending other adjustments to the parking fine structure. A draft resolution is attached for your information. The resolution will be brought back for adoption at a future meeting.
ALTERNATIVES:
City Council may opt to take no action, and in this case, the current regulations would remain in place.
FISCAL IMPACT:
The proposed changes to the Municipal Code results in two new vehicle fines for motorcycle parking and electric vehicle parking. There are no proposed changes to existing vehicle fines.
The new regulations may result in increased revenue generated from parking citations however revenue will vary based on compliance and enforcement.
ENVIRONMENTAL ANALYSIS:
Pursuant to Title 14, the California Code of Regulations, Section 15378(b)(5) of the California Environmental Quality Act (CEQA) guidelines, the proposed action is an administrative activity of the City that will not result in direct or indirect physical changes to the environment.
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ATTACHMENT(S):
Ordinance
Draft Resolution
Attachment A
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CITY OF HEALDSBURG
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG, CALFORNIA, REPEALING AND
REPLACING TITLE 10 OF THE HEALDSBURG MUNICIPAL
CODE RELATED TO VEHICLES AND TRAFFIC
WHEREAS, the City Council of the City of Healdsburg codified its existing code related to Vehicles and Traffic in 2003 and later modified it in 2018 by Ordinance Nos 1005 and 1180, respectively; and
WHEREAS, City staff identified the need to add a new section 10.28.210 relating to parking regulations regarding electric vehicle charging, adding a new section 10.28.210 relating to spaces designated for motorcycles only; and
WHEREAS, City staff has identified additional language needing to be updated to maintain effective governance, including the use of gender neutral language, removal of certain fines located in the Municipal Code for adoption via Resolution, removing section 10.48, which has been superseded by prior City Council action, and removing or revising various obligations relating to tow service operators as a result of revised service agreements with contractors; and WHEREAS, the State of California does not preclude local governments from imposing parking regulations, and therefore, the City can enact reasonable regulations relating to on-street and off-street parking within the City; and
WHEREAS, the amendments are exempt from environmental review under the provisions of CEQA Guidelines section 15061(b)(3), general rule, which applies to any action where can be seen with certainty that there is no possibility that the project may have a significant effect on the environment.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HEALDSBURG DO ORDAIN AS FOLLOWS:
SECTION 1: Findings.
The City Council of the City of Healdsburg does hereby find that the above referenced recitals are true and correct and material to the adoption of this Ordinance.
SECTION 2: Amendment of the Code
Title 10 is hereby replaced in its entirety as follows:
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Packet Pg. 164 Attachment: Ordinance (4578 : Update to Parking Ordinance) Title 10
VEHICLES AND TRAFFIC
10.04 General Provisions
10.04.010 Purpose.
The purpose of this title is to establish uniform compliance standards for the driving, parking and storage of vehicles within the City of Healdsburg. This title will also provide for regulations related to pedestrian and bicycle safety. Pursuant to the California Vehicle Code, this title will establish the authority for parking regulations and penalty assessment. This title shall supersede all prior legislative enactments of the City of Healdsburg with contrary language or stated intent.
10.04.020 Definitions by incorporation.
Whenever any words or phrases used in this title are not defined in this chapter but are defined in the California Vehicle Code, such definitions are incorporated in this chapter and shall be deemed to apply to such words and phrases. All Vehicle Code sections referred to herein may be amended from time to time.
10.04.030 Definitions – Generally.
Whenever the following words and phrases are used in this title, they shall have the meanings respectively ascribed to them as follows hereinafter.
10.04.040 Alley.
“Alley” means any street 25 feet or less in width that is primarily used for access to the rear or side entrances of abutting property. (CVC § 110)
10.04.050 Bicycle.
“Bicycle” means a device upon which any person may ride, propelled exclusively by human power through a belt, chain, or gears, and having one or more wheels. Persons riding bicycles are subject to the provisions of CVC Sections 21200 and 21200.5. (CVC § 231)
10.04.060 Central traffic district.
“Central traffic district” means all of those portions of the following roadways:
East Street from the intersection of Mill Street north to Piper Street.
Mill Street from the intersection of East Street west to Healdsburg Avenue.
Center Street from the intersection of Mill Street north to Piper Street.
Healdsburg Avenue from the intersection of Mill Street north to Piper Street.
Vine Street from the intersection of Mill Street to 300 feet north of the North Street/Vine Street intersection.
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Packet Pg. 165 Attachment: Ordinance (4578 : Update to Parking Ordinance) Matheson Street from the intersection of Vine Street east to Fitch Street.
Plaza Street from the intersection of Healdsburg Avenue east to East Street.
North Street from the intersection of Vine Street east to East Street.
Foss Street from the intersection of North Street to the north terminus.
Piper Street from the intersection of Healdsburg Avenue east to East Street.
The central traffic district also includes all streets, portions of streets, and off-street parking facilities within the area of the limits of the City, bounded on the west by Vine Street; on the south by Mill Street; on the east by East Street; on the north by Piper Street.
10.04.070 City and City Council.
“City” means the City of Healdsburg. “City Council” means the City Council of the City of Healdsburg.
10.04.080 CVC.
“CVC” means the California Vehicle Code, as amended from time to time.
10.04.090 Highway.
“Highway” means a way that is publicly maintained and open to public use for purposes of vehicular travel. Highway includes a street, and “street” shall have the same meaning as “highway” as defined in this section. (CVC § 360)
10.04.100 Human habitation.
“Human habitation” means the use of a vehicle for the purpose of eating, sleeping, resting, or recreating for two or more hours without relocating the vehicle.
10.04.110 Official traffic-control devices.
“Official traffic-control device(s)” means any sign, signal, marking or device placed or erected by authority of the City Council or traffic engineer that conforms to CVC Section 21400 for the purpose of regulating, warning, or guiding traffic. (CVC § 440)
10.04.120 Official traffic-control signal.
“Official traffic-control signal” means any device, whether manually, electrically, or mechanically operated, by which traffic is alternately directed to stop and to proceed, that is erected by authority of the City Council or traffic engineer. (CVC § 445)
10.04.130 Park.
6.H.a
Packet Pg. 166 Attachment: Ordinance (4578 : Update to Parking Ordinance) “Park” means the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading passengers or materials. (CVC § 463)
10.04.140 Parking meter.
“Parking meter” means a mechanical device installed within or upon the curb or sidewalk area, immediately adjacent to the parking space, for the purpose of controlling the period of time occupancy of such parking meter space by any vehicle. (CVC § 22508)
10.04.150 Parkway.
“Parkway” means that portion of a street other than a roadway or a sidewalk.
10.04.160 Pedestrian.
“Pedestrian” means any person who is afoot or who is using a means of conveyance propelled by human power other than a bicycle. (CVC § 467)
10.04.170 Person.
“Person” means every natural person, firm, partnership, association or corporation.
10.04.180 Police officer.
“Police officer” means every officer of the police department of this City.
10.04.190 Shall and may.
“Shall” is mandatory and “may” is permissive. (CVC § 15)
10.04.200 Stop.
“Stop,” when required, means complete cessation of movement. (CVC § 587)
10.04.210 Stop or stand.
“Stop” or “stand,” when prohibited, means any stopping of a vehicle, bicycle or pedestrian except when necessary to avoid conflict with other traffic or in compliance with direction of a police officer or official traffic-control device. (CVC § 587) (Ord. 1005 § 2, 2003. Code 1964 § 12.04.140.)
10.04.220 Timed parking.
“Timed parking” means a restriction of time indicated by signs or other suitable means, that limits vehicle parking within a parking space, street or off-street parking area.
10.04.230 Tour bus.
“Tour bus” means any bus or other commercial vehicle operated for hire to transport sightseers or tourists wherever licensed, exceeding a maximum gross weight limit of three tons and used primarily for transport of passengers for compensation. It does not include school buses or buses transporting passengers over regular routes within the City where the routes are specifically
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Packet Pg. 167 Attachment: Ordinance (4578 : Update to Parking Ordinance) designated by the California Public Utilities Commission (PUC) or approved by the City. (CVC § 612)
10.04.240 Traffic.
“Traffic” means pedestrians, ridden animals, vehicles, streetcars, and other conveyances either singly or together, while using any highway for purpose of travel. (CVC § 620)
10.04.250 Traffic engineer.
“Traffic engineer” means the City engineer who shall exercise the powers and duties as provided in this title, the traffic ordinances of this City and the CVC. Whenever the traffic engineer is required or authorized to place or maintain official traffic-control devices or signals, he/she may cause such devices or signals to be placed or maintained.
10.04.260 Traffic hazard.
“Traffic hazard” means a condition where peril is created by the parking or driving of a motor vehicle or bicycle upon a public roadway or public off-street parking facility. Such hazard may be a condition where traffic flow is directed into an opposing traffic lane or across a centerline, drivers are required to stop on a through roadway to avoid conflict with the vehicle, or there is a visual obstruction that compromises the safety of other vehicles or pedestrians.
10.04.270 Vehicle or motor vehicle.
“Vehicle” or “motor vehicle” means a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks. (CVC § 670)
10.08 Enforcement
10.08.010 Police officers – Duties.
A. It shall be the duty of the police officers to enforce the provisions of this title.
B. Police officers are authorized to direct all traffic by voice, hand or signal in conformance with traffic laws; provided, that in the event of fire or other emergency, police officers may direct traffic as conditions may require notwithstanding the provisions of the traffic laws.
10.08.020 Unauthorized direction of traffic.
No person other than a police officer or a person deputized or authorized by the chief of police or other person acting in an official capacity, or by authority of law, shall direct or attempt to direct traffic by voice, hand or other signal, except that persons may operate, when and as provided in this title, any mechanical push button signal erected by order of the City Council.
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Packet Pg. 168 Attachment: Ordinance (4578 : Update to Parking Ordinance)
10.08.030 Public employees – Driving.
The provisions of this title shall apply to the driver of any vehicle owned or used in the service of the United States Government, this state, any county, city, or any other public agency. It is unlawful for any driver to violate any of the provisions of this title, except as otherwise permitted in this title.
10.08.040 Exemptions.
A. The provisions of this title regulating the operation, parking and standing of vehicles shall not apply to any vehicle of the police or fire department, any public ambulance, or any public utility vehicle, or any private ambulance, which public utility vehicle or private ambulance has qualified as an authorized emergency vehicle, when any vehicle mentioned in this section is operated in the manner specified in the CVC in response to an emergency call.
B. The foregoing exemptions shall not, however, protect the driver of any such vehicle from the consequences of her/his willful disregard of the safety of others.
C. The provisions of this title regulating the parking or standing of vehicles shall not apply to any vehicle of a City department or public utility while necessarily in use for construction or repair work, or any vehicle owned by the United States while in use for the collection, transportation or delivery of United States mail. (CVC §§ 21052, 21053, 21055, 21056)
10.08.050 Appeals.
Except for sections that require action by the City Council or are controlled by the CVC, or other state or federal law, any person aggrieved by a determination made pursuant to any provision of this title may appeal such a decision to the chief of police. Such appeal shall be taken by filing a written notice of appeal together with a $100.00 appeal fee to the Healdsburg police department within seven calendar days of the date of the decision and shall set forth grounds for the appeal.
The decision of the chief of police shall be final and conclusive. For purposes of this section, the term “chief of police” shall include his or her designee. The appeal fee may be refunded if good cause is shown.
10.08.060 Penalty for violations.
In addition to any other enforcement remedies available to the City under any applicable state or federal statute or pursuant to any other lawful power the City may possess, any violation of this chapter may be prosecuted or enforced as a nuisance pursuant to Chapter 1.12 HMC as that chapter may be amended from time to time. The City may also prosecute or enforce violations of this chapter as a criminal offense or by a civil court action, prosecuted by the City attorney in the name of the City or in the name of the people of the state of California, or in any other manner provided by law.
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Packet Pg. 169 Attachment: Ordinance (4578 : Update to Parking Ordinance)
10.12 Traffic-Control Devices and Signals
10.12.010 Placement by City Council.
The City Council shall have the authority to place and maintain or cause to be placed or maintained official traffic-control signals when and as required to make effective the provisions of this title and may place and maintain such additional traffic-control signals as it deems necessary to regulate, guide or warn traffic under this title or state law. This authority may be delegated to the traffic engineer, except as otherwise provided by law.
10.12.020 Installation – Locations.
The City Council is authorized to:
A. Install and maintain official traffic signals at such intersections and other places as it deems necessary for the regulation of traffic.
B. Establish safety zones at such places, as it deems necessary for the protection of pedestrians.
C. Mark lanes for traffic on street pavements at such places, as it deems advisable, consistent with the CVC and traffic ordinances of this City.
10.12.030 Nonstandard signs in central traffic district.
The use of nonstandard parking signs in the central traffic district is specifically authorized.
10.12.040 Obedience to signs
The driver of any vehicle and the person in charge of any animal shall obey the instructions of any barrier or sign erected by any authorized person, pursuant to law.
10.12.050 Visibility of signals.
No provision of this title for which signs or markings are required shall be enforced against an alleged violator if, at the time and place of the alleged violation, an official sign or marking is not in place and sufficiently legible and visible to be seen by an ordinarily observant person.
10.12.060 Indications of signals.
Whenever traffic is controlled by traffic-control signals exhibiting the words “GO,” “CAUTION” or “STOP” or exhibiting different colored lights successively one at a time, the following colors shall be used, and the terms and lights shall indicate as follows:
A. Green alone or “GO”:
1. Vehicular traffic facing the signal shall proceed either straight through or turn right or left unless a sign at such place prohibits either such turn, except that:
2. Vehicular traffic shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or the adjacent crosswalks at the time such signal is exhibited.
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Packet Pg. 170 Attachment: Ordinance (4578 : Update to Parking Ordinance)
3. Pedestrians facing the signal may proceed across the roadway within a marked or unmarked crosswalk.
B. Yellow (or orange) alone or “CAUTION”:
1. Vehicular traffic facing the signal shall stop prior to entering the intersection because the signal is about to change to red; however, if stopping is unsafe or infeasible then vehicular traffic may enter into the intersection cautiously and proceed through the intersection or turn (unless a sign at such place prohibits a turn).
2. Vehicular traffic shall yield the right-of-way to other vehicles and pedestrians lawfully within the intersection or adjacent crosswalks at the time such signal is exhibited.
3. Pedestrians facing the signal may not proceed into the intersection.
C. Red alone or “STOP”:
1. Vehicular traffic facing the signal shall stop.
2. Pedestrians facing the signal may not proceed into the intersection.
3. No driver of a vehicle shall make a right turn against a red or stop signal at any intersection which is sign-posted giving notice of such restriction. (CVC § 21450)
10.12.070 Flashing yellow light.
When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past such signal only with added caution. (CVC § 21457)
10.12.080 Push button signals.
No person shall operate a pedestrian push button signal other than a pedestrian for the purpose of immediately crossing the roadway.
10.12.090 Emergency traffic-control devices.
The chief of police is authorized, in cases of emergency in which in her/his opinion such controls are necessary to protect the public health, safety or welfare, to erect or install or cause to have installed any sign, signal, marking or device which she/he deems necessary to control traffic during the period of emergency. (CVC § 21100)
10.16 Turning Movements
10.16.010 Turning signals.
A. The City Council or traffic engineer may authorize the placement of markers, buttons or signs within or adjacent to intersections indicating the course to be traveled by vehicles turning at such intersections. (CVC § 21100)
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Packet Pg. 171 Attachment: Ordinance (4578 : Update to Parking Ordinance) B. When authorized markers, buttons or other indications are placed within an intersection indicating the course to be traveled by vehicles at the intersection, no driver of a vehicle shall disobey the directions of such indications.
10.16.020 U-turns – Certain intersections.
Certain intersections may be designated by the City Council as intersections where no vehicle shall be turned at any time in a complete circle or in such manner as to proceed in the opposite direction upon which the vehicle is traveling at the time of entering the intersection. The traffic engineer must place and maintain signs giving notice thereof at all intersections so designated and no such regulations shall be effective unless such signs are in place. (CVC § 22113)
10.16.030 U-turns – Certain Districts.
When signs are erected at designated intersections giving notice of turn restrictions, no vehicle shall be turned at any time in a complete circle or in such a manner as to proceed in the opposite direction upon the street upon which the vehicle is traveling at the time of entering the intersection.
10.20 One-Way Streets
10.20.010 One-way streets.
Certain streets and parts of streets may be designated by the City Council to be “one-way streets.” When suitable signs shall have been erected at all entrances to such streets and parts of streets so designated, all vehicular traffic on such streets and parts of streets shall travel only in the direction indicated by such signs.
10.24 Special Stops
10.24.010 Stop signs – Certain streets.
Whenever any ordinance or resolution of this City designates and describes any street or portion thereof as a through street, or any intersection at which vehicles are required to stop at one or more entrances thereto, the traffic engineer shall erect and maintain stop signs as follows:
A. On each and every street where a stop is required;
B. At or near the entrance to the highway or intersection where a stop is required. Every such sign shall conform to the requirements of the CVC.
10.24.020 Obedience to signs.
When stop signs are erected, as provided in this chapter, at the entrance to any intersection, every driver of a vehicle shall stop at every such sign before entering the intersection, except when directed to proceed by a police officer or traffic-control signal.
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Packet Pg. 172 Attachment: Ordinance (4578 : Update to Parking Ordinance)
10.24.030 Emerging from ally or private driveway.
The driver of a vehicle emerging from an alley, driveway or building within or immediately to the rear of a business district shall stop such vehicle immediately prior to driving onto a sidewalk or into the sidewalk area extending across any alleyway.
10.28 Stopping, Standing and Parking
10.28.010 Entrance to and exit from public parking areas.
The City Council may by resolution from time to time designate accesses to public off-street parking areas as accesses to be used solely for the entrance or exit, as the case may be, for vehicles.
When, pursuant to such resolution, markings are placed at such areas giving notice that such accesses are to be used solely for exit or entrance, any driver of a vehicle who thereafter drives a vehicle over and across such access in a direction other than that so indicated shall be guilty of an infraction.
10.28.020 Parking stalls.
A. Where parking stalls are indicated by painted lines, plastic markers or any other marking upon the streets indicating parallel, angle or other types of parking, it is unlawful to stand or park a vehicle other than wholly within the stalls so indicated.
B. Where parking stalls are indicated by painted lines, plastic markers or any other marking in any public parking lot, designating parallel, angle or other types of parking, it is unlawful to stand or park any vehicle other than wholly within the stalls so indicated.
C. Exemption. Vehicles towing a trailer or that are physically too large to occupy one space may utilize two or more spaces when parking parallel in designated parallel parking areas.
10.28.030 Angle parking.
The City Council shall determine those streets upon which angle parking shall be permitted (other than state highways where such parking is prohibited by the CVC) and the traffic engineer shall indicate such places by placing white lines upon the surface of the roadway indicating the angle at which parking is permitted. (CVC § 22503)
A. When such areas are marked for angle parking, all vehicles must be parked so that the right front tire is within 18 inches of the curb line. Backing into the space is prohibited. (CVC § 22502) B. Vehicles will park at the angle to the curb indicated by signs or pavement markings allotting space to parked vehicles and entirely within the limits of the allotted space.
C. Vehicles in excess of 22 feet in length shall not park in angle spaces, to avoid creating a roadway hazard. This would include vehicles with cargo that protrudes beyond the vehicle bumper that exceeds a total length of 22 feet.
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Packet Pg. 173 Attachment: Ordinance (4578 : Update to Parking Ordinance) D. Exemption: Vehicles actively engaged in construction activities or commercial deliveries may back into or occupy a space to avoid conflict with passing traffic while loading and unloading necessary materials or cargo. This does not allow a construction vehicle or commercial delivery vehicle to occupy the parking space, if such parking constitutes a hazard to passing traffic or pedestrians. Exemptions may also be issued pursuant to a valid special event permit or encroachment permit.
10.28.040 Angle parking in central traffic district.
Certain streets or portions thereof within the central traffic district have been approved for angle parking as follows:
Center Street from Mill Street to Piper Street
Matheson Street from Healdsburg Avenue to Center Street Plaza Street from Healdsburg Avenue to Center Street
North Street from Vine Street to Healdsburg Avenue
East Street from Mill Street north to Plaza Street
Only spaces marked with painted angle lines are to be utilized for angle parking.
10.28.050 Application of provisions.
A. The provisions of this chapter prohibiting the stopping, standing or parking of a vehicle shall apply at all times or at those times specified in this chapter, except when it is necessary to stop a vehicle to avoid conflict with other traffic in compliance with the directions of a police officer or official traffic-control device.
B. The provisions of this chapter imposing a time limit on standing or parking shall not relieve any person from the duty to observe other and more restrictive provisions of this title or of laws prohibiting or limiting the standing or parking of vehicles in specified places or at specified times.
10.28.060 Erection of signs.
The traffic engineer, or their authorized representative, may appropriately sign or mark the following places and when so signed or marked no person shall stop, stand or park a vehicle in any of the following places:
A. At any place within 15 feet of an intersection other than as mentioned elsewhere in this title.
B. Within five feet of the approach to the nearest crosswalk.
C. At any location in the City where the parking of a vehicle would create a hazard as determined by the chief of police and designated by the adoption of a resolution by the City Council.
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Packet Pg. 174 Attachment: Ordinance (4578 : Update to Parking Ordinance)
10.28.070 Curb painting.
Whenever special parking regulations are designated by painted curb, the following colors shall only be used:
Red – Indicates no stopping, standing or parking, whether the vehicle is attended or unattended, except that a bus may stop in a red zone marked or signposted as a bus loading zone.
Yellow – Indicates stopping for the purpose of loading or unloading passengers or freight for the time specified by signs or curb painting.
White – Indicates stopping for loading or unloading passengers or depositing mail in an adjacent mailbox, for the time limit designated by sign or curb painting.
Green – Indicates parking for the time limit specified by sign or curb markings.
Blue – Indicates parking limited exclusively to the vehicles of disabled persons. (CVC § 21458)
10.28.080 Limited time parking.
When authorized signs are in place giving notice thereof, no persons shall stop, stand or park any vehicle within the City for a longer period of time than the time indicated on such signs. Each consecutive period of time longer than the time so established that a person so stops, stands or parks a vehicle shall constitute a separate overtime parking offense. (CVC § 22508)
10.28.090 Timed parking zones central traffic district.
The following parking time limits are hereby established for the areas encompassed in the central traffic district as defined in HMC 10.04.060. Timed parking is subject to enforcement from 9:00 a.m. until 6:00 p.m. seven days a week, including Sundays and holidays. (CVC § 22508) The traffic engineer may place appropriate time limit signs on any parking spaces within the central traffic district.
Three-hour time limit zones:
Healdsburg Avenue from Mill Street to the southern curb line of Matheson Street and from the northern curb line of Plaza Street to Piper Street. 237 Center Street north to the southern curb line of Matheson Street and from the northern curb line of Plaza Street to Piper Street.
Matheson Street from Vine Street to the western curb line of Healdsburg Avenue and from the eastern curb line of Center Street to East Street.
South curb line of Matheson Street from East Street to Fitch Street.
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Packet Pg. 175 Attachment: Ordinance (4578 : Update to Parking Ordinance) Plaza Street from eastern curb line of Center Street east to East Street.
North Street from Grove Street east to East Street.
Foss Street east curb line from North Street north 200 feet.
The 25 spaces located in the southern portion of Lot A, which is adjacent to Grove Street and Matheson Street.
The following timed zones may be designated within the central traffic district by the traffic engineer (the time limits within such zones will be indicated by posted signs and green paint on the curb):
Two-hour time limit zones (indicated by posted sign only – paint not required):
Both sides of Plaza Street, Center Street, Matheson Street, and Healdsburg Avenue for those sections which are adjacent to Plaza Park.
30-minute zones.
15-minute zones.
10-minute zones.
10.28.100 Timed parking waiver.
Special events occurring within the central traffic district may receive a waiver of the parking time limits for the duration of the special event if all of the following conditions are present:
A. A valid City special event permit has been obtained.
B. A written request for the parking time waiver is included in the special event permit. This request must state specific reasons for such waiver.
C. The specific street area, date and event times that the enforcement will be waived.
D. The chief of police or their designee finds that the request is necessary for traffic safety or the orderly scheduling of the event activities.
10.28.110 Unlawful acts.
It is unlawful for any person to park or permit to be parked any vehicle, pushcart or other contrivance within the City on any street, parking area, park or other public land or area within the City, under the following conditions:
A. Sales from Vehicles. To stop, stand or park any vehicle from which goods, wares, merchandise or foodstuffs are sold, displayed, solicited or offered for sale, barter or exchange,
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Packet Pg. 176 Attachment: Ordinance (4578 : Update to Parking Ordinance) without a City business license and permit from the zoning department if required, except for the delivery of merchandise upon prearranged order to a customer.
B. Vehicles for Hire. To stop, stand or park any vehicle, which is used or intended to be used for the transportation of property or persons for hire, while awaiting patronage, without first obtaining a permit from the chief of police or their designee.
C. Vehicles for Sale. To park any vehicle for the purpose of displaying such vehicle for sale. The display of any sign or other information on or about the vehicle, indicating that such vehicle is for sale, shall create a presumption that such vehicle is parked for the purpose of displaying it for sale.
This restriction shall not apply to a vehicle that is parked within 150 feet of the residence of the vehicle owner.
D. Recreational Vehicles. To park any house trailer, camper or other vehicle adapted for sleeping, eating, camping or other human habitation purposes, except that such vehicle may be parked on the public streets, in accordance with other state and City laws regulating parking, for a period of not more than a 72-hour period, providing that during the period of parking the vehicle is not used for sleeping, food preparation, camping, eating or other human habitation purpose.
E. Parking in Parkways. To park any vehicle in any park, parkway, greenbelt, planting area or sidewalk area within the City except within parking areas specifically designated as such by the City Council.
F. When any vehicle is parked on any roadway or portion thereof necessary for street sweeping, repair, maintenance or construction of such roadway, or for the installation of underground utilities, and signs giving notice that parking is prohibited and that the vehicle may be removed are erected or placed at least 24 hours prior to the removal, except in the case of emergency, said vehicles may be removed in accordance with the provisions of the CVC at the owner’s expense. (CVC § 22651)
10.28.120 Double-parking of commercial vehicles.
A. Definitions.
1. “Commercial vehicle” means any vehicle so defined by the CVC.
2. “Double-park” means to leave a vehicle stopped, parked or standing, upon a roadway where there is another vehicle parked between the subject vehicle and an adjacent curb, and where the right-hand wheels of such vehicle are more than 18 inches from the right-hand curb. Where no curbs exist, the edges of the paving shall be considered as curbs for the purpose of this section. (CVC § 22502)
B. Unlawful Acts. It shall be unlawful for any vehicle, including any commercial vehicle, to double-park where to do so creates a traffic or safety hazard. (CVC §22500)
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10.28.130 Emergency parking signs.
A. Whenever the chief of police determines that an emergency traffic congestion is likely to result from the holding of public or private assemblages, gatherings or functions, or for other reasons, the chief of police shall have power and authority to order temporary signs to be erected or posted indicating that the operation, parking or standing of vehicles is prohibited on such streets and alleys as the chief of police shall direct during the time such temporary signs are in place. Such signs shall remain in place only during the existence of such emergency and the chief of police shall cause such signs to be removed promptly thereafter.
B. When signs authorized by the provisions of this section are in place giving notice thereof, no person shall operate, park or stand any vehicle contrary to the direction and provisions of such signs.
10.28.140 Special purpose parking.
When appropriate signs are in place giving notice thereof, no person shall stop, stand or park any vehicle in or on any parking area except for the purpose of enabling the occupant of the vehicle to transact business, nor for any longer period of time than that time necessary to transact such business.
10.28.150 Parking by service station operators.
It is unlawful for any person operating a service station or other automotive service facility or business to park or permit to be parked any vehicle on any public street or public parking lot within the City so that such vehicle is in or becomes in violation of any law of this City, when such vehicle has been left with or in care of the operator of any such service station or business or its agent and has not been reclaimed by the owner or operator of the vehicle.
10.28.160 Running of engines while stopped.
A vehicle engine which emits exhaust fumes into the air shall be turned off while the vehicle is stopped or standing or parked on a public street or public parking area, unless the vehicle is in the moving traffic lane waiting to move with the normal flow of traffic. Vehicle engines shall be turned off when loading and unloading passengers or merchandise, except when the engine is needed to operate equipment used to load or unload merchandise. This prohibition shall apply to all vehicles including trucks and tour buses excepting emergency vehicles, utility company and maintenance vehicles, the engines of which must run to perform needed work.
10.28.170 Permit parking.
Pursuant to the requirements outlined in CVC Section 22507, permit parking may be created by City Council action. No provisions of City Council action regarding permit parking shall apply until signs or markings giving adequate notice have been placed. Parking in a restricted parking area that is designated as “permit parking” without a valid permit is unlawful and may be cited as a parking infraction.
The following locations are authorized for restricted permit parking only:
1. Public parking lot at the south west corner of East Street and Plaza Street.
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2. West curb line of Grove Street between North Street and Foss Creek Circle.
3. Parking lot behind Healdsburg Police Station.
4. Parking lot immediately north of Healdsburg City Hall; 401 Grove Street.
5. City Corporation Yard parking lot at 550 Westside Road.
10.28.180 Commercial vehicle prohibited without permit.
It shall be unlawful for any commercial vehicle in excess of 10,000 pounds to park in any of the following City-owned off-street parking lots without a valid parking permit:
1. Swenson parking lot north end at the corner of North and Vine Streets.
2. City of Healdsburg parking lot at 401 Grove Street.
3. East Street parking lot at the corner of Plaza and East Streets.
4. Center Street parking lot between Healdsburg Avenue and Center Street.
5. Healdsburg Avenue parking lot at the corner of Healdsburg Avenue and Mitchell Lane.
10.28.190 Removing or concealing a mark.
The removal, obliteration or concealment of any chalk mark or other distinguishing mark used by any police officer or other employee of this City relating to the enforcement of the parking regulations of this chapter, if done for the purpose of evading a parking regulation found in this chapter, shall be unlawful and shall constitute an infraction.
10.28.200 Designation of spaces – removal of vehicles from off-street parking facilities.
A. Designation of Spaces on the Streets. The City Council shall indicate by resolution which street parking spaces shall be designated for the exclusive use of disabled persons whose vehicles display a distinguishing license plate issued pursuant to CVC Section 9105 or 22511.5. Whenever the City Council so designates a parking space, it shall be marked by blue paint on the curb or edge of the paved portion of the street adjacent to the space. In addition to the blue paint, the space will be marked by a sign or other suitable means. Prior to approving a disabled space on the public roadway the traffic engineer will evaluate safety, taking into consideration traffic flow and any hazards. (CVC § 22511.7)
B. Off-Street Parking Facilities. The City Council by resolution and any person in lawful possession of an off-street parking facility owned or operated by the local authority or person may designate disabled parking spaces in accordance with CVC Section 22511.8. Any person owning or operating an off-street parking facility may designate stalls or spaces in such facility for the exclusive use of disabled persons whose vehicles display a distinguishing plate issued pursuant to CVC Section 9105 or 22511.5. Such designation shall be in accordance with the requirements of CVC Section 22511.8.
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Packet Pg. 179 Attachment: Ordinance (4578 : Update to Parking Ordinance) C. Removal of Vehicles. The owner or person in lawful possession of an off-street parking facility, after notifying the City police department or the City with regard to any off-street parking facility it owns or operates, may cause the removal, from a stall or space designated for the physically handicapped persons in such facility to the nearest public garage, of any vehicle not displaying one of the distinguishing license plates specified in this section if there is posted immediately adjacent to, and visible from, such space or stall a sign which clearly states the following:
Unauthorized vehicles not displaying distinguishing license plates issued to a disabled person will be towed away at owner’s expense. Towed vehicles may be reclaimed at the Healdsburg Police Department or by phoning 431-3377. (CVC §§ 22511.5, 22511.7, 22511.8 and 22511.9)
1For statutory provisions on stopping, standing and parking, see California Vehicle Code § 22500 et seq.; for provisions on removal of parked vehicles, see California Vehicle Code § 22650 et seq.; for provisions on curb markings, see California Vehicle Code § 21458.
10.28.210 – Motorcycle Parking Zone
A. The Traffic Engineer may designate areas in public parking facilities or on street for motorcycle only parking. These areas shall be designated by a sign indicating motorcycles only, or for onstreet parking, a picture of a motorcycle on the roadway indicating motorcycle parking. For onstreet parking, lines shall be painted indicating individual spaces for on-street motorcycle parking.
B. It shall be unlawful and a violation of the provisions of this title for any person to park any vehicle other than a motorcycle, in a motorcycle parking zone.
10.28.220 – Electric Vehicle Parking
A. Designation of Parking Spaces. The Traffic Engineer is authorized in accordance with the purposes of this chapter to designate areas of both on-street and off-street public parking facilities for the exclusive parking of electric vehicles that are connected to electric vehicle charging stations for the purpose of transfer of electricity to the battery or other energy storage device of an electric vehicle.
B. Signs or Markings. Upon designation of a parking space or spaces for the exclusive use of electric vehicles pursuant to Subsection A of this section, the Public Works department shall place signs or markings stating that the charging stalls or spaces are restricted and to be used only for electric vehicles and that vehicles left standing in violation of the restriction may be removed. The parking restriction shall not be enforced on the designated parking spaces until the sign or markings have been placed.
C. Only electric vehicles are permitted to charge in stalls designated by the use of markings and/or posting as electric vehicle charging stations, for charging events during designated hours.
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Packet Pg. 180 Attachment: Ordinance (4578 : Update to Parking Ordinance) D. It is unlawful for the operator of any vehicle to allow a vehicle to park or stand in a designated electric vehicle charging station longer than the posted time limit.
E. It is unlawful for the operator of an electric vehicle to allow that vehicle to park or stand in a designated electric vehicle charging station unless the vehicle is actively conducting a charging event.
F. The police department is authorized to cite and/or remove or cause the removal of vehicles parked in violation of this section in accordance with California Vehicle Code § 22511.
10.32 Loading and Unloading
10.32.010 Loading zones – Indication.
A. The traffic engineer is authorized to determine and to mark loading zones as follows:
1. At any place in the central traffic district or any business district;
2. Elsewhere in front of the entrance to any place of business or in front of any hall or place used for the purpose of public assembly.
B. In no event shall more than one-half of the total curb length in any block be reserved for loading zone purposes exclusive of the passenger loading zones at the entrances to public theaters.
C. Commercial loading zones and combined commercial loading and passenger loading zones shall be indicated by signs or a yellow paint line stenciled with black letters, “Loading Only,” upon the tops of all curbs within such zones; the combined commercial loading and passenger loading zone shall in addition be marked with a suitable sign.
D. Passenger loading zones shall be indicated by signs or a white line stenciled with black letters, “Passenger Loading Only,” upon the tops of all curbs in the zone.
10.32.020 Bus loading zones.
A. The City Council may, by resolution, determine and mark bus loading zones at any place in the central traffic district or any business district.
B. Bus loading zones shall be indicated by signs and red paint on the curb in the zone.
C. No person shall stop, stand or park any vehicle in any bus loading zone (except that a bus may stop in a bus loading zone for the purpose of loading or unloading passengers or their baggage).
D. A “bus,” for the purposes of this section, is defined as a publicly owned vehicle designed to carry eight or more passengers.
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10.32.030 Commercial vehicles.
A. Permission granted in this chapter to stop or stand a vehicle for purposes of loading or unloading of materials shall apply only to commercial vehicles and shall not extend beyond the time necessary therefor, and in no event for more than 20 minutes.
B. The loading or unloading of materials shall apply only to commercial deliveries, and also the delivery or pickup of express and parcel post packages and United States mail.
C. Permission granted in this chapter to stop or park for purposes of loading or unloading passengers shall include the loading or unloading of personal baggage but shall not extend beyond the time necessary therefor, and in no event for more than three minutes.
D. Within the total time limits above specified, the provisions of this section shall be enforced so as to accommodate necessary and reasonable loading or unloading but without permitting abuse of the privileges granted by this chapter.
10.32.040 Stopping in alleys.
No person shall stop, stand or park a vehicle for any purpose other than the active loading or unloading of persons or materials in any alley.
10.32.050 Stopping in loading zone or unloading zones.
When authorized signs or marks are in place giving notice thereof, no person shall stop, stand or park a vehicle for any purpose other than loading or unloading passengers or materials and only for such time as is permitted in any of the following places:
A. In any yellow loading zone;
B. Within 50 feet of any entrance to any school;
C. In any parking area or parking places in or near which signs are posted to limit stopping, standing or parking to loading or unloading as designated in this chapter.
10.32.060 Stopping in passenger loading zones.
No person shall stop, stand or park a vehicle in any passenger loading zone for any purpose other than the loading or unloading of passengers for such time as is specified by appropriate signs.
10.32.070 Zones established.
Whenever the City Council has determined that parking shall be limited and authorized signs or marks are in place giving notice thereof, no person shall stop, stand or park a vehicle for any purpose other than loading or unloading passengers or materials in any of the following places:
A. At any curb where the grade of the street exceeds 12 percent; B. On any part of a roadway having a width of not more than 25 feet;
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Packet Pg. 182 Attachment: Ordinance (4578 : Update to Parking Ordinance) C. In front of any hall or place used for the purpose of public assemblage; D. In front of the entrance to any place in use for business outside of the central traffic district; E. At any other place where the parking of vehicles would result in traffic congestion or particular hazard.
10.32.080 Bus and taxi stands.
A. No person shall park or stand any vehicle used or intended to be used in the transportation of persons for hire on any street while awaiting patronage for such vehicle without first obtaining a permit so to do from the chief of police of the City designating the exact location where such vehicle shall be permitted to park or stand. The chief of police shall only issue permits for such vehicles to park or stand at such points as may from time to time be designated by resolution of the City Council.
B. The traffic engineer shall cause the curb opposite to such stands to be painted red with the words in white letters “Taxi Zone” or “Bus Zone,” as the case might be, stenciled thereon. (Ord. 1005 § 2, 2003. Code 1964 § 12.36.080.)
1 For statutory provisions on local parking curb markings, see California Vehicle Code § 21458; for provisions authorizing local authorities to regulate the location of standards for public carriers, see California Vehicle Code § 21112.
10.36 Miscellaneous Driving Rules
10.36.010 Bicycles on sidewalks.
It is unlawful for any person to ride, use or operate a bicycle upon any sidewalk within any of the commercial districts of the City as designated in the City’s zoning ordinance.
10.36.020 Skate and roller-wheeled devices.
It is unlawful for any person to ride or use any skateboard, skate-wheeled coaster, belly board, roller skates, or similar contrivances, upon any street, sidewalk, or public right-of-way within the commercial district of the City as designated in the City’s zoning ordinance, any public park or pedestrian path, any municipal parking lots within the City, or any of the other areas where the riding or use of such devices is prohibited pursuant to HMC 12.36.030.
10.36.030 Clinging to a moving vehicle.
It is unlawful for a person to attach himself/herself with his hands, or to catch on, or hold on with their hands or by other means, to any moving vehicle or train for the purpose of receiving motive power therefrom. This section applies to all public streets, sidewalks and all off-street parking facilities open to the general public.
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10.36.040 New pavement.
No person shall ride or drive any animal or vehicle over or across any newly made pavement or freshly painted marking in any street when a barrier or sign is in place warning persons not to drive over or across such pavement or marking, or when a sign is in place stating that the street or any portion thereof is closed.
10.36.050 EPAMDs prohibited.
It is unlawful for any person to operate an “electrical personal assistive mobility device” as defined in CVC Section 313 on any sidewalk, walkway or pathway located within the downtown business district, except as may be otherwise permitted pursuant to Chapter 12.16 HMC. (CVC § 21282) This section is intended to restate, and not replace, supersede, or invalidate, City Ordinance No. 1000, which created Chapter 12.16 HMC and which regulates the use of EPAMDs within the City of Healdsburg.
10.40 Truck Routes
10.40.010 Truck routes.
A. Such streets and parts of streets as designated by any ordinance or resolution of this City are declared to be “truck traffic routes,” the use of which is permitted by any commercial vehicle or by any vehicle exceeding a maximum gross weight limit of five tons (10,000 pounds). The traffic engineer is authorized to designate such streets or street by appropriate signs as “truck traffic routes” for the movement of commercial vehicles exceeding a maximum gross weight limit of five tons.
B. When any such truck traffic route or routes are established and designated by appropriate signs, the operator of any commercial vehicle or any vehicle exceeding a maximum gross weight limit of five tons shall drive only on such route or routes excepting only when necessary to traverse another street or streets to a destination for the purpose of loading or unloading, but only by such deviation from the nearest truck route as is reasonably necessary. The provisions of this section shall not apply to passenger buses under the jurisdiction of the railroad commission.
C. It is unlawful for any commercial vehicle weighing more than five tons to drive upon, park on or use any street not designated as a truck route unless an exemption or permit has been issued.
D. The following streets or parts of streets have been designated as truck routes:
1. Bailhache Road
2. Chiquita Road
3. Dry Creek Road
4. Exchange Avenue (between Adeline Way and Healdsburg Avenue)
5. Grant Avenue
6. Grant Street/West Grant Street (between Grove Street and Healdsburg Avenue)
7. Grove Street
8. Healdsburg Avenue (between Bailhache Road and US 101 south)
9. Healdsburg Avenue (between Front Street and US 101 north)
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10. Mill Street (between East Street and US101)
11. Moore Lane
12. Vine Street
13. West North Street
1 For statutory provisions authorizing local authorities to prohibit the use of particular highways by certain vehicles, see California Vehicle Code § 21101(c).
10.44 Pedestrians
10.44.010 Establishment of crosswalks.
A. The City Council may establish, designate and maintain crosswalks at intersections and other places by appropriate devices, marks or lines upon the surface of the roadway.
B. Crosswalks may be established and maintained at intersections within the central traffic district and at such other intersections where the City Council determines that there is a particular hazard to pedestrians crossing the roadway.
10.44.020 Crossing in central traffic district.
When crosswalks are established, no pedestrian shall cross a roadway other than by a crosswalk in the central traffic district, as defined herein, or in any business district (as defined in CVC § 235).
1 For statutory provisions on local authority to establish crosswalks, see California Vehicle Code § 21106; for provisions on local regulation of pedestrian crosswalk use, see California Vehicle Code § 21961; for provisions on pedestrians, rights and duties, see California Vehicle Code § 21950 et seq.
10.50 Prima Facie Speed Limits
10.50.010 Alleys – Fifteen miles per hour.
In accordance with Section 22352(a)(1)(C) of the California Vehicle Code (CVC), the prima facie speed limit for the streets, or portions thereof, designated in this section is hereby designated to be 15 miles per hour.
Street Name Segment
Alley 1 East to University
Alley 2 Fitch to University
Alley 3 Center to East
Alley 4 East to Fitch
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Packet Pg. 185 Attachment: Ordinance (4578 : Update to Parking Ordinance) Street Name Segment
Alley 5 Brown to University
Alley 6 Terrace to its terminus north of
Sunnyvale
10.50.020 Residential streets – twenty-five per hour.
In accordance with Section 22352(a)(2)(A) of the CVC, the prima facie speed limit for the streets, or portions thereof, listed on Exhibit A1is hereby designated to be 25 miles per hour.
10.50.030 School zones.
The public works director shall install standard “SCHOOL” warning signs within certain designated school zones. Once posted, in accordance with Section 22352(a)(2)(B) of the CVC, the prima facie speed limits in these posted areas is hereby designated to be 25 miles per hour.
10.50.040 Children’s playgrounds – Twenty-five miles per hour.
In accordance with Section 22357.1 of the CVC, the prima facie speed limit for the street, or portions thereof, designated in this section is hereby designated to be 25 miles per hour during the hours of operation of the skate park, currently 8:00 a.m. to 5:00 p.m.
Street Name Segment
Grove West Grant to Dry Creek
10.50.050 Prima facie speed limits established by engineering and traffic survey.
In accordance with the California Vehicle Code, the prima facie speed limits for the streets, or portions thereof, designated in this section are hereby designated to be as follows:
Twenty-five miles per hour
Street Name Segment
Center Powell to Mill
Chiquita Grove to US 101
Fitch Powell to Matheson
Fitch/Harmon/Hudson Front to Matheson
Front Mason to Healdsburg
Grant Grove to University
Healdsburg Exchange to Front
Healdsburg Grant to Mill
Matheson Healdsburg to Fitch
Matheson Fitch to Heron
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Packet Pg. 186 Attachment: Ordinance (4578 : Update to Parking Ordinance) Powell Healdsburg to University
Terrace Healdsburg to University
University Powell to Mason
Thirty miles per hour
Street Name Segment
Chiquita City limits north to US 101
Dry Creek US 101 to Healdsburg
Grove Healdsburg to Dry Creek
Grove Dry Creek to West Grant
Grove/Vine West Grant to Mill
Healdsburg Powell to Grant
Healdsburg Exchange to Mill
Healdsburg Bailhache to the east approach of
the bridge
March Healdsburg to Woodside
Mill East to US 101
Powell University to City limits east
Thirty miles per hour (continued)
University Terrace to Powell
Thirty-five miles per hour
Street Name Segment
Healdsburg Parkland Farms to Dry Creek
Healdsburg Dry Creek to Powell
Kinley Westside to Magnolia Drive
South
Parkland Farms Blvd. Healdsburg to Saddle Draw
South Fitch Mountain Heron to City limits east
Forty miles per hour
Street Name Segment
Healdsburg Northern City limits to Parkland
Farms
Forty-five miles per hour
Street Name Segment
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Packet Pg. 187 Attachment: Ordinance (4578 : Update to Parking Ordinance) Healdsburg Southern City limits to Bailhache
10.50.060 Bridges and structures.
In accordance with Section 22404 of the CVC, the prima facie speed limit for the streets, or portions thereof, designated in this section is hereby designated to be 15 miles per hour.
Street Name Segment
Healdsburg Ave. Bridge over the Russian
River
East approach to west
approach
1 Code reviser’s note: Exhibit A is on file in the office of the City Clerk.
10.52 Storage, Standing and Parking
10.25.010 72 -hour limit – Removal.
A. No person who owns or has possession, custody or control of any vehicle, trailer, boat or any other property shall park, stand, store or permit, suffer or allow such parking, standing or storing, upon any street, alley or City-owned or operated parking lot for more than a consecutive period of 72 hours. Slight movement back and forth of the vehicle does not constitute compliance with the 72-hour restriction.
B. In the event a vehicle, trailer, boat or any other property is parked, stored or left standing upon a street, alley or City-owned parking lot in excess of a consecutive period of 72 hours, any member of the police department may issue a parking citation or remove the vehicle, trailer, boat or other property from the street, alley or City-owned parking lot in the manner and subject to the requirements of the CVC and this code. (CVC § 22651(k)) C. This section shall not apply to vehicles or equipment reasonably placed on public property with the permission of the traffic engineer while construction is in progress.
10.52.020 Repairing vehicles on streets.
No person shall park a vehicle, trailer, boat, or any other mechanical equipment or device upon any street for the principal purpose of greasing or repairing the same, except repairs necessitated by an emergency.
10.52.030 Human habitation in vehicles prohibited.
A. Definitions. For purposes of this section, “vehicle” includes any boat, house boat, mobile home, car, truck, van, sport utility vehicle, commercial truck, camp car, house car, camper, bus, recreational vehicle, or any other vehicle generally used for human habitation and designed for transport on wheels or in tow by motor vehicles.
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Packet Pg. 188 Attachment: Ordinance (4578 : Update to Parking Ordinance) B. Exceptions. Vehicles parked and occupied in mobile home parks, travel trailer parks, or similar areas specifically set aside and lawfully used under zoning and other regulations for the use of such vehicles by human habitation.
C. Enforcement. It is unlawful for any person to utilize a vehicle for human habitation on any public or private property, except for areas defined in subsection (B) of this section.
10.52.040 Sleeping in vehicles.
It is unlawful for any person to sleep in any vehicle parked on any highway, street, alley, or offstreet parking area or any privately owned parking area used for customer parking of any business enterprise in the City between the hours of 6:00 p.m. and 6:00 a.m. 1 For statutory provisions on stopping, standing and parking, see California Vehicle Code § 22500 et seq.; for provisions on removal of parked vehicles, see California Vehicle Code § 22650 et seq.
10.56 No Parking Areas
10.56.010 No parking areas.
It is unlawful for any person to stop, stand or park any vehicle in any of the following places, except when necessary to avoid conflict with other traffic or in compliance with the direction of a police officer or other authorized officer, or traffic sign or signal.
A. Within any divisional island unless authorized and clearly indicated by a sign or red curb paint.
B. On either side of any street between the projected property lines of any public work, public steps, street or thoroughfare terminating at such street, where indicated by red curb paint or signs.
C. In any area where the traffic engineer determines that stopping or parking of a vehicle would endanger life or property, when such area is indicated by signs or red curb paint.
D. In any area established by resolution of the City Council as a no parking area, when such area is indicated by appropriate signs or red paint on the curb.
E. Upon any railroad track or right-of-way.
F. In any area where parking or stopping of any vehicle would constitute a traffic hazard or endanger life or property.
G. Obstructing or blocking any crosswalk.
H. Within any bridge approach bounded by a guardrail or other protective barrier.
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Packet Pg. 189 Attachment: Ordinance (4578 : Update to Parking Ordinance) I. In a construction zone area when appropriate signs have been erected by the authority of the traffic engineer.
J. Within 40 feet of the approach to any traffic signal, stop sign or official traffic control device, when indicated by appropriate signs or by red paint upon the curb, except that a bus may stop at a designated bus stop.
K. On any street or highway where the use of such street or highway or a portion thereof is necessary for the cleaning, repair, or construction of the street or highway or the installation of underground or overhead utilities; or where the use of the street or highway or any portion thereof is authorized for a purpose other than the flow of traffic; or where the use of the street or highway or any portion thereof is necessary for the movement of equipment, structures or articles of unusual size and the parking of vehicles would interfere with such movement or use; provided, that signs are posted or erected at least 24 hours prior to the effective time of such no parking. 1 For statutory provisions on stopping, standing and parking, see California Vehicle Code § 22500 et seq.
10.60 Regulation of Public Property Uses
10.60.010 Unauthorized regulation of public property uses.
It is unlawful for any person to regulate uses of public property, including traffic and vehicular uses, by sign, object, logo, lighting, paint or other method, without prior authorization from the City Council.
10.64 Abandoned Vehicles and Abatement
10.64.010 Authority pursuant to California Vehicle Code Section 22660.
In accordance with the authority granted under CVC Section 22660, the City Council hereby makes the following findings and declarations:
The accumulation and storage of abandoned, wrecked, dismantled or inoperative vehicles or parts thereof on any highway, private property or public property, is hereby found to constitute a public nuisance. The abatement of any such public nuisance shall be administered by any police officer with the exception that vehicles or parts thereof may be removed by any other duly authorized person. (CVC § 22663)
10.64.020 Exemptions.
This chapter does not apply to (A) a vehicle or part thereof that is completely enclosed within a building in a lawful manner where it is not visible from the street or other private or public property or (B) a vehicle or part thereof that is stored or parked in a lawful manner on private property in connection with the business of a licensed dismantler, licensed vehicle dealer or a junkyard. This exception shall not, however, authorize the maintenance of a private or public nuisance as defined under other provisions of law. (CVC § 22661)
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10.64.030 Enforcement.
Pursuant to CVC Section 22663, police officers and other duly authorized persons may enter upon private property for the purposes specified in this chapter to examine a vehicle or parts thereof, obtain information as to the identity of a vehicle, and remove or cause the removal of a vehicle or part thereof if declared to be a nuisance pursuant to this chapter.
10.64.040 Abatement.
A. Both the property owner and registered owner of the vehicle, if this can be determined, will be mailed a notice of intent to remove the vehicle or part constituting a public nuisance. The abatement notice shall give the interested parties 10 days to appeal the decision prior to removal.
The vehicle may be removed immediately if both the property owner and registered owner sign a release waiving further interest in the vehicle or part thereof. However, the notice of intention is not required for removal of a vehicle or part thereof that is inoperable due to the absence of a motor, transmission, or wheels, is incapable of being towed, is valued at less than $200.00 by a person specified in CVC Section 22855, and is determined by the local agency to be a public nuisance (per CVC § 22669); provided, that the property owner has signed a release authorizing the removal and waiving further interest in the vehicle or part thereof.
B. Prior to final disposition under CVC Section 22662 of such low-valued vehicle or part for which evidence of registration was recovered, the local agency shall provide notice to the registered and legal owners of intent to dispose of the vehicle or part, and if the vehicle or part is not claimed within 12 days after the notice is mailed, from a location specified in CVC Section 22662, final disposition may proceed.
10.64.050 DMV notification.
The Department of Motor Vehicles will be notified within five days after the date of removal, identifying the vehicle or part thereof and any evidence of registration available, including, but not limited to, the registration card, certificates of ownership, or license plates.
10.64.060 Appeals.
An appeal may be filed within 10 days of mailing the notice of intent to abate the vehicle or part thereof or at the time of signing a release pursuant to HMC 10.64.040(A). A public hearing will be held before the hearing official. An appeal may be filed by either the landowner or vehicle owner. If the request is not received within that period, the appropriate public body, agency, or officer shall have the authority to remove the vehicle.
The City Council hereby designates the chief of police or their designee as the hearing official for purposes of this chapter.
The owner of the land on which the vehicle is located may appear in person at the hearing or present a sworn written statement denying responsibility for the presence of the vehicle on the land, with his or her reasons for denial. If the owner of the land on which the vehicle is located submits a sworn written statement denying responsibility for the presence on their land within that time period, such statement shall be construed as a request for a hearing that does not require the
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Packet Pg. 191 Attachment: Ordinance (4578 : Update to Parking Ordinance) presence of the owner submitting the request. If it is determined that the vehicle was placed on the land without the consent of the landowner and that he or she has not subsequently acquiesced to its presence, then the local authority shall not assess costs associated with the removal to the land owner.
Any vehicle removed pursuant to this chapter shall not be reconstructed or made operable, unless it is a vehicle that qualifies for either horseless carriage license plates or historical plates pursuant to CVC Section 5004.
1 For statutory authority concerning abandoned vehicles, see California Vehicle Code §§ 22660, 22661, 22663, and 22669.
10.68 Repealed
10.72 Towing Service Requirements
10.72.010 Definitions
A. “Operator” means any person, firm, corporation or association engaged in the business of towing motor vehicles.
B. “Tow car” or “tow truck” is a motor vehicle which has been altered or designed and equipped for and exclusively used in the business of towing vehicles by means of a crane, tow bar, tow line or dolly or is otherwise exclusively used to render assistance to other vehicles.
C. “Towing operation” shall be defined as the activity of towing vehicles for compensation within the City of Healdsburg. Towing operation includes the storing of vehicles and all other services performed incident to towing.
10.72.020 Selection and designation of towing service by city council.
Any towing service operator who meets the requirements provided for herein and who enters into a signed agreement to provide towing services with the City shall provide said services at the request of the police department. The name of each such operator shall be placed on a list from which the police department shall select, on a rotational basis, the operator whose services are required at any given time. Towing companies who meet the minimum requirements may apply to be placed on the City rotation list.
The police chief shall have the authority to enter into and sign the written agreement, on behalf of the City, with any applicant that meets the minimum standards identified in both this chapter and in the written agreement.
10.72.040 Storage lots and space.
The storage lot must be within 15 miles of any City boundary and must have adequate storage space to accommodate not less than 10 vehicles in a secure storage area, and one covered space
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Packet Pg. 192 Attachment: Ordinance (4578 : Update to Parking Ordinance) will be required. Such storage area and any fences surrounding the same must be approved, in writing, by the chief of police. It is the intent of this chapter that such buildings and fences must reasonably screen the stored vehicles from public view. Stored vehicles and the contents must be safe from pilfering or tampering. Storage lots in the City shall be in compliance with City zoning and safety regulations.
10.72.050 Hours for attendant on call.
A. There shall be an attendant on call, capable of responding to police request for towing 24 hours a day, seven days a week.
B. There shall be an attendant on call capable of responding for the release of vehicles Monday through Friday, between 8:00 a.m. and 5:00 p.m. A regular service charge may be charged for releasing vehicles on Saturday, Sunday or holidays and after regular working hours.
10.72.060 Insurance – Filing.
Adequate public liability, property damage, fire and theft insurance must be maintained by the operator, as defined in the agreement. A copy of the certificate of insurance shall be kept on file in the office of the City Clerk.
10.72.070 Records.
The operator shall keep a record of the vehicles and license numbers; date and time each was towed and location from which it was towed; name of the officers ordering the towing and whether the vehicle was impounded or towed at the owner’s request. Said records shall be subject to inspection by the City.
10.72.090 Removal of hazards.
After being dispatched by the police department to the scene, the operator shall cooperate with the police officers in removing hazards and illegally parked vehicles, as requested.
10.72.100 Only tow vehicles with markings to be dispatched exception.
Only tow cars bearing the name of operator’s firm, corporation or association shall be dispatched to the scene of need, unless the police officer at the scene approves the use of a tow car or truck which is unmarked or showing a different name than the contracting operator’s name.
10.72.110 Collecting Fees – Lien sale.
Pursuant to state law, the operator shall be responsible for collecting all fees and charges and shall handle and process all lien sales involving vehicles towed and stored by the operator under this chapter; provided, however, that the police department shall handle and process the disposition of low-valued vehicles as set forth in Section 22851.2 of the Vehicle Code.
10.72.120 Vehicle release – Removal of vehicle contents on hold.
Vehicles impounded by the police for special investigations, i.e., fingerprints, etc., shall be held in a place of maximum security by the operator until released in writing by the police department.
Written release by the police department shall be made within 24 hours after first having been
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Packet Pg. 193 Attachment: Ordinance (4578 : Update to Parking Ordinance) impounded, unless there are specific reasons the police department cannot provide for a release within 24 hours. Contents of the vehicles with a police “hold” shall not be removed without the prior written approval of the police department.
10.72.130 Responsibility.
The operator shall be responsible for the acts of its employees or agents while on duty. The operator shall assume and be responsible for damage or loss to vehicles while in its possession.
10.72.140 Supervision checks.
The records, equipment and storage facilities of the operator shall be subject to periodic checks by the police and fire departments.
10.72.150 Damage appraisals – Generally.
All vehicles, except vehicles with a police “hold,” stored or impounded as a result of a tow ordered by the police department, shall be made available for the purpose of estimating or appraising damages, by the owner of the vehicle or his representative, any insurance agent, insurance adjuster, or any body shop or car dealer.
10.72.160 Damage appraisals – Access to vehicles.
Vehicles to be appraised shall be accessible to police department personnel. An employee of the operator may be required to assist upon request of the police department.
10.72.170 Unauthorized towing prohibited.
It is unlawful for any person, not a designated tow operator, as provided herein, to remove from the public streets and tow away any vehicles as described herein. However, the owner or driver of any vehicle may designate any towing service for the removal and towing of his own vehicle.
10.72.180 Performance failure by operator – Service cancellation – Appeal.
A violation of any term or condition outlined in this chapter and/or the signed agreement shall be deemed sufficient cause for cancellation and termination of the agreement by the police chief.
However, the operator may exercise their right to appeal such cancellation and termination to the City Manager.
Any tow agency or rotation tow that refuses to respond to any call, or refuses to remove an abated or abandoned vehicle, shall be removed from both rotation lists maintained by the police department.
Any appeal shall be by written notice of appeal delivered to the police chief within five days of the operator being notified of the action from which the appeal is taken. The police chief shall deliver a copy of the notice of appeal to the City Manager, who shall schedule a hearing on the appeal within 15 days.
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Packet Pg. 194 Attachment: Ordinance (4578 : Update to Parking Ordinance)
10.72.190 Unlawful solicitation.
It is unlawful for any tow operator, their agent or employee, to solicit any tow job under this chapter at the scene of an accident without having first been called by the owner or operator of the disabled vehicle, or by the City police department. Any violation of this section will be an infraction.
10.72.200 Nonliability of police department.
Should a towing company under contract with the police department perform any services or act in a manner not in accordance with the provisions contained in this chapter, the police department shall be held harmless from any and all liability or damage arising therefrom and shall not be accountable. All complaints received concerning the quality and standards of service performed by the tow operators shall be investigated and, if substantiated, shall be deemed sufficient cause for cancellation and termination of any contract or operating agreement entered into for the performance of such service between the police department, its employees and the tow company.
10.76 Trip Reduction
10.76.010 Short title.
The provisions of this chapter shall be known and may be cited as the “City of Healdsburg Trip Reduction Ordinance (TRO).”
10.76.020 Authority.
This chapter is authorized under Proposition 111 legislation, Government Code Section 65089.3(b) and the Streets and Highways Code Section 2105.
10.76.030 Sonoma County Transportation Authority.
This chapter incorporates the Sonoma County Transportation Authority (SCTA) minimum trip reduction and travel demand requirements.
10.76.040 Trip reduction requirement.
The following trip reduction requirements are hereby established and are imposed upon employers within the City of Healdsburg.
A. This chapter shall apply to all employers within the City of Healdsburg with 100 or more employees at an individual job site; only those sites which have 100 or more employees are subject to this chapter.
B. Each employer subject to this chapter shall disseminate trip reduction information regarding transportation alternatives including carpools, vanpools, transit and bicycling, and other methods of reducing trips such as telecommuting, compressed work week, and flexible work hours annually to each employee and to all new employees as they are hired.
C. Each employer subject to this chapter shall annually conduct an employee trip survey using a uniform survey form prepared by the Sonoma County Transportation Authority. A summary of the trip survey results shall be submitted annually to the City of Healdsburg. An 80 percent trip survey response rate is a desired goal. The City of Healdsburg shall prepare an overall summary
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Packet Pg. 195 Attachment: Ordinance (4578 : Update to Parking Ordinance) of all surveys which will then be reported annually to the Sonoma County Transportation Authority.
D. The City shall designate a transportation administrator to be responsible for implementing this chapter.
E. Each employer subject to this chapter shall designate a transportation coordinator to be responsible for administering the employer requirements of this chapter. Each transportation coordinator shall be required to complete a training course approved by the Sonoma County Transportation Authority.
F. The desired trip reduction goal is a five percent reduction in trips per year to a maximum of 50 percent reduction in trips based upon the first year of reporting.
10.76.050 Nonduplication.
If any other agency which has jurisdiction over trip reduction requirements for employers within the City of Healdsburg adopts trip reduction requirements that meet or exceed the requirements of this chapter, then any employer within the City of Healdsburg that meets those requirements will be deemed to be meeting the requirements of this chapter by annually forwarding to the City of Healdsburg a copy of all trip reduction information and documentation required by the other agency.
Section 3. Environmental Findings.
The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, section 15061(b)(3) because the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment and it can be seen with certainty that there is no possibility that this ordinance may have a significant effect on the environment.
Section 4. Severability.
If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision will not affect the validity of the remaining portions of this ordinance. The City Council declares that it would have passed this ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.
Section 5. Effective Date.
This ordinance takes effect thirty (30) days from the date of its adoption.
Section 6. Publication.
The City Clerk is directed to publish this Ordinance as required by State law.
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Packet Pg. 196 Attachment: Ordinance (4578 : Update to Parking Ordinance) This ordinance was introduced before the City of Healdsburg at a regular meeting thereof on the 16th day of September 2024, and passed ______ by the following vote:
AYES: Councilmembers: ( )
NOES: Councilmembers: ( )
ABSENT: Councilmembers: ( )
ABSTAIN: Councilmembers: ( )
SO ORDERED: ATTEST:
________________________________ ____________________________________ David Hagele, Mayor Raina Allan, City Clerk
Dated: ______________________________
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Packet Pg. 197 Attachment: Ordinance (4578 : Update to Parking Ordinance)
CITY OF HEALDSBURG
RESOLUTION NO. __-2024
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG RESCINDING RESOLUTION NO. 30-2010 IN
ITS ENTIRETY; REPEAL ANY OTHER CONFLICTING
RESOLUTIONS PREVIOUSLY ADOPTED BY THE CITY
COUNCIL RELATING TO PARKING FINES; AND
ESTABLISHING FINES FOR VIOLATIONS OF THE PARKING
SECTIONS OF THE CALIFORNIA VEHICLE CODE AND
TITLE 10 OF THE HEALDSBURG MUNICIPAL CODE
WHEREAS, California Vehicle Code (CVC) § 40200 et seq. allows each city to collect fines and penalties for parking violations under civil administrative procedures set forth in the CVC; and
WHEREAS, CVC § 40203.5 provides that the schedule of parking penalties for parking violations and late payments shall be established by the governing body of the jurisdiction where the notice of violation is issued; and
WHEREAS, in 2010, by Resolution No. 30-2010, the City Council adopted the fine schedule for certain parking violations, late payment penalties, and other administrative fees and other charges; and
WHEREAS, the City Council on September 16, 2024 repealed and replaced Title 10, “Vehicles and Traffic,” to the Healdsburg Municipal Code by Ordinance No. xxxx; and WHEREAS, the adoption of the new Title 10 added additional parking regulations related to Electric Vehicle Charging and Motorcycle Only Parking, for which no fine for violation has been set; and
WHEREAS, the fines for parking violations set forth in Title 10 of the Healdsburg Municipal Code have not been updated in their entirety since Resolution No. 30-2010.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Healdsburg:
1. That Resolution No. 30-2010 relating to parking fines, fees and surcharges, is hereby repealed in its entirety; any other conflicting resolutions previously adopted by the City Council relating to parking fines shall also be repealed in their entirety; and
2. Hereby establishes updated fines for violations of the parking sections of the California Vehicle Code and Title 10 of the City of Healdsburg Municipal Code as set forth on the attached Exhibit “A”.
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Packet Pg. 198 Attachment: Draft Resolution (4578 : Update to Parking Ordinance) Resolution No. -2024
PASSED, APPROVED and ADOPTED this __ day of ____, 2024, by the following vote:
AYES: Council members: ( )
NOES: Council members: ( )
ABSENT: Council members: ( )
ABSTAINING: Council members: ( )
SO ORDERED: ATTEST:
___________________________________ ____________________________________ David Hagele, Mayor Raina Allan, City Clerk
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Packet Pg. 199 Attachment: Draft Resolution (4578 : Update to Parking Ordinance) Attachment A
Parking Violation Fine Schedule
Legal Code Violation Description Amount
10.28.170 Permit Display Required $40.00
10.28.080 10 minute zone $40.00
10.28.080 15 minute Green Zone $40.00
10.28.080 30 minute zone $40.00
10.28.080 Three Hour zone $40.00
10.28.080 Two hour zone $40.00
10.28.20 Parking outside marked stall (public Street) $40.00
10.28.20 Parking outside marked stall (public off-street lot) $40.00
10.28.030 Diagonally parked (Occupying two spaces) $40.00
10.28.030 Front Wheel nearest curb 18" $40.00
22502 CVC Backed in $40.00
10.28.060 Posted no parking within 15 feet of an intersection $60.00
10.28.060 Posted no parking with 5' of a crosswalk $60.00
10.28.060 Posted no parking hazard $60.00
10.28.210 Motorcycle Parking Only $60.00
10.28.220 Misue of Electric Vehicle Parking Space $60.00
10.56.010(d) Disobey emergency no parking sign $60.00
10.28.020 Curb parking within 18" or Wrong Way Parked $40.00 22514 CVC Parking within 15' of Fire Hydrant $40.00
10.56.010(d) Posted "No Parking" $60.00
10.56.010 (c} Parking in Red Zone $60.00
10.56.010 (f) Traffic Hazard $60.00
10.56.010(d) Temporary no parking/special event $40.00
22500a CVC Parking in Intersection $60.00
22500b CVC Parking in Crosswalk $60.00
22500d CVC Parking within 15' of Fire Station Driveway $60.00 22500e CVC Park in Front of Driveway $60.00
225001 CVC Parking on Sidewalk $60.00
22500h CVC Double Park $60.00
22500k CVC Park on Bridge $60.00
22500.1 CVC Fire Lane $60.00
22521 CVC Parking within 7 12' of Train Track $60.00
10.28.120 Double parking of Commercial Vehicles (Traffic Hazard) $60.00
10.28.110 (c) Vehicle for sale $50.00
10.52.020 Repairing vehicle on street $50.00
21210 CVC Blocking Intersection Prohibited $50.00
10.28.110 (a) No Parking with wares for sale $80.00
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Packet Pg. 200 Attachment: Attachment A (4578 : Update to Parking Ordinance) Attachment A
10.32.030 (a) Loading Zone Commercial Vehicles (20 min.) $80.00
10.32.030 (c) Loading Zone Non Commercial Vehicles (3 min.) $80.00
10.32.080 Private bus or taxi parking in non-designated area $80.00
10.32.040 Blocking or parking in Alley $80.00
10.32.060 Parking in passenger loading zone (white curb) $80.00
10.32.020 Parking in City Bus zone $80.00
10.28.190 Removing chalk mark $80.00
10.52.030 Human habitation in vehicle prohibited $80.00
10.52.040 Sleeping in vehicle prohibited 1800-0600 hours $80.00
10.52.010 On Street or alley in Excess of 72 Hours $143.00
10.40.010 (c) Commercial vehicle over 10,000 pounds $143.00 21113a CVC No driving on/Parking on Public Grounds or $143.00 22516 CVC Locked Vehicle with person inside unable to escape $143.00 22520 CVC Vending on or near Freeway $143.00
22500i CVC Improper parking I Bus Zone $250.00
225001 CVC Wheelchair access - No Parking $350.00
22523a CVC Vehicle abandonment prohibit/highway $350.00 22523b CVC Vehicle abandonment prohibited publidprivate property $350.00 22507.8a CVC Disabled parking I Blue Zone $500.00
22507.8b CVC Obstructing or Blocking Disabled space I Blue Zone $500.00 22507.8c CVC Blue Zone marked boundaries - Loading Zone $500.00 22507.8 c (2)
CVC Disabled space/ parking in crosshatch area $500.00
22507.8 CVC Disabled parking I Blue Zone (Second Violation) $750.00 22507.8 CVC Disabled parking I Blue Zone (3rd & Subsequent Violations) $1,000.00 22522 CVC
Parking within 3' of Sidewalk Access Ramp I Handicap
ramp $350.00
1st " Penalty Payment not received 14 days after the mailing of Notification of Delinquent Violation
2X
Violation;
not to
exceed
$150
2nd Penalty
Payment not received 21 days after 14 day period has
elapsed DMV Registration hold processing fee
$25 plus
$10 DMV
Fee
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Packet Pg. 201 Attachment: Attachment A (4578 : Update to Parking Ordinance)
CITY OF HEALDSBURG
CITY COUNCIL AGENDA STAFF REPORT
MEETING DATE: September 16, 2024
SUBJECT: Fourth Amendment to Development Agreement with Replay Healdsburg, LLC and Consideration of Tentative Subdivision Maps for Lots One, Two and Three of the Mill District Project
PREPARED BY: Linda Ruffing, Planning Consultant
STRATEGIC INITIATIVE(S):
Expand Affordable Housing Opportunities
Provide Effective Governance
RECOMMENDED ACTION(S):
By four separate motions, it is recommended that the City Council take the following actions:
1. Introduce for first reading, by title only and waiving the full reading of the text, an ordinance approving the Fourth Amendment to Development Agreement by and between Replay Healdsburg LLC and the City of Healdsburg for the Mill District Project (DA 2018-01.04) based on the suggested findings.
2. Adopt a Resolution approving Tentative Subdivision Map for Lot 1 of the Mill District Project based on the suggested findings and subject to the recommended conditions of approval.
3. Adopt a Resolution approving Tentative Subdivision Map for Lot 2 of the Mill District Project based on the suggested findings and subject to the recommended conditions of approval.
4. Adopt a Resolution approving Tentative Subdivision Map for Lot 3 of the Mill District Project based on the suggested findings and subject to the recommended conditions of approval.
COMMUNITY ENGAGEMENT/OUTREACH:
On January 9, 2024 and February 13, 2024, the Planning Commission conducted public workshops to informally review preliminary plans for a proposed hotel (with restaurant, retail and spa uses) on Lot 1 of the Mill District Project. On February 27, 2024, the Planning Commission conducted a public workshop to informally review preliminary plans for a proposed
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Amenity & Retail Building on Lot 5 and modifications to master entitlements to accommodate the relocation of the Residential Amenity from Lot 1 to Lot 5.
On August 13, 2024, in accordance with State and local law, the Planning Commission conducted a public hearing and reviewed the proposed Fourth Amendment to the Development Agreement by and between the City of Healdsburg and Replay Healdsburg, LLC ("Fourth Amendment"; DA 2018-01.04) for consistency with the Healdsburg 2030 General Plan, the Central Healdsburg Avenue Plan ("CHAP") and the Land Use Code. The Commission adopted Resolution No. 2024-11 (Attachment 5) recommending that the City Council approve the proposed Fourth Amendment. The Planning Commission further recommended that the City Council add clarifying language to the Fourth Amendment to eliminate any ambiguity about whether residents of the Middle Income Units will have access to the Residential Amenity (pool, fitness facilities, clubhouse), and relatedly, whether the cost thereof is included within the Affordable Rent for a Rental Middle Income Housing Unit and the Affordable Housing Cost for an Ownership Middle Income Housing Unit.
On August 13, 2024, the Planning Commission conducted a public hearing and adopted Resolution No. 2024-12 approving amendments to the Master Conditional Use Permit (CUP 2017-12.04) that relate to the proposed Fourth Amendment. Additionally, the Planning Commission adopted Resolution No. 2024-13 recommending that the City Council approve a Tentative Subdivision Map for Lot 2 (Attachment 6; SBDV 0004-2024) and Resolution No. 2024-14 recommending that the City Council approve a Tentative Subdivision Map for Lot 3 (Attachment 7; SBDV 0005-2024).
On August 27, 2024, the Planning Commission conducted a public hearing and adopted Resolution No. 2024-15 approving Design Review (DR 0005-2024), Variance (VAR 0001- 2024), and Conditional Use Permit (CUP 0005-2024) for the proposed Mill District Hotel on Lot
1. The Planning Commission also adopted Resolution No. 2024-16 recommending that the City Council approve Tentative Subdivision Map (Attachment 8; SBDV 0003-2024) for Lot 1.
On August 27, 2024, the Planning Commission conducted a public hearing and continued action on Design (DR 0004-2024) and Conditional Use Permit (CUP 0004-2024) for the Residential Amenity & Retail Building on Lot 5. The public hearing was continued until October 8, 2024 to provide the applicant an opportunity to modify the design in response to concerns raised by Planning Commissioners.
On August 27, 2024, the Planning Commission conducted a public hearing and adopted Resolution No. 2024-17 approving Tentative Parcel Map (SBDV 0002-2024) for Lot 5. The Tentative Parcel Map establishes one common ground parcel and two airspace modules on Lot 5, one for the Residential Amenity and the other for the Retail Building. It also modifies the boundaries of the park access easement to eliminate the commercial module to the south of the proposed Residential Amenity & Retail Building and to modify the boundary between the Residential Amenity & Retail Building and the Park. The net result is an increase in the size of the Park from 0.78 acres to 0.86 acres. The Planning Commission's approval of the Tentative Parcel Map for Lot 5 will not become effective until the effective date of the Fourth Amendment.
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Attachment 9 presents the Lot 5 Tentative Parcel Map that was approved by the Planning Commission on August 27, 2024.
Notices of the Planning Commission's workshops and public hearings and notice of the City Council's September 16, 2024 public hearing were published in a newspaper of general circulation and mailed to property owners within 300' of the property boundaries.
BACKGROUND:
In 2019, the City and the Mill District developer, Replay Healdsburg, LLC, entered into a Development Agreement (“DA”) for the Mill District Project, a mixed-use development on a
9.59-acre former industrial site in central Healdsburg. When built out, the Mill District Project, as originally proposed and entitled, was intended to comprise up to 208 residential units, including 40 affordable units and 30 middle-income units (inclusive of eight affordable-bydesign units), a 53-room hotel, up to 15,000 SF of commercial space, a 0.78-acre park, and associated site improvements. To date, the following master entitlements for the Mill District Project have been approved:
January 8, 2019: Planning Commission approved Mill District Master Conditional Use Permit ("MCUP"), Historic Demolition Permit and Heritage Tree Permit (CUP 2017-12, MISC 2017- 01, HT 2017-02).
March 11, 2019: City Council approved Mill District Tentative Subdivision Map (TM 2017-01).
April 1, 2019: City Council adopted Mill District Development Agreement (DA 2018-01).
March 31, 2020: First Administrative Agreement Amendment to Development Agreement and First Administrative Project Amendment approved consisting of (i) certain minor amendments to Map Conditions Nos. 3 and 6; (ii) minor amendments to MCUP Conditions Nos. 3, 6 and 24 (CUP 2017-12.01), and (ii) minor amendments to Sections 3.3(b), 4.2(c), 5.4(a) and 5.4(c), and the addition of Section 6.2(h) to the Development Agreement (DA 2018-01.01).
April 6, 2020: City Council approved Mill District Final Map creating seven (7) lots.
December 30, 2020: Second Administrative Agreement Amendment to Development Agreement approved consisting of minor amendments to Section 4.2(c) of the Development Agreement regarding payment of parkland dedication fees (“Quimby Act Fees”) in lieu of dedication of a portion of the Property to the City for parkland uses (DA 2018-01.02).
April 26, 2022: Planning Commission approved an MCUP Amendment (CUP 2017-12.02) to allow phased design review for the Amenity and the hotel on Lot 1 and to remove the prohibition on restaurant uses in conjunction with the hotel.
May 17, 2022: Third Administrative Project Amendment to Development Agreement (DA 2018-
01.03) approved to approve a minor amendment to MCUP Condition No. 1 modifying the number of market rate units allowed on Lot 6 from 26 to 15 (CUP 2017-12.03), a minor amendment to the note on Sheet 4 of the Tentative Map, and addition of Map Condition No. 20.
August 13, 2024: Planning Commission approved an MCUP Amendment (CUP 2017-12.04) to conform the MCUP to the proposed Fourth Amendment. The MCUP Amendment relocates the Residential Amenity from Lot 1 to Lot 5, allows 12 Hotel Investment Suite units as part of the 53-room hotel on Lot 1, and modifies the Permitted Use Table in the MCUP to shift the location
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of residential units from Lots 5 and 6 to Lots 2 and 3. The MCUP Amendment is conditioned to become effective upon the effective date of Fourth Amendment.
In addition to the above master entitlements, the Planning Commission has approved the following site-specific planning permits:
▪ Design review for a 41-unit affordable housing project on Lot 7; ▪ Design review and variance for 39 market-rate condominium units on Lot 4 (unit count subsequently increased to 43 units by administrative amendment); ▪ Design review for a privately-owned and maintained, publicly accessible park on a 0.78- acre portion of Lot 5;
▪ Design review and conditional use permit for an approximately 9,700 square foot building for a Residential Amenity building on Lot 1;
▪ Design review and variance for 12 market-rate condominium units and a 1,500 square commercial building on Lot 6;
▪ Design review, variance and conditional use permit for a 53-room hotel, including 12 Hotel Investment Suite Units, a spa, restaurant, bar/lounge and retail uses on Lot 1 to become effective upon the effective date of the Fourth Amendment; and ▪ A tentative parcel map for Lot 5, approval to become effective upon the effective date of the Fourth Amendment.
DISCUSSION/ANALYSIS:
The Mill District Project developer, Replay Healdsburg, LLC ("Developer"), has requested a number of modifications to the project approvals for the Mill District Project and has filed applications for new tentative maps for four of the seven parcels in the project (i.e., Lots 1, 2, 3 and 5) to make the maps consistent with the requested modifications to the project approvals.
The Fourth Amendment and the three tentative subdivision maps requiring City Council consideration (Lots 1, 2 and 3) are described below.
1. FOURTH AMENDMENT TO THE DEVELOPMENT AGREEMENT
Attachment 1 presents the proposed ordinance to enact the Fourth Amendment. The new Amended And Restated Middle Income Housing Regulatory Agreement (Attachment 1, Exhibit C), Amended And Restated Publicly Accessible Private Open Space Easement Agreement (Attachment 1, Exhibit D), Definition of Hotel Investment Suite Use and Conditions of Operation (Attachment 1, Exhibit E), and PILOT Agreement (Attachment 1, Exhibit E, Attachment 1) are attached as exhibits to the Fourth Amendment.
The proposed Fourth Amendment includes the following modifications which are explained in more detail below:
A. Relocate Residential Amenity from Lot 1 to Lot 5
B. Relocate All 29 Remaining Middle Income Units to Lot 3
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C. Replace Eight Affordable by Design Housing Units with Eight Ownership Middle Income Units
D. Modify Timing for Completion of Middle Income Units
E. Clarify that All Middle Income Units shall have Access to the Residential Amenity F. Allow All 29 Middle Income Units on Lot 3 to be Sold as Ownership Middle Income Housing Units
G. Allow Hotel Investment Suite Use on Lot 1
H. Require an Agreement for Payment-In-Lieu of Transient Occupancy Tax (PILOT Agreement)
I. Limit Vested Rights and Life of Project Approvals Related to Hotel Investment Suite Use J. Waive Payment of Additional Quimby Act In-Lieu Fees in Exchange for Modifications to Park Boundaries
K. Modify Timing for Payment of Connectivity Funds
A. Relocate Residential Amenity from Lot 1 to Lot 5
The Developer originally anticipated and secured design review approval for development of the Residential Amenity on Lot 1 where it would have been co-located with the hotel. In the Fourth Amendment, the Developer now proposes to relocate the Residential Amenity to Lot 5 where it would be located behind and above ground-level commercial uses fronting on Healdsburg Avenue. Attachment 10 presents the approved Final Map for the Mill District Project which establishes the existing boundaries of Lots 1 - 7.
Relocation of the Residential Amenity to Lot 5 does not change the overall mix of uses or density of development within the Mill District Project as a whole and, therefore, the project would continue to be consistent with the Mixed Use land use classification in the Healdsburg 2030 General Plan. The retail frontage along Healdsburg Avenue would be maintained, thus helping to create a pedestrian-oriented extension of the downtown that is consistent with General Plan and CHAP policies relating to development fronting on Healdsburg Avenue. Relocating the Residential Amenity to Lot 5 requires the residential uses (13 Middle Income Units) that were planned on the upper floors to be relocated elsewhere in the development. The Developer proposes to relocate the Middle Income Units to Lot 3. The change in uses on Lot 5 solves a number of issues:
▪ The configuration of Lot 5 on the corner of Healdsburg Avenue and Sawmill Circle makes access to and the provision of off-street parking for the residential uses very challenging.
▪ A mixed use building on Lot 5 with ground floor commercial and 13 residential units above would have required four stories. The proposed Residential Amenity & Retail Building is two stories in height and allows for a more gradual stepping back of densities from the Healdsburg Avenue frontage.
▪ Co-locating the Residential Amenity with the hotel created operational and logistical challenges and posed a constraint to the hotel design.
The Planning Commission reviewed the Developer's proposal to relocate the Residential Amenity to Lot 5 and preliminary design plans at a public workshop on February 13, 2024.
On August 13, 2024, the Planning Commission conducted a public hearing and adopted Resolution No. 2024-12 approving amendments to the Master Conditional Use Permit (CUP
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2017-12.04) that relate to the proposed Fourth Amendment, including modifications to the MCUP Permitted Use Table to allow the relocation of the Amenity to Lot 5 and to allow planned residential units on Lot 5 to be shifted to Lot 3. The amendments become effective upon the effective date of the Fourth Amendment.
On August 27, 2024, the Commission conducted a public hearing and considered applications for Design Review and a Conditional Use Permit for the Lot 5 Residential Amenity & Retail Building and an application for a new Lot 5 Tentative Parcel Map. The Commission was supportive of the relocation of the Residential Amenity to Lot 5, but deferred action on the Design Review and Conditional Use Permit applications until October 8, 2024, to allow Developer time to address concerns about the street-facing facades of the building. The Commission did, however, adopt Resolution No. 2024-17 approving the Lot 5 Tentative Parcel Map (as shown on Attachment 9), with the approval to become effective upon the effective date of the Fourth Amendment.
B. Relocate All 29 Remaining Middle Income Units to Lot 3 The original vision for the Mill District project as reflected in the MCUP's Permitted Use Table included one Middle Income Unit on Lot 7 (i.e., the manager's unit for the affordable housing project), 13 Middle Income Units on Lot 5, eight Middle Income Units on Lot 3, and eight Affordable by Design Units ("ABD Units"). The location of the ABD Units would be determined by the Developer with at least two ABD Units to be constructed within each GMO Cycle beginning with the cycle beginning January 1, 2022. The DA establishes that a minimum of 14 and a maximum of 22 of the Middle Income Units shall be made available as rental units. The eight ABD Units, by definition, would be ownership units.
Developer proposes to relocate all 13 Middle Income Units that were originally planned for development on Lot 5, to Lot 3. The Fourth Amendment would now place all 29 of the remaining Middle Income Units along with 21 Market Rate Units, for a total of 50 residential units, on Lot 3. 12 Market Rate Units would be developed on Lot 6 per existing approvals. The remaining 62 Market Rate Units would be developed on Lot 2.
By relocating the Residential Amenity from Lot 1 to Lot 5, the opportunity for residential development on Lot 5 would be eliminated. The 13 Middle-Income Rental units that were planned for Lot 5 plus 3 units previously assigned to Lot 6 would be shifted to Lots 2 and 3. The proposed new Tentative Subdivision Maps for Lots 2 and 3 and Tentative Parcel Map for Lot 5 are necessary to accommodate the shift in residential units on those parcels.
A primary question related to the proposed relocation of residential units from Lot 5 and Lot 6 to Lot 2 and Lot 3 is whether Lot 2 and Lot 3 have sufficient space to accommodate the increased unit counts. To address this question, the Replay design team prepared a "Capacity Study" (see Attachment 11) which identifies the potential layout and massing for residential development on Lots 2 and 3 at the proposed density. The Capacity Study demonstrates the feasibility of achieving the increased residential unit counts on both parcels within four-story buildings with "tuck-under"/podium parking at ground level. Please note that the study is schematic and future development on Lots 2 and 3 would be subject to the design review process.
C. Replace Eight Affordable by Design Housing Units with Eight Ownership Middle Income Units
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Of the 30 deed-restricted, multi-family Middle Income Units that the Developer is required to construct a minimum of eight units are to be Affordable-by-Design Housing Units ("ABD Units"). The DA requires that at least two ABD Units be constructed in each GMO Cycle beginning with the cycle that started on January 1, 2022. That cycle ends on December 31, 2024.
No ABD Units will be constructed by that time.
Per the DA, all of the Ownership Middle Income Units within the project except for the ABD Units will be deed restricted for 45 years. For the ABD Units, only the initial sale is restricted for purchase by a middle-income household with a sale price restriction. In the Fourth Amendment, in exchange for relief from the timing requirements for construction of the ABD Units, the Developer has agreed to provide eight Ownership Middle Income Units instead of the eight ABD Units, thus the provisions of Section 5.2 (d) of the DA applicable to ABD Units would no longer be necessary.
The proposed Fourth Amendment would replace the eight ABD Units with eight Ownership Middle Income Housing Units, thus there would be no change in the number of Middle Income Housing Units. The primary change is that the amendments would place all 29 of the remaining Middle Income Units on Lot 3. From the standpoint of economies of scale and management of the Rental Middle Income Housing Units, consolidating them on one parcel is optimal. While, theoretically, the Ownership Middle Income Housing Units could be spread throughout the project, there are efficiencies to co-locating them on Lot 3 with the rental units.
The MCUP Amendment, as approved by the Planning Commission on August 13, 2024, includes a condition that establishes that eight of the Ownership Middle Income Housing Units on Lot 3 may be less than 850 square feet in size (as was established for the ABD Units in the original DA) and that the balance of the Middle Income Units on Lot 3 (i.e., 21 units) shall have a mix of unit sizes that is similar to the mix for the Market Rate Units on Lot 3.
D. Modify Timing for Completion of Middle Income Units
Section 3.3 (c) of the DA provides that at least 14 Middle Income Units must have received a certificate of occupancy before the City will issue a certificate of occupancy for the 97th Market Rate Unit. As noted above, 55 Market Rate Units have either been completed (43 units on Lot 4) or approved for development (12 units on Lot 6). Accordingly, if all 62 Market Rate Units were approved for development on Lot 2 in advance of the development of the 29 Middle Income Units and 21 Market Rate Units on Lot 3, 117 Market Rate Units would potentially receive a certificate of occupancy or final inspection before 14 Middle Income Units have received a certificate of occupancy or final inspection contrary to the requirements of Section 3.3 (c) of the DA.
To ensure the timely development of the 29 Middle Income Units on Lot 3, in the Fourth Amendment, the Developer has agreed to a requirement that the Developer (i) receive design review for all 29 Middle Income Units on Lot 3 and the building permit for construction of all 29 Middle Income Units on Lot 3 must be issued and all required fees must be paid, prior to or concurrently with the issuance of a building permit for the development of any portion of the 62 Market Rate Units on Lot 2, and (ii) the construction of all 29 Middle Income Units on Lot 3 must be completed and permitted for use and occupancy and available for sale or lease to Middle Income Households prior to or concurrently with the issuance of a permit for use and occupancy of the first Market Rate Unit on Lot 2. To account for these revisions, the Middle Income
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Housing Agreement must be amended and restated as provided in the form attached to the Fourth Amendment as Exhibit C (“Amended And Restated Middle Income Housing Regulatory Agreement”). This condition has also been included in the conditions of approval for the Tentative Subdivision Maps for Lot 2 and Lot 3.
E. Clarify that All Middle Income Units on Lot 3 shall have Access to the Residential Amenity
During the Planning Commission’s consideration of the Fourth Amendment at their August 13, 2024, regular meeting, the issue of access to the Residential Amenity by Middle Income Households and the related issue of the cost of such access was raised and briefly discussed.
Ultimately, the Planning Commission recommended that the City Council consider and address this issue as part of its consideration of the Fourth Amendment.
The existing documentation and approvals governing the Project is less than clear on this issue, and while the Developer’s representative suggested at the Planning Commission hearing that Middle Income Units did not have access to the Residential Amenity, that view is not supported by anything definitive in the Project record. Indeed, it is fairly evident that the eight (8) ABD Units, which are now proposed to be replaced with Ownership Middle Income Housing Units, were intended to have access to the Residential Amenity and that the cost of that access via payment of homeowners’ association dues was factored into what constitutes an Affordable Housing Cost for the purchase of said ABD Units.
Even assuming for the sake of argument that the prior Project approvals clearly provided that the Middle Income Units did not have access to the Residential Amenity, the requested amendments outlined in this Fourth Amendment are sufficiently extensive that the issue is now squarely on the table for reconsideration. And in the context of goals and policies in the City’s Housing Element to further fair housing, the notion that a resident in a Middle Income Housing Unit cannot access the same Residential Amenity as their neighbor in a Market Rate Housing Unit is in direct conflict with those broader goals. Accordingly, the Fourth Amendment now makes clear that all Middle Income Housing Units constructed on Lot 3 shall have access to the Residential Amenity. It also makes clear that the existing Rental Middle Income Housing Unit on Lot 7 would not have access to the Residential Amenity. This is appropriate as Lot 7 is not included in the Master Homeowner's Association for the Mill District development.
With respect to the related issue of payment for the cost of that access, as previously noted, the definition of Affordable Housing Cost applicable to the purchase of an ABD Unit included any amount charged for homeowners’ association dues which is the vehicle by which the cost of the Residential Amenity is captured. Those ABD Units are proposed to be replaced with Ownership Middle Income Housing Units and therefore the Affordable Housing Cost applicable to the purchase of an Ownership Middle Income Housing Unit should include any amount charged for homeowners’ association dues (inclusive of the cost of the Residential Amenity).
To address concerns regarding potential increases in homeowner's association dues that exceed what a middle income household can afford, staff is recommending that a special condition be included with the Conditions of Approval for the Lot 3 Tentative Subdivision Map which requires that a provision be included in the CC&Rs for Lot 3 to limit the amount of an annual increase in applicable homeowners’ association fees payable by an Ownership Middle Income Housing Unit to no more than 33% of the percentage annual increase in the area median income
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for Sonoma County, if any, applicable to the household size appropriate for the particular Ownership Middle Income Housing Unit as published annually by the State of California Department of Housing and Community Development. Establishing a mechanism that moderates increases to homeowners' association fees for Middle Income Units to ensure the long-term affordability of those units may, in effect, shift a portion of those fees to the Market Rate Units.
Similar to the Affordable Housing Cost for Ownership Middle Income Housing Units, staff believes the Affordable Rent applicable to the rental of a Rental Middle Income Housing Unit should also include any amount charged for access to and use of the Residential Amenity. In relation to affordable housing units more generally, a landlord is never authorized to separately charge a tenant for their costs associated with property taxes, insurance premiums and other costs associated with their ownership of the property as those costs are factored into the rent.
Likewise, for homeowners’ association dues. Thus, the Fourth Amendment amends Section 5.2 (a) to explicitly provide that “[a]ll Middle Income Units constructed on Lot 3 shall have access to the Residential Amenity and any tax, fee, charge or assessment imposed for access to and use of the Residential Amenity shall be included within the amount calculated as Affordable Housing Cost, applicable to an Ownership Middle Income Housing Unit, and Affordable Rent, applicable to a Rental Middle Income Housing Unit.”
As noted, the definition of Affordable Housing Cost applicable to Ownership Middle Income Housing Units already encompasses this requirement. Yet, with respect to Affordable Rent applicable to Rental Middle Income Housing Units, a definition has been added pursuant to the Fourth Amendment to provide as follows:
“Affordable Rent” means a monthly rent that does not exceed one-twelfth of thirty-three percent (33%) of one hundred sixty percent (160%) of AMI, Adjusted for Family Size Appropriate for the Unit, which encompasses: (i) a reasonable utility allowance for utilities paid by the Tenant as established by the Sonoma County Community Development Commission, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but excluding telephone service, Internet, or cable or subscription TV; (ii) other fees and charges required to be paid by tenants of the Rental Middle Income Housing Units on a non-optional basis, other than security deposit; and (iii) any tax, assessment, insurance premium, homeowners’ association dues, or any cost, fee or expense that the owner of the Rental Middle Income Unit is required to pay as an incidence of ownership.
The definition of Affordable Rent in the Amended and Restated Middle Income Housing Regulatory Agreement, attached as an exhibit to the Fourth Amendment, has been amended to be consistent with the definition in the Fourth Amendment.
F. Allow All 29 Middle Income Units on Lot 3 to be Sold as Ownership Middle Income Housing Units
During recent discussions with the Developer, it became evident that they have made representations to purchasers of Market Rate Housing units on Lot 4 that access to the Residential Amenity would only be allowed by ownership units as opposed to rental units.
Accordingly, to avoid a violation of their contractual commitments to Lot 4 owners, it is proposed that the 29 Middle Income Units on Lot 3 can be created as separate condominium units and that they can be either sold as Ownership Middle Income Housing Units or rented as
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Rental Middle Income Housing Units. The Fourth Amendment does not establish a minimum number of Rental Middle Income Units, however, if desired, the City Council could specifically require some segment of the 29 Middle Income Units to be Rental Middle Income Housing Units even though they are separate condominium units. Staff believes that the Fourth Amendment could have the effect of supporting creation of additional middle income ownership units in support of a City goal to create additional home ownership opportunities at prices that are affordable to working households.
G. Allow Hotel Investment Suite Use on Lot 1
The DA allows for a 53-room hotel (i.e., visitor lodging use) and up to 8,500 square feet of floor area for commercial uses such as retail, restaurant, bar, and a spa on Lot 1. The Developer has proposed to modify the 53-room hotel to retain 41 rooms as visitor lodging use and allow 12 rooms to be separate condominium units sold as investments for personal use by their owners to the exclusion of the general public for a portion of the time (up to 90 days per year and no more than 30 consecutive days) and otherwise made available to the operator of the 41-room hotel for rental to the general public as a visitor lodging use (“Hotel Investment Suite”).
The Developer has requested authorization for the hotel investment suite use as part of the capitalization strategy for development and construction of the hotel. The attached "white paper" (Attachment 12, Mill District Condo-Hotel White Paper) was submitted by the Developer to explain and support their proposal.
The City’s Land Use Code, Title 20 of the Healdsburg Municipal Code, does not contain a use classification that allows for a "hotel investment suite" use. Nevertheless, Chapter 20.28, Article II Determination of Unspecified Uses, of the Healdsburg Municipal Code, provides that the zoning administrator (Community Development Director) may, subject to review by or appeal to the Planning Commission, determine that the nature and characteristics of the proposed hotel investment suite use is similar to a “visitor lodging” use and thereby allow for the hotel investment suite use as a conditionally permitted use in the Mixed Use District. The zoning administrator has determined, and the Planning Commission concurred, that a hotel investment suite use, as defined in Exhibit E attached to the Fourth Amendment (“Definition of Hotel Investment Suite Use and Conditions of Operation”) and subject to the conditions outlined therein is similar to a visitor lodging use and thus may be allowed as a conditionally permitted use in the Mixed Use District.
The "Definition of Hotel Investment Suite Use and Conditions of Operation” sets forth several conditions in subsections (a) through (t) to ensure that the hotel investment suite use functions similarly to visitor lodging use. One of the conditions requires the owner of the hotel to enter into an Agreement for Payment In-Lieu of Transient Occupancy Tax ("PILOT Agreement") to compensate the City for TOT revenues that would not be received when a hotel investment suite is occupied by its owner.
In recent conversations between City staff and the Developer, it has been suggested by the Developer that owners of Hotel Investment Suites could have access to the Residential Amenity.
The description of the Project set forth in Recital D of the DA, as amended by the Fourth Amendment, makes clear that the Residential Amenity is to “exclusively serve Market Rate Housing and Middle Income Housing Units in the Project”. In order for a Hotel Investment Suite to be considered similar to a visitor lodging use, it must be, and it is, categorized as a commercial
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use. Accordingly, a Hotel Investment Suite is neither a Market Rate Housing Unit nor a Middle Income Unit and thus does not have access to the Residential Amenity. Additionally, a new Section 5.9 is being added to the DA to make it as clear as possible that the Residential Amenity is for the sole and exclusive use of the occupants of Market Rate Housing Units and Middle Income Units in the Project. Furthermore, the Residential Amenity shall not be used by and shall not be available for use by an owner, tenant, lessee, invitee, or transient lodging in a Hotel Investment Suite nor any other owner, tenant, lessee, or invitee of a commercial condominium located in the Project. In addition, the Residential Amenity shall not be operated as an entertainment and assembly venue, fitness center, recreation facility, club or lodge, whether available to the general public or restricted to members of private clubs or organizations. This matter will be addressed further in the conditions of approval for consideration by the Planning Commission at their continued action on Design Review (DR 0004-2024) and Conditional Use Permit (CUP 0004-2024) for the Residential Amenity & Retail Building on Lot 5, on October 8, 2024.
H. Requirement for an Agreement for Payment-In-Lieu of Transient Occupancy Tax As outlined in the Definition of Hotel Investment Suite Use, in order to ensure a hotel investment suite use functions similarly to a visitor lodging use, the Definition of Hotel Investment Suite Use requires the execution and acknowledgement of an Agreement with the City for Payment-InLieu of Transient Occupancy Tax (“PILOT Agreement”), in the form attached as Attachment 1 to Exhibit E of the Fourth Amendment, and requires the PILOT Agreement to be recorded in the official records of the Sonoma County Recorder’s Office against the legal parcel comprising the visitor lodging use. This obligation is a component of the land use designation of Hotel Investment Suite approved for Lot 1 and is specifically called out as an obligation of the Developer in a new Section 5.8 to the DA.
Under the terms of the PILOT Agreement, the Owner of the Hotel acknowledges that the operation of the Hotel is subject to the provisions of the Healdsburg Municipal Code related to Transient Occupancy Tax. Accordingly, the Owner is obligated to ensure that each monthly return provided to the tax administrator in accordance with the requirements of the Healdsburg Municipal Code, separately identifies the total rents charged and received and the amount of tax collected for transient occupancies for each day of each month for each of the 41 visitor lodging units and each of the 12 hotel investment suites.
This information would then be utilized to calculate what the average daily transient occupancy tax generated by the 41 visitor lodging units as opposed to the 12 hotel investment suites. It is anticipated that the daily rent for a hotel investment suite will be approximately 80% more than the visitor lodging unit, but that the occupancy rate of a hotel investment suite will be approximately 75% of that of a visitor lodging unit. Accordingly, on average, the daily rent, and hence the daily transient occupancy tax, generated by a hotel investment suite will be 1.33 times that of a visitor lodging unit.
Thus, no later than January 20 of each year the Owner of the Hotel must report to the tax administrator and provide a separate calculation of the “Average Daily TOT Minimum Guarantee” for the preceding calendar year which amount shall be the sum of the tax collected for transient occupancies for all 41 visitor lodging units during the preceding calendar year, which sum is multiplied by 1.33, divided by 41, and then divided by 365 in that order to arrive at
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the Average Daily TOT Minimum Guarantee. Essentially, the Average Daily TOT Minimum Guarantee is the average daily transient occupancy tax generated by the 41 visitor lodging uses times 1.33.
In addition, Owner shall report to the tax administrator and provide a separate calculation of the sum of transient occupancy tax collected for all twelve (12) Hotel Investment Suites over that same preceding calendar year period, which sum is divided by 12, and then divided by 365 in that order (the “Average Daily HIS TOT”). The Average Daily HIS TOT is the average daily transient occupancy tax generated by the 12 hotel investment suites.
The PILOT Agreement then provides for a comparison of the two calculations and if the Average Daily HIS TOT is less than the Average Daily TOT Minimum Guarantee, Owner shall pay a sum equal to the Average Daily TOT Minimum Guarantee minus the Average Daily HIS TOT, times 12, times 365 (the “In Lieu Payment”), to the City by no later than January 30 of each year.
I. Limit Vested Rights and Life of Project Approvals Related to Hotel Investment Suite As provided in Section 2.2 of the DA, the Term of the DA is for a period of fifteen (15) years from the Effective Date of the DA of May 1, 2019. Accordingly, the Term of the DA expires May 1, 2034. The DA grants the Developer a vested right to develop the Project in accordance with the Project Approvals during the Term and the City is constrained in its ability to impose any new laws that would affect the Project Approvals as laid out in the Development Agreement.
However, the Fourth Amendment adds provisions to Section 3.1 and Section 3.5 of the DA to provide that if the Developer has not secured all required Subsequent Approvals and commenced substantial construction of the visitor lodging and hotel investment suite use on Lot 1 within five (5) years of the Effective Date of the Fourth Amendment, anticipated to be approximately November 20, 2024, then as of November 20, 2029, all of the Project Approvals applicable to Lot 1 for the visitor lodging and hotel investment suite use would expire and be of no further force or effect.
J. Waive Payment of Additional Quimby Act In-Lieu Fees in Exchange for Modifications to Park Boundaries
The modification of the park design to accommodate stormwater treatment requirements of the Project per Design Review DR 2022-22 has triggered a Quimby Act in-lieu fee payment requirement of $261,780.00. Further, the proposed design of the Residential Amenity on Lot 5 would encroach into the Park Easement and diminish the amount of useable park space. If said encroachment is approved by City, it would trigger the payment of an additional in-lieu fee of approximately $91,500.00 as provided by Section 4.2 (c) of the DA.
In the Fourth Amendment, in order to ensure the development of a viable park on Lot 5, the Developer has agreed that, in exchange for City’s waiver and release of Developer’s obligation to pay the above in-lieu fees, Developer will prepare and process a new parcel map for Lot 5 to remove the 3,450 square foot condominium module fronting on Healdsburg Avenue, which was designated for future development of commercial space, and add the 3,450 square feet to the 0.78 acre park. The net square footage of the park would be 37,427 square feet or 0.86-acre. This necessitates modifications to the existing Park Easement Agreement in the form attached as
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Exhibit D to the Fourth Amendment (“Amended and Restated Publicly Accessible Private Open Space Easement Agreement”).
Attachment 13, Park Area Comparison, illustrates the areas of the park addressed by this amendment:
▪ The hatched area shows the stormwater treatment facility that was incorporated into the park design with the approval of DR 2022-22 (approved by the Planning Commission on February 24, 2023). As shown, 4,363 square feet of lawn area is located within the stormwater treatment facility.
▪ As shown on the left diagram, the remaining lawn area in the park is 3,908 square feet in size, resulting in a total lawn area of 8,271 square feet. ▪ The right diagram depicts the lawn without the condominium module for a "future commercial building" which results in 6,964 square feet of lawn outside of the stormwater facility and a total lawn area of 11,372 square feet. Removal of the condominium module and incorporation of those 3,450 square feet into the park represents an 88% increase in the lawn area that is outside of the stormwater treatment facility.
▪ The area depicted in pink on the right diagram shows the 1,272 square foot portion of the Residential Amenity & Retail Building and its adjoining patio that encroaches into the Park Easement. When this area is subtracted from the area of the condominium module that would be incorporated into the park, there is a net 2,178 square foot increase in the footprint of the park. The total acreage of the park would increase from 0.78 acres to 0.86 acres in size.
The condominium parcel for the "future commercial building" on Parcel 5 was identified on the original Mill District master plan and was intended to provide continuity in the commercial frontage along Healdsburg Avenue. In subsequent design review processes for the park and for the Residential Amenity & Retail Building on Lot 5, a number of concerns have been raised relating to potential future development of an isolated commercial building in that location. Not only would it reduce the effective area of the park, but it would block views of the park from Healdsburg Avenue. A building in that location would need to address both Healdsburg Avenue and the park which poses several design and access challenges. The proposed Mill District Project Amendments would resolve these issues by simply incorporating the 3,450 square foot area into the park.
K. Modify Timing for Payment of Connectivity Funds
Section 5.4 (b) of the DA provides for the payment by Developer of $1,300,000 of “Connectivity Funds” to be used by City for the design, development and construction of projects within the Central Healdsburg Avenue Plan ("CHAP") area that improve pedestrian and bicycle connectivity. Said Connectivity Funds are to be paid in two (2) installments as further set forth in subsections (i) and (ii) of said Section 5.4 (b). Without modifying the total amount of Connectivity Funds to be paid, the Developer desires to modify the number of installment payments to three (3). Accordingly, the Developer desires to amend Section 5.4 (b) of the DA to effectively split the first $400,000 payment into two payments, the first payment in the amount of $150,000 and the second in the amount of $250,000. This amendment will not impact the City’s ability to deliver infrastructure projects planned to be funded with this source.
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Findings for Approval of the Fourth Amendment
Chapter 17.20.030(C) of the Healdsburg Municipal Code requires the City Council to make the following findings when approving a development agreement or an amendment thereto:
▪ The development agreement is consistent with the Healdsburg General Plan, any applicable specific plan and the zoning ordinance. This finding may be satisfied by a determination that the development agreement is consistent through provisions that are to be adopted concurrently with approval of the development agreement; and ▪ The development agreement will provide Healdsburg with tangible benefits beyond those that may be required by the City through project conditions of approval; and ▪ Any environmental impacts related to the development agreement have been reviewed and considered in accordance with the provisions of the California Environmental Quality Act.
On August 13, 2024, the Planning Commission adopted Resolution No 2024-11 recommending that the City Council approve the Fourth Amendment (Attachment 5). The resolution presents the factual basis for making the required findings. The findings are included in the ordinance for approval of the Fourth Amendment (Attachment 1).
2. LOT 1 TENTATIVE MAP
As shown on Attachment 2, Exhibit A, the proposed Tentative Map for Lot 1 identifies the boundaries of the 1.4-acre parcel, setbacks and easements, and establishes the following:
▪ Parcel 1, Airspace Parcel (Hotel)
▪ Parcel 2, Airspace Parcel (12 Condominiums for Hotel Investment Suites) ▪ Parcel 3, Airspace Parcel (Retail Building)
▪ Common Area Parcel
▪ Exclusive Use Common Area in favor of Parcels 1 and 2 (Pool Area) ▪ Exclusive Use Common Area in favor of Parcel 1 (Restaurant outdoor patio) ▪ Emergency Vehicle Access (EVA) on east boundary of Lot 1 with adjoining EVA on Lot 2, in favor of Lot 1.
On August 27, 2024, the Planning Commission adopted Resolution No. 2024-16 recommending that the City Council approve the Lot 1 Tentative Map (Attachment 8) subject to suggested findings and recommended conditions of approval. Those findings and conditions of approval are included in the City Council Resolution for approval of the Lot 1 Tentative Map (Attachment 2).
3. LOT 2 TENTATIVE MAP
As shown on Attachment 3, Exhibit A, the proposed Tentative Map for Lot 2 identifies the boundaries of the 1.35-acre parcel, setbacks and easements, and includes an annotation establishing the parameters for the final map and a future condominium plan as:
▪ Parcel 1, Residential (62 units)
▪ Common Area Parcel
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On August 13, 2024, the Planning Commission adopted Resolution No. 2024-13 recommending that the City Council approve the Lot 2 Tentative Map (Attachment 6) subject to suggested findings and recommended conditions of approval. Those findings and conditions of approval are included in the City Council Resolution for approval of the Lot 2 Tentative Map (Attachment 3).
Per the recommended conditions of approval, a Final Map for Lot 2 cannot be recorded until the residential development has received its design review approval and the boundaries of Parcel 1 and the Common Area Parcel are determined.
4. LOT 3 TENTATIVE MAP
As shown on Attachment 4, Exhibit A, the proposed Tentative Map for Lot 3 identifies the boundaries of the 0.86-acre parcel, setbacks and easements, and includes an annotation establishing the parameters for a final map and future condominium plan as:
▪ Parcel 1, Residential (21 units)
▪ Parcel 2, Middle Income Residential (29 units)
▪ Common Area Parcel
On August 13, 2024, the Planning Commission adopted Resolution No. 2024-14 recommending that the City Council approve the Lot 3 Tentative Map (Attachment 7) subject to suggested findings and recommended conditions of approval. Those findings and conditions of approval are included in the City Council Resolution for approval of the Lot 3 Tentative Map (Attachment 4).
Per the recommended conditions of approval, a Final Map for Lot 3 cannot be recorded until the residential development has received its design review approval and the boundaries of the parcels and Common Area Parcel are determined.
Please note that a Special Condition #25 is added to the Conditions of Approval to establish a provision in the Lot 3 CC&Rs to limit the amount of an annual increase in homeowners' association dues (including costs related to the Residential Amenity) payable by an Ownership Middle Income Housing Unit to no more than 33% of the percentage annual increase in the area income for Sonoma County, if any, applicable to the household size appropriate for the particular Ownership Middle Income Housing Unit, as published annually by the State Department of Housing and Community Development.
ENVIRONMENTAL STEWARDSHIP:
The Developer is bound by, and required to perform, all mitigation measures for the Project contained in and required by the CEQA Determination for the Mill District Project, including all mitigation monitoring and reporting.
ALTERNATIVES:
Fourth Amendment
By motion, it is recommended that the City Council:
(a) Introduce for first reading, by title only and waiving reading of the text, an Ordinance approving the Fourth Amendment to the Development Agreement for the Mill District
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Project (DA 2018-01.04) as recommended by the Planning Commission (Attachment 1).
Alternatively, the City Council could consider the following actions on the Fourth Amendment:
▪ Approve the Ordinance with further minor revisions to the Fourth Amendment, ▪ Direct that significant changes be made to the Fourth Amendment and refer the matter back to the Planning Commission for review of those changes if not previously considered, or
▪ Deny the Fourth Amendment in which case the provisions of the existing DA would remain intact and all of the previous actions related to the Mill District Project approved by the Planning Commission at their meetings on August 13, 2024 and August 27, 2024 would not become effective.
Tentative Subdivision Maps for Lots 1, 2, and 3
By separate motions, it is recommended that the City Council:
(a) Approve Resolution No. 2024-xx (Attachment 2) approving Tentative Subdivision Map for Lot 1 of the Mill District Project (SBDV 0003-2024) based on the suggested findings and subject to the recommended conditions of approval.
(b) Approve Resolution No. 2024-xx (Attachment 3) approving Tentative Subdivision Map for Lot 2 of the Mill District Project (SBDV 0004-2024) based on the suggested findings and subject to the recommended conditions of approval.
(c) Approve Resolution No. 2024-xx (Attachment 4) approving Tentative Subdivision Map for Lot 3 of the Mill District Project (SBDV 0005-2024) based on the suggested findings and subject to the recommended conditions of approval.
Alternatively, the City Council could consider the following actions on each of the Tentative Subdivision Maps:
▪ Approve Resolution(s) with modifications based on changes identified at the Planning Commission hearing.
▪ Continue action on one or more of the applications in order for the applicant to address specific concerns and require that revised plans be brought back to the City Council for future action. This would likely require noticing of a future public hearing. ▪ Continue action on one or more of the applications and provide direction to staff to prepare a resolution for denial based on inconsistencies with Project Approvals and/or applicable City regulations or policies. This would require noticing of a future public hearing.
FISCAL IMPACT:
The Mill District project is a privately funded development. The project will generate property tax, sales tax, and transient occupancy tax revenue which will help to offset the City's costs of providing services to the project. All City costs for processing Mill District project entitlements are funded by the applicant in accordance with a Cost Recovery Agreement between Replay Healdsburg, LLC and the City of Healdsburg.
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ENVIRONMENTAL ANALYSIS:
The environmental review for the Mill District project ("Project") relied upon the certified EIR for the Central Healdsburg Avenue Plan ("CHAP EIR") which was prepared pursuant to the California Environmental Quality Act (Pub. Res. Code § 21000, et seq.) ("CEQA"), and certified by the Healdsburg City Council on January 21, 2014 (State Clearinghouse No. 2012112011). In 2019, the Project was evaluated for consistency with the CHAP EIR as part of City approvals for a Tentative Map, Master Conditional Use Permit, Heritage Tree Removal Permit, and Historic Demolition Permit.
The City identified three applicable CEQA streamlining and/or tiering code sections, each of which, separately and independently, provided a basis for the Mill District Project’s CEQA compliance:
i. a Community Plan Exemption, pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183;
ii. an addendum to the CHAP EIR, pursuant to Public Resources Code Section 21166 and CEQA Guidelines Section 15164; and
iii. reliance on the CHAP EIR as a Program EIR, pursuant to CEQA Guidelines Section 15168 (collectively, the “Mill District CEQA Determination”).
The Mill District CEQA Determination continues to provide a basis for the Fourth Amendment and the Lots 1, 2 and 3 Tentative Subdivision Map CEQA compliance and the proposed amendments and circumstances under which the project amendments are undertaken do not require the preparation of a subsequent EIR or supplemental EIR pursuant to CEQA Guidelines Section 15162 or 15163, respectively.
ATTACHMENT(S):
1. ORDINANCE (4th DA Amendment-Mill District)
1. Ex A. Fourth Amendment to Development Agreement
1. Ex A-C. Amended And Restated Middle Income Housing Agreement - Mill District
1. Ex A-D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement
1. Ex A-E. Definition of Hotel Investment Suite Use and Conditions of Operation
1. Ex A-E-Att 1. PILOT Agreement
2. RESOLUTION-Lot 1 Tentative Map (SBDV 0003-2024)
2. Ex A. Lot 1 Tentative Map
2. Ex B. Lot 1 TM Conditions of Approval
2. Ex C. CEQA Certificate of Determination
3. RESOLUTION-Lot 2 Tentative Map (SBDV 0004-2024)
3. Ex A. Lot 2 Tentative Map
3. Ex B. Lot 2 Tentative Map Conditions of Approval
3. Ex C. CEQA Certificate of Determination
4. RESOLUTION-Lot 3 Tentative Map (SBDV 0005-2024)
4. Ex A. Lot 3 Tentative Map
4. Ex B. Lot 3 Tentative Map Conditions of Approval
4. Ex C. CEQA Certificate of Determination
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5. PC Resolution 2024-11- 4th DA Amendment (DA 2018-01.04)
6. PC Resolution 2024-13 Lot 2 (SBDV 0004-2024)
7. PC Resolution 2024-14 Lot 3 Tentative Map (SBDV 0005-2024)
8. PC Resolution 2024-16 Lot 1 Tentative Map (SBDV 0003-2024)
9. Lot 5 Tentative Parcel Map
10. Mill District Final Map
11. Lots 2 and 3 Capacity Study (08-01-24)
12. Mill District Condo Hotel Whitepaper
13. Park Area Comparison
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CITY OF HEALDSBURG
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG APPROVING A FOURTH AMENDMENT TO
THE DEVELOPMENT AGREEMENT (DA 2018-01.04) BY AND
BETWEEN THE CITY OF HEALDSBURG AND REPLAY
HEALDSBURG, LLC FOR THE MILL DISTRICT PROJECT
THE CITY COUNCIL OF THE CITY OF HEALDSBURG DOES ORDAIN AS FOLLOWS:
SECTION ONE. RECITALS AND BACKGROUND INFORMATION.
1. Under the authority of Ordinance No. 1184, the City of Healdsburg, a California municipal corporation ("City") and Replay Healdsburg, LLC, a Delaware limited liability company ("Developer") entered into a Development Agreement for the Mill District Project (the "Development Agreement"), the effective date of which is May 1, 2019, and a copy of which was recorded in the Official Records of Sonoma County (“Official Records”) on July 5, 2019, as Instrument No. 2019046003.
2. Prior to entering into the Development Agreement and approval of land use entitlements, the Project, as described below, was evaluated for consistency with the Central Healdsburg Avenue Plan Final Environmental Impact Report ("CHAP EIR") (State Clearinghouse No. 2012112011) and the City prepared a Certificate of Determination that documents the City’s review of the Project in accordance with CEQA and identified three applicable CEQA streamlining and/or tiering code sections, each of which, separately and independently, provided a basis for the Project’s CEQA compliance: (i) a Community Plan Exemption, pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183; (ii) an addendum to the CHAP EIR, pursuant to Public Resources Code Section 21166 and CEQA Guidelines Section 15164; and (iii) reliance on the CHAP EIR as a Program EIR, pursuant to CEQA Guidelines Section 15168 (collectively, the “Mill District Project CEQA Determination”).
3. The Development Agreement governs the development of approximately 9.59 acres of real property with: a hotel containing approximately 53 guest rooms (“Hotel”); up to 208 residential apartments and condominiums of which forty (40) units (the "Affordable Housing Units") shall be deed-restricted, multi-family residential rental units for occupancy by "Lower Income Households"; thirty (30) units (the "Middle Income Units") shall be deed-restricted to "Middle Income Households”; and not more than one hundred thirty-eight (138) condominium units (the “Market Rate Units”) shall be sold at unrestricted prices; fifteen thousand (15,000) square feet of commercial space, inclusive of residential amenities including a swimming pool and fitness center to serve residential units in the Project (“Residential Amenity”); and a 0.78 acre privately owned and maintained open space in the center of the Property for public use and enjoyment (“Park”)(collectively, the "Project").
4. On March 31, 2020, pursuant to authority provided by Section 6.3 and 6.4 of the Development Agreement, the Parties entered into a First Administrative Agreement Amendment to Development Agreement and First Administrative Project Amendment, as evidenced by the
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Memorandum of First Administrative Agreement Amendment to Development Agreement and First Administrative Project Amendment, of even date therewith and recorded in the Official Records on June 1, 2020, as Instrument No. 2020041463 ("First Amendment") to approve (i) certain minor amendments to Map Conditions Nos. 3 and 6 and MCUP Conditions Nos. 3, 6 and 24, and (ii) minor amendments to Sections 3.3(b), 4.2(c), 5.4(a) and 5.4(c), and the addition of Section 6.2(h) to the Development Agreement.
5. On December 30, 2020, pursuant to authority provided by Section 6.4 of the Development Agreement, the Parties entered into a Second Administrative Agreement Amendment to Development Agreement, as evidenced by the Memorandum of Second Administrative Agreement Amendment to Development Agreement, of even date therewith and recorded in the Official Records on December 31, 2020 as Instrument No. 2020126157 ("Second Amendment") to approve minor amendments to Section 4.2(c) of the Development Agreement regarding payment of parkland dedication fees (“Quimby Act Fees”) in lieu of dedication of a portion of the Property to the City for parkland uses.
6. On May 17, 2022, pursuant to authority provided by Section 6.3 of the Development Agreement, the Parties entered into a Third Administrative Project Amendment to Development Agreement, as evidenced by the Memorandum of Third Administrative Project Amendment to Development Agreement, of even date therewith and recorded in the Official Records on May 23, 2022 as Instrument No. 2022036175 ("Third Amendment"), to approve a minor amendment to MCUP Condition No. 1 modifying the number of market rate units allowed on Lot 6 from 26 to 15, a minor amendment to the note on Sheet 4 of the Tentative Map, and addition of Map Condition No. 20.
7. City staff and Developer have prepared a proposed Fourth Amendment to the Development Agreement ("Fourth Amendment") for consideration by the Healdsburg Planning Commission and the Healdsburg City Council.
8. Necessity for the Fourth Amendment is being driven, in part, by the desire of Developer to relocate the Residential Amenity from Lot 1 to Lot 5, shift residential units from Lots 5 and 6 to Lots 2 and 3, reconfigure boundaries of the Park easement on Lot 5, address concerns relating to timing of construction of the Middle Income Units, establish 12 Hotel Investment Suites within a 53-room hotel on Lot 1, and split the first Connectivity Funds payment into two payments.
9. The Fourth Amendment is intended to provide for the continued and orderly development of the Mill District Project.
10. Pursuant to Sections 65864 through 65869.5 of the California Government Code (“State Development Agreement Law”), the City adopted Ordinance No. 1097 to add Chapter
17.20 to the Healdsburg Municipal Code authorizing the use of, and imposing additional requirements on, development agreements.
11. Section 17.20.060 of the Healdsburg Municipal Code requires the Planning Commission to conduct a public hearing on an amendment to a development agreement; and, on August 13, 2024, at a properly noticed public hearing, the Planning Commission reviewed written and oral staff reports, conducted a public hearing on the proposed Fourth Amendment and took
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testimony; received into the record all pertinent documents related to the Fourth Amendment, and following consideration of the Mill District CEQA Determination, by adoption of Resolution No. 2024-11, the Planning Commission recommended that the City Council approve the Fourth Amendment with a further recommendation that the Council consider providing clarification in the Development Agreement whether the Middle Income Units have access to the Residential Amenity and relatedly, whether the cost thereof is included within the Affordable Rent for a Rental Middle Income Housing Unit and the Affordable Housing Cost for an Ownership Middle Income Housing Unit.
12. On September 16, 2024, the Healdsburg City Council held a duly noticed public hearing on the Fourth Amendment, reviewed the written and verbal staff reports, took testimony, and received into the record all pertinent documents related to the Project.
SECTION TWO. FINDINGS.
1. The Development Agreement, as amended by the First Amendment, Second Amendment, Third Amendment and this Fourth Amendment are consistent with the Healdsburg 2030 General Plan, the Central Healdsburg Avenue Plan, and the Land Use Code. The City Council made findings of consistency in its action to adopt Ordinance No. 1184, approving the Development Agreement, which findings are incorporated herein by this reference, and the Fourth Amendment does not modify the Development Agreement in any way that would conflict with the goals and policies of the Healdsburg 2030 General Plan, the Central Healdsburg Avenue Plan, the requirements of the City's Land Use Code, or the findings of consistency incorporated herein as applicable to the approval of this Fourth Amendment.
2. The Development Agreement, as amended by the First Amendment, Second Amendment, Third Amendment and this Fourth Amendment will provide Healdsburg with tangible benefits beyond those that could be imposed through project conditions of approval including (i) securing the orderly development of the Mill District Project site; (ii) helping to meet the goals of City’s General Plan and the Central Healdsburg Avenue Plan; (iii) helping to maintain an economic and social balance between housing supply and employment opportunities; (iv) providing affordable housing for various income categories in excess of the minimum required by City’s existing inclusionary housing requirements; (v) providing services and goods to City and Project residents; (vi) providing funding for enhanced firefighting equipment; and (vii) providing funding for improving pedestrian and bicycle access in the vicinity of the project site.
3. This Fourth Amendment also provides clarification that Middle Income Units shall have access to the Residential Amenity; that the Residential Amenity shall be for the exclusive use of Market Rate Housing and Middle Income Units in the Project; that any tax, fee, charge or assessment imposed for access to and use of the Residential Amenity shall be included within the amount calculated as Affordable Housing Cost, applicable to an Ownership Middle Income Housing Unit, and Affordable Rent, applicable to a Rental Middle Income Housing Unit; and that the twenty-nine (29) Middle Income Units to be developed and constructed on Lot 3 can be either an Ownership Middle Income Housing Unit or Rental Middle Income Housing Unit.
4. Environmental impacts related to the Development Agreement have been reviewed
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and considered in accordance with the provisions of the California Environmental Quality Act.
The environmental review for the Mill District project ("Project") relied upon the certified EIR for the Central Healdsburg Avenue Plan ("CHAP EIR") which was prepared pursuant to the California Environmental Quality Act (Pub. Res. Code § 21000, et seq.) ("CEQA"), and certified by the Healdsburg City Council on January 21, 2014 (State Clearinghouse No. 2012112011). In 2019, the Project was evaluated for consistency with the CHAP EIR as part of City approvals for a Tentative Map, Master Conditional Use Permit, Heritage Tree Removal Permit, and Historic Demolition Permit. The City identified three applicable CEQA streamlining and/or tiering code sections, each of which, separately and independently, provided a basis for the Mill District Project’s CEQA compliance:
(i) a Community Plan Exemption, pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183;
(ii) an addendum to the CHAP EIR, pursuant to Public Resources Code Section 21166 and CEQA Guidelines Section 15164; and
(iii) reliance on the CHAP EIR as a Program EIR, pursuant to CEQA Guidelines Section 15168 (collectively, the “Mill District CEQA Determination”).
The Mill District CEQA Determination continues to provide a basis for the Fourth Amendment’s CEQA compliance and the proposed Fourth Amendment and circumstances under which the project amendments are undertaken do not require the preparation of a subsequent EIR or supplemental EIR pursuant to CEQA Guidelines Section 15162 or 15163, respectively.
SECTION THREE. APPROVAL AND EXECUTION. The City Council hereby approves the Fourth Amendment to the Mill District 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 the Fourth Amendment and to take all necessary actions to implement the Development Agreement, as amended by the First Amendment, Second Amendment, Third Amendment and this Fourth Amendment on behalf of the City.
SECTION FOUR. 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 FIVE. 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
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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 16th day of September, 2024, and passed and adopted on the __ day of _____, 2024, by the following roll call vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAINING: Councilmembers:
SO ORDERED: ATTEST:
___________________________________ ____________________________________ David Hagele, Mayor Raina Allan, City Clerk
Dated: ______________________________
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FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
This Fourth Amendment to Development Agreement (this "Fourth Amendment") is entered into this ___ day of __________, 2024, by and between the City of Healdsburg, a California municipal corporation ("City"), and Replay Healdsburg, LLC, a Delaware limited liability company ("Developer"). City and Developer are referred to herein individually as a "Party" and collectively as the "Parties".
RECITALS
A. In January 2014, the Healdsburg City Council adopted the Central Healdsburg Avenue Plan (the “CHAP”), which establishes a set of guiding principles and design frameworks for the development of public infrastructure and private investment in the area generally located south of Mill Street between Highway 101 and the Russian River (the “CHAP Area”).
B. Under the authority of Ordinance No. 1184, the City and Developer entered into a Development Agreement (the "Development Agreement"), the effective date of which is May 1, 2019. A copy of the Development Agreement was recorded in the Official Records of Sonoma County (“Official Records”) on July 5, 2019, as Instrument No. 2019046003. The Development Agreement governs the development of approximately 9.59 acres of real property, more particularly described in the legal description attached hereto as Exhibit A and incorporated herein (the "Property"), located within the CHAP Area with: a hotel containing approximately 53 guest rooms (“Hotel”); up to 208 residential apartments and condominiums of which forty (40) units (the "Affordable Housing Units") shall be deed-restricted, multi-family residential rental units for occupancy by "Lower Income Households," as such term is defined in Section 1 of the Development Agreement; thirty (30) units (the "Middle Income Units") shall be deed-restricted to "Middle Income Households,” as defined in Section 1 of the Development Agreement; and not more than one hundred thirty-eight (138) condominium units (the “Market Rate Housing”) shall be sold at unrestricted prices; fifteen thousand (15,000) square feet of commercial space, inclusive of residential amenities including a swimming pool and fitness center to serve residential units in the Project (“Residential Amenity”); and a 0.78 acre privately owned and maintained open space in the center of the Property for public use and enjoyment (“Park”)(collectively, the "Project").
C. An Environmental Impact Report (EIR), Mitigation Monitoring and Reporting Plan (the “CHAP MMRP”) and Statement of Overriding Considerations for the CHAP were prepared pursuant to the California Environmental Quality Act (Pub. Res. Code § 21000, et seq.) (“CEQA”), and certified by the Healdsburg City Council on January 21, 2014 (State Clearinghouse Number 2012112011). The analysis in the CHAP EIR allows the use of CEQA streamlining and/or tiering provisions for projects developed under the CHAP EIR, including the Project. Accordingly, the City prepared a “Certificate of Determination” that documents the City’s review of the Project in accordance with CEQA. All mitigation measures in the CHAP MMRP that are applicable to the Project have been incorporated into a project-specific mitigation monitoring and reporting program (the “MMRP”), attached as Exhibit C to the Development Agreement. The City identified the following applicable CEQA streamlining and/or tiering code sections, each of which, separately and independently, provides a basis for the Project’s CEQA compliance:
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(i) A Community Plan Exemption, pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183;
(ii) An addendum to the CHAP EIR, pursuant to Public Resources Code Section 21166 and CEQA Guidelines Section 15164; and
(iii) Reliance on the CHAP EIR as a Program EIR, pursuant to CEQA Guidelines Section 15168.
D. In addition to the Development Agreement, the Project required, and received from the City, certain entitlements, including approval of a tentative tract map (Tract Map No. 2017- 01)(“Tentative Map”), which was approved by Resolution No. 42-2019, adopted by the City Council on March 11, 2019, pursuant to findings and subject to conditions of approval ("Map Conditions"), and a master conditional use permit (“MCUP”), approved by Resolution No. 2019- 02, adopted by the Planning Commission on January 8, 2019, pursuant to findings and subject to conditions of approval ("MCUP Conditions"). The MCUP Conditions includes a “Permitted Use Table” which identifies (i) the number of Market Rate Housing units, Middle Income Units and Affordable Housing Units approved for development on each Lot of the Final Map, subject to an upward or downward adjustment, applicable to Market Rate Housing units only, not to exceed five (5) units that can be approved administratively, and (ii) the number of commercial condominiums and amount of commercial space approved for development on each Lot of the Final Map.
E. On June 25, 2019, the Planning Commission adopted Resolution 2019-10 approving a design review (DR 2019-10) application for the development of forty-one (41) residential rental units comprised of forty (40) Affordable Housing Units and one (1) Middle Income Unit (manager’s unit) on Lot 7; subsequently, on February 11, 2020, the Planning Commission adopted Resolution No. 2020-04 amending DR 2019-10, and an administrative amendment was approved by the Community Development Director on December 21, 2020.
F. On March 10, 2020, the Planning Commission adopted Resolution No. 2020-05 approving design review (DR 2019-25) and variance (V 2020-01) applications for the development of thirty-nine (39) Market Rate Housing condominium units on Lot 4 of the Final Map; the number of Market Rate Housing condominium units to be developed on Lot 4 of the Final Map was increased to forty-three (43) units and approved administratively on October 12, 2021 in accordance with the terms of the Permitted Use Table and Development Agreement.
G. On March 10, 2020, the Planning Commission adopted Resolution No. 2020-06 approving a design review (DR 2019-24) application for the development of the 0.78 acre Park on a portion of Lot 5 of the Final Map, which approval subsequently expired on March 10, 2022.
H. On March 31, 2020, pursuant to authority provided by Section 6.3 and 6.4 of the Development Agreement, the Parties entered into a First Administrative Agreement Amendment to Development Agreement and First Administrative Project Amendment, as evidenced by the Memorandum of First Administrative Agreement Amendment to Development Agreement and First Administrative Project Amendment, of even date therewith and recorded in the Official Records on June 1, 2020, as Instrument No. 2020041463 ("First Amendment") to approve (i) certain minor amendments to Map Conditions Nos. 3 and 6 and MCUP Conditions Nos. 3, 6 and
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24, and (ii) minor amendments to Sections 3.3(b), 4.2(c), 5.4(a) and 5.4(c), and the addition of Section 6.2(h) to the Development Agreement.
I. On December 14, 2020, the Parties entered into an Agreement For Subdivision Improvements (“Subdivision Improvement Agreement”) to secure the faithful performance of, as well as the payment of labor and materials required to construct and install, the work of public improvements required by the Map Conditions which are otherwise required to be completed before the filing and recording of that certain final map entitled “Final Map of the Mill District,” on December 28, 2020, in Book 817 of Maps at Pages 32-47, of Official Records (“Final Map”).
J. On December 30, 2020, pursuant to authority provided by Section 6.4 of the Development Agreement, the Parties entered into a Second Administrative Agreement Amendment to Development Agreement, as evidenced by the Memorandum of Second Administrative Agreement Amendment to Development Agreement, of even date therewith and recorded in the Official Records of Sonoma County on December 31, 2020 as Instrument No. 2020126157 ("Second Amendment") to approve minor amendments to Section 4.2(c) of the Development Agreement regarding payment of parkland dedication fees (“Quimby Act Fees”) in lieu of dedication of a portion of the Property to the City for parkland uses.
K. On December 30, 2020, pursuant to the provisions of Section 4.2 of the Development Agreement, the Parties entered into a Publicly Accessible Private Open Space Easement Agreement, recorded in the Official Records on December 31, 2020 as Instrument No. 2020126156 (“Park Easement Agreement”) governing the grant to City of an easement over the Park for public access to and use by the public for park and recreational uses and activities (“Park Easement”).
L. On December 30, 2020, pursuant to the provisions of Section 5.2 of the Development Agreement, the Parties entered into a Middle Income Housing Regulatory Agreement And Declaration of Restrictive Covenants, recorded in the Official Records on December 31, 2020 as Instrument No. 2020126158 (“Middle Income Housing Agreement”) against the Property governing thirty (30) deed-restricted, multi-family Middle Income Units, a minimum of fourteen (14) and up to a maximum of twenty-two (22) units which shall be rental, and a minimum of eight (8) deed-restricted “Affordable-by-Design Housing Units,” as defined in Recital D(ii)(b) of the Development Agreement, for sale to Middle Income Households.
M. On December 30, 2020, pursuant to the provisions of Section 5.1 of the Development Agreement, the Parties entered into an Affordable Housing Regulatory Agreement And Declaration of Restrictive Covenants, recorded in the Official Records on December 31, 2020 as Instrument No. 2020126155 (“Affordable Housing Agreement”) against Lot 7 governing the rental and occupancy of forty (40) deed-restricted, multi-family Affordable Housing Units, and one (1) deed-restricted, multi-family Middle Income Unit which shall be for occupancy by a middle income household serving as the site manager (collectively, the “Lot 7 Affordable Housing Units”).
N. On April 21, 2021, pursuant to authority provided by Section 9 of the Development Agreement, the City, Developer, and Eden Mill District, LP, a California limited partnership (“Eden”), entered into a Partial Assignment and Assumption of Development Agreement and Estoppel Agreement, recorded in the Official Records on April 22, 2021 as Instrument No.
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2021049721, to authorize (i) the transfer of fee title to Lot 7 of the Final Map from Developer to Eden, (ii) the assignment of Developer’s interests, rights, duties and obligations applicable to development of the Lot 7 Affordable Housing Units under the Development Agreement to Eden, inclusive of the Affordable Housing Agreement, and (iii) Eden’s assumption of such interests, rights, duties and obligations applicable to development of the Lot 7 Affordable Housing Units under the Development Agreement from Developer, inclusive of the Affordable Housing Agreement.
O. On May 17, 2022, pursuant to authority provided by Section 6.3 of the Development Agreement, the Parties entered into a Third Administrative Project Amendment to Development Agreement, as evidenced by the Memorandum of Third Administrative Project Amendment to Development Agreement, of even date therewith and recorded in the Official Records of Sonoma County on May 23, 2022 as Instrument No. 2022036175 ("Third Amendment"), to approve a minor amendment to MCUP Condition No. 1 modifying the number of Market Rate Housing units allowed on Lot 6 from 26 to 15 (CUP 2017-12.03), a minor amendment to the note on Sheet 4 of the Tentative Map, and addition of Map Condition No. 20.
P. On June 28, 2022, the Planning Commission adopted Resolution No. 2022-09 approving design review (DR 2022-06) and conditional use (CUP 2022-03) applications for a Residential Amenity within a two-story, approximately 9,700 square foot building on Lot 1 of the Final Map.
Q. Subsequent to the expiration of DR 2019-24 applicable to the Park, the Planning Commission adopted Resolution No. 2023-02 on February 14, 2023, approving a new design review (DR 2022-22) application for the development of the 0.78 acre Park on a portion of Lot 5 of the Final Map. Notably, the design of the Park incorporates storm water treatment measures for the benefit of development of Project improvements on Lots 4, 5 and 6, triggering the requirement to pay an in-lieu fee of $261,780.00, as provided by Section 4.2 (c) of the Development Agreement, which amount is currently due but not yet payable (the “Storm Water Treatment Park Use In-Lieu Fee”).
R. On April 10, 2023, the City issued a Certificate of Occupancy to Eden with respect to the completion of construction of the Lot 7 Affordable Housing Units.
S. On September 12, 2023, the Planning Commission adopted Resolution No. 2023- 21 approving design review (DR 0018-2023) and variance (V 0001-2023) applications for the development of twelve (12) Market Rate Housing units and a 1,500 square foot commercial building on Lot 6 of the Final Map; the twelve (12) Market Rate Housing units approved for development by the Planning Commission on Lot 6 of the Final Map was decreased from the fifteen (15) units approved and noted on the Permitted Use Table pursuant to the Third Amendment.
T. Accordingly, as of the date of this Fourth Amendment, the obligation of Developer, as assigned to Eden, to construct forty (40) Affordable Housing Units on Lot 7 has been completed and approved for occupancy; likewise, one (1) of the thirty (30) required Middle Income Units has been completed and approved for occupancy on Lot 7; forty-three (43) Market Rate Housing units have been completed and approved for occupancy on Lot 4; and twelve (12) Market Rate Housing units have been approved for development on Lot 6 of the Final Map.
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U. Therefore, twenty-nine (29) Middle Income Units, inclusive of no less than eight (8) Affordable-by-Design Units, and eighty-three (83) Market Rate Housing units, for a total of 112 housing units, are yet to be developed or approved for development on remaining Lots 2, 3, and 5 of the Final Map. Furthermore, as provided in Section 5.2 (d)(x) of the Development Agreement, two (2) of the eight (8) Affordable-by-Design Units are required to be constructed and available for sale no later than December 31, 2024, which Developer will not be able to satisfy.
V. To advance the development of the Project, the following revisions to the Project and Project Approvals are proposed:
1. As noted in Recital P above, Developer originally anticipated and secured design review approval for the development of the Residential Amenity on Lot 1 of the Final Map. Developer is now proposing to relocate the Residential Amenity to Lot 5 of the Final Map, the proposed design of which will encroach into the Park Easement and, if said encroachment is approved by City, trigger the payment of an additional in-lieu fee of approximately $91,500.00 as provided by Section 4.2 (c) of the Development Agreement (the “Residential Amenity Park Use In Lieu Fee” and collectively with the Stormwater Treatment Park Use In Lieu Fee the “Park Use In Lieu Fee”);
2. To accommodate the Residential Amenity on Lot 5, Developer is proposing to relocate all thirteen (13) Middle Income Units originally approved for development on Lot 5 of the Final Map, to Lot 3 of the Final Map. As a result, Developer is proposing that all twenty-nine (29) Middle Income Units along with twenty-one (21) Market Rate Housing units, for a total of fifty (50) residential units, be developed on Lot 3 of the Final Map; furthermore, the eight (8) for-sale Affordable-by-Design Units would be replaced with eight (8) for-sale Middle Income Units and thus the provisions of Section 5.2 (d) of the Development Agreement applicable to Affordable-by-Design Units would no longer be relevant or necessary. Finally, sixty-two (62) Market Rate Housing units would be developed on Lot 2 of the Final Map;
3. Section 3.3 (c) of the Development Agreement provides that at least fourteen (14) Middle Income Units must have received a certificate of occupancy or final inspection before City will issue a certificate of occupancy or final inspection for the ninety-seventh (97th) Market Rate Housing unit. As noted in Recital T above, a total of fifty-five (55) Market Rate Housing units has either been completed or approved for development. Accordingly, if all sixty-two (62) Market Rate Housing units were approved for development on Lot 2 in advance of the development of the twenty-nine (29) Middle Income Units and twenty-one (21) Market Rate Housing units on Lot 3, one hundred seventeen (117) Market Rate Housing units would potentially receive a certificate of occupancy or final inspection before fourteen (14) Middle Income Units have received a certificate of occupancy or final inspection contrary to the requirements of Section 3.3 (c) of the Development Agreement;
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4. To ensure the development of the twenty-nine (29) Middle Income Units on Lot 3, the Parties have agreed to require (i) the design review for all twenty-nine (29) Middle Income Units on Lot 3 to be prepared and approved by the City and the building permit for construction of all twenty-nine (29) Middle Income Units on Lot 3 must be issued, all required fees must have been paid, prior to or concurrently with the issuance of a building permit for the development of any portion of the sixty-two (62) Market Rate Housing units on Lot 2, and (ii) the construction of all twenty-nine (29) Middle Income Units on Lot 3 must be completed and permitted for use and occupancy and available for sale or lease to Middle Income Households prior to or concurrently with the issuance of a permit for use and occupancy of the first Market Rate Housing unit on Lot 2 (the “Lot 3 Development Condition”). The Parties acknowledge that to account for revisions outlined in Recitals V.1, V.2, V.3, and V.4, the Middle Income Housing Agreement must be amended and restated as provided in the form attached hereto as Exhibit C (“Amended And Restated Middle Income Housing Regulatory Agreement”);
5. The Final Map for Lot 5 included an approximately 3,450 square foot condominium module fronting Healdsburg Avenue for future development of commercial space. The modification of the Park design to accommodate storm water treatment requirements of the Project, described in Recital Q above, and the encroachment of the Residential Amenity building into the Park Easement, described in Recital V.1 above, serve to diminish the amount of useable park space.
Accordingly, in order to ensure the development of a viable Park on Lot 5, the Parties have agreed that in exchange for City’s waiver and release of Developer’s obligation to pay the in-lieu fees identified in Recital Q and Recital V.1 above, Developer will prepare and process a new parcel map for Lot 5 to remove the 3,450 square foot condominium module fronting Healdsburg Avenue, add the 3,450 square feet to the 0.78 acre Park, for a total of 37,427 square feet or 0.86 acre Park, and amend and restate the Park Easement Agreement as provided in the form attached hereto as Exhibit D (“Amended And Restated Publicly Accessible Private Open Space Easement Agreement”);
6. The Final Map for Lot 1, as well as the MCUP and Permitted Use Table for Lot 1, allows for a 53-room hotel (i.e. visitor lodging use) and 8,500 square feet of floor area for commercial uses such as retail, restaurant, bar, and a spa. The Developer has proposed to modify the 53-room hotel to retain 41 rooms as visitor lodging use and allow 12 rooms to be separate condominium units sold as investments for personal use by their owners to the exclusion of the general public for a portion of the time and otherwise made available to the operator of the 41-room hotel for rental to the general public as a visitor lodging use (“Hotel Investment Suite”). The City’s Land Use Code, Title 20 of the Healdsburg Municipal Code, does not contain a use classification that allows for a Hotel Investment Suite use. Nevertheless, Chapter 20.28, Article II Determination of Unspecified Uses, of the Healdsburg Municipal Code, provides that the zoning administrator (Community Development Director) may, subject to review by or appeal to the Planning Commission, determine that the nature and characteristics
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of the proposed “hotel investment suite” use is similar to a “visitor lodging” use and thereby allow for the “hotel investment suite” use as a conditionally permitted use in the Mixed Use District. The zoning administrator has determined, subject to review by the Planning Commission, that a Hotel Investment Suite use as defined in Exhibit E attached hereto (“Definition of Hotel Investment Suite”), is similar to a visitor lodging use and thus may be allowed as a conditionally permitted use in the Mixed Use District. As outlined in the Definition of Hotel Investment Suite, in order to ensure a hotel investment suite use functions similarly to a visitor lodging use, Developer will be required to execute and acknowledge an Agreement for Payment-In-Lieu of Transient Occupancy Tax (“PILOT Agreement”), in the form attached as Attachment 1 to Exhibit E, with the City and cause the PILOT Agreement to be recorded in the official records of the Sonoma County Recorder’s Office against the legal parcel comprising the visitor lodging use; this obligation of Developer will be reflected in a new Section 5.8 to the Development Agreement.
7. Section 5.4 (b) of the Development Agreement provides for the payment by Developer of $1,300,000 of “Connectivity Funds” to be used by City for the design, development and construction of projects within the CHAP Area that improve pedestrian and bicycle connectivity. Said Connectivity Funds are to be paid in two (2) installments as further set forth in subsections (i) and (ii) of said Section 5.4 (b). Without modifying the total amount of Connectivity Funds to be paid, the Developer desires to modify the number of installment payments to three (3). Accordingly, the Developer desires to amend Section 5.4 (b) of the Development Agreement.
W. In order to implement the revisions to the Project as outlined in Recital V above, the Parties have identified the need for the Healdsburg Planning Commission (“Planning Commission”) and Healdsburg City Council (“City Council”) to approve the following actions:
• amend the MCUP to identify a Hotel Investment Suite use, as defined in Exhibit E to this Fourth Amendment, as an allowable use on Lot 1 of the Project; • amend and restate the Permitted Use Table within the MCUP Conditions to allow:
(a) a forty-one (41) room visitor lodging use combined with twelve (12) Hotel Investment Suites, along with up to 8,500 square feet of floor area on Lot 1 for commercial uses such as a restaurant, bar, retail, and a spa; (b) sixty-two (62) Market Rate Housing for-sale residential units on Lot 2; (c) fifty (50) residential units on Lot 3, comprised of twenty-one (21) Market Rate Housing forsale residential units and twenty-nine (29) Middle Income residential units (eight (8) of which shall and up to twenty-nine (29) of which can be for-sale units), subject to the Lot 3 Development Condition outlined in Recital V above; and (d) an up to 9,500 square foot residential amenity building and outdoor pool facility, including up to 2,500 square feet of commercial space, and no less than 37,427 square feet or 0.86-acre privately owned and publicly accessible park on Lot 5 (“Amended and Restated Permitted Use Table”);
• process new tentative and final maps for Lots 1, 2, 3 and 5 to be consistent with the Amended and Restated Permitted Use Table as follows: (a) fifteen (15) condominium parcels on Lot 1 (1 parcel for 41-room visitor lodging use; 12 parcels for hotel investment suite use; 1 parcel for 8,500 square foot commercial space; 1 parcel for Lot 1 common area); (b) sixty-three (63)
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condominium parcels on Lot 2 (62 parcels for Market Rate Housing for-sale units; 1 parcel for Lot 2 common area); (c) up to fifty-one (51) condominium parcels on Lot 3 (21 parcels for Market Rate Housing for-sale units; up to twenty-nine (29) parcels for Rental Middle Income Housing Units or Ownership Middle Income Housing Units (collectively, the “Middle Income Parcels”); and 1 parcel for Lot 3 common area); and (d) four (4) condominium parcels on Lot 5 (1 parcel for residential amenity building and outdoor pool facility; 2 parcels for up to 2,500 square feet of commercial space, combined; 1 parcel for 37,427 square foot or 0.86-acre park/open space (the “Park Parcel”)); and
• approve this Fourth Amendment to: (i) amend Recital D regarding description of the Project to incorporate the Hotel Investment Suite use, make revisions to the allowable tenure of Middle Income Units, clarify that Middle Income Units shall have access to the Residential Amenity and that the Residential Amenity shall be for the exclusive use of Market Rate Housing and Middle Income Units in the Project, excluding the Middle Income Unit located on Lot 7, and enlarge the size of the Park; (ii) amend Section 1 Definitions to eliminate definition of “Affordable-by-Design Housing Units”, add definitions for “Affordable Rent”, “Hotel Investment Suite”, and “Residential Amenity”, and rename the definition of “Maximum Restricted Sales Price” to “Restricted Sales Price”; (iii) amend Section 3.1 Vested Rights and 3.5 Life of Project Approvals as it relates to the approval of the Hotel Investment Suite use on Lot 1 to be limited to a period of five (5) years from the date of approval of the Fourth Amendment; (iv) amend Section
3.3 Development Timing (c), (d) and (e) to address the Lot 3 Development Condition; (v) amend Section 4.2 (c) regarding Quimby Act Fees; (vi) amend Section 5.2 Middle Income Housing; (vii) amend Section 5.4 (b) regarding Connectivity Fees; (viii) add Section 5.8 regarding Developer’s obligation for the PILOT Agreement; and (ix) add Section 5.9 Residential Amenity outlining limitations on access thereto (collectively, the “Mill District Project Amendments”).
X. As outlined in Recital C above, in 2019, the Project was evaluated for consistency with the CHAP EIR as part of the City’s review and approval of the Project Approvals and the City prepared a Certificate of Determination that documents the City’s review of the Project in accordance with CEQA and identified three applicable CEQA streamlining and/or tiering code sections, each of which, separately and independently, provided a basis for the Project’s CEQA compliance: (i) a Community Plan Exemption, pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183; (ii) an addendum to the CHAP EIR, pursuant to Public Resources Code Section 21166 and CEQA Guidelines Section 15164; and (iii) reliance on the CHAP EIR as a Program EIR, pursuant to CEQA Guidelines Section 15168 (collectively, the “Mill District Project CEQA Determination”).
Y. The Mill District Project CEQA Determination continues to provide a basis for the Mill District Project Amendments’ CEQA compliance and the preparation of a subsequent EIR or supplemental EIR pursuant to CEQA Guidelines Section 15162 or 15163, respectively, is not required. The changes proposed by the Mill District Project Amendments will not result in the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Further, the circumstances under which the changes proposed by the Mill District Project Amendments are undertaken will not result in the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Finally, there is no new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time of adoption of the Mill District Project CEQA Determination, that shows (a)
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the Mill District Project Amendments will have one or more significant effects not discussed in the Mill District Project CEQA Determination, (b) significant effects previously examined will be substantially more severe that shown in the Mill District Project CEQA Determination, (c) mitigation measures found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Mill District Project Amendments, but the Applicant declines to adopt the mitigation measure or alternative, or (d) mitigation measures or alternatives that are considerably different from those analyzed in the Mill District Project CEQA Determination would substantially reduce one or more significant effects on the environment, but the Applicant declines to adopt the mitigation measure or alternative.
Z. On August 13, 2024, after conducting public hearings as required by law, the Planning Commission took the following actions:
(i) adopted Resolution No. 2024-11 recommending that the City Council adopt an ordinance approving this Fourth Amendment, and in connection therewith clarify whether the Middle Income Units have access to the Residential Amenity and if the cost thereof is included within the Affordable Rent for a Rental Middle Income Housing Unit and the Affordable Housing Cost for an Ownership Middle Income Housing Unit;
(ii) adopted Resolution No. 2024-12 approving an amendment to the MCUP (CUP 2017-12.04) to identify Hotel Investment Suite use as an allowable use on Lot 1 and approving the Amended and Restated Permitted Use Table as applicable to Lot 1, Lot 2, Lot 3, and Lot 5, subject to City Council approval of this Fourth Amendment; (iii) adopted Resolution No. 2024-13 recommending that the City Council approve tentative subdivision map for Lot 2 (SBDV-0004-2024) in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment; and
(iv) adopted Resolution No. 2024-14 recommending that the City Council approve tentative subdivision map for Lot 3 (SBDV-0005-2024) in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment.
AA. On August 27, 2024, after conducting public hearings as required by law, the Planning Commission took the following actions:
(i) adopted Resolution No. 2024-16 recommending that the City Council approve tentative subdivision map for Lot 1 (SBDV-0003-2024) in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment; (ii) adopted Resolution No. 2024-15 approving design review (DR-0005-2024), variance (VAR-0001-2024), and conditional use permit (CUP-0005-2024) applications for Lot 1 in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment;
(iii) adopted Resolution No. 2024-17 approving tentative subdivision map for Lot 5 (SBDV-0002-2024) in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment; and (iv) continued further consideration of design review (DR-0004-2024) and conditional use permit (CUP-0004-2024) applications for Lot 5 to its regular meeting of October 8, 2024.
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BB. On September 16, 2024, after conducting public hearings as required by law, the City Council took the following actions:
(i) introduced Ordinance No. _____ to approve this Fourth Amendment, and in connection therewith clarified that Middle Income Units shall have access to the Residential Amenity; that the Residential Amenity shall be for the exclusive use of Market Rate Housing and Middle Income Units in the Project; except for the Middle Income Unit located on Lot 7, that any tax, fee, charge or assessment imposed for access to and use of the Residential Amenity shall be included within the amount calculated as Affordable Housing Cost, applicable to an Ownership Middle Income Housing Unit, and Affordable Rent, applicable to a Rental Middle Income Housing Unit; and that the twenty-nine (29) Middle Income Units to be developed and constructed on Lot 3 can be either an Ownership Middle Income Housing Unit or Rental Middle Income Housing Unit;
(ii) adopted Resolution No. 2024-____ approving tentative subdivision map for Lot 1 (SBDV-0003-2024) in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment; (iii) adopted Resolution No. 2024-____ approving tentative subdivision map for Lot 2 (SBDV-0004-2024) in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment; and (iv) adopted Resolution No. 2024-____ approving tentative subdivision map for Lot 3 (SBDV-0005-2024) in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment.
CC. On October 8, 2024, after conducting public hearings as required by law, the Planning Commission adopted Resolution No. 2024-____ approving design review (DR-0004- 2024) and conditional use permit (CUP-0004-2024) applications for Lot 5 in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of this Fourth Amendment.
DD. On October 21, 2024, the City Council approved and adopted Ordinance No.____ approving this Fourth Amendment, which shall become effective on November 20, 2024 (“Effective Date”).
Now, therefore, the City and Developer, for valuable consideration the receipt of which is hereby acknowledged, agree as follows:
1. This Fourth Amendment constitutes a Major Agreement Amendment to the Development Agreement for the Project in accordance with Section 6.4 (b) of the Development Agreement. Accordingly, as set forth in the Recitals which are incorporated herein as if set forth in full, this Fourth Amendment has been noticed and considered at public hearings before the Planning Commission and City Council in accordance with Applicable Law.
2. Recital D of the Development Agreement is hereby amended and restated in its entirety as follows, with added language underlined and deleted language noted by strikethrough:
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D. Developer proposes to develop, and the Parties desire to provide for the development of, a project that includes the following elements, all as shown on Exhibit B, attached hereto and incorporated herein by this reference (collectively, the “Project”):
(i) A fifty-three (53) room visitor lodging use, of which twelve (12) rooms may be for-sale hotel investment suites hotel containing approximately 53 guest rooms; (ii) Up to 208 residential apartments and condominiums (“Residential Units”) as follows:
(a) Not more than one hundred thirty-eight (138) multi-family condominium units to be sold at unrestricted prices (the “Market Rate Housing”);
(b) Thirty (30) deed-restricted multi-family residential (the “Middle Income Units”) units for occupancy by persons whose household income is between 120% and 160% of area median income (the “Middle Income Households”). A minimum of one (1) Middle Income Unit fourteen (14), and up to a maximum of twenty-two (22), of such deed-restricted units shall be made available as rental units for rent at an aAffordable Rent to Middle Income Households (together, the “Rental Middle Income Housing Units”). One (1) Rental Middle Income Housing Unit may be made available for occupancy by a Middle Income Household serving as the site manager for the Affordable Housing Units to be developed on Lot 7. A minimum of eight (8) and Developer in its sole discretion may make up to a maximum of twenty-nine (29) of the Middle Income Units eight (8) such deed-restricted units shall be made available for sale at an Affordable Housing Cost a restricted price to Middle Income Households (together, the “Ownership Middle Income Housing Units”). In addition, Developer shall construct no less than eight (8) deed-restricted units available for sale at a restricted price to Middle Income Households (the "Affordable-by-Design Housing Units");
(c) Forty (40) deed-restricted, multi-family residential rental units for occupancy by Lower Income Households (the “Affordable Housing Units”), twenty-four (24) of which shall be for occupancy by Very Low Income Households;
(iii) Approximately fifteen thousand (15,000) square feet of commercial space in multiple buildings throughout the Project site, including approximately 1,500 square feet of commercial space that will provide an occupancy preference to an existing local business or a new business that is locally owned, and residential amenities including a swimming pool and fitness center to exclusively serve Market Rate Housing and Middle Income Units in the Project (“Residential Amenity”); and (iv) A variety of amenities, including (a) privately owned and maintained open space in the center of the Property of no less than 37,427 square feet or 0.86-acre (“Park”) for public use and enjoyment, (b) public plaza spaces, (c) a community garden, and (d) bicycle racks and shared vehicle charging stations.
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3. Section 1 Definitions of the Development Agreement is hereby amended to (i) eliminate the definition for “Affordable-by-Design Housing Units”, (ii) add definitions for “Affordable Rent”, “Hotel Investment Suite”, and “Residential Amenity”, and (iii) rename the definition “Maximum Restricted Sales Price” to “Restricted Sales Price” as follows:
“Affordable Rent” means a monthly rent that does not exceed one-twelfth of thirty-three percent (33%) of one hundred sixty percent (160%) of AMI, Adjusted for Family Size Appropriate for the Unit, which encompasses: (i) a reasonable utility allowance for utilities paid by the Tenant as established by the Sonoma County Community Development Commission, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but excluding telephone service, Internet, or cable or subscription TV; (ii) other fees and charges required to be paid by tenants of the Rental Middle Income Housing Units on a non-optional basis, other than security deposit; and (iii) any tax, assessment, insurance premium, homeowners’ association dues, or any cost, fee or expense that the owner of the Rental Middle Income Unit is required to pay as an incidence of ownership.
“Hotel Investment Suite” shall have the meaning set forth in Exhibit E to the Fourth Amendment.
“Residential Amenity” shall mean that approximately 9,000 square foot facility located on Lot 5 which includes a swimming pool, fitness center, and changing rooms as authorized pursuant to design review (DR-0004-2024) and conditional use permit (CUP0004-2024) approved by the Planning Commission on October 8, 2024, pursuant to Resolution No. 2024 - ___ , inclusive of the conditions of approval thereof. “Maximum Restricted Sales Price” shall have the meaning set forth in Section 5.2(c).
4. Section 3.1 Vested Rights of the Development Agreement is hereby amended in its entirety as follows, with added language underlined and deleted language noted by strikethrough:
3.1 Vested Rights. The Property is hereby made subject to the provisions of this Agreement. Developer shall have the vested right to develop the Property and the Project in accordance with and subject to the Existing Project Approvals, the Subsequent Project Approvals, Applicable Law and this Agreement, which shall control the permitted uses, density and intensity of use of the Property, the maximum height and size of buildings on the Property, building setbacks, and provisions for reservation or dedication of land for public purposes.
During the term of this Agreement, Eexcept as and to the extent required by state or federal law, and subject to the provisions of this Agreement, City shall not impose on the Property any New City Law that has any of the following effects on the rights provided by the Project Approvals and Applicable Law:
(a) Changes any land use designation or permitted use of the Property from that shown in the Project Approvals; or
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(b) Limits or controls the rate, timing, phasing or sequencing of the approval, development, or construction of all or any part of the Property except as set forth in Applicable Law; or
(c) Limits or restricts any right specifically granted by the Project Approvals, including but not limited to permitted uses and density and intensity of use and maximum height, size, or number of buildings or materially changes the Project site plan; or (d) Imposes any requirements for reservation or dedication of land for public purposes except as set forth in Applicable Law.
The foregoing notwithstanding, if Developer has not secured all required Subsequent Approvals and commenced substantial construction of the visitor lodging and hotel investment suite use on Lot 1 within five (5) years of the Effective Date of the Fourth Amendment, the Project Approvals authorized by CUP 2017-12.04 as applicable to Lot 1, and DR-0005-2024, VAR0001-2024, CUP-0005-2024, and SBDV-0003-2024 for Lot 1 shall expire and be of no further force or effect, and any condominium plan filed by Developer in reliance on SBDV-0003-2024 shall be revoked in accordance with Civil Code section 4295 within ninety (90) calendar days thereafter.
5. Section 3.3 Development Timing, subsections (c), (d), and (e) of the Development Agreement is hereby amended in its entirety as follows, with added language underlined and deleted language noted by strikethrough:
(c) Design review for all twenty-nine (29) Middle Income Units on Lot 3 shall be prepared and approved by the City and the building permit for construction of all twenty-nine (29) Middle Income Units on Lot 3 must be issued and all required fees must have been paid by Developer, before or concurrently with the issuance of a building permit for the development and construction of any portion of the sixty-two (62) Market Rate Housing units on Lot 2. At least fourteen (14) Middle Income Housing units must have received a certificate of occupancy or final inspection before City will issue a certificate of occupancy or final inspection for the ninety-seventh (97th) Market Rate Housing unit. (d) The construction of all twenty-nine (29) Middle Income Units on Lot 3 must be completed and permitted for use and occupancy and available for sale or lease to Middle Income Households before or concurrently with the City’s issuance of a certificate of occupancy for the first Market Rate Housing unit on Lot 2. All twenty two (22) Middle Income Housing Units must have received a certificate of occupancy or final inspection before City will issue a certificate of occupancy or final inspection for the final Market Rate Housing unit in the Project’s last phase.
(e) The Existing Project Approvals (including but not limited to the Permitted Use Table included in the conditions of approval for Conditional Use Permit CUP 2017-12) permit a range of units that may be developed on individual legal parcels within the Project to accommodate physical site constraints, market demand, and availability of GMO Allocations or building permits under the Growth Management Ordinance. The Parties agree and acknowledge that Developer, in its sole discretion, may decide how many dwelling units to build on each
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parcel and when to build such units within the Existing Project Approval’s permitted range, within the parameters of the Permitted Use Table.
6. Section 3.5 Life of Project Approvals of the Development Agreement is hereby amended in its entirety as follows, with added language underlined and deleted language noted by strikethrough:
3.5 Life of Project Approvals. The term of any and all Project Approvals shall automatically be extended for the longer of the Term or the term otherwise applicable to such Project Approvals. Without limiting the generality of the foregoing, pursuant to the Subdivision Map Act, any vesting or tentative maps heretofore or hereafter approved in connection with development of the Project or the Property, shall be extended for the Term (and may be subject to other extensions provided under the Subdivision Map Act). Notwithstanding the foregoing, however:
(a) The number of years that each GMO Allocation awarded to Developer for the Project is valid shall be governed by the GMO Policies and Procedures in effect on the Effective Date of this Agreement, unless approved by the City and Developer, or otherwise specifically extended by the terms of this Agreement; and (b) The Final Subdivision Map shall be filed within two (2) years after the approval of Tentative Map TM 2017-01, unless otherwise extended pursuant to the Existing Project Approvals, or state or local law; and
(c) The term, expiration, and extension of all Building Permits shall be governed by the Healdsburg Municipal Code; and
(d) If Developer has not secured all required Subsequent Approvals and commenced substantial construction of the visitor lodging and hotel investment suite use on Lot 1 within five (5) years of the Effective Date of the Fourth Amendment, the Project Approvals authorized by CUP 2017-12.04 as applicable to Lot 1, and DR-0005-2024, VAR-0001-2024, CUP-0005-2024, and SBDV-0003-2024 for Lot 1 shall expire and be of no further force or effect, and any condominium plan filed by Developer in reliance on SBDV-0003-2024 shall be revoked in accordance with Civil Code section 4295 within ninety (90) calendar days thereafter.
7. Section 4.2 (c) Quimby Act Fees of the Development Agreement is hereby amended in its entirety as follows, with added language underlined and deleted language noted by strikethrough:
(c) Quimby Act Fees
(i) The Parties have determined that the Quimby Act Fee for the entire Project, after deduction of the Credit, shall be $2,500,000. This fee shall be divided by 208 to result in a “per unit” fee, which shall be payable at the time of issuance of the first building permit for each parcel for all residential units on that parcel. The foregoing notwithstanding, upon issuance of the first building permit for Lot 7 of Tract Map No. 2017-01 (“Lot 7”), the sum total of the “per unit” fee for each of the forty (40) Affordable Housing Units and one (1) Middle Income Unit to
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be constructed on Lot 7 of $492,788.46 shall be deferred until issuance of a certificate of occupancy for the residential development on Lot 7.
(ii) In the event that the final design of the Park is smaller than 0.78 acres, Developer shall pay to the City as an in-lieu fee an amount equal to (i) the difference in square feet between 0.78 acres and the size of Park as finally designed, multiplied by (ii) Sixty Dollars ($60.00). If, at any point, Developer is required to use any portion of the Park to comply with any building or zoning open space requirements or other obligations of the Project, Developer shall pay to the City as an in-lieu fee an amount equal to (x) the square footage of the Park that is required to comply with such building or zoning open space requirements, multiplied by (y) Sixty Dollars ($60.00). Any in-lieu fee payable pursuant to this Section 4.2(c)(ii) shall be payable at the time of issuance of the first building permit of the next parcel to be developed.
Following the approval of the Fourth Amendment, Developer shall have no right to use any portion of the Park to comply with any building or zoning open space requirements or other obligations of the Project, other than the stormwater treatment measures that benefit Project improvements on Lots 4, 5, and 6 and which have been previously approved by the City and the Residential Amenity encroachment reflected in CUP 2017-12.04 as applicable to Lot 5, and CUP-0004-2024, DR-0004-2024, and SBDV-0002-2024 for Lot 5. (iii) City hereby waives and releases Developer from any liability or obligation to pay the Park Use In-Lieu Fee in consideration for the revisions to Project Approvals for Lot 5 as reflected in CUP 2017-12.04 as applicable to Lot 5, and CUP-0004-2024, DR-0004-2024, and SBDV-0002-2024 for Lot 5 to remove the 3,450 square foot condominium module fronting Healdsburg Avenue, add the 3,450 square feet to the 0.78 acre Park, for a total of 37,427 square feet or 0.86 acre Park, and amend and restate the Park Easement Agreement as provided in the form attached hereto as Exhibit D (the “Amended And Restated Publicly Accessible Private Open Space Easement Agreement”), to be recorded concurrently or as soon thereafter as possible with the filing of the Final Map applicable to SBDV-0002-2024 for Lot 5 as against the Park Parcel.
8. Section 5.2 Middle Income Housing of the Development Agreement is hereby amended in its entirety as follows, with added language underlined and deleted language noted by strikethrough:
5.2 Middle Income Housing.
(a) A total of thirty (30) Middle Income Units residential units will be made available at an affordable rent or sales price Affordable Rent or Affordable Housing Cost, adjusted for household size, to Middle Income Households. One (1) Rental Middle Income Housing Unit will be made available for rent at an Affordable Rent for occupancy by a Middle Income Household serving as the site manager for the Affordable Housing Units developed on Lot 7 and twenty-nine (29) residential units will be made available for rent at an Affordable Rent or for-sale at Affordable Housing Cost, adjusted for household size, to Middle Income Households on Lot 3. The residential units for Middle Income Households shall consist of unit types that range from studios to three bedrooms per unit, with the final unit mix to be developed on Lot 3 to be determined based on a market needs assessment conducted by the Developer and reviewed and approved by City in its reasonable discretion prior to Developer submitting its
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application for major design review for the Middle Income Units on Lot 3Project phase that includes Middle Income Housing. All Middle Income Units constructed on Lot 3 shall have access to the Residential Amenity and the Middle Income Unit on Lot 7 shall not have access to the Residential Amenity. Any tax, fee, charge or assessment imposed for access to and use of the Residential Amenity shall be included within the amount calculated as Affordable Housing Cost, applicable to an Ownership Middle Income Housing Unit, and Affordable Rent, applicable to a Rental Middle Income Housing Unit. The application for major design review for Lot 3 each Project structure that includes Middle Income Housing shall stipulate the number and location of Middle Income Housing units that will be included as part of each such structure on Lot 3, and shall state whether such Middle Income Housing units will be deed-restricted Rental Middle Income Housing Units for rent units or deed-restricted for sale units Ownership Middle Income Housing Units, or Affordable-by-Design Housing Units, as set forth in subdivisions 1.1(b), and
1.1(c), and 1.1(d), below.
(b) A minimum of one (1) fourteen (14) deed-restricted Rental Middle Income Housing Units, and up to a maximum of all twenty-two (22) deed-restricted Middle Income Housing Units, will be made available for rent to Middle Income Households. The Rental Middle Income Housing Units shall be subject to the following restrictions:
(i) All Rental Middle Income Housing Units shall be rented at an Affordable Rent affordable price to Middle Income Households for a period of fifty-five (55) years. For purposes of this Agreement, “an affordable price to Middle Income Households” shall mean a monthly rent that does not exceed one-twelfth of thirty-three percent (33%) of one hundred sixty percent (160%) of the area median income and adjusted for household size. (ii) All Rental Middle Income Housing Units shall include interior finishes and features that are durable, of good quality, and consistent with contemporary standards for new housing.
(iii) The Rental Middle Income Housing Units must contain air conditioning, dishwashers, refrigerators, garbage disposals, cooking facilities, and either in-unit laundry facilities or access to common area laundry facilities, in the Developer’s sole discretion. (iv) Applicants must be income certified as a Middle Income Household to qualify to rent a Rental Middle Income Housing Unit, and Rental Middle Income Housing Unit residents shall be required to re-certify their household income no more often than once every three (3) years.
(v) In order to ensure that there is an adequate supply of affordable housing within the City of Healdsburg for residents and employees of businesses within the City, to the extent permitted by law, within the pool of eligible applicants, first priority will be given to qualified households with members who live or work in the city limits of Healdsburg. If there are no qualified Middle Income Households who meet these criteria, second priority shall be granted to qualified households with members who live or work in unincorporated Healdsburg, but within the 95448 zip code. If there are no qualified Middle Income Households who meet these criteria, third priority shall be granted to qualified households with members who live or work in Windsor, Geyserville, or Cloverdale or within the unincorporated Windsor, Geyserville and Cloverdale boundaries, but within the 95492, 95441, or 95425 zip codes, respectively. If
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there are no qualified Middle Income Households who meet these criteria, fourth priority shall be granted to qualified households with members who have previously lived in Healdsburg (within City limits and within the unincorporated 95448 zip code), as determined by prior enrollment in Healdsburg public or private schools, or a previously active utility account with the City of Healdsburg. In the event there are fewer applicants for the Rental Middle Income Housing Units that meet the criteria specified in this paragraph than there are available Rental Middle Income Housing Units, such units shall be made available to members of the general public who are qualified Middle Income Households.
(vi) The above requirements shall be memorialized in an amended and restated regulatory agreement between the Parties, in the form attached as Exhibit C to the Fourth Amendment (the “Amended And Restated Middle Income Housing Regulatory Agreement”), to be recorded concurrently or as soon thereafter as possible with the filing of the Final Map applicable to SBDV-0005-2024 for Lot 3 as against the Middle Income Parcels. The Amended And Restated Middle Income Housing Regulatory Agreement regulatory agreement shall meet any applicable requirements of the GMO Policies and Procedures as may be amended, or new GMO policies and procedures that may be adopted, by the City Council specifically for rental Middle Income Housing Units that do not otherwise conflict with the terms of this Agreement.
(c) A minimum of eight (8) and Developer may, in its sole discretion, make up to a maximum of twenty-nine (29) eight (8) deed-restricted Middle Income Housing units on Lot 3 will be made available for sale to Middle Income Households at a price determined by the City Developer that is at or below an Affordable Housing Cost for the homebuyer (the “Maximum Restricted Sales Price”), as more particularly set forth in the Amended and Restated Middle Income Housing Regulatory Agreement. Any such Ownership Middle Income Housing Units that are sold shall be subject to the following restrictions:
(i) For each Middle Income Housing unit that is designated as an Ownership Middle Income Housing Unit, a GMO Allocation shall be a prerequisite to construction of such unit if required by the Growth Management Ordinance and the GMO Policies and Procedures.
(ii) Prior to commencement of construction of any building in which Ownership Middle Income Housing Units are proposed to be located, Developer shall record a covenant for each such Ownership Middle Income Housing Unit, reviewed and approved by the City, that restricts each future sale of such unit to income-eligible Middle Income Households at the Maximum Restricted Sales Price for a period of forty-five (45) years after the sale (the “Sale Price Restriction”), except as otherwise contemplated pursuant to subdivision (iii) below. (iii) For the initial sale of any such Ownership Middle Income Housing Unit and, except as provided below, all future sales of those units, if an escrow for a Middle Income Household to purchase said unit at or below the Maximum Restricted Sales Price is not opened within ninety (90) one hundred and eighty (180) days after (i) the City issues a certificate of occupancy for said unit and (ii) the unit is first made available for sale by Developer to Middle Income Households following written notice of such availability provided by Developer to City, City or its designee shall have a right of first refusal to purchase any such unit(s) at the Maximum Restricted Sales Price, adjusted for assumed household size based on the
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number of bedrooms in the unit. If City or its designee declines to exercise its right to purchase any such unit within an additional ninety (90) days from the time City is notified by Developer in writing that it City has the right to purchase that unit, any such unit(s) may be sold at an unrestricted market price without any continuing Sale Price Restriction. However, at close of escrow for such unit, the seller shall pay to City the positive difference, if any, between the actual purchase price and the Maximum Restricted Sales Price (“Excess Proceeds”). Following payment of any Excess Proceeds to City, the Ownership Middle Income Housing Unit in question shall be released from any Sale Price Restriction and City’s right of first refusal to purchase shall terminate, and the unit shall no longer be referred to as an “Ownership Middle Income Housing Unit.”
(iv) All Ownership Middle Income Housing Units shall include interior finishes and features that are durable, of good quality, and consistent with contemporary standards for new housing.
(v) The Ownership Middle Income Units must contain air
conditioning, dishwashers, refrigerators, garbage disposals, cooking facilities, and either in-unit laundry facilities or access to common area laundry facilities, in the Developer’s sole discretion. (vi) Applicants must be income certified as a Middle Income Household to qualify to purchase an Ownership Middle Income Housing Unit and must provide information as may reasonably be required by City in order to verify income levels and eligibility status.
(vii) The owner of each Ownership Middle Income Housing Unit shall meet any requirements reasonably imposed by City in order to ensure that such unit is occupied as the owner’s principal residence.
(viii) In order to ensure that there is an adequate supply of affordable housing within the City of Healdsburg for residents and employees of businesses within the City, to the extent permitted by law, within the pool of eligible applicants, first priority will be given to qualified households with members who live or work in the city limits of Healdsburg. If there are no qualified Middle Income Households who meet these criteria, second priority shall be granted to qualified households with members who live or work in unincorporated Healdsburg, but within the 95448 zip code. If there are no qualified Middle Income Households who meet these criteria, third priority shall be granted to qualified households with members who live or work in Windsor, Geyserville, or Cloverdale or within the unincorporated Windsor, Geyserville and Cloverdale boundaries, but within the 95492, 95441, or 95425 zip codes, respectively. If there are no qualified Middle Income Households who meet these criteria, fourth priority shall be granted to qualified households with members who have previously lived in Healdsburg (within City limits and within the unincorporated 95448 zip code), as determined by prior enrollment in Healdsburg public or private schools, or a previously active utility account with the City of Healdsburg. In the event there are fewer applicants for the Ownership Middle Income Housing Units that meet the criteria specified in this paragraph than there are available Ownership By Design Housing Units, such units shall be made available to members of the general public who are qualified Middle Income Households.
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(ix) The above requirements and other terms applicable to the Ownership Middle Income Housing Units, City’s right of first refusal, and the payment of any Excess Proceeds to City, shall be memorialized in an amended and restated regulatory agreement between the Parties, in the form attached as Exhibit C to the Fourth Amendment (the “Amended And Restated Middle Income Housing Regulatory Agreement”), to be recorded concurrently or as soon thereafter as possible with the filing of the Final Map applicable to SBDV-0005-2024 for Lot 3 as against the Middle Income Parcels. The Amended And Restated Middle Income Housing Regulatory Agreement shall meet any applicable requirements of the GMO Policies and Procedures as may be amended, or new GMO policies and procedures that may be adopted, by the City Council specifically for Ownership Middle Income Housing Units that do not otherwise conflict with the terms of this Agreement. shall be included in a separate Ownership Middle Income Housing Agreement, to be executed and recorded prior to the recordation of the Final Subdivision Map.
(d) A minimum of eight (8) Affordable-by-Design Housing Units will be made available for sale to Middle Income Households at the Maximum Restricted Sales Price.
The Affordable-by-Design Housing Units will not exceed 850 square feet, and shall be subject to the following restrictions:
(i) A GMO Allocation shall be a prerequisite to construction of an Affordable-by-Design Housing Unit if required by the Growth Management Ordinance and the GMO Policies and Procedures.
(ii) Prior to commencement of construction of any building in which Affordable-By-Design Housing Units are proposed to be located, Developer shall record a covenant for each such Affordable-By-Design Housing Unit that includes a Sales Price Restriction, except as otherwise contemplated pursuant to subdivision (iii) below. (iii) For the initial sale of any such Affordable-By-Design Middle Income Housing Unit and, except as provided below, all future sales of those units, if an escrow for a Middle Income Household to purchase said unit at or below the Maximum Restricted Sales Price is not opened within ninety (90) days after the unit is first made available for sale, City or its designee shall have a right of first refusal to purchase any such unit(s) at the Maximum Restricted Sales Price, adjusted for assumed household size based on the number of bedrooms in the unit. If City or its designee declines to exercise its right to purchase any such unit within an additional ninety (90) days from the time City is notified that it has the right to purchase that unit, any such unit(s) may be sold at an unrestricted market price without any continuing Sale Price Restriction. However, at close of escrow for such unit, the seller shall pay to City the Excess Proceeds, if any. Following payment of any Excess Proceeds to City, the Affordable-ByDesign Housing Unit in question shall be released from any Sale Price Restriction and City’s right of first refusal to purchase shall terminate, and the unit shall no longer be referred to as an “Affordable-By-Design Housing Unit.”
(iv) All Affordable-by-Design Housing Units shall include interior finishes and features that are durable, of good quality, and consistent with contemporary standards for new housing. The Affordable-by-Design Housing Units shall incorporate water management and sustainability best practices into the units' interiors and appliances.
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(v) The Affordable-by-Design Housing Units must contain air conditioning, dishwashers, refrigerators, garbage disposals, cooking facilities, and either in-unit laundry facilities or access to common area laundry facilities, in the Developer’s sole discretion. (vi) Applicants must be income certified as a Middle Income Household to qualify to purchase an Affordable-by-Design Housing Unit and must provide information as may reasonably be required by City in order to verify income levels and eligibility status.
(vii) The owner of each Affordable-by-Design Housing Unit shall meet any requirements reasonably imposed by City in order to ensure that such unit is occupied as the owner’s principal residence.
(viii) In order to ensure that there is an adequate supply of affordable housing within the City of Healdsburg for residents and employees of businesses within the City, to the extent permitted by law, within the pool of eligible applicants, first priority will be given to qualified households with members who live or work in the city limits of Healdsburg. If there are no qualified Middle Income Households who meet these criteria, second priority shall be granted to qualified households with members who live or work in unincorporated north Sonoma County, Windsor, Geyserville, or Cloverdale. In the event there are fewer applicants for the Affordable-by-Design Housing Units that meet the criteria specified in this paragraph than there are available Affordable-by-Design Housing Units, such units shall be made available to members of the general public who are qualified Middle Income Households. (ix) The above requirements and other terms applicable to the Affordable-by-Design Housing Units, City’s right of first refusal, and the payment of any Excess Proceeds to City, shall be included in a separate Affordable-by-Design Housing Agreement, to be executed and recorded prior to the recordation of the Final Subdivision Map. (x) Developer will construct and make available at least two (2) Affordable-by-Design Housing Units in each GMO Cycle beginning with the GMO Cycle that starts on January 1, 2022. Developer, in its sole discretion, may elect to provide more than two (2) Affordable-by-Design Housing Units in a given GMO Cycle.
9. Connectivity Funds.
Section 5.4 (b) of the Development Agreement is hereby amended and restated in its entirety as follows, with added language underlined and deleted language noted by strikethrough:
(b) The Developer shall contribute “Connectivity Funds” in a total amount of One Million Three Hundred Thousand Dollars ($1,300,000) to be used to improve access to and from the future SMART rail station/transit center to the surrounding areas, improving bikeways, and creating an inviting and attractive network of pedestrian routes that includes sidewalks along existing and new streets, off-street pathways and pedestrian connections, particularly (but not necessarily exclusively) within the CHAP Area. Projects that may be funded by the Connectivity Funds include the Foss Creek Trail Connection at Front Street to Memorial Bridge/Railroad Park Renovation, subject to prior to CEQA review of any such proposal. Connectivity Funds shall be payable as follows:
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(i) One Four Hundred Fifty Thousand Dollars ($15400,000) to be paid within ten (10) calendar days after the earlier of (A) the selection of a design consultant for the first improvement project to be funded with Connectivity Funds or (B) the issuance of the first building permit for the hotel.
(ii) Two Hundred Fifty Thousand Dollars ($250,000) to be paid within thirty (30) calendar days after City’s written demand to Developer for said amount. (iii) The balance of Nine Hundred Thousand Dollars ($900,000) to be paid within ten (10) calendar days after City delivers written notice to Developer that it is going out to bid for the first improvement project to be funded with Connectivity Funds.
10. Section 5.8 PILOT Agreement is hereby added to the Development Agreement to read as follows, with added language underlined:
5.8 PILOT Agreement. As reflected in CUP 2017-12.04, the Planning Commission determined that the nature and characteristics of the Hotel Investment Suite use, as defined in Exhibit E attached hereto (“Definition of Hotel Investment Suite”) and subject to the conditions outlined therein, is similar to a “visitor lodging” use and thus may be allowed as a conditionally permitted use in the Mixed Use District. As outlined in the Definition of Hotel Investment Suite, in order to ensure a hotel investment suite use functions similarly to a visitor lodging use, Developer shall execute and acknowledge an Agreement for Payment-In-Lieu of Transient Occupancy Tax (“PILOT Agreement”), in the form attached as Attachment 1 to Exhibit E, with the City and cause the PILOT Agreement, which shall run with the land, to be recorded in the official records of the Sonoma County Recorder’s Office against the legal parcel comprising the visitor lodging use within Lot 1 no later than thirty (30) calendar days following the filing of the Final Subdivision Map applicable to SBDV-0003-2024 for Lot 1 and prior to the issuance of any permit for the construction of any improvement on said legal parcel.
11. Section 5.9 Residential Amenity is hereby added to the Development Agreement to read as follows, with added language underlined:
5.9 Residential Amenity. The Residential Amenity located on Lot 5, as authorized pursuant to design review (DR-0004-2024) and conditional use permit (CUP-0004-2024) approved by the Planning Commission on October 8, 2024, pursuant to Resolution No. 2024 - ___ , inclusive of the conditions of approval thereof, shall be for the sole and exclusive use of the occupants of Market Rate Housing and Middle Income Units in the Project, except for the Middle Income Unit located on Lot 7. The Residential Amenity shall not be used by and shall not be available for use by an owner, tenant, lessee, invitee, or transient lodging in a Hotel Investment Suite nor any other owner, tenant, lessee, or invitee of a commercial condominium located in the Project. Further, the Residential Amenity shall not be operated as, and is expressly not approved for operation as, an entertainment and assembly venue, fitness center, recreation facility, club or lodge, whether available to the general public or restricted to members of private clubs, organizations, or associations, or any other such similar use not specifically listed in the City’s zoning ordinance as a permitted or conditionally permitted use in the zoning district applicable to the Project which could be deemed a permitted or
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conditionally permitted use in said zoning district applicable to the Project in accordance with Article II, Chapter 20.28,Title 20 of the Healdsburg Municipal Code.
12. Section 10.9 Notices is hereby amended to change the Developer address to read as follows:
Developer: Replay Healdsburg LLC
105B Plaza Street
Healdsburg, CA 95448
Attention: Mike McCone
With a copy to: Replay Healdsburg LLC
c/o CEO of Replay Destinations
745 Thurlow Street, Suite 2150
Vancouver BC V6E 0C5
Goldfarb & Lipman LLP
Attn: Gabrielle Janssens, Esq.
1300 Clay Street, Eleventh Floor
Oakland, CA 94612
13. Interpretation. This Fourth Amendment shall be interpreted to give each of the provisions their plain and fair meaning. The Recitals set forth above are incorporated into this Fourth Amendment. The section headings used herein are solely for convenience and shall not be used to interpret this Fourth Amendment. The Parties acknowledge that this Fourth Amendment is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since all have participated in the negotiation and drafting of this Fourth Amendment, this Fourth Amendment shall not be construed as if prepared by one of the Parties, but rather according to its plain and fair meaning as a whole, as if all Parties had prepared it.
14. Integration. This Fourth Amendment contains the entire agreement between the Parties with respect to its subject matter and supersedes whatever oral or written understanding they may have had prior to the execution of this Fourth Amendment. This Fourth Amendment shall not be amended or modified except by a written agreement executed by each of the Parties.
15. Inconsistencies. In the event of any conflict or inconsistency between the provisions of this Fourth Amendment, the Development Agreement, the CUP Conditions, or the Map Conditions, the provisions of this Fourth Amendment shall control.
16. Severability. If any term, provision, condition or covenant of this Fourth Amendment or its application to any Party or circumstances shall be held by a court of competent jurisdiction, to any extent, invalid or unenforceable, the remainder of this Fourth Amendment, 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 unless the rights and obligations of the Parties have been materially altered or abridged thereby.
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17. Status of Agreement. Except as modified by this Fourth Amendment, the terms and provisions of the Development Agreement, the CUP Conditions, and the Map Conditions shall remain in full force and effect.
18. Counterparts. This Fourth Amendment may be signed in counterparts by the Parties hereto and shall be the binding agreement of the Parties upon execution by each of them of one or more copies hereof.
19. Recording of Memorandum. Concurrent with the execution of this Fourth Amendment, the Parties shall execute, acknowledge and record a Memorandum of Agreement, in the form attached hereto as Exhibit B, in the official records of Sonoma County.
20. Authority. Each of the persons signing this Fourth Amendment hereby represents and warrants that he or she is fully authorized to sign this Fourth Amendment on behalf of the Party for which he or she is signing.
IN WITNESS WHEREOF, the Parties hereto have affixed their signatures to this Fourth Amendment as of the date and year indicated below and effective as of the date and year first above written.
DEVELOPER:
REPLAY HEALDSBURG, LLC,
a Delaware limited liability company
By: _____________________________
Mike McCone, Vice President
CITY:
CITY OF HEALDSBURG,
a California municipal corporation
By: ____________________________
Jeff Kay, City Manager
ATTEST:
By: ____________________________
Raina Allan, City Clerk
APPROVED AS TO FORM:
By: ____________________________
Samantha Zutler, City Attorney
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The real property situated in the City of Healdsburg, County of Sonoma, State of California, described as follows:
Lots 1, 2, 3, 4, 5, and 6 as shown on that certain final map entitled "Final Map of the Mill District," filed December 28, 2020 in Book 817 of Maps at Pages 32-47, Sonoma County Records.
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EXHIBIT B
MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: Samantha Zutler, Esq.
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §27383 AND
BUILDING HOMES & JOBS TRUST FUND
FEE PER GOVERNMENT CODE
§27388.1(a)(2)(D)
Space above this line for Recorder's use.
MEMORANDUM OF FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT This Memorandum of Fourth Amendment to Development Agreement (“Memorandum of Agreement”), dated for reference purposes as of _________, 2024, is executed by and between the CITY OF HEALDSBURG, a California municipal corporation ("City"), and REPLAY HEALDSBURG, LLC, a Delaware limited liability company ("Developer").
WHEREAS, City and Developer have entered into a Development Agreement (the "Development Agreement"), the effective date of which is May 1, 2019, which was recorded in the Official Records of Sonoma County on July 5, 2019, as Instrument No. 2019046003. The Development Agreement pertains to the development of certain property (the "Property") located in Healdsburg, California, as more particularly described in Attachment A, attached hereto; and
WHEREAS, City and Developer have entered into a First Administrative Agreement Amendment to Development Agreement and First Administrative Project Amendment dated March 31, 2020, as evidenced by that certain Memorandum of First Administrative Agreement Amendment to Development Agreement and First Administrative Project Amendment, dated March 31, 2020, which was recorded in the Official Records of Sonoma County on June 1, 2020, as Instrument No. 2020041463; and
WHEREAS, City and Developer have entered into a Second Administrative Agreement Amendment to Development Agreement dated December 30, 2020, as evidenced by the Memorandum of Second Administrative Agreement Amendment to Development Agreement, dated December 30, 2020 and recorded in the Official Records of Sonoma County on December 31, 2020 as Instrument No. 2020126157; and
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WHEREAS, City and Developer have entered into a Third Administrative Project Amendment to Development Agreement dated May 17, 2022, as evidenced by the Memorandum of Third Administrative Project Amendment to Development Agreement, dated May 17, 2022 and recorded in the Official Records of Sonoma County on May 23, 2022 as Instrument No. 2022036175; and
WHEREAS, City and Developer have entered into a Fourth Amendment to Development Agreement (the "Fourth Amendment") effective as of November 20, 2024.
1. This Memorandum of Agreement is solely to provide record notice of the Fourth Amendment and in no way modifies the terms, conditions, provisions, and covenants thereof. In the event of any inconsistency between this Memorandum of Agreement and the Fourth Amendment, the Fourth Amendment shall prevail. The foregoing recitals are incorporated by reference as though fully set forth herein. Each exhibit referred to herein is attached hereto and incorporated by reference.
2. The parties hereto agree that this Memorandum of Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement, binding all of the parties hereto, notwithstanding all of the parties are not signatory to the original or the same counterparts.
IN WITNESS WHEREOF, the Parties hereto have affixed their signatures to this Memorandum of Agreement as of the date and year indicated below and effective as of the date and year first above written.
DEVELOPER:
REPLAY HEALDSBURG, LLC,
a Delaware limited liability company
By: _____________________________
Mike McCone, Vice President
CITY:
CITY OF HEALDSBURG,
a California municipal corporation
By: ____________________________
Jeff Kay, City Manager
ATTEST:
By: ____________________________
Raina Allan, City Clerk
APPROVED AS TO FORM:
By: ____________________________
Samantha Zutler, City Attorney
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ACKNOWLEDGMENT
State of California )
) ss
County of Sonoma )
On ,20__, before me, ___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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ACKNOWLEDGMENT
State of California )
) ss
County of Sonoma )
On ,20__, before me, ___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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ATTACHMENT A
LEGAL DESCRIPTION OF THE PROPERTY
The real property situated in the City of Healdsburg, County of Sonoma, State of California, described as follows:
Lots 1, 2, 3, 4, 5, and 6 as shown on that certain final map entitled "Final Map of the Mill District," filed December 28, 2020 in Book 817 of Maps at Pages 32-47, Sonoma County Records.
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EXHIBIT C
AMENDED AND RESTATED MIDDLE INCOME HOUSING REGULATORY
AGREEMENT
[to be attached]
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EXHIBIT D
AMENDED AND RESTATED PUBLICLY ACCESSIBLE PRIVATE OPEN SPACE
EASEMENT AGREEMENT
[to be attached]
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-6597-3154 v9E-1
EXHIBIT E
DEFINITION OF HOTEL INVESTMENT SUITE
[to be attached]
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ATTACHMENT 1 TO EXHIBIT E
PILOT AGREEMENT
[to be attached]
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §27383 AND
BUILDING HOMES AND JOBS TRUST
FUND FEE PER GOVERNMENT CODE
§27388.1(a)(2)(D)
Space above this line for Recorder’s use.
AMENDED AND RESTATED MIDDLE INCOME HOUSING REGULATORY
AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS
by and between
THE CITY OF HEALDSBURG
and
REPLAY HEALDSBURG, LLC
(Mill District Project)
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2 AMENDED AND RESTATED MIDDLE INCOME HOUSING REGULATORY
AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS
This Amended and Restated Middle Income Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Amended Agreement”) is entered into as of ________________, 202__ (the "Effective Date"), by and between the City of Healdsburg, a California municipal corporation (“City”) and Replay Healdsburg, LLC, a Delaware limited liability company (“Developer”). City and Developer are individually referred to herein as a “Party” and collectively as the “Parties.”
R E C I T A L S
A. In 2017, Developer submitted an application to City for the development of a mixed-use project (the “Project”) on approximately 9.59 acres of real property located at 146 and 164 Healdsburg Avenue in the City of Healdsburg, California (the “Development Site”), the final iteration of which included construction of (i) a 53-room hotel, (ii) approximately 15,000 square feet of commercial space, (iii) public improvements and open space, and (iv) up to 208 residential units, broken down by affordability level as follows (a) up to 138 multi-family condominium units, to be sold to persons at “market rate” prices (the “Market Rate Units”);
(b) Thirty (30) multi-family residential units, to be sold or leased to persons whose household income is between 120% and 160% of Area Median Income (the “Middle Income Units”) as follows:
(1) A minimum of fourteen (14), and up to a maximum of twenty-two (22), of such Middle Income Units shall be made available as rental units affordable to Middle Income Households (the “Rental Middle Income Housing Units,” or "Rental Units").
(2) Developer, in its sole discretion, may make up to a maximum of eight (8) of the twenty-two (22) Rental Middle Income Housing Units available for sale, in lieu of rental, to Middle Income Households at a Restricted Sales Price (the “Ownership Middle Income Housing Units”).
(3) Developer shall construct no less than eight (8) deed-restricted units available for sale to Middle Income Households at a Restricted Sales Price that generally equates to a market price as a result of designing the unit smaller, more efficiently and with fewer amenities than afforded to Market Rate Units (the “Affordableby-Design Housing Units”); and (c) 40 multi-family residential units, to be leased to households with very low and low incomes (the “Affordable Units”).
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3 B. On January 8, 2019, the City’s Planning Commission approved Master Conditional Use Permit CUP 2017-12, Historic Demolition Permit MISC 2017-01, and Heritage Tree Removal Permit HT 2017-02 for the Project and recommending that the City Council approve a tentative map and a development agreement for the Project. On March 11, 2019, the City Council approved Tentative Map TM 2017-01 for the Project, and on April 1, 2019, adopted Ordinance No. 1184, approving a Development Agreement for the Project (referred to collectively with the Planning Commission’s January 8, 2019, approvals as the “Project Approvals”).
C. On December 28, 2020, the Final Map of the Mill District was filed and recorded in the Official Records of Sonoma County, California (“Official Records”), in Book 817 of Maps at Pages 32-47 (the “Final Map”), thereby effecting the subdivision of the Development Site into seven (7) lots along with dedication of public rights of way and easements for roads, sidewalks and utilities.
D. One of the Middle Income Units described in subsection (b) of Recital A above is a Rental Middle Income Housing Unit affordable to a Middle Income Household to be used as a manager's unit, which is restricted in that certain Affordable Housing Regulatory Agreement And Declaration Of Restrictive Covenants between Developer and City dated December 30, 2020, and recorded in the Official Records on December 31, 2020, at Instrument No. 2020126155, applicable to the Affordable Units developed on Lot 7 of the Final Map.
E. Accordingly, on December 30, 2020, Developer and City entered into that certain Middle Income Housing Regulatory Agreement And Declaration Of Restrictive Covenants, and recorded in the Official Records on December 31, 2020, at Instrument No. 2020126158, applicable to the remaining twenty-nine (29) of the thirty (30) Middle Income Housing Units (the “Middle Income Housing Agreement”).
F. The Project was expected to be constructed in phases over a period of several years, with the Affordable Units constructed on Lot 7 of the Final Map, while the Market Rate Units and the Middle Income Units would be constructed in various buildings throughout the remainder of the Development Site, more particularly described in the legal description attached hereto as Exhibit A and incorporated herein (the “Development Site”).
G. In 2024, Developer submitted an application to City to amend the Project Approvals and, following public hearings noticed and conducted as required by law, the City took the following actions (collectively, the “Amended Project Approvals”):
1. On August 13, 2024, the Planning Commission approved an amendment to the Master Conditional Use Permit (CUP 2017-12.04), and recommended that the City Council approve tentative maps for the further subdivision of Lot 2 (SBDV-0004-2024) and Lot 3 (SBDV-0005-2024) of the Final Map, subject to City Council approval of a Fourth Amendment to the Development Agreement (“Fourth Amendment to Development Agreement”) for the Project, and recommended City Council approval of the Fourth Amendment to Development Agreement and in connection therewith clarify whether the Middle Income Units have access to the residential amenity (“Residential Amenity”) to be developed on Lot 5 of the Final Map, and if the cost thereof is included
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4 within the Affordable Rent for a Rental Middle Income Housing Unit and the Affordable Housing Cost for an Ownership Middle Income Housing Unit;
2. On August 27, 2024, the Planning Commission recommended that the City Council approve tentative maps for the further subdivision of Lot 1 (SBDV-0003-2024) of the Final Map, approved design review (DR-0005-2024), variance (VAR-0001-2024), and conditional use permit (CUP-0005-2024) applications for Lot 1 of the Final Map, and approved tentative map (SBDV-0002-2024) application for Lot 5 of the Final Map, subject to City Council approval of the Fourth Amendment to the Development Agreement, and continued further consideration of design review (DR-0004-2024) and conditional use permit (CUP-0004-2024) applications for the Residential Amenity on Lot 5 of the Final Map to its regular meeting of October 7, 2024;
3. On September 16, 2024, the City Council approved tentative maps for Lot 1 (SBDV-0003-2024), Lot 2 (SBDV-0004-2024), and Lot 3 (SBDV-0005-2024) of the Final Map, and the introduction of an ordinance to approve the Fourth Amendment to the Development Agreement for the Project;
4. On October 8, 2024, the Planning Commission adopted Resolution No. 2024- ____ approving design review (DR-0004-2024) and conditional use permit (CUP-0004- 2024) applications for the Residential Amenity on Lot 5 in a manner consistent with the Amended and Restated Permitted Use Table, subject to City Council approval of the Fourth Amendment to the Development Agreement.
5. On October ___, 2024, the City Council adopted Ordinance No. ______ approving the Fourth Amendment to the Development Agreement for the Project, and in connection therewith clarified that Middle Income Units, except for the Middle Income Unit located on Lot 7, shall have access to the Residential Amenity; that the Residential Amenity shall be for the exclusive use of Market Rate Housing and Middle Income Units in the Project, except for the Middle Income Unit located on Lot 7; that any tax, fee, charge or assessment imposed for access to and use of the Residential Amenity shall be included within the amount calculated as Affordable Housing Cost, applicable to an Ownership Middle Income Housing Unit, and Affordable Rent, applicable to a Rental Middle Income Housing Unit; and that the twenty-nine (29) Middle Income Units to be developed and constructed on Lot 3 can be either an Ownership Middle Income Housing Unit or Rental Middle Income Housing Unit; and
6. On _________, 202__, the City Council adopted Resolution No. 202__-___ approving the final subdivision map applicable to SBDV-0005-2024 of Lot 3 of the Final Map, thereby creating up to fifty-one (51) condominium parcels on Lot 3 (21 parcels for Market Rate Units; up to twenty-nine (29) parcels for Rental Middle Income Housing Units or Ownership Middle Income Housing Units (collectively, the “Middle Income Parcels”); and 1 parcel for Lot 3 common area).
H. As of the date of the Amended Project Approvals, Developer has caused the construction of forty (40) Affordable Housing Units and one (1) of the thirty (30) Middle Income Units to be completed and approved for occupancy as a Rental Middle Income Housing Unit on
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5 Lot 7 of the Final Map; forty-three (43) Market Rate Units have been completed and approved for occupancy on Lot 4 of the Final Map; and twelve (12) Market Rate Units have been approved for development on Lot 6 of the Final Map.
I. As a material consideration for the long-term assurances, vested rights, and other City obligations provided by the Fourth Amendment to Development Agreement and as a material inducement to City to enter into the Fourth Amendment to Development Agreement, Developer offered and agreed to provide certain public benefits to the City as specified in the Fourth Amendment to Development Agreement. Developer is providing the Middle Income Units to comply with Section 5.2 of the Fourth Amendment to Development Agreement.
Pursuant to the Fourth Amendment to the Development Agreement, Developer is no longer obligated to provide the eight (8) Affordable By Design Housing Units identified in Recital A(b)(3), above.
J. To ensure the continued affordability of the Middle Income Units for the Term, this Amended Agreement shall be executed and recorded against the Middle Income Parcels created by the final subdivision map applicable to SBDV-0005-2024 of Lot 3 of the Final Map, more particularly described in the legal description attached hereto as Exhibit B and incorporated herein (the “Property”), prior to the recordation of any parcel map or final subdivision map or issuance of building permits for Lot 1, Lot 2, or Lot 6, whichever occurs first.
K. Further, concurrent with the recording of this Amended Agreement in the Official Records, the City and Developer hereby acknowledge and agree that the Middle Income Housing Agreement shall be released as a lien against the Development Site, more particularly described in the legal description attached hereto as Exhibit A, and the Parties shall execute and record such other documents as may reasonably be required to effectuate the release of the lien of the Middle Income Housing Agreement against the Development Site in the Official Records.
L. The purpose of this Amended Agreement is to restrict the occupancy and rents and/or sales price(s) of twenty-nine (29) Middle Income Unitsfor the benefit of Middle Income Households. The Parties intend the covenants set forth in this Amended Agreement to run with the land and to be binding upon Developer and Developer’s successors and assigns for the full Term of this Amended Agreement.
A G R E E M E N T
NOW THEREFORE, in consideration of the foregoing, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.
1. Definitions. The following terms have the meanings set forth in this Section wherever used in this Amended Agreement or the attached exhibits:
“Adjusted for Family Size Appropriate for the Unit” means, in the absence of pertinent federal statutes applicable to the Project, adjusted for a household of one person in the case of a studio unit, two persons in the case of a one-bedroom unit, three persons in the case of a
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6 two-bedroom unit, four persons in the case of a three-bedroom unit, and one additional person for every additional bedroom thereafter.
“Affordable Rent” means a monthly rent that does not exceed one-twelfth of thirty-three percent (33%) of one hundred sixty percent (160%) of AMI, Adjusted for Family Size Appropriate for the Unit, which encompasses: (i) a reasonable utility allowance for utilities paid by the Tenant as established by the Sonoma County Community Development Commission, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but excluding telephone service, Internet, or cable or subscription TCTV; (ii) other fees and charges required to be paid by tenants of the Rental Middle Income Housing Units on a non-optional basis, other than security deposit; and (iii) any tax, assessment, insurance premium, homeowners’ association dues, or any cost, fee or expense that the owner of the Rental Middle Income Unit is required to pay as an incidence of ownership. “Amended Project Approvals” is defined in Recital G.
“Applicable Laws” means all applicable laws, ordinances, statutes, codes, orders, decrees, rules, regulations, official policies, standards and specifications (including any ordinance, resolution, rule, regulation, standard, official policy, condition, or other measure) of the United States, the State of California, the County of Sonoma, City of Healdsburg, or any other political subdivision in which the Project is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, Developer, or the Project. “Area Median Income” or “AMI” means the median income for Sonoma County, California, adjusted for the actual number of persons in the applicable household, as determined by HUD pursuant to Section 8 of the United States Housing Act of 1937 and as published from time to time by HCD in Section 6932 of Title 25 of the California Code of Regulations or successor provision published pursuant to California Health and Safety Code Section 50093(c).
“City” means the City of Healdsburg, a California municipal corporation. “City Documents” means the Fourth Amendment to Development Agreement and this Amended Agreement.
“City’s Authorized Representative” means the City Manager of the City of Healdsburg, or his or her designee.
“Claims” is defined in Section 17.
"Developer” means Replay Healdsburg LLC, a Delaware limited liability company or its transferee, successor, or assignee.
“Development Site” is defined in Recital A more particularly described in the legal description attached hereto as Exhibit A.
"Effective Date" is defined in the opening paragraph of this Amended Agreement.
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7 "Excess Proceeds" is defined in Section 8.e.
“Fourth Amendment to Development Agreement” is defined in Recital G.4. “Gross Income” means the combined, gross, pre-tax income of all adult occupants of the applicant household, as calculated under California Code of Regulations, Title 25, Section 6914.
“HCD” means the State of California Department of Housing and Community Development.
“HUD” means the U.S. Department of Housing and Urban Development. “Indemnitees” is defined in Section 17.
“Marketing Plan” or “Plan” is defined in Section 13(f). “Market Rate Unit” means a unit that is not restricted for rent or sale to a particular affordability level.
“Middle Income Household” means a household whose Gross Income upon initial occupancy is neither less than one hundred twenty percent (120%) of AMI nor more than one hundred sixty percent (160%) of AMI, as adjusted for the actual number of persons in the applicable household.
“Middle Income Housing Cost” means a monthly obligation to pay mortgage payments (principal and interest), property taxes, property insurance, mortgage insurance, utilities, and homeowners’ association dues (if applicable) in an aggregate amount not greater than onetwelfth of thirty-three percent (33%) of one hundred sixty percent (160%) of Area Median Income, Adjusted for Family Size Appropriate for the Unit. “Middle Income Parcels” is defined in Recital G.5.
“Middle Income Unit” means a unit that is restricted for rent or sale to Middle Income Households.
"Ownership Middle Income Housing Unit" is defined in Recital A(b)(2). “Party” or “Parties” respectively means City and Developer individually or collectively. “Performance Deed of Trust” means the deed of trust to be executed by a homebuyer of each Ownership Middle Income Housing Unit that is substantially in the form attached as an exhibit to the Resale Restriction Agreement and recorded in the Official Records at the closing for the sale of each Ownership Middle Income Housing Unit. “Project” is defined in Recital A.
"Project Approvals" is defined in Recital B.
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8 “Property” is defined in Recital J and more particularly described in the legal description attached hereto as Exhibit B.
“Regulations” means Title 25 of the California Code of Regulations. "Rental Middle Income Housing Unit" or “Rental Unit” is defined in Recital A(b)(1). “Resale Restriction Agreement” is defined in Section 8.d. “Residential Amenity” is defined in Recital G.1.
“Restricted Sales Price” means the maximum sales price for a Middle Income Unit as determined by the City pursuant to Section 8.b below that will result in a Middle Income Housing Cost for a homebuyer.
"Senior Interest" is defined in Section 14.
"Senior Lender" is defined in Section 14.
“Tenant” shall mean a Middle Income Household occupying a Rental Middle Income Housing Unit.
“Term” means the term of this Amended Agreement, commencing upon the Effective Date and ending on the Termination Date.
“Termination Date” is defined in Section 11(a).
2. Use and Affordability Restrictions. Developer hereby covenants and agrees, for itself and its successors and assigns, that the Middle Income Units shall be used solely in compliance with the Amended Project Approvals, including the Fourth Amendment to Development Agreement, and the requirements set forth herein. Further, Developer hereby covenants and agrees, for itself and its successors and assigns, that all Middle Income Units constructed on Lot 3 shall have access to the Residential Amenity and any tax, fee, charge or assessment imposed for access to and use of the Residential Amenity shall be included within the amount calculated as Middle Income Housing Cost, applicable to an Ownership Middle Income Housing Unit, and Affordable Rent, applicable to a Rental Middle Income Housing Unit. Developer represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Amended Agreement, and Developer covenants that it shall not enter into any agreement that is inconsistent with such restrictions.
3. Timing for Construction of Middle Income Units. The timing for the construction and sale and/or leasing of the Middle Income Units shall be as follows:
a. Design review for all twenty-nine (29) Middle Income Units on the Property shall be prepared and approved by the City and the building permit for construction of all twenty-nine (29) Middle Income Units on the Property must be issued and all required fees must have been paid by Developer before or concurrently with the issuance of a building permit for the development and construction of any portion of the sixty-two (62) Market Rate Units on Lot 2 of the Final Map.
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9 b. The construction of all twenty-nine (29) Middle Income Units on the Property must be completed and permitted for use and occupancy and available for sale or lease to Middle Income Households before or concurrently with the issuance of a certificate of occupancy for the first Market Rate Unit on Lot 2 of the Final Map.
4. Unit Type Mix for Middle Income Units.
a. A minimum of eight (8), up to a maximum of twenty-nine (29) Middle Income Units shall be Ownership Middle Income Housing Units, and any Middle Income Unit not designated as an Ownership Middle Income Housing Unit shall be a Rental Middle Income Housing Unit.
b. The application for design review for each structure on the Property that includes Middle Income Units shall stipulate the number and location of Middle Income Units that will be included as part of such structure and shall state whether such Middle Income Housing units will be Rental Middle Income Housing Units, or Ownership Middle Income Housing Units.
5. Unit Size Mix for Middle Income Units.
a. The Rental Middle Income Housing Units and Ownership Middle Income Housing Units shall range in size from studios to three-bedroom units, with the final unit mix to be determined based on a market needs assessment conducted by Developer, and reviewed and approved by City in its reasonable discretion, prior to submittal of a design review application for the building that includes such Middle Income Units. Such market needs assessment shall be subject to review by the Planning Commission as part of the major design review application for the applicable phase.
6. Interior Finishes and Parking. The Middle Income Units may have different interior finishes and features than Market Rate Units in the Project so long as such finishes and features are durable, of good quality, and consistent with contemporary standards for new housing. The Middle Income Units must contain air conditioning, dishwashers, refrigerators, garbage disposals, cooking facilities and either in-unit laundry facilities or access to common area laundry facilities, in the Developer’s sole discretion. The Middle Income Units shall be provided assigned parking spaces as provided in the shared parking plan approved in connection with the Amended Project Approvals. The Middle Income Units need not contain optional upgrades and luxury items, and Developer may install such optional upgrades and luxury items in Market Rate Units in the Project. Prior to issuing a building permit for the Middle Income Units, the City shall have the right to review the Middle Income Unit plans and/or construction drawings for the sole purpose of determining consistency with this Section.
7. Rental Unit Restrictions.
a. Affordability Requirements. For a term of fifty-five (55) years, commencing upon the date upon which each Rental Unit receives a certificate of occupancy, such Rental Unit shall be rented at the Affordable Rent to (or if vacant, available for occupancy by) a Middle Income Household. At the time the City's building
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10 official issues a certificate of occupancy for any structure containing Rental Units within the Project, the Parties shall record a certificate of completion in the form attached as Exhibit C, which shall memorialize the date upon which this Amended Agreement shall be released from the Rental Units within the structure. b. Household Income Increases. If upon recertification of a Tenant's Gross Income pursuant to Subsection (d) below, Developer determines that such Tenant’s Gross Income has increased and exceeds the qualifying income for a Middle Income Household, then upon the expiration of such Tenant’s lease and following one hundred twenty (120) days’ notice, and if so permitted by local and state law, such Tenant shall be required to vacate the unit and Developer shall rent the Rental Unit to a Middle Income Household to restore the affordability mix required by this Amended Agreement. Each Tenant lease for a Rental Unit shall include covenants that the Tenant shall: (i) continue to qualify as a Middle Income Household upon recertification or vacate the unit as set forth in this Subsection; and (ii) provide any information required under this Amended Agreement or reasonably requested by Developer or City to recertify the Tenant's qualification. c. No Condominium Conversion. Developer shall not convert any of the Rental Units to condominium or cooperative tenantship during the Term of this Amended Agreement. This limitation shall not apply to the Ownership Middle Income Housing Units or the Market Rate Units.
d. Developer Certification. Prior to a Tenant's initial occupancy of a Rental Unit and periodically thereafter (but not more often than every three (3) years), Developer or Developer’s authorized agent shall obtain from the Tenant a written certificate containing all the following in such format and with such supporting documentation as City may reasonably require:
(i) The identity of each household member; and
(ii) The total Gross Income;
Developer shall retain such certificates for not less than three (3) years after the final date of occupancy by the Tenant, and upon City’s request, shall provide copies of such certificates to City and make the originals available for City inspection.
e. Rental Unit Occupancy. In the Rental Units, no fewer than one (1) occupant shall be allowed per bedroom, unless a reasonable accommodation is required pursuant to state or federal fair housing laws. A studio shall count as a one-bedroom unit for the purposes of these occupancy requirements. If no Middle Income Households meeting these standards apply within sixty (60) days of a Rental Unit being available, the City shall, upon request by Developer, grant exceptions to the occupancy standards provided Developer has substantially complied with the requirements of the Marketing Plan. If the City fails to respond to Developer's request within ten (10) business days, then the City conclusively shall be deemed
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11 to have consented. Nothing in this subsection shall be construed to authorize conditions of overcrowding or overutilization of bedrooms, or to relieve Developer of Developer's obligation to prevent such conditions.
8. Ownership Middle Income Housing Unit Restrictions.
a. GMO Allocations. For each Ownership Middle Income Housing Unit, a GMO Allocation shall be a prerequisite to construction of such unit if required by the Growth Management Ordinance and the GMO Policies and Procedures. The defined terms used in this Section 8.a shall have the meanings set forth in the Fourth Amendment to Development Agreement.
b. Determination of Restricted Sales Price.
i. Unless released from this Amended Agreement following City’s decision not to exercise its right of first refusal to purchase an Ownership Middle Income Housing Unit under Section 8.e, below, the Ownership Middle Income Housing Unit may be sold only to Middle Income Households (or to the City or its designee pursuant to Section 8.e, below). ii. Except as provided in Section 8.e, below, the sale price of each Ownership Middle Income Housing Unit may not exceed the Restricted Sales Price.
Prior to offering a Middle Income Unit for sale, Developer shall provide not less than ninety (90) one hundred eighty (180) days’ written notice to City of Developer’s intent to offer Ownership Middle Income Housing Units for sale, which notice shall include the proposed maximum Restricted Sales Price at which the Ownership Middle Income Housing Units will be offered for sale for City’s review and approval. The Restricted Sales Price shall be determined by using a ten percent (10%) down payment of the Restricted Sales Price and a Middle Income Housing Cost based on then-current prevailing interest rates for a fixed 30-year mortgage. Following the initial sale of any Ownership Middle Income Housing Unit by Developer, the Restricted Sales Price of all future sales of those units shall be determined in accordance with the terms of the Resale Restriction Agreement.
c. Buyer Selection.
i. Income Verification. Prior to entering into a contractual commitment to sell each Ownership Middle Income Housing Unit, Developer shall provide a certification to City attesting to the prospective buyer’s household income and status as a Middle Income Household. In connection with such certification, prospective purchasers shall be required to provide written certification of household income as reasonably required by the City, including without limitation such documents as income tax returns and W2 statement for the previous two (2) calendar years, and all pay stubs issued to the prospective buyer within the last sixty (60) calendar days.
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12 ii. Owner-Occupancy. Prospective purchasers of Ownership Middle Income Housing Units must sign a written statement acknowledging their agreement that the Ownership Middle Income Housing Unit must be occupied as the purchaser’s principal residence, that the unit may not be rented or leased, except as allowed under the Resale Restriction Agreement.
iii. Credit and Background Checks. Developer shall require each prospective purchaser of an Ownership Middle Income Housing Unit to complete an application and credit and background check. There shall be no obligation to sell an Ownership Middle Income Housing Unit to a prospective buyer whose application and credit check does not demonstrate an ability to purchase the unit.
d. Resale Restriction Agreement. The initial buyer and each subsequent buyer of an Ownership Middle Income Housing Unit shall execute and record a covenant, substantially in the form of Exhibit D, that restricts the future sale of such Ownership Middle Income Housing Unit to Middle Income Households at the Restricted Sales Price for a period of forty-five (45) years unless released sooner pursuant to Section 8.e below (the "Resale Restriction Agreement"). The initial buyer and each subsequent buyer shall also execute and record, as applicable, a note and performance deed of trust, substantially in the form attached to the Resale Restriction Agreement, agreeing to be bound to the Resale Restriction Agreement and to pay any Excess Proceeds when due to the City.
e. City Right of First Refusal. For the initial sale of any Ownership Middle Income Housing Unit and, except as provided below, all future sales of those units, if an escrow for a Ownership Middle Income Housing Unit to purchase such unit at or below the Restricted Sales Price is not opened within one hundred eighty (180) days after the unit is first made available for sale, the City or its designee shall have a right of first refusal to purchase any such unit(s) at the Restricted Sales Price. The City acknowledges on behalf of itself and its designees that owners of Ownership Middle Income Housing Units will be subject to recorded conditions, covenants, and restrictions, and will be required to pay all homeowners association assessments validly assessed. If the City or its designee declines to exercise its right of first refusal to purchase any such unit within an additional one hundred eighty (180) days from the time the City is notified in writing that it has the right to purchase that unit, any such unit(s) may be sold at an unrestricted market price without any continuing sale price restriction. However, at the close of escrow for such unit, the seller shall pay to the City the positive difference, if any, between the actual purchase price and the Restricted Sales Price ("Excess Proceeds").
Following payment of any Excess Proceeds to the City, the Ownership Middle Income Housing Unit in question shall be released from the Resale Restriction Agreement, the City's right of first refusal to purchase shall terminate, and the unit no longer shall be referred to as a Ownership Middle Income Housing Unit.
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13 9. Non-Discrimination; Compliance with Fair Housing Laws. a. Preference for Local Residents.
i. To the extent not inconsistent with state and federal fair housing laws, in order to ensure that there is an adequate supply of affordable housing within the City of Healdsburg for residents and employees of businesses within the City, to the extent permitted by law, within the pool of eligible applicants, first priority for sale or rental of Middle Income Units will be given to qualified households with members who live or work in the city limits of Healdsburg. If there are no qualified Middle Income Households who meet these criteria, second priority shall be granted to qualified households with members who live or work in unincorporated Healdsburg, but within the 95448 zip code. If there are no qualified Middle Income Households who meet these criteria, third priority shall be granted to qualified households with members who live or work in Windsor, Geyserville, or Cloverdale or within the unincorporated Windsor, Geyserville and Cloverdale boundaries, but within the 95492, 95441, or 95425 zip codes, respectively. If there are no qualified Middle Income Households who meet these criteria, fourth priority shall be granted to qualified households with members who have previously lived in Healdsburg (within City limits and within the unincorporated 95448 zip code), as determined by prior enrollment in Healdsburg public or private schools, or a previously active utility account with the City of Healdsburg.
In the event there are fewer applicants for Middle Income Units that meet the criteria specified in this paragraph than there are available Middle Income Units, such units shall be made available to members of the general public who are qualified Middle Income Households.
b. Fair Housing. Developer shall comply with state and federal fair housing laws in the marketing and rental or sale of the Middle Income Units, as applicable. c. Non-Discrimination. Developer shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Middle Income Units on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Developer covenants for itself and all persons claiming under or through it, and this Amended Agreement is made and accepted upon and subject to the condition 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 Middle Income Units, nor shall Developer or any person claiming under or through Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,
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14 number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Middle Income Units.
10. Reporting Requirements; Access to Information; Inspections. a. Maintenance of Records.
i. Developer shall maintain leases and other records relating to the leasing of Rental Middle Income Housing Units, and, as stated in Section 7.d, income certifications, for a period of not less than three (3) years after the final date of occupancy by the Tenant.
ii. Records related to compliance with this Amended Agreement must be kept accurate and up-to-date. City shall notify Developer of any records it deems insufficient. Developer shall have thirty (30) calendar days from such notice to correct any specified reasonable deficiency in the records, or, if more than thirty (30) days shall be reasonably necessary to correct the deficiency, Developer shall begin to correct the deficiency within thirty (30) days and diligently pursue the correction of the deficiency as soon as reasonably possible.
b. Access to Records. Developer shall provide City and its authorized agents and representatives reasonable access to any books, documents, papers and records associated with the Middle Income Units for the purpose of making audits, examinations, excerpts and transcriptions in connection with monitoring compliance with this Amended Agreement, during normal business hours of Developer and upon not less than three (3) business days’ prior written notice.
11. Term of Amended Agreement.
a. Term of Restrictions. This Amended Agreement shall commence upon the Effective Date and shall remain in effect until the fifty-fifth (55th) anniversary of the date on which the twenty-ninth (29th) Middle Income Unit receives a certificate of occupancy (the “Termination Date”).
b. Effectiveness Succeeds Conveyance of Property and Repayment of Loan. i. Except as otherwise provided in this Subsection 11.b, this Amended Agreement shall remain effective and fully binding on all portions of the Property for the full term hereof, regardless of any sale, assignment, transfer, refinancing, or conveyance of the Middle Income Units or the Project or any part thereof or interest therein.
ii. Upon execution and recordation of a Resale Restriction Agreement for an individual Ownership Middle Income Housing Unit, or sale at a market price and repayment of Excess Proceeds pursuant to Section 8.e, above, such Ownership Middle Income Housing Unit shall be released from this Amended Agreement.
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15 iii. The Middle Income Housing Rental Units shall be released from this Agreement pursuant to Section 7.a, above.
c. Reconveyance. Upon the termination of this Amended Agreement, the Parties agree to execute and record appropriate instruments to release and discharge this Amended Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Amended Agreement upon the expiration of the Term. This Amended Agreement shall be partially released from the Property as specified in Section 11.b, above, and the Parties agree to execute and record appropriate instruments to release and discharge this Amended Agreement as to the portions of the Property so specified.
12. Binding Upon Successors; Covenants to Run with the Land. Developer hereby subjects its interest in the Middle Income Units to the covenants and restrictions set forth in this Amended Agreement. City and Developer hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Developer and City, regardless of any sale, assignment, refinancing, conveyance or transfer of the Middle Income Units, or any part thereof or interest therein, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by City. Any successor-in-interest to Developer, including without limitation any purchaser, transferee or lessee of the Middle Income Units (other than the tenants or purchasers of the individual dwelling units within the Project) shall be subject to all of the duties and obligations imposed hereby for the full-term of this Amended Agreement. Each and every contract, deed, lease or other instrument affecting or conveying the Middle Income Units, the Property, or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, lease or other instrument. If any such contract, deed, lease or other instrument has been executed prior to the date hereof, Developer hereby covenants to obtain and deliver to the City an instrument in recordable form signed by the parties to such contract, deed, lease or other instrument pursuant to which such parties acknowledge and accept this Amended Agreement and agree to be bound hereby.
Developer agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Middle Income Units in favor of the City.
Without limiting the generality of the foregoing, Developer and the City hereby declare their understanding and intent that:
(a) The covenants and restrictions contained in this Amended Agreement shall be construed as covenants running with the land pursuant to California Civil Code section 1468 and not as conditions which might result in forfeiture of title by Developer; (b) The burden of the covenants and restrictions set forth in this Amended Agreement touch and concern the Property in that the Developer’s legal interest in the Property and all improvements thereon are rendered less valuable thereby;
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16 (c) The benefit of the covenants and restrictions set forth in this Amended Agreement touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the Middle Income Housing unit owners and tenants; and (d) All covenants and restrictions contained herein without regard to technical classification or designation shall be binding upon Developer and its successors in interest for the benefit of the City, and such covenants and restrictions shall run in favor of the City for the entire period during which such covenants and restrictions shall be in force and effect, without regard to whether the City is an owner of any land or interest therein to which such covenant and restrictions relate.
13. Management; Maintenance; Taxes, Fees, and Assessments; Casualty. a. Management Responsibilities. Developer shall be responsible for all management functions of the Rental Middle Income Housing Units and the Project. The City shall have no responsibility for construction, rehabilitation, management, repair, maintenance or marketing of the Middle Income Units or the Project. b. Management Entity. City shall have the right to review and approve the qualifications of the management entity proposed by Developer for the Rental Middle Income Housing Units, and shall have the right to review and approve any agreement executed between Developer and the management entity, which approval shall not be unreasonably withheld. The contracting of management services to a management entity shall not relieve Developer of its primary responsibility for proper performance of management duties. Any subsequent management entity shall be subject to City review and approval, which shall not be unreasonably withheld or delayed, provided that said management entity shall have experience with income certification and reporting requirements, and at least five (5) years of experience in the management of similar size rental housing projects. Upon City determination and delivery of written notice to Developer that Developer has failed to operate the Rental Units in accordance with this Amended Agreement, City may, following cure period set forth in Section 16, require Developer to contract with a qualified management agent selected by City, to manage and operate the Rental Middle Income Housing Units, or to make such other arrangements as City deems necessary to ensure performance of the required functions.
c. Repair, Maintenance and Security. Throughout the Term of this Amended Agreement, Developer shall at its own expense, maintain the Rental Middle Income Housing Units and the Project in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all Applicable Laws. Without limiting the foregoing, Developer agrees to maintain the Project and the Rental Middle Income Housing Units (including without limitation, the residential units, common areas, landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance, overcrowding, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to
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17 prevent the same from occurring on the Rental Middle Income Housing Units, the Property, or at the Project. Developer shall prevent and/or rectify any physical deterioration apart from reasonable wear and tear of the Rental Middle Income Housing Units, the Property, and the Project and shall make all repairs, renewals and replacements necessary to keep the Rental Middle Income Housing Units, the Property, the Project, and the improvements located therein in good condition and repair. Developer shall provide adequate security measures for the Rental Middle Income Housing Units, the Property, and the Project, including without limitation, the installation of adequate lighting and deadbolt locks.
d. Additional Requirements. All construction work and professional services for the Rental Middle Income Housing Units and the Project shall be performed by persons or entities licensed or otherwise authorized to perform the applicable work or service in the State of California and shall have a current City of Healdsburg business license if required under local law. To the extent allowed by state and federal laws, Developer shall limit the installation of satellite dish, antenna and other such equipment to screened locations on the Property and Project buildings as approved by City. Developer shall diligently work to resolve complaints related to noise, parking, litter or other neighborhood concerns. e. City’s Right to Perform Maintenance. In the event that Developer breaches any of the covenants contained in Section 13(c), and such default continues for a period of ten (10) days after written notice from the City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from the City (with respect to landscaping, building improvements and general maintenance), or such additional time as is reasonably required to rectify the condition, then the City, in addition to any other remedy it may have under this Amended Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Rental Middle Income Housing Units and the Property to perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas thereon. All reasonable third-party costs expended by City in connection with the foregoing shall be paid by Developer to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the lesser of 8% per annum or the highest rate permitted by Applicable Law. City shall have a lien against the Rental Middle Income Housing Units and the Property for the amount of such unpaid sums and shall have the right to record a Notice of Claim of Lien against the Rental Middle Income Housing Units and the Property.
f. Marketing Plan. Not fewer than sixty (60) days before Developer begins offering Rental Middle Income Housing Units for rent or Ownership Middle Income Housing Units for sale (whichever occurs first), Developer shall submit for City review and approval a plan for marketing the Rental Middle Income Housing Units and the Ownership Middle Income Housing Units (the “Marketing Plan” or “Plan”). The Marketing Plan shall address, (i) plans for compliance with fair housing laws and this Amended Agreement, (ii) Developer’s Tenant selection
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18 criteria, (iii) how Developer plans to certify the eligibility of Middle Income Households, (iv) preparation of clear and accurate marketing information regarding the Rental Middle Income Housing Units (preferably in English, Spanish and other languages representative of eligible households in the area) to be distributed to eligible households included on any City maintained affordable housing waiting list, and (v) placement of advertisements regarding the availability of the Rental Middle Income Housing Units online or in other media during the applicable marketing period (preferably in English, Spanish and other languages representative of eligible households in the area). The Plan shall include the form of rental agreement that Developer proposes to enter into with respect to the Rental Middle Income Housing Units. Upon receipt of the Plan, the City shall promptly review the Plan and shall approve or disapprove it within thirty (30) days after submission. If City has not responded to the proposed Marketing Plan within thirty (30) days following City’s receipt of such Plan, Developer may simultaneously give a subsequent request to the City Manager, the Planning Director, and the City Attorney, which request shall be labelled prominently:
"Second Request: Deemed Approval Matter." If City fails to respond to the subsequent request within fifteen (15) days following the date when given, then the Marketing Plan shall be deemed approved. If the Plan is not approved, the Developer shall submit a revised Plan within thirty (30) days, which shall be approved or disapproved by the City within fifteen (15) days after submission. If City fails to approve or disapprove the revised Marketing Plan within such fifteen (15) day period, then the Marketing Plan shall be deemed approved. Developer shall abide by the terms of the Marketing Plan in marketing and leasing or selling (as applicable) the Middle Income Units throughout the Term of this Amended Agreement, and shall submit proposed material modifications to City for review and approval as described herein.
g. Fees, Taxes, and Other Levies. Developer shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies applicable to the Middle Income Units, the Property, and the Project, including without limitation possessory interest taxes and homeowners’ association dues, if applicable, imposed by any entity, and shall pay such charges prior to delinquency. However, Developer shall not be required to pay any such charge so long as (a) Developer is contesting such charge in good faith and by appropriate proceedings, (b) Developer maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Developer immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest.
Developer shall have all rights under Applicable Law to appeal the valuation of the Middle Income Units, the Property, and the Project (including but not limited to the Middle Income Units, any improvements, fixtures or appurtenances, and any personal property) for tax purposes, and nothing herein shall be deemed to preclude Developer from applying for any legally available taxation relief as a result of the affordability and public benefit provided by the Middle Income Units. h. Property Damage or Destruction. If any part of the Middle Income Units, the Property, or the Project is damaged or destroyed, Developer shall repair or restore
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19 the same, consistent with the occupancy and rent restriction requirements set forth in this Amended Agreement. Such work shall be commenced as soon as reasonably practicable after the damage or loss occurs and shall be completed within one year thereafter or as soon as reasonably practicable, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible. During such time that lenders providing financing for the construction of the Middle Income Units, the Property, or the Project impose requirements that differ from the requirements of this Section, the requirements of such lenders and investors shall prevail.
14. Recordation; Subordination. This Amended Agreement shall be recorded against the Property in the Official Records of Sonoma County concurrent with or as soon thereafter of the date on which the final map applicable to the tentative map (SBDV-0005-2024) for Lot 3 is filed and recorded in the Official Records. Developer hereby represents, warrants and covenants that with the exception of easements of record, absent the written consent of City, this Amended Agreement shall not be subordinated in priority to any lien (other than those pertaining to taxes or assessments), encumbrance, or other interest in the Middle Income Units, the Property, or the Project. Upon request, the City shall not unreasonably withhold its consent to subordinate this Amended Agreement to the deeds of trust and regulatory agreements required by Developer’s construction and permanent lenders (each a “Senior Interest”) in a form reasonably approved by the City, if the subordination request meets the following conditions:
a. All the proceeds of loans related to the proposed Senior Interest, less any transaction costs, must be used to provide construction and/or permanent financing for the Middle Income Units on the Property.
b. The proposed lender of a Senior Interest (each a “Senior Lender”) must be a state or federally chartered financial institution, or a nonprofit corporation that is not affiliated with Developer or any of Developer’s affiliates, other than as a depositor or lender. The City reserves the right to negotiate priority of interest with public entities.
c. The subordination agreement(s) must be structured to minimize the risk that this Amended Agreement would be extinguished as a result of a foreclosure by the Senior Lender or other holder of the Senior Interest. To satisfy this requirement, the subordination agreement must provide the City with adequate rights to cure any defaults by Developer, including: (i) providing the City or its successor with copies of any notices of default in the same manner as provided to Developer at the same time or promptly thereafter such notice is provided to the Developer; and (ii) providing the City with a cure period of at least thirty (30) days to cure any default.
d. The subordination does not require the consent of the Senior Lender prior to the City exercising remedies available to the City under this Amended Agreement.
15. No Impairment of Lien. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Amended Agreement shall defeat or render invalid or in
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20 any way impair the lien or charge of any mortgage, deed of trust, or other financing or security instrument; provided, however, that any successor in interest to the Middle Income Units, the Property, or the Project shall be bound by such covenants, conditions, restrictions, limitations and provisions, whether such successor’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise.
16. Default and Remedies.
a. Events of Default. An Event of Default shall arise hereunder if Developer fails to perform any obligation under this Amended Agreement and fails to cure such default within thirty (30) days after the City has notified the Developer in writing of the default, or if the default cannot be cured within thirty (30) days, has failed to commence to cure within thirty (30) days and thereafter diligently pursued such cure and completed such cure within a reasonable time.
b. Remedies. Upon the occurrence of an Event of Default and its continuation beyond any applicable cure period, City may proceed with any of the following remedies:
(i) Bring an action for equitable relief seeking the specific performance of the terms and conditions of this Amended Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief;
(ii) For violations of obligations with respect to rents for residential units in Rental Units, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Affordable Rent; and/or (iii). Pursue any other remedy allowed under the City Documents or at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. City may exercise from time to time any rights and remedies available to it under Applicable Law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Amended Agreement. Any failure or delay by City in asserting any of its rights or remedies, including specific performance, as to any Event of Default shall not operate as a waiver of any default or of any such rights or remedies or deprive City 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.
17. Indemnity. To the fullest extent permitted by law, Developer shall indemnify, defend (with counsel approved by the City) and hold the City and its elected and appointed officers, officials, employees, agents, consultants, contractors and representatives (collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing
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21 collectively “Claims”) arising directly or indirectly, in whole or in part, as a result of or in connection with Developer’s construction, management, marketing, evaluation and determination of a household’s Gross Income, leasing, sale, or operation of the Middle Income Units, or any failure to perform any obligation as and when required by this Amended Agreement. Developer’s indemnification obligations under this Section 17 shall not extend to Claims resulting solely from the gross negligence or willful misconduct of Indemnitees or to Claims resulting from the City’s exercise of its right of first refusal to purchase a Middle Income Unit. The provisions of this Section 17 shall survive the expiration or earlier termination of this Amended Agreement.
18. Expenses. Developer agrees to pay an annual monitoring fee for compliance with this Amended Agreement as may be adopted by resolution of the City Council which is in force and effect for a similar class of Middle Income Units.
19. Miscellaneous.
a. Amendments. This Amended Agreement may be amended or modified only by a written instrument signed by both Parties and recorded in the Official Records of Sonoma County.
b. No Waiver. Any waiver by City of any term or provision of this Amended Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Amended Agreement or Applicable Law. No failure or delay by City at any time to require strict performance by Developer of any provision of this Amended Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.
c. Notices. Except for any notice, demand or communication required under Applicable Laws to be given in another matter, all notices, demands and communications to be sent pursuant to this Amended Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Parties in accordance with this Section. All notices demands or communications shall be sent by personal delivery, by reputable overnight delivery service (which provides a delivery receipt), or by certified or registered mail, return receipt requested, postage prepaid. Any notice, demand or communication shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed in the manner herein specified, on the delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either Party may change its address at any time by giving written notice of such change to City or Developer as the case may be, in the manner provided herein, at least ten (10) days prior to the date such change is desired to be effective.
Any notice to be delivered to City shall be addressed to:
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22 City Manager
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
With a copy to: Samantha Zutler, Esq., City Attorney
City of Healdsburg
101 Howard Suite, Suite 400
San Francisco, CA 94123
Any notice to be delivered to Developer shall be addressed to:
Replay Healdsburg, LLC
105B Plaza Street
Healdsburg, CA 95448
Attention: Mike McCone
With a copy to: Replay Healdsburg, LLC
c/o CEO of Replay Destinations
745 Thurlow Street, Suite 2150
Vancouver BC V6E 0C5
Goldfarb & Lipman LLP
Attn: Gabrielle Janssens, Esq.
1300 Clay Street, Eleventh Floor
Oakland, CA 94612
d. Further Assurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Amended Agreement.
e. Parties Not Co-Venturers; Independent Contractor; No Agency Relationship.
Nothing in this Amended Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. The relationship of Developer and City shall not be construed as a joint venture, equity venture, partnership or any other relationship. City neither undertakes nor assumes any responsibility or duty to Developer (except as expressly provided in this Amended Agreement) or to any third-party with respect to the Project. Developer and its employees are not employees of City but rather are, and shall always be considered independent contractors. Furthermore, Developer and its employees shall at no time pretend to be or hold themselves out as employees or agents of City. Except as City may specify in writing, Developer shall not have any authority to act as an agent of City or to bind City to any obligation.
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23 f. Action by City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by City is required or permitted under this Amended Agreement, such action shall be in writing, and such action may be given, made or taken by City’s Authorized Representative or by any person who shall have been designated by City’s Authorized Representative, without further approval by the City Council. The foregoing notwithstanding, the City’s Authorized Representative may, in his or her discretion, defer any such action to the City Council, provided that such deferral shall not toll any period herein within which the City is required to perform any act without Developer’s written consent.
g. No Third-Party Beneficiaries. This Amended Agreement is not intended to be for the benefit of any person other than the Parties and their permitted successors and assigns.
h. Non-Liability of City and City Officials, Employees and Agents. No member, official, employee or agent of City 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 of money which may become due to Developer or its successor or for any obligation of City under this Amended Agreement.
i. Headings; Construction; Statutory References. The headings of the sections and paragraphs of this Amended Agreement are for convenience only and shall not be used to interpret this Amended Agreement. The language of this Amended Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. All references in this Amended Agreement to particular statutes, regulations, ordinances or resolutions of the United States, the State of California, or the City of Healdsburg shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may thereafter govern the same subject. j. Time is of the Essence. Time is of the essence in the performance of this Amended Agreement.
k. Governing Law; Venue. This Amended Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Amended Agreement shall be filed and heard in the Superior Court of Sonoma County, California or in the Federal District Court for the Northern District of California. l. Attorneys’ Fees and Costs. If any legal or administrative action is brought to interpret or enforce the terms of this Amended Agreement, the prevailing Party shall be entitled to recover all reasonable attorneys’ fees and costs incurred in such action.
m. Severability. If any provision of this Amended Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity,
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24 legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.
n. Entire Agreement; Exhibits. This Amended Agreement contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto, specifically including the Middle Income Housing Agreement. Exhibits A, B, C, and D, attached hereto are incorporated herein by this reference. o. Counterparts. This Amended Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGE(S).
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IN WITNESS WHEREOF, the Parties have executed this Amended And Restated Middle Income Housing Regulatory Agreement And Declaration Of Restrictive Covenants as of the date first written above.
CITY:
CITY OF HEALDSBURG, a municipal corporation
By: _______________________________
Jeff Kay, City Manager
Attest:
By:_____________________________
Raina Allan, City Clerk
Approved as to form:
By:____________________________
Samantha Zutler, City Attorney
DEVELOPER:
REPLAY HEALDSBURG, LLC,
a Delaware limited liability company
By:
Name: Mike McCone
Its: Vice President
SIGNATURES MUST BE NOTARIZED.
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STATE OF CALIFORNIA )
)
COUNTY OF SONOMA )
On , 20__, before me, ______________________, Notary Public, personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
)
COUNTY OF SONOMA )
On , 20__, before me, ______________________, Notary Public, personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
LEGAL DESCRIPTION OF DEVELOPMENT SITE
The real property situated in the City of Healdsburg, County of Sonoma, State of California, described as follows:
Lots 1, 2, 3, 4, 5, 6, and 7 as shown on that certain final map entitled “Final Map of the Mill District,” filed December 28, 2020, in Book 817 of Maps at Pages 32-47, Sonoma County Records.
APN: _______________
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EXHIBIT B
LEGAL DESCRIPTION OF PROPERTY
The real property situated in the City of Healdsburg, County of Sonoma, State of California, described as follows:
Parcels ___, ___, and ___ of the final map entitled “___________,” filed ____________, 202__, in Book ___ of Maps at Pages ____, Sonoma County Records, being the further subdivision of Lot 3 as shown on that certain final map entitled “Final Map of the Mill District,” filed December 28, 2020, in Book 817 of Maps at Pages 32-47, Sonoma County Records.
APN: _______________
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Exhibit C
CERTIFICATE OF COMPLETION
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §27383 AND
BUILDING HOMES AND JOBS TRUST
FUND FEE PER GOVERNMENT CODE
§27388.1(a)(2)(D)
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (“Certificate of Completion”) is made by the CITY OF HEALDSBURG, California municipal corporation (“City”), in favor of REPLAY HEALDSBURG, LLC, a California limited liability company (“Developer”), as of the date set forth below.
RECITALS
A. City and Developer have entered into that certain Amended And Restated Middle Income Housing Regulatory Agreement And Declaration Of Restrictive Covenants (“Agreement”) dated _____, 202__, concerning the development of Middle Income Units in the City of Healdsburg, California. The Agreement was recorded in the Official Records of Sonoma County on ________, 202__, as Instrument No.______________. Capitalized terms not otherwise defined in this Certificate of Completion have the meanings set forth in the Agreement.
B. As referenced in Section 7.a of the Agreement, the Agreement shall be released as to each Rental Unit within the Project upon the termination of fifty-five (55) years from the issuance of a certificate of occupancy for such unit, as memorialized in a certificate of completion recorded in the Official Records of Sonoma County.
C. The purpose of this Certificate of Completion is to memorialize that on [DATE] (the "Completion Date"), the City's building official issued a certificate of occupancy for the structure housing the following units located on that certain parcel described in Exhibit A hereto (the "Completed Units"): ______________________________.
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NOW, THEREFORE, City and Developer hereby agree as follows:
1. As provided in the Agreement, the Agreement shall be released from the Completed Units as of ______________, 20__, which date is fifty-five (55) years from the Completion Date.
2. This Certificate of Completion shall not be deemed or construed to constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance the construction and development of the Project or any portion thereof. This Certificate of Completion is not a notice of completion as referred to in Section 8182 of the California Civil Code.
IN WITNESS WHEREOF, City and Developer have executed this Certificate of Completion this ___ day of _______________, 20__.
DEVELOPER:
REPLAY HEALDSBURG, LLC,
a Delaware limited liability company
By:
Name:
Its:
CITY:
CITY OF HEALDSBURG,
a California municipal corporation
By:
, City Manager
APPROVED AS TO FORM:
, City Attorney
ATTEST:
_____________________________
_______________, City Clerk
SIGNATURES MUST BE NOTARIZED.
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared
______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________
Name: ______________________
Notary Public
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared
______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________
Name: ______________________
Notary Public
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
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EXHIBIT A
PROPERTY DESCRIPTION
The real property situated in the City of Healdsburg, County of Sonoma, State of California, described as follows:
APN: _______________
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Exhibit D
RESALE RESTRICTION AGREEMENT [to be attached]
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2036\02\2745545.3
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF HEALDSBURG
401 GROVE STREET
HEALDSBURG, CALIFORNIA 95448
ATTN: SAMANTHA ZUTLER, ESQ.
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE 27383 AND BUILDING
HOMES & JOBS TRUST FUND FEE PER
GOVERNMENT CODE 27388.1(A)(2)(D)
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
AMENDED AND RESTATED PUBLICLY ACCESSIBLE PRIVATE OPEN SPACE
EASEMENT AGREEMENT
This AMENDED AND RESTATED PUBLICLY ACCESSIBLE PRIVATE OPEN SPACE EASEMENT AGREEMENT ("Amended Agreement") is entered into as of ________, 202__(the "Effective Date"), by and between THE CITY OF HEALDSBURG, a California municipal corporation ("City"), and REPLAY HEALDSBURG, LLC, a Delaware limited liability company (the "Developer"). City and Developer may each be referred to as a "Party," and collectively the "Parties".
RECITALS
A. In 2017, Developer submitted an application to City for the development of a mixed-use project (the “Project”) on approximately 9.59 acres of real property located at 146 and 164 Healdsburg Avenue in the City of Healdsburg, California (the “Development Site”), the final iteration of which included construction of (i) a 53-room hotel, (ii) approximately 15,000 square feet of commercial space, (iii) public improvements and open space, and (iv) up to 208 residential units.
B. On January 8, 2019, the City’s Planning Commission approved Master Conditional Use Permit CUP 2017-12, Historic Demolition Permit MISC 2017-01, and Heritage Tree Removal Permit HT 2017-02 for the Project and recommended that the City Council approve a tentative map and a development agreement for the Project. On March 11, 2019, the City Council approved Tentative Map TM 2017-01 for the Project, and on April 1, 2019, adopted Ordinance No. 1184, approving a Development Agreement for the Project (referred to collectively with the Planning Commission’s January 8, 2019, approvals as the “Project Approvals”).
C. On December 28, 2020, the Final Map of the Mill District was filed and recorded in the Official Records of Sonoma County, California (“Official Records”), in Book 817 of
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Maps at Pages 32-47 (the “Final Map”), thereby effecting the subdivision of the Development Site into seven (7) lots along with dedication of public rights of way and easements for roads, sidewalks and utilities.
D. Pursuant to Section 4.2(c)(iii) of the Development Agreement, on December 30, 2020, Developer and City entered into that certain Publicly Accessible Private Open Space Easement Agreement (the “Park Easement Agreement”), and recorded in the Official Records on December 31, 2020, at Instrument No. 2020126156, applicable to the privately-owned and maintained and publicly accessible open space of approximately 0.78 acres in size (the “Park”), on Lot 5 of the Final Map.
E. In 2024, Developer submitted an application to City to amend the Project Approvals and, following public hearings noticed and conducted as required by law, the City took the following actions (collectively, the “Amended Project Approvals”):
1. On August 13, 2024, the Planning Commission approved an amendment to the Master Conditional Use Permit (CUP 2017-12.04), and recommended that the City Council approve tentative maps for the further subdivision of Lot 2 (SBDV-0004-2024) and Lot 3 (SBDV-0005-2024) of the Final Map, and a Fourth Amendment to Development Agreement for the Project;
2. On August 27, 2024, the Planning Commission recommended that the City Council approve tentative maps for the further subdivision of Lot 1 (SBDV-0003-2024) of the Final Map, approved design review (DR-0005-2024), variance (VAR-0001-2024), and conditional use permit (CUP-0005-2024) applications for Lot 1 of the Final Map, and approved tentative map (SBDV-0002-2024), design review (DR-0004-2024) and conditional use permit (CUP-0004-2024) applications for Lot 5 of the Final Map;
3. On September 16, 2024, the City Council approved tentative maps for Lot 1 (SBDV-0003-2024), Lot 2 (SBDV-0004-2024), and Lot 3 (SBDV-0005-2024) of the Final Map, and the first reading of an ordinance to approve a Fourth Amendment to Development Agreement for the Project;
4. On October ___, 2024, the City Council adopted Ordinance No. ______ approving the Fourth Amendment to Development Agreement (“Fourth Amendment to Development Agreement”) for the Project; and
5. On _________, 202__, the City Engineer approved the final subdivision map applicable to SBDV-0002-2024 of Lot 5 of the Final Map, thereby creating three (3) condominium parcels on Lot 5 (1 parcel for residential amenity building and outdoor pool facility; 1 parcel for up to 2,500 square feet of commercial space; and 1 parcel for a 37,427 square foot or 0.86-acre park/open space).
F. As a material consideration for the long-term assurances, vested rights, and other City obligations provided by the Fourth Amendment to Development Agreement and as a material inducement to City to enter into the Fourth Amendment to Development Agreement, Developer offered and agreed to provide certain public benefits to the City as specified in the
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Fourth Amendment to Development Agreement, including this Amended Agreement to comply with Section 4.2 (c)(iii) of the Fourth Amendment to Development Agreement.
G. Section 4.2(c)(iii) of the Fourth Amendment to Development Agreement specifies that the Project shall incorporate a privately-owned and maintained, publicly accessible open space of approximately 0.86 acres or 37,427 square feet in size (the "Park"). The parcel created for the park/open space by the final subdivision map applicable to SBDV-0002-2024 of Lot 5 of the Final Map, more particularly described in the legal description attached hereto as Exhibit A and incorporated herein, is the location of the Park (the “Park Parcel”), and the conditions of approval require that the Park Parcel be designated as open to the public in perpetuity.
H. The Developer desires to grant to the City, and the City desires to accept from the Developer, an easement on, over and across the Park Parcel to provide public access to and use of the Park in perpetuity as more particularly set forth below. Through this Amended Agreement, the Parties desire to memorialize compliance with the terms of the Fourth Amendment to Development Agreement and conditions of approval applicable to SBDV-0002- 2024 of Lot 5 of the Final Map, and the terms under which the Developer will make the Park Parcel available for public access and use.
I. Further, concurrent with the recording of this Amended Agreement in the Official Records, the City and Developer hereby acknowledge and agree that the Park Easement Agreement shall be released as a lien against Lot 5 of the Final Map, more particularly described in the legal description attached hereto as Exhibit B, and the Parties shall execute and record such other documents as may reasonably be required to effectuate the release of the lien of the Park Easement Agreement against Lot 5 of the Final Map in the Official Records.
AGREEMENT
NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, the Parties agree as follows:
1. Grant of Easement.
a. The Developer hereby grants to the City a non-exclusive public access and use easement (the "Easement") on, over and across the Park Parcel described in Exhibit A and attached to this Amended Agreement and incorporated by reference (the "Easement Area"), for the purpose of providing the general public with rights of access to and use of the Park Parcel, subject to the terms and conditions of this Amended Agreement. This Easement shall burden the Easement Area in perpetuity for the benefit of the City and the general public as an easement in gross, and it is a covenant that shall run with the land.
2. Park Construction.
a. Construction of the Park shall be completed substantially in conformance with the Fourth Amendment to Development Agreement, conditions of approval applicable to SBDV-0002-2024 of Lot 5 of the Final Map, design reviews (DR-2022-22 and DR-0004-2024)
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and conditional use permit (CUP-0004-2024) applicable to Lot 5 of the Final Map, and any other applicable City approval or equivalent approval, and all other applicable state and local building codes, development standards, and ordinances, and shall be completed prior to the issuance of a certificate of occupancy for any component of the Project on Lot 4 of the Final Map. b. Any future changes to the design of the Park, including but not limited to changes to or relocation of the provided amenities, structures, landscaping, or pathways, unless otherwise required to be approved by the Planning Commission pursuant to the City’s Municipal Code, shall be subject to approval by the City Manager, or his or her designee, with input from the City’s Parks and Recreation Commission, which approval shall not be unreasonably withheld, conditioned or delayed provided the useable area of the Park is not diminished or decreased; further, the City Manager in his or her discretion may refer the proposal to the Parks and Recreation Commission for review and approval. The foregoing notwithstanding, nothing herein confers discretion on the City to initiate and require design changes to the Park.
3. Public Use.
a. The Developer agrees to permit public entry into and use of the Easement Area for park and recreational uses and activities customarily permitted within other park sites in the City, consistent with the provisions of the Healdsburg Municipal Code, including but not limited to Chapters 9.12, 12.28, and 12.36. No portion of the Easement Area shall be used for any use that violates any applicable law or that constitutes a nuisance. b. Subject to the provisions of Subsection 3.c, below, the public will be able to flow seamlessly in and out of the Park Parcel from the adjacent public plazas and public sidewalks along the new project streets and Healdsburg Avenue. c. In accordance with the conditions of approval applicable to SBDV-0002- 2024 of Lot 5 of the Final Map, Developer will establish regulations, policies and procedures that govern special event and private use of the Park Parcel that are generally similar to the City’s special event policies (“Mill District Park Rules”). The Mill District Park Rules will be included as an exhibit or attachment to the Master Declaration Of Covenants, Conditions And Restrictions for the Project. Developer shall thereafter update the Mill District Park Rules as necessary to comply with applicable law. If the City proposes any amendment to the Mill District Park Rules, Developer will consider the amendment in good faith, and will not unreasonably refuse its adoption. Any future changes or updates to the Mill District Park Rules shall be reviewed and approved by the City Manager, or his or her designee, with input from the City’s Parks and Recreation Commission, and such approval shall not be unreasonably withheld, conditioned or delayed. Developer shall file a copy of the Mill District Park Rules and any future changes or updates thereto with the City Clerk.
4. Park Maintenance. The Developer shall be responsible for the maintenance, repair and replacement, at its sole cost and expense, of the Park Parcel and facilities and improvements comprising the Park, which Developer shall keep in a good, safe and usable condition, in good repair, and in compliance with all applicable federal, state, county, and local ordinances. In no event shall the City have any responsibility for the maintenance, repair or
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replacement of the Park Parcel or facilities and improvements comprising the Park developed in the Easement Area.
5. Term and Termination; Amendment.
a. The term of this Amended Agreement shall commence as of the Effective Date and shall continue in perpetuity until and unless terminated by written agreement of the Parties.
b. No amendment to or termination of this Amended Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing that refers expressly to this Amended Agreement and is signed by duly authorized representatives of the Parties. Where this Amended Agreement requires an approval or consent of the City, such approval may be given on behalf of the City by the City Manager or his or her designee excepting any such approval or consent relating to the termination of this Amended Agreement.
The City Manager or his or her designee is hereby authorized to take such actions as may be necessary or appropriate to implement this Amended Agreement, including without limitation the execution of such documents or agreements as may be contemplated by this Amended Agreement and approval of amendments which do not substantially change the uses or restrictions hereunder, or cause the City to incur any additional costs.
6. Default and Remedies.
a. A Party's violation of any material term of this Amended Agreement or failure by any Party to perform any material obligation of this Amended Agreement shall constitute a default ("Default"), if the violation continues for a period of thirty (30) days after written notice thereof to the defaulting Party without the defaulting Party curing such breach, or if such breach cannot reasonably be cured within such thirty (30) day period, commencing the cure of such breach within such thirty (30) day period and thereafter diligently proceeding to cure such breach within ninety (90) days, unless a longer period is granted by the non-defaulting Party.
b. If after expiration of the notice and cure period set forth in Section 6(a) of this Amended Agreement, the Developer does not inspect, maintain, care for and, if and when necessary, repair the Park Parcel or Park facilities and improvements as required by this Amended Agreement, the City shall have the right, but not the obligation, to elect to maintain, repair, periodically inspect, care for, and repair the same, or to contract for the correction of such deficiencies. If the written notification states that the problem constitutes an emergency and relates to the public health and safety, then the Developer shall have twenty-four (24) hours to rectify the problem. If the Developer timely responds to the City and demonstrates in good faith that the deficiency will take more than twenty-four (24) hours to correct, the City shall cooperate in good faith with the Developer to set a mutually agreeable time to cure the deficiency while ensuring adequate protection of public health and safety. c. If the City exercises its rights under Section 6(b) of this Amended Agreement, upon written demand from the City with reasonable supporting documentation, the
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Developer agrees to pay the City upon demand all reasonable and actual charges and costs incurred by the City for such maintenance and repair work and related inspections. d. Either Party shall have the right to mandamus or other suit, action or proceeding at law or in equity to require the opposite Party to perform its obligations and covenants under this Amended Agreement, including but not limited to Developer’s obligation to maintain the Park Parcel and Park facilities and improvements pursuant to Section 4, and to enjoin acts on things which may be unlawful or in violation of the provisions of this Amended Agreement.
e. Any failures or delays by a 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. Delays by a Party in asserting any of its rights and remedies, irrespective of the length of the delay, shall not deprive the 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, nor constitute a waiver of such Party's right to demand strict compliance by such other Party in the future. No waiver by a Party of a Default shall be effective or binding upon such Party unless made in writing by such Party, and no such waiver shall be implied from any omission by a Party to take any action with respect to such Default.
7. Covenant Running with the Land. The Parties hereby declare their express intent that the covenants and restrictions set forth in this Amended Agreement shall apply to and bind the Developer and its heirs, executors, administrators, successors, transferees, and assignees having or acquiring any right, title or interest in or to any part of the Easement Area and shall run with and burden the Easement Area. Until all or portions of the Park Parcel are expressly released from the burdens of this Amended Agreement, each and every contract, deed or other instrument hereafter executed covering or conveying the Easement Area or any portion thereof shall be held conclusively to have been executed, delivered, and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument. In the event of foreclosure or transfer by deed-in-lieu of all or any portion of the Easement Area, title to all or any portion of the Easement Area shall be taken subject to this Amended Agreement. The Developer acknowledges that compliance with this Amended Agreement is a land use requirement and a requirement of the Fourth Amendment to Development Agreement, and that no event of foreclosure or trustee's sale may remove these requirements from the Easement Area. Whenever the term "Developer" is used in this Amended Agreement, such term shall include any other permitted successors and assigns as herein provided.
8. Mortgagee Protection. This Amended Agreement, and the rights, privileges, covenants, agreements and Easement hereunder with respect to the Park Parcel and the Easement Area, shall be superior and senior to any lien placed upon the Park Parcel following the Effective Date, including the lien of any mortgage or deed of trust. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any mortgage or deed of trust made in good faith and for value, but the rights, privileges, covenants, agreements, Easement and other provisions contained in this Amended Agreement shall be binding upon and effective against any person (including, but not limited to, any mortgagee or beneficiary under a deed of trust) who acquires title to the Park Parcel or any portion thereof by foreclosure, trustee's
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sale, deed in lieu of foreclosure, or otherwise; provided, however, that no such person shall be obligated to construct the Park improvements unless that person takes title to the Easement Area and otherwise elects in its sole discretion, to construct the larger Project pursuant to the Fourth Amendment to Development Agreement; and provided further that no such person shall assume or have any liability for the Developer's prior defaults under this Amended Agreement or for the payment of any amounts not paid if and when due from the Developer under this Amended Agreement. Developer or any subsequent owner of all or any portion of the Park Parcel may, at any time during the term of this Amended Agreement, and from time to time, deliver written notice to the City requesting that the City certify in writing the Developer's compliance with this Amended Agreement. Upon receiving such request, the City Manager or his or her designee shall execute and return such certificate or give a written, detailed response explaining why it will not do so within twenty (20) days following the receipt thereof. The consent and subordination of the existing mortgagee of record to this Amended Agreement is attached hereto as Exhibit C.
9. Notice. Except as otherwise expressly provided herein, all notices and demands pursuant to this Amended Agreement shall be in writing and delivered in person, by commercial courier or by first-class certified mail, postage prepaid. Except as otherwise expressly provided herein, notices shall be considered delivered when personally served, upon delivery if delivered by commercial courier, or two (2) days after mailing if sent by mail. Notices shall be sent to the addresses below for the respective Parties; provided, however, that any Party may change its address for purposes of this Section by giving written notice to the other Parties. These addresses may be used for service of process:
City: City Manager
City of Healdsburg
401 Grove Street
Healdsburg, California 95448
with copy to: Samantha Zutler, Esq.
City Attorney
City of Healdsburg
101 Howard Street, Suite 400
San Francisco, California 94123
Developer: Replay Healdsburg, LLC
105B Plaza Street
Healdsburg, CA 95448
Attn: Mike McCone
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with copy to: Replay Healdsburg, LLC
c/o CEO of Replay Destination
745 Thurlow Street, Suite 2150
Vancouver BC V6E 0C5
Goldfarb & Lipman LLP
Attn: Gabrielle Janssens, Esq.
1300 Clay Street, Eleventh Floor
Oakland, CA 94612
10. Partial Invalidity. If any provision of this Amended Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
11. Applicable Law/Venue. This Amended Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto. The venue for any action shall be the County of Sonoma, California.
12. Further Assurances. Each Party covenants, on behalf of itself and its successors, heirs, and assigns, to take all actions and do all things, and to execute, with acknowledgment or affidavit if required, any and all documents and writings that may be necessary or proper to achieve the purposes and objectives of this Amended Agreement.
13. Nondiscrimination. The 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 race, color, creed, religion, sex, marital status, ancestry, or national origin in the use of the Park in furtherance of this Amended Agreement. The foregoing covenant shall run with the land.
14. Headings. Section headings in this Amended Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Amended Agreement.
15. Amended Agreement is Entire Understanding. This Amended Agreement is executed in one original, which constitutes the entire understanding and agreement of the Parties with respect to the subject matter hereof. Except for the conditions of approval applicable to SBDV-0002-2024 of Lot 5 of the Final Map, the Fourth Amendment to Development Agreement and except as otherwise specified in this Amended Agreement, any prior correspondence, memoranda, agreements, warranties, or representations are superseded in total by this Amended Agreement.
16. Interpretation. Each Party to this Amended Agreement has had an opportunity to review the Amended Agreement, confer with legal counsel regarding the meaning of the Amended Agreement, and negotiate revisions to the Amended Agreement. Accordingly, neither
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Party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the Amended Agreement.
17. Intended Beneficiaries. The City and the public are the intended beneficiaries of this Amended Agreement, and the City shall have the sole and exclusive power to enforce this Amended Agreement. It is intended that the City may enforce this Amended Agreement, on its own behalf or on behalf of the public, in order to implement the conditions of approval applicable to SBDV-0002-2024 of Lot 5 of the Final Map and provisions of the Fourth Amendment to Development Agreement. No other person or persons, other than the City and the Developer and their assigns and successors, shall have any right of action hereon.
18. Recordation of Termination. Upon termination of this Amended Agreement, a written statement acknowledging such termination shall be executed by Parties and shall be recorded by City in the Official Records of Sonoma County, California.
19. Signature Pages; Execution in Counterparts. For convenience, the signatures of the Parties to this Amended Agreement may be executed and acknowledged on separate pages in counterparts which, when attached to this Amended Agreement, shall constitute this as one complete Amended Agreement.
20. Exhibits. The following exhibits are attached to this Amended Agreement and incorporated into the Amended Agreement by reference:
Exhibit A: Legal Description of Park Parcel
Exhibit B: Legal Description of Lot 5 of the Final Map of the Mill District Exhibit C: Consent And Subordination
[Signature Page Follows.]
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IN WITNESS WHEREOF, this Amended Agreement has been entered into by and between the Parties as of the Effective Date.
CITY:
City of Healdsburg, a
California municipal corporation
By:
Jeff Kay
City Manager
APPROVED AS TO FORM:
By:
Samantha Zutler, Esq.
City Attorney
ATTEST:
By:
Raina Allan
City Clerk
DEVELOPER:
Replay Healdsburg, LLC,
a Delaware limited liability company
By:
Mike McCone, Vice President
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Packet Pg. 302 Attachment: 1. Ex A-D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4605 : Mill District 4th DA 4894-7048-6221 v8
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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Packet Pg. 303 Attachment: 1. Ex A-D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4605 : Mill District 4th DA 4894-7048-6221 v8
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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Packet Pg. 304 Attachment: 1. Ex A-D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4605 : Mill District 4th DA 4894
-7048-6221 v8
EXHIBIT A
LEGAL DESCRIPTION OF PARK PARCEL
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Packet Pg. 305 Attachment: 1. Ex A-D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4605 : Mill District 4th DA 4894-7048-6221 v7
EXHIBIT B
LEGAL DESCRIPTION OF LOT 5 OF FINAL MAP OF THE MILL DISTRICT The real property situated in the City of Healdsburg, County of Sonoma, State of California, described as follows:
Lot 5 as shown on that certain final map entitled “Final Map of the Mill District,” filed December 28, 2020, in Book 817 of Maps at Pages 32-47, Sonoma County Records.
APN: _______________
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Packet Pg. 306 Attachment: 1. Ex A-D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4605 : Mill District 4th DA 4894-7048-6221 v7
EXHIBIT C
CONSENT AND SUBORDINATION OF ______________ TO
AMENDED AND RESTATED PUBLICLY ACCESSIBLE PRIVATE OPEN SPACE
EASEMENT
The undersigned, as present Beneficiary under that certain [LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING] recorded ___________, 20__, under Series No. ________________ in the Official Records of Sonoma County, executed by ____________________, a ________________, as Trustor, to ____________________, as Trustee (the "Deed of Trust"), does hereby consent to the execution and recordation of the Amended And Restated Publicly Accessible Private Open Space Easement Agreement, dated as of _______, 20__ (the "Amended Agreement"), to which this consent is attached, and does hereby subordinate the lien of the Deed of Trust to the Amended Agreement, subject to the mortgagee protections set forth in Section 8 of the Amended Agreement, to the same extent and with the same force and effect as if the Amended Agreement had been executed and recorded prior to the execution and recordation of the Deed of Trust.
IN WITNESS WHEREOF, the undersigned has executed this consent this ______ day of _____, 20__.
BENEFICIARY:
__________________, a _________________________
By: _______________________________
Name: _______________________________
Its: _______________________________
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Packet Pg. 307 Attachment: 1. Ex A-D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4605 : Mill District 4th DA 4th DA Amendment - Exhibit E
DEFINITION OF HOTEL INVESTMENT SUITE USE AND CONDITIONS OF OPERATION A "hotel investment suite" use shall mean a "visitor lodging" use, as defined in the Healdsburg Municipal Code, authorized for use in a condominium established in accordance with the Commercial and Industrial Common Interest Development Act, Civil Code § 6500 et seq. or the Davis-Stirling Common Interest Development Ac, Civil Code § 4000 et seq. (hereinafter, a “condominium”), occupancy of which may be restricted to the owner of the condominium unit to the exclusion of the general public for a limited period of time in accordance with the following conditions:
(a) A condominium unit approved for hotel investment suite use may only be located and conducted in the same structure, and as part of the main use of the structure, for visitor lodging use (hereinafter, the “hotel structure”).
(b) The maximum percentage of floor area of a hotel structure devoted to condominium units approved for hotel investment suite use shall not exceed (i) twenty-five percent (25%) of the total floor area of the hotel structure or (ii) one-third (33.33%) of the floor area of the hotel structure devoted to visitor lodging use.
(c) The number of condominium units approved for hotel investment suite use shall not exceed twenty-five percent (25%) of the total number of units in the hotel structure approved for visitor lodging use and hotel investment suite use. (d) Condominium units approved for hotel investment suite use within a hotel structure containing units approved for visitor lodging use shall be managed, operated, and maintained by the same entity responsible for the management, operation and maintenance of the hotel structure for visitor lodging use. (e) The owner or operator of the visitor lodging use (hereinafter, the “hotel operator”) shall determine the interior color scheme, décor and furnishings of each unit approved for visitor lodging use and each condominium unit approved for hotel investment suite use as well as the appropriate time for redecorating and renovating each unit approved for visitor lodging use and each condominium unit approved for hotel investment suite use and its contents.
(f) The owners of condominium units approved for hotel investment suite use shall be prohibited from personalizing the condominium units.
(g) The owners of condominium units approved for hotel investment suite use shall be prohibited from storing personal items within the condominium units. (h) The owners of condominium units approved for hotel investment suite use shall be prohibited from occupying the condominium unit for more than (i) 90 days per calendar year and (ii) 30 consecutive days.
(i) The owners of condominium units approved for hotel investment suite use shall make their condominium unit available for visitor lodging use through the hotel operator when not in use by the owner and in no event for any period of time less than nine (9) months per calendar year.
(j) Regardless of the number of persons or entities that are owners of a condominium unit approved for hotel investment suite use, no owner or group of co-owners may use the condominium unit for their personal use for more than ninety (90) days in any calendar year and no individual stay by an owner or any of several co-owners may exceed thirty (30) consecutive calendar days.
(k) The owners of condominium units approved for hotel investment suite use shall not discourage the rental of their condominium unit through the hotel operator or create disincentives that are meant to discourage the rental of their condominium unit. (l) The owners of condominium units approved for hotel investment suite use and the hotel operator shall make the condominium unit available for rent while being utilized for
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Packet Pg. 308 Attachment: 1. Ex A-E. Definition of Hotel Investment Suite Use and Conditions of Operation (4605 : Mill District 4th DA Amendment and Lots 1, 4854-6617-6461 v8 2
visitor lodging use at similar rents to that charged by the hotel operator for other condominium units approved for hotel investment suite use of a similar size at that location.
(m) The owners of condominium units approved for hotel investment suite use and the hotel operator shall, while the condominium unit is being utilized for visitor lodging use, impose, collect and remit to the City transient occupancy tax in accordance with the requirements of Chapter 3.12 (Transient Occupancy Tax) of the City of Healdsburg Municipal Code.
(n) The owner of the hotel structure shall, prior to the earlier of (i) City approval of the Final Subdivision Map applicable to the tentative map (SBDV-0003-2024) approved for Lot 1, or (ii) issuance of any permit for the construction of any improvement on Lot 1, execute and acknowledge an "Agreement for Payment In-Lieu of Transient Occupancy Tax" (“PILOT Agreement”), in the form attached hereto as Attachment 1, with the City and cause the PILOT Agreement, which shall run with the land, to be recorded in the official records of the Sonoma County Recorder’s Office (“Official Records”) against the legal parcel comprising the main visitor lodging use.
(o) A condominium unit approved for hotel investment suite use shall not be converted to a condominium for full time residential occupancy or any other type of residential use. (p) Any individual or entity that owns or controls an entity that owns more than one condominium unit approved for hotel investment suite use shall (i) disclose the identity of the condominium units under their ownership to the City and (ii) designate one of the condominium units for hotel investment suite use and the other condominium unit or units shall be used exclusively for visitor lodging use. (q) Condominium units approved for hotel investment suite use that are owned by an individual or entity that owns or controls an entity that owns the legal parcel comprising the main visitor lodging use or operates the visitor lodging use thereon, may only be used for visitor lodging use.
(r) In no event shall the common ownership or control of units approved for hotel investment suite use and the legal parcel comprising the main visitor lodging use effect a merger of parcels under the Subdivision Map Act or the City of Healdsburg Municipal Code.
Notwithstanding the foregoing, if there is common ownership and owner desires to request a merger of parcels, owner may submit an application for such merger to the City for its consideration in accordance with the Subdivision Map Act and City of Healdsburg Municipal Code.
(s) For purposes of these provisions, the term “control” shall mean the retention of more than fifty percent (50%) in the aggregate, directly or indirectly, of the ownership or beneficial interest and retention of full management and control of the day-to-day affairs of the 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. (t) Prior to the recording of a Final Map applicable to the tentative map (SBDV-0003-2024) approved for Lot 1, the applicant shall prepare and provide to the City for its prior review and approval, which shall not be unreasonably withheld or delayed, a set of covenants, conditions, and restrictions (“CC&Rs”) governing the condominium units within Lot 1, to be recorded in the Official Records concurrently with the filing and recording of the Final Map. The CC&Rs shall address and include, but not be limited to, the following:
i. disclosure of the use restrictions for each condominium unit within Lot 1, as set forth in the Amended and Restated Permitted Use Table included in Resolution No. 2024- ____ approving an amendment to Master Conditional Use Permit (CUP 2017-12.04), specifically including the conditions governing a hotel investment suite use, and a
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Packet Pg. 309 Attachment: 1. Ex A-E. Definition of Hotel Investment Suite Use and Conditions of Operation (4605 : Mill District 4th DA Amendment and Lots 1, 4854-6617-6461 v8 3
form of acknowledgement to be executed by buyers of a condominium unit approved for hotel investment suite use;
ii. Ongoing obligation of the property owner’s association to maintain improvements within the Lot 1 subdivision including, but not limited to, common area landscaping and irrigation, the visitor lodging (i.e. hotel) plaza areas, hotel investment suite areas, storm water quality management plan components;
iii. A requirement that garage spaces shall be maintained and used solely as parking spaces in accordance with the parking plan to be submitted and approved by the City pursuant to the conditions of approval for conditional use permit (CUP-0005-2024) and design review permit (DR-0005-2024) for Lot 1;
iv. A provision stating that the City shall be a third-party beneficiary of the CC&Rs, with the right, but not the obligation, to enforce provisions of the CC&Rs. Any modification of the CC&Rs relating to the design, establishment, maintenance or repair of common areas is subject to the consent of the City, which consent shall not be unreasonably withheld.
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Packet Pg. 310 Attachment: 1. Ex A-E. Definition of Hotel Investment Suite Use and Conditions of Operation (4605 : Mill District 4th DA Amendment and Lots 1, 4th DA Amendment - Exhibit E, Attachment 1
Record Without Fee
Pursuant to Government Code
Sections 6103 and 27383
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Healdsburg
401 Grove Street
Healdsburg, California 95448
Attention: City Clerk
Space Reserved for Recorder’s Use Only
AGREEMENT FOR PAYMENT IN-LIEU OF TRANSIENT OCCUPANCY TAX This AGREEMENT FOR PAYMENT IN-LIEU OF TRANSIENT OCCUPANCY TAX (“Agreement”) dated as of ____________, 20__ (“Effective Date”), is made and entered into by and between REPLAY HEALDSBURG LLC, a Delaware limited liability company (“Owner”) and the CITY OF HEALDSBURG, a California municipal corporation (“City”). City and Owner may each be referred to as a “Party”, and collectively as the “Parties”.
RECITALS
A. In 2017, Owner submitted applications to the City for the development of a mixed-use project (the “Project”) on approximately 9.59-acres of real property located along Healdsburg Avenue in the City of Healdsburg, Sonoma County, California (the “Project Site”), which Project includes visitor lodging containing 53 guest rooms (“Hotel”); up to 208 residential apartments and condominiums of which forty (40) units shall be for occupancy by lower income households (the "Affordable Housing Units"), thirty (30) units shall be for occupancy by middle income households (the "Middle Income Units"), and not more than one hundred thirtyeight (138) condominium units shall be sold at unrestricted prices (the “Market Rate Units”); fifteen thousand (15,000) square feet of commercial space, inclusive of residential amenities including a swimming pool and fitness center to serve residential units in the Project (“Residential Amenity”); and a 0.78 acre privately owned and maintained open space available for public use and enjoyment (“Park").
B. On January 8, 2019, the City’s Planning Commission adopted Resolution No. 2019-01 recommending that the City Council approve a tentative subdivision map for the Project (“Tentative Map”); adopted Resolution No. 2019-02 approving a Master Conditional Use Permit for the Project (“MCUP”); and adopted Resolution No. 2019-03 recommending that the City Council approve a development agreement for the Project. On April 1, 2019, the City Council adopted Ordinance No. 1184 approving a Development Agreement (“Development Agreement”) that governs, in part, the development of the Hotel and the other components of
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Packet Pg. 311 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 2 4872-4707-2719 v9
the Project. Collectively, the Tentative Map, MCUP and Development Agreement are referred to herein as the “Project Approvals”.
C. On December 28, 2020, the Final Map of the Mill District, was filed and recorded in the Official Records of the Sonoma County Recorder’s Office (“Official Records”), in Book 817 of Maps and Pages 32-47 (“Final Map”), which created seven (7) lots on the Project Site upon which the Project would be constructed and developed in accordance with the Project Approvals.
D. As material consideration for the long term assurances, vested rights, and other City obligations provided by the Development Agreement and as a material inducement to City to enter into the Development Agreement, the Owner offered and agreed to provide certain public benefits to the City as specified in the Development Agreement, including, among other matters, the generation of transient occupancy tax from the operation of the Hotel.
E. Following the City’s approval of the Project Approvals and Final Map, the residential development authorized by the Project Approvals for Lot 4, Lot 6, and Lot 7, have secured their required Subsequent Approvals, as defined in the Development Agreement, and construction has been completed on Lot 4 and Lot 7.
F. In 2024, Owner submitted applications to modify several components of the Project Approvals applicable to development of the Project on Lot 1, Lot 2, Lot 3, and Lot 5, inclusive of a proposal to modify the configuration of the 53-room Hotel and thus enable Owner to finance the construction of the Hotel on Lot 1.
G. The proposal contemplated that the 53-room Hotel would be reconfigured to retain no less than 53 rooms for visitor lodging, as defined in the City’s Land Use Code, Title 20 of the Healdsburg Municipal Code, of which up to 12 rooms (each a “Hotel Investment Suite”) would be subdivided into separate condominium units and sold as investments for limited personal use by their owners (an “HIS Investor”) to the exclusion of the general public for a portion of time (i.e. up to 90 days per calendar year) and otherwise made available by the HIS Investor to the owner/operator of the Hotel (“Hotel Owner/Operator”) for rental to the general public as visitor lodging.
H. Accordingly, when a Hotel Investment Suite is personally used by the HIS Investor, transient occupancy tax is not being generated or collected for remittance to the City by the Hotel Owner/Operator. At times when the Hotel Investment Suite is being used by the general public as visitor lodging, transient occupancy tax is being generated and collected for remittance to the City.
I. The City’s Land Use Code does not contain a use classification that allows for a Hotel Investment Suite use as part of a Hotel. However, on August 13, 2024, in accordance with Chapter 20.28, Article II Determination of Unspecified Uses, of the Healdsburg Municipal Code, the City’s Planning Commission adopted Resolution No. 2024-___ approving an amendment to the MCUP (CUP 2017-12.04) determining that a Hotel Investment Suite use, as more particularly defined in and subject to several conditions specified in Resolution No. 2024-___, is
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Packet Pg. 312 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 3 4872-4707-2719 v9
similar to a visitor lodging use and thus may be allowed as a conditionally permitted use as part of a visitor lodging use in the Mixed Use District and the Project.
J. The effectiveness of Resolution No. 2024-___ was made subject to the City Council’s approval of a Fourth Amendment to the Development Agreement (“Fourth Amendment”).
K. On August 27, 2024, the City’s Planning Commission adopted Resolution No. 2024-____ recommending that the City Council approve tentative subdivision map for Lot 1 (SBDV-0003-2024), as well as Resolution No. 2024-____ approving design review (DR-0005- 2024), variance (VAR-0001-2024), and conditional use permit (CUP-0005-2024) applications for Lot 1, subject to City Council approval of the Fourth Amendment.
L. On September 16, 2024, the City Council adopted Resolution No. 2024-____ approving tentative subdivision map for Lot 1 (SBDV-0003-2024), subject to City Council approval of the Fourth Amendment.
M. On October 7, 2024, the City Council approved and adopted Ordinance No.____ approving the Fourth Amendment, which became effective on November 6, 2024.
N. On _________, 202_, the City Council adopted Resolution No. 202_-____ approving the final subdivision map applicable to SBDV-0003-2024 for Lot 1, thereby creating fifteen (15) condominium parcels on Lot 1 as follows: Parcel A for a 41 room visitor lodging use; Parcel B to Parcel M for hotel investment suite use; Parcel N for 8,500 square foot commercial space; and Parcel O for Lot 1 common area.
O. As material consideration for the long term assurances, vested rights, and other City obligations provided by the Fourth Amendment and as a material inducement to City to enter into the Fourth Amendment, the Owner has offered and agreed to provide certain public benefits to the City. As provided in Section 5.8 of the Fourth Amendment, one such public benefit includes Owner’s commitment to execute and enter into this Agreement with City and thereby guarantee City that, on a calendar year basis, the average daily transient occupancy tax generated by a Hotel Investment Suite (the “Average Daily HIS TOT”) will be at least 133% of the average daily transient occupancy tax generated by a visitor lodging unit (the “Average Daily TOT Minimum Guarantee”), and to pay the City on an annual basis the positive difference, if any, between the Average Daily TOT Minimum Guarantee less the Average Daily HIS TOT, times 12, times 365 for that calendar year (the “In-Lieu Payment”).
P. As required and outlined in Resolution No. 2024-____ and in accordance with Section 5.8 of the Fourth Amendment, in order to ensure a Hotel Investment Suite use functions similarly to a visitor lodging use, Owner is required to execute and acknowledge this Agreement with the City and cause the Agreement to be recorded in the Official Records against Parcel A (the “Property”), as more particularly described in Attachment A attached to this Agreement and incorporated herein by this reference.
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Packet Pg. 313 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 4 4872-4707-2719 v9
Q. Owner and City have agreed to execute and record this Agreement in order to bind Owner and its successors in interest to the In-Lieu Payment obligations, as more particularly set forth in this Agreement, which obligation shall run with the land.
R. The enforcement of the obligations set forth in this Agreement will ensure that the City will not suffer any loss of transient occupancy tax revenues that are used to deliver general governmental services to the Project, therefore benefitting the City, Owner, HIS Investors and their successors in interest.
NOW, THEREFORE, in consideration of the mutual benefits accruing to the Parties, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner on behalf of itself and its heirs, executors, successors, assigns and each successor in interest hereby covenants and agrees as follows:
AGREEMENT
1. The term (“Term”) Term of this Agreement shall commence upon the Effective Date and shall remain in full force and effect as long as the Property is improved with and operated as a visitor lodging use.
2. This Agreement shall be recorded in the Official Records within 30 calendar days following the filing of the final subdivision map applicable to SBDV-0003-2024 for Lot 1 and prior to the issuance of any permit for the construction of any improvement on the Property.
Owner hereby represents, warrants and covenants that with the exception of easements of record, absent the written consent of City, this Agreement shall not be recorded behind or otherwise subordinated in priority to any other lien (other than those pertaining to taxes or assessments), encumbrance, or other interest in the Property.
3. Owner hereby acknowledges and understands that the operation of the Hotel on the Property is subject to the requirements of Chapter 3.12 Transient Occupancy Tax of the Healdsburg Municipal Code. Owner shall ensure that each monthly return provided to the tax administrator in accordance with the requirements of Section 3.12.070 of the Healdsburg Municipal Code, separately identifies the total rents charged and received and the amount of tax collected for transient occupancies for each day of each month for each of the 41 visitor lodging units and each of the 12 hotel investment suites.
No later than January 20 of each year following the Effective Date of this Agreement, Owner shall report to the tax administrator and provide a separate calculation of the “Average Daily TOT Minimum Guarantee” for the preceding calendar year which amount shall be the sum of the tax collected for transient occupancies for all 41 visitor lodging units during the preceding calendar year, which sum is multiplied by 1.33, divided by 41, and then divided by 365 in that order to arrive at the Average Daily TOT Minimum Guarantee. In addition, Owner shall report to the tax administrator and provide a separate calculation of the sum of transient occupancy tax collected for all twelve (12) Hotel Investment Suites over that same preceding calendar year period, which sum is divided by 12, and then divided by 365 in that order (the “Average Daily HIS TOT”).
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If the Average Daily HIS TOT is less than the Average Daily TOT Minimum Guarantee, Owner shall pay a sum equal to the Average Daily TOT Minimum Guarantee minus the Average Daily HIS TOT, times 12, times 365 (the “In Lieu Payment”), to the City no later January 30 of each year.
4. The provisions of Section 3.12.080 (Penalties For Failure to Remit Tax When Due), Section 3.12.090 (Failure of Operator to Collect Tax, Adequately Report, Remit Tax or Comply With Audit – Notice and Hearing on Tax Determined), Section 3.12.100 (Appeals From Decisions of Hearing Officer), Section 3.12.110 (Records Required), Section 3.12.140 (Audit Procedures), and Section 3.12.150 (Penalty Provisions) of Chapter 3.12 of Healdsburg Municipal Code, as each section may subsequently be amended, governing tax collected for transient occupancies shall apply with the same force and effect to the In-Lieu Payment required by this Agreement.
The Parties hereby acknowledge that in the event transient occupancy tax is refunded in accordance with Section 3.12.120 of Chapter 3.12 of Healdsburg Municipal Code, within sixty (60) calendar days thereafter the Parties shall reevaluate the returns provided by Owner pursuant to Section 3 of this Agreement and determine the effect of such refund on the calculation of TOT Minimum Guarantee and In-Lieu Payments. Any additional In-Lieu Payment determined to be due to the City or In-Lieu Payment paid is determined to be refunded in whole or in part to Owner, such amount shall be paid by the appropriate party to the other within thirty (30) calendar days of such determination.
5. Owner hereby subjects its interest in the Property to the covenants and restrictions set forth in this Agreement. The Parties hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the Owner and City, regardless of any sale, assignment, refinancing, conveyance or transfer of the Hotel or the Property, or any part thereof or interest therein, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by City. The Owner’s heirs, administrators, executors, successors in interest, transferees, and assigns including without limitation any purchaser, transferee or lessee of the Property (collectively, the “Successor”) shall be subject to all of the duties and obligations imposed under this Agreement for the full term of this Agreement. If the Property and this Agreement are assigned to and assumed by a Successor, wherever the term “Owner” is used in this Agreement, the term shall mean such Successor.
6. Each and every contract, deed, lease or other instrument affecting or conveying the Hotel or the Property or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, lease or other instrument. If any such contract, deed, lease or other instrument has been executed prior to the Effective Date, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound by its terms.
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Packet Pg. 315 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 6 4872-4707-2719 v9
7. Owner agrees for itself and for its Successors that in the event that a court of competent jurisdiction determines that the covenants in this Agreement do not run with the land, such covenants shall be enforced as equitable servitudes against the Property in favor of City.
Without limiting the generality of the foregoing, the Parties hereby declare their understanding and intent that:
(a) The covenants and restrictions contained in this Agreement shall be construed as covenants running with the land pursuant to California Civil Code section 1468 and not as conditions which might result in forfeiture of title by Owner; (b) The burden of the covenants and restrictions set forth in this Agreement touch and concern the Property in that the Owner’s legal interest in the Property and all improvements thereon are rendered less valuable thereby; and
(c) The benefit of the covenants and restrictions set forth in this Agreement touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the visitors to the Hotel and HIS Investors.
8. All covenants and restrictions contained in this Agreement without regard to technical classification or designation shall be binding upon Owner and its Successors for the benefit of the City, and such covenants and restrictions shall run in favor of the City for the Term, without regard to whether the City is an owner of any land or interest therein to which such covenant and restrictions relate.
9. To the fullest extent permitted by law, Owner shall indemnify, defend (with counsel approved by City) and hold City and its elected and appointed officers, officials, employees, agents, consultants, contractors and representatives (collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) arising directly or indirectly from, in whole or in part, as a result of, in connection with, or related to Owner’s obligations under this Agreement. Owner’s indemnity, defense and hold harmless obligations shall not extend to any Claims arising from an Indemnitee’s negligence or willful misconduct.
The provisions of this Section shall survive the expiration or earlier termination of this Agreement.
10. Failure by Owner or its Successors to perform its or their obligations hereunder shall constitute a default under this Agreement and a violation of the Fourth Amendment and Project Approvals as amended. In addition, a failure by Owner or its Successors to perform its or their In Lieu Payment obligations hereunder shall entitle City to any of the following remedies. (a) City may impose penalties and interest for failure to remit In-Lieu Payment when due in accordance with Section 3.12.080 of the Healdsburg Municipal Code (b) City may institute an administrative or legal action to cure, correct or remedy such default, to recover damages for such default or to obtain any other remedy whether at law or in
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equity, consistent with the purpose of this Agreement, the Fourth Amendment and the Project Approvals as amended.
11. Any notice to be given or other document to be delivered by either Party to the other under this Agreement shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery, (ii) as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth below, or (iii) the immediately succeeding business day after deposit with Federal Express or other equivalent overnight courier, addressed to the party for whom intended, set forth in this Section. Any Party may from time to time, by written notice to the other, designate a different address which shall be substituted for the one specified below.
If to the City: City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: City Manager
with a copy to: City of Healdsburg
101 Howard Street, Suite 400
San Francisco, CA 94123
Attention: City Attorney
If to Owner: Replay Healdsburg, LLC
105B Plaza Street
Healdsburg, CA 95448
Attention: Mike McCone
with a copy to: Replay Healdsburg, LLC
c/o CEO of Replay Destinations
745 Thurlow Street, Suite 2150
Vancouver BC V6E OC5
12. This Agreement, including the Recitals and all Attachments, together with the Fourth Amendment and Project Approvals, as amended, contains the entire agreement between the Parties with respect to this Agreement’s subject matter and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. In the event of any express conflict between this Agreement, the Fourth Amendment, and any of the Project Approvals, as amended, the provisions of this Agreement shall control.
13. No alteration, modification, or termination of this Agreement shall be valid unless made in writing and signed by the Parties and recorded in the Official Records.
14. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
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Packet Pg. 317 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 8 4872-4707-2719 v9
15. This Agreement shall be deemed to be jointly prepared by the Parties, and any ambiguities or uncertainties herein shall not be construed for or against either of the Parties. The words “including,” “included,” “include” and words of similar import shall be not be interpreted as words of exclusion but shall instead be interpreted as though followed by the words “but not limited to” or “without limitation.”
16. The Parties represent and warrant that each has the full right, power and authority to carry out its obligations under this Agreement. The individuals executing this Agreement on behalf of each Party represent and warrant that they have full power and authority to execute and deliver this Agreement on behalf of such party.
17. This Agreement shall not be deemed to create any third-party beneficiary rights for any person or entity.
18. No member, official, employee or agent of City shall be personally liable to Owner or any Successor, in the event of any default or breach by City, or for any amount of money which may become due to Owner or its Successor or for any obligation of City under this Agreement.
19. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of Sonoma County, California or in the Federal District Court for the Northern District of California.
20. If any legal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys’ fees and costs incurred in such action.
21. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.
22. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. [Signature Page Follows.]
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Packet Pg. 318 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 9 4872-4707-2719 v9
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
CITY:
CITY OF HEALDSBURG,
a California municipal corporation
By: _______________________________
Jeff Kay, City Manager
ATTEST:
Raina Allen, City Clerk
APPROVED AS TO FORM:
Samantha Zutler, City Attorney
OWNER:
REPLAY HEALDSBURG LLC,
a Delaware limited liability company
By:
Name: Mike McCone
Its: Vice President
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Packet Pg. 319 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 10 4872-4707-2719 v9
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY [to be attached]
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Packet Pg. 320 Attachment: 1. Ex A-E-Att 1. PILOT Agreement (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) 4883-2394-4922 v2
CITY OF HEALDSBURG
RESOLUTION NO. ___ -2024
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG APPROVING A TENTATIVE SUBDIVISION
MAP (SBDV 0003-2024) FOR LOT 1 OF THE MILL DISTRICT
PROJECT
WHEREAS, in early 2019, the City of Healdsburg entered into a Development Agreement with Replay Healdsburg, LLC (“Developer”) governing the development of approximately 9.59 acres of real property located within the Central Healdsburg Avenue Plan ("CHAP") planning area to be comprised of: a hotel containing approximately 53 guest rooms (“Hotel”); up to 208 residential apartments and condominiums of which forty (40) units (the "Affordable Housing Units") shall be deed-restricted, multi-family residential rental units for occupancy by "Lower Income Households"; thirty (30) units (the "Middle Income Units") shall be deed-restricted to "Middle Income Households”; and not more than one hundred thirty-eight (138) condominium units (the “Market Rate Units”) shall be sold at unrestricted prices; fifteen thousand (15,000) square feet of commercial space, inclusive of residential amenities including a swimming pool and fitness center to serve residential units in the Project (“Residential Amenity”); and a 0.78-acre privately owned and maintained open space in the center of the Property for public use and enjoyment (“Park”)(collectively, the "Project" or “Mill District Project”); and WHEREAS, on March 11, 2019, the City Council of the City of Healdsburg adopted Resolution No. 42-2019 approving a tentative subdivision map for the Project; and WHEREAS, effective May 1, 2019, the City and Developer entered into that certain Development Agreement governing the Project pursuant to the authority of Ordinance No. 1184 adopted by the City Council; and
WHEREAS, on April 6, 2020, the City Council adopted Resolution No. 20-2020 approving the Mill District Final Map, accepted the public right of way for Sawmill Circle, South Street and Branch Lane, public right of way on Healdsburg Avenue, public access easements, emergency vehicle access easements and public utility easements for public use, and vacated the existing public utility easements as shown on the Mill District Final Map, subject to improvement; and authorized the City Manager to execute the project subdivision improvement agreement; and WHEREAS, prior to approving required land use entitlements necessary to develop and construct the Mill District Project, as described above, it was evaluated for consistency with the Central Healdsburg Avenue Plan Final Environmental Impact Report ("CHAP EIR") (State Clearinghouse No. 2012112011) and the City prepared a Certificate of Determination that documents the City’s review of the Project in accordance with CEQA and identified three applicable CEQA streamlining and/or tiering code sections, each of which, separately and independently, provided a basis for the Project’s CEQA compliance: (i) a Community Plan Exemption, pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183; (ii) an addendum to the CHAP EIR, pursuant to Public Resources Code Section 21166 and CEQA Guidelines Section 15164; and (iii) reliance on the CHAP EIR as a Program EIR, pursuant
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Packet Pg. 321 Attachment: 2. RESOLUTION-Lot 1 Tentative Map (SBDV 0003-2024) (4605 : Mill District 4th DA Amendment and Lots 1, 2, 3 Tentative Maps) Resolution No. -2024