CITY OF HEALDSBURG
CITY COUNCIL/REDEVELOPMENT SUCCESSOR AGENCY
REGULAR MEETING AGENDA
City Hall Council Chamber Meeting Date: October 21, 2024 401 Grove Street Time: 6:00 PM
Healdsburg, CA 95448 Date Posted: October 16, 2024
(707) 431-3317
To join by computer, tablet, or mobile device:
Go to https://zoom.us/join and type in the Webinar ID: 815 8894 3494 or follow this link:
healdsburg.gov/zoom (Pre-registration for the meeting is not required.) .
1. CALL TO ORDER/ROLL CALL
A. Pledge of Allegiance
B. Approval of Agenda
2. REPORT ON CLOSED SESSION(S)
3. ANNOUNCEMENTS/PRESENTATIONS
A. Community Services Deferred Maintenance Program and Project Update Receive an update on deferred maintenance projects in parks and recreation facilities completed with the Fiscal Year 23-24 budget allocation; and construction progress at the Foley Family Community Pavilion.
4. CITY MANAGER REPORTS
5. PUBLIC COMMENTS ON ITEMS ON THE CONSENT CALENDAR AND NON
AGENDA ITEMS
This time is set aside to receive comments from the public regarding matters of general interest not on the agenda, but related to City Council/RSA business. Pursuant to the Brown Act, however, the City Council cannot consider any issues or take action on any requests during this comment period. Public comment on non-agenda items is limited to thirty (30) minutes total for all speakers, with each speaker given no more than three (3) minutes. If there are more than ten (10) audience/public comment speakers, the Mayor may reduce each speaker’s time from three (3) minutes so that all speakers have an equal time to speak. At the Mayor’s discretion, the public comment period may be extended past 30 minutes. Members from the public wishing to speak on a Consent Agenda item should notify the Mayor during Public Comments.
6. CONSENT CALENDAR
The following items listed on the Consent Calendar are considered routine in nature or have been previously reviewed by the Council and require little or no further discussion by the Council, public, or applicant and action will be taken by the City Council by a single motion. A City Council/RSA Regular Meeting Agenda
October 21, 2024
Councilmember may request that an item be removed from the Consent Calendar and action taken separately. Consent by a majority of the Councilmembers present will be required in order to remove the item. In the event an item is removed, the matter will be considered immediately following the adoption of the Consent Calendar.
A. Review and Attest to the Veracity of the 2023 Calendar Year Power Source Disclosure Report and Attestation
Adopt a Resolution attesting to the veracity of the 2023 Power Source Disclosure Report and associated Power Content Label and direct staff to submit the report to the California Energy Commission to meet regulatory obligations.
B. Ordinance Approving Fourth Amendment to the Development Agreement between City of Healdsburg and Replay Healdsburg, LLC
Pass an ordinance amending the Development Agreement by and between the City of Healdsburg and Replay Healdsburg, LLC, for the Mill District project based on the suggested findings.
C. Approve a Professional Services Agreement with Utility Design Services, LLC Adopt a Resolution approving a Professional Services Agreement with Utility Design Services, LLC to provide utility design services related to the City's Electric Utility for an amount not to exceed $94,850.
D. Acceptance of the Fitch Mountain Public Access Improvements Project Adopt a Resolution accepting the Fitch Mountain Public Access Improvements Project as complete and authorizing staff to file a Notice of Completion with the County Recorder's Office.
7. PUBLIC HEARINGS
None.
8. OLD BUSINESS
None.
9. NEW BUSINESS
A. Saggio Hills Development Park Naming
Adopt a Resolution naming the Saggio Hills Development Park.
City Council/RSA Regular Meeting Agenda
October 21, 2024
B. Appoint a Council Subcommittee to interview Arts and Culture Commission Applicants
Consider appointing a Council subcommittee to interview the applicants for the Arts and Culture Commission.
10. COUNCIL REPORTS ON MATTERS OF INTEREST OCCURRING SINCE
PREVIOUS REGULAR MEETING/EXPENSE REIMBURSEMENT REPORTS
11. WRITTEN COMMUNICATIONS
12. ADJOURN CITY COUNCIL / RSA MEETING
13. FUTURE AGENDA ITEMS
A. Future Agenda Items for 2024
SB 343 - DOCUMENTS RELATED TO OPEN SESSION AGENDAS: Any writings or documents provided to a majority of the City Council/Redevelopment Successor Agency Board regarding any item on this agenda after the posting of this agenda and not otherwise exempt from disclosure, will be made available for public review in the City Clerk's Office located at City Hall, 401 Grove Street, Healdsburg, during normal business hours. If supplemental materials are made available to the members of the City Council/Redevelopment Successor Agency Board at the meeting, a copy will be available for public review at the City Hall Council Chambers, 401 Grove Street, Healdsburg, CA 95448.
These writings will be made available in appropriate alternative formats upon request by a person with a disability, as required by the Americans with Disabilities Act.
DISABLED ACCOMMODATIONS: The City of Healdsburg will make reasonable accommodations for persons having special needs due to disabilities. Please contact Raina Allan, City Clerk, at Healdsburg City Hall, 401 Grove Street, Healdsburg, California, 431-3317, at least 72 hours prior to the meeting, to ensure the necessary accommodations are made.
CIUDAD DE HEALDSBURG
CONSEJO MUNICIPAL/AGENCIA DE DESARROLLO SUCESORA
ORDEN DEL DÍA DE LA REUNIÓN ORDINARIA
Cámaras del Consejo Municipal Fecha de reunión: 21 de oct. de 2024 401 Grove Street Hora: 6:00 PM
Healdsburg, CA 95448 Fecha de publicación: 16 de oct. de 2024 (707) 431-3317
Para participar por computadora, tableta o dispositivo móvil:
Vaya a https://zoom.us/join y teclee el número de identificación (ID) del seminario web: 815 8894 3494 o siga este enlace: healdsburg.gov/zoom (No es necesario inscribirse previamente a la reunión).
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1. LLAMADA AL ORDEN/PASAR LISTA
A. Juramento a la bandera
B. Aprobación del orden del día
2. INFORME SOBRE LA SESIÓN/LAS SESIONES A PUERTA CERRADA
3. ANUNCIOS/PRESENTACIONES
A. Servicios Comunitarios Programa de Mantenimiento Diferido y Actualización de Proyectos
Recibir una actualización sobre los proyectos de mantenimiento diferido en parques e instalaciones recreativas completados con la asignación presupuestaria del Año Fiscal 23- 24; y el progreso de la construcción en el Foley Family Community Pavilion.
4. INFORMES DEL GERENTE DE LA CIUDAD
5. COMENTARIOS PÚBLICOS SOBRE LOS PUNTOS EN EL CALENDARIO ACORDADO Y LOS PUNTOS NO INCLUIDOS EN EL ORDEN DEL DÍA
Este tiempo se reserva para recibir comentarios del público sobre asuntos de interés general no incluidos en el orden del día, pero relacionados con los asuntos del Consejo Municipal/RSA. Sin embargo, conforme la Ley Brown, el Consejo Municipal no puede considerar temas o tomar medidas sobre cualquier solicitud hecha durante este período de comentario. Los comentarios del público sobre los puntos no incluidos en el orden del día están limitados a treinta (30) minutos en total para todos los oradores, concediéndose a cada orador un máximo de tres (3) minutos. Si hay más de diez (10) comentarios públicos, el alcalde puede reducir el tiempo de tres (3) minutos de cada orador para que así todos los oradores tengan el mismo tiempo para hablar. A discreción del alcalde, el periodo de comentarios del público podrá prolongarse más de 30 minutos. Los miembros del público que deseen hablar sobre un asunto en el orden del día acordado deben notificárselo al alcalde durante los comentarios públicos.
Orden del día de la Reunión Ordinaria del Consejo Municipal /RSA 21 de octubre de 2024
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6. CALENDARIO ACORDADO
Los siguientes puntos enumerados en el orden del día acordado se consideran rutinarios o han sido revisados previamente por el Consejo y requieren poca o ninguna discusión por parte del Consejo, el público o solicitante y el Consejo Municipal tomará medidas en una sola moción. Un miembro del consejo puede solicitar que se excluya un punto del calendario acordado y se pueden tomar medidas por separado. Para excluir un punto, se requiere el consentimiento de una mayoría de los miembros del consejo presentes. En caso de que se excluya un punto, el asunto se considerará de inmediato después de la adopción del orden del día acordado.
A. Revisar y dar fe de la veracidad del Informe de Divulgación de la Fuente de Energía del año natural 2023 y Atestación
Adoptar una Resolución que dé fe de la veracidad del Informe de Divulgación de la Fuente de Energía de 2023 y de la Etiqueta de Contenido de Energía asociada y ordenar al personal que presente el informe a la Comisión de Energía de California para cumplir con las obligaciones reglamentarias.
B. Aprobar una ordenanza por la que se aprueba la Cuarta Enmienda al Acuerdo de Desarrollo entre la Ciudad de Healdsburg y Replay Healdsburg, LLC Aprobar una Ordenanza que enmiende el Acuerdo de Desarrollo por y entre la ciudad de Healdsburg y Replay Healdsburg, LLC, para el proyecto Mill District basado en las conclusiones sugeridas.
C. Aprobar un Acuerdo de Servicios Profesionales con Utility Design Services, LLC Adoptar una Resolución que apruebe un Acuerdo de Servicios Profesionales con Utility Design Services, LLC para proveer servicios de diseño de servicios públicos relacionados con la empresa de servicios eléctricos de la Ciudad por un monto que no supere $94,850.
D. Aceptación del Proyecto de Mejoras del Acceso Público a Fitch Mountain Adoptar una Resolución aceptando el Proyecto de Mejoras de Acceso Público a Fitch Mountain como finalizado y autorizando al personal a presentar una Notificación de Finalización en la Oficina de Registro del Condado.
7. AUDIENCIAS PÚBLICAS
Ninguna.
8. ASUNTOS PENDIENTES
Ninguna.
Orden del día de la Reunión Ordinaria del Consejo Municipal /RSA 21 de octubre de 2024
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9. ASUNTOS NUEVOS
A. Nombramiento del parque de desarrollo Saggio Hills
Adoptar una Resolución del Consejo Municipal de la ciudad de Healdsburg para nombrar el parque de desarrollo Saggio Hills.
B. Nombrar un Subcomité del Consejo para entrevistar a los solicitantes a la Comisión de Artes y Cultura
Considerar la posibilidad de nombrar un subcomité del Consejo para entrevistar a los candidatos a la Comisión de Artes y Cultura.
10. INFORMES DEL CONSEJO SOBRE ASUNTOS DE INTERÉS QUE HAN OCURRIDO DESDE LA REUNIÓN ORDINARIA ANTERIOR/INFORMES DE
REEMBOLSO DE GASTOS
11. COMUNICACIONES ESCRITAS
12. LEVANTAR LA REUNIÓN DEL CONSEJO MUNICIPAL/RSA
13. PUNTOS FUTUROS PARA EL ORDEN DEL DÍA
A. Futuros puntos del orden del día para 2024
SB 343 - DOCUMENTOS RELACIONADOS CON EL ÓRDEN DEL DÍA DE LAS SESIONES ABIERTAS: Cualquier escrito o documento provisto a una mayoría de la Junta del Consejo Municipal/Agencia de Desarrollo Sucesora con respecto a cualquier punto en este orden del día después de la publicación de la misma y que no esté exento de divulgación, se pondrá a disposición del público en la Oficina de la Secretaría Municipal ubicada en City Hall, 401 Grove Street, Healdsburg, durante horas hábiles. Si el material complementario se pone a disposición de los miembros de la Junta del Consejo Municipal/Agencia de Desarrollo Sucesora, una copia estará disponible para la revisión pública en las Cámaras del Consejo Municipal, 401 Grove Street, Healdsburg, CA 95448.
Estos escritos se pondrán a disposición en formatos alternativos apropiados a petición de una persona con discapacidad, tal y como exige la Ley de Estadounidenses con Discapacidades.
ADAPTACIONES POR DISCAPACIDAD: La ciudad de Healdsburg realizará adaptaciones razonables para las personas con necesidades especiales debidas a discapacidades. Por favor, contacte a Raina Allan, secretaria municipal, en Healdsburg City Hall, 401 Grove Street, Healdsburg, California, 431-3317, por lo menos 72 horas antes de la reunión para garantizar que se realicen las adaptaciones necesarias.
FY23
-24
Deferred
Maintenance
Project Update
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Attachment: Community Services Deferred Maintenance Program (4630 : Community FY23
-24 Deferred Maintenance Project Update: August 2024
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Community
Center Roof:
Install thermoplastic membrane to
repair leaking roof on two preschool
classrooms and Rooms 9, 10 and 11.
Estimated Cost: $75,000
Actual Cost: $52,230
Thermoplastic membrane for remainder
of roof at Community Center budgeted
for FY25/26.
Portable classrooms (Rooms 12-16) have
corrugated metal roof. Painted last
month with Epoxy/Bonding paint. Has
10-year warranty.
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Recreation
Park Football
Concession
Stand
Roof repairs and exterior painting
Estimated Cost: $25,000
Actual Cost: $19,205
*Interior repair work funded by
Healdsburg High Boosters
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Villa
Chanticleer
Parking Lot
Lighting
Retrofit existing lights with LED bulbs
Estimated Cost: $40,000
Actual Cost: $7,489
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Giorgi Park
Tennis Courts
Reseal, restripe and repaint courts
Estimated Cost: $30,000
Actual Cost: $30,750
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Plaza Gazebo
Paint gazebo and refinish poles
Estimated Cost: $25,000
Actual Cost: $13,627
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Recreation Park
Goal Posts
Replace football goal posts with hydraulically hinged
removable goal posts
Estimated Cost: $20,000
Actual Cost: $53,828
*City partnered with Prune Packers and HUSD on
this project. Packers funded demolition of existing
goal posts and additional costs in the amount of
$23,828. HUSD contributed $10,000.
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Recreation Park
Grandstand
Paint south side of grandstand
Estimated Cost: $25,000
Actual Cost: $13,988
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Villa
Chanticleer
Storage
Building
Demolish damaged storage building and
concrete steps
Estimated Cost: $25,000
Actual Cost: $10,925
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Villa
Chanticleer
Entrance Gate
Replace existing gate with
automated entrance gate to secure
site at night
Estimated Cost: $20,000
DEFERRED
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Skate Park
Decking and
Shade
Replace damaged decking and install
fabric shade structure to replace
tree that was removed
Cost: $100,000
DEFERRED
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Attachment: Community Services Deferred Maintenance Program (4630 : Community FY23
-24 Deferred Maintenance Project Update: August 2024
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Attachment: Community Services Deferred Maintenance Program (4630 : Community Foley Family Community
Pavilion Construction Progress Update Work completed: Demolition of wall and roof panels Stabilization of historic trusses and installation of new roof purlins
Removal of existing concrete slab inside building Excavation of soils underneath slab and off-haul Shoring of columns and demolition of stem walls In Process: Concrete foundation work and utility
installation (fire, water, sewer)
Next steps: Framing and roofing
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
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Attachment: Community Services Deferred Maintenance Program (4630 : Community
CITY OF HEALDSBURG
CITY COUNCIL AGENDA STAFF REPORT
MEETING DATE: October 21, 2024
SUBJECT: Review and Attest to the Veracity of the 2023 Calendar Year Power Source Disclosure Report and Attestation
PREPARED BY: Terra Sampson, Utility Conservation Analyst STRATEGIC INITIATIVE(S):
Pursue Initiatives that Promote Environmental Stewardship Provide Effective Governance
RECOMMENDED ACTION(S):
Adopt a Resolution attesting to the veracity of the 2023 Power Source Disclosure Report and associated Power Content Label and direct staff to submit the report to the California Energy Commission to meet regulatory obligations.
COMMUNITY ENGAGEMENT/OUTREACH:
The power content label will be provided to every City electric customer in both English and Spanish and is planned to be included with the November utility bill.
BACKGROUND:
Under State law (Public Utilities Code Sections 398.4 and 398.5), retail suppliers of electricity must annually (1) disclose the type of generation resources (e.g., hydroelectric, geothermal, solar, natural gas, etc.) provided to their customers in the form of a Power Content Label (PCL), and (2) report this same information, together with supporting documentation in verified form, to the California Energy Commission (CEC), in the form of a Power Source Disclosure Report (PSD). The intent of the report is to educate customers through the disclosure of accurate, reliable, and simple to understand information regarding the generation attributes of the energy being provided by their service provider.
The PCL includes the overall carbon content for each energy product sold to retail customers.
The City of Healdsburg provides two products: 1) the Healdsburg Standard energy rate, which is a blend of generation from City-owned projects as well as supplemental market purchases and 2) the Healdsburg Green Rate, which includes a mix of renewable energy from plants located within the State of California.
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The CEC’s due date for the PSD report is typically June 1 each year. Although there was an extension this year due to third-party software issues, Healdsburg was not impacted by these software issues and staff compiled and filed the annual PSD by the typical deadline. The next step is for Healdsburg’s City Council to certify the PCL for Healdsburg, which includes the statewide average power mix as compared to Healdsburg’s energy products. Once approved by the City Council, each City electric customer will receive a copy of the 2023 PCL in accordance with the State’s regulation.
DISCUSSION/ANALYSIS:
The State’s regulations for the power source disclosure report include a requirement that the governing board of publicly owned utilities, during a public meeting, attest to the veracity of the annual power source disclosure report and associated power content label. Figure 1 below lists the percentages for the City’s two energy products.
Predominately, Healdsburg electric customers purchase energy under the City’s “Standard” electric service product. This offering is a mix of both renewable, carbon-free, carbon-based energy, and market purchases. This comprises 98% percent of electric accounts and 92% of total electric consumption. As an alternative, Healdsburg electric customers may choose to purchase the City’s “Green Rate”, which provides energy sourced from renewable systems located within the State of California. As all City municipal accounts take service under the Green Rate, the City makes up 65% of the participation and 95% of the electric consumption on the Green Rate (water and wastewater operations require large amounts of energy).
Information regarding the combined community-wide electric resources and associated emissions are also included in Figure 2. It is increasingly important to look at community-wide electric resources as a whole, rather than the individual Green and Standard rates. California’s Renewables Portfolio Standard (RPS), including Senate Bill 100 and Senate Bill 1020, sets requirements for the community-wide electricity provided, including 52% renewable energy by 2027, 60% renewable by 2030, 90% renewable and carbon-free by 2035, 95% by 2040, and 100% renewable and carbon-free by 2045. Due to limited access to new renewable projects with confirmed access to transmission lines, these will be difficult compliance targets to meet.
Regardless, City staff continue efforts to secure new sources of affordable renewable energy.
Overall, 83% of community-wide electricity came from renewable (44%) and carbon-free (39%) sources in 2023. This is in large part due to the wet winter producing higher than normal hydroelectric generation. Hydroelectric energy can vary widely from year to year due to annual rainfall and storage levels. For example, large hydroelectric made up only 11% of electric supply in 2021, and only 60% of community-wide electricity came from renewable and carbon-free sources in 2021. The floating solar project, completed at the Wastewater Reclamation Facility in 2021, also continues to provide an added source of local renewable electricity to the community.
In 2023, the combined (Green and Standard rates) community-wide GHG emissions intensity was 183 lbs. CO2e per MWh, achieving the City-adopted target of 200 lbs. per MWh (Resolution 99-2018).
In 2023, Healdsburg’s Green Rate comprised 100% renewable electricity from geothermal (57%), solar (37%), and small hydroelectric (6%). In 2023, Healdsburg’s Standard Rate
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comprised 40% renewable electricity from geothermal (23%), solar (13%), and small hydroelectric (3%). When also including large hydroelectric (43%), Healdsburg’s standard rate increases to 82% renewable and carbon-free electricity for the Standard Rate.
City staff continue to increase the amount of renewable and carbon-free energy provided to Healdsburg’s electric customers and pursue opportunities to develop new projects. Currently, the City is working with other owners of the Lodi Energy Center, a natural gas plant, to incorporate green hydrogen and reduce carbon emissions from the plant. The City has also recently contracted for a new solar project, to be completed in 2028, and provide approximately 7,500 MWh (roughly 9% of community-wide electricity) of additional renewable electricity.
Additionally, staff are working with a consultant to develop a long-range community-wide electric energy and demand forecast estimating future usage and peak demands due to adoption of building and transportation electrification. The forecast will help inform the amount of new energy sources and system capacity improvements required to meet Healdsburg’s 24/7/365 energy demands, remain compliant with State renewable and carbon-free targets, and develop a local resolution for exceeding the State 2030 target with 85% renewable and carbon-free resources by 2030 (per the adopted Climate Mobilization Strategy).
This forecast will develop estimated hourly electric demands over the course of the year, allowing electric department staff to plan for meeting electric demands 24/7/365 from weather dependent renewable and carbon-free generation sources to meet customer energy demands as they occur. This planning effort, to match renewable resources to forecasted energy demands, will help reduce costly over purchasing of intermittency of weather-based resources (solar, hydroelectric, wind, etc.).
At this time, most official reporting of energy consumption is on an annualized basis. The State’s PSD report has its limitations in capturing true GHG emissions required to provide electric service 24/7/365. For example, natural gas plants may have served the electric generation needed to provide electricity at a specific moment in time (evening air-conditioning), but if a low- or nocarbon resource was over-generated or over-purchased, then this omits the natural gas emissions within the PSD report. Therefore, the PSD provides an annualized accounting of GHG emissions but does not necessarily reflect the day-to-day or hour-to-hour generation sources and GHG emissions necessary to provide reliable electric service. Currently, Healdsburg does not purchase carbon offsets to lower the annualized electricity emissions; though in some years such as 2023 with high hydroelectric production, the annual reporting is lowered from over-production of zero-carbon resources. In the future, State reporting may move more towards monthly or hourly generation to more accurately represent and assign GHG emissions.
Staff also notes that the PCL for the Standard rate will look substantially different for 2024. Per Council Resolution 151-2023, staff have been selling excess Renewable Energy Credits (RECs) on the market in 2024 to create additional revenue for electric projects. This will substantially reduce the renewable sources claimed in the 2024 and 2025 Standard Rate PSD. Although it will appear as if renewables are being reduced in these years, it is only a temporary policy shifting carbon obligations between NCPA members. Through the use of historical carryover RECs (the City’s reward for early adoption of renewable energy), the City will continue to meet State RPS
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requirements regardless of the REC sale. Revenue generated from the sale of these RECs is expected to reach roughly $1.6 million in fiscal year 2024/25 and fiscal year 2025/26. These onetime revenues can be used to benefit Healdsburg electric customers through additional programs, improved services, or direct bill savings. Staff plans to seek further direction from Council for the expenditure of these funds in January of 2025.
In addition to the resources either owned or contracted by the City for the community, there are many customer-owned solar and battery storage systems within Healdsburg. Healdsburg residents and businesses have 395 solar arrays and 67 battery systems. These customer owned systems are estimated to produce over 6,500 MWh per year and represent roughly an additional 9% of the community’s annual electricity needs. This self-generation reduces the amount of midday energy required by the community. As California has an abundance of mid-day solar generation, the City is also developing programs to shift loads towards these periods of abundant renewables and away from peak demand periods in the early evening.
Figure 1. 2023 Power Content Label
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Figure 2. 2023 Community-Wide Electric Resources
The numbers shown in the PSD come from both City and Northern California Power Agency (NCPA) staff working collaboratively to confirm the accuracy and compliance of energy supplied in 2023. This effort included cross checking numbers from the California Independent System Operator, NCPA generation metering, validations of market purchases from unspecified sources, review of certified Renewable Energy Credits (REC), tracking of solar generation, and customer sales records. Through this iterative process, City staff are confident that the PSD and PCL provide the most accurate information for the public.
Attached to this report is a resolution that, if adopted by Council, approves an attestation of the veracity of the 2023 PCL for Healdsburg’s Standard and Green electric service products, and directs staff to submit the report to the CEC.
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ENVIRONMENTAL STEWARDSHIP:
Providing the power content label to City electric customers helps to educate consumers on the types of generation being used to meet their energy needs. Informing customers of their energy sources helps to steer policies regarding procurement of renewable and carbon free energy.
Electricity consumption in 2023 resulted in 6,231 MT CO2e greenhouse gas (GHG) emissions.
This is roughly half of the emissions in 2022 due to increased hydro-electric generation.
ALTERNATIVES:
Council could choose not to adopt the resolution attesting the veracity of the 2023 PCL for Healdsburg Standard and Green electric service products. Staff would request additional direction if this alternative is pursued, as submitting this attestation is a state requirement.
FISCAL IMPACT:
There is no fiscal impact related to the recommended action.
ENVIRONMENTAL ANALYSIS:
The approval of the Power Source Disclosure and Power Content Label is not subject to the provisions of the California Environmental Quality Act (CEQA) because the Power Source Disclosure Program is not a project, since it will not have a direct or reasonably foreseeable indirect impact on the environment.
ATTACHMENT(S):
Resolution
2023 Power Content Label
DRAFT Healdsburg Power Content Label 2023 Bill Insert
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CITY OF HEALDSBURG
RESOLUTION NO. -2024
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG ATTESTING TO THE VERACITY OF THE
2023 POWER SOURCE DISCLOSURE AND ASSOCIATED
POWER CONTENT LABEL AND DIRECTING STAFF TO
SUBMIT THE REPORT TO THE CALIFORNIA ENERGY
COMMISSION
WHEREAS, the City of Healdsburg owns and operates a publicly owned utility subject to certain laws and requirements of the State Legislature; and WHEREAS, Public Utility Code establishes a Power Source Disclosure (PSD) program that requires retail sellers of electricity to annually submit a power source disclosure report to the California Energy Commission; and
WHEREAS, Healdsburg Electric Department is a retail seller of electricity as defined by the PSD Program and is therefore required to provide electric customers an annual power content label (PCL); and
WHEREAS, Healdsburg staff prepared and submitted the 2023 Annual Power Source Disclosure Report to the Energy Commission in accordance with the timelines of the regulation; and
WHEREAS, the PCL for the City’s Standard and Green energy service products is consistent with the earlier filed PSD; and
WHEREAS, the approval of the Power Source Disclosure and Power Content Label is not subject to the provisions of the California Environmental Quality Act (CEQA) because the Power Source Disclosure Program is not a project, since it will not have a direct or reasonably foreseeable indirect impact on the environment.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Healdsburg does hereby:
1. Find that the approval of the Power Source Disclosure and Power Content Label is not subject to the provisions of the California Environmental Quality Act (CEQA) because the Power Source Disclosure Program is not a project, since it will not have a direct or reasonably foreseeable indirect impact on the environment.
2. Attest to the veracity of the 2023 Power Source Disclosure and associated Power Content Label for Healdsburg’s “Standard Rate” and “Green Rate” electric service products and direct staff to submit the annual report to the California Energy Commission.
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Attachment: Resolution (4554 : 2023 Power Content Label) Resolution No. -2024
PASSED, APPROVED AND ADOPTED, this 21st day of October 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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Attachment: Resolution (4554 : 2023 Power Content Label) 2023 POWER CONTENT LABEL
City of Healdsburg
www.healdsburg.gov/powercontent
Greenhouse Gas Emissions Intensity
(lbs CO2e/MWh) Energy Resources Standard
Rate Green Rate 2023 CA Power Mix
Eligible Renewable1 39.4% 100.0% 36.9%
Biomass & Biowaste 0.0% 0.0% 2.1%
194 68 373 Geothermal 23.1% 57.1% 4.8%
Eligible Hydroelectric 2.9% 6.2% 1.8%
Solar 13.3% 36.7% 17.0%
Wind 0.0% 0.0% 11.2%
Coal 0.0% 0.0% 1.8%
Large Hydroelectric 42.5% 0.0% 11.7%
Natural Gas 18.1% 0.0% 36.6%
Nuclear 0.0% 0.0% 9.3%
Other 0.0% 0.0% 0.1%
Unspecified Power2 0.0% 0.0% 3.7%
TOTAL 100.0% 100.0% 100.0%
Percentage of Retail Sales Covered by Retired Unbundled RECs3: 0% 0% 1 The eligible renewable percentage above does not reflect RPS compliance, which is determined using a different methodology. 2 Unspecified power is electricity that has been purchased through open market transactions and is not traceable to a specific generation source. 3
Renewable energy credits (RECs) are tracking instruments issued for renewable generation. Unbundled renewable energy credits (RECs) represent renewable generation that was not delivered to serve retail sales. Unbundled RECs are not reflected in the power mix or GHG emissions intensities above.
For specific information about this electricity
portfolio, contact:
City of Healdsburg
707-431-3122
For general information about the Power Content
Label, visit:
https://www.energy.ca.gov/programs-and-topics/programs/powersource-disclosure-program Standard Rate Green Rate 2023 CA Utility
Average
0 200
400
600
800
1000
Standard Rate
Green Rate
2023 CA Utility
Average
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Attachment: 2023 Power Content Label (4554 : 2023 Power Content Label)
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Attachment: DRAFT Healdsburg Power Content Label 2023 Bill Insert (4554 : 2023 Power Content Label)
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Attachment: DRAFT Healdsburg Power Content Label 2023 Bill Insert (4554 : 2023 Power Content Label)
CITY OF HEALDSBURG
CITY COUNCIL AGENDA STAFF REPORT
MEETING DATE: October 21, 2024
SUBJECT: Ordinance Approving Fourth Amendment to the Development Agreement between City of Healdsburg and Replay Healdsburg, LLC
PREPARED BY: Linda Ruffing, Planning Consultant
STRATEGIC INITIATIVE(S):
Expand Affordable Housing Opportunities
Provide Effective Governance
RECOMMENDED ACTION(S):
Pass an ordinance amending the Development Agreement by and between the City of Healdsburg and Replay Healdsburg, LLC, for the Mill District project based on the suggested findings.
COMMUNITY ENGAGEMENT/OUTREACH:
On August 13, 2024, the Planning Commission conducted a public hearing on the Fourth Amendment to the Development Agreement ("Fourth Amendment") and related amendments to the Master Conditional Use Permit ("MCUP") for the Mill District project. At the August 13, 2024 meeting, the Commission also adopted Resolution No. 2024-11 recommending that the City Council approve the Fourth Amendment, and Resolution No. 2024-12 approving related amendments to the MCUP.
On September 16, 2024, the City Council conducted a public hearing and introduced, 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. At the September 16, 2024 meeting, the Council also adopted resolutions approving Tentative Subdivision Maps for Lot 1, Lot 2 and Lot 3 of the Mill District project.
Notices of the Planning Commission's August 13, 2024 public hearing 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.
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BACKGROUND:
On September 16, 2024, after conducting a public hearing, the City Council introduced an ordinance approving a Fourth Amendment to the Development Agreement between the City of Healdsburg and Replay Healdsburg, LLC ("Developer") to:
▪ relocate the Residential Amenity from Lot 1 to Lot 5l relocate all 29 remaining Middle Income Units to Lot 3;
▪ replace eight Affordable by Design Housing Units with eight Ownership Middle Income Units; modify the timing for completion of Middle Income Units; ▪ clarify that all Middle Income Units shall have access to the Residential Amenity; allow all 29 Middle Income Units on Lot 3 to be sold as Ownership Middle Income Housing Units;
▪ allow Hotel Investment Suite Use on Lot 1;
▪ require an agreement for Payment-In-Lieu of Transient Occupancy Tax (PILOT Agreement);
▪ limit vested rights and life of project approvals related to Hotel Investment Suite use; ▪ waive payment of additional Quimby Act in-lieu fees in exchange for modifications to Park boundaries; and
▪ modify timing for payment of Connectivity Funds.
The ordinance is presented in Attachment 1.
DISCUSSION/ANALYSIS:
The staff report for the Council's consideration of the Fourth Amendment on September 16, 2024 provides a detailed explanation and analysis of the modifications to the Development Agreement within the proposed Fourth Amendment. The City Council did not direct that any changes to the Fourth Amendment be made and, after conducting a public hearing, the Council introduced the ordinance for a first reading.
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:
No alternatives are provided in that the requested action is the second reading of an ordinance.
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.
ENVIRONMENTAL ANALYSIS:
The environmental review for the Mill District project ("Project") relied upon the certified EIR
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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 Adopting 4th DA Amendment-Mill District)
2. Exhibit A. Fourth Amendment to Development Agreement
3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement
4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement
5. Exhibit A_Exhibit C_Exhibit D_Exhibit B. Homebuyer Promissory Note
6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust
7. Exhibit A_Exhibit C_Exhibit D_Exhibit D. Substitution of Trustee and Reconveyance of Deed of Trust and Release of Resale Restriction Agreement
8. Exhibit A_Exhibit D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement
9. Exhibit A_Exhibit E. Definition of Hotel Investment Suite Use and Conditions of Operation
10. Exhibit A_Exhibit E_Att 1. PILOT Agreement
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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
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Attachment: 1. Ordinance Adopting 4th DA Amendment-Mill District) (4638 : Fourth Amendment to the Development Agreement between City of Ordinance No. ___
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 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.
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Attachment: 1. Ordinance Adopting 4th DA Amendment-Mill District) (4638 : Fourth Amendment to the Development Agreement between City of Ordinance No. ___
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 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
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Attachment: 1. Ordinance Adopting 4th DA Amendment-Mill District) (4638 : Fourth Amendment to the Development Agreement between City of Ordinance No. ___
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 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
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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 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 21st day of October, 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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Attachment: 1. Ordinance Adopting 4th DA Amendment-Mill District) (4638 : Fourth Amendment to the Development Agreement between City of 4873-6597-3154 v9 1
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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Attachment: 2. Exhibit A. Fourth Amendment to Development Agreement (4638 : Fourth Amendment to the Development Agreement between 4873-6597-3154 v9 2
(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 conditionally permitted use in said zoning district applicable to the Project in accordance with
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Article II, Chapter 20.28,Title 20 of the Healdsburg Municipal Code. The CC&Rs for the Master Association and for the Lot 3 Sub-Association shall include a provision to limit the amount of an annual increase in the total homeowners’ association dues, regular assessments and/or reserves inclusive of fees for the applicable Condominium Sub-association, Master Association, and Private Recreation Facility License Fee ("Combined HOA Fees") payable by an Ownership Middle Income Housing Unit. An annual increase in Combined HOA Fees for Ownership Middle Income Housing Units shall be limited to an amount not to exceed the annual percentage increase in the Consumer Price Index (CPI) for All Urban Consumers (CPIU), for the San Francisco-Oakland-Hayward area, as published by the U.S. Bureau of Labor Statistics. The adjustment shall be calculated by comparing the CPI from April of the previous year to April of the current year. If the CPI shows no increase or a decrease, the Combined HOA Fees shall remain unchanged for the subsequent year. Adjusted payments shall take effect on July 1 and continue for, at a minimum, the following 12-month period.
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.
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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.
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:
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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: 2. Exhibit A. Fourth Amendment to Development Agreement (4638 : Fourth Amendment to the Development Agreement between 4873-6597-3154 v9 B-5
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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-6597-3154 v9E-2
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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Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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 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. “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 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 thencurrent 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.
6.B.c
Packet Pg. 103 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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 ninety (90) 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 an Ownership Middle Income Housing Unit.
6.B.c
Packet Pg. 104 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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,
6.B.c
Packet Pg. 105 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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.
6.B.c
Packet Pg. 106 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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;
6.B.c
Packet Pg. 107 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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
6.B.c
Packet Pg. 108 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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
6.B.c
Packet Pg. 109 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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
6.B.c
Packet Pg. 110 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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
6.B.c
Packet Pg. 111 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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
6.B.c
Packet Pg. 112 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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:
6.B.c
Packet Pg. 113 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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.
6.B.c
Packet Pg. 114 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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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Packet Pg. 115 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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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Packet Pg. 116 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8 25
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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Packet Pg. 117 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8 26
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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Packet Pg. 118 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8 27
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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Packet Pg. 119 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8 28
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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Packet Pg. 120 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8 29
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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Packet Pg. 121 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8 1
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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Packet Pg. 122 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8 2
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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Packet Pg. 123 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 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. 124 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 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. 125 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863-9678-2029 v8
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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Packet Pg. 126 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 4863
-9678-2029 v8
Exhibit D
RESALE RESTRICTION AGREEMENT
[to be attached]
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Packet Pg. 127 Attachment: 3. Exhibit A_Exhibit C. Amended And Restated Middle Income Housing Agreement (4638 : Fourth Amendment to the Development 1 RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attn: City Clerk
APN: _________________________
_
Exempt From Recording Fee Per (Space above for Recorder's Use) Government Code Section 27383 And Building Homes And Jobs Trust Fund Fee Per Government Code Section 27388.1(a)(2)(D)
BUYER'S OCCUPANCY AND RESALE RESTRICTION AGREEMENT
WITH RIGHT OF FIRST REFUSAL
CITY OF HEALDSBURG
(Insert Property Address)
This Buyer's Occupancy and Resale Restriction Agreement with Right of First Refusal (this "Agreement") is entered into as of ________________, 20__, by and between the City of Healdsburg, a California municipal corporation (the "City"), and __________________________ (the "Owner").
RECITALS
A. Pursuant to the terms of that certain Development Agreement between the City and Replay Healdsburg, LLC, a Delaware limited liability company, recorded on July 5, 2019 as Document No. 2019046003 in the Official Records of Sonoma County (the "Official Records"), and that certain Middle Income Housing Regulatory Agreement, recorded on ______________, 20__, as Document No. ________________ in the Official Records, that certain property described in Exhibit A to this Agreement (the "Home") was designated as a Middle Income Unit, to be made available for sale only to Middle Income Households at a price not to exceed a Middle Income Housing Cost for a period of forty-five (45) years.
B. Owner is a Middle Income Household, and is purchasing the Home. As a condition of purchasing the Home, and in exchange for having the opportunity to acquire the Home at a price not to exceed a Middle Income Housing Cost, Owner is required to enter into this Agreement to ensure the continued affordability of the Home, consistent with the Development Agreement and Middle Income Housing Regulatory Agreement.
C. This Agreement also provides the City a right of first refusal to purchase the Home at a Restricted Price, given in consideration of the economic benefits to the Owner resulting from the purchase of the Home at a price not to exceed a Middle Income Housing Cost.
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Packet Pg. 128 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 2 NOW, THEREFORE, in consideration of the mutual covenants, promises, and benefits of this Agreement, the sufficiency of which is hereby acknowledged, the Owner and the City agree as follows:
ARTICLE 1. DEFINITIONS AND EXHIBITS
Section 1.1 Definitions. Unless otherwise specified in this Agreement, the following capitalized terms shall have the meanings set forth below:
(a) "Additional Financing", if obtained by Owner, is defined in Section 2.1. (b) "Agreement" is defined in the opening paragraph.
(c) "Area Median Income" shall mean the median income for Sonoma County, California as determined by the U.S. Department of Housing and Urban Development pursuant to Section 8 of the United States Housing Act of 1937, and as published from time to time by the California Department of Housing and Community Development 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). For purposes of calculating a Middle Income Housing Cost or Middle Income Rent, Area Median Income shall be adjusted for an assumed household of one person in the case of a studio unit, two persons in the case of a onebedroom unit, three persons in the case of a two-bedroom unit, four persons in the case of a three-bedroom unit, and one additional person for every additional bedroom thereafter. For purposes of determining whether a household is a Middle Income Household, Area Median Income shall be adjusted according to the actual size of that household. (d) "City" is defined in the opening paragraph.
(e) "City Deed of Trust" shall mean the deed of trust, the form of which is attached hereto as Exhibit C, executed by the Owner for the benefit of the City and securing the City Note.
(f) "City Note" shall mean the promissory note, the form of which is attached hereto as Exhibit B, executed by the Owner securing the Owner's payment of Excess Sales Proceeds and Excess Rental Proceeds.
(g) "Default" is defined in Section 5.1.
(h) "Excess Sales Proceeds" shall mean the amount by which the gross sales proceeds received by the Owner from a Transfer of the Home exceeds the maximum possible Middle Income Housing Cost.
(i) "Excess Rental Proceeds" shall mean the amount by which the gross rental income received by the Owner from any lease of the Home exceeds a Middle Income Rent. (j) "Fair Market Value" means the value of the Home as determined by an appraisal dated no sooner than thirty (30) days prior to the date of the Owner's Notice of Intent to
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Packet Pg. 129 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 3 Sell and prepared by a certified Member of the Appraisal Institute (MAI) chosen by the Owner with experience appraising residential properties in Sonoma County. (k) "First Lender Loan" is defined in Section 2.1.
(l) "Form of Release" is defined in Section 4.6(c).
(m) "Inheriting Owner" is defined in Section 4.3.
(n) “Listing Agreement” is defined in Section 4.4(c).
(o) "Middle Income Household" shall mean a household whose gross income upon initial occupancy is neither less than one hundred twenty percent (120%) of Area Median Income nor more than one hundred sixty percent (160%) of Area Median Income; provided that "gross income" shall include the combined, gross, pre-tax income of all adult occupants of the household, as calculated under California Code of Regulations, Title 25, Section 6914. (p) "Middle Income Housing Cost" shall mean a sales price of the Home calculated to result in 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 one-twelfth of thirty-three percent (33%) of one hundred sixty percent (160%) of Area Median Income, assuming a fixed 30-year mortgage at then-current prevailing interest rates and an assumed down payment of ten percent (10%) of the sales price.
(q) "Middle Income Rent" shall mean the following amount, including 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 not telephone service, Internet, or cable or subscription TV, plus other fees and charges required to be paid by tenants of the Home on a non-optional basis other than security deposits: a monthly rent that does not exceed one-twelfth of thirty three percent (33%) of one hundred sixty percent (160%) of Area Median Income. (r) "Official Records" is defined in Recital A.
(s) "Owner" is defined in the opening paragraph.
(t) "Owner's Notice of Intent to Sell" is defined in Section 4.4(a). (u) "Permitted Transfer" is defined in Section 4.1.
(v) "Proposed Purchaser" is defined in Section 4.4(c).
(w) “Purchase Agreement” is defined in Section 4.6(a).
(x) "Response Notice" is defined in Section 4.4(b)
(y) "Restricted Price" is defined in Section 4.6(a).
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Packet Pg. 130 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 4 (z) "Right of First Refusal" is defined in Section 4.6(a). (aa) "Spouse" shall mean, (i) an individual legally married to the Owner; (ii) a registered domestic partner of the Owner, pursuant to Family Code Section 297, et seq.; or (iii) a registered domestic partner of the Owner pursuant to any local domestic partner registry created by any city, county, or city and county in California.
(bb) "Transfer" is defined in Section 4.1, and for greater clarity does not include a Permitted Transfer.
Section 1.2 Exhibits. The following exhibits are attached to this Agreement, and are incorporated by this reference:
EXHIBIT A: Legal Description of the Home
EXHIBIT B: Form of City Note
EXHIBIT C: Form of City Deed of Trust
EXHIBIT D: Form of Release
ARTICLE 2. APPROVED FINANCING; LIEN PRIORITY
Section 2.1 Approved Financing. The City acknowledges that the Owner is acquiring the Home, in part, with a first purchase money loan (the "First Lender Loan"). [The City further acknowledges that the Owner is acquiring the Home with the following additional financing, which has been approved in advance by the City (the "Additional Financing"): ___.] Section 2.2 Lien Priority. This Agreement is accompanied by the City Note from the Owner to the City pursuant to which the Owner agrees to pay any Excess Sales Proceeds or Excess Rental Proceeds to the City. The City Note is secured by the City Deed of Trust. The City Deed of Trust is subordinate to this Agreement, the First Lender Loan, and the lien of the Additional Financing, if any. However, this Agreement shall be superior to and have lien priority to the lien of the First Lender Loan, Additional Financing, if any, and any other lien, mortgage or deed of trust encumbering the Home.
ARTICLE 3.OWNER CERTIFICATIONS AND
GENERAL OBLIGATIONS
Section 3.1 Owner Certification. The Owner certifies that the financial and other information previously provided in order to qualify to purchase the Home is true and correct as of the date first written above.
Section 3.2 Owner Occupation. The Owner shall occupy the Home as the Owner's principal and sole place of residence within thirty (30) days of close of escrow and for the entire term of this Agreement. The Owner shall be considered as occupying the Home if the Owner is living in the Home for at least ten (10) months out of each calendar year. Owner shall comply
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Packet Pg. 131 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 5 with reasonable requests from the City to certify that the Home is occupied as the Owner's principal residence.
Section 3.3 No Rentals. Except as provided in Section 3.4, the rental or lease of the Home or any portion thereof for any period of time is prohibited.
Section 3.4 Leasing. The Owner may lease or rent the Home with the permission of the City, as may be granted or denied in its sole and exclusive discretion, and subject to such conditions as the City may reasonably require, including but not limited to the following conditions:
(a) The term of the rental or lease shall not be greater than twelve (12) months unless extended by the City;
(b) As a condition of renting or leasing the Home, the Owner shall demonstrate to the City's reasonable satisfaction that the Owner will incur some special hardship if not permitted to rent or lease the Home to a third party; (c) The tenant shall qualify as a Middle Income Household, as certified to the City;
(d) The rent for the home shall be a Middle Income Rent; (e) Any outstanding amounts due on the First Lender Loan, Additional Financing, if any, and any other lien, mortgage or deed of trust encumbering the Home, and any home owner association assessments have been paid in full, all insurance premiums are current and any outstanding maintenance of the Home has been addressed; and (f) Subject to the rights of senior lenders, any Excess Rental Proceeds collected by the Owner shall be due and payable upon receipt by the Owner, and shall be considered a recourse debt of the Owner to the City, as evidenced by the City Note.
Section 3.5 Maintenance.
(a) The Owner shall maintain the Home and all landscaping in good repair and in a neat, clean, sanitary, and orderly condition, in accordance with all applicable laws, so as not to cause any nuisance. The Owner agrees not to commit any waste or to permit deterioration of the Home, and shall make reasonable repairs to the Home as necessary. (b) The Owner shall pay all homeowners association assessments levied against the Home on or before the due date of the assessment, and shall perform all obligations required in any declaration of covenants, conditions, and restrictions recorded against the Home.
Section 3.6 Insurance. The Owner shall maintain a standard all risk property insurance policy equal to the replacement value of the Home. Additional insurance requirements are set forth in the City Deed of Trust. The Owner shall provide the City with evidence of required insurance coverage upon request. If the Home is damaged or destroyed and the Owner elects not to rebuild or repair the Home, the Owner shall pay the City the portion of any
6.B.d
Packet Pg. 132 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 6 insurance proceeds received by the Owner for such destruction or damage that is in excess of a Middle Income Housing Cost.
ARTICLE 4.RESTRICTIONS ON RESALE OR TRANSFER
Section 4.1 Transfer. Any Transfer of the Home will be subject to the provisions of this Agreement including, without limitation, the exercise of the City's Right of First Refusal.
Any Transfer without satisfaction of the provisions of this Agreement shall constitute a Default.
For purposes of this Agreement, "Transfer" means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home, including, but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which possession of the Home is transferred and Owner retains title, any lien or mortgage, or a deed of trust, including any refinancing of the First Lender Loan, Additional Financing, if any, and any other lien, mortgage or deed of trust. A Transfer shall not include any of the following, each instead a "Permitted Transfer":
(a) To an existing Spouse;
(b) By an Owner to a Spouse where the Spouse becomes the co-owner of the Home;
(c) Between Spouses as part of a dissolution proceeding; (d) To an existing Spouse by devise or inheritance following the death of the Owner;
(e) To an existing joint tenant with the right of survivorship upon the death of an Owner, provided the joint tenant(s) are listed as parties to this Agreement as of the date of this Agreement; or
(f) By Owner to an inter vivos revocable trust in which the Owner is the beneficiary, trustor, and trustee.
Section 4.2 Notice of Permitted Transfer; Other Conditions. Owner shall provide written notice of all Permitted Transfers to the City within thirty (30) days of the date of the Permitted Transfer; and Owner shall continue to occupy the Home as his or her principal place of residence, except where the Permitted Transfer occurs because of the Owner's death, in which event the transferee shall owner-occupy the Home and affirmatively assume Owner's obligations under this Agreement, the City Note, and the City Deed of Trust.
Section 4.3 Inheritance.
(a) In the event a Transfer occurs by devise or inheritance due to death of the Owner, the administrator of the Owner's estate or the person inheriting the Home shall provide written notice to the City of the Owner's death within sixty (60) days of the date of death. (b) Prior to taking title to the Home, the person inheriting the Home (the "Inheriting Owner") shall provide the City with income information, to be verified by the City,
6.B.d
Packet Pg. 133 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 7 so that the City may determine if the Inheriting Owner is a Middle Income Household. If the Inheriting Owner fails to provide required financial information and/or documentation, he or she shall be deemed not to qualify as a Middle Income Household. If the Inheriting Owner qualifies as a Middle Income Household, he or she shall succeed to the Owner's interest and obligations under this Agreement, the City Note, and the City Deed of Trust, and new documents shall be executed between the Inheriting Owner and the City and recorded against the Home, and the documents with the Inheriting Owner shall have a remaining term of forty-five (45) years. If the Inheriting Owner fails to qualify as a Middle Income Household, he or she shall be required to Transfer the Home as set forth in Section 4.4, below; provided, however that the Inheriting Owner may own and occupy the Home for up to twelve (12) months prior to providing an Owner's Notice of Intent to Sell to the City, and provided further that the Inheriting Owner remains in compliance with the requirements of this Agreement and the City Deed of Trust. The Inheriting Owner shall not be required to occupy the Home during this twelve (12)-month time period, but shall not rent the Home except as provided in Section 3.4 above. (c) If the Inheriting Owner is a minor child, such Inheriting Owner and his or her legal guardian may occupy the Home for the time period prescribed in Probate Code Section 6500 without the City determining that the legal guardian qualifies as a Middle Income Household.
(d) For greater clarity, this Section does not apply in the case of a Permitted Transfer resulting from the Owner's death.
Section 4.4 Sale of the Home.
(a) If the Owner intends to Transfer or vacate the Home, the Owner shall give the City prompt written notice of such intent (the "Owner's Notice of Intent to Sell"). The Owner shall give the Owner's Notice of Intent to Sell prior to taking any affirmative steps to sell the Home, such as listing the Home on the Multiple Listing Service. The Owner's Intent to Sell shall include, (i) the address of the Home; (ii) the date on which the Owner intends to vacate the Home; (iii) the date the Home will be placed on the market; and (iv) the Owner's daytime phone number.
(b) Upon receipt of the Owner's Notice of Intent to Sell, the City shall calculate the Middle Income Housing Cost, and shall submit such calculation to the Owner within fifteen (15) days of Owner's Notice of Intent to Sell (the "Response Notice"). (c) After delivering the Owner's Notice of Intent to Sell, the Owner shall ensure that the Home is in a saleable condition, and after receipt of the City’s Response Notice may take steps to market the Home to a buyer (the "Proposed Purchaser"). Owner shall retain a real estate agent, real estate broker, or similar professional to assist Owner with the sale of the Home and any commission or other charge of a real estate agent, real estate broker, or similar professional retained by Owner shall be Owner's exclusive obligation, and the City shall not be liable for any such cost. The Owner shall use bona fide good faith efforts to sell the Home in compliance with this Agreement, which shall include listing the Home on the Multiple Listing Service, keeping the Home in an orderly condition, making it available to show agents and prospective buyers, and providing buyers with eligible purchaser requirements, including income
6.B.d
Packet Pg. 134 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 8 qualifications. Owner shall provide to City a fully executed and dated copy of the agreement (the “Listing Agreement”) between Owner and the real estate agent, real estate broker, or similar professional engaged by Owner to assist with the sale of the Home within five (5) days of its execution.
(d) Any Proposed Purchaser shall be a Middle Income Household. The sale shall be at a Middle Income Housing Cost, and although closing costs shall not be included in the sales price for purposes of determining the maximum sales price, closing costs paid by the Proposed Purchaser shall be reasonable and customary in Sonoma County. The City shall verify that the sale complies with this subsection, as described in Section 4.5, below. As a condition of the City's approval of the sale, the Proposed Purchaser shall agree to sign a promissory note, deed of trust, and buyer's occupancy and resale restriction with right of first refusal substantially similar to this Agreement. It shall be a Default under this Agreement if escrow closes without the foregoing documents being executed by the Proposed Purchaser and recorded as part of the escrow, and certified copies of all of the foregoing documents shall be forwarded to the City within three (3) days of the close of escrow, together with all other information and documentation relating to the escrow that the City may reasonably request.
Section 4.5 City Approval of Proposed Sale.
(a) The Owner and the Proposed Purchaser shall provide the following information and documents to the City within ten (10) days of an offer from the Proposed Purchaser:
(1) The name, address and telephone number in writing of the Proposed Purchaser.
(2) A signed financial statement of the Proposed Purchaser in a form acceptable to the City and any other supporting documentation requested by the City. Owner acknowledges that the City may request the following documentation, (i) pay stubs for the most recent pay periods; (ii) income tax returns for the three (3) most recent tax years; (iii) an income verification form from the Proposed Purchaser's current employer; (iv) an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; and/or (v) if the Proposed Purchaser is unemployed and has no such tax return, another form of independent verification of income. The financial information shall be used by the City to determine the income eligibility of the Proposed Purchaser.
(3) The proposed sales contract and all other related documents which shall set forth all the terms of the sale of the Home, including a HUD-1 Settlement Statement.
Said documents shall include at least, (i) the sales price; and (ii) the price to be paid by the Proposed Purchaser for the Owner's personal property, if any, for the services of the Owner, if any, and any credits, allowances or other consideration, if any. (b) Within ten (10) days (excluding weekends and City holidays) of receipt of the documentation and information described in subsection (a) of this Section, the City shall approve or disapprove the Proposed Purchaser and terms of sale. Within ten (10) days of the City's
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Packet Pg. 135 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 9 approval, but in any event prior to the close of escrow, the Owner and Proposed Purchase Purchaser shall notify the City of the name of the title company escrow holder for the sale of the Home, the escrow number, and name, address, and phone number of the escrow officer.
Section 4.6 City Right of First Refusal; Release.
(a) If an escrow is not opened within ninety (90) days of the date of the Listing Agreement, the City or its designee shall, for a period of ninety (90) additional days, have a right of first refusal (the "Right of First Refusal") to purchase the Home at the lesser of, (i) the Fair Market Value, or (ii) the maximum possible price that is a Middle Income Housing Cost (the "Restricted Price"). The exercise of the City's Right of First Refusal shall be in the City's sole and absolute discretion, and City shall have no obligation to the Owner, a successor in interest to the Owner, or any other person to exercise the same. The City or its designee shall exercise the Right of First Refusal by delivering notice of the same to the Owner, together with the City's calculation of the Restricted Price and a standard form of California Residential Purchase Agreement And Joint Escrow Instructions (the “Purchase Agreement”) prepared by the California Association of Realtors or similar organization, executed by City. Owner shall countersign the Purchase Agreement and promptly return a fully executed copy thereof to the City within five (5) days of receipt. Within sixty (60) days of the date of the Purchase Agreement, the City or its designee shall complete the purchase of the Home, bearing all customary closing costs for buyers in Sonoma County. Owner shall execute any and all documents, instruments and instructions as may reasonably be required by City or escrow to complete the sale of the Home to City or its designee. Thereafter, this Agreement shall be released from the Home.
(b) Notwithstanding subsection (a) of this Section, the Owner may continue to market the Home during the City's period within which to exercise the Right of First Refusal. If the Owner receives an offer on the Home from a Proposed Purchaser during that period, then during the City's review of documentation pursuant to Section 4.5 above, the City may exercise its Right of First Refusal, provided that in that case the City shall be required to pay Owner for the Home the greater of, (i) the Restricted Price, or (ii) the amount of the Proposed Purchaser's offer, not to exceed a Middle Income Housing Cost.
(c) If the City or designee does not exercise its right of first refusal within the ninety (90) day period set forth in subsection (a) of this Section, then the Owner shall be free to sell the Home to any buyer at any price without restriction or City approval, and the City shall execute the release and reconveyance attached to this Agreement as Exhibit D (the "Form of Release"); provided, however, that the Owner shall assign any Excess Sales Proceeds to the City to be used by the City for affordable housing programs.
Section 4.7 Refinance and Subordinate Loans.
(a) Any refinancing of the First Lender Loan or the Additional Financing, and any new subordinate loans, shall require the City's approval, which shall not be unreasonably delayed or conditioned, and which shall be granted if such financing is consistent with the requirements of this Section.
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Packet Pg. 136 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 10 (b) The City shall permit a prepayment and refinance of the First Lender Loan, provided that,
(1) Following such refinance, the principal amount of all debt secured by the Home does not exceed the greater of, (i) ninety percent (90%) of the Middle Income Housing Cost, (ii) the remaining balance on the First Lender Loan, or (iii) such other amount approved in writing by the City in its sole and absolute discretion in order to prevent substantial hardship to the Owner;
(2) The refinanced First Lender Loan is a fully amortized fixed rate loan, is fully documented, has a term not exceeding thirty (30) years, and requires no balloon payments;
(3) If the remaining balance of the original First Lender Loan exceeds ninety percent (90%) of the Middle Income Housing Cost, then the refinanced First Lender Loan reduces the Owner's principal and interest payments; and (4) The total new housing cost to the Owner after the refinance does not exceed the Owner's ability to pay, as reasonably determined by City. (c) Subordinate loans, including second or junior loans and equity lines of credit, are not permitted except as expressly approved by the City in writing. The City shall permit only those subordinate loans that conform to all of the following:
(1) Following the addition of the subordinate loan (calculated assuming a maximum permitted draw on any equity line of credit), the principal amount of all debt secured by the Home shall not exceed the greater of, (i) seventy-five percent (75%) of the Middle Income Housing Cost, (ii) the remaining balance on the First Lender Loan, or (iii) such other amount approved in writing by the City in its sole and absolute discretion in order to prevent substantial hardship to the Owner; and
(2) The total new housing cost to the Owner does not exceed the Owner's ability to pay, as reasonably determined by City.
ARTICLE 5. DEFAULT AND REMEDIES
Section 5.1 Defaults. The following events shall constitute a default ("Default") by the Owner under this Agreement:
(a) Any material misrepresentation by the Owner has occurred to obtain the benefits of purchase of the Home or in connection with any of Owner's obligations under this Agreement;
(b) The Owner fails to occupy the Home as required under Section 3.2, and such failure continues uncured sixty (60) days following written notice by the City;
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Packet Pg. 137 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 11 (c) The Owner rents the Home in violation of Sections 3.3 or 3.4 above, or fails to pay Excess Rental Proceeds due and payable to the City, within sixty (60) days following written notice by the City;
(d) The Owner fails to provide information to the City required under this Agreement necessary to determine the Owner's compliance with the Agreement; (e) The Owner makes any Transfer in violation of this Agreement, including any refinancing of the First Lender Loan, Additional Financing, if any, and any other lien, mortgage or deed of trust in violation of Section 4.7;
(f) A notice of default is issued under the First Lender Loan or other financing secured by the Home;
(g) A lien is recorded against the Home other than as a result of a Transfer approved by the City, and the Owner fails to discharge the lien within thirty (30) days of its recordation; provided, however, that nothing herein requires the Owner to pay any claims for labor, materials or services which the Owner in good faith disputes and is diligently contesting provided that the Owner shall, within thirty (30) days after the filing of any claim of lien, record in the Official Records, a surety bond in an amount 1 and 1/2 times the amount of such claim item to protect against a claim of lien;
(h) The Owner commits any violation of the City Note or City Deed of Trust not otherwise specified in this Section, subject to any notice and cure provision in such document;
(i) The Owner declares bankruptcy or makes an assignment of assets for the benefit of creditors; and
(j) The Owner otherwise commits a material breach of this Agreement, and such breach remains uncured thirty (30) days following written notice by the City, provided that, if the breach cannot reasonably be cured within thirty (30) days, the Owner shall commence a cure within thirty (30) days, and shall effectuate a cure as soon as reasonably practicable thereafter.
Section 5.2 Payment of Excess Sales Proceeds and Excess Rental Proceeds. The Owner acknowledges and agrees to execute the City Note and the City Deed of Trust, and to pay any Excess Sales Proceeds to the City upon Transfer of the Home, and any Excess Rental Proceeds pursuant to Section 3.4. These amounts shall constitute a debt of the Owner to the City, further evidenced by the City Note and secured by the City Deed of Trust. The Owner acknowledges that the City shall have no obligation to cause termination of this Agreement or reconveyance of the City Deed of Trust until any Excess Rental Proceeds and Excess Sales Proceeds are paid to the City. The City shall use any such proceeds for affordable housing programs. The Owner and the City acknowledge that the formula for calculating the amount of Excess Sales Proceeds due from the Owner to the City is intended to cause the Owner to receive the same or fewer net sales proceeds from the Sale of the Home at an unrestricted price to a market purchaser (in violation of this Agreement) as the Owner would receive from the sale of the Home at a Middle Income Housing Cost.
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Packet Pg. 138 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 12 Section 5.3 Remedies. Upon a Default, the City may exercise every remedy available at law, in equity, or under this Agreement (no such remedy being exclusive of any other available remedy), including by declaring Excess Sales Proceeds or Excess Rental Proceeds immediately due and payable, and, without further demand, accelerating payments due under the City Note and exercise the City's power of sale under the City Deed of Trust.
ARTICLE 6. NOTICE OF DEFAULT AND FORECLOSURE
Section 6.1 Request for Notice. A request for notice of default and any notice of sale under any deed of trust or mortgage with power of sale encumbering the Home shall be recorded by the City in the Official Records. The City may declare a Default under this Agreement upon receipt of any notice given to the City pursuant to Civil Code Section 2924b, and may exercise its rights as provided in Article 5.
Section 6.2 City Cure and Redemption Rights. In the event of default and foreclosure, the City shall have the same right as the Owner to cure defaults and redeem the Home prior to the foreclosure sale. Nothing herein shall be construed as creating any obligation of the City to cure any such default, nor shall this right to cure and redeem operate to extend any time limitations in the default provisions of the underlying deed of trust or mortgage.
Section 6.3 Restriction on Foreclosure Proceeds. If a creditor acquires title to the Home through deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the Owner shall not be entitled to proceeds of sale to the extent that such proceeds otherwise payable to the Owner when added to the proceeds paid or credited to the creditor exceed a Middle Income Housing Cost. The Owner shall instruct the holder of such excess proceeds to pay such proceeds to the City in consideration of the benefits received by the Owner through purchase of the Home under this Agreement.
ARTICLE 7. CITY NONLIABILITY
AND OWNER'S INDEMNITY
Section 7.1 Nonliability for Negligence, Loss, or Damage. The Owner acknowledges and agrees that the relationship between the Owner and the City is solely that of an owner and an administrator of a City housing program, and that the City does not undertake or assume any responsibility for, or duty to, the Owner, to select, review, inspect, supervise, pass judgment on, or inform the Owner of the quality, adequacy, or suitability of the Home or any other matter.
The City owes no duty of care to protect Owner against negligent, faulty, inadequate, or defective building or construction or any condition of the Home, and Owner agrees that neither Owner, or Owner's heirs, successors, or assigns, shall ever claim or have or assert any right or action against the City for any loss, damage, or other matter arising out of, or resulting from, any condition of the Home, and will hold the City harmless from any liability, loss, or damage for these things.
Section 7.2 Indemnity. Owner agrees to defend, indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys' fees that the City may incur as a direct or indirect consequence of, (i) any Default by
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Packet Pg. 139 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 13 the Owner, (ii) the failure at any time of any of Owner's representations to the City to be true and correct, or (iii) Owner's purchase, ownership, use, or possession of the Home.
Section 7.3 Owner agrees on behalf of itself and its heirs, successors, and assigns, that the provisions of Section 7.1 and 7.2 above shall survive the expiration or termination of this Agreement.
ARTICLE 8. MISCELLANEOUS PROVISIONS
Section 8.1 Term of Agreement. All the provisions of this Agreement, including the benefits and burdens, run with the land and the Home and this Agreement shall bind, and the benefit hereof shall inure to, the Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to the City and its successors for a term of forty-five (45) years commencing on the date of recordation of this Agreement, or the date of Transfer of the Home to the City or another purchaser in compliance with this Agreement (including execution by the purchaser of a new resale restriction and option to purchase agreement for the benefit of the City). At the expiration of the Term and release of this Agreement, Owner shall no longer be subject to the affordability requirements included in this Agreement. Subject to Section 4.6(c), if the Owner sells the Home in accordance with this Agreement, upon the buyer's execution and recordation of a promissory note, deed of trust, and buyer's occupancy and resale restriction with right of first refusal substantially similar to this Agreement, the City shall cause a completed and executed Form of Release to be recorded against the Home to release the Owner from this Agreement and the City Deed of Trust, and the Owner shall, thereafter, have no further liability under the City Note.
Section 8.2 Nondiscrimination. The Owner covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, disability, gender or gender identification, sex, sexual orientation, family or marital status, ancestry, veteran status, or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the Owner or any person claiming under or through the Owner establish or permit any such practice or practices of discrimination or segregation with reference to the use, occupancy, or transfer of the Home. The foregoing covenant shall run with the land.
Section 8.3 Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
Section 8.4 Controlling Law and Venue. The terms of this Agreement shall be construed according to the laws of the State of California, and venue for any legal action arising out of or pertaining to this Agreement shall be in Sonoma County, California.
Section 8.5 No Waiver. No delay or omission in the exercise of any right or remedy of the City upon any Default by the Owner shall be construed as a waiver of such right, or of a continuing waiver in the case of future Defaults.
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Packet Pg. 140 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 14 Section 8.6 Notices. Wherever this Agreement requires any notice from either party, the notice shall be sent by personal delivery, certified mail, return receipt requested, or express delivery service with a delivery receipt, and shall be deemed effective as of the date received or the date delivery was refused as indicated in a return receipt. Unless otherwise provided by either party by written notice to the other party, notice to the Owner shall be to the address of the Home, and notice to the City shall be to the attention of the City Manager to the then current address of City Hall.
Section 8.7 Covenants Running with the Land.
(a) Owner hereby subjects the Home to the covenants and restrictions set forth in this Agreement. Owner hereby declares his or her express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land for the term of this Agreement, and shall pass to and be binding upon all parties having any interest in the Home throughout the term of this Agreement. Each and every contract, deed, lease or other instrument covering, conveying or otherwise transferring the Home or any interest therein, as the case may be, shall conclusively be held to have been executed, delivered and accepted subject to this Agreement regardless of whether the other party or parties to such contract have actual knowledge of this Agreement.
(b) The Owner and the City hereby declare their understanding and intent that, (1) The covenants and restrictions contained in this Agreement shall be construed as covenants running with the land pursuant to Civil Code Section 1468, and not as conditions which might result in forfeiture of title by Owner; (2) The burden of the covenants and restrictions set forth in this Agreement touch and concern the Home in that the Owner's legal interest in the Home may be rendered less valuable thereby; and
(3) 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 Home by eligible purchasers, the intended beneficiaries of such covenants and restrictions. (4) All covenants and restrictions contained herein without regard to technical classification or designation shall be binding upon Owner for the benefit of the City and eligible purchasers, and such covenants and restrictions shall run in favor of such parties 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 covenants and restrictions relate.
Section 8.8 Owner's Acknowledgment of Resale Restriction. Owner hereby acknowledges and agrees that:
(a) Owner hereby subjects the Home to certain restrictions, and limits the price for which Owner may sell the Home and the persons to whom Owner may sell the Home.
The resale price limitation, and other provisions contained in this Agreement, restrict the full
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Packet Pg. 141 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 15 benefits of owning the Home. Owner may not enjoy the same economic or other benefits from owning the Home that Owner would enjoy if this Agreement did not exist. (b) Absent the provisions of this Agreement, the Home could not be made available to eligible purchasers at a Middle Income Housing Cost, including Owner. (c) Owner understands all of the provisions of this Agreement. Owner accepts and agrees to the provisions of this Agreement with the understanding that this Agreement will remain in full force and effect as to the Home following any Transfer of the Home throughout the term of this Agreement.
(d) OWNER UNDERSTANDS THAT THE DETERMINATION OF THE
MAXIMUM RESTRICTED RESALE PRICE OF THE HOME TO AN ELIGIBLE
PURCHASER CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER,
TAKING INTO CONSIDERATION INCREASES IN AREA MEDIAN INCOME AND
OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED AND THAT THE
SALES PRICE PERMITTED HEREUNDER MAY NOT INCREASE OR DECREASE IN THE
SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS AGREEMENT. OWNER FURTHER ACKNOWLEDGES THAT
AT ALL TIMES IN SETTING THE SALES PRICE OF THE HOME THE PRIMARY
OBJECTIVE OF THE CITY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE PURCHASERS AT AN AFFORDABLE HOUSING COST.
THE MAXIMUM RESTRICTED RESALE PRICE WILL ALMOST CERTAINLY BE LESS THAN OTHER SIMILAR PROPERTIES THAT HAVE NO RESTRICTIONS. [Signatures to Follow]
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Packet Pg. 142 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
CITY:
CITY OF HEALDSBURG,
a municipal corporation
By: _____________________________
Name: _____________________________
City Manager
[Signature Must Be Notarized]
APPROVED AS TO FORM:
By: _______________________________
City Attorney
ATTEST:
By: _______________________________
City Clerk
_ OWNER:
By: _____________________________
Name: _____________________________
By: _____________________________
Name: _____________________________
[Signatures Must Be Notarized]
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Packet Pg. 143 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement S-2
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.
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. 144 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement S-3
______________________________________
Name: ______________________________
Notary Public
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. 145 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement S-4
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. 146 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement A
–1
EXHIBIT A
LEGAL DESCRIPTION
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Packet Pg. 147 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement B
–1
EXHIBIT B
CITY NOTE
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Packet Pg. 148 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement C
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EXHIBIT C
CITY DEED OF TRUST
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Packet Pg. 149 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement D
–1
EXHIBIT D
FORM OF RELEASE
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Packet Pg. 150 Attachment: 4. Exhibit A_Exhibit C_Exhibit D. Resale Restriction Agreement (4638 : Fourth Amendment to the Development Agreement 1 2036\02\2739143.1
NOTICE TO OWNER: THIS DOCUMENT CONTAINS PROVISIONS RESTRICTING RESALES AND ASSUMPTIONS.
PROMISSORY NOTE
Secured by Deed of Trust
(City of Healdsburg Middle Income Homebuyer Program)
Healdsburg, California
Excess Sales Proceeds and
Excess Rental Proceeds [DATE]
FOR VALUE RECEIVED, the undersigned owner of the Home,
______________________ (the "Owner"), promises to pay the City of Healdsburg, a California municipal corporation (the "City"), at 401 Grove Street, Healdsburg, California 95448, Attn:
________________, or such other place as the City may designate in writing, any amounts due the City as Excess Rental Proceeds pursuant to the Resale Restriction Agreement plus any amounts due the City as Excess Sales Proceeds pursuant to the Resale Restriction Agreement.
1. Purpose of Note. Owner is purchasing the Home located at _____________________________ in the City of Healdsburg pursuant to the City of Healdsburg's middle income housing program, which provides for the rental or purchase of homes by middle income households at affordable prices. Because the purchase price has been restricted to a middle income housing cost, the Owner is required and has agreed to execute a Resale Restriction Agreement which restricts the price of the Home upon resale and which requires the Owner to pay any Excess Sales Proceeds at resale to the City. In addition, the Resale Restriction Agreement prohibits the Owner from renting or leasing the Home except under limited circumstances and requires the Owner to pay any Excess Rental Proceeds to the City. This promissory note (the "Note") evidences both, (a) the obligation of the Owner to pay any Excess Rental Proceeds to the City, and (b) the obligation of the Owner to pay any Excess Sales Proceeds to the City.
2. Definitions. The terms set forth in this section shall have the following meanings in this Note.
(a) "City" shall have the meaning set forth in the opening paragraph hereof. (b) "Deed of Trust" shall have the meaning set forth in Section 4 hereof. (c) "Excess Rental Proceeds" shall have the meaning set forth in the Resale Restriction Agreement.
(d) "Excess Sales Proceeds" shall have the meaning set forth in the Resale Restriction Agreement.
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Packet Pg. 151 Attachment: 5. Exhibit A_Exhibit C_Exhibit D_Exhibit B. Homebuyer Promissory Note (4638 : Fourth Amendment to the Development 2 2036\02\2739143.1
(e) "Home" shall mean the dwelling and the real property, on which the dwelling is located, which secure the Deed of Trust.
(f) "Note" shall have the meaning set forth in Section 1 hereof. (g) "Owner" shall have the meaning set forth in the opening paragraph hereof. (h) "Resale Restriction Agreement" shall mean the Buyer's Occupancy And Resale Restriction Agreement With Right of First Refusal executed by the Owner and the City and recorded on _____________, in the official records of Sonoma County as Instrument No. __________, in connection with the Owner's purchase of the Home. (i) "Term" shall mean the term of this Note, which shall be the same as the term of the Resale Restriction Agreement, as set forth in Section 8.1 of the Resale Restriction Agreement.
(j) "Transfer" shall have the meaning set forth in the Resale Restriction Agreement.
3. Payments. In the event any Excess Rental Proceeds or Excess Sales Proceeds become due and payable under the Resale Restriction Agreement, such amounts shall be immediately due and payable hereunder. Failure to declare such amounts due shall not constitute a waiver on the part of the City to declare them due in the event of a subsequent Transfer.
4. Security. This Note is secured by a deed of trust dated the same date as this Note, executed by the Owner and City and recorded on _____________, in the official records of Sonoma County as Instrument No. __________ (the "Deed of Trust").
5. Due on Transfer. Any amounts due under this Note shall be due and payable in full on the date of any Transfer of the Home.
6. Default and Acceleration. The Owner shall be in default under this Note if he or she is in default under the Resale Restriction Agreement. Upon the occurrence of a default under this Note, the full amount of any Excess Rental Proceeds or Excess Sales Proceeds due under the Resale Agreement shall be immediately due and payable.
7. Nondiscrimination. The Owner covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, disability, gender or gender identification, sex, sexual orientation, family or marital status, ancestry, veteran status, or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the Owner or any person claiming under or through the Owner establish or permit any such practice or practices of discrimination or segregation with reference to the use, occupancy, or transfer of the Home.
8. Indemnity. Owner agrees to defend, indemnify, and hold City and its employees, agents, officers, and council members harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorney's fees that the City may incur as a direct or
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Packet Pg. 152 Attachment: 5. Exhibit A_Exhibit C_Exhibit D_Exhibit B. Homebuyer Promissory Note (4638 : Fourth Amendment to the Development 3 2036\02\2739143.1
indirect consequence of Owner's failure to perform any obligations as and when required by this Note, the Deed of Trust, or the Resale Restriction Agreement.
9. No Waiver by City. Any failure by the City to pursue its legal and equitable remedies upon default shall not constitute a waiver of the City's right to declare a default and exercise all of its rights under this Note, the Resale Restriction Agreement, and the Deed of Trust. Nor shall acceptance by the City of any payment provided for herein constitute a waiver of the City's right to require prompt payment of any remaining payments owed.
10. Attorney's Fees and Costs. Owner agrees that if any amounts due under this Note are not paid when due, to pay in addition to principal and accrued interest, all costs and expenses of collection and reasonable attorney fees paid or incurred in connection with the collection or enforcement of this Note, whether or not suit is filed.
11. Joint and Several Obligations. This Note is the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assigns.
12. No Offset. Owner hereby waives any rights of offset it now has or may hereafter have against City, its successors and assigns, and agrees to make the payments called for herein in accordance with the terms of this Note.
13. Waiver. Owner and any endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, notice of dishonor and notice of nonpayment of this Note, and expressly waive any rights to be released by reason of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payments hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorneys' fees.
14. Notices. All notices required in this Note shall be sent by certified mail, return receipt requested, or express delivery service with a delivery receipt, or personally delivered with a delivery receipt obtained and shall be deemed to be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was returned as undeliverable as follows:
To the Owner:
At the address of the Home.
To the City:
City of Healdsburg
401 Grove Street
Healdsburg, CA 9544
Attn: __________________________
6.B.e
Packet Pg. 153 Attachment: 5. Exhibit A_Exhibit C_Exhibit D_Exhibit B. Homebuyer Promissory Note (4638 : Fourth Amendment to the Development 4 2036\02\2739143.1
The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this Section.
15. Controlling Law. This Note shall be construed in accordance with and be governed by the laws of the State of California.
16. Assignment by City. The City may assign its right to receive the proceeds under this Note to any person and upon notice to the Owner by the City all payments shall be made to the assignee.
17. Severability. If any provision of this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
21. Entire Agreement. This Note (along with the Resale Restriction Agreement and Deed of Trust) sets forth the entire understanding and agreement of the City and the Owner and any amendment, alteration or interpretation of this Note must be in writing signed by both the City and the Owner.
OWNER:
_________________________________
6.B.e
Packet Pg. 154 Attachment: 5. Exhibit A_Exhibit C_Exhibit D_Exhibit B. Homebuyer Promissory Note (4638 : Fourth Amendment to the Development 2036\02\2739107.1 1
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attn: _________________________
APN: _________________________
Exempt From Recording Fee Per (Space above for Recorder's Use) Government Code Section 27383 and Building Homes & Jobs Trust Fund Fee Per Government Code Section 27388.1(a)(2)(D)
DEED OF TRUST
AND SECURITY AGREEMENT
([Insert Property Address])
THIS DEED OF TRUST AND SECURITY AGREEMENT (this "Deed of Trust") made as of _________________________, 20__, among the trustor, ________________________ _____________________________________________ (the "Owner"), whose address is ___________________________________________, and ___________________ ______________________ (the "Trustee"), and the City of Healdsburg, a California municipal corporation (the "City") as Beneficiary.
The Owner, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of sale, the property located in Sonoma County, State of California, described in the attached Exhibit A and more commonly known as: _________________________________________ ____________________________________________Healdsburg, California (the "Property").
TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Deed of Trust; and
TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the
6.B.f
Packet Pg. 155 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1 2
same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever;
TO SECURE to the City the performance of the covenants and agreements of Owner contained in that certain Buyer's Occupancy And Resale Restriction Agreement With Right of First Refusal executed by and between the Owner and the City of even date herewith (the "Resale Agreement");
TO SECURE to the City the payment of Excess Sales Proceeds (as defined in the Resale Agreement) and Excess Rental Proceeds (as defined in the Resale Agreement) that may become due by Owner to City, which payment obligation is further evidenced by a promissory note executed by the Owner to the City dated of even date herewith (the "Note"); and TO SECURE the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Owner herein contained.
OWNER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. Owner's Estate. That Owner is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the Security is encumbered only by [amend as necessary to include subordinate acquisition loans]: (a) that deed of trust executed by Owner in connection with a loan made to Owner by _________________ _________________________ (the "First Lender"), securing a promissory note executed by Owner in favor of the First Lender ("First Lender Note"), to assist in the purchase of the Property; and (b) the Resale Agreement. Owner agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring the City's interest in the Security. (As used in this Deed of Trust, the term "First Lender" shall include all successors and assigns of the First Lender.)
2. Payment of Excess Sales Proceeds and/or Excess Rental Proceeds. Owner will promptly pay to the City, when and if due pursuant to the Resale Agreement, the Excess Sales Proceeds (as defined in the Resale Agreement) and the Excess Rental Proceeds (as defined in the Resale Agreement).
3. Resale Agreement. Owner will observe and perform all of the covenants and agreements of the Resale Agreement, the Note, and this Deed of Trust.
4. Charges; Liens. Owner will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Owner making any payment, when due, directly to the payee thereof. Upon request by the City, Owner will promptly furnish to the City all notices of amounts due under this paragraph.
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Packet Pg. 156 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1 3
In the event Owner makes payment directly, Owner will promptly discharge any lien which has priority over this Deed of Trust; provided, that Owner will not be required to discharge the lien of the deed of trust securing the First Lender Note (the "First Lender Deed of Trust") [insert any other superior deeds of trust], or any other lien described in this paragraph, so long as Owner will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof.
5. Hazard Insurance. Owner will keep the Security insured by a standard all risk property insurance policy equal to the replacement value of the Security (adjusted every five (5) years by appraisal, if requested by the City). If the Security is located in a flood plain, Owner shall also obtain flood insurance.
The insurance carrier providing this insurance shall be licensed to do business in the State of California and be chosen by Owner subject to approval by the City.
All insurance policies and renewals thereof will be in a form acceptable to the City and will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of the First Lender Note [insert any other holder of a note secured by a superior deed of trust in the Property] and the City as their interests may appear and in a form acceptable to the City. The City shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Owner shall promptly furnish to the City, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Owner will give prompt notice to the insurance carrier and the City or its designated agent. The City, or its designated agent, may make proof of loss if not made promptly by Owner. The City shall receive thirty (30) days advance notice of cancellation of any insurance policies required under this Section 5.
Unless the City and Owner otherwise agree in writing, insurance proceeds, subject to the rights of the First Lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, the insurance proceeds will be used to repay any amounts due under the Resale Agreement, with the excess, if any, paid to Owner. If the Security is abandoned by Owner, or if Owner fails to respond to the City, or its designated agent, within thirty (30) days from the date notice is mailed by either of them to Owner that the insurance carrier offers to settle a claim for insurance benefits, the City, or its designated agent, is authorized to collect and apply the insurance proceeds at the City's option either to restoration or repair of the Security or to pay amounts due under the Resale Agreement.
If the Security is acquired by the City, all right, title and interest of Owner in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition, subject to the rights of the First Lender.
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Packet Pg. 157 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1 4
6. Preservation and Maintenance of Security. Owner will keep the Security in good repair and in a neat, clean, and orderly condition and will not commit waste or permit impairment or deterioration of the Security. If there arises a condition in contravention of this Section 6, and if the Owner has not cured such condition within thirty (30) days after receiving a notice of such a condition from the City, then in addition to any other rights available to the City, the City shall have the right (but not the obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Security to recover its cost of curing.
7. Protection of the City's Security. If Owner fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the City's interest in the Security, including, but not limited to, default under the First Lender Deed of Trust, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the City, at the City's option, upon notice to Owner, may make such appearances, disburse such sums and take such action as it determines necessary to protect the City's interest, including but not limited to, disbursement of reasonable attorney's fees and entry upon the Security to make repairs.
Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will become an indebtedness of Owner secured by this Deed of Trust. Unless Owner and City agree to other terms of payment, such amount will be payable upon notice from the City to Owner requesting payment thereof, and will bear interest from the date of disbursement at the lesser of (i) ten percent (10%); or (ii) the highest rate permissible under applicable law. Nothing contained in this paragraph will require the City to incur any expense or take any action hereunder. Notwithstanding anything to the contrary, the original principal amount shall bear no interest, and the only interest payable will be interest incurred as a result of the application of this Section 7.
8. Inspection. The City may make or cause to be made reasonable entries upon and inspections of the Security; provided that the City will give Owner reasonable notice of inspection.
9. Forbearance by the City Not a Waiver. Any forbearance by the City in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the City will not be a waiver of the City's right to require payment of any amounts secured by this Deed of Trust.
10. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively.
11. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the City and Owner subject to the provisions of this Deed of Trust.
6.B.f
Packet Pg. 158 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1 5
12. Joint and Several Liability. All covenants and agreements of Owner shall be joint and several.
13. Notice. Except for any notice required under applicable law to be given in another manner, wherever this Deed of Trust requires any notice from either party, the notice shall be sent by certified mail, return receipt requested, or express delivery service with a delivery receipt, and shall be deemed effective as of the date received or the date delivery was refused as indicated in a return receipt. Unless otherwise provided by either party by written notice to the other party, notice to the Owner shall be to the address of the Property, and notice to the City shall be to the attention of the City Manager to the then current address of City Hall.
14. Governing Law. This Deed of Trust shall be governed by the laws of the State of California.
15. Severability. In the event that any provision or clause of this Deed of Trust or the Resale Agreement conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Resale Agreement which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the Resale Agreement are declared to be severable.
16. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof.
17. Nondiscrimination. The Owner covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, disability, gender or gender identification, sex, sexual orientation, family or marital status, ancestry, veteran status, or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Security, nor shall the Owner or any person claiming under or through the Owner establish or permit any such practice or practices of discrimination or segregation with reference to the use, occupancy, or transfer of the Security.
The foregoing covenant shall run with the land.
18. Nonliability for Negligence, Loss, or Damage. Owner acknowledges, understands and agrees that the relationship between Owner and City is solely that of an owner and an administrator of a City affordable housing program, and that City neither undertakes nor assumes any responsibility for or duty to Owner to select, review, inspect, supervise, pass judgment on, or inform Owner of the quality, adequacy or suitability of the Security or any other matter. City owes no duty of care to protect Owner against negligent, faulty, inadequate or defective building or construction or any condition of the Security and Owner agrees that neither Owner, or Owner's heirs, successors or assigns shall ever claim, have or assert any right or action against City for any loss, damage or other matter arising out of or resulting from any condition of the Security and will hold City harmless from any liability, loss or damage for these things.
19. Indemnity. Owner agrees to defend, indemnify, and hold City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorney's fees that City may incur as a direct or indirect consequence of:
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Packet Pg. 159 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1 6
(a) Owner's failure to perform any obligations as and when required by the Resale Agreement and this Deed of Trust; or
(b) the failure at any time of any of Owner's representations or warranties to be true and correct.
20. Acceleration; Remedies. Upon Owner's breach of any covenant or agreement of Owner in this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to acceleration, will mail by express delivery, return receipt requested notice to Owner specifying: (a) the breach; (b) the action required to cure such breach; (c) a date, not less than thirty (30) days from the date the notice is received by Owner as shown on the return receipt, by which such breach is to be cured; and (d) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust, a declaration of default under this Deed of Trust and sale of the Security. The notice will also inform Owner of Owner's right to reinstate after acceleration or declaration of default and the right to bring a court action to assert the nonexistence of default or any other defense of Owner to acceleration and sale. If the breach is not cured on or before the date specified in the notice, the City, at the City's option, may: (1) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; and (2) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the City shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to: (A) exercise the power of sale; (B) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (C) deliver to Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (D) exercise all other rights and remedies provided herein, in the instruments by which the Owner acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law.
The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees.
21. Owner's Right to Reinstate. Notwithstanding the City's acceleration of the sums secured by this Deed of Trust, Owner will have the right to have any proceedings begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to
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Packet Pg. 160 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1 7
entry of a judgment enforcing this Deed of Trust if: (a) Owner pays City all sums which would be then due under this Deed of Trust and no acceleration under this Deed of Trust or the Resale Agreement has occurred; (b) Owner cures all breaches of any other covenants or agreements of Owner contained in the Resale Agreement or this Deed of Trust; (c) Owner pays all reasonable expenses incurred by City and Trustee in enforcing the covenants and agreements of Owner contained in the Resale Agreement, or this Deed of Trust, and in enforcing the City's and Trustee's remedies, including, but not limited to, reasonable attorney's fees; and (d) Owner takes such action as City may reasonably require to assure that the lien of this Deed of Trust, City's interest in the Security and Owner's obligation to comply with the Resale Agreement secured by this Deed of Trust and to pay the sums secured by this Deed of Trust shall continue unimpaired.
Upon such payment and cure by Owner, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred.
22. Due on Transfer of the Property. Upon a Transfer (as defined in the Resale Agreement) of the Property or any interest in it, the City shall require immediate payment in full of all sums secured by this Deed of Trust.
23. Reconveyance. Upon performance of all obligations of the Resale Agreement and expiration of its term and upon payment of all sums secured by this Deed of Trust, the City will request Trustee to reconvey the Security and will surrender this Deed of Trust and the Resale Agreement to Trustee. Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any.
24. Substitute Trustee. The City, at the City's option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law.
25. Superiority of First Lender Documents. [Revise as necessary to include any other superior deeds of trust.] Notwithstanding any provision herein, this Deed of Trust shall not diminish or affect the rights of the First Lender under the First Lender Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against the Security in compliance with the requirements of Section 4.7 of the Resale Agreement.
Notwithstanding any other provision hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender Deed of Trust and shall not impair the rights of the First Lender, or such lender's assignee or successor in interest, to exercise its remedies under the First Lender Deed of Trust in the event of default under the First Lender Deed of Trust by the Owner. Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed in lieu of foreclosure, this Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property pursuant to a deed or assignment in lieu of foreclosure and notice of default was recorded against the Property in connection therewith, this Deed of Trust shall automatically terminate upon such acquisition of title,
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Packet Pg. 161 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1 8
provided that: (a) the City has been given written notice of default under such First Lender Deed of Trust with a sixty (60)-day cure period, and (b) the City shall not have cured or commenced to cure the default within such sixty (60)-day period or commenced to cure and given its firm commitment to complete the cure in form and substance acceptable to the First Lender.
26. Request for Notice.Owner requests that copies of the notice of default and notice of sale be sent to the City in the manner set forth in Section 13, above.
IN WITNESS WHEREOF, Owner has executed this Deed of Trust as of the date first written above.
_____________________________
Owner
_____________________________
Owner
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Packet Pg. 162 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1
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. 163 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement 2036\02\2739107.1
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. 164 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement A-1
2036\02\2739107.1
EXHIBIT A
Legal Description of the Home
The land is situated in the State of California, County of Sonoma, City of Healdsburg, and is described as follows:
[Insert Legal Description Here.]
APN: _______________________
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Packet Pg. 165 Attachment: 6. Exhibit A_Exhibit C_Exhibit D_Exhibit C. Homebuyer Deed of Trust (4638 : Fourth Amendment to the Development Agreement
6.B.g
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Attachment: 7. Exhibit A_Exhibit C_Exhibit D_Exhibit D. Substitution of Trustee and Reconveyance of Deed of Trust and Release of Resale
6.B.g
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Attachment: 7. Exhibit A_Exhibit C_Exhibit D_Exhibit D. Substitution of Trustee and Reconveyance of Deed of Trust and Release of Resale
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Attachment: 7. Exhibit A_Exhibit C_Exhibit D_Exhibit D. Substitution of Trustee and Reconveyance of Deed of Trust and Release of Resale
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Attachment: 7. Exhibit A_Exhibit C_Exhibit D_Exhibit D. Substitution of Trustee and Reconveyance of Deed of Trust and Release of Resale 4th DA Amendment - Exhibit D
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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Packet Pg. 170 Attachment: 8. Exhibit A_Exhibit D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4638 : Fourth 4894-7048-6221 v8 2
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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Packet Pg. 174 Attachment: 8. Exhibit A_Exhibit D. Amended And Restated Publicly Accessible Private Open Space Easement Agreement (4638 : Fourth 4894-7048-6221 v8 6
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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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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-7048-6221 v8
EXHIBIT A
LEGAL DESCRIPTION OF PARK PARCEL
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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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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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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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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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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. 187 Attachment: 9. Exhibit A_Exhibit E. Definition of Hotel Investment Suite Use and Conditions of Operation (4638 : Fourth Amendment to the 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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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. 2024-12 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. 2024-12, is
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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. 2024-12 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. 2024-16 recommending that the City Council approve tentative subdivision map for Lot 1 (SBDV-0003-2024), as well as 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, 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. 2024-12 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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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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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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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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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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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY [to be attached]
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CITY OF HEALDSBURG
CITY COUNCIL AGENDA STAFF REPORT
MEETING DATE: October 21, 2024
SUBJECT: A Professional Services Agreement with Utility Design Services, LLC PREPARED BY: Terry Crowley, Utilities Director
STRATEGIC INITIATIVE(S):
Maintain and Improve Infrastructure and Facilities
RECOMMENDED ACTION(S):
Adopt a Resolution approving a Professional Services Agreement with Utility Design Services, LLC to provide utility design services related to the City's Electric Utility for an amount not to exceed $94,850.
COMMUNITY ENGAGEMENT/OUTREACH:
No public outreach was sought for this item.
BACKGROUND:
The City’s electric department performs the design, maintenance, reconstruction, and operation of the City’s high voltage electric distribution system. Along with ongoing internal maintenance and reconstruction projects the City is in the middle of two large undergrounding projects that require additional engineering services beyond the City internal staff capacity. Utility Design Services has assisted City staff on several large development projects as well as undergrounding projects and has provided a good service to the City. The existing Professional Services Agreement (PSA) with Utility Design Services was first established in 2017 and has seven different amendments for time and funding. All funds authorized under the contract have been exhausted and the agreement is set to expire on December 31, 2024. Rather than continuing to amend the existing contract, staff recommends establishing a new agreement.
DISCUSSION/ANALYSIS:
Utility Design Services provides drafting and engineering technician services to several NCPA members and has decades of experience in electric utility design. As a core competency, Utility Design Services can assist City staff to develop underground utility designs as well as overhead utility designs helping to alleviate the current backlog of design work.
Under the new PSA, Utility Design Services will aid with two large undergrounding projects
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(Grove Street & Healdsburg Ave) as well as aid with ongoing related to underground and overhead system reconstruction, and other general projects related to electric distribution system.
The term of the agreement is for two years and includes a fixed not to exceed amount. Primarily this work will focus on the Grove Street Undergrounding (EL005), Healdsburg Ave Undergrounding (EL008), 155 Dry Creek Affordable Housing (ER003), Saggio Affordable Housing (ER004), along with other miscellaneous projects for the Electric Department. In total, the individual projects will cumulatively not exceed the agreement’s not to exceed price of $94,850.
ENVIRONMENTAL STEWARDSHIP:
This contract will support two large undergrounding projects within Healdsburg, Undergrounding projects limit the need for tree trimming and reduce the risk of utility caused wildfires.
ALTERNATIVES:
Council could choose not to approve the professional service agreement and provide further direction to staff. Staff does not recommend this alternative as the current workload requires additional resources. Not approving of the agreement would most likely require the City to defer needed maintenance and/or replacements potentially leading to increased planned and unplanned power outages.
FISCAL IMPACT:
The proposed general services agreement with Utility Design Services will not exceed $94,850 and will have a term of two years. Costs associated with Utility Design Services supporting the Grove Street Undergrounding (EL005) and Healdsburg Ave Undergrounding (EL008) projects have been included within the existing capital project budgets. The 155 Dry Creek Affordable Housing (ER003) and Saggio Affordable Housing (ER004) projects are developer funded and appropriations are similarly included in the existing capital project budgets. Any other general projects related to the electric distribution system will be supported by existing appropriations within the electric operating budget.
ENVIRONMENTAL ANALYSIS:
Pursuant to California Environmental Quality Act (“CEQA”) and Title 14, the California Code of Regulations (“CEQA Guidelines”), Section 15378(b) (2), continued administrative actions do not qualify as a “Project”. Therefore, no further CEQA or environmental review is required.
ATTACHMENT(S):
Resolution
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CITY OF HEALDSBURG
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG APPROVING A PROFESSIONAL SERVICES
AGREEMENT WITH UTILITY DESIGN SERVICES, LLC TO
PROVIDE UTILITY DESIGN SERVICES RELATED TO THE
CITY’S ELECTRIC UTILITY FOR AN AMOUNT NOT TO
EXCEED $94,850
WHEREAS, Healdsburg’s electric department is responsible for the design, maintenance, repair and operation of the City’s high voltage distribution system; and WHEREAS, the electric department requires additional resources to prepare systems designs and construction drawings, specifically for two undergrounding projects and two affordable housing sites; and
WHEREAS, since 2017 the City has contracted with Utility Design Service LLC for engineering technician services related to power distribution systems; and WHEREAS, over this time Utility Design Services has provided excellent service and a good value to the City; and
WHEREAS, the existing contract with Utility Design Services is several years old and staff recommends refreshing the agreement with a new Professional Services Agreement; and WHEREAS, the agreement with Utility Design Services completes work of defined scope with a not to exceed amount; and
WHEREAS, the work to be performed under this agreement is administrative and does not constitute a project under CEQA guidelines and is therefore exempt from further environmental review.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Healdsburg hereby:
1. Finds that work performed under this agreement is exempt from the further California Environmental Quality Act (“CEQA”) review.
2. Approves a Professional Services Agreement with Utility Design Services LLC. to provide general engineering technician services related to the City’s Electric Department.
3. Authorizesthe City Manager to execute the agreement for the not to exceed amount of $94,850.
4. Authorizes the Utility Director to execute and approve individual task orders to a cumulative amount not to exceed the agreement’s limits.
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Packet Pg. 200 Attachment: Resolution (4642 : PSA for Utility Design Services) PASSED, APPROVED AND ADOPTED, by the City Council of the City of Healdsburg this 21st day of October 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. 201 Attachment: Resolution (4642 : PSA for Utility Design Services)
CITY OF HEALDSBURG
CITY COUNCIL AGENDA STAFF REPORT
MEETING DATE: October 21, 2024
SUBJECT: Acceptance of the Fitch Mountain Public Access Improvements Project PREPARED BY: Tom Campbell, Project Manager
STRATEGIC INITIATIVE(S):
Maintain and Improve Infrastructure and Facilities
Provide Resident-Driven Community Services
RECOMMENDED ACTION(S):
Adopt a Resolution accepting the Fitch Mountain Public Access Improvements Project as complete and authorizing staff to file a Notice of Completion with the County Recorder's Office.
COMMUNITY ENGAGEMENT/OUTREACH:
In 2016, City staff conducted several public meetings with community members and local stakeholder groups to help identify key topics to be addressed in the Fitch Mountain Park and Open Space Preserve Management Plan. One of the outcomes from the community meetings was for the City to develop a formal entrance to Fitch Mountain Park and Open Space Preserve. Staff also worked with a group of dog park users to develop a plan for improvements to the existing dog park.
Staff advertised a notice inviting bids for the Fitch Mountain Public Access Improvements Project in the Press Democrat, on the City’s website, and through correspondence to all Contractors on the City’s Qualified Bidders List and to the Local Builder’s Exchanges. The advertisement was completed in accordance with all applicable procedures and the City’s Municipal Code.
BACKGROUND:
In June 2023, City Council awarded a contract to M3 Integrated Services for the construction of the Fitch Mountain Public Access Improvements Project. Construction began in August 2023.
The Fitch Mountain Public Access Improvements Project included construction of formal access to the Fitch Mountain Park and Open Space Preserve from the Villa Chanticleer lower parking lot, dog park improvements, parking lot upgrades, ADA improvements, and other items of work
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that were required to complete the Project in accordance with the Contract, the Project Plans and Technical Specifications, and all other work as noted on drawings.
On August 12, M3 Integrated Services notified the City in writing that they consider the work complete, supported by the fact that all contract documents have been reviewed and the work has been inspected for compliance.
DISCUSSION/ANALYSIS:
M3 Integrated Services has completed all work in compliance with approved Project Plans, Specifications, Special Provisions, and Contract Change Orders. City representatives have reviewed all contract documents and performed final inspections of the work and have determined that all work has been performed and completed in accordance with the contract documents, and as directed by the City. M3 Integrated Services completed the work on the project within the allowable working days. There are no existing or potential contractor claims.
Therefore, the project is deemed completed by staff and ready for council acceptance.
ENVIRONMENTAL STEWARDSHIP:
Construction waste was diverted from landfill for reuse or recycling where possible.
ALTERNATIVES:
There is no reasonable alternative to the recommended action because the work is complete, the trailhead, dog park and parking lot have reopened to the public, and City Council held a ribbon cutting ceremony for the completed project in May 2024.
FISCAL IMPACT:
The Fitch Mountain Park and Open Space Preserve Project CS001 had a total budget of $3,026,691. Total project costs are estimated at $2,920,382. The construction contract was awarded to M3 Construction for $2,149,435 and the City Council authorized the City Manager to sign change orders up to 10%. There was a total of seven change orders processed using approximately 6% of the authorized contingency for a total construction contract amount of $2,269,044. The revegetation contract with Hanford Applied Restoration and Conservation was awarded for $172,520 with an authorized 10% contingency. There was one change order using less than 1% of the contingency for a total contract amount of $173,520. Bidding support and construction administration services provided by Prunuske Chatham totaled $294,589.
Additional miscellaneous costs including artwork, bridge fabrication and delivery, signage, trash receptacles, building permit fees are estimated to total $183,229. While most of the miscellaneous items have been expensed, there are a few outstanding items that are still being completed.
The project funding consisted of $1.65 million of Coastal Conservancy Grants, $671,569 in Park Impact Fee Funds, $380,000 in Measure M Parks Funds, $185,350 in Proposition 68 Grant Funds, and $139,772 in Community Services Operating Funds. The project is anticipated to be completed under budget with $106,309 in unused Community Services Operating Funds that will remain available to support future operations or capital projects.
6.D
Packet Pg. 203
ENVIRONMENTAL ANALYSIS:
City Council’s acceptance of the Fitch Mountain Public Access Improvements Project as complete is not subject to the provisions of the California Environmental Quality Act (CEQA) because accepting a project as complete is not a project, since it will not have a direct or reasonably foreseeable indirect impact on the environment.
ATTACHMENT(S):
Resolution
Project Photos
Certificate of Completion
Notice of Completion
6.D
Packet Pg. 204
CITY OF HEALDSBURG
RESOLUTION NO. -2024
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG ACCEPTING THE FITCH MOUNTAIN
PUBLIC ACCESS IMPROVEMENTS PROJECT AS
COMPLETE AND AUTHORIZING STAFF TO FILE A NOTICE
OF COMPLETION WITH THE COUNTY RECORDER'S
OFFICE
WHEREAS, on July 24, 2023, the City Council awarded a construction contract for the Fitch Mountain Public Access Improvements Project to M3 Integrated Services; and WHEREAS, the Healdsburg City Council at a regular meeting held September 16, 2024, received the report from the Community Services Director that the Project has been satisfactorily completed in accordance with the contract documents and City Standards; and WHEREAS, the work consisted of provide formal access to the Fitch Mountain Park and Open Space Preserve from the Villa Chanticleer lower parking lot, dog park improvements, parking lot upgrades, and other ADA improvements; and
WHEREAS, the Community Services Director recommended that the City Council accept the Project as complete and take appropriate action to finalize the Project; and WHEREAS, pursuant to Section 15378(b)(5) of the California Environmental Quality Act (CEQA) Guidelines, approval of this Resolution is an administrative activity of the City that does not constitute a “project” under CEQA.; and
WHEREAS, after due consideration, the City Council accepts the recommendation of the Community Services Director; and
WHEREAS, there remains approved unspent funding for the project that shall be returned to the Community Services Fund.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Healdsburg hereby:
1. Finds that the action of accepting the Project as complete does not constitute a “project” under CEQA; and
2. Authorizes staff to file a Notice of Completion with the County Recorder's Office; and
3. Authorizes staff to take appropriate action to finalize the Project.
6.D.a
Packet Pg. 205 Attachment: Resolution (4619 : Notice of Completion for Fitch Mountain Public Access Improvements Project) Resolution No.