MAYOR
Mia Casey
COUNCIL MEMBERS
Rick Perez, District 1
Rolan Resendiz, District 2
Dolores Morales, District 3
Tim Burns, District 4
CITY MANAGER
David Mirrione
CITY ATTORNEY
Mary F. Lerner
CITY CLERK
Jennifer Woodworth
POLICE CHIEF
Carlos Reynoso
CITY TREASURER
Gordon Machado
CITY COUNCIL AGENDA
Special and Regular Meeting
September 18, 2023
Special Meeting 5:00 PM
Regular Meeting 6:30 PM
CITY OF HOLLISTER
CITY COUNCIL CHAMBERS, CITY HALL
375 FIFTH STREET
HOLLISTER, CA 95023
(831) 636-4300
www.hollister.ca.gov/
NOTICE TO PUBLIC
Persons who wish to address the City Council are asked to complete a speaker’s card and give it to the City Clerk before addressing the City Council. Those who wish to address the City Council on an agenda item will be heard when the presiding officer calls for comments from the audience. City related items not on the agenda will be heard under the Public Input section of the agenda. Following recognition persons desiring to speak are requested to advance to the podium and state their name and address. If you are joining us by Zoom, please click on the bottom of your screen to raise your hand. If you are joining us by Zoom using a cell phone, please press *9. After hearing audience comments, the public portion of the meeting will be closed, and the matter brought to the City Council for discussion.
Requests to make presentations to the City Council should be submitted to the City Clerk’s Office at least ten days before the City Council meeting. It is customary for City staff members to review such matters before the formal presentation so that the City Council may have the benefit of all available data. PowerPoint presentations must be presented to the City Clerk by noon on the day of the City Council meeting.
PUBLIC PARTICIPATION NOTICE
The public may watch the meeting via live stream at:
City of Hollister Website
http://hollisterca.iqm2.com/Citizens/Default.aspx
Community Media Access Partnership (CMAP):
http://cmaptv.com/watch/
City Council Monday, September 18, 2023 Page 2 of 8
City of Hollister YouTube Channel:
https://www.youtube.com/channel/UCu_SKHetqbOiiz5mH6XgpYw/featured
City of Hollister Facebook Live at:
https://www.facebook.com/cityofhollister
Public Participation:
The public may attend meetings.
NOTICE: The City Council will hold its public meetings in person, with a virtual option for public participation based on availability. The City of Hollister utilizes Zoom teleconferencing technology for virtual public participation; however, we make no representation or warranty of any kind, regarding the adequacy, reliability, or availability of the use of this platform in this manner. Participation by members of the public through this means is at their own risk. (Zoom teleconferencing may not be available at all meetings.)
If you wish to make a public comment remotely during the meeting, please use the zoom registration link below:
https://us02web.zoom.us/webinar/register/WN_MNOr95ZCQrWzERqd5zRuwQ
CALL TO ORDER
CLOSED SESSION - 5:00 P.M.
Public Comment (limited to any item listed on the Closed Session agenda) Closed Session will be held by the City Council of the City of Hollister to discuss the following matters:
1. CONFERENCE WITH LABOR NEGOTIATORS PURSUANT TO
GOVERNMENT CODE SECTION 54957.6
Agency designated representatives: (City Manager David Mirrione and Administrative Services Director Casey Estorga)
Employee Organizations: Un-represented employees in classifications designated as Executive Management
2. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION
54956.9.
Existing Litigation Natmar LP, et al. v. City of Hollister San Benito County Superior Court Case No. CU-23-00183
3. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION
54956.9.
Existing Litigation Cain, et al. v. City of Hollister San Benito County Superior Court Case No. CU-22-00087
4. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION
54956.9
City Council Monday, September 18, 2023 Page 3 of 8
Conference with Legal Counsel – Anticipated Litigation Initiation of Litigation Pursuant to paragraph (4) of subdivision (d) of section 54956.9 of the Government Code (Deciding Whether to Initiate Litigation): 1 case
5. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION
54956.9
Conference With Legal Counsel: Anticipated Litigation Significant Exposure to Litigation Pursuant to paragraph (2) or (3) of subdivision (d) of section 54956.9 of the Government Code: One Case
6. CONFERENCE WITH LEGAL COUNSEL - LIABILITY CLAIMS
GOVERNMENT CODE SECTION 54956.95
Claimants: Carlos Munoz; Pablo Ramirez
Agency Claimed Against: City of Hollister
7. CONSULTATION OF PUBLIC EMPLOYMENT GOVERNMENT CODE
SECTION 54957
Public Employee Performance Evaluation Title: City Attorney
PLEDGE OF ALLEGIANCE
ROLL CALL
VERIFICATION OF AGENDA POSTING
CLOSED SESSION - REPORT OUT
PROCLAMATIONS/RECOGNITIONS
1. PROCLAIMING SEPTEMBER 18-29, 2023 AS HIGH SCHOOL VOTER EDUCATION WEEKS (City Clerk)
2. PROCLAIMING SEPTEMBER 2023 AS HUNGER ACTION MONTH (City Clerk)
3. PROCLAIMING SEPTEMBER 2023 AS NATIONAL RECOVERY MONTH (City Clerk)
4. PROCLAIMING SEPTEMBER 17-23, 2023 AS CONSTITUTION WEEK (City Clerk)
City Council Monday, September 18, 2023 Page 4 of 8
A. COUNCIL BUSINESS
1. CONSIDERATION OF ACTION PERTAINING TO THE ALLEGED CONDUCT
OF COUNCILMEMBER ROLAN RESENDIZ IN ALLEGED VIOLATION OF THE COUNCIL CODE OF ETHICS AND CONDUCT (Mayor Casey)
BRIEF DESCRIPTION: Pursuant to the Council Code of Ethics and Conduct, the Mayor is bringing forward an agenda item to take potential action against Councilmember Resendiz regarding alleged inappropriate conduct.
RECOMMENDATION: 1) Discuss options for possible action; and 2) take a vote on possible remedial action.
2. COUNCIL CODE OF CONDUCT AD HOC COMMITTEE (City Attorney) BRIEF DESCRIPTION: This is an informational status report on the activities of the Ad Hoc Committee.
RECOMMENDATION: Accept the report and provide direction.
B. CONSENT ITEMS
All items listed under consent agenda will be enacted by one motion authorizing actions indicated for those items so designated. There will be no separate discussion of these items unless requested by a member of the City Council, a staff member, or a member of the public.
Consent items are numbers: B1-B6.
1. THE MINUTES OF THE REGULAR MEETING OF CITY COUNCIL
SEPTEMBER 5, 2023
2. RESOLUTION NO. 2023-176 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING A MEMORANDUM OF
UNDERSTANDING (MOU) BETWEEN THE CITY OF HOLLISTER AND THE HOLLISTER DOWNTOWN ASSOCIATION (City Manager)
BRIEF DESCRIPTION: The City Council will consider this item for approval and authorize the execution of a Memorandum of Understanding between the City of Hollister and the Hollister Downtown Association.
RECOMMENDATION: Review the MOU and adopt a resolution approving a Memorandum of Understanding between the City of Hollister and the Hollister Downtown Association.
City Council Monday, September 18, 2023 Page 5 of 8
3. RESOLUTION NO. 2023-177 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER AUTHORIZING THE EXECUTION OF
AMENDMENT NO.3 TO THE LEASE AGREEMENT OF THE BRIGGS
BUILDING BETWEEN THE CITY OF HOLLISTER AND GAVILAN COLLEGE, A COMMUNITY COLLEGE DISTRICT (City Manager)
BRIEF DESCRIPTION: This resolution will approve amendment No. 3 to the lease agreement between the City and Gavilan, A Community College District (the “District”) at the Briggs Building authorizing a two-year extension with graduated rate increases.
RECOMMENDATION: Approve a resolution authorizing and directing the mayor to execute Amendment No. 3 to the lease agreement with Gavilan College, a Community College District for the Briggs Building.
4. RESOLUTION NO. 2023-178 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER AUTHORIZING THE FIRE CHIEF TO EXECUTE A CONTRACT FOR EMERGENCY MEDICAL SERVICES WITH THE 33RD
DISTRICT AGRICULTURAL ASSOCIATION FOR THE SAN BENITO COUNTY FAIR (Fire)
BRIEF DESCRIPTION: The City Council will consider a resolution authorizing the fire chief to execute a contract for emergency medical services with the 33rd District Agricultural Association for the San Benito County Fair.
RECOMMENDATION: Adopt a resolution to execute a contract for emergency medical services with the 33rd District Agricultural Association for the San Benito County Fair.
5. RESOLUTION NO. 2023-179 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING THE AGREEMENT FOR THE
HOLLISTER POLICE DEPARTMENT TO RETIRE CANINE OFFICER SULLY
FROM THE POLICE DEPARTMENT'S CANINE UNIT AND APPROVE
CONTRACT WITH CANINE'S PREVIOUS HANDLER (Police)
BRIEF DESCRIPTION: This resolution would authorize the Police Department to retire Canine Officer Sully from service to the Police Department due to his handler leaving the department. It would also approve the agreement between the department and the previous handler to keep Canine Sully as part of his family.
RECOMMENDATION: Adopt a resolution approving the agreement for the Hollister Police Department to retire Canine Officer Sully from the Police Department's Canine Unit and approve a contract with the canine's previous handler.
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6. AUTHORIZATION TO RELEASE A REQUEST FOR PROPOSALS FOR THE
PREPARATION OF AN ENVIRONMENTAL DOCUMENT PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) FOR THE MERIDIAN VILLAGE PROJECT (TENTATIVE MAP 2022-2 AND SITE &
ARCHITECTURAL REVIEW 2022-15) (Planning)
BRIEF DESCRIPTION: The City of Hollister is seeking a qualified public entity or private firm, to establish a contract for environmental services and technical studies, including an Initial Study/Mitigated Negative Declaration for Meridian Village.
RECOMMENDATION: Approve authorization to release a request for proposal for environmental consulting services and associates technical studies for Meridian Village Tentative Map 2022-2 and Site & Architectural Review 2022-15.
C. CITY OF HOLLISTER AS THE SUCCESSOR AGENCY OF THE
REDEVELOPMENT AGENCY
None.
D. PUBLIC INPUT
This is the time for anyone in the audience to speak on any item not on the agenda and within the subject matter jurisdiction of the council. Speaker cards are available in t he lobby, and are to be completed and given to the City Clerk before speaking. When the City Clerk calls your name, please come to the podium, state your name and city for the record, and speak to the City Council. If you are joining us by Zoom, please click on the bottom of your screen to raise your hand. If you are joining us by Zoom using a cell phone, please press *9. Each speaker will be limited to three (3) minutes with a maximum of 30 minutes per subject. Please note that state law prohibits the City Council from discussing or taking action on any item not on the agenda.
E. PETITIONS, REMONSTRANCES AND COMMUNICATIONS
1. CITY MANAGER REPORT
Receive report from City Manager.
2. TRAININGS AND CONFERENCES
Receive reports from staff on Training and Conferences.
City Council Monday, September 18, 2023 Page 7 of 8
F. PUBLIC HEARINGS
1. ORDINANCE NO. 1239 AN ORDINANCE OF THE CITY OF HOLLISTER AMENDING SECTION 10.10.010- DEFINITIONS OF CHAPTER 10.10 OF THE
CITY OF HOLLISTER MUNICIPAL CODE RELATING TO RECREATIONAL VEHICLES AND BOATS (Police)
BRIEF DESCRIPTION: Introduction of an amendment to Section 10.10.010 (“Definitions”) of Chapter 10.10 (“Recreational Vehicles and Boats”) of Title 10 (“Vehicles and Traffic”) of the City of Hollister Municipal Code, amending language to clarify definitions, eliminate conflicts, and enhance compliance with existing regulations.
RECOMMENDATION: Introduce the ordinance and schedule a second reading and adoption of the ordinance at the October 2nd City Council Meeting.
G. INTRODUCTION AND ADOPTION OF RESOLUTIONS AND ORDINANCES
1. RESOLUTION NO. 2023-180 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING A SUPPLEMENTAL
APPROPRIATION IN THE AMOUNT OF $20,123.95 FOR THE SUNNYSLOPE
VILLAGE LANDSCAPING ENHANCEMENTS AND IVY REMOVAL PROJECT (Recreation)
BRIEF DESCRIPTION: This resolution will authorize a supplemental appropriation to cover costs for the Sunnyslope Village enhancement project that includes overgrown ivy removal and landscape enhancements at the Beverly Drive/Sunnyslope Rd and Beverly Drive/Hillcrest Rd entrances.
RECOMMENDATION: Adopt the resolution approving the supplemental appropriation of $20,123.95 for landscape enhancements at Sunnyslope Village and authorize the Mayor to sign an agreement with Brightview Landscaping.
2. RESOLUTION NO. 2023-181 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING A MARKETING PLAN AND
AFFORDABLE HOUSING AGREEMENT BETWEEN KB HOMES AND THE
CITY OF HOLLISTER FOR THE AFFORDABLE HOUSING UNITS (Housing) BRIEF DESCRIPTION: Review and approve a resolution to accept the Marketing Plan and Affordable Housing Agreement with KB Homes for the West of Fairview Development Affordable Housing Units.
RECOMMENDATION: Adopt a resolution to approve the Marketing Plan and Affordable Housing Agreement with KB Homes for the West of Fairview Development Affordable Housing Units.
City Council Monday, September 18, 2023 Page 8 of 8
H. REPORTS OF CITY COUNCIL, OFFICERS, BOARDS AND COMMITTEES
1. REPORTS FROM CITY COUNCIL MEMBERS REGARDING COMMITTEES ON
WHICH THEY SERVE
Receive oral reports from members regarding the activities of various Ad Hoc and Standing City Council Committees.
2. INFORMATIONAL REPORTS FROM CITY COUNCIL, CITY MANAGER, CITY
ATTORNEY, CITY CLERK AND STAFF
Receive informational reports from the City Council, City Manager, City Attorney, Chief of Police, City Clerk, and other Staff as applicable.
I. UNFINISHED BUSINESS
1. UPDATED CITY COUNCIL PROJECTS (City Manager)
BRIEF DESCRIPTION: City Council requested a list of agenda items, work items, and updates requested by the City Council to staff to be created and placed on each agenda under Unfinished Business.
RECOMMENDATION: Receive the report and hold a discussion, if desired.
J. NEW BUSINESS
None.
K. MISCELLANEOUS
None.
L. CITY OF HOLLISTER AS THE SUCCESSOR HOUSING AGENCY OF THE
REDEVELOPMENT AGENCY
None.
M. ADJOURNMENT
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk’s Office at (831) 636-4300. Notification of 48 hours prior to the meeting will enable the City to attempt to make reasonable arrangements to ensure accessibility to this meeting [28 CFR 35.102-35.104 ADA Title II].
Materials related to an item on this agenda submitted to the City Council after distribution of the agenda packet are available for public inspection in the City Clerk’s Office at City Hall, 375 Fifth Street, Hollister, Monday through Friday, 8:30 a.m. to noon, 1:00 p.m. to 4:30 p.m. (City Hall is closed between 12:00 and 1:00 p.m.)
Notice to anyone attending any public meeting: The meeting may be broadcast live on Cable Channel 17 and/or videotaped or photographed. Recent City Council meetings may also be viewed at www.CMAP.com and periodically on Cable Channel 17.
PROCLAMATION
Declaring September 18-29, 2023 as
High School Voter Education Weeks
WHEREAS, the strength of our democracy depends on the active participation of all of its citizens, regardless of age, and voter registration and participation of youth is historically low; and
WHEREAS, the youth of California play a critical role in our democracy by helping to choose the people who will lead us and by voicing their opinions on the issues that are important to them; and
WHEREAS, it has never been easier to register to vote, cast a ballot in an election , and have your voice heard; and
WHEREAS, eligible 16-and17-year-olds can pre-register to vote and then automatically become active voters once they turn 18; and
WHEREAS, students are encouraged to participate in the democratic process through voter education programs, becoming an election worker, and by inviting peers, family members, and the community to register to vote and get involved in civic engagement activities.
NOW, THEREFORE, I, Mia Casey, Mayor of Hollister, do hereby declare September 18-29, 2023, as High School Voter Education Weeks in the City of Hollister and encourage students to participate and get involved in the democratic process.
IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the seal of the City of Hollister this 18th day of September 2023.
_______________________________
Mia Casey, Mayor
ATTEST:
________________________________
Jennifer Woodworth, MMC, City Clerk
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PROCLAMATION
Declaring September as Hunger Action Month Proclamation
WHEREAS, hunger and poverty are issues of vital concern in California where 20% of people face hunger and one in every five children do not know where their next meal will come from; and
WHEREAS, everyone needs nutritious food to thrive, and in every community in America, people are working hard to provide for themselves and their families; and
WHEREAS, in 2021, 34 million people faced food insecurity in the U.S., including 1 in 4 people facing food insecurity in San Benito County; and
WHEREAS, the City of Hollister is committed to taking steps to combat hunger in every part of our community and to provide additional resources to those in need; and
WHEREAS, the City of Hollister is committed to working with Community FoodBank to educate people about the role and importance of food banks in addressing hunger and raising awareness of the need to devote more resources and attention to hunger issues; and
WHEREAS, more than 25,000 individuals in San Benito County rely on food provided by Community FoodBank, its partner agencies and programs, and other local food distribution organizations annually; and
WHEREAS, the members of Community FoodBank and other local food distribution organizations distributed more than 3 million pounds of food in 2022 through its network of food pantries, hot meal programs, shelters, and other community organizations .
NOW, THEREFORE, I, Mia Casey, Mayor of Hollister, do hereby recognize September 2023, as Hunger Action Month in the City of Hollister to bring attention to food insecurity in our communities and enlist the public in the movement to combat hunger by taking action to ensure every community, and everybody in it, has the food they need to thrive.
IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the seal of the City of Hollister this 18th day of September 2023.
_______________________________
Mia Casey, Mayor
ATTEST:
________________________________
Jennifer Woodworth, MMC, City Clerk
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PROCLAMATION
Declaring September 2023 as National Recovery Month
WHEREAS, substance abuse treatment facilities in San Benito County are an essential part of health and one’s overall wellness; and
WHEREAS, they are committed to ensuring a safe, clean, structured recovery environment and are dedicated to providing supportive and affordable sober living; and
WHEREAS, saluting people who are in recovery from alcohol and drug use disorders, as well as those who have helped them obtain treatment, helps to overcome barriers by educating the community about the benefits of treatment, and affirming the goal that all people with alcohol and drug use disorders should have access to treatment services; and
WHEREAS, we must encourage relatives and friends of people with mental and/or substance use disorders to implement preventive measures, recognize the signs of a problem, and guide those in need to appropriate treatment and recovery support services; and
WHEREAS, an estimated 40.7 million people aged 12 or older with illicit drug or alcohol use disorder did not receive treatment at a specialty facility, only 1.1 percent (or 447,000 people) felt that they needed treatment and made an effort to get treatment along with 18.8 million adults self-reported needing mental health treatment or counseling, while close to half did not receive treatment, in the past years; and
WHEREAS, to help more people achieve and sustain long-term recovery, the U.S. Department of Health and Human Services (HHS), the Substance Abuse and Mental Health Services Administration (SAMHSA), the White House Office of National Drug Control Policy (ONDCP), and Sun Street Centers invite all residents of San Benito County to participate in National Recovery Month (September).
NOW, THEREFORE, I, Mia Casey, Mayor of Hollister, do hereby declare September 2023, as National Recovery Month in the City of Hollister.
IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the seal of the City of Hollister this 18th day of September 2023.
_______________________________
Mia Casey, Mayor
ATTEST:
________________________________
Jennifer Woodworth, MMC, City Clerk
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PROCLAMATION
Declaring September 17-23, 2023 as Constitution Week
WHEREAS, September 17, 2023, marks the two hundred and thirty -sixth anniversary of the drafting of the Constitution of the United States of America by the Constitutional Convention; and
WHEREAS, it is fitting and proper to accord official recognition to this magnificent document and its memorable anniversary; and to the patriotic celebrations which will commemorate the occasion; and
WHEREAS, Public Law 915 guarantees the issuing of a proclamation each year by the President of the United States of America designating September 17 through 23 as Constitution Week.
NOW, THEREFORE, I, Mia Casey, Mayor of Hollister, do hereby declare September 17-23, 2023, as Constitution Week in the City of Hollister and ask our citizens to reaffirm the ideals of the Framers of the constitution had in 1787 by vigilantly protecting the freedoms guaranteed to us through this guardian of our liberties, remembering that lost rights may never be regained.
IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the seal of the City of Hollister this 18th day of September 2023.
_______________________________
Mia Casey, Mayor
ATTEST:
________________________________
Jennifer Woodworth, MMC, City Clerk
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 8, 2023
DEPARTMENT:
DEPARTMENT HEAD:
City Attorney
Mary Lerner, City Attorney
TITLE OF ITEM: CONSIDERATION OF ACTION PERTAINING TO THE ALLEGED
CONDUCT OF COUNCILMEMBER ROLAN RESENDIZ IN ALLEGED VIOLATION OF THE
COUNCIL CODE OF ETHICS AND CONDUCT (MAYOR CASEY)
BRIEF DESCRIPTION: Pursuant to the Council Code of Ethics and Conduct, the Mayor is bringing forward an agenda item to take potential action against Councilmember Resendiz regarding alleged inappropriate conduct.
RECOMMENDATION: 1) Discuss options for possible action; and 2) take a vote on possible remedial action.
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 8, 2023
DEPARTMENT:
DEPARTMENT HEAD:
City Attorney
Mary Lerner, City Attorney
TITLE OF ITEM: COUNCIL CODE OF CONDUCT AD HOC COMMITTEE
BRIEF DESCRIPTION: This is an informational status report on the activities of the Ad Hoc Committee.
RECOMMENDATION: Accept the report and provide direction.
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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CITY COUNCIL OF THE
CITY OF HOLLISTER
Minutes of Regular Meeting
September 5, 2023
PUBLIC PARTICIPATION NOTICE
CALL TO ORDER
Mayor Casey called the special meeting of the City Council of the City of Hollister to order at 5:30 p.m.
CLOSED SESSION - 5:30 P.M.
Public Comment (limited to any item listed on the Closed Session agenda)
No public comments.
City Attorney Lerner read the closed session item titles.
Closed Session will be held by the City Council of the City of Hollister to discuss the following matters:
1. CONFERENCE WITH LABOR NEGOTIATORS PURSUANT TO
GOVERNMENT CODE SECTION 54957.6 Agency designated
representatives: (City Manager David Mirrione and Administrative Services Director Casey Estorga) Employee Organizations: Un-represented employees in classifications designated as Executive Management
2. CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION
54956.9. EXISTING LITIGATION. Cain, et al. v. City of Hollister San Benito County Superior Court Case No. CU-22-00087
Councilmember Perez moved, and Councilmember Morales seconded the motion to adjourn into closed session. Motion carried 5-0-0.
The special meeting adjourned at 6:21 p.m.
PLEDGE OF ALLEGIANCE
Councilmember Burns led the Pledge of Allegiance.
ROLL CALL
The Regular Meeting of the City Council was called to order by Mayor Mia Casey on September, 5, 2023 at 6:30 PM in the City Council Chambers at 375 Fifth Street, Hollister, CA 95023.
Attendee Name Title Status Arrived
Mia Casey Mayor Present
Rick Perez District 1 Present
Rolan Resendiz District 2 Present
Dolores Morales District 3 Present
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City Council Tuesday, September 5, 2023 Page 2 of 9
Tim Burns District 4 Present
Mary F. Lerner City Attorney Present
Jennifer Woodworth City Clerk Present
Carlos Reynoso Police Chief Present
David Mirrione City Manager Present
Gordon Machado City Treasurer Absent
VERIFICATION OF AGENDA POSTING
City Clerk Woodworth reported the agenda for the City Council of the City of Hollister special and regular meeting of September 5, 2023 was posted on the bulletin board at City Hall on August 31, 2023 at 3:52 p.m. per Government Code Section 54954.2.
CLOSED SESSION - REPORT OUT
City Attorney Lerner stated no reportable action was taken in closed session.
PROCLAMATIONS/RECOGNITIONS
Mayor Casey read and presented the proclamation to ____
1. Jacob's Heart Proclamation
Mayor Casey presented the Proclamation Honoring Jacob’s Heart Children’s Cancer Support Services and declaring September 2023 as Childhood Cancer Awareness Month.
Alicia Diaz-Infante spoke on behalf of the Jacob's Heart organization and thanked the Council for the proclamation.
A. CONSENT ITEMS
All items listed under the consent agenda will be enacted in one motion authorizing the actions indicated for those items so designated.
Mayor Casey stated the August 21, 2023 minutes should read that she "initiated disciplinary action."
Mayor Casey opened public comment at 6:35 p.m.
Elia Salinas inquired regarding the difference between the services provided by 4LEAF and Kimley-Horn to the City.
Mayor Casey closed public comment at 6:36 p.m.
Councilmember Burns moved, and Councilmember Perez seconded the motion to approve the consent agenda items, with the correction to the August 21, 2023 minutes.
Motion carried 5-0-0.
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City Council Tuesday, September 5, 2023 Page 3 of 9
RESULT: Adopted [Unanimous]
MOTION: Tim Burns
SECOND: Rick Perez
AYES: Casey, Perez, Resendiz, Morales, Burns
NOES:
RECUSED:
ABSTAIN:
ABSENT:
Consent items are numbers: A1-A14.
1. City Council - Regular Meeting - Aug 21, 2023 6:30 PM
2. CLAIM AGAINST THE CITY - FILED BY DIANNE BARRETT ON BEHALF
OF THE JOHN AND JEAN BARRETT LIVING TRUST
3. CLAIM AGAINST THE CITY - FILED BY GUSTAVO MENDEZ
4. CLAIM AGAINST THE CITY - FILED BY AMANDA VILLALBA
5. ORDINANCE NO. 1237 AN ORDINANCE OF THE CITY OF HOLLISTER AMENDING THE ZONING ORDINANCE TO REPEAL SECTION 17.24.240,
PLANNED DEVELOPMENT PERMITS, AND REPLACE WITH A NEW
CHAPTER, CHAPTER 17.66, PLANNED DEVELOPMENTS
6. ORDINANCE NO. 1238 AN ORDINANCE OF THE CITY OF HOLLISTER AMENDING SECTION 15.12.010 AND SECTION 15.12.020 OF CHAPTER
15.12 OF THE CITY OF HOLLISTER MUNICIPAL CODE RELATING TO
MOBILEHOMES AND MOBILEHOME PARKS
7. RESOLUTION NO. 2023-165 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING THE TEMPORARY CLOSURE OF
VARIOUS DOWNTOWN STREETS FOR THE LIGHTS ON CELEBRATION
AND PARADE SATURDAY, NOVEMBER 25, 2023
8. RESOLUTION NO. 2023-166 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER AUTHORIZING THE CITY MANAGER TO
PURCHASE 0.75 ACRE CREDITS OF CALIFORNIA TIGER SALAMANDER
UPLAND HABITAT AT THE SPARLING RANCH AS REQUIRED BY THE
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE FOR THE
APPROVAL OF THE HOLLISTER MUNICIPAL AIRPORT'S RUNWAY 6
SAFETY IMPROVEMENT PROJECT
9. RESOLUTION NO. 2023-167 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER ACCEPTING THE WORK OF ST. FRANCIS ELECTRIC, LLC FOR THE 6TH ST. LIGHTING IMPROVEMENT PROJECT, CIP C2203, AND DIRECTING THE CITY ENGINEER TO FILE A NOTICE
OF COMPLETION
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10. RESOLUTION NO. 2023-168 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER ACCEPTING THE IMPROVEMENTS IN THE
PUBLIC RIGHT-OF-WAY AND OTHER AREAS DESIGNATED FOR
PUBLIC USE WITHIN THE HOLLISTER FARMS DEVELOPMENT;
ACCEPTING THE OFFERS OF DEDICATION SHOWN IN THE PARCEL
MAP FOR, OR SEPARATELY RECORDED AGAINST, THE PROPERTY,
AND DIRECTING THE CITY ENGINEER TO FILE A NOTICE OF
ACCEPTANCE
11. RESOLUTION NO. 2023-169 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER AUTHORIZING THE CITY MANAGER TO
EXECUTE CONTRACT AMENDMENT NO. 3 TO THE PROFESSIONAL
SERVICES AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES, INC., IN AN AMOUNT NOT-TO-EXCEED $151,419.00 FOR ADDITIONAL
SERVICES TO ASSIST WITH THE REVIEW OF DEVELOPMENT
PROJECTS
12. RESOLUTION NO. 2023-170 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING THE SUBDIVISION
IMPROVEMENT AGREEMENT WITH ANNOTTI LANDING LLC AND THE
FINAL MAP FOR TRACT NO. 316, ANNOTTI LANDING SUBDIVISION
AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE
SUBDIVISION IMPROVEMENT AGREEMENT
13. RESOLUTION NO. 2023-171 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER AUTHORIZING THE CITY MANAGER TO SIGN
THE ASSIGNMENT AND ASSUMPTION OF REIMBURSEMENT
AGREEMENT APPROVING THE ASSIGNMENT OF THE
REIMBURSEMENT AGREEMENT FOR THE VALLEY VIEW PARK
EXTENSION
14. RESOLUTION NO. 2023-172 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER AUTHORIZING THE CITY MANAGER OR HIS
DESIGNEE TO EXECUTE AN AGREEMENT WITH SPECTRUM
ENTERPRISE TO PROVIDE INTERNET SERVICES TO THE CITY OF
HOLLISTER
B. CITY OF HOLLISTER AS THE SUCCESSOR AGENCY OF THE
REDEVELOPMENT AGENCY
No items.
C. PUBLIC INPUT
Bea Gonzalez, speaking on behalf of the San Benito County Council of Governments, invited the Council to attend an event on September 21 and 22, 2023 to help advocate for support to address County transportation needs.
Carl DeLeonardo commented on the subcontractor who implemented the Ladd Lane traffic calming measures and suggested inviting the subcontractor to speak to the Council.
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John Robles commented on the City of Hollister's brand and on concerns raised regardng the upgrades to and maintenance for the wastewater treatment plant.
Carly Robles stated the majority of the Council does not have their constituents' best interest at heart.
Robin Pollard raised concerns related to the trees on San Benito Street stating they need additional maintenance and care. Ms. Pollard requested the City convert its land on Park Hill to park land.
Elia Salinas requested discussion of social media posts by the Hollister Police Department be placed on a future Council agenda.
Celeste Bocanegra supported additional maintenance of City parks and thanked a majority of the Council for their support for the City's residents.
D. PETITIONS, REMONSTRANCES AND COMMUNICATIONS
1. City Manager Report
City Manager Mirrione reported he will work with the Public Works Director regarding maintenance of City trees.
2. Trainings and Conferences
Police Chief Reynoso reported officers attending training for operating checkpoints, the Animal Control Academy, crisis intervention training, etc.
Development Services Director Christy Hopper reported staff members Eva Kelly and Ambur Cameron recently completed the International City/County Management Association's Professional Development Academy.
E. PUBLIC HEARINGS
No items.
F. INTRODUCTION AND ADOPTION OF RESOLUTIONS AND ORDINANCES
1. RESOLUTION NO. 2023-173 A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER NAMING THE VISTA PARK HILL SOFTBALL FIELD THE "ANTHONY DESCLAFANI JUNIOR GIANTS FIELD"
Interim Parks & Recreation Director Tina Garza provided the staff report.
Mayor Casey opened public comment at 7:03 p.m.
There were no speakers for this item.
Mayor Casey closed public comment at 7:03 p.m.
Councilmember Burns moved, and Councilmember Morales seconded the motion to adopt Resolution 2023-173. Motion carried 5-0-0.
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RESULT: Adopted [Unanimous]
MOTION: Tim Burns
SECOND: Dolores Morales
AYES: Casey, Perez, Resendiz, Morales, Burns
NOES:
RECUSED:
ABSTAIN:
ABSENT:
2. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER
APPROVING A POLICY ON REMOTE MEETING PARTICIPATION BY
LEGISLATIVE BODIES
City Clerk Jennifer Woodworth provided the staff report.
Mayor Casey opened public comment at 7:07 p.m.
There were no speakers for this item.
Mayor Casey closed public comment at 7:07 p.m.
Councilmember Burns moved, and Councilmember Perez seconded the motion to adopt Resolution 2023-174. Motion carried 5-0-0.
RESULT: Adopted [Unanimous]
MOTION: Tim Burns
SECOND: Rick Perez
AYES: Casey, Perez, Resendiz, Morales, Burns
NOES:
RECUSED:
ABSTAIN:
ABSENT:
3. REPORT ON HEARING OFFICER PROTOCOLS IN SURROUNDING
CITIES AND REQUEST FOR DIRECTION TO HANDLE ADMINISTRATIVE
HEARINGS IN HOLLISTER
Police Chief Reynoso provided the staff report outlining the City's current administrative hearing process, the process utilized by other municipalities, and options for the Council to consider.
Mayor Casey opened public comment at 7:21 p.m.
Elia Salinas supported use of administrative hearing officers that are not City staff, such as retired law enforcement officers from other counties, and supported holding hearings in person.
Mayor Casey closed public comment at 7:24 p.m.
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Councilmember Burns supported the standard utilized by counties to have an attorney, with five years experience, serve as administrative hearing officers.
Councilmember Burns supported amending the municipal code to outline the requirements for an administrative hearing officer. Additionally, Councilmember Burns supported payment of the administrative hearing fee following the hearing and depending on the outcome of an administrative hearing.
Councilmember Perez supported use of non-City staff as the City's administrative hearing officer and continuing with the rest of the current process.
Councilmember Morales and Mayor Casey supported use of non -City staff, which would not need to be an attorney, but would have knowledge of application of municipal code.
Councilmember Resendiz supported the requirement of those requesting an administrative hearing to pay a fee prior to the hearing, which would be reimbursed if the appellant prevails at the hearing.
By consensus, the Council directed staff to reach out to law enforcement staff from other municipalities to determine if any could serve as the City's administrative hearing officer and return with a proposed amendment to the Hollister Municipal Code to codify the administrative hearing process, with a proposed fee based on the City's historic costs for an administrative hearing and a provision for appellants to pay the administrative hearing fee, which would be returned if the appellant prevails or the required fine would be paid if the City prevails at the administrative hearing.
G. REPORTS OF CITY COUNCIL, OFFICERS, BOARDS AND COMMITTEES
1. OUTLINE OF COST MEASURES TO REPAIR THE DUNNE PARK
COURTS AND POSSIBLE DIRECTION TO STAFF
Interim Parks & Recreation Manager Tina Garza provided the staff report.
Mayor Casey opened public comment at 8:10 p.m.
Paul Namkoong spoke regarding his long time experience in playing pickleball and raised concerns regarding safety and capacity at the Dunne Park courts.
Mayor Casey closed public comment at 8:13 p.m.
By consensus, the Council directed staff to move forward with repairs to the Dunne Park courts and an option for an additional pickleball court and requested staff develop a maintenance plan for the courts.
The Council recessed at 8:17 p.m. and reconvened at 8:25 p.m. with all Council members present.
2. REPORT REGARDING THE JULY 1, 2023 FIREWORKS SHOW AND
FAMILY FUN NIGHT EVENT AND POSSIBLE DIRECTION TO STAFF
Interim Parks & Recreation Manager Tina Garza provided the staff report and stated staff recommended holding future events at the Hollister Airport.
Mayor Casey opened public comment at 8:30 p.m.
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There were no speakers for this item.
Mayor Casey closed public comment at 8:30 p.m.
By consensus, the Council directed staff hold future fireworks events at the Hollister Municipal Airport.
3. Reports from City Council Members regarding Committees on which they serve
Councilmember Morales reported the library ad hoc committee met and requested staff reach out to the County to discuss meeting with them to discuss the needs and future direction for the library.
Mayor Casey reported her attendance at a meeting of the LAFCO Executive Director recruitment ad hoc committee and attendance at a meeting with a new group working to build a new community center in Hollister.
4. Informational Reports from City Council, City Manager, City Attorney, City Clerk and Staff
Councilmember Burns commented that the bollards on San Benito Street at the entrance to downtown need replacement; requested certificates of recognition for Dr.
Mohammad al-Hassan, Premier Cinema, and Round Table Pizza; and requested future Council discussion on holding the annual motorcycle rally.
Councilmember Resendiz requested creation of an ad hoc committee to discuss a future performing arts center and suggested appointing Mayor Casey and himself to serve on the committee.
Councilmember Perez supported additional maintenance of the downtown area and maintenance of City trees and thanked the Planning Commission for their service.
Councilmember Morales requested status updates for the items currently listed on the Council project list and requested an update on the status of various Council ad hoc committees, including the business and library ad hoc committees.
Mayor Casey thanked staff for their work to remove the bollards on Ladd Lane.
By consensus, the Council directed staff to bring forward a future discussion on holding the annual motorcycle rally; directed certificates of recognition for Dr.
Mohammad Hassan, Premier Cinema, and Round Table Pizza; discussion of maintenance for City trees; replacement of the bollards on San Benito Street at the entrance to downtown; and a future Council agenda item to create an ad hoc committee to discuss a future performing arts center.
H. UNFINISHED BUSINESS
1. UPDATED CITY COUNCIL PROJECTS
I. NEW BUSINESS
No items.
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J. MISCELLANEOUS
No items.
K. CITY OF HOLLISTER AS THE SUCCESSOR HOUSING AGENCY OF THE
REDEVELOPMENT AGENCY
No items.
L. ADJOURNMENT
Councilmember Morales moved, and Councilmember Perez seconded the motion to adjourn the meeting at 8:56 p.m. Motion carried 5-0-0.
Respectfully submitted,
Jennifer Woodworth, MMC
City Clerk
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 7, 2023
DEPARTMENT:
DEPARTMENT HEAD:
City Manager
David Mirrione, City Manager
TITLE OF ITEM: RESOLUTION NO. 2023-176, A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING A MEMORANDUM OF UNDERSTANDING (MOU)
BETWEEN THE CITY OF HOLLISTER AND THE HOLLISTER DOWNTOWN ASSOCIATION
BRIEF DESCRIPTION: The City Council will consider this item for approval and authorize the execution of a Memorandum of Understanding between the City of Hollister and the Hollister Downtown Association.
RECOMMENDATION: Review the MOU and adopt a resolution approving a Memorandum of Understanding between the City of Hollister and the Hollister Downtown Association.
DEPARTMENT SUMMARY: The Hollister Downtown Association (HDA) is requesting the City Council to approve a one-year Memorandum of Understanding (MOU). The HDA has collaborated closely with the City of Hollister for the past several years. The HDA strives to promote the City of Hollister downtown and organizes various community events including the Annual Lights On Celebration, Annual Street Festival & Car Show, Downtown Wine & Beer Stroll, Downtown Clean-up and Downtown Certified Farmers’ Market. The following MOU affirms the existing partnership with the city and requires HDA to assist the city with event communication and requires event annual reporting.
The MOU provides $90,000 for the deliverables outlined in the MOU. The MOU provides for the reimbursement of fees paid to the City in conjunction with the events hosted by the HDA. This amount is not to exceed $10,000 and HDA will bill the City of Hollister for these fees.
FINANCIAL IMPACT: Not to exceed $100,000 from the General Fund. The appropriation was included in the Fiscal Year 2023-24 Budget, therefore, not requiring a supplemental appropriation.
CEQA: Not a project as defined by CEQA
ATTACHMENTS:
1. MOU between COH and HDA - Signed
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
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David Mirrione, City Manager
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RESOLUTION NO. 2023-176
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER APPROVING A
MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE CITY OF HOLLISTER AND
THE HOLLISTER DOWNTOWN ASSOCIATION
WHEREAS, the Hollister Downtown Association, (the "Association") is recognized as a 501(c) 6 non-profit organization; and
WHEREAS, the Association organizes one-day annual events in downtown Hollister including the Light's On Parade, Street Festival, Wine & Beer Stroll, Downtown Clean-up, and seasonal Certified Farmer's Market; and
WHEREAS, having a one-year Memorandum of Understanding (MOU) affirms the existing partnership with the city and allows the organization to budget with more certainty; and
WHEREAS, the Association agrees to pursue a variety of approaches to augment funding for its operations through membership dues, and fees, obtaining sponsorships of Association events and programs, and grants; and
WHEREAS, the MOU requires that the HDA assist the City with event communication and requires event annual reporting.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Hollister directs and authorizes the mayor to sign the Memorandum of Understanding (MOU) between the City of Hollister and Hollister Downtown Association.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a Regular Meeting held this 18th day of September, 2023, by the following vote:
Mia Casey, Mayor
ATTEST:
Jennifer Woodworth, MMC, City Clerk
APPROVED AS TO FORM:
Lozano Smith Attorneys at Law
Mary F. Lerner, City Attorney
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I, JENNIFER WOODWORTH, MMC, City Clerk of the City of Hollister, do hereby certify that the attached Resolution No. 2023-176, is an original Resolution, or true and correct copy of a City Resolution, duly adopted by the Council of the City of Hollister at a regular meeting of said Council held on the 18th day of September, 2023, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Hollister this City Council day of September, 2023.
Jennifer Woodworth, MMC
City Clerk of the City of Hollister
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 7, 2023
DEPARTMENT:
DEPARTMENT HEAD:
City Manager
David Mirrione, City Manager
TITLE OF ITEM: RESOLUTION NO. 2023-177, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING THE EXECUTION OF AMENDMENT NO.3 TO
THE LEASE AGREEMENT OF THE BRIGGS BUILDING BETWEEN THE CITY OF
HOLLISTER AND GAVILAN COLLEGE, A COMMUNITY COLLEGE DISTRICT
BRIEF DESCRIPTION: This resolution will approve amendment No. 3 to the lease agreement between the City and Gavilan, A Community College District (the “District”) at the Briggs Building authorizing a two-year extension with graduated rate increases.
RECOMMENDATION: Approve a resolution authorizing and directing the mayor to execute Amendment No. 3 to the lease agreement with Gavilan College, a Community College District for the Briggs Building.
DEPARTMENT SUMMARY: On June 20, 1996, the City Council approved Resolution 96- 89 which authorized the execution of a fifteen (15) year lease with an option for a five- year extension with the Gavilan Community College District (the “District”) to establish a satellite campus at the Briggs Building. The lease area encompassed 8,500 square feet on the first floor of the Briggs Building with graduated payments that started at $.07 per square foot increasing to a rate of $1.30 per square foot. The former Redevelopment Agency of the City of Hollister provided assistance with $24,000 in contracting services for tenant improvements at the facility in 1996 while the college funded material costs of $4,800. This lease agreement expired in June 2012.
On June 18, 2012, the City Council approved Resolution 2012-102 authorizing the mayor to sign Amendment No. 1 to the lease agreement with four changes: 1) a graduated lease rate starting at $1.20 per square foot and increasing to $1.30 per square foot; 2) Transfer of janitorial services and supplies in the lease area from the city to the tenant with a credit for the cost; 3) the 384 square foot, Room 6, the Arnold Carrillo Room, was added; and 4) an option for early termination in year 3 of the lease with a six-month notice requirement.
On May 15, 2017, the City Council approved Resolution 2017-113 authorizing Amendment No. 2. Amendment No. 2 removed Room 6 from the lease area to allow office space for Code Enforcement, the Community School Officer, and a substation for Police and Fire. The amendment included graduated lease rates for five years with credits for janitorial service from $1.35 per square foot increasing to $1.50 per square foot. Amendment No. 2 would also clarify that the city is responsible for weekly janitorial services on the stairs, sweeping, and removal of cobwebs at the front of the structure facing San Benito Street and near the elevator entrances.
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Amendment No. 2 expired on June 20, 2022. Amendment No 3. proposes to extend the lease for two (2) additional years, commencing on June 20, 2022, and ending on June 21, 2024 (the “Extended Term”), provided however, that Tenant, beginning on December 31, 2023; shall have the right to terminate the lease early by providing the Landlord with six (6) month’s written notice. This amendment also includes a graduated lease rate starting from $1.50 per square foot increasing to $1.70 per square foot. Staff is recommending that the City Council adopt the resolution authorizing the mayor to sign Amendment No. 3.
FINANCIAL IMPACT: Graduated rent income of $131,400- $146,904
CEQA:
ATTACHMENTS:
1. Original 1996 Briggs Building Lease with Gavilan College
2. Amendment No. 1
3. Amendment No. 2
4. Amendment No. 3 2023 for approval
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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RESOLUTION NO. 2023-177
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING THE EXECUTION OF AMENDMENT NO.3 TO THE LEASE AGREEMENT OF THE BRIGGS
BUILDING BETWEEN THE CITY OF HOLLISTER AND GAVILAN COLLEGE, A
COMMUNITY COLLEGE DISTRICT
WHEREAS, the parties entered into the lease of a portion of the Briggs Building located at 365 Fourth Street, Hollister, CA 95023 (the "Building") in June 1996 for a term of fifteen (15) years; and
WHEREAS, the parties, pursuant to Amendment No. 1 to lease the between the City of Hollister and Gavilan College dated June 21, 2012 ("Amendment No. 1"), agreed to extend the original term of the Lease from June 30, 2012, to June 20, 2017; and
WHEREAS, the parties, pursuant to Amendment No. 2 to the Lease between the City of Hollister and Gavilan College dated June 20, 2017 ("Amendment No. 2"), agreed to extend the term of the Lease from June 21, 2017, to June 20, 2022; and
WHEREAS, Landlord and Tenant now desire to amend and extend the current term of the lease pursuant to the terms, covenants, agreements, and conditions set forth in this Amendment No. 3.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Hollister authorizes the execution of Amendment No.3. to the lease agreement between the City of Hollister and Gavilan College for the use of the Briggs Building.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a Regular Meeting held this 18th day of September, 2023, by the following vote:
Mia Casey, Mayor
ATTEST:
Jennifer Woodworth, MMC, City Clerk
APPROVED AS TO FORM:
Lozano Smith Attorneys at Law
Mary F. Lerner, City Attorney
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I, JENNIFER WOODWORTH, MMC, City Clerk of the City of Hollister, do hereby certify that the attached Resolution No. 2023-177, is an original Resolution, or true and correct copy of a City Resolution, duly adopted by the Council of the City of Hollister at a regular meeting of said Council held on the 18th day of September, 2023, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Hollister this City Council day of September, 2023.
Jennifer Woodworth, MMC
City Clerk of the City of Hollister
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411
LEASE
BRIGGS BUILDING
1. PARTIES.
This Lease, dated as of this O day of June, 1996, is made and between CITY OF HOLLISTER, a municipal corporation, (the "Landlord") and GAVILAN COLLEGE, a community college district(the"Tenant")
2. PREMISES.
Landlord does hereby lease to Tenant and Tenant hereby leases from Landlord that certain space (herein called "Premises"), having dimensions of approximately 8,500 square feet of floor area, within the Briggs Building located 365 Fourth Street, Hollister, CA 95023 (the "Building"). The location and dimensions of said Premises are delineated on Exhibit "A" attached hereto and incorporated by reference herein.
Said Premises are located in the City of Hollister, County of San Benito, State of California.
This Lease is subject to the terms, covenants and conditions herein set forth and the Tenant covenants as a material part of the consideration for this Lease to keep and perform each and all of said terms, covenants and conditions by it to be kept and performed.
3. USE.
Tenant shall use the Premises for a SATELLITE CAMPUS and shall not use or permit the Premises to be used for any other purpose without the prior written consent of Landlord.
4. RENT.
4.1 Tenant agrees to pay to Landlord as Rent, without notice or demand, the monthly sum set forth in the Rent Schedule attached hereto as EDIT"B" in advance, on or before the first day of each and every successive calendar month during the term hereof, except the first month's Rent shall be paid upon the execution hereof.
The rental shall commence thirty (30) days after substantial completion of Tenant's work as set forth in Exhibit "B" attached hereto and incorporated herein by B.3.a
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reference, or when the Tenant opens for business, whichever is sooner. Tenant agrees that it will, at its sole cost and expense as soon as is reasonably possible after the execution of this Lease, commence and pursue to completion the improvements to be erected by Tenant to the extent shown on the attached Exhibit Rent for any period which is for less than one (I) month shall be a prorated portion of the monthly installment herein based upon a thirty (30) day month. Said Rent shall be paid to Landlord, without deduction or offset, lawful money of the United States of America and at such place as Landlord may from time to time designate in writing.
Starting with fiscal years (July 1st), Rent may be delayed for a period not to exceed ninety 90) days predicated upon the State of California adopting their annual budget. Upon budget adoption Gavilan College is responsible for all rent in arrears on or before the first day of the first of the month following the budget adoption. Tenant agrees to resume payment to Landlord without notice or demand the monthly sum setforth in the Rent Schedule attached hereto in Exhibit"B".
5. TERM.
The lease term shall be 15 years commencing on the date Tenant's work as set forth in Exhibit "B" is substantially completed and terminating 15 years from that date. The parties acknowledge that certain obligations under various Sections hereof may commence prior to the lease term, i.e., construction, holdharmiess, liability insurance, etc.; and the parties agree to be bound by these articles prior to commencement of the Lease term.
Tenant is given the option to extend the term of this Lease for one (1) five (5) year period ("extended term") following expiration of the initial term, by giving written notice to exercise of option ("option notice") to Landlord at least six (6) months, but not more than one (1) year before the expiration of the term. If Tenant is in default on the date the extended term is to commence, the extended term shall not commence and this Lease shall expire at the end of the initial term.
The parties shall have thirty (30) days after the Landlord receives the option notice to negotiate the applicable Rent during the extended term. If the parties agree on the Rent for the extended term during that period, they shall immediately execute an amendment to the Lease stating the new Rent. If the parties are unable to agree on the Rent for the extended term within that thirty (30) day period, the option notice shall be of no effect and this Lease shall expire at the end of the term.
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B. USES PROHIBITS.
Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which is not within the permitted uses of the Premises or which will in any way increase the existing rate of or affect any fire or other insurance upon the Building or any of its contents, or cause a cancellation of any insurance policy covering said Building or any part thereof or any of its contents. Tenant shall not do or permit anything to be done in or above the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Building or injure or annoy them or use or allow the Premises to:be used for any improper, immoral, unlawful or objectionable purpose; nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall not commit or allow to be committed any waste in or upon the Premises. Tenant agrees not to sell or permit to be kept, used, or sold in or about the Premises, hazardous substances or hazardous waste as defined by state or federal law. For purposes of this Section 8, hazardous substances shall not include incidental cleaning supplies, provided that all such materials and equipment are used in strict compliance with all applicable laws and regulations.
7. COMPLIANCE WITH LAW.
Tenant shall not use the Premises, or permit anything to be done in or about the Premises, which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be in force and with the requirements of any board of fire underwriters or other similar bodies now or hereafter constituted relating to Tenant's improvements or acts. The judgment of any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether Landlord be a party thereto or not, that Tenant has violated any law, statute, ordinance or governmental rule, regulation or requirement, shall be conclusive of that fact as between the Landlord and Tenant.
S. ALTERATIONS AND ADDITIONS.
Tenant shall not make or allow to be made any alterations, additions or improvements to or of the Premises or any part thereof without first obtaining the written consent of Landlord and any alterations, additions or improvements to or of said Premises, including, but not limited to, wall covering, paneling and built-in cabinet work, but excepting movable furniture and trade fixtures, shall at once become a part of the realty and belong to the Landlord and shall be surrendered with the Premises. In the event Landlord consents to the making of any alterations, additions or improvements to the Premises by Tenant, the same shall be made by Tenant at Tenant's sole cost and expense, except as otherwise provided on Exhibit "C". Upon the expiration or sooner B.3.a
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termination of the tis hereof, Tenant shall, upon written:lend by Landlord, given at least thirty(30) d prior to the end of the term, at Tensole cost and expense, forthwith and with all due diligence, remove any alterations, additions, or improvements made by Tenant, designated by Landlord to be removed, and Tenant shall, forthwith and will all due diligence, at its sole cost and expense, repair any dr3mage to the Premises caused by such removal_
9.REPAIRS.
9.1 By entry hereunder, Tenant shall be deemed to have accepted the Premises as being in good, sanitary order, condition and repair. Tenant shall, at Tenant's sole cost and expense, keep the Premises and every part thereof in good condition and repair(except as hereinafter provided with respect to Landlord's obligations) including without limitation, the maintenance, replacement and repair of any storefront, doors, window casements, glazing, plumbing, pipes, electrical wiring and conduits, heating and air conditioning system (when there is an air conditioning system.) Tenant shall obtain a service contract for repairs and maintenance of said system, said maintenance contract to conform to the requirements under the warranty, if any, on said system. Tenant shall, upon the expiration or sooner termination of this Lease hereof, surrender the Premises to the Landlord in good condition, broom clean, ordinary wear and tear and damage from causes beyond the reasonable control of Tenant excepted. Any damage to adjacent premises caused by Tenant's use of the Premises shall be repaired at the sole cost and expense of Tenant.
Notwithstanding the provisions of Section l 1.1, Landlord shall repair and maintain the structural portions of the Building, including the exterior walls and roof unless such maintenance and repairs are caused in part or in whole by the act, neglect, fault or omission of any duty by the Tenant, its agents, servants, employees, invitees, or any damage caused by breaking and entering, in which case Tenant shall pay to Landlord the actual cost of such maintenance and repairs. Landlord shall not be liable for any failure to make such repairs or to perform any maintenance unless such failure shall persist for an unreasonable time after written notice of the need of such repairs or maintenance is given to Landlord by Tenant.
Except as provided in Section 25 hereof, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business arising from the making of any repairs, alterations or improvements in or to any portion of the Building or the Premises or in or to fixtures, appurtenances and equipment therein. Tenant waives the right to make repairs at Landlord's expense under any law, statute or ordinance now or hereafter in effect.
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incurred by r on b1P.f of Tenant. Landlord mayr at'andlord's sole option,dlo e P n, that Tenant shall provide to Landlord, at Tenant's sole cost and expense, a lien and completion bond in an amount equal to one and one-half(1 VI)times the estimated cost of any improvements, additions, or alterations in the Premises which the Tenant desires to make, to insure Landlord against any liability for mechanics' and materialmen's liens and to insure completion ofthe work.
11.ASS1GNMENT AND SUBLETTING.
Tenant shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof or any right or privilege appurtenant thereto, or allow any other person(the employees, agents, servants and invitees of Tenant excepted) to occupy or use the said Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld. A consent to one assignment, subletting, occupation or use by one person in no way confers or implies consent to an assignment, subletting, occupation or use by another person. Consent to any such assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any such assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under the terms of this Lease. (Note: In the instance of a Sublessee is a private for profit business, possessory interest tax may be applicable.)
12. HOLD HARMLESS.
Tenant shall indemnify and hold harmless Landlord against and from any and all claims arising from Tenant's use of the Premises or from the conduct of Tenant's business or from any activity, work, or other things done, permitted or suffered by the Tenant in or about the Premises, and shall further indemnify and hold harmless Landlord against and from any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any act or negligence of the Tenant, or any officer, agent, employee, guest, or invitee of Tenant, and from all costs, attorney's fees, and liabilities incurred in, or about the defense of any such claim or any action or proceeding brought thereon and in case any action or proceeding be brought against Landlord by reason of such claim, Tenant upon notice from Landlord shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises, from any cause other than Landlord's negligence; and Tenant hereby waives ail claims in respect thereof against Landlord.
Tenant shad give prompt notice to Landlord in case of casualty or accidents in the Premises.
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Landlord or its agents shall not be liable for any loss or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof: street or subsurface or from any other place resulting from dampness or any other cause whatsoever, unless caused by or due to the willful and/or negligence of Landlord, its agents, servants or employees.
13. SUBROGATION.
As long as their respective insurers so permit, Landlord and Tenant hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage and other property insurance policies existing for the benefit of the respective parties. Each party shall apply to their insurers to obtain said waivers.
Each party shall obtain any special endorsements, if required by their insurer to evidence compliance with the aforementioned waiver.
14. LIABILITY INSURANCE.
Tenant shall, at Tenant's expense, obtain and keep in force during the term of the Lease a policy of commercial general liability insurance(sometimes known as comprehensive public liability insurance) insuring Landlord and Tenant(and, if requested by Landlord, Landlord's lender and property manager) against any liability for bodily injury, property damage(including loss of use of property) and personal injury arising out of the ownership, use occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be in the amount of not less than S2,000,000.00 per occurrence. The limit of any such insurance shall not, however, limit the liability of Tenant hereunder. Tenant may provide this insurance under a blanket policy, provided that said insurance shall have a Landlord's protective liability endorsement attached thereto. If Tenant shall fail to procure and maintain said insurance, Landlord may, but shall not be required to, procure and maintain same, but at the expense of Tenant. Insurance required hereunder shall be in companies rated A:XII or better as set forth in the most current "Best's Rating Guide." Tenant shall deliver to Landlord, prior to right of entry, copies of policies of liability insurance required herein or certificates evidencing and amounts of such insurance with loss payable clauses satisfactory to Landlord. All policies and certificates of policies shall provide that no cancellation, reduction or modification of coverage will occur without thirty (30) days prior written notice to Landlord. All such policies shall be written as primary policies-not contributing with and not in excess of coverage which Landlord may carry.
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15. UTILITIES.
Tenant shall pay for all water, gas, heat, cable, light, power, sewer charges, telephone service and all other s. No policy shall be cancelable or subject to reduction of coverage. All such policies services and utilities supplies to the Premises, together with any taxes thereon. If any such services are not separately metered to Tenant, Tenant shall pay a reasonable proportion to be determined by Landlord of all charges jointly metered with other Premises.
16. PERSONAL PROPERTY TAXES.
Tenant shall pay, or cause to be paid, before delinquency any and all taxes levied or assessed and which become payable during the term hereof upon all Tenant's leasehold improvements, equipment, furniture, fixtures, and any other personal property located in the Premises. In the event any or all of the Tenant's leasehold improvements, equipment, furniture, fixtures and other personal property shall be assessed and taxed with the real property, Tenant shall pay to Landlord its share of such taxes within ten 10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant's property.
17. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with rules and regulations that Landlord shall from time to time promulgate and/or modify. The rules and regulations shall be binding upon the Tenant upon delivery of a copy of them to Tenant. Landlord shall not be responsible to Tenant for the non-performance of any said rules and regulations by any other tenants or occupants. Tenant shall exercise their best effort to have employee and students follow rules.
18. ENTRY BY LANDLORD.
Landlord reserves, and shall at any and all times have, the right to enter the Premises to inspect the same upon reasonable notice to submit said Premises to prospective purchasers or tenants, to post notices of non-responsibility, to repair the Premises and any portion of the Building of which the Premises are a part that Landlord may deem necessary or desirable, without abatement or rent, and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the Premises shall not be unreasonably blocked thereby, and further providing that the business of the Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim for damages or for any injury or inconvenience to or interference with Tenant's business, B.3.a
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any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. For each of the aforesaid purposes, Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Premises, excluding Tenant's vaults, safes and files, and Landlord shall have the right to use any and all means which Landlord may deem proper to open said doors in an emergency, in order to obtain entry to the Premises without liability to Tenant except for any failure to exercise due care for Tenant's property and any entry to the Premises obtained by Landlord by any of said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or-unlawful entry into, or a detainer of the Premises, or an eviction of Tenant from the Premises or any portion thereof
19. TENANT'S DEFAULT.
The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant
a) The vacating or abandonment of the Premises by Tenant. b) The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of three (3) days after written notice thereof by Landlord to Tenant.
c) The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant, other than described in (b), above, where such failure shall continue for a period of thirty(30) days after written notice thereof by Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty(30) day period and thereafter diligently prosecutes such cure to completion.
d) The making by Tenant of any general assignment or general arrangement for the benefit of creditors; dr the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty(60) days); or the appointment of a trustee or a receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty(30) days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty(30) days.
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20. REMEDIES IN DEFAULT.
In the event of any such default or breach by Tenant, Landlord may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may have by reason or such default or breach:
a) Terminate Tenant's right to possession of the Premises by any IawfuI means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to, the cost of recovering possession of the Premises; expenses of relating, including necessary renovation and alteration of the Premises; reasonable attorney's fees; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent and other charges and Adjustments called for the balance of the term after the time of such award exceeds the amount of such loss for the same period that Tenant proves could be reasonably avoided: and that portion of any leasing commission paid by Landlord and applicable to the unexpired term of this Lease. Unpaid installments of Rent or other sums shall bear interest from the date due at the maximum legal rate; or
b) Maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to recover the rent and any other charges and Adjustments as may become due hereunder; or
c) Exercise any other remedy available to Landlord in law or equity
21. DEFAULT BY LANDLORD.
Landlord shall not be in default unless Landlord fails to perfartn obligations required of Landlord within a reasonable time, but in no event Eater than thirty(30) days after written notice by Tenant to Landlord and to the holder of any first mortgage or deed of trust covering the Premises whose name and address shall have theretofore been furnished to Tenant in writing, specifying wherein Landlord has failed to perform such obligations; provided, however, that if the nature of Landlord's obligation is such that more than thirty(30) days are required for performance then Landlord shall not be in default if Landlord commences performance within such thirty(30) day period and thereafter diligently prosecutes the same to completion. In no event shall Tenant have the right to terminate this Lease as a result of Landlord's default and Tenant's remedies shall be limited to damages and/or an injunction.
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22. RECONSTRUCTION.
In the event the Premises are damaged by fire or other perils covered by extended coverage insurance, Landlord agrees to forthwith repair same, and this Lease shall remain in full force and effect, except that Tenant shall be entitled to a proportionate reduction of the Minimum Rent from the date of damage and while such repairs shall reasonably interfere with the business carried on by the Tenant in the Premises. If the damage is due to the fault or neglect of Tenant or its employees, there shall be no abatement of rent.
In the event the Premises are damaged to any extent as a result of any cause other than the perils covered by fire and extended coverage insurance, Landlord shall have the option: (1) to repair, reconstruct or restore the Premises, in which event this Lease shall continue in hall force and effect but the Rent shall be proportionately reduced as hereinabove provided in this Section during the period of such repair, reconstruction or restoration; or(2) to give notice to Tenant at any time within sixty(60) days after such damage, terminating this Lease as of the date specified in such notice, which date shall be no more than thirty (30) days after the giving of such notice. In the event of giving such notice, this Lease shall expire and all interest of Tenant in the Premises shall terminate on the date so specified in such notice and the Rent, reduced by a proportionate reduction, based upon the extent, if any, to which such damage interfered with the business carried on by Tenant in the Premises, shall be paid up to date of said such termination.
Notwithstanding anything to the contrary contained in this Article, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises when the damage resulting from any casualty covered under this Article occurs during the last twenty-four months of the term of this Lease or any extension thereof Landlord shall not be required to repair any injury or damage by fire or other cause, or to make any repairs or replacements of any leasehold improvements, fixtures, or other personal property of Tenant.
23, CONDEMNATION.
If all or any part of the Premises shall be taken or appropriated for public or quasi- public use by right of eminent domain with or without Iitigation or transferred by agreement in connection with such public or quasi-public use, either party hereto shall have the right at its option such taking to terminate this Lease as of the date possession is taken by the condemning authority, provided, however, that before Tenant may terminate this Lease by reason of taking or appropriation as provided hereinabove, such or appropriation shall be of such an extent and nature as to B.3.a
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substantially handicap, impede or impair Tenant's use of the Premises_ No award for any partial or entire taking shall be apportioned, and Tenant hereby assigns to condemnation, together with any and all rights of Tenant now or hereafter arising in or to the same or any part thereof, provided, however, that nothing contained herein shalt be deemed to give Landlord any interest in or to require Tenant to assign to Landlord any award made to Tenant for the taking of personal property(excluding fixtures) belonging to Tenant and/or for the interruption of or damage to Tenant's business and/or for relocation of Tenant's business. In the event of a partial taking which does not result in a termination of this Lease, any charges under this Lease shall be abated in the proportion which the part of the Premises so made unusable bears to the rented area of the Premises immediately prior to the taking. No temporary taking of the Premises and/or of Tenant's rights therein or under this Lease shall terminate this Lease or give Tenant any right to any abatement of rent thereunder; any award made to Tenant by reason of any such temporary taking shall belong entirely to Tenant and Landlord shall not be entitled to share therein.
24. PARKING AND COMMON AREAS.
Tenant shall have access to the parking in the Building on a first-come, first-serve basis. Landlord reserves the right to change the entrances, exits, traffic lanes and the boundaries and locations of such parking area or areas. a) The Landlord shall keep said automobile parking and common areas in a neat, clean and orderly condition and shall repair any damage to the facilities thereof. b) Tenant, for the use and benefit of Tenant, its agents, employees, customers, licenses and sub-tenants, shall have the non-exclusive right in common with the public to use said common and parking areas during the entire term of this Lease, or any extension thereof, for ingress and egress, and automobile parking. c) The Tenant, in the use of said common and parking areas, agrees to comply with such reasonable rules and regulations for parking as the Landlord may adopt from time to time for the orderly and proper operation of said common and parking areas. Such rules may include but shall not be limited to the following: (1) The restricting of employee parking to a limited, designated area or areas; and (2) The regulation of the removal, storage and disposal of Tenant's refuse and other rubbish at the sole cost and expense of Tenant.
25. SIGNS.
The Tenant may affix and maintain upon the glass panes and supports of the show windows and within twelve(12) inches of any window and upon the exterior walls of the Premises only such signs, advertising placards, names, insignia, trademarks and descriptive material as shall have first received the written approval of the Landlord as to type, size, color, location, copy nature and display qualities. Anything to the contrary in this Lease notwithstanding, Tenant shall not affix any sign to the roof Tenant shall, however, erect one sign on the front of the Premises not later than the B.3.a
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date Tenant opens for business, in accordance with a design to be prepared by Tenant in accordance with Landlord's sign criteria and shall be subject to the approval of Landlord.
26. DISPLAYS.
The Tenant may not display or sell merchandise or allow grocery carts or other similar devices within the control of Tenant to be stored or to remain outside the defined exterior walls and permanent doorway of the Premises. Tenant further agrees not to install any exterior lighting, amplifiers or similar devices or use in or about the Premises any advertising medium which may be heard or seen outside the Premises, such as flashing lights, searchlights, loudspeakers, phonographs or radio broadcasts.
27. AUCTIONS.
Tenant shall not conduct or permit to be conducted any sale by auction in, upon or from the Premises whether said auction be voluntary, involuntary, pursuant to any bankruptcy or other insolvency proceeding.
28. HOURS OF BUSINESS.
Tenant shall remain open during the usual hours established by Gavilan College.
29. HOLDING OVER.
If Tenant should hold possession of the Premises or any part thereof after the expiration of the term of this Lease or any renewal or extension hereof then such holding over shall constitute a tenancy from month to month, upon the same terms, covenants and conditions.contained herein so far as are applicable.
30. GENERAL PROVISIONS,
a) Exhibits. Exhibits, schedules, riders and addenda, if any, affixed to this Lease are a part hereof
b) Waiver. The waiver by Landlord of any term, covenant or condition herein contained shall riot be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein obtained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, other than the failure of the Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding default at the time of the acceptance of such Rent.
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c) Joint Obligation. If there be more than one Tenant the obligations hereunder imposed shall be joint and several.
d) Headings. The Section headings of this Lease are not a part of the Lease and shall have no effect upon the construction or interpretation of any part hereof. e) Time. Time is of the essence of this Lease and each and all of its provisions in which performance is a factor.
t') Successor and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. g) Recordation. Neither Landlord nor Tenant shall record this Lease, but a short form memorandum hereof may be recorded at the request of Landlord. h) Ouiet Possession. Upon Tenant paying the Rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Tenant's part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Lease.
i) Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by terms of any mortgage or trust deed covering the Premises. Accordingly, if any installment of rent of any sum due from Tenant shall not be received by Landlord or Landlord's designee within five (5) days after written notice that said amount is past due, then Tenant shall pay to Landlord or Landlord's a late charge equal to the maximum amount permitted by law(and in the absence of any governing law, ten percent of such overdue amount), plus any attorneys' fee incurred by Landlord by reason of Tenant's failure to pay rent and/or other charges when due hereunder.
The parties hereby agree that such late charges represent a fair and reasonable estimate of the cost that Landlord will incur by reason of the Iate payment by Tenant. Acceptance of such late charges by the Landlord does not permit Landlord from exercising any of the other rights and remedies granted hereunder.
I) Prior Agreements. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provisions of this Lease, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose.
No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. This Lease shall not be effective or binding on any party until fully executed by both parties hereto.
k) Xnahility to Perform, This Lease and the obligations of the Tenant hereunder shall not be affected or impaired because the Landlord is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused B.3.a
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by reason of strike, labor troubles, acts of God, or nay other cause beyond the reasonable control of the Landlord.
I) Partial Invalidity. Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provision shall remain in full force and effect. m)Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
n) Choice of Law. This Lease shall be governed by the laws of the State of California.
o) Attorneys' Fees. In the event of any action or proceeding brought by either party against the other under this Lease the prevailing party shall be entitled to recover its expenses and costs, including its attorneys' fees and expert witness fees in such action or proceeding, including costs of appeal, if any, in such amount as the court may adjudge reasonable.
p) Sale of Premises by Landlord. In the event of any sale of the Premises by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring afterthe consummation of such sale; and the purchaser, at such sale or any subsequent sale of the Premises shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Lease.
q) Subordination,Attornment, Upon request of the Landlord, Tenant will in writing subordinate its rights hereunder to the lien of any mortgage or deed of trust, to any bank, insurance company, governmental agency or other Iending institution, now or hereafter in force against the Premises, and to all advances made or hereafter to be made upon the security hereof
In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage or deed of trust made by the Landlord covering the Premises, the Tenant shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Landlord under this Lease.
The provisions of this Article to the contrary, notwithstanding, and so long as Tenant is not in default hereunder, this Lease shall remain in full force and effect for the full term hereof.
r.) Notices. All notices and demands which may or are to be required or permitted to be given by either party on the other hereunder shall be in writing. All notices and demands by the Landlord to the Tenant shall be sent by certified United States Mail, postage prepaid, addressed to the Tenant at the Premises, and to the address hereinbelow, or to such other place as Tenant may from time to time B.3.a
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designate in a notice to the Landlord. All notices and demands by the Tenant to the Landlord shall be sent by certified United States Mail, postage prepaid, addressed to the Landlord at the address set forth herein, and to such other person or place as the Landlord may from time to time designate in a notice to the Tenant.
To Landlord: City of Hollister
375 Fifth Street
Hollister, CA 95023
To Tenant: Gavilan College
5500 Santa Teresa Blvd.
Gilroy, CA 95020
s) Tenant's Statement(Estoppel Certificate). Tenant shall at any time and from time to time, upon not less than three (3) days prior written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect), and the date to which the Rent and other charges are paid in advance, if any, and (b)acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of the Landlord hereunder, or specifying such defaults if any are claimed, and setting forth the date of commencement of rents and expiration of the term hereof Any such statement may be relied upon by the prospective purchaser or encumbrancers of all or any portion of the real property of which the Premises are a part.
t) Authority of Tenant. If Tenant is a community college district, each individual executing this Lease on behalf of Tenant represents and warrants that he or she has full authority to do so and that this Lease binds the community college district.
31. NONDISCRIMINATION.
The Tenant herein covenants by and for the Tenant and Tenant's heirs, personal representatives and assigns and all persons claiming under the Tenant or through the Tenant that this discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry, disability, age or other arbitrary factor in violation of federal, state and local law in the provision of child care services in the Premises; employment in the Premises; leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises herein Leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the Premises herein Ieased.
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32. COMPLIANCE.
The parties hereto agree to comply with alI applicable federal, state and local laws, regulations, codes, ordinances and administrative orders having jurisdiction over the parties, property or the subject matter of this Agreement, including, but not limited to, the 1964 Civil Rights Act and all amendments thereto, the Foreign Investment in Real Property Tax Act, the Comprehensive Environmental Response compensation and Liability Act, and the Americans with Disabilities Act.
33. EXHIBITS.
Attached hereto and made part of this lease: Exhibit"A"(Site Plan), Exhibit"B" Tenant Work), and Exhibit"C"=
CITY OF HOLLIS[hit GAVILAN COLLEGE
375 FIFTH STREET 5055 SANTA TERESA BLVD.
HOLLIS I'ER, CA 95023 GILROY, CA 95020
Dv: Bev:
Richar K, Boomer Dr.Glenn Mayle
M or Its: President
Date: y20/96 Date: l 12/9 6.
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EXHIBIT "A"
Site Plan
A-1
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EXIT"B""
RENT SCHEDULE
Year Lease Per Sq.Ft (8,500 SF) Minimum Monthly Rent
1 0.70 5950.00
2 0.80 6800.00
3 0.90 7650.00
4 1.00 8500.00
5-7 1.10 9350.00
8,10 1.20 10200.00
11-15 1.30 11050.00
B-1
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EXHIBIT"C"
DESCRIPTION OF TENANT'S WORK
1, Landlord agrees to fund up to $170,000 of tenant improvements to be agreed upon by the City and the District prior to commencement of work on the tenant improvements.
2. Landlord also agrees to amortized $42,500 within the minimum rent due in the lease to assist in tenant improvement costs.
3. If tenant improvement costs exceed$30.00 a square foot, the City agrees to incur that additional cost.
GI
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RESOLUTION 96- 89
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HOLLISTER TO EXECUTE A LEASE WITH GAVILAN COLLEGE.
WHEREAS; the City of Hollister owns and manages 9,500 square feet of retail space in the Briggs Parking Structure located at 365 Fourth St.; and WHEREAS; Gavilan College will occupy 8,500 square feet of the space for a satellite campus;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF HOLLISTER, that the City Manager or His Designee is directed and authorized, on behalf of the City of Hollister, to execute the attached lease and related documents, subject to minor changes with language to be approved as to form by the City Attorney, with Gavilan College for a portion of the Briggs Parking Structure.
PASSED AND ADOPTED, this 20th day of May, 1996, by the following votes:
AYES: Councilmen Felice, Duran, Irish, Guzman, and Mayor Boomer.
NOES: None.
ABSTAINED: None.
ABSENT: None.
le7-e-r-- IA.---d.5.,.o::?'e------ -------______
Richard K. Boomer, Mayor of the
City of Hollister
ATTES :
0-41.a411/11111°°('000,747.4.1..
r. ol+ A. Carillo, Jr.`erk of the;
ity of Hollister
pUPUCATE Of Qr1i
l+liiA
ON ME IN'11nE
OffIcE of T'riE CITY
R
CITY OF i-iOLL1ST=
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MEMORANDUM
R`
DATE: May 28, 1996
TO: --Phil MolirrarFinanceDirector
Elaine Cass, City Attorney
FROM: William B. Avera, RDA
RE: GAVILAN COLLEGE LEASE
Mr. Johnson asked me to address the questions and concerns regarding the Gavilan Lease in your memo dated May 24, 1998,
1. The amortized $42,500 is already included in the minimum rent.
2. Please note that paragraphs 6 (Security Deposit) and 7 (Additional Charges) have been removed from the lease.
With regards to section 7, the minimum rent received from the College would cover the expenses associated with the parking garage, (i.e. maintenace, insurance, and utilities) therefore, no reason to adjust for typical triple net charges.
If you should have any further questions or comments please feel free to call me at 636-4316.
CC: Barry Johnson; City Manager
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eTh
to completion the improvements to be erected by Tenant to the extent shown on the attached Exhibit"B".
Rent for any period which is for less than one(1)month shall be a prorated portion of the monthly installment herein based upon a thirty (30) day month. Said Rent shall be paid to Landlord, without deduction or offset, lawful money of the United States of America and at such place as Landlord may from time to time designate in writing.
5. TERM.
The lease term shall be 15 years commencing on the date Tenant's work as set forth in Exhibit"B" is substantially completed and terminating 15 years from that date.
The parties acknowledge that certain obligations under various Sections hereof may commence prior to the lease term, i.e., construction, holdharmless, liability insurance, etc.; and the parties agree to be bound by these articles prior to commencement of the Lease term.
Tenant is given the option to extend the term of this Lease for one(1)five(5) year period ("extended term") following expiration of the initial term, by giving written notice to exercise of option ("option notice") to Landlord at least six (6) months, but not more than one(1)year before the expiration of the term, If Tenant is in default on the date the extended term is to commence, the extended term shall not commence and this Lease shall expire at the end of the initial term.
The parties shall have thirty(30) days after the Landlord receives the option notice to negotiate the applicable Rent during the extended term. If the parties agree on the Rent for the extended term during that period, they shall immediately execute an amendment to the Lease stating the new Rent. If the parties are unable to agree on the Rent for the extended term within that thirty(30)day period, the option notice shall be of no effect and this Lease shall expire at the end of the term.
6. SECURITY DEPOSIT.
Concurrently with Tenant's execution of this Lease, Tenant has deposited with Landlord a sum equivalent to the first month's Rent. Said sum shall be held by Landlord as security for the faithful performance by Tenant of all the terms, covenants, and conditions of this Lease to be kept and performed by Tenant during the term hereof. If Tenant defaults with respect to any provision of this Lease, including, but not limited to the provisions relating to the payment of Rent, Landlord may (but shall not be required to use, apply or retain all or any part of this security deposit for the payment of any Rent or any other sum in default, or for the payment of any amount which Landlord may spend or become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant's default. If any portion of said deposit is so used or B.3.a
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applied Tenant shall, within five (5) days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the security deposit to its original amount and Tenant's failure to do so shall be a default under this Lease. Landlord shall not be required to keep this security deposit separate from its general funds, and Tenant shall not be entitled to interest on such deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the security deposit or any balance thereof shall be returned to Tenant (or, at Landlord's option, to the last assignee of Tenant's interest hereunder) within ten (10) days following expiration of the Lease term. In the event of termination of Landlord's interest in this Lease, Landlord shall transfer said deposit to Landlord's successor in interest.
7. ADDITIONAL CHARGES.
In addition to the Rent provided for in Section 4 and commencing at the same time as any Rent commences under this Lease, Tenant shall pay to Landlord the following items, herein called"Adjustments":
i) All costs to maintain, insure, repair, operate, and replace common areas, parking facilities, sidewalks, driveways, and other areas used in common by the tenants of the Building.
ii) All costs to supervise and administer said common areas, parking lots sidewalks, driveways, and other areas used in common by the tenants or occupants of the Building. Said costs shall include such fees as may be paid to third party in connection with same and shall in any event include a fee to Landlord to supervise and administer same in an amount equal to ten 10%)percent of the total costs of(i) above.
iii) Any parking charges, utilities surcharges, taxes, assessments, or any other costs levied, assessed or imposed by, or at the direction of, or resulting from statutes or regulations, or interpretations thereof, promulgated by any governmental authority in connection with the use or occupancy of the Building or the parking facilities serving the Building.
8. USES PROHIBITED.
Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which is not within the permitted uses of the Premises or which will in any way increase the existing rate of or affect any fire or other insurance upon the Building or any of its contents, or cause a cancellation of any insurance policy covering said Building or any part thereof or any of its contents.
Tenant shall not do or permit anything to be done in or above the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Building or injure or annoy them or use or allow the Premises to be used for any B.3.a
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CITY OF HOLLISTER CITY COUNCIL AGENDA
TRANSMITTAL FORM
DATE: May 15, 1996 AGENDA ITEM:
MEETING DATE: May 20, 19%
TITLE OF ITEM: BRIGGS BUILDING LEASE
DEADLINE FOR COUNCIL ACTION: MAY 20, 1996
DEPARTMENT: Redevelopment Agency
4IfNATOR c'te
WILLIAM AVERA, REDEVELOPMENT PROJECTS
PHONE NO: 408-636-4316
DEPARTMENT SUMMARY: A RESOLUTION AUTHORIZING THE CITY
MANAGER TO EXECUTE A LEASE WITH GAVILAN COLLEGE FOR AVAILABLE SPACE WITHIN THE BRIGGS PARKING STRUCTURE AT 365 FOURTH STREET, HOLLISTER.
FINANCIAL IMPACT: 0-
FUNDING SOURCE: REDEVELOPMENT AGENCY
BUDGET RECAP:
Total Estimated Cost New Revenue $71.400
Net City Cost Lost Revenue $
Amt. Budget FY 94/95 New
New Funding Required $ Change in City Policy?
PRIOR COUNCIL ACTIONS:
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ALTERNATIVES:
1. Approve
2. Deny
ENVIRONMENTAL REVIEW STATUS: None
COMMITTEE REVIEW AND ACTION: None.
ATTACHMENTS:
1. STAFF REPORT DATED APRIL 29, 1996
2. LEASE
3.RESOLUTION 96- , AUTHORIZING THE CITY MANAGER TO EXECUTE LEASE DOCUMENTS.
RECOMMENDE ACTION: APPROVAL
EXECUTIVE IRECTOR RECOMMENDATION: Same as recommended action.
CONCURRENCES (if appropriate): N/A
BY: BY:
City Attorney Other ( ) City Manager
ept. Head
Supervisor
AGENDA\GAVLEASE DOC
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n
MEMORANDUM
DATE: April 29, 1996
TO: Barry Johnson, City Manager
FROM: William B. Avera, RDA
RE: BRIGGS BUILDING LEASE
BACKGROUND:
The City of Hollister owns a four story parking structure located at 365 Fourth St. The first floor of the structure contains 9,500 square feet of retail space with storage areas.
Completion of the building is scheduled to be around middle of May, and the City has been contacted by businesses showing an interest in leasing space in the structure.
DISCUSSION:
The City of Hollister has been in negotiations with Gavilan College to lease 8,500 square feet in the Briggs Parking Structure. The term of the lease is Fifteen (15) years with one Five (5) year extension option. The City of Hollister is offering the College a Twenty (20) dollar per square foot tenant improvement allowance.
Staff is requesting that the City Council authorize the City Manager to enter into a Lease with Gavilan College and execute all related documents.
RECOMMENDATION:
Approve Resolution 96-authorizing the City Manager or His Designee to execute the lease documents with Gavilan College for space within the Briggs Parking Structure.
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DUPLICATE OF ORIGINAL
ON FILE IN THE
OFFICE OF THE CITY CLERK
RESOLUTION 99- 172
CITY OF HOLLISTER
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER
APPROVING A USE AGREEMENT WITH GAVILAN COLLEGE FOR THE
ARNOLD CARRILLO CONFERENCE ROOM.
WHEREAS, the City of Hollister currently owns the Briggs Building which is primarily leased by Gavilan College; and
WHEREAS, Gavilan College has expressed an interest in using the Arnold Carrillo conference room within the Briggs Building to expand classes.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF HOLLISTER, that the City Manager, is hereby authorized and directed, by the City Council to execute a use agreement with Gavilan College for the use of the Arnold Carrillo conference room at a rate of$5.00 per hour.
PASSED AND ADOPTED, this 18th day of October, 1999, by the following vote:
AYES: Councilmembers Valdivia, Corrales, Duran, Felice and Mayor Booms- NOES: None
ABSTAINED: None
ABSENT. Non
Richard K. oomer, Mayor
City of Hollister
Frank D. Felice, Cit .Clerk
City of Hollister
L.(
APPROVED AS TO FORM:
Elaine Cass, City Attorney
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STAFF REPORT TRANSMITTAL FOR
STUDY SESSION AND/OR CITY COUNCIL AGENDA
DATE: October 8, 1999 AGENDA ITEM: Consent
STUDY SESSION DATE: MEETING DATE: October 18, 1999 TITLE OF ITEM: Gavilan College Lease of Arnold Carrillo Conference Room BRIEF DESCRIPTION:
Gavilan College is requesting the use of the Arnold Carrillo conference room located in the Briggs Building for the purposes of expanding classes. The college would like to begin with two nights, Monday and Tuesday, for three hours a night.
DEPARTMENT: Community Development Department
CONTACT PERSON: Bill Avera PHONE: 636-4316
DEPARTMENT SUMMARY:
Gavilan College currently leases approximately 9,500 square of the retail portion of the Briggs Building. In addition, the College leases rooms from the local school district when the need arises for expanding classes. Therefore, the college is requesting the opportunity to lease the Arnold Carrillo conference room for expanding classes for obvious convenience purposes.
Gavilan College is interested in using the room next semester in the evenings for approximately three hours. The days would be limited to Mondays and Tuesdays only.
Their proposal is to lease the room at the same rate they pay the school districts which is
5.00 per hour. This would equate to $15.00 per evening, or$120.00 per month.
Staff has recently completed a change in the storefronts at the Briggs Building. By switching doors and windows, it is now possible to enter the Arnold Carrillo conference room from the street without accessing the office space utilized by the Community Resource Center(Crime Prevention, Housing Authority, etc.).
Staff recommends that the City Council authorize the City Manager to execute a Use Agreement with Gavilan College to utilize the Arnold Carrillo conference room.
FINANCIAL IMPACT: A revenue of$120.00 per month.
STAFF RECOMMENDATION:
Staff recommends the City Council adopt Resolution 99- authorizing the City Manager to execute a Use Agreement with the Gavilan College for the use of the Arnold Carrillo conference room located in the Briggs Building.
CITY MANAGER RECOMMENDATION: Concurs
APPROVED AS TO FORM:
1 B.3.a
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OH ill l lilt 111 l lili l illll i l l lllli
2012-0005713
Recorded REC FEE 0.00
Official Records
County of CONFORMED C 0.00
San Benito
JOE PAUL GONZALEZ
Clerk-Auditor-Recorde
Recorded By and Return To: JB
03:41PM 21-Jun-2012 Page 1 of 9
City Clerk's Office
City of Hollister
375 Fifth Street
Hollister, CA 95023
To Be Recorded Without Fee Per Government Code Section 27383 Amendment No. 1 to Lease Between
The City of Hollister and Gavilan College, A
Community College District
Adopted by the City Council of the City of Hollister
on the 18th day of June, 2012
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Recorded by and Return to:
City of Hollister
Office of the City Clerk
375 Fifth Street
Hollister, CA 95023
AMENDMENT NO. 1 TO LEASE BETWEEN
THE CITY OF HOLLISTER AND GAVILAN COLLGE, A
COMMUNITY COLLEGE DISTRICT
This Amendment No. 1 to the Lease dated June 20, 1996, is entered into on May 21, 2012, between the City of Hollister, a municipal corporation, (the Landlord"), and Gavilan College, a community college district (the "Tenant"), together referred to as "the Parties."
RECITALS
A. On June 20, 1996, the Parties entered into a Lease for a portion of the Briggs Building located at 365 Fourth Street, Hollister CA 95023 (the Building").
B. Said lease is due to expire on June 30, 2012.
C. The Parties desire to amend some of the terms of the Lease, including the expiration date.
Now, therefore, for good and valuable consideration, the Parties agree to amend the Lease Agreement as follows:
AMENDMENT NO. 1
Premises
Section 2 of the Lease is hereby amended to replace the phrase "8,500 square feet of floor area" with the phrase 8,984 square feet of floor area".
Section 2 of the Lease is also amended to replace "Exhibit A' with the attached "Exhibit A" which includes Room 6, the Arnold Carrillo Room, as part of the Premises.
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Term
Section 5 is hereby amended to add the following:
Consistent with Tenant's option to extend the lease term, the Parties agree to extend the lease term for an additional five (5) years or until June 20, 2017 provided, however, that beginning December 31, 2013, the Tenant shall have the right to terminate the Lease upon six months written notice.
Rent
Section 4 of the Lease is hereby amended to replace "Exhibit B" Rent Schedule with the attached "Exhibit B" which is incorporated into the Lease as if fully set forth herein.
Utilities/Janitorial Services
Section 15 is now entitled Utilities/Janitorial Services and is amended to add the following: Tenant is responsible to provide daily, biannual and annual janitorial services for the Premises and bathroom facilities, as specified herein. Tenant shall provide all cleaning and bathroom supplies including but not limited to replacement light bulbs, trash liners, toilet paper, paper towers, and hand soap. Landlord is responsible to provide cleaning services to the City's Sub-Station (Room) and all Elevators. All contracts for janitorial services shall comply with the California Public Contract Code. The City shall have the right to inspect any portion of the Briggs Building for sufficiency of janitorial services. If City finds that the janitorial services are unsatisfactory, the City shall provide written notice to Tenant, and Tenant shall have forty-eight hours from the date and time of the service of the notice to cure those janitorial deficiencies.
Daily Janitorial services shall include the following:
1 . Empty all trash in receptacle inside and outside of building and dispose to the appropriate trash or recycling bin.
2. Dust office and classroom furniture, chairs, file cabinets and bookshelves
3. Dust windowsills, ledges, and other flat surfaces.
4. Clean tables and counter
5. Clean doors, doorframes, and light switches
6. Clean glass entry doors
7. Thoroughly vacuum all carpeting
8. Sweep and mop all tile floor areas
9. Keep recycled items separate from garbage and dispose in appropriate container
10.Clean all baseboard, walls, partitions and doors
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11.Restroom Services — (per cleaning)
a. Restock supplies for toilet paper, seat covers, paper towels, and hand soap
b. Empty trash containers and dispose to garbage bin
c. Sweep floors prior to mopping, use disinfectant floor cleaner d. Clean baseboards, walls, partitions, and doors
e. Scrub all toilets and urinals
f. Polish mirrors
g. Clean sinks and polish metal fixtures
h. Dust flat surfaces such as sink counter
i. Dry our mop and mop bucket after used
Biannual Janitorial Service shall include:
1 . Window Cleaning Inside and outside and window frames and tracks.
2. Thoroughly remove all stains and steam cleaning on all carpet areas.
Annual Service shall include:
1. Apply non-slip wax to all non-carpeted traffic areas All other terms and conditions of the original Lease dated June 20, 1996, shall remain in full force and effect.
Landlord Tenant
City of Hollister Gavilan College
375 Fifth Street 5055 Santa Teresa Boulevard
Hollister, CA 95023 Gilroy, CA 95020
107( jet.,;.4.4._
ay and Friend Dr. Steve Kinsella
Mayor President
D 8 Date: !4)//3A2 0/9—
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EXHIBIT "A" - PREMESIS
MMUNgE IIXATWx
J .r --_ott, ...1 r
411
I- I.•.4•O• •.0•/ i11{A a LL1/... PARKING GARAGE
w I'+. j A.•..•.
RE
4!,.kj t-71 it u ma
I
TO tcm
9 El El
1Ose!i i i i may..•.
z . I Q,.*w,i;liOOi iOOODOi ii0•ii• +"• E L.
it 4
1:h 1. IIp4).'...•.,•.•w,,11.
1 rnia uo 1 444i. 41
ii: A , iiiii i iii•4i .1+'.•,I
x xx. p
44. m P•S i
FOURTH STREET
CITY OF HOLLISTER
BRIGGS BUILDING AND PARKING GARAGE 1ST. . • • FLOOR B.3.b
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EXHIBIT "B"
RENT SCHEDULE
Year Lease Rate per Monthly Rate Credit for Adjusted
Square Foot Janitorial Monthly
8,984 Sq. Ft.) Services and Minimum
Supplies
1-3 1 .20 (2012-2015) $10,200.00 1 ,500.00)9,280.80 4 1.25 (2016) 10,625.00 1 ,650.00)9,580.00
5 1 .30 (2017) 11,050.00 1 ,700.00) 9979.20
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California All-Purpose Acknowledgment 2008 Code Section 1189 Compliant State of California
County of 5}9AJ7* (!)AIW)
On i / 3 MO1 before me,/ .()gJt9z ,var i >/ R) # here insert name and tit/ of the officer)
personally appeared 5?7j-kvPy 1-1, k;it 7,5R.Z AA
who proved to me on the basis of satisfactory evidence to be the person .whose name i / subscribed to the within instrument and acknowled ed to me that he/a)CA/thXy executed the same in his/ t authorized capacity(), and that by his/lr/th Nr signature .on the instrument the person, or the entity upon behalf of which the person(Oacted, 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.
aSignature79j.k rs[?wp ` 1 9 2Uir: Comm. R127 F I :1'80 Notary Pubic CaNtomio COIL**,, Santo Clara County CO1nj7. My Comm.Expires Dec 21.2014 Seal)
OPTIONAL INFORMATION
Law does not require the information below. This information could be of great value to any person(s)relying on this document and could prevent fraudulent and/or the reattachment of this document to an unauthorized document(s)
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) if Different Than Above:
Other Information:
CAPACITY(IES)CLAIMED BY SIGNER(S)
Signer's Name(s):
Individual
Corporate Officer
Title(s))
Partner
Attorney-in-Fact
Trustee
Guardian/Conservator
Other:
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies):
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ACKNOWLEDGEMENT
The undersigned parties hereby acknowledge the mathematical error in the calculation of the monthly rate listed on Exhibit B Rent Schedule of the Amendment No. 1 to Lease between the City of Hollister and Gavilan College, A Community College District recorded at the San Benito County Recorder's Office on June 21, 2012, Recorder's Number 2012-0005713. The parties agree that the corrected monthly rate is shown below and that the recorded Adjusted Monthly Minimum Rent will remain the same.
EXHIBIT "B"
CORRECTED RENT SCHEDULE
Year Lease Rate per Monthly Rate Credit for Adjusted
Square Foot Janitorial Monthly
8,984 Sq. Ft.) Services and Minimum
Supplies
1-3 1.20 (2012-2015) 10,200.00 1,500.00) 9,280.80
10,780.80
4 1.25 (2016) 4-0,625.00 1,650.00) 9,580.00
11,230.00
5 1.30 (2017) 11,050.00 1,700.00) 9979.20
11,679.20
0/4_ A _______-- -A i 4v142_,e_____-
Clint Quilter Steve Kinsella
City Manager, City of Hollister President, Gavilan College Date:1 ( 2 l< idd ( '2-J / Date:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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Date Here Insert Name and Tif' o he Officer
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fifiwho proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are
fi subscribed to the within instrument and acknowledged fi to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that byGERALDINEA.JOHNSON fifi Commission 1903450 his/her/their signature(s) on the instrument the g i r 5 • Notary Public-California i person(s), or the entity upon behalf of which the San Benito County — person(s) acted, executed the instrument. x fi M Comm.Expires Se 10,2014
fi I certify under PENALTY OF PERJURY under the
Alaws of the State of California that the foregoing
fi paragraph is true and correct.
fi
fi WITNESS my h d and official sea
fi
fi Signature: ci
F Place Notary Seal and/or Stamp Above Signature of Not, Publil I
fi OPTIONAL
rI Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. 3 fifi Description of Attached D ument //
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Title or Type of Document: --J /Y> e„,,,,,- www.NationalNotary.org Item#5907 Reorder.Call Toll-Free 1-800-876-6827 B.3.b
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RESOLUTION NO. 2012-102
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING EXECUTION OF AMENDMENT NO. 1 TO THE LEASE AGREEMENT
WITH GAVILAN COLLEGE, A COMMUNITY COLLEGE DISTRICT,
FOR THE BRIGGS BUILDING
WHEREAS, the City Council of the City of Hollister approved Resolution No. 96- 89 which authorized a lease agreement with Gavilan Community College for the Briggs Building at 365 Fourth Street for a satellite campus to educate residents in the City of Hollister; and
WHEREAS, the term of the lease of the facility was for 15 years with an option for a five year extension; and
WHEREAS, the Gavilan Community College District desires to extend the lease agreement for five years with an option for early termination beginning the third year of the lease and other amendments;
NOW THEREFORE BE IT RESOLVED as follows:
1.The Mayor is hereby authorized and directed to file a Notice of Exemption with respect to the Agreement in accordance with the applicable provisions of CEQA.
2. The City Council approves Amendment No. 1 to the lease agreement dated May 1, 2012.
3. The Mayor is hereby authorized and directed to execute Amendment No. 1 to the Lease Agreement with Gavilan Community College.
4. This Resolution shall take immediate effect upon its adoption.
PASSED AND ADOPTED this 18th day of June 2012, by the following votes:
AYES: Council Members Emerson, Valdivia, Scattini, Gomez, and Mayor Friend.
NOES: None.
ABSENT: None.
Raymo d Friend, Mayor
ATTEST: APPROVED AS TO FORM:
46.-
G ri Johnson, ity Clerk Stepha Atigh, City Attor(ie
DUPLICATE OF ORIGINAL
ON FILE IN THE
OFFICE
IY OFTHE CITY
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EXHIBIT 1
AMENDMENT NO. 2 TO LEASE OF BRIGGS BUILDING BETWEEN
THE CITY OF HOLLISTER AND GAVILAN COLLEGE, A COMMUNITY
COLLEGE DISTRICT
This Amendment No. 2 to the Lease of Briggs Building dated June 20, 1990 (the "Lease") is entered into on May 15, 2017, between the City of Hollister, a municipal corporation, (the "Landlord"), and Gavilan Joint Community College District, a community college district (the "Tenant"), together herein referred to as "the Parties."
RECITALS
A. Whereas the Parties entered into the Lease of a portion of the Briggs Building located at 365 Fourth Street, Hollister, CA 95023 (the "Building"); B. Whereas the Parties, pursuant to Amendment No. 1 to Lease Between City of Hollister and Gavilan College dated June 21, 2012 ("Amendment No. 1"), agreed to extend the original term of the Lease from June 30, 2012 to June 20, 2017; and
C. Whereas, Landlord and Tenant now desire to amend and extend the current term of the Lease pursuant to the terms, covenants, agreements, and conditions set forth in this Amendment No.2;
Now, therefore, for good and valuable consideration, the Parties agree to amend the Lease and Amendment No. 1, as follows:
AMENDMENT NO. 2
1. Extension of Current Lease Term
The term of the Lease is hereby amended to extend for five (5) additional years, commencing on June 21, 2017 and ending on June 20, 2022 (the "Extended Term"), provided, however, that Tenant, beginning on December 31, 2019, shall have the right to terminate the Lease early by providing Landlord with six (6) month's written notice.
2. Premises
a. Section 2 of the Lease is hereby amended as follows: The phrase "8,984 square feet of floor area" is deleted in its entirety and the phrase "8,260 square feet of floor area" is inserted in its stead.
b. Section 2 of the Lease is further amended as follows: Exhibit "A" to the original Lease is hereby deleted in its entirety and replaced in its stead by Exhibit "A" attached hereto and incorporated herein by reference. Exhibit "A" attached hereto removes Room 6, the Arnold Carrillo Room, adds the nearly 16 foot by 19 foot storage room at the northwest portion of the building to part of the Premises Page I 1
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and removes the nearly 16 foot by 34 foot storage room on the northwest corner as constituting part of the Premises.
3. Rent
Notwithstanding provisions of the Lease and Amendment No. 1 relating to Rent, during the Extended Term, Rent due to Landlord from Tenant shall be paid in strict accordance with the terms and conditions set forth in Exhibit "B" attached hereto and incorporated herein, as if fully set forth.
4. Utilities/Janitorial Services
Section 15 of the Lease and Amendment No 1 are hereby amended to add the following weekly responsibilities to the Landlord cleaning services: the stairs, sweeping and removal of cobwebs at the front of the structure facing San Benito Street and near the elevator entrances.
5. No Other Changes
Except as provided in this Amendment No. 2, the terms and conditions of the Lease and Amendment No. 1 dated June 18, 2012, shall remain unmodified and in full force and effect. In the event of a conflict between the terms of this Amendment No. 2 and the terms of the Lease and Amendment No. 1, the terms of this Amendment No. 2 shall govern and control.
6. New Exhibit B to Lease
Exhibit B to the Lease, as previously amended, shall be deleted in its entirety and replaced in its stead with Exhibit B, which is attached hereto and incorporated herein by reference.
7. Effective Date of Amendment No. 2.
This Amendment No. 2 is subject to approval or ratification by the Landlord's City Council and the Tenant's Board of Trustees. This Amendment No. 2 shall only be effective and enforceable as of the date that the City Council and Board of Trustees have taken action to approve/ratify this Amendment No.2.
8. Counterparts
This Amendment No. 2 may be executed in any number of counterparts, each of which shall be deemed an original, and when taken together, shall constitute one and the same document.
Landlord Ignacio Velazquez
City of Hollister Mayor-
375 Fifth Street Date:
Hollister, CA 95023
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0 Tenant 00
rederick E. Harris
Gavitan Joint Community College Vice President of Administrative District Services
l
5055 Santa Teresa Boulevard
Gilroy, CA 95020 Date:
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EXHIBIT "A" - PREMISES
w
s
1 I-1
b i'i'i'i4.+4 i'.4 'Ov'i'i;
t +++ I
y+++++. 4r-- i-- ::4,; I£d4 i i•''
44.4*4.. .? i++O .41 ,+++++
LLI
1^ I'+•''
441. '
at,'
0.6..446 4 O+iiIlvJ!A 0,I *••.
4•0++•+4+',ti, v-4I PARKING GARAGE
40.I':•4141: Ali. +. OO.r:. • I .
pi:ice +++++i+
41,'''SS.. . Room I
Police
11 A4 '0#4* 6 Storage
1.0.140
E. • .+..•Z+r- .1040.01K••••,-..-4.J-3---,..---"Ct
FOURTH STREET
CITY OF HOLLISTER
a3 BRIGGS BUILDING AND PARKING GARAGE 1ST. TO 4TH FLOOR
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EXHIBIT "B"
RENT SCHEDULE
AMENDMENT NO. 2 TO
LEASE BETWEEN CITY OF HOLLISTER AND GAVILAN
JOINT COMMUNITY COLLEGE DISTRICT
BRIGGS BUILDING, 365 FOURTH STREET, HOLLISTER, CALIFORNIA 95023 Year Lease Rate per Monthly Rate Credit for Adjusted
Square Foot Janitorial Monthly
8,260 Sq. Ft.) Services and Minimum
Supplies
1 1.35 (FY 17/18) 11,151 1,750.00) 9,401
2 1.35 (FY 18/19) 11,151 1,750.00) 9,401
3 1.40 (FY 19/20) 11,564 1,800.00) 9,764
4 1.45 (FY 20/21) 11,977 1,800.00) 10,177
5 1.50(FY 21/22) 12,390 1,800.00) 10,590
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STANDING (OPEN) PURCHASE ORDERS:
A standing (open) purchase order (PO) is used for a requirement that is reoccurring or repetitive in nature, difficult to quantify over a period of time, and is not to exceed or cross fiscal years. Standing POs allow requesters to make repetitive purchases of miscellaneous low cost supplies, utilities, monthly lease/rentals, and maintenance contracts throughout the current fiscal year. They are not to be used for expenditures that may only occur only once or twice a semester.
Please submit a new Banner Requisition at the beginning of each fiscal year to establish a standing P0. The standing PO is only valid for purchases up to the "not-to-exceed" dollar amount. Requests for PO increases will be reviewed on an individual basis to determine the need.
The following information is to be included on all Requisitions for a standing PO:
1) Person(s) authorized to use standing PO
2) Not to exceed (NTE) amount(s)
3) Effective period (e.g. July 1, 2017 - June 30, 2018) 4) Brief description of what is to be purchased with the standing PO 5) Due Date should be the last day the Standing PO will be valid, but not later than the last day of the fiscal year (June 30).
Standing POs cannot be used to purchase the following or any other unauthorized purchase:
Personal purchases
Furniture and equipment
Gift cards and/or certificates
Gratuities and gifts
Printers, computers, scanners, or other IT equipment
Instructional kits
Travel expenses
Small tools
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LETTER OF TRANSMITTAL DEVELOPMENT SERVICES DEPT
4 PLANNING DIVISION
Office: 339 Fifth Street Mail: 375 Fifth Street
Hollister,CA 95023 t` Hollister,CA 95023
FAX: (831)634-4913 , OLLISTE Phone: (831)636-4316 HometownCalttarnia "'1
To: Fred Harris&Judy Rodriguez
Gavilan Community College District Date: May 18,2017
Cc: Tom Graves,City Clerk
Christine Black,Deputy City Clerk
Subject: Amendment 2 Briggs Bldg. Lease
WE ARE SENDING YOU:
X ATTACHED OR I UNDER SEPARATE COVER VIA Fax&Mail
THE FOLLOWING ITEMS
PLANS PRINTS SPECIFICATIONS SAMPLE
COPY OF LETTER CHANGE ORDER SHOP DRAWINGS X OTHER
PAGES DATE NO. DESCRIPTIONS
5 5/17/2017 2 Two signed copies of Amendment 2 to the lease agreement for the Briggs Building
1 5/17/2017 1 Copy of City Council Resolution No. 117-113 approving the Amendment 2 to the Briggs Building lease
THESE ARE TRANSMITTED AS CHECKED BELOW:
FOR INFORMATION&COORDINATION FOR YOUR RECORDS
X FOR APPROVAL AS REQUESTED
Copy of approved application RETURNED AFTER LOAN TO US
X FOR YOUR FILES RESUBMIT COPIES FOR REVIEW
SUBMIT COPIES FOR DISTRIBUTION RETURN CORRECTED PRINTS
REMARKS: Please find enclosed two copies of Amendment 2 to the lease for the Briggs Building satellite campus for Gavilan Community College. Please return one(1)signed original copy to the City Clerk of the City of Hollister at 375 Fifth Street,Hollister California 95023 to the attention of Tom Graves. The second copy with the original signature is for your records.
COPIES TO:DEVELOPMENT SERVICES DEPT.
BY: Mary M.Paxton
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2a1S1 I 1 ti JO ALL)
1313 u10 A2A301Aie
RESOLUTION NO. 2017-113 1dNINHO rndna
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING THE EXECUTION OF AMENDMENT NO. 2 TO THE LEASE
AGREEMENT WITH GAVILAN COLLEGE, A COMMUNITY COLLEGE DISTRICT
FOR THE BRIGGS BUILDING
WHEREAS, the City Council approved Resolution No. 96-89 which authorized a lease agreement with Gavilan College, A Community College District (the "District") for the Briggs Building at 365 Fourth Street for a satellite campus to educate residents in the City of Hollister; and
WHEREAS, the term of the lease of the facility was for 15 years with an option for a five year extension; and
WHEREAS, the City Council approved Resolution No. 2012-102 which authorized Amendment No. 1 to the lease agreement with the District; and WHEREAS, the term of the Amendment No. 1 lease agreement was five years; and
WHEREAS, the Gavilan Community College District desires to extend the lease agreement for five years with an option for early termination beginning the third year of the lease and other amendments.
NOW, THEREFORE, BE IT RESOLVED as follows:
1. The Mayor is hereby authorized and directed to file a Notice of Exemption with respect to the Agreement in accordance with the applicable provisions of CEQA.
2. The City Council approves Amendment No. 2 to the lease agreement attached as Exhibit 1 to this resolution.
3. The Mayor is hereby authorized and directed to execute Amendment No. 2 to the Lease Agreement with Gavilan College, a Community College District included as Exhibit 1.
4.This Resolution shall take immediate effect upon its adoption.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a regular meeting held this 15th day of May, 2017, by the following vote:
AYES: Council Members Gillio, Klauer, Friend, Luna, and Mayor Velazquez.
NOES: None.
ABSENT: None.
Ignacio Velazquez, Mayor
ATTEST: APPROVED AS TO FORM:
0)E0310Y-L+G - , Attorneys at taw
Thomas A. Graves, MMC, Ci y Clerk
E-S-ar iszi=eitikttorney
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STAFF REPORT
CITY COUNCIL OR STUDY SESSION AGENDA
DATE: May 1, 2017 AGENDA ITEM: Consent 48' $
STUDY SESSION DATE: MEETING DATE: May 15, 2017 TITLE OF ITEM: RESOLUTION NO. 2017- 113 , A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AMENDMENT NO. 2 TO THE LEASE AGREEMENT WITH
GAVILAN COLLEGE, A COMMUNITY COLLEGE DISTRICT FOR THE BRIGGS BUILDING.
BRIEF DESCRIPTION: This resolution will approve Amendment No. 2 to the lease agreement between the City and Gavilan, A Community College District (the "District) at the Briggs Building authorizing a five year extension with other amendments to the agreement including elimination of Room 6 and graduated rate increases.
STAFF RECOMMENDATION: City Council approves the following motion: ADOPT Resolution 2017- 11 a Resolution of the City Council of the City of Hollister Authorizing and Directing the Mayor to Execute Amendment No. 2 to the Lease Agreement with Gavilan College, a Community College District for the Briggs Building.
DEPARTMENT SUMMARY: On May 20, 1996, the City Council approved Resolution 96- 89 which authorized the execution of a fifteen (15) year lease with an option for a five year extension with the Gavilan Community College District (the "District") to establish a satellite campus at the Briggs Building. The lease area encompassed 8,500 square feet on the first floor of the Briggs Building with graduated payments starting at $0.70 per square foot increasing to a rate of $1.30 per square foot. The former Redevelopment Agency of the City of Hollister provided assistance with $24,000 in contracting services for tenant improvements at the facility in 1996 while the college funded material costs of 4,800. On June 18, 2012, the City Council approved Resolution 2012-102 authorizing the mayor to sign Amendment No. 1 to the lease agreement with four changes: 1) a graduated lease rate starting at $1.20 per square foot and increasing to $1.30 per square foot; 2) Transfer of janitorial services and supplies in the lease area from the city to the tenant with a credit for the cost; 3) the 384 square feet Room 6, the Arnold Carrillo Room was added; and 4) an option for early termination in year 3 of the lease with a six month notice requirement.
The lease agreement will expire this June. Amendment No. 2 is included as Exhibit 1 of the attached resolution. The proposed amendment will remove Room 6 from the lease area so that it can be used as office space for Code Enforcement, the Community School Officer, and a substation for Police and Fire. The amendment includes graduated lease rates with credits for janitorial service. The adjusted lease rate with janitorial credits would be $1.16 per square foot for the first two years, $1.20 per square foot for the second year,
1.25 per square foot for the third year and $1.30 per square foot for the fifth year.
Amendment No. 2 would also clarify that the City is responsible for weekly janitorial services on the stairs, sweeping and removal of cobwebs at the front of the structure facing San Benito Street and near the elevator entrances. Staff is recommending that B.3.c
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the City Council adopt the attached resolution authorizing the Mayor to sign Amendment No. 2 to the lease agreement at the Briggs Building.
ATTACHMENTS: Resolution, 1996 Lease, Lease Amendment 1 and clarification memo
CEQA: 15301. Class 1 Existing Facilities (leasing) FINANCIAL IMPACT: Graduated rent income of $124,536 - $140,112 per year DEPARTMENT: Development Services
DEPARTMENT HEAD: Bryan T. Swanson
CONTACT PERSON:Mary M. Paxton ,1i '
PHONE NUMBER: 831-636-4340
THIS REPORT WAS REVIEWED BY THE j CONCURS WITH
THE STAFF RECOMMENDATION
William B. Avera, City Manager
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1111iIIIIIIIIIIIIllliaiillIIIIIII
20 1 2-00O57 1 3
Recorded REC FEE 0.00
Official Records
County of CONFORMED C 0.00
San Benito
JOE PAtUL GONZALEZ
Clerk—Auditor—Recorde
Recorded By and Return To: JB
03:41PM 21—Jun-2012 Page 1 of 9
City Clerk's Office
City of Hollister
375 Fifth Street
Hollister, CA 95023
To Be Recorded Without Fee Per Government Code Section 27383 Amendment No. 1 to Lease Between
The City of Hollister and Gavilan College, A
Community College District
Adopted by the City Council of the City of Hollister
on the 18th day of June, 2012
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I
Recorded by and Return to:
City of Hollister
Office of the City Clerk
375 Fifth Street
Hollister, CA 95023
AMENDMENT NO. 1 TO LEASE BETWEEN
THE CITY OF HOLLISTER AND GAVILAN COLLGE, A
COMMUNITY COLLEGE DISTRICT
This Amendment No. 1 to the Lease dated June 20, 1996, is entered into on May 21, 2012, between the City of Hollister, a municipal corporation, (the Landlord"), and Gavilan College, a community college district (the "Tenant"), together referred to as "the Parties."
RECITALS
A. On June 20, 1996, the Parties entered into a Lease for a portion of the Briggs Building located at 365 Fourth Street, Hollister CA 95023 (the Building").
B. Said lease is due to expire on June 30, 2012.
C. The Parties desire to amend some of the terms of the Lease, including the expiration date.
Now, therefore, for good and valuable consideration, the Parties agree to amend the Lease Agreement as follows:
AMENDMENT NO. 1
Premises
Section 2 of the Lease is hereby amended to replace the phrase "8,500 square feet of floor area" with the phrase 8,984 square feet of floor area".
Section 2 of the Lease is also amended to replace "Exhibit A' with the attached "Exhibit A" which includes Room 6, the Arnold Carrillo Room, as part of the Premises.
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Term
Section 5 is hereby amended to add the following:
Consistent with Tenant's option to extend the lease term, the Parties agree to extend the lease term for an additional five (5) years or until June 20, 2017 provided, however, that beginning December 31, 2013, the Tenant shall have the right to terminate the Lease upon six months written notice.
Rent
Section 4 of the Lease is hereby amended to replace "Exhibit B" Rent Schedule with the attached "Exhibit B" which is incorporated into the Lease as if fully set forth herein.
Utilities/Janitorial Services
Section 15 is now entitled Utilities/Janitorial Services and is amended to add the following: Tenant is responsible to provide daily, biannual and annual janitorial services for the Premises and bathroom facilities, as specified herein. Tenant shall provide all cleaning and bathroom supplies including but not limited to replacement light bulbs, trash liners, toilet paper, paper towers, and hand soap. Landlord is responsible to provide cleaning services to the City's Sub-Station (Room) and all Elevators. All contracts for janitorial services shall comply with the California Public Contract Code. The City shall have the right to inspect any portion of the Briggs Building for sufficiency of janitorial services. If City finds that the janitorial services are unsatisfactory, the City shall provide written notice to Tenant, and Tenant shall have forty-eight hours from the date and time of the service of the notice to cure those janitorial deficiencies.
Daily Janitorial services shall include the following:
1. Empty all trash in receptacle inside and outside of building and dispose to the appropriate trash or recycling bin.
2. Dust office and classroom furniture, chairs, file cabinets and bookshelves
3. Dust windowsills, ledges, and other flat surfaces.
4. Clean tables and counter
5. Clean doors, doorframes, and light switches
6. Clean glass entry doors
7. Thoroughly vacuum all carpeting
8. Sweep and mop all tile floor areas
9. Keep recycled items separate from garbage and dispose in appropriate container
10.Clean all baseboard, walls, partitions and doors
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11.Restroom Services — (per cleaning)
a. Restock supplies for toilet paper, seat covers, paper towels, and hand soap
b. Empty trash containers and dispose to garbage bin
c. Sweep floors prior to mopping, use disinfectant floor cleaner d. Clean baseboards, walls, partitions, and doors
e. Scrub all toilets and urinals
f. Polish mirrors
g. Clean sinks and polish metal fixtures
h. Dust flat surfaces such as sink counter
i. Dry our mop and mop bucket after used
Biannual Janitorial Service shall include:
1. Window Cleaning Inside and outside and window frames and tracks.
2. Thoroughly remove all stains and steam cleaning on all carpet areas.
Annual Service shall include:
1. Apply non-slip wax to all non-carpeted traffic areas All other terms and conditions of the original Lease dated June 20, 1996, shall remain in full force and effect.
Landlord Tenant
City of Hollister Gavilan College
375 Fifth Street 5055 Santa Teresa Boulevard
Hollister, CA 95023 Gilroy, CA 95020
A0% 44...get_
ay and Friend Dr. Steve Kinsella
Mayor President
D 8 Date:13/2 d!
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5 EXHIBIT "A" - PREMESIS
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FOURTH STREET
CITY OF HOLLISTER
BRIGGS BUILDING AND PARKING GARAGE 1ST. . ' ' FLOOR B.3.c
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EXHIBIT "B"
RENT SCHEDULE
Year Lease Rate per Monthly Rate Credit for Adjusted
Square Foot Janitorial Monthly
8,984 Sq. Ft.) Services and Minimum
Supplies
1-3 1 .20 (2012-2015) $10,200.00 1 ,500.00)9,280.80 4 1 .25 (2016) 10,625.00 1,650.00)9,580.00
5 1.30 (2017) 11,050.00 1,700.00) 9979.20
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4,_
California All-Purpose Acknowledgment 2008 Code Section 1189 Compliant State of California
County of .191VrI1 (l_rA,1e,z
On ivk j 3 AO/.before me,/9 .e:28/9/ E NOTh1 / AAA,! here irisert name and NE of the officer)
personally appeared f Z 1JJa9 /t-1. /l jiriA J.R.7
who proved to me on the basis of satisfactory evidence to be the persong whose name i / subscribed to the within instrument and acknowledged to me that he/s46/tljr executed the same in his t authorized capacity(i*, and that by his/Pr/th)`ir signature.on the instrument the person, or the entity upon behalf of which the person(f-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 d w
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OPTIONAL INFORMATION
Law does not require the information below.This information could be of great value to any person(s)relying on this document and could prevent fraudulent and/or the reattachment of this document to an unauthorized document(s)
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) if Different Than Above:
Other Information:
CAPACITY(IES)CLAIMED BY SIGNER(S)
Signer's Name(s):
Individual
Corporate Officer
Title(s))
Partner
Attorney-in-Fact
Trustee
Guardian/Conservator
Other:
SIGNER IS REPRESENTING:
Name of Person(s)or Entity(ies):
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Califor a
I, www.NationalNotary.org Item#5907 Reorder.Call Toll-Free 1-800-876-6827 B.3.c
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EL-
RESOLUTION NO. 2012-102
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING EXECUTION OF AMENDMENT NO. 1 TO THE LEASE AGREEMENT
WITH GAVILAN COLLEGE, A COMMUNITY COLLEGE DISTRICT,
FOR THE BRIGGS BUILDING
WHEREAS, the City Council of the City of Hollister approved Resolution No. 96- 89 which authorized a lease agreement with Gavilan Community College for the Briggs Building at 365 Fourth Street for a satellite campus to educate residents in the City of Hollister; and
WHEREAS, the term of the lease of the facility was for 15 years with an option for a five year extension; and
WHEREAS, the Gavilan Community College District desires to extend the lease agreement for five years with an option for early termination beginning the third year of the lease and other amendments;
NOW THEREFORE BE IT RESOLVED as follows:
1.The Mayor is hereby authorized and directed to file a Notice of Exemption with respect to the Agreement in accordance with the applicable provisions of CEQA.
2. The City Council approves Amendment No. 1 to the lease agreement dated May 1, 2012.
3. The Mayor is hereby authorized and directed to execute Amendment No. 1 to the Lease Agreement with Gavilan Community College.
4. This Resolution shall take immediate effect upon its adoption.
PASSED AND ADOPTED this 18th day of June 2012, by the following votes:
AYES: Council Members Emerson, Valdivia, Scattini, Gomez, and Mayor Friend.
NOES: None.
ABSENT: None.
Raymo d Friend, ayor
ATTEST: APPROVED AS TO FORM:
m1
G ri Johnson, ity Clerk tepha • Atigh, City Attor e
DUPLICATE OF ORIGINAL
ON FILE N THE
OFFICE OF THE CITY CLERK
CITY OF HOLLISTER
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RESOLUTION NO. 2012-102
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING EXECUTION OF AMENDMENT NO. 1 TO THE LEASE AGREEMENT
WITH GAVILAN COLLEGE, A COMMUNITY COLLEGE DISTRICT,
FOR THE BRIGGS BUILDING
WHEREAS, the City Council of the City of Hollister approved Resolution No. 96- 89 which authorized a lease agreement with Gavilan Community College for the Briggs Building at 365 Fourth Street for a satellite campus to educate residents in the City of Hollister; and
WHEREAS, the term of the lease of the facility was for 15 years with an option for a five year extension; and
WHEREAS, the Gavilan Community College District desires to extend the lease agreement for five years with an option for early termination beginning the third year of the lease and other amendments;
NOW THEREFORE BE IT RESOLVED as follows:
1.The Mayor is hereby authorized and directed to file a Notice of Exemption with respect to the Agreement in accordance with the applicable provisions of CEQA.
2. The City Council approves Amendment No. 1 to the lease agreement dated May 1, 2012.
3. The Mayor is hereby authorized and directed to execute Amendment No. 1 to the Lease Agreement with Gavilan Community College.
4. This Resolution shall take immediate effect upon its adoption.
PASSED AND ADOPTED this 18th day of June 2012, by the following votes:
AYES: Council Members Emerson, Valdivia, Scattini, Gomez, and Mayor Friend.
NOES: None.
ABSENT: None.
C?..
Raymo d Friend, ayor
ATTEST: APPROVED AS TO FORM:
6.4216L'i 4/ 4111f
G ri .Johnson, .ity Clerk tepha ' Atigh, City Attor e
DUPLICATE OF ORIGINAL
ON FILE IN THE
OFFICE OF THE CITY CLERK
CITY OF HOLLISTER
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STAFF REPORT
OLLISTE" CITY COUNCIL AGENDA
DATE: June 8, 2012 AGENDA ITEM: Resolution F 2. "4i-20 STUDY SESSION DATE: N/A MEETING DATE: June 18, 2012
TITLE OF ITEM: A Resolution authorizing and directing the Mayor to execute Amendment No. 1 to the lease agreement with Gavilan College, a Community College District for the Briggs Building.
BRIEF DESCRIPTION: This resolution will approve Amendment No. 1 to the lease agreement with Gavilan College for the Briggs Building authorizing a five year extension with other amendments to the agreement.
STAFF RECOMMENDATION: City Council receive oral report and adopt Resolution No. 2012- tot authorizing and directing the Mayor to execute Amendment No. 1 to the lease agreement with Gavilan Community College for the Briggs Building.
DEPARTMENT SUMMARY: On May 20, 1996, the City Council approved Resolution 96- 89 which authorized the execution of a fifteen (15) year lease with an option for a five year extension with Gavilan College to establish a satellite campus at the Briggs Building. The lease area encompassed 8,500 square feet on the first floor of the Briggs Building with graduated payments starting at$0.70 per square foot increasing to the current lease rate of
1.30 per square foot. The former Redevelopment Agency of the City of Hollister provided assistance with $24,000 in contracting services for tenant improvements at the facility in 1996 while the college funded material costs of$4,800. Gavilan College has requested an extension to the lease agreement. Staff has negotiated with the community college for an amendment to extend the agreement with the following additional changes: 1) The rent will be graduated with a rate of $1.20 per square foot for the first three years, $1.25 per square foot the fourth year and $1.30 per square foot the fifth year; 2) The tenant will pay for janitorial services and supplies for the lease area but will be credited for the cost as reflected in Exhibit B of the amendment; 3) The lease area will be expanded to include Room 6, the Arnold Carrillo Room; and 4) Option for early termination at the start of the third year of the lease with a six month notice requirement.
ATTACHMENTS: Resolution
FINANCIAL IMPACT: None
DEPARTMENT: Development Services Department
CONTACT PERSON: Mary M. Paxton
DEPARTMENT HEAD: Bill Avera, Development Services Director PHONE NUMBER: 831)636-4316
THIS REPORT WAS REVIEWED BY THE EXECUTIV DI CTOR AND CONCURS
WITH THE STAFF RECOMMENDATION
Clint Quilter
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r
LEASE
BRIGGS BUILDING
1. PARTIES.
LL
This Lease, dated as of this O 7 day of June, 1996, is made and between CITY OF ROLLISTER, a municipal corporation, (the "Landlord") and GAVILAN COLLEGE,a community college district(the"Tenant").
2. PREMISES.
Landlord does hereby lease to Tenant and Tenant hereby leases from Landlord that certain space (herein called "Premises"), having dimensions of approximately 8,500 square feet of floor area, within the Briggs Building located 365 Fourth Street, Hollister, CA 95023 (the "Building"). The location and dimensions of said Premises are delineated on Exhibit "A" attached hereto and incorporated by reference herein.
Said Premises are located in the City of Hollister, County of San Benito, State of California.
This Lease is subject to the terms, covenants and conditions herein set forth and the Tenant covenants as a material part of the consideration for this Lease to keep and perform each and all of said terms, covenants and conditions by it to be kept and performed.
3. USE.
Tenant shall use the Premises for a SATELLITE CAMPUS and shall not use or permit the Premises to be used for any other purpose without the prior written consent of Landlord.
4. RENT.
4.1 Tenant agrees to pay to Landlord as Rent, without notice or demand, the monthly sum set forth in the Rent Schedule attached hereto as EXHIBIT"B" in advance, on or before the first day of each and every successive calendar month during the term hereof, except the first month's Rent shall be paid upon the execution hereof.
The rental shall commence thirty(30) days after substantial completion of Tenant's work as set forth in Exhibit"B" attached hereto and incorporated herein by B.3.c
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reference, or when the Tenant opens for business, whichever is sooner. Tenant agrees that it will, at its sole cost and expense as soon as is reasonably possible after the execution of this Lease, commence and pursue to completion the improvements to be erected by Tenant to the extent shown on the attached Exhibit Rent for any period which is for less than one (1) month shall be a prorated portion of the monthly installment herein based upon a thirty(30) day month. Said Rent shall be paid to Landlord, without deduction or offset, lawful money of the United States of America and at such place as Landlord may from time to time designate in writing.
Starting with fiscal years (July 1st), Rent may be delayed for a period not to exceed ninety 90) days predicated upon the State of California adopting their annual budget. Upon budget adoption Gavilan College is responsible for all rent in arrears on or before the first day of the first of the month following the budget adoption. Tenant agrees to resume payment to Landlord without notice or demand the monthly sum setforth in the Rent Schedule attached hereto in Exhibit"B".
5. TERM.
The lease term shall be 15 years commencing on the date Tenant's work as set forth in Exhibit "B" is substantially completed and terminating 15 years from that date. The parties acknowledge that certain obligations under various Sections hereof may commence prior to the lease term, i.e., construction, holdharmless, liability insurance, etc.; and the parties agree to be bound by these articles prior to commencement of the Lease term.
Tenant is given the option to extend the term of this Lease for one (1) five (5) year period ("extended term") following expiration of the initial term, by giving written notice to exercise of option ("option notice") to Landlord at least six (6) months, but not more than one (1)year before the expiration of the term. If Tenant is in default on the date the extended term is to commence, the extended term shall not commence and this Lease shall expire at the end of the initial term.
The parties shall have thirty (30) days after the Landlord receives the option notice to negotiate the applicable Rent during the extended term. If the parties agree on the Rent for the extended term during that period, they shall immediately execute an amendment to the Lease stating the new Rent. If the parties are unable to agree on the Rent for the extended term within that thirty(30) day period, the option notice shall be of no effect and this Lease shall expire at the end of the term.
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6. USES PROHIBIT*. 4111
Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which is not within the permitted uses of the Premises or which will in any way increase the existing rate of or affect any fire or other insurance upon the Building or any of its contents, or cause a cancellation of any insurance policy covering said Building or any part thereof or any of its contents. Tenant shall not do or permit anything to be done in or above the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Building or injure or annoy them or use or allow the Premises to:be used for any improper, immoral, unlawful or objectionable purpose; nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises. Tenant shall not commit or allow to be committed any waste in or upon the Premises. Tenant agrees not to sell or permit to be kept, used, or sold in or about the Premises, hazardous substances or hazardous waste as defined by state or federal law. For purposes of this Section 8, hazardous substances shall not include incidental cleaning supplies, provided that all such materials and equipment are used in strict compliance with all applicable laws and regulations.
7. COMPLIANCE WITH LAW.
Tenant shall not use the Premises, or permit anything to be done in or about the Premises, which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be in force and with the requirements of any board of fire underwriters or other similar bodies now or hereafter constituted relating to Tenant's improvements or acts. The judgment of any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether Landlord be a party thereto or not, that Tenant has violated any law, statute, ordinance or governmental rule, regulation or requirement, shall be conclusive of that fact as between the Landlord and Tenant.
8. ALTERATIONS AND ADDITIONS.
Tenant shall not make or allow to be made any alterations, additions or improvements to or of the Premises or any part thereof without first obtaining the written consent of Landlord and any alterations, additions or improvements to or of said Premises, including, but not limited to, wall covering, paneling and built-in cabinet work, but excepting movable furniture and trade fixtures, shall at once become a part of the realty and belong to the Landlord and shall be surrendered with the Premises. In the event Landlord consents to the making of any alterations, additions or improvements to the Premises by Tenant, the same shall be made by Tenant at Tenant's sole cost and expense, except as otherwise provided on Exhibit"C". Upon the expiration or sooner B.3.c
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x termination of the ta hereof, Tenant shall, upon written dird by Landlord, given at least thirty(30) dprior to the end of the term, at Tenant sole cost and expense, forthwith and with all due diligence, remove any alterations, additions, or improvements made by Tenant, designated by Landlord to be removed, and Tenant shall, forthwith and will all due diligence, at its sole cost and expense, repair any damage to the Premises caused by such removal.
9.REPAIRS.
9.1 By entry hereunder, Tenant shall be deemed to have accepted the Premises as being in good, sanitary order, condition and repair. Tenant shall, at Tenant's sole cost and expense, keep the Premises and every part thereof in good condition and repair(except as hereinafter provided with respect to Landlord's obligations) including without limitation, the maintenance, replacement and repair of any storefront, doors, window casements, glazing, plumbing, pipes, electrical wiring and conduits, heating and air conditioning system (when there is an air conditioning system.) Tenant shall obtain a service contract for repairs and maintenance of said system, said maintenance contract to conform to the requirements under the warranty, if any, on said system. Tenant shall, upon the expiration or sooner termination of this Lease hereof, surrender the Premises to the Landlord in good condition, broom clean, ordinary wear and tear and damage from causes beyond the reasonable control of Tenant excepted. Any damage to adjacent premises caused by Tenant's use of the Premises shall be repaired at the sole cost and expense of Tenant.
Notwithstanding the provisions of Section 11.1, Landlord shall repair and maintain the structural portions of the Building, including the exterior walls and root unless such maintenance and repairs are caused in part or in whole by the act, neglect, fault or omission of any duty by the Tenant, its agents, servants, employees, invitees, or any damage caused by breaking and entering, in which case Tenant shall pay to Landlord the actual cost of such maintenance and repairs. Landlord shall not be liable for any failure to make such repairs or to perform any maintenance unless such failure shall persist for an unreasonable time after written notice of the need of such repairs or maintenance is given to Landlord by Tenant.
Except as provided in Section 25 hereof, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business arising from the making of any repairs, alterations or improvements in or to any portion of the Building or the Premises or in or to fixtures, appurtenances and equipment therein. Tenant waives the right to make repairs at Landlord's expense under any law, statute or ordinance now or hereafter in effect.
10. LIENS. •
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incurred by or on beFialf of Tenant. Landlord may require, att andlord's sole option, that Tenant shall provide to Landlord, at Tenant's sole cost and expense, a lien and completion bond in an amount equal to one and one-half(1 '/z)times the estimated cost of any improvements, additions, or alterations in the Premises which the Tenant desires to make, to insure Landlord against any liability for mechanics' and materialmen's liens and to insure completion of the work
11.ASSIGNMENT AND SUBLETTING.
Tenant shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the said Premises or any part thereof or any right or privilege appurtenant thereto, or allow any other person(the employees, agents, servants and invitees of Tenant excepted)to occupy or use the said Premises, or any portion thereof,without first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld. A consent to one assignment, subletting, occupation or use by one person in no way confers or implies consent to an assignment, subletting, occupation or use by another person. Consent to any such assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any such assignment or subletting without such consent shall be void, and shall, at the option of the Landlord, constitute a default under the terms of this Lease. (Note: In the instance of a Sublessee is a private for profit business, possessory interest tax may be applicable.)
12. HOLD HARMLESS.
Tenant shall indemnify and hold harmless Landlord against and from any and all claims arising from Tenant's use of the Premises or from the conduct of Tenant's business or from any activity, work, or other things done, permitted or suffered by the Tenant in or about the Premises, and shall further indemnify and hold harmless Landlord against and from any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any act or negligence of the Tenant, or any officer, agent; employee, guest, or invitee of Tenant, and from all costs, attorney's fees, and liabilities incurred in, or about the defense of any such claim or any action or proceeding brought thereon and in case any action or proceeding be brought against Landlord by reason of such claim, Tenant upon notice from Landlord shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises, from any cause other than Landlord's negligence; and Tenant hereby waives all claims in respect thereof against Landlord.
Tenant shall give prompt notice to Landlord in case of casualty or accidents in the Premises.
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40 Landlord or its agents shall not be liable for any loss or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place resulting from dampness or any other cause whatsoever, unless caused by or due to the willful and/or negligence of Landlord, its agents, servants or employees.
13. SUBROGATION.
As long as their respective insurers so permit, Landlord and Tenant hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage and other property insurance policies existing for the benefit of the respective parties. Each party shall apply to their insurers to obtain said waivers.
Each party shall obtain any special endorsements, if required by their insurer to evidence compliance with the aforementioned waiver.
14. LIABILITY INSURANCE.
Tenant shall, at Tenant's expense, obtain and keep in force during the term of the Lease a policy of commercial general liability insurance(sometimes known as comprehensive public liability insurance) insuring Landlord and Tenant(and, if requested by Landlord, Landlord's lender and property manager) against any liability for bodily injury, property damage(including loss of use of property) and personal injury arising out of the ownership, use occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be in the amount of not less than 2,000,000.00 per occurrence. The limit of any such insurance shall not, however, limit the liability of Tenant hereunder. Tenant may provide this insurance under a blanket policy, provided that said insurance shall have a Landlord's protective liability endorsement attached thereto. If Tenant shall fail to procure and maintain said insurance, Landlord may, but shall not be required to, procure and maintain same, but at the expense of Tenant. Insurance required hereunder shall be in companies rated A:XII or better as set forth in the most current"Best's Rating Guide." Tenant shall deliver to Landlord, prior to right of entry, copies of policies of liability insurance required herein or certificates evidencing and amounts of such insurance with loss payable clauses satisfactory to Landlord. All policies and certificates of policies shall provide that no cancellation, reduction or modification of coverage will occur without thirty(30) days prior written notice to Landlord. All such policies shall be written as primary policies not contributing with and not in excess of coverage which Landlord may carry.
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15. UTILITIES.
Tenant shall pay for all water, gas, heat, cable, light, power, sewer charges, telephone service and all other s. No policy shall be cancelable or subject to reduction of coverage. All such policies services and utilities supplies to the Premises, together with any taxes thereon. If any such services are not separately metered to Tenant, Tenant shall pay a reasonable proportion to be determined by Landlord of all charges jointly metered with other Premises.
16. PERSONAL PROPERTY TAXES.
Tenant shall pay, or cause to be paid, before delinquency any and all taxes levied or assessed and which become payable during the term hereof upon all Tenant's leasehold improvements, equipment, furniture, fixtures, and any other personal property located in the Premises. In the event any or all of the Tenant's leasehold improvements, equipment, furniture, fixtures and other personal property shall be assessed and taxed with the real property, Tenant shall pay to Landlord its share of such taxes within ten 10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant's property.
17. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with rules and regulations that Landlord shall from time to time promulgate and/or modify. The rules and regulations shall be binding upon the Tenant upon delivery of a copy of them to Tenant. Landlord shall not be responsible to Tenant for the non-performance of any said rules and regulations by any other tenants or occupants. Tenant shall exercise their best effort to have employee and students follow rules.
18. ENTRY BY LANDLORD.
Landlord reserves, and shall at any and all times have, the right to enter the Premises to inspect the same upon reasonable notice to submit said Premises to prospective purchasers or tenants, to post notices of non-responsibility, to repair the Premises and any portion of the Building of which the Premises are a part that Landlord may deem necessary or desirable, without abatement or rent, and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the Premises shall not be unreasonably blocked thereby, and further providing that the business of the Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim for damages or for any injury or inconvenience to or interference with Tenant's business, B.3.c
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any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. For each of the aforesaid purposes, Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Premises, excluding Tenant's vaults, safes and files, and Landlord shall have the right to use any and all means which Landlord may deem proper to open said doors in an emergency, in order to obtain entry to the Premises without liability to Tenant except for any failure to exercise due care for Tenant's property and any entry to the Premises obtained by Landlord by any of said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or-unlawful entry into, or a detainer of the Premises, or an eviction of Tenant from the Premises or any portion thereof
19. TENANT'S DEFAULT.
The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant
a) The vacating or abandonment of the Premises by Tenant. b) The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of three(3) days after written notice thereof by Landlord to Tenant.
c) The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant, other than described in(b), above, where such failure shall continue for a period of thirty(30) days after written notice thereof by Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty(30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty(30) day period and thereafter diligently prosecutes such cure to completion.
d) The making by Tenant of any general assignment or general arrangement for the benefit of creditors; dr the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy(unless, in the case of a petition filed against Tenant, the same is dismissed within sixty(60) days); or the appointment of a trustee or a receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty(30) days.
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20. REMEDIES IN DEFAULT.
In the event of any such default or breach by Tenant, Landlord may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may have by reason or such default or breach:
a) Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to, the cost of recovering possession of the Premises; expenses of reletting, including necessary renovation and alteration of the Premises; reasonable attorney's fees; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent and other charges and Adjustments called for the balance of the term after the time of such award exceeds the amount of such loss for the same period that Tenant proves could be reasonably avoided: and that portion of any leasing commission paid by Landlord and applicable to the unexpired term of this Lease. Unpaid installments of Rent or other sums shall bear interest from the date due at the maximum legal rate; or
b) Maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to recover the rent and any other charges and Adjustments as may become due hereunder; or
c) Exercise any other remedy available to Landlord in law or equity.
21. DEFAULT BY LANDLORD.
Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than thirty(30) days after written notice by Tenant to Landlord and to the holder of any first mortgage or deed of trust covering the Premises whose name and address shall have theretofore been furnished to Tenant in writing, specifying wherein Landlord has failed to perform such obligations; provided, however, that if the nature of Landlord's obligation is such that more than thirty(30) days are required for performance then Landlord shall not be in default if Landlord commences performance within such thirty(30) day period and thereafter diligently prosecutes the same to completion. In no event shall Tenant have the right to terminate this Lease as a result of Landlord's default and Tenant's remedies shall be limited to damages and/or an injunction.
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22. RECONSTRUCTION.
In the event the Premises are damaged by fire or other perils covered by extended coverage insurance,Landlord agrees to forthwith repair same, and this Lease shall remain in full force and effect, except that Tenant shall be entitled to a proportionate reduction of the Minimum Rent from the date of damage and while such repairs shall reasonably interfere with the business carried on by the Tenant in the Premises. If the damage is due to the fault or neglect of Tenant or its employees, there shall be no abatement of rent.
In the event the Premises are damaged to any extent as a result of any cause other than the perils covered by fire and extended coverage insurance, Landlord shall have the option: (1)to repair, reconstruct or restore the Premises, in which event this Lease shall continue in full force and effect but the Rent shall be proportionately reduced as hereinabove provided in this Section during the period of such repair, reconstruction or restoration; or(2)to give notice to Tenant at any time within sixty(60) days after such damage, terminating this Lease as of the date specified in such notice, which date shall be no more than thirty(30) days after the giving of such notice. In the event of giving such notice, this Lease shall expire and all interest of Tenant in the Premises shall terminate on the date so specified in such notice and the Rent, reduced by a proportionate reduction, based upon the extent, if any, to which such damage interfered with the business carried on by Tenant in the Premises, shall be paid up to date of said such termination.
Notwithstanding anything to the contrary contained in this Article, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises when the damage resulting from any casualty covered under this Article occurs during the last twenty-four months of the term of this Lease or any extension thereof Landlord shall not be required to repair any injury or damage by fire or other cause, or to make any repairs or replacements of any leasehold improvements, fixtures, or other personal property of Tenant.
23. CONDEMNATION.
If all or any part of the Premises shall be taken or appropriated for public or quasi- public use by right of eminent domain with or without litigation or transferred by agreement in connection with such public or quasi-public use, either party hereto shall have the right at its option such taking to terminate this Lease as of the date possession is taken by the condemning authority, provided, however, that before Tenant may terminate this Lease by reason of taking or appropriation as provided hereinabove, such or appropriation shall be of such an extent and nature as to B.3.c
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substantially handicap, impede or impair Tenant's use of the Premises. No award for any partial or entire taking shall be apportioned, and Tenant hereby assigns to condemnation, together with any and all rights of Tenant now or hereafter arising in or to the same or any part thereof, provided, however, that nothing contained herein shall be deemed to give Landlord any interest in or to require Tenant to assign to Landlord any award made to Tenant for the taking of personal property(excluding fixtures) belonging to Tenant and/or for the interruption of or damage to Tenant's business and/or for relocation of Tenant's business. In the event of a partial taking which does not result in a termination of this Lease, any charges under this Lease shall be abated in the proportion which the part of the Premises so made unusable bears to the rented area of the Premises immediately prior to the taking. No temporary taking of the Premises and/or of Tenant's rights therein or under this Lease shall terminate this Lease or give Tenant any right to any abatement of rent thereunder, any award made to Tenant by reason of any such temporary taking shall belong entirely to Tenant and Landlord shall not be entitled to share therein.
24. PARKING AND COMMON AREAS.
Tenant shall have access to the parking in the Building on a first-come, first-serve basis. Landlord reserves the right to change the entrances, exits,traffic lanes and the boundaries and locations of such parking area or areas. a) The Landlord shall keep said automobile parking and common areas in a neat, clean and orderly condition and shall repair any damage to the facilities thereof. b) Tenant, for the use and benefit of Tenant, its agents, employees, customers, licenses and sub-tenants, shall have the non-exclusive right in common with the public to use said common and parking areas during the entire term of this Lease, or any extension thereof, for ingress and egress, and automobile parking. c) The Tenant, in the use of said common and parking areas, agrees to comply with such reasonable rules and regulations for parking as the Landlord may adopt from time to time for the orderly and proper operation of said common and parking areas. Such rules may include but shall not be limited to the following: (1) The restricting of employee parking to a limited, designated area or areas; and(2) The regulation of the removal, storage and disposal of Tenant's refuse and other rubbish at the sole cost and expense of Tenant.
25. SIGNS.
The Tenant may affix and maintain upon the glass panes and supports of the show windows and within twelve(12)inches of any window and upon the exterior walls of the Premises only such signs, advertising placards, names, insignia, trademarks and descriptive material as shall have first received the written approval of the Landlord as to type, size, color, location, copy nature and display qualities. Anything to the contrary in this Lease notwithstanding, Tenant shall not affix any sign to the roof.
Tenant shall, however, erect one sign on the front of the Premises not later than the B.3.c
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date Tenant opens for business, in accordance with a design to be prepared by Tenant in accordance with Landlord's sign criteria and shall be subject to the approval of Landlord.
26. DISPLAYS.
The Tenant may not display or sell merchandise or allow grocery carts or other similar devices within the control of Tenant to be stored or to remain outside the defined. exterior walls and permanent doorway of the Premises. Tenant further agrees not to install any exterior lighting, amplifiers or similar devices or use in or about the Premises any advertising medium which may be heard or seen outside the Premises, such as flashing lights, searchlights, loudspeakers, phonographs or radio broadcasts.
27. AUCTIONS.
Tenant shall not conduct or permit to be conducted any sale by auction in, upon or from the Premises whether said auction be voluntary, involuntary, pursuant to any bankruptcy or other insolvency proceeding.
28. HOURS OF BUSINESS.
Tenant shall remain open during the usual hours established by Gavilan College.
29. HOLDING OVER.
If Tenant should hold possession of the Premises or any part thereof after the. expiration of the term of this Lease or any renewal or extension hereof then such holding over shall constitute a tenancy from month to month, upon the same terms, covenants and conditions•contained herein so far as are applicable.
30. GENERAL PROVISIONS
a) Exhibits. Exhibits, schedules, riders and addenda, if any, affixed to this Lease are a part hereof.
b) Waiver. The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein obtained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, other than the failure of the Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding default at the time of the acceptance of such Rent.
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c) Joint Obligation. If there be more than one Tenant the obligations hereunder imposed shall be joint and several.
d)Headings. The Section headings of this Lease are not a part of the Lease and shall have no effect upon the construction or interpretation of any part hereof. e) Time.. Time is of the essence of this Lease and each and all of its provisions in which performance is a factor.
f) Successor and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. g) Recordation. Neither Landlord nor Tenant shall record this Lease, but a short form memorandum hereof may be recorded at the request of Landlord. h) Owlet Possession. Upon Tenant paying the Rent reserved hereunder and. observing and performing all of the covenants, conditions and provisions on Tenant's part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Lease.
i) Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent or other sums due hereunder will, cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by terms of any mortgage or trust deed covering the Premises. Accordingly, if any installment of rent of any sum due from Tenant shall not be received by Landlord or Landlord's designee within five(5) days after written notice that said amount is past due, then Tenant shall pay to Landlord or Landlord's a late charge equal to the maximum amount permitted by law(and in the absence of any governing law, ten percent of such overdue amount), plus any attorneys' fee incurred by Landlord by reason of Tenant's failure to pay rent and/or other charges when due hereunder.
The parties hereby agree that such late charges represent a fair and reasonable estimate of the cost that Landlord will incur by reason of the late payment by Tenant. Acceptance of such late charges by the Landlord does not permit Landlord from exercising any of the other rights and remedies granted hereunder. j) Prior Agreements. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provisions of this Lease, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose.
No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. This Lease shall riot be effective or binding on any party until fully executed by both parties hereto.
k) Inability to Perform. This Lease and the obligations of the Tenant hereunder shall not be affected or impaired because the Landlord is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused B.3.c
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by reason of strike, labor troubles, acts of God, or nay other cause beyond the reasonable control of the Landlord.
1) Partial Invalidity. Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provision shall remain in full force and effect m)Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
n) Choice of Law. This Lease shall be governed by the laws of the State of California.
o) Attorneys' Fees. In the event of any action or proceeding brought by either party against the other under this Lease the prevailing party shall be entitled to recover its expenses and costs, including its attorneys' fees and expert witness fees in such action or proceeding, including costs of appeal, if any, in such amount as the court may adjudge reasonable.
p) Sale of Premises by Landlord. In the event of any sale of the Premises by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring afterthe consummation of such sale; and the purchaser, at such sale or any subsequent sale of the Premises shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Lease.
q) Subordination,Attornment. Upon request of the Landlord,Tenant will in writing subordinate its rights hereunder to the lien of any mortgage or deed of trust, to any bank, insurance company, governmental agency or other lending institution, now or hereafter in force against the Premises, and to all advances made or hereafter to be made upon the security hereof.
In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage or deed of trust made by the Landlord covering the Premises, the Tenant shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Landlord under this Lease.
The provisions of this Article to the contrary notwithstanding, and so long as Tenant is not in default hereunder, this Lease shall remain in full force and effect for the full term hereof.
r.) Notices. All notices and demands which may or are to be required or permitted to be given by either party on the other hereunder shall be in writing. All notices and demands by the Landlord to the Tenant shall be sent by certified United States Mail, postage prepaid, addressed to the Tenant at the Premises, and to the address hereinbelow, or to such other place as Tenant may from time to time B.3.c
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designate in a notice to the Landlord. All notices and demands by the Tenant to the Landlord shall be sent by certified United States Mail, postage prepaid, addressed to the Landlord at the address set forth herein, and to such other person or place as the Landlord may from time to time designate in a notice to the Tenant.
To Landlord: City of Hollister
375 Fifth Street
Hollister, CA 95023
To Tenant: Gavilan College
5500 Santa Teresa Blvd.
Gilroy, CA 95020
s) Tenant's Statement(Estoppel Certificate). Tenant shall at any time and from time to time, upon not less than three(3) days prior written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing(a) certifying that this Lease is unmodified and in full force and effect(or, if modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect), and the date to which the Rent and other charges are paid in advance, if any, and (b)acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of the Landlord hereunder, or specifying such defaults if any are claimed, and C setting forth the date of commencement of rents and expiration of the term hereof. Any such statement may be relied upon by the prospective purchaser or encumbrancers of all or any portion of the real property of which the Premises are a part.
t) Authority of Tenant. If Tenant is a community college district, each individual executing this Lease on behalf of Tenant represents and warrants that he or she has full authority to do so and that this Lease binds the community college district.
31. NONDISCRIMINATION.
The Tenant herein covenants by and for the Tenant and Tenant's heirs, personal representatives and assigns and all persons claiming under the Tenant or through the Tenant that this discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry, disability, age or other arbitrary factor in violation of federal, state and local law in the provision of child care services in the Premises; employment in the Premises; leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises herein Leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the Premises herein leased.
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32. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state and local laws, regulations, codes, ordinances and administrative orders having jurisdiction over the parties, property or the subject matter of this Agreement; including, but not limited to, the 1964 Civil Rights Act and all amendments thereto, the Foreign.Investment in Real Property Tax Act, the Comprehensive Environmental Response compensation and Liability Act, and the Americans with Disabilities Act. .
33. EXHIBITS.
Attached hereto and made part of this lease: Exhibit'A"(Site Plan), Exhibit"B" Tenant Work), and Exhibit"C"
CITY OF HOLLISTTER GAVILAN COLLEGE
375 FIFTH STREET 5055 SAN"IA TERESA BLVD.
HOLLIST. R, CA 95023 GILROY, CA 95020
By: zar""' `27174
Richa K.Boomer Dr.Glenn Mayle
Its: Maypr Its: President
Date: 67 2 0 9 6 Date: 6 11 2/9 G
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a , 0 i
EXHIBIT "A"
Site Plan
A-1
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EXHIBIT"B"
RENT SCHEDULE
Year Lease Per Sq.Ft (8,500 SF) Minimum Monthly Rent
1 0.70 5950.00
2 0.80 6800.00
3 0.90 7650.00
4 1.00 8500.00
5-7 1.10 9350.00
8-10 1.20 10200.00
11-15 1.30 11050.00
B-1
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EXHIBIT"C"
DESCRIPTION OF TENANT'S WORK
1. Landlord agrees to fund up to $170,000 of tenant improvements to be agreed upon by the City and the District prior to commencement of work on the tenant improvements.
2. Landlord also agrees to amortized $42,500 within the minimum rent due in the lease to assist in tenant improvement costs.
3. If tenant improvement costs exceed$30.00 a square foot, the City agrees to incur that additional cost.
C-1
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e"\
RESOLUTION 96- 89
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HOLLISTER TO EXECUTE A LEASE WITH GAVILAN COLLEGE.
WHEREAS; the City of Hollister owns and manages 9,500 square feet of retail space in the Briggs Parking Structure located at 365 Fourth St.; and WHEREAS; Gavilan College will occupy 8,500 square feet of the space for a satellite campus;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF HOLLISTER, that the City Manager or His Designee is directed and authorized, on behalf of the City of Hollister, to execute the attached lease and related documents, subject to minor changes with language to be approved as to form by the City Attorney, with Gavilan College for a portion of the Briggs Parking Structure.
PASSED AND ADOPTED, this 20th day of May, 1996, by the following votes:
AYES: Councilmen Felice, Duran, Irish, Guzman, and Mayor Boomer.
NOES: None.
ABSTAINED: None.
ABSENT: None.
Richard K. Boomer, Mayor of the
City of Hollister
ATTES :
old A. Carillo, Jr. erk of the
ity of Hollister
PLICATE OmIc;.‘ZiAt-
PU ON FILE IN THE
ICE Of ThE CT(„C-irOff
CITY OF
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V.,•
MEMORANDUM
DATE: May 28, 1996
TO: Phil Molina;kFinanceDirector
Elaine Cass, City Attorney
FROM: William B. Avera, RDA
RE: GAVILAN COLLEGE LEASE
Mr. Johnson asked me to address the questions and concerns regarding the Gavilan Lease in your memo dated May 24, 1996.
1. The amortized $42,500 is already included in the minimum rent
2. Please note that paragraphs 6 (Security Deposit) and 7 (Additional Charges) have been removed from the lease.
With regards to section 7, the minimum rent received from the College would cover the expenses associated with the parking garage, (i.e. maintenace, insurance, and utilities) therefore, no reason to adjust for typical triple net charges.
If you should have any further questions or comments please feel free to call me at 636-4316.
CC: Barry Johnson; City Manager
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to completion the improvements to be erected by Tenant to the extent shown on the attached Exhibit"B".
Rent for any period which is for less than one (1) month shall be a prorated portion of the monthly installment herein based upon a thirty (30) day month. Said Rent shall be paid to Landlord, without deduction or offset, lawful money of the United States of America and at such place as Landlord may from time to time designate in writing.
5. TERM.
The lease term shall be 15 years commencing on the date Tenant's work as set forth in Exhibit"B" is substantially completed and terminating 15 years from that date.
The parties acknowledge that certain obligations under various Sections hereof may commence prior to the lease term, i.e., construction, holdharmless, liability insurance, etc.; and the parties agree to be bound by these articles prior to commencement of the Lease term.
Tenant is given the option to extend the term of this Lease for one (1) five (5) year period ("extended term") following expiration of the initial term, by giving written notice to exercise of option ("option notice") to Landlord at least six (6) months, but not more than one (1)year before the expiration of the term. If Tenant is in default on the date the extended term is to commence, the extended term shall not commence and this Lease shall expire at the end of the initial term.
The parties shall have thirty (30) days after the Landlord receives the option notice to negotiate the applicable Rent during the extended term. If the parties agree on the Rent for the extended term during that period, they shall immediately execute an amendment to the Lease stating the new Rent. If the parties are unable to agree on the Rent for the extended term within that thirty(30) day period, the option notice shall be of no effect and this Lease shall expire at the end of the term.
6. SECURITY DEPOSIT.
Concurrently with Tenant's execution of this Lease, Tenant has deposited with Landlord a sum equivalent to the first month's Rent. Said sum shall be held by Landlord as security for the faithful performance by Tenant of all the terms, covenants, and conditions of this Lease to be kept and performed by Tenant during the term hereof. If Tenant defaults with respect to any provision of this Lease, including, but not limited to the provisions relating to the payment of Rent, Landlord may (but shall not be required to use, apply or retain all or any part of this security deposit for the payment of any Rent or any other sum in default, or for the payment of any amount which Landlord may spend or become obligated to spend by reason of Tenant's default, or to compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant's default. If any portion of said deposit is so used or B.3.c
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N
applied Tenant shall, within five (5) days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the security deposit to its original amount and Tenant's failure to do so shall be a default under this Lease. Landlord shall not be required to keep this security deposit separate from its general funds, and Tenant shall not be entitled to interest on such deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the security deposit or any balance thereof shall be returned to Tenant (or, at Landlord's option, to the last assignee of Tenant's interest hereunder) within ten (10) days following expiration of the Lease term. In the event of termination of Landlord's interest in this Lease, Landlord shall transfer said deposit to Landlord's successor in interest.
7. ADDITIONAL CHARGES.
In addition to the Rent provided for in Section 4 and commencing at the same time as any Rent commences under this Lease, Tenant shall pay to Landlord the following items, herein called"Adjustments":
i) All costs to maintain, insure, repair, operate, and replace common areas, parking facilities, sidewalks, driveways, and other areas used in common by the tenants of the Building.
ii) All costs to supervise and administer said common areas, parking lots sidewalks, driveways, and other areas used in common by the tenants or occupants of the Building. Said costs shall include such fees as may be paid to third party in connection with same and shall in any event include a fee to Landlord to supervise and administer same in an amount equal to ten 10%)percent of the total costs of(i) above.
iii) Any parking charges, utilities surcharges, taxes, assessments, or any other costs levied, assessed or imposed by, or at the direction of, or resulting from statutes or regulations, or interpretations thereof, promulgated by any governmental authority in connection with the use or occupancy of the Building or the parking facilities serving the Building.
8. USES PROHIBITED.
Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which is not within the permitted uses of the Premises or which will in any way increase the existing rate of or affect any fire or other insurance upon the Building or any of its contents, or cause a cancellation of any insurance policy covering said Building or any part thereof or any of its contents.
Tenant shall not do or permit anything to be done in or above the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Building or injure or annoy them or use or allow the Premises to be used for any B.3.c
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Th
CITY OF HOLLISTER CITY COUNCIL AGENDA
TRANSMITTAL FORM
DATE: May 15, 1996 AGENDA ITEM:
MEETING DATE: May 20, 1996
TITLE OF ITEM: BRIGGS BUILDING LEASE
DEADLINE FOR COUNCIL ACTION: MAY 20, 1996
DEPARTMENT: Redevelopment Agency
2A-)
CONTACT: WILLIAM AVERA, REDEVELOPMENT PROJECTS • •I NAT614 PHONE NO.: 408-636-4316
DEPARTMENT SUMMARY: A RESOLUTION AUTHORIZING THE CITY
MANAGER TO EXECUTE A LEASE WITH GAVILAN COLLEGE FOR AVAILABLE SPACE WITHIN THE BRIGGS PARKING STRUCTURE AT 365 FOURTH STREET, HOLLISTER.
FINANCIAL IMPACT: 0-
FUNDING SOURCE: REDEVELOPMENT AGENCY
BUDGET RECAP:
Total Estimated Cost New Revenue $71,400
Net City Cost Lost Revenue $
Amt. Budget FY 94/95 New
New Funding Rewired $ Change in City Policy?
PRIOR COUNCIL ACTIONS:
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ALTERNATIVES:
1. Approve
2. Deny
ENVIRONMENTAL REVIEW STATUS: None
COMMITTEE REVIEW AND ACTION: None.
ATTACHMENTS:
1. STAFF REPORT DATED APRIL 29, 1996
2. LEASE
3. RESOLUTION 96- , AUTHORIZING THE CITY MANAGER TO EXECUTE LEASE DOCUMENTS.
RECOMMENDED ACTION: APPROVAL
EXECUTIVE DIRECTOR RECOMMENDATION: Same as recommended action.
CONCURRENCES (if appropriate): N/A
BY: BY:
City Attorney Other ( ) City Manager
Dept. Head
Supervisor
AGENDA1GAVLEASE.DOC
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MEMORANDUM4.
01'ff"44%.
DATE: April 29, 1996
TO: Barry Johnson, City Manager/
FROM: William B. Avera, RDA
RE: BRIGGS BUILDING LEASE
BACKGROUND:
The City of Hollister owns a four story parking structure located at 365 Fourth St. The first floor of the structure contains 9,500 square feet of retail space with storage areas.
Completion of the building is scheduled to be around middle of May, and the City has been contacted by businesses showing an interest in leasing space in the structure.
DISCUSSION:
The City of Hollister has been in negotiations with Gavilan College to lease 8,500 square feet in the Briggs Parking Structure. The term of the lease is Fifteen (15) years with one Five (5) year extension option. The City of Hollister is offering the College a Twenty (20) dollar per square foot tenant improvement allowance.
Staff is requesting that the City Council authorize the City Manager to enter into a Lease with Gavilan College and execute all related documents.
RECOMMENDATION:
Approve Resolution 96-authorizing the City Manager or His Designee to execute the lease documents with Gavilan College for space within the Briggs Parking Structure.
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DUPLICATE OF ORIGINAL
ON FILE IN THE
OFFICE OF THE CITY CLERK
RESOLUTION 99- 172
CITY OF HOLLISTER
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER
APPROVING A USE AGREEMENT WITH GAVILAN COLLEGE FOR THE
ARNOLD CARRILLO CONFERENCE ROOM.
WHEREAS, the City of Hollister currently owns the Briggs Building which is primarily leased by Gavilan College; and
WHEREAS, Gavilan College has expressed an interest in using the Arnold Carrillo conference room within the Briggs Building to expand classes.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF HOLLISTER, that the City Manager, is hereby authorized and directed, by the City Council to execute a use agreement with Gavilan College for the use of the Arnold Carrillo conference room at a rate of$5.00 per hour.
PASSED AND ADOPTED, this 18th day of October, 1999, by the following vote:
AYES: Councilmembers Valdivia, Corrales, Duran, Felice and Mayor Boome:
NOES: None
ABSTAINED: None
ABSENT. No
1 Richard . oomer, Mayor
City of Hollister
F nk D. Felice, Cit .Clerk
City of Hollister
C.f 1/(
APPROVED AS TO FORM:
Elaine Cass, City Attorney
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e"1
STAFF REPORT TRANSMITTAL FOR
STUDY SESSION AND/OR CITY COUNCIL AGENDA
DATE: October 8, 1999 AGENDA ITEM: Consent
STUDY SESSION DATE: MEETING DATE: October 18, 1999 TITLE OF ITEM: Gavilan College Lease of Arnold Carrillo Conference Room BRIEF DESCRIPTION:
Gavilan College is requesting the use of the Arnold Carrillo conference room located in the Briggs Building for the purposes of expanding classes. The college would like to begin with two nights, Monday and Tuesday, for three hours a night.
DEPARTMENT: Community Development Department
CONTACT PERSON: Bill Avera PHONE: 636-4316
DEPARTMENT SUMMARY:
Gavilan College currently leases approximately 9,500 square of the retail portion of the Briggs Building. In addition, the College leases rooms from the local school district when the need arises for expanding classes. Therefore, the college is requesting the opportunity to lease the Arnold Carrillo conference room for expanding classes for obvious convenience purposes.
Gavilan College is interested in using the room next semester in the evenings for approximately three hours. The days would be limited to Mondays and Tuesdays only.
Their proposal is to lease the room at the same rate they pay the school districts which is
5.00 per hour. This would equate to $15.00 per evening, or $120.00 per month.
Staff has recently completed a change in the storefronts at the Briggs Building. By switching doors and windows, it is now possible to enter the Arnold Carrillo conference room from the street without accessing the office space utilized by the Community Resource Center (Crime Prevention, Housing Authority, etc.).
Staff recommends that the City Council authorize the City Manager to execute a Use Agreement with Gavilan College to utilize the Arnold Carrillo conference room.
FINANCIAL IMPACT: A revenue of$120.00 per month.
STAFF RECOMMENDATION:
Staff recommends the City Council adopt Resolution 99- authorizing the City Manager to execute a Use Agreement with the Gavilan College for the use of the Arnold Carrillo conference room located in the Briggs Building.
CITY MANAGER RECOMMENDATION: Concurs
APPROVED AS TO FORM:
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1 AMENDMENT NO. 3 TO LEASE OF BRIGGS BUILDING BETWEEN
THE CITY OF HOLLISTER AND GAVILAN COLLEGE,A COMMUNITY
COLLEGE DISTRICT
This Amendment No. 3 to the Lease of Briggs Building dated June 20, 1996 (the "Lease")is entered into on [MONTH][DATE], 2023, between the City of Hollister, a municipal corporation, (the "Landlord"), and Gavilan Joint Community College District, a community college district (the "Tenant"), together herein referred to as "the Parties."
RECITALS
A.Whereas the Parties entered into the Lease of a portion of the Briggs Building located at 365 Fourth Street,Hollister,CA 95023 (the "Building") in June 1996 for a term of fifteen (15) years;and
B.Whereas the Parties, pursuant to Amendment No. 1, to Lease Between City of Hollister and Gavilan College dated June 21, 2012 ("Amendment No. 1"), agreed to extend the original term of the Lease from June 30, 2012 to June 20, 2017; and
C.Whereas the Parties, pursuant to Amendment No. 2,to Lease Between City of Hollister and Gavilan College dated June 20, 2017 ("Amendment No. 2"), agreed to extend the original term of the Lease from June 21, 2017 to June 20, 2022; and
D.Whereas, Landlord and Tenant now desire to amend and extend the current term of the Lease pursuant to the terms, covenants, agreements , and conditions set forth in this Amendment No.3.
Now, therefore, for good and valuable consideration, the Parties agree to amend the Lease and Amendment Nos. 1 and 2, as follows:
AMENDMENT NO.3
1.Extension of Current Lease Term
The term of the Lease is hereby amended to extend for two (2) additional years, commencing on June 20, 2022,and ending on June 21, 2024 (the "Extended Term"), provided, however, that Tenant, beginning on December 31, 2023, shall have the right to terminate the Lease early by providing Landlord with six (6) month's written notice.
2.Premises
a.Section 2 of Amendment 2 is hereby amended as follows: The phrase "8,500 square feet of floor area" is deleted in its entirety and the phrase "8,260 square feet of floor area" is inserted in its stead.
b.Section 2 of Amendment 2 is further amended as follows:Exhibit "A"to the original Lease is hereby deleted in its entirety and replaced in its stead by Exhibit "A" attached hereto and incorporated herein by reference.Exhibit "A" attached hereto adds the nearly 16 foot by 19 foot storage room at the northwest portion of the building to part of the Premises.
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2 3.Rent
Notwithstanding provisions of the Lease and Amendment No.3 relating to Rent, during the Extended Term, Rent due to Landlord from Tenant shall be paid in strict accordance with the terms and conditions set forth in Exhibit "B" attached hereto and incorporated herein, as if fully set forth .
4.Utilities/Janitorial Services
Section 15 of the Lease and Amendment No.1 are hereby amended to add the following weekl y responsibilities to the Landlord cleaning services:the stairs, sweeping and removal of cobwebs at the front of the structure facing San Benit o Street and near the elevator entrances.
5.No Other Changes
Except as provided in this Amendment No. 3 ,the terms and conditions of the Lease and Amendment No.2 dated June 20,2022,shall remain unmodified and in full force and effect. In the event of a conflict between the terms of this Amendment No. 3 and the terms of the Lease and Amendment No.2, the terms of this Amendment No. 3 shall govern and control.
6.New Exhibit B to Lease
Exhibit B to the Lease,as previously amended, shall be deleted in its entirety and replaced in its stead with Exhibit B, which is attached hereto and incorporated herein by reference.
7.Effective Date of Amendment No.3
This Amendment No.3 is subject to approval or ratification by the Landlord's City Council and the Tenant's Board of Trustees.This Amendment No.3 shall only be effective and enforceable as of the date that the City Council and Board of Trustees have taken action to approve/ratify this Amendment No.3.
8.Counterparts
This Amendment No.3 may be executed in any number of counterparts, each of which shall be deemed an original, and when taken together, shall constitute one and the same document.
Landlord
City of Hollister
375 Fifth Street
Hollister, CA 95023
Mia Casey, Mayor
Date: ____________
Tenant
Gavilan Joint Community College
District
5055 Santa Teresa Boulevard
Gilroy, Ca 95020
Marilyn Morikang
Vice President of Administrative
Services
Date: ____________
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3 EXHIBIT "A"-PREMISIS
El
'),'),'),'),
)('),)()())'\,..u ,,........,,-.,..,.,._A,>,AO
OHJC.l
'),'),
)<.
)(D°"-'ft.
©BRIGGS BUILDING AND PARKING GARAGE 1ST.TO 4TH FLOOR
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4 EXHIBIT "B" RENT
SCHEDULE
AMENDMENT NO.3 TO
LEASE BETWEEN CITY OF HOLLISTER AND GAVILAN
JOINT COMMUNITY COLLEGE DISTRICT
(BRIGGS BUILDING,365 FOURTH STREET,HOLLISTER,CALIFORNIA 95023 Year Lease Rate per
Square Foot
Monthly Rate Credit for
Janitorial
Adjusted
Monthly
(8,260 Sq.Ft.)Services and
Supplies
Minimum
1 $1.50 (FY 22/23)$12,750 ($1,800.00)$10,950
2 $1.65 (FY 23/24)$13,629 ($1,800.00)$11,829
3 $1.70 (FY 23/24)$14,042 ($1,800.00)$12,242
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5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER AUTHORIZING THE EXECUTION OF AMENDMENT NO. 3 TO THE LEASE
AGREEMENT WITH GAVILAN COLLEGE,A COMMUNITY COLLEGE DISTRICT
FOR THE BRIGGS BUILDING
WHEREAS, the City Council approved Resolution No. 96 -89 which authorized a lease agreement with Gavilan College, A Community College District (the "District") for the Briggs Building at 365 Fourth Street for a satellite campus to educate residents in the City of Hollister; and
WHEREAS,the term of the lease of the facility was for 15 years with an option for a five-year extension; and
WHEREAS, the City Council approved Resolution No. 2012-1-2 which authorized Amendment No. 1 to the lease agreement with the District; and WHEREAS, the term of the Amendment No. 1 was five years; and WHEREAS,the City Council approved Resolution No. 2017-113 which authorized Amendment No. 2 to the lease agreement with the District; and WHEREAS,the term of the Amendment No.2 lease agreement was five years;and
WHEREAS,the District desires to extend the lease agreement for two years with an option for early termination beginning the second year of the lease and other amendments; and
WHEREAS, the City and the District desire to add a storage space to the lease agreement; and
WHEREAS, the City and the District desire to add additional City janitorial responsibilities agreement.
NOW,THEREFORE,BE IT RESOLVED as follows:
1.The Mayor is hereby authorized and directed to file a Notice of Exemption with respect to the Agreement in accordance with the applicable provisions of CEQA.
2.The City Council approves Amendment No. 3 to the lease agreement attached as Exhibit 1 to this resolution.
3.The Mayor is hereby authorized and directed to execute Amendment No.
3 to the Lease Agreement with Gavilan College, a Community College District included as Exhibit 1.
4.This Resolution shall take immediate effect upon its adoption.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a regular B.3.d
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6 meeting held this [Date]th/nd/rd day of [Month], 2023, by the following vote:
AYES:
NOES:
ABSENT:
Mia Casey,Mayor
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 14, 2023
DEPARTMENT:
DEPARTMENT HEAD:
Fire
Bob Martin Del Campo, Fire
Chief
SPONSOR(S): Perez
TITLE OF ITEM: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER
AUTHORIZING THE FIRE CHIEF TO EXECUTE A CONTRACT FOR EMERGENCY MEDICAL SERVICES WITH THE 33RD DISTRICT AGRICULTURAL ASSOCIATION FOR
THE SAN BENITO COUNTY FAIR
BRIEF DESCRIPTION: The City Council will consider a resolution authorizing the fire chief to execute a contract for emergency medical services with the 33rd District Agricultural Association for the San Benito County Fair.
RECOMMENDATION: Adopt a resolution to execute a contract for emergency medical services with the 33rd District Agricultural Association for the San Benito County Fair.
DEPARTMENT SUMMARY: The 33rd District Agricultural Association has requested standby for emergency medical services (EMS) for the 2023 San Benito County Fair at the San Benito County fairgrounds located at 9000 Airline Highway, Tres Pinos, CA 95075 from Friday, September 29, 2023, through Sunday, October 1, 2023. The 33rd District Agricultural Association also requested stand-by for EMS for their Truck Pull Event on Sunday, October 2, 2023.
The 33rd District Agricultural Association agrees to pay fees for service to the City of Hollister Fire Department for EMS standby for the duration of the San Benito County Fair in the amount of $3,093.00. The 33rd District Agricultural Association also agrees to pay fees for service to the City of Hollister for the Truck Pull Event in the amount of $980.40.
WHEREAS, the 33rd District Agricultural Association requested standby for Emergency Medical Services for the 2023 San Benito County Fair at the San Benito County Fair Grounds; and
WHEREAS, the 33rd District Agricultural Association agrees to pay fees for service to the City of Hollister Fire Department for EMS standby.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Hollister hereby authorizes the Fire Chief to execute a contract between the City of Hollister and the 33rd District Agricultural Association attached hereto as exhibit A and exhibit B.
ATTACHMENTS:
1. Exhibit A - SBCo Fair Contract
2. Exhibit B - SBCo Fair - Truck Pulls Contract
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THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 14, 2023
DEPARTMENT:
DEPARTMENT HEAD:
Police
Carlos Reynoso, Police Chief
TITLE OF ITEM: RESOLUTION NO. 2023-179, A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING THE AGREEMENT FOR THE HOLLISTER POLICE
DEPARTMENT TO RETIRE CANINE OFFICER SULLY FROM THE POLICE DEPARTMENT'S
CANINE UNIT AND APPROVE CONTRACT WITH CANINE'S PREVIOUS HANDLER
BRIEF DESCRIPTION: This resolution would authorize the Police Department to retire Canine Officer Sully from service to the Police Department due to his handler leaving the department. It would also approve the agreement between the department and the previous handler to keep Canine Sully as part of his family.
RECOMMENDATION: Adopt a resolution approving the agreement for the Hollister Police Department to retire Canine Officer Sully from the Police Department's Canine Unit and approve a contract with the canine's previous handler.
DEPARTMENT SUMMARY: Canine Sully has served the Hollister Police Department and the community of Hollister with distinction since 2021. He has assisted in multiple narcotic arrests and felony suspect arrests. He has faithfully served his handler and protected police personnel.
Canine Sully has performed and demonstrated his abilities in several community events that highlight law enforcement tactics and community outreach events.
lt is common practice to retire canines to their handlers when they reach an age or condition where they can no longer be of service. Canine Sully is a 3 1/2 year old German Shepard that began service with the Police Department in 2021. Sully’s handler has left the police department to work for another agency. Due to Sully's attachment to his handler and family and the associated training costs, it has been determined that Sully should not be moved to a new handler.
Witmer-Tyson Imports, Inc. is a canine training and canine sales company that provides canines to departments throughout California. The city originally purchased Sully from Wtimer-Tyson Imports for $10,000 in 2020. They have assessed Sully and advised it would be very difficult to retrain Sully with another handler. It would cost a significant amount of money to retrain Sully (over $6,500) and there would be no guarantees Sully would work well with another handler.
His handler advised Sully had become part of the family and is very close to his children. He advised he was willing to purchase Sully from the city but he was only able to pay up to $5,000.
Previously, city councilmembers have agreed to sell the canine for $1. However, those other canines have been older dogs and closer to retirement.
Witmer-Tyson Imports, Inc. provided an evaluation for Sully, based on his age and the possible years of service still available. They estimated his value at $5,200, if the retraining was effective and he connected with a new handler.
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Instead of spending additional money on retraining that may not work, t he Police Department desires to retire canine Sully from law enforcement service and enter into a retirement contract with the previous handler, Don Tong. The Department would like to retire the canine to his most current handler so the dog may live out his remaining years with someone who has and will now continue to care for him. Sully would no longer work as a canine for any other department.
City Council approval is necessary for the transfer of these City Assets (Sully). Staff requests approval of the contract and to set an amount for the transfer of the canine to Don Tong.
FINANCIAL IMPACT: The retired canine Sully will be sold to the previous handler Don Tong.
There is no additional impact to the General Fund associated with this item.
CEQA: N/A
ATTACHMENTS:
1. Sully Purchase and Waiver
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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RESOLUTION NO. 2023-179
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER APPROVING THE
AGREEMENT FOR THE HOLLISTER POLICE DEPARTMENT TO RETIRE CANINE
OFFICER SULLY FROM THE POLICE DEPARTMENT'S CANINE UNIT AND APPROVE
CONTRACT WITH CANINE'S PREVIOUS HANDLER
WHEREAS, the City of Hollister acquired Canine Sully in 2020; and
WHEREAS, Canine Sully has served the Hollister Police Department and the community of Hollister with distinction; and
WHEREAS, the previous handler for Canine Sully has left the Hollister Police Department to work for another agency and is no longer working as a K9 Handler; and
WHEREAS, Canine Sully is 3 1/2 years old and is very attached to his previous handler and his family; and
WHEREAS, the canine training company has advised it will cost an excess of $6,500 to retrain Sully to work with another handler and there are no guarantees that Sully will respond to a new handler; and
WHEREAS, the previous handler, Officer Don Tong has a desire to keep Canine Sully and adopt him into his family to live out his days with the family that he has become a member of; and
WHEREAS, Don Tong is willing to sign an agreement with the City to take care of Sully and release the city from liability.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Hollister approves the agreement for the Hollister Police Department to retire Canine Officer Sully from the department's canine unit and approves the contract with the canine's previous handler to adopt Canine Sully into his forever home.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a Regular Meeting held this 18th day of September, 2023, by the following vote:
Mia Casey, Mayor
ATTEST:
Jennifer Woodworth, MMC, City Clerk
APPROVED AS TO FORM:
Lozano Smith Attorneys at Law
Mary F. Lerner, City Attorney
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I, JENNIFER WOODWORTH, MMC, City Clerk of the City of Hollister, do hereby certify that the attached Resolution No. 2023-179, is an original Resolution, or true and correct copy of a City Resolution, duly adopted by the Council of the City of Hollister at a regular meeting of said Council held on the 18th day of September, 2023, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Hollister this City Council day of September, 2023.
Jennifer Woodworth, MMC
City Clerk of the City of Hollister
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WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT REGARDING THE PURCHASE AND USE OF RETIRED POLICE K9 SERVICE DOG, SULLY
This Agreement is entered into between the City Of Hollister (“City”) and Don Tong (Former Handler).
RECITALS
A. City owns a German Shepherd police K9 service dog named Sully, who has been in service since 2020; and
B. Sully has served with his handler former Hollister Police Officer now for 3 years; and
C. The standard retirement of police K9 services dogs is transfer of owne rship to the partner/handler for the consideration of a specific dollar amount; and
D. Don Tong has made a request to retire and purchase Sully for the fair market value of $5,000; and
E. As a condition of this purchase, Don Tong will not allow Sully to be used as a law enforcement K9 service dog for any other agency.
NOW, THEREFORE, Don Tong is entering into this Waiver of Liability, Assumption of Risk and Indemnity Agreement (“Agreement”).
1. Waiver: In consideration of being permitted to purchase Sully for $5,000, Don Tong, does hereby release, waive, discharge, and covenant not to sue the City, its officers, employees, and agents from liability from any and all claims including the negligence of the City, its officers, employees, and agents, resulting in personal injury, accidents or illnesses (including death), and property loss arising from, but not limited to, purchase and use of Sully.
2. Assumption of Risks: Don Tong has been advised of certain inherent risks that cannot be eliminated regardless of the care taken to avoid injuries.
I have read the previous paragraphs and I know, understand, and appreciate these and other risks that are inherent in purchasing and using Sully. I hereby assert that I voluntarily choose to purchase and use Sully and that I knowingly assume all such risks.
3. Indemnification and Hold Harmless : Don Tong agrees to INDEMNIFY AND HOLD the City HARMLESS from any and all claims, actions, suits, procedures, costs, expenses, damages and liabilities, including attorney’s fees brought as a result of his purchase and use of Sully and to reimburse them for any such expenses incurred.
4. Severability: The undersigned further expressly agrees that the foregoing waiver , indemnity and assumption of risks agreement is intended to be as broad and i nclusive as is permitted by the law of the State of California and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
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2 5. Acknowledgment of Understanding : I have read this waiver of liability, assumption of risk, and indemnity agreement, fully understand its terms, and understand that I am giving up substantial rights, including my right to sue . I acknowledge that I am signing the agreement freely and voluntarily, and intend by my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.
By signing below, I agree to be bound by all applicable terms and provisions of this agreement. [This document waives important legal rig hts. Read it carefully before signing.]
Date: CITY OF HOLLISTER
By:
David Mirrione, City Manager
Date: By:
Don Tong, Former Handler
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 5, 2023
DEPARTMENT:
DEPARTMENT HEAD:
Planning
Christine Hopper, Development
Services Director
TITLE OF ITEM: AUTHORIZATION TO RELEASE A REQUEST FOR PROPOSALS FOR THE
PREPARATION OF AN ENVIRONMENTAL DOCUMENT PURSUANT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA) FOR THE MERIDIAN VILLAGE PROJECT (TENTATIVE MAP 2022-2 AND SITE & ARCHITECTURAL REVIEW 2022-15)
BRIEF DESCRIPTION: The City of Hollister is seeking a qualified public entity or private firm, to establish a contract for environmental services and technical studies, including an Initial Study/Mitigated Negative Declaration for Meridian Village.
RECOMMENDATION: Approve authorization to release a request for proposal for environmental consulting services and associates technical studies for Meridian Village Tentative Map 2022-2 and Site & Architectural Review 2022-15.
DEPARTMENT SUMMARY: The City of Hollister has received a Tentative Map and a Site & Architectural Review application (TM 2022-2 and S&A 2022-15) for a 12.75-acre multi-family residential project consisting of 219 units, a 16,170 square foot park, and a recreation facility. The project would include 129 two-story townhomes and 90 apartments in five three-story buildings. The proposal includes the subdivision of the existing 12.75- acre parcel into five parcels and 5 lots. An Initial Study/Mitigated Negative Declaration and technical studies are required to evaluate compliance with the California Environmental Quality Act (CEQA). The environmental consultant shall also prepare responses to comments on the environmental document and studies as well as attend public hearings.
Part of the required technical studies includes drafting a Transportation Impact Analysis to determine potential impacts to the Meridian Street and State Highway 25 Intersection.
The transportation analysis shall include a Vehicle Miles Traveled (VMT) analysis as required by CEQA as well as a Level of Service (LOS) analysis to determine the need for any related traffic improvements as a result of the proposed project and to determine consistency with City of Hollister General Plan requirements. If it is determined that the potential for significant impacts exist or significant impacts related to air quality, or other environmental impacts are concluded as a result of the Initial Study, an amendment to the contract and Preparation of an Environmental Impact Report will be required.
The City of Hollister previously utilized the professional services agreement with Kimley- Horn and Associates for on-call environmental services for the preparation of CEQA documents for projects under review by the City. However, that professional services agreement recently expired. The City does not currently have a contract to utilize on-call services for the preparation of environmental work with another firm. For this reason, the B.6
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Meridian Village project that is under review requires a separate release of a Request for Proposals (RFP) for consulting firms to prepare the necessary analyses. After release of the RFP, proposals received shall be reviewed by staff for responsiveness, and a proposal selected for contract recommendation. A professional services agreement will be brought back before the City Council for approval at a later date.
FINANCIAL IMPACT: All consulting fees would be paid by the applicant and would include the City’s adopted Project Management overhead costs for staff time.
CEQA: The Project is subject to CEQA pursuant to Section 15060 Preliminary Review and Section 15063 Initial Study.
ATTACHMENTS:
1. RFP for Environmental - Meridian Village_DRAFT
2. Exhibit A - Professional Service Agreement
3. Exhibit B - Proposer Identification
4. Exhibit C - Ex Parte Communications
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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City of Hollister
DEVELOPMENT SERVICES DEPARTMENT
339 Fifth Street, Hollister, CA. 95023 Telephone (831) 636-4360 Fax (831) 634-4913
REQUEST FOR PROPOSALS
FOR
ENVIRONMENTAL CONSULTING SERVICES
Initial Study/Mitigated Negative Declaration
and technical studies
for Meridian Village TM 2022-21 and S&A 2022-15
RFP No. XXXX
Development Services Department
CITY OF HOLLISTER
Proposals Due By:
ENTER TIME AND DATE
Development Services Department
339 Fifth Street, Hollister, CA 95023
(831) 636-4360
[email protected]
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INITIAL STUDY/MITIGATED NEGATIVE DECLARATION
REQUEST FOR PROPOSALS (RFP XXXX)
The City of Hollister (herein referred to as the “City”) issues this Request for Proposals (“RFP”) requesting proposals from a qualified public entity or private firm, to establish a contract for environmental services and technical studies, including an Initial Study/Mitigated Negative Declaration. The City shall contract with the selected firm(s) to provide the services pursuant to agreed-upon fixed rates and itemized cost schedules.
The term is expected to last for one year.
Firms with experience in managing City of Hollister projects, particularly residential development projects, are encouraged to submit a proposal. Please note that any contract resulting from this RFP shall include all required contract provisions.
The environmental services requested are for the Meridian Village Project, a residential development which intends to subdivide a 12.75-acre parcel into 5 individual lots, with a total of 219 multifamily units. Lot 1 is proposed to be 89,104 square -feet, and includes five proposed apartment buildings, each with 18 units for a total of 90 apartment units, as well as a recreation center and private park area. Lots 2, 3, 4, and 5 are proposed to be 40,058 SF, 85,861 SF, 89,205 SF, and 50,163 SF respectively, and are each proposed to be developed with three-bedroom and four-bedroom townhome-style dwelling units, organized into 3-plex, 4-plex, 5-plex, and 6-plex buildings for a total of 129 townhome style multifamily (condominium) units.
1. BACKGROUND
The City of Hollister is comprised of a number of departments including the Development Services Department encompassed by Planning, Building, Housing, and Cannabis Affairs.
Planning is the process by which public agencies, such as the City of Hollister, determine the intensity and pattern of various land uses in a community. Because the way that land is used and distributed in the community affects the general public, the environment and the economy, planning also involves environmental and socio-economic impact assessment, and the creation and enactment development of laws and regulations to shape and implement the community's goals. It also involves analyzing and evaluating the design for the physical layout of the community, and a public approval process to facilitate balanced decision-making.
The City engages in Planning to ensure that land is preserved and used in ways that are socially and economically desirable, in order to protect the quality of life of its citizens. The primary goal is to shape the physical environment in a way that benefits the needs of all citizens, while balancing competing public and private interests. So, Planning is necessary to help the community use its resources in a rational, efficient, fair and environmentally sound way. Current Planning activities include interpreting and enforcing planning, zoning B.6.a
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and subdivision regulations, reviewing and processing use development proposals, creating and maintaining a land use inventory, technical and demographic research and analysis, interdepartmental and intergovernmental coordination and permit processing.
2. SCHEDULE OF EVENTS
This request for proposal will be governed by the following schedule:
Release of RFP ENTER DATE
Deadline for Written Questions (4:00 PM) ENTER DATE
Responses to Questions Posted on Web ENTER DATE
Proposals are Due (4:00 PM) ENTER DATE
Approval of Contract ENTER DATE
*All dates are subject to change at the discretion of the City
3. SCOPE OF WORK
The City of Hollister invites you to submit a proposal for environmental consulting services.
Stewart Fahmy has submitted a Tentative Map and a Site & Architectural Review application to the City of Hollister for the following proposal:
A 12.75-acre multi-family residential project consisting of 219 units and a 16,170 square foot park and recreation facility. The project would include 129 two-story townhomes and 90 apartments in five three-story buildings. The proposal includes the subdivision of the existing 12.75-acre parcel into five parcels and 5 lots. The proposed project is located within the Neighborhood Mixed Use (NMU) Zoning District, south of Meridian Street and West of State Highway 25. The project site is further identified as Assessor’s Parcel Number (APN) 054-600-005, and is currently vacant and unimproved.
It is important to note that an Initial Study/Mitigated Negative Declaration was prepared in 2006 for this project site for the Guerra Prezoning, Zone Change, and C-District Review Project. However, the 2006 project proposed mixed uses, including up to 250,000 square feet of commercial uses and 120 multi-family residential units. The current project also comprises only a portion of the previously reviewed project/annexation area. Since the preparation of the Initial Study, the proposed project has been significantly revised and now known as the Meridian Village Project. The project location is the same; however, the area has since been annexed, and changes in the project require a re-analysis of the required CEQA topics.
The work activity includes preparation of an Initial Study/Mitigated Negative Declaration and associated technical studies. The environmental consultant shall also prepare responses to comments on the environmental document and studies as well as attend public hearings.
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It should be noted that a Transportation Impact Analysis is also required to determine potential impacts to the Meridian Street and State Highway 25 Intersection. The transportation analysis shall include a Vehicle Miles Traveled (VMT) analysis as required by CEQA as well as a Level of Service (LOS) analysis to determine the need for any related traffic improvements as a result of the proposed project and to determine consistency with City of Hollister General Plan requirements. If it is determined that the potential for significant impacts exist or significant impacts related to air quality, or other environmental impacts are concluded as a result of the Initial Study, an amendment to the contract and Preparation of an Environmental Impact Report will be required.
Technical Studies
Provided by the applicant:
• Meridian Stormwater Control Plan
• Preliminary Title Report
Provided by the City:
Background information on other aspects of the environmental review such as cultural and biological resources, land use, and public services impacts prepared for other projects and applicable to this project will be provided by the City.
Provided by the Consultant:
The consultant will be responsible for reviewing and incorporating the appropriate technical data submitted by the applicant and the preparation of additional technical studies as required by the California Environmental Quality Act (CEQA) to complete the environmental document. The consultant would be primarily responsible for preparation of all technical studies with the exception of the noted studies to be submitted by the applicant.
4. TENTATIVE PROJECT SCHEDULE (SUBJECT TO CHANGE)
Proposals Due ENTER DATE
Consultant Selection ENTER DATE
Execution of PSA (City Council Approval May Be Req.) ENTER DATE Kick-Off Meeting ENTER DATE
Screen check Draft Due to City for Review ENTER DATE Draft IS/MND Circulation ENTER DATE
Response to Comments ENTER DATE
Public Hearing(s) ENTER DATE
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5. PROPOSAL FORMAT GUIDELINES
Interested contractors or entities are to provide the City of Hollister with a thorough proposal using the following guidelines:
Proposal should be typed using a 12-point font size (Arial is preferred), including transmittal letter and resumes of key people, but excluding Index/Table of Contents, tables, charts, and graphic exhibits. Each proposal will adhere to the following order and content of sections. Proposal should be straightforward, concise and provide “layman” explanations of technical terms that are used. Emphasis should be concentrated on conforming to the RFP instructions, responding to the RFP requirements, and on providing a complete and clear description of the offer. Proposals which appear unrealistic in terms of technical commitments, lack of technical competence or are indicative of failure to comprehend the complexity and risk of this contract may be rejected. The following proposal sections are to be included in the proposer’s response:
A. Proposer Identification Form and Cover Letter
Complete Appendix A, “Proposer Identification Form” and attach this form to the cover letter. A cover letter, not to exceed three pages in length, should summarize key elements of the proposal. An individual authorized to bind the consultant must sign the letter. The letter must stipulate that the proposal price will be valid for a period of at least 180 days. Indicate the address and telephone number of the contractor’s office located nearest to Hollister, California and the office from which the project will be managed.
B. Background and Project Summary Section
The Background and Project Summary Section should describe your understanding of the Project, the work to be done, and the objectives to be accomplished. Refer to Scope of Work of this RFP.
C. Methodology Section
Provide a detailed description of the approach and methodology to be used to accomplish the Scope of Work of this RFP. The Methodology Section should include:
a) An implementation plan that describes in detail
(i) the methods, including controls by which your firm or entity manages projects of the type sought by this RFP;
(ii) (ii) methodology for soliciting and documenting views of internal and external stakeholders;
(iii) (iii) and any other project management or implementation strategies or techniques that the respondent intends to employ in carrying out the work. b) Detailed description of efforts your firm or entity will undertake to achieve client satisfaction and to satisfy the requirements of the "Scope of Work" section. c) Detailed project schedule, identifying all tasks and deliverables to be performed, durations for each task, and overall time of completion, including a complete B.6.a
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transition plan. Include your plan to deal with fluctuation in service needs and any associated price adjustments.
d) Detailed description of specific tasks you will require from City staff. Explain what the respective roles of City staff and your staff would be to complete the tasks specified in the Scope of Work.
e) Proposers are encouraged to provide additional innovative and/or creative approaches for providing the service that will maximize efficient, cost-effective operations or increased performance capabilities. In addition, the City will consider proposals that offer alternative service delivery means and methods for the services desired.
f) Proposers are also requested to identify any City owned facilities or property which Proposer would propose to use or lease, purchase, or rent from the City in connection with the services to be performed, including information about the terms of any proposed lease, purchase or use of such equipment and facilities, and how this proposed structure affects the overall cost proposal to the City, if applicable.
D. Staffing
Provide a list of individual(s) who will be working on this project and indicate the functions that each will perform and anticipated hours of service of each individual.
Include a resume for each designated individual. Upon award and during the contract period, if the contractor chooses to assign different personnel to the project, the Contractor must submit their names and qualifications including information listed above to the City for approval before they begin work.
E. Qualifications
The information requested in this section should describe the qualifications of the firm or entity, key staff and sub-contractors performing projects within the past five years that are similar in size and scope to demonstrate competence to perform these services.
Information shall include:
Names of key staff that participated on named projects and their specific responsibilities with respect to this scope of work.
A summary of your firm’s or entity’s demonstrated capability, including length of time that your firm has provided the services being requested in this Request for Proposal.
For private Proposers, provide at least three references that received similar services from your firm. The City of Hollister reserves the right to contact any of the organizations or individuals listed. Information provided shall include:
o Client Name
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o Project Description
o Project start and end dates
o Client project manager name, telephone number, and e-mail address.
Any public entity which submits a proposal should describe in detail how it currently performs services like those identified in the scope of work within its or other jurisdictions, including photographs, written policies and/or video of services provided.
If you have performed these services under contract for another public entity, please provide references for those entities as set forth above for private Proposers.
F. Financial Capacity
Provide the Proposer's latest audited financial statement or other pertinent information such as internal unaudited financial statements and financial references to allow the City to reasonably formulate a determination about the financial capacity of the Proposer. Describe any administrative proceedings, claims, lawsuits, or other exposures pending against the Proposer.
G. Fee Proposal
All Proposers are required to submit a Fee Proposal with their proposal. Pricing instructions should be clearly defined to ensure fees proposed can be compared and evaluated. Proposals shall be valid for a minimum of 180 days following submission.
H. Disclosure
Please disclose any and all past or current business and personal relationships with any current City of Hollister elected official, appointed official, City employee, or family member of any current City of Hollister elected official, appointed official, or City employee. Any past or current business relationship may not disqualify the firm from consideration.
I. Ex Parte Communications
Proposers and Proposers’ representatives should not communicate with the City Council members about this RFP. In addition, Proposers and Proposers’ representatives should not communicate outside the procedures set forth in this RFP with an officer, employee or agent of the City, including any member of the evaluation panel, with the exception of the RFP Facilitator, regarding this RFP until after Contract Award. Proposers and their representatives are not prohibited, however, from making oral statements or presentations in public to one or more representatives of the City during a public meeting. A "Proposer" or "Proposer's representative" includes all of the Proposer's employees, officers, directors, consultants and agents, any subcontractors or suppliers listed in the Proposer's proposal, and any individual or entity who has been requested by the Proposer to contact the City on the Proposer's behalf. Proposers shall B.6.a
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include the Ex Parte Communications form (Appendix C) with their proposals certifying that they have not had or directed prohibited communications as described in this section.
J. Sample Agreement
The firm selected by the City will be required to execute an Professional Services Agreement (Agreement) with the City. The form of the Agreement is enclosed as Appendix B, but may be modified to suit the specific services and needs of the City. If a Proposer has any exceptions or conditions to the Agreement, these must be submitted for consideration with the proposal. Otherwise, the Proposer will be deemed to have accepted the form of Agreement.
K. Checklist of Forms to Accompany Proposal
As a convenience to Proposers, following is a list of the forms, included as appendices to this RFP, which should be included with proposals.
1) Proposer Identification Form
2) Fee Proposal
3) Ex Parte Communications Form
Each proposal shall be prepared simply and economically, avoiding the use of elaborate promotional material beyond those sufficient to provide a complete, accurate and reliable presentation.
L. Number of Proposals
The City requires an electronic submittal of proposals to facilitate group review and document distribution. No paper proposals will be accepted. The following guidelines are recommended.
1. An electronic proposal is to be e-mailed to the City designated contact (see page #), by the RFP due date, and time deadline.
2. Add the words (Meridian Village) to the subject line of the e-mail.
3. Follow up with a phone call or second email to confirm the proposal was received if you do not receive a confirmation within three (3) days.
4. All risks associated with emailing the Proposal are borne by Proposer.
5. The City email system will allow documents of up to ten (10) megabytes.
Larger files should be linked to a compiled share drive or similar.
6. Do not zip the Proposal. The City email system will strip out any attachments that are in .zip format.
M. Submission of Proposals
Complete written proposals must be emailed and received no later than 4:00 p.m.
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(P.S.T) on Tuesday October 3, 2023. Proposals will not be accepted after this deadline.
N. Inquiries
Questions about this RFP must be directed in writing, via e-mail to:
Magda Gonzalez, Senior Planner
[email protected]
The City reserves the right to amend or supplement this RFP prior to the proposal due date. All amendments, responses to questions received, and additional information will be posted to the City of Hollister - Bid Opportunities and RFPs | BidNet Direct Proposers should check this web page daily for new information. The City will endeavor to answer all written questions timely received no later than ENTER DATE. The City reserves the right not to answer all questions.
O. Conditions for Proposal Acceptance
This RFP does not commit the City to award a contract or to pay any costs incurred for any services. The City, at its sole discretion, reserves the right to accept or reject any or all proposals received as a result of this RFP, to negotiate with any quali fied source(s), or to cancel this RFP in part or in its entirety. The City may waive any irregularity in any proposal. All proposals will become the property of the City of Hollister, USA. If any proprietary information is contained in the proposal, it sho uld be clearly identified.
7.EVALUATION CRITERIA
The City’s evaluation and selection process will be based on the following:
a. Qualifications identified in the proposal.
b. Understanding and scope of work.
c. Project team: Technical expertise and experience.
d. Firm’s related experience and references.
e. Cost of providing services.
f. Complete, clear and concise responses to items requested in the RFP. g. Responsiveness to questions.
8. EVALUATION OF PROPOSALS AND SELECTION PROCESS
A. Responsiveness Screening
Proposals will first be screened to ensure responsiveness to the RFP. The City may reject as non-responsive any proposal that does not include the documents required to be submitted by this RFP. At any time during the evaluation process, the City reserves the right to request clarifications or additional information from any or all Proposers regarding their proposals.
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B. Initial Proposal Review
Staff will conduct initial review and score all responsive written proposals based upon the Evaluation Criteria set forth above. Staff may also contact Proposer's references. Proposals that receive the highest evaluation scores may be invited to the next stage of the evaluation process. The City may reject any proposal in which a Proposer’s approach, qualifications, or price is not considered acceptable by the City. An unacceptable proposal is one that would have to be substantially rewritten to make it acceptable. The City may conclude the evaluation process at this point and recommend award to the best qualified and lowest responsible bidder.
Alternatively, the City may elect to negotiate directly with one or more Proposers to obtain the best result for the City prior to making a recommendation or selection.
C. Interviews, Reference Checks, Revised Proposals, Discussions Following the initial screening and review of proposals, the Proposers included in this stage of the evaluation process may be invited to participate in an oral interview. Interviews, if held, will be conducted at City of Hollister City Hall, 375 Fifth Street, Hollister, CA 95023. The individual(s) from Proposer's firm or entity that will be directly responsible for carrying out the contract, if awarded, should be present at the oral interview. The oral interview may, but is not required to, use a written question/answer format for the purpose of clarifying the intent of any portions of the proposal. In addition to conducting an oral interview, the City may during this stage of the evaluation process also contact and evaluate the Proposer’s references, contact any Proposer to clarify any response or request revised or additional information, contact any current users of a Proposer’s services, solicit information from any available source concerning any aspect of a proposal, and seek and review any other info rmation deemed pertinent to the evaluation process. Following conclusion of this stage of the evaluation process, the Committee will again rank all Proposers according to the evaluation criteria set forth above. The Committee may conclude the evaluation pr ocess at this point, and make a recommendation for award, or it may request Best and Final Offers from Proposers. The City may accept the proposal or negotiate the terms and conditions of the agreement with the highest ranked firm, which shall be determined to be the qualified and lowest responsible bidder. The City may recommend award without Best and Final Offers, so Proposers should include their best proposal with their initial submission. Recommendation for award is contingent upon the successful negotiation of final contract terms. Negotiations shall be confidential and not subject to disclosure to competing Proposers unless an agreement is reached. If contract negotiations cannot be concluded successfully within a time period determined by the City, the City may terminate negotiations and commence negotiations with the next highest scoring Proposer or withdraw the RFP.
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Exhibit A
SAMPLE AGREEMENT FOR PROFESSIONAL SERVICES
CITY OF HOLLISTER
ENVIRONMENTAL SERVICES AGREEMENT
This services agreement (“Agreement”) is made and entered into effective ____________, 20___ (the “Effective Date”), by and between the City of Hollister (“City”) and _______________________ (“Contractor” and together with City, the “Parties”).
1. Contractor Services. Contractor agrees to provide the following services to City (collectively, the “Basic Services”): For the _________ project (“Project”), ____________________________________ (as further described in Exhibit A to this Agreement). Contractor shall provide services related to the Project other than Basic Services (i.e., “Additional Services”) if directed in writing by City to perform specific Additional Services and if sufficient contract funds for Additional Services remain to pay for the directed Additional Services (see Section 5, below). “Services” shall mean Basic and Additional Services. Contractor agrees to perform such Services as expeditiously as is consistent with professional skill and care and the orderly progress of the Services and the Project. All services performed by the Contractor under this Agreement shall be conducted in a manner consistent with the level of care and skill ordinarily exercised by _______________ professionals specially qualified to provide the services required by the City.
2. Contractor Qualifications. Contractor represents and warrants to City that Contractor, and all of Contractor’s employees, agents or volunteers (the “Contractor Parties”), have in effect and shall maintain in full force throughout the Term of this Agreement all licenses, credentials, permits and any other qualifications required by law to perform the Services and to fully and faithfully satisfy all of the terms set forth in this Agreement. Contractor and any Contractor Parties performing Services shall be competent to perform those Services.
3. Term. The term for performance of the Services shall be the duration of the Project (“Term”), except as otherwise stated in Section 4 below, and Contractor shall complete the Services within the Term. There shall be no extension of the Term without an amendment signed by all Parties and approved by the City’s governing board. Written notice by the City Manager or designee shall be sufficient to stop further performance of the Services by Contractor or the Contractor Parties. In the event of early termination, Contractor shall be paid for satisfactory Services performed to the date of termination. Upon payment by City, City shall be under no further obligation to Contractor, monetarily or otherwise, and City may proceed with the work in any manner City deems proper. The term for performance of the Services shall begin on ___________, 20__, and shall end on _________, 20__ (“Term”), except as otherwise stated in Section 4 below, and Contractor shall complete the Services within the Term. There shall be no extension of the Term without an amendment signed by all Parties and approved by the City’s governing board. Written notice by the City Manager or designee shall be sufficient to stop further B.6.b
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performance of the Services by Contractor or the Contractor Parties. In the event of early termination, Contractor shall be paid for satisfactory Services performed to the date of termination.
Upon payment by City, City shall be under no further obligati on to Contractor, monetarily or otherwise, and City may proceed with the work in any manner City deems proper.
4. Termination. Either Party may terminate this Agreement at any time by giving thirty (30) days advance written notice to the other Party. Notwithstanding the foregoing, City may terminate this Agreement at any time by giving written notice to Contractor if (1) Contractor materially breaches any of the terms of this Agreement; (2) any act or omission of Contractor or the Contractor Parties exposes City to potential liability or may cause an increase in City’s insurance premiums; (3) Contractor is adjudged a bankrupt; (4) Contractor makes a general assignment for the benefit of creditors; or (5) a receiver is appointed because of Contractor’s insolvency. Such termination shall be effective immediately upon Contractor’s receipt of the notice.
5. Payment of Fees for Services. City agrees to pay Contractor based on a lump sum price for Basic Services satisfactorily performed, and based on the hourly rates listed in Exhibit B for any Additional Services satisfactorily performed. Contractor shall not increase these hourly rates over the course of this Agreement. Total fees paid by City to Contractor for Services under the Agreement shall not exceed ___________________ Dollars ($_________), which consists of a lump sum of ___________________ Dollars ($_________) for performance of the Basic Services, and a not-to-exceed amount of ___________________ Dollars ($_________) for performance of any Additional Services. City agrees to make payment for Basic Services within sixty (60) days of receipt of a detailed invoice from Contractor based on percentage of work completed, including any additional supporting documentation that City reasonably requests. City agrees to make payment for Additional Services within sixty (60) days of receipt of a detailed invoice from Contractor based on hours worked and hourly rates, including any additional supporting documentation that City reasonably requests. Contractor shall not submit its invoices to City more frequently than monthly.
5.1 Reimbursement for Certain Expenses. Contractor shall not be reimbursed directly for any of its expenses, as the fees to be paid under this Agreement include compensation for any and all of Contractor’s expenses.
6. Indemnity. Contractor shall defend, indemnify, and hold harmless City and its agents, representatives, officers, consultants, employees, and City Council (collectively, the “City Parties”), from and against any and all claims, demands, liabilities, damages, losses, suits and actions, and expenses (including, but not limited to attorney fees and costs including fees of consultants) of any kind, nature and description (collectively, the “Claims”) directly or indirectly arising out of, connected with, or resulting from any act, error, omission, negligence, or willful misconduct of Contractor, the Contractor Parties or their respective agents, subcontractors, employees, material or equipment suppliers, invitees, or licensees in the performance of or failure to perform Contractor’s obligations under this Agreement, including, but not limited to Contractor’s or the Contractor Parties’ use of the site, Contractor’s or the Contractor Parties’ performance of the Services, Contractor’s or the Contractor Parties’ breach of any of the representations or warranties contained in this Agreement, or for injury to or death of persons or damage to property or delay or damage to the City or the City Parties. Such obligation shall not B.6.b
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be construed to negate, abridge, or reduce other rights or obligations of indemnity, which would otherwise exist as to a party, person, or entity described in this paragraph. The indemnification provided for in this Section 6 includes, without limitation to the foregoing, claims that may be made against City by any taxing authority asserting that an employer-employee relationship exists by reason of this Agreement, and any claims made against City alleging civil rights violations by Contractor or Contractor Parties under the California Fair Employment and Housing Act (“FEHA”).
7. Equipment and Materials. Contractor at its sole cost and expense shall provide and furnish all tools, labor, materials, equipment, transportation services and any other items (collectively, “Equipment”) which are required or necessary to perform the Services in a manner which i s consistent with generally accepted standards of the profession for similar services.
Notwithstanding the foregoing, City shall not be responsible for any damages to persons or property as a result of the use, misuse or failure of any Equipment used by Contractor or the Contractor Parties, even if such Equipment is furnished, rented or loaned to Contractor or the Contractor Parties by City. Furthermore, City may reject any Equipment or workmanship that does not conform to the requirements of this Agreement and Contractor must then promptly remedy or replace it at no additional cost to City and subject to City’s reasonable satisfaction.
8. Insurance. Without in any way limiting Contractor’s liability, or indemnification obligations set forth in Section 6 above, Contractor shall secure and maintain throughout the Term of this Agreement the following insurance: (i) comprehensive general liability insu rance with limits of not less than $_______________ each occurrence and $_______________ in the aggregate; (ii) commercial automobile liability insurance with limits not less than $_____________ each occurrence and $_____________ in the aggregate; (iii) worker’s compensation insurance as required by Labor Code section 3200, et seq.; and (iv) professional liability insurance covering errors and omissions. Neither Contractor nor any of the Contractor Parties shall commence performing any portion of the Services until all required insurance has been obtained and certificates indicating the required coverages have been delivered to and approved by City. All insurance policies shall include an endorsement stating that City and City Parties are named additional insureds. All of the policies shall be amended to provide that the insurance shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days’ prior written notice has been given to City. If such a noti ce is not given or even if City receives a notice, City may, at its sole option, terminate this Agreement. All insurance policies shall include an endorsement stating that it is primary to any insurance or self-insurance maintained by City and shall waive all rights of subrogation against City and/or the City Parties.
A copy of the declarations page of Contractor’s insurance policies shall be attached to this Agreement as proof of insurance.
9. Independent Contractor Status. The Parties agree that Contractor is free from the control and direction of City in connection with Contractor’s performance of the Services. Contractor is hereby retained to provide the specified Services for City, which are outside the usual course of City’s business. Contractor certifies that it is customarily engaged in an independently established trade, occupation, or business to provide the Services required by this Agreement. Contractor understands and agrees that Contractor and the Contractor Parties shall not be considered officers, B.6.b
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employees, agents, partners, or joint venturers of City, and are not entitled to benefits of any kind or nature normally provided to employees of City and/or to which City’s employees are normally entitled.
10. Taxes. All payments made by City to Contractor pursuant to this Agreement shall be reported to the applicable federal and state taxing authorities as required. City will not withhold any money from fees payable to Contractor, including FICA (social security), state or federal unemployment insurance contributions, or state or federal income tax or disability insurance. Contractor shall assume full responsibility for payment of all federal, state and local taxes or contributions, including unemployment insurance, social security and income taxes with respect to Contractor and the Contractor Parties and otherwise in connection with this Agreement.
11. Confidential Information. All City information disclosed to Contractor during the course of performance of services under this Agreement shall be treated as confidential and shall not be disclosed to any other persons or parties excepts as authorized by City, or required by law.
12. Designation of Key Personnel. The individuals specified in the attached Exhibit C shall provide the services set forth herein, and shall be the persons primarily in charge of such work.
No other individuals may provide services for Contractor on this project without first obtaining the written approval of the City Manager.
13. Assignment/Successors and Assigns. Contractor shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations under this Agreement without the prior written consent of City. Subject to the foregoing, this Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the respective Parties.
14. Conflict of Interest. Contractor warrants that neither Contractor, nor any of its employees, agents or subcontractors, has an actual or potential conflict of interest with the City in respect to the Services to be performed under this Agreement for the District. None of such individuals shall, during this term of this Agreement, acquire any interest which conflicts, or could potentially conflict, in any manner with the interests of the District.
15. Notice to Proceed; Progress; Completion. Upon execution of this Agreement by the parties and approval of it by the City Council, City shall give Contractor written notice to proceed with the Services. Such notice may authorize Contractor to render all of the Services contemplated herein, or such portions or phases as may be directed by the City. In the latter event, City shall, in its sole discretion, issue subsequent notices from time to time regarding further portions or phases of the Services. Upon receipt of such notices, Contractor shall diligently proceed with the Services authorized and complete it within the agreed time period.
16. Severability. If any provision of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement.
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17. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever except by written agreement signed by both Parties and approved by the City Council.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its choice of law rules. Any action or proceeding seeking any relief under or with respect to this Agreement shall be brought solely in t he Superior Court of the State of California for the County of San Benito subject to transfer of venue under applicable State law, provided that nothing in this Agreement shall constitute a waiver of immunity to suit by the City.
19. Written Notice. Written notice shall be deemed to have been duly served if delivered in person to Contractor at the address located next to the party signatures below, or if delivered at or sent by registered or certified or overnight mail to the last business address known to the person who sends the notice.
20. Compliance with Law. Each and every provision of law and clause required by law to be inserted into this Agreement shall be deemed to be inserted herein and this Agreement shall be read and enforced as though it were included therein. Contractor shall comply with all applicable federal, state, and local laws, rules, regulations and ordinances. Contractor agrees that it shall comply with all legal requirements for the performance of duties under this Agreement and that failure to do so shall constitute material breach.
21. Non-Discrimination. There shall be no unlawful discrimination in the contracting of persons under this Agreement because of race, color, national origin, age, ancestry, religion, sex, or sexual orientation of such persons.
22. Attorneys’ Fees. If a party to this Agreement commences a legal action against the other party to enforce a provision of this Agreement or seek damages related to the services provided under this Agreement, the prevailing party in the legal action will be entitled to recover from the other party all of its reasonable litigation expense, costs, and fees actually incurred, including reasonable attorneys’ and experts’ fees.
23. Liability of City. Notwithstanding anything stated herein to the contrary, City shall not be liable for any special, consequential, indirect or incidental damages, including but not limited to lost profits in connection with this Agreement.
24. Time. Time is of the essence for performance of the Services under this Agreement.
25. Waiver. No delay or omission by either Party in exercising any right under this Agreement shall operate as a waiver of that or any other right and no single or partial exercise of any right shall preclude either Party from any or further exercise of any right or remedy.
26. Reports. Contractor shall maintain complete and accurate records with respect to the Services rendered and the costs incurred under this Agreement, including records with respect to B.6.b
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any payments to employees and subcontractors. All such records shall be prepared in accordance with generally accepted accounting procedures. Upon request, Contractor shall make such records available to City for the purpose of auditing and copying such records for a period of five years from the date of final payment under this Agreement.
27. Ownership of Documents. All plans, studies, drawings, calculations, reports, specifications, estimates, and other documents or any other works of authorship fixed in any tangible medium of expression, including but not limited to physical drawings, data magnetically or otherwise recorded on computer disks, or other writings prepared or caused to be prepared by the Contractor under this Agreement (“Documents”) shall be and shall remain the property of the City for all purposes, not only as they relate or may relate to the Services but as they relate or may relate to any other project. Contractor will provide the City with a complete set of Documents, and will retain, on the City's behalf, the originals or reproducible copies of all Documents, however stored, in the Contractor’s files for a period of no less than fifteen (15) years. Contractor shall promptly make available to City any original documents it has retained under this Agreement upon request by the City.
28. Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for the City to copy, use, modify, reuse or sublicense any and all copyrights, designs and other intellectual property embodied in the Documents (“Intellectual Property”) not only as they relate or may relate to the Services but as they relate or may relate to other projects. The Contractor shall require any and all subcontractors and subconsultants to agree in writing that the City is granted a similar non-exclusive and perpetual license for the Intellectual Property of such subcontractors or consultants that they provided to Contractor as part of the Services. The compensation for the Services includes compensation not only for any such use of the Intellectual Property in connection with the Services, but also for any re-use of the Intellectual Property by the City in relation to other projects. Contractor represents and warrants that Contractor has the legal right to license the Intellectual Property that Contractor, its subcontractors, or its subconsultants prepare or cause to be prepared under this Agreement.
29. Entire Agreement. This Agreement is intended by the Parties as the final expression of their agreement with respect to such terms as are included herein and as the complete and exclusive statement of its terms and may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement, nor explained or supplemented by evidence of consistent additional terms.
30 Ambiguity. The Parties to this Agreement, and each of them, hereby represent that the language contained herein is to be construed as jointly proposed and jointly accepted, and in the event of any subsequent determination of ambiguity, all Parties shall be treated as equally responsible for such ambiguity.
31. Execution of Other Documents. The Parties to this Agreement shall cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
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32. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy, facsimile, or an original, with all signatures appended together, shall be deemed a fully executed agreement.
33. Warranty of Authority. The persons who have signed this Agreement warrant that they are legally authorized to do so on behalf of the respective parties, and by their signatures to bind the respective parties to this Agreement.
34. Mediation. A party to this Agreement shall, as a condition precedent to initiating any litigation against the other party, demand mediation of any dispute. The parties shall endeavor to include any third-party claimant in the mediation. The parties shall select a mediator and schedule the mediation within thirty (30) days of the initial demand for mediation. If the parties cannot agree on a mediator, the mediator shall be appointed by JAMS. The parties to the mediation, including the parties to this Agreement, shall pay equal shares of the mediator’s fees. Each party shall bear its own attorney’s fees related to the mediation.
35. Forms. Prior to performing any Services, Contractor shall prepare, execute, and submit all forms that may be required by law for this Agreement, including but not limited to an Iran Contract Act certification (Public Contract Code §2204). If a form is necessary, Contractor shall use the City’s versions of these forms, which the City shall make available upon request.
36. Sanctions in Response to Russian Aggression. The City requires Contractor to comply with the Governor’s March 4, 2022, Executive Order N-6-22 (“Order”) relating to any existing sanctions imposed by the United States government and the State of California in response to Russia’s actions in Ukraine, including additional requirements for contracts of $5 million or more.
Failure to comply may result in the termination of the Contract.
* * * * * * * * * * * * * * * * * * * *
CITY OF HOLLISTER CONTRACTOR:
_____________________________
By:
Name:
Title:
By:
Name:
Title:
Address for City Notices: Address for Contractor Notices:
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EXHIBIT A
Scope of Services
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EXHIBIT B
Hourly Rates
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EXHIBIT C
PROJECT STAFF
NAME TITLE HOURLY RATE
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CITY OF HOLLISTER | REQUEST FOR PROPOSALS | MERIDIAN VILLAGE PAGE 1
Exhibit B
REQUEST FOR PROFESSIONAL QUALIFICATIONS AND PROPOSAL
MERIDIAN VILLAGE
PROPOSER IDENTIFICATION
1. Legal name of the Company:
2. Street Address:
3. Mailing Address:
4. Business Telephone:
5. Facsimile Telephone:
6. Email Address:
7. Type of Business: Sole Proprietor Partnership Corporation (State) Other:
8. Business License Number issued by the City where the Proposer’s principal place of business is located.
Number: Issuing City/State:
9. Federal Tax ID NO. DIR No.
10. Proposer’s Project Manager:
11. Contact Person if different from Project Manager:
Signature of Preparer of Proposal
Date:
Anticipated Start Date:
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CITY OF HOLLISTER | REQUEST FOR PROPOSALS | MERIDIAN VILLAGE PAGE 1
Exhibit C
EX PARTE COMMUNICATIONS
Proposers and Proposers’ representatives should not communicate with the City Council members about this RFP. In addition, Proposers and Proposers’ representatives should not communicate outside the procedures set forth in this RFP with an officer, employee or agent of the City, including any member of the evaluation panel, with the exception of the RFP Facilitator, regarding this RFP until after Contract Award. Proposers and their representatives are not prohibited, however, from making oral statements or presentations in public to one or more representatives of the City during a public meeting. A "Proposer" or "Proposer's representative" includes all of the Proposer's employees, officers, directors, consultants and agents, any subcontractors or suppliers listed in the Proposer's proposal, and any individual or entity who has been requested by the Proposer to contact the City on the Proposer's behalf. Please indicate by signing below one of the following two statements.
Only sign one statement.
I certify that Proposer and Proposer’s representatives have not had any communication with a City Councilmember concerning the Initial Study/Mitigated Negative Declaration RFP No. XXX at any time after September 19, 2023.
________________________________
OR
I certify that Proposer or Proposer’s representatives have communicated after September 19, 2023 with a City Councilmember concerning the Initial Study/Mitigated Negative Declaration RFP No. XXXX. A copy of all such communications is attached to this form for public distribution.
_____________________________________
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: August 25, 2023
DEPARTMENT:
DEPARTMENT HEAD:
Police
Carlos Reynoso, Police Chief
TITLE OF ITEM: ORDINANCE NO. 1239 AN ORDINANCE OF THE CITY OF HOLLISTER AMENDING SECTION 10.10.010- DEFINITIONS OF CHAPTER 10.10 OF THE CITY OF
HOLLISTER MUNICIPAL CODE RELATING TO RECREATIONAL VEHICLES AND BOATS
BRIEF DESCRIPTION: Introduction of an amendment to Section 10.10.010 (“Definitions”) of Chapter 10.10 (“Recreational Vehicles and Boats”) of Title 10 (“Vehicles and Traffic”) of the City of Hollister Municipal Code, amending language to clarify definitions, eliminate conflicts, and enhance compliance with existing regulations.
RECOMMENDATION: Introduce the ordinance and schedule a second reading and adoption of the ordinance at the October 2nd City Council Meeting.
DEPARTMENT SUMMARY: The revised definitions will enhance clarity for residents, property owners, and city staff, ensuring a shared understanding of recreational vehicle- related regulations. Clear definitions will promote consistent interpretation and application of the ordinance across the city. The proposed amendments will facilitate compliance and streamline enforcement efforts by providing precise definitions and addressing potential conflicts.
The proposed changes will also ensure that the recreational vehicle ordinance is in line with state regulations and other existing ordinances, reducing potential legal challenges and ensuring a cohesive regulatory framework for recreational vehicles within the City.
The definitions have been updated to reflect the most current statutory definitions within the Health and Safety Code and the Vehicle Code. The revision also addresses the concern regarding truck campers by adding the human habitation element and by specifically excluding truck toppers from the definition of a truck camper.
The recommended ordinance revisions are shown in Attachment 1 in track-changes.
FINANCIAL IMPACT: None.
CEQA: N/A
ATTACHMENTS:
1. Recreational Vehicle Ordinance Definition Revisions (01045046-2xFF256) (002)
2. Recreational Vehicle Ordinance Definition Revisions (Clean)
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
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David Mirrione, City Manager
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ORDINANCE NO. 1239
AN ORDINANCE OF THE CITY OF HOLLISTER AMENDING SECTION 10.10.010- DEFINITIONS OF CHAPTER 10.10 OF THE CITY OF HOLLISTER MUNICIPAL CODE
RELATING TO RECREATIONAL VEHICLES AND BOATS
WHEREAS, Chapter 10.10 of the Hollister Municipal Code regulates recreational vehicles and boats; and
WHEREAS, Chapter 10.10 contains provisions requiring removal and modification to ensure consistency with state law definitions and recent Hollister Municipal Code updates regarding the regulation of recreational vehicles and trailers; and
WHEREAS, the proposed revisions will enhance clarity for residents, property owners, and city staff, ensuring a shared understanding of recreational vehicle-related regulations; and
WHEREAS, clear definitions will promote consistent interpretation and application of Hollister Municipal Code Chapter 10.10; and
WHEREAS, by providing precise definitions and addressing potential conflicts, the proposed amendments will facilitate compliance and streamline enforcement efforts.
NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Hollister does hereby ordain as follows:
That the City Council of the City of Hollister approves the amendment of section 10.10.010 of chapter 10.10 of the City of Hollister Municipal Code relating to Recreational Vehicles and Boats.
INTRODUCED at a regular City Council meeting on the 18th day of September 2023.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a Regular Meeting held this 18th day of September, 2023, by the following vote:
Mia Casey, Mayor
ATTEST:
Jennifer Woodworth, MMC, City Clerk
APPROVED AS TO FORM:
Lozano Smith Attorneys at Law
Mary F. Lerner, City Attorney
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I, JENNIFER WOODWORTH, MMC, City Clerk of the City of Hollister, do hereby certify that the attached Ordinance No. 1239 is an original Ordinance, or true and correct copy of a City Ordinance, duly adopted by the Council of the City of Hollister at a regular meeting of said Council held on the 18th day of September, 2023, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Hollister this City Council day of September, 2023.
Jennifer Woodworth, MMC
City Clerk of the City of Hollister
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10.10.010 Definitions.
For the purposes of this chapter:
Boat means a vessel for transport by water.
Public right-of-way means a street, alley, municipal parking lot, or public property belonging to the city of Hollister.
Recreational vehicle means a motorhome, travel trailer, truck camper, camping trailer, or other vehicle or trailer, with or without motive power, designed or altered for hum an habitation for recreational, emergency, or other human occupancy and specifically includes the following:
1. Recreational Vehicle means a motor home, travel trailer, truck camper, or camping trailer, with or without motive power, designed for human habitation for recreational, emergency, or other occupancy, that meets all fo the following criteria: (1) it contains less than 320 square feet of internal living room area, excluding built -in equipment, including, but not limited to, wardrobe, closets, cabinets, kitchen units or fixtures, and bath or toilet rooms; (2) it contains four-hundred (400) square feet or less of gross area measured at maximum horizontal projections; (3) it is built on a single chassis; and (4) it is either self-propelled, truck-mounted, or permanently towable on the highways without a permit.
2. Truck Camper means a portable unit, consisting of a roof, floor, and sides, designed to be loaded onto, and unloaded from, a truck and designed for human habitation for recreational or emergency occupancy. “Slide-in camper” means a truck camper. A “truck topper” is not a truck camper.
3. Camp Trailer means a vehicle designed to be used on a highway, capable of human habitation for camping or recreational purposes, that does not exceed sixteen feet (16’) in overall length from the foremost point of the trailer hitch to the rear extremity of the trailer body and does not exceed ninety-six inches (96”) in width and includes any tent trailer. Where a trailer telescopes for travel, the size shall a pply to the trailer as fully extended. A camp trailer shall not be deemed to be a trailer coach.
4. Camper means a structure designed to be mounted upon a motor vehicle and to provide facilities for human habitation or camping purposes.
5. Fifth-wheel Travel Trailer means a vehicle designed for recreational purposes to carry persons or property on its own structure and so constructed as to be drawn by a motor vehicle by means of a kingpin connecting device.
6. House Car means a motor vehicle originally designed, or permanently altered, and equipped for human habitation, or to which a camper has been permanently attached.
7. Trailer Coach means a vehicle, other than a motor vehicle, designed for human habitation or human occupancy for industrial, professional, or co mmercial purposes, Formatted: Indent: First line: 0.33"
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for carrying property on its own structure, and for being drawn by a motor vehicle. A “park trailer,” as described in California Health and Safety Code section 18009.3, is a trailer coach.
8. Auxiliary Dolly means a. A vehicle, not designed for carrying persons or property on its own structure, which is so constructed and used in conjunction with a semitrailer as to support a portion of the weight of the semitrailer and any load thereon, but not permanently attached to the semitrailer, although a part of the weight of such dolly may rest on another vehicle.
92. Bus means a. A motor vehicle designed for carrying more than ten persons including the driver and used or maintained for the transportation of passengers. 103. Commercial Coach. A vehicle, with or without motive power, means a structure transportable in one or more sections, designed and equipped for human occupancy for industrial, professional, or commercial purposes, including a trailer coach.
4. Mobilehome. A trailer coach which is in excess of 102 inches in width, or in excess of 40 feet in overall length measured from the foremost point of the trailer hitch to the rear extremity of the trailer.
5. Motor Home. A vehicle, with or without motive power, designed for human habitation for recreational or emergency occupancy.
116. Motor Truck means a. A vehicle, designed, used or maintained primarily for the transportation of property and which has an unladen weight in excess of 6,500 pounds.
127. Semitrailer means a. A vehicle with a gross weight of more than 6,000 pounds, designed for carrying persons or property, used in conjunction with a motor vehicle, and so constructed that some of its weight and that of its load rests upon, or is carried by, another vehicle.
8. Tent Trailer. A vehicle, with or without motive power, designed for human habitation for recreational or emergency occupancy.
139. Trailer means a. A vehicle designed for carrying persons or property on its own structure and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon any other vehicle and which has a wheel base in excess of four feet.
140. Truck Tractor means a. A motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the weight of the vehicle and load so drawn.
151. Watercraft means a. A boat or other vessel that travels on water, including but not limited to, boats, jet skis, wave runners, or any other similar personal watercraft or vessel.
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162. All-Terrain Vehicles means a. A recreational vehicle designed for or capable of travel over rough ground, including but not limited to, 4-wheelers, 3-wheelers, ATVs, dune buggies, and other similar type vehicles.
Unladen Weight means the weight of the vehicle equipped and ready for operation on the road including the fenders, body, equipment required by law, any special cabinets, boxes or body parts permanently attached to the vehicle, oil in the motor, radiator full of water, w ith five gallons of gasoline or equivalent weight of other motor fuel.
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10.10.010 Definitions.
For the purposes of this chapter:
Public right-of-way means a street, alley, municipal parking lot, or public property belonging to the city of Hollister.
Recreational vehicle means a motorhome, travel trailer, truck camper, camping trailer, or other vehicle or trailer, with or without motive power, designed or altered for human habitation for recreational, emergency, or other human occupancy and specifically includes the following:
1. Recreational Vehicle means a motor home, travel trailer, truck camper, or camping trailer, with or without motive power, designed for human habitation for recreational, emergency, or other occupancy, that meets all fo the following criteria: (1) it contains less than 320 square feet of internal living room area, excluding built-in equipment, including, but not limited to, wardrobe, closets, cabinets, kitchen units or fixtures, and bath or toilet rooms; (2) it contains four-hundred (400) square feet or less of gross area measured at maximum horizontal projections; (3) it is built on a single chassis; and (4) it is either self-propelled, truck-mounted, or permanently towable on the highways without a permit.
2. Truck Camper means a portable unit, consisting of a roof, floor, and sides, designed to be loaded onto, and unloaded from, a truck and designed for human habitation for recreational or emergency occupancy. “Slide-in camper” means a truck camper. A “truck topper” is not a truck camper.
3. Camp Trailer means a vehicle designed to be used on a highway, capable of human habitation for camping or recreational purposes, that does not exceed sixteen feet (16’) in overall length from the foremost point of the trailer hitch to the rear extremity of the trailer body and does not exceed ninety-six inches (96”) in width and includes any tent trailer. Where a trailer telescopes for travel, the size shall apply to the trailer as fully extended. A camp trailer shall not be deemed to be a trailer coach.
4. Camper means a structure designed to be mounted upon a motor vehicle and to provide facilities for human habitation or camping purposes.
5. Fifth-wheel Travel Trailer means a vehicle designed for recreational purposes to carry persons or property on its own structure and so constructed as to be drawn by a motor vehicle by means of a kingpin connecting device.
6. House Car means a motor vehicle originally designed, or permanently altered, and equipped for human habitation, or to which a camper has been permanently attached.
7. Trailer Coach means a vehicle, other than a motor vehicle, designed for human habitation or human occupancy for industrial, professional, or commercial purposes, for carrying property on its own structure, and for being drawn by a motor vehicle. A F.1.b
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“park trailer,” as described in California Health and Safety Code section 18009.3, is a trailer coach.
8. Auxiliary Dolly means a vehicle, not designed for carrying persons or property on its own structure, which is so constructed and used in conjunction with a semitrailer as to support a portion of the weight of the semitrailer and any load thereon, but not permanently attached to the semitrailer, although a part of the weight of such dolly may rest on another vehicle.
9. Bus means a motor vehicle designed for carrying more than ten persons including the driver and used or maintained for the transportation of passengers.
10. Commercial Coach means a structure transportable in one or more sections, designed and equipped for human occupancy for industrial, professional, or commercial purposes, including a trailer coach.
11. Motor Truck means a vehicle, designed, used or maintained primarily for the transportation of property and which has an unladen weight in excess of 6,500 pounds.
12. Semitrailer means a vehicle with a gross weight of more than 6,000 pounds, designed for carrying persons or property, used in conjunction with a motor vehicle, and so constructed that some of its weight and that of its load rests upon, or is carried by, another vehicle.
.
13. Trailer means a vehicle designed for carrying persons or property on its own structure and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon any other vehicle and which has a wheel base in excess of four feet.
14. Truck Tractor means a motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the weight of the vehicle and load so drawn.
15. Watercraft means a boat or other vessel that travels on water, including but not limited to, boats, jet skis, wave runners, or any other similar personal watercraft or vessel.
16. All-Terrain Vehicles means a recreational vehicle designed for or capable of travel over rough ground, including but not limited to, 4-wheelers, 3-wheelers, ATVs, dune buggies, and other similar type vehicles.
Unladen Weight means the weight of the vehicle equipped and ready for operation on the road including the fenders, body, equipment required by law, any special cabinets, boxes or body parts permanently attached to the vehicle, oil in the motor, radiator full of water, w ith five gallons of gasoline or equivalent weight of other motor fuel.
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: September 5, 2023
DEPARTMENT:
DEPARTMENT HEAD:
Recreation
Tina Garza, Recreation Services
Manager
TITLE OF ITEM: RESOLUTION NO. 2023-180, A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING A SUPPLEMENTAL APPROPRIATION IN THE AMOUNT OF $20,123.95 FOR THE SUNNYSLOPE VILLAGE LANDSCAPING
ENHANCEMENTS AND IVY REMOVAL PROJECT
BRIEF DESCRIPTION: This resolution will authorize a supplemental appropriation to cover costs for the Sunnyslope Village enhancement project that includes overgrown ivy removal and landscape enhancements at the Beverly Drive/Sunnyslope Rd and Beverly Drive/Hillcrest Rd entrances.
RECOMMENDATION: Adopt the resolution approving the supplemental appropriation of $20,123.95 for landscape enhancements at Sunnyslope Village and authorize the Mayor to sign an agreement with Brightview Landscaping.
DEPARTMENT SUMMARY: To enhance the beauty and visibility at Sunnyslope Village, staff requested quotes from the three city landscapers. The scope of work includes ivy removal from the sound walls, solar lighting, drip system irrigation, low maintenance, and drought-tolerant landscaping at Beverly Drive/Sunnyslope Rd and Beverly Drive/Hillcrest Rd entrances.
Having drought-tolerant plants, where water conservation is crucial due to frequent droughts and water scarcity, offers several significant benefits. Drought-tolerant plants require less water than traditional, water-thirsty landscaping. These plants are adapted to the arid climate and can withstand periods of drought without suffering from water stress. Due to the low maintenance these plants require less maintenance, which saves time, effort, and money on care and irrigation. Adding solar lighting to enhance and improve the landscaping project offers several benefits. Solar lights have a long life span and require minimal maintenance. Well-placed solar lighting enhances safety by illuminating pathways and potential hazards. It also improves security by deterring intruders and providing visibility around the property. The final step is removing ivy so staff can repair and paint the sound wall. This is a practical and necessary step to ensure structural integrity, aesthetics, and long -term durability. Enhancing the landscaping at Sunnyslope Village with designed lighting, drought-tolerant plants, ivy removal, and a drip system irrigation creates a captivating and functional outdoor space that residents can enjoy.
Upon completion of the aforementioned work, city staff will be painting the soundwalls in Sunnyslope Village.
FINANCIAL IMPACT: $20,123.95 from the General Fund
CEQA: N/A
ATTACHMENTS:
1. 2023-9-12 APPROPRIATION -Sunnyslope Enhancement Project G.1
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2. 2023-09-13 BrightView Landscape Enhancement Agreement 4864-8342-0799 1
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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RESOLUTION NO. 2023-180
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER APPROVING A SUPPLEMENTAL APPROPRIATION IN THE AMOUNT OF $20,123.95 FOR THE
SUNNYSLOPE VILLAGE LANDSCAPING ENHANCEMENTS AND IVY REMOVAL PROJECT
WHEREAS, funding is necessary for the landscape enhancements, and removal of ivy at Sunnyslope Village; and
WHEREAS, the necessary appropriations are identified in the supplemental appropriation; and
WHEREAS, the projected funding is planned as follows:
• Removal of overgrown ivy; and
• Improve the landscaping space at the entrances at Beverly Drive/Sunnyslope Rd and Beverly Drive/Hillcrest Rd entrances with drought-resistant landscaping, solar lighting, and drip irrigation.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Hollister approves the supplemental appropriation of $20,123.95 for sound wall repairs, removal of overgrown ivy, and landscape enhancements at Sunnyslope Village.
BE IT FURTHER RESOLVED THAT, the City Council of the City of Hollister authorizes the Mayor to execute an agreement with Brightview Landscaping for sound wall repairs, removal of overgrown ivy, and landscape enhancements at Sunnyslope Village.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a Regular Meeting held this 18th day of September, 2023, by the following vote:
Mia Casey, Mayor
ATTEST:
Jennifer Woodworth, MMC, City Clerk
APPROVED AS TO FORM:
Lozano Smith Attorneys at Law
Mary F. Lerner, City Attorney
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I, JENNIFER WOODWORTH, MMC, City Clerk of the City of Hollister, do hereby certify that the attached Resolution No. 2023-180, is an original Resolution, or true and correct copy of a City Resolution, duly adopted by the Council of the City of Hollister at a regular meeting of said Council held on the 18th day of September, 2023, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Hollister this City Council day of September, 2023.
Jennifer Woodworth, MMC
City Clerk of the City of Hollister
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APPROPRIATION ADJUSTMENT
1. TRANSFERS OF APPROPRIATIONS WITHIN CLASSIFICATIONS OF EXPENDITURES (i.e. BETWEEN PROFESSIONAL SERVICES AND SUPPLIES EXPENSE) MAY BE SUBMITTED DIRECTLY TO FINANCE WITH DEPARTMENT HEAD’S SIGNATURE.
2. TRANSFERS OF APPROPRIATIONS BETWEEN CLASSIFICATIONS OF EXPENDITURES (i.e. BETWEEN SALARIES AND SERVICES AND SUPPLIES) MUST BE APPROVED BY THE CITY MANAGER.
3. TRANSFERS OF APPROPRIATIONS BETWEEN FUNDS OR COST CENTERS MUST BE APPROVED BY THE CITY COUNCIL.
4. INCREASE IN APPROPRIATIONS NEEDS TO BE OFFSET BY ADDITIONAL REVENUE SOURCE OR AVAILABLE FUND BALANCE.
(ROUND UP TO WHOLE DOLLAR)
Account Project
Department/ Account Title Fund #Cost Center Number Task #Increase Decrease Parks and Recreation 101 8050 710040 20123.95
Contingency line item 101 1100 999999 $20,123.95
Total $20,123.95 $20,123.95
Explanation of Transaction:
Sunnyslope Village Landscape Enhancement Project in the amount of $20,123.95.
Prepared by Tina Garza Date September 12, 2023
Department Head
FOR ADMINISTRATION AND FINANCE OFFICE ONLY
Approved
for Entry Date
Finance Office
Approved Date Journal No.
City Manager
Date Resolution No.
City Clerk
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1 CITY OF HOLLISTER
DEPARTMENT OF PARKS AND RECREATION
PROGRAM SERVICES AGREEMENT
This agreement (“Agreement”) is made and entered into this 18th Day of September 2023 (the “Effective Date”), by and between the City of Hollister (“City”), a municipal corporation, and BrightView Landscape Service, Inc. (“Contractor”).
RECITALS
A. The Department of Parks and Recreation operates recreation programs for the purpose of providing recreational and enrichment opportunities to the general public; and
B. The operation of said program will mutually benefit the parties hereto and the residents of the City of Hollister and
C. Contractor has represented that they have the knowledge, skills and ability to provide the services identified herein.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants contained herein, the Parties agree as follows:
1. Services. Contractor shall perform the following described program services: install drip irrigation, solar lights, drought-tolerant landscaping, and ivy removal.
2. Term and Location. Services shall be provided beginning September 19, 2023, and completed by October 6, 2023.
3. Payment. Contractor agrees to accept the following payment from City for the above specified services: $20,123.95.
Contractor shall be paid by warrant of the City upon submission to the City’s Director of Administrative Services of a written invoice showing the nature of the program services provided and any additional information which may be required. No deductions shall be made by City from any amount due Contractor for State or Federal taxes, retirement, benefits or insurance of any type or description. It shall be the duty and responsibility of Contractor to maintain his or her own records for tax purposes and to provide his or her own retirement and insurance coverage.
4. Independent Contractor/Business. Contractor acknowledges, understands and agrees this Agreement is by and between the City and the Contractor and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture, or association, as between the City and the Contractor. The employees and agents of one party shall not be, or be construed to be, the employees or agents of the other party for any purpose whatsoever. The Contractor shall be solely liable and responsible for providing to, or on behalf of, all persons performing work pursuant to this Agreement all compensation and benefits. The City shall have no liability or responsibility for the payment of any salaries, wages, G.1.b
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2 unemployment benefits, disability benefits, Federal, State, or local taxes or other compensation, benefits, or taxes for any personnel provided by or on behalf of the Contractor. The Contractor understands and agrees that all persons performing work pursuant to this Agreement are, for purposes of Workers’ Compensation liability, solely employees of the Contractor and not employees of the City. The Contractor shall be solely liable and responsible for furnishing any and all Workers’ Compensation benefits to any person as a result of any injuries arising from or connected with any work performed by or on behalf of the Contractor pursuant to this Agreement.
5. Equipment. Contractor shall provide, at his or her sole cost and expense, any and all equipment, material, and/or supplies required for the performance of program services hereunder.
6. Termination of Agreement. This Agreement shall terminate and be of no further force or effect upon the final day of program services as specified above. No extension or modification of this Agreement shall be valid or binding unless in writing and signed by the parties hereto. City may terminate this Agreement at any time, with or without cause, by written notice to Contractor. Contractor may terminate this Agreement by providing at least fifteen (15) days written notice to City. Notice to City shall be complete when placed in first class mail, postage pre-paid, and in a sealed envelope, legibly addressed to the Hollister Recreation Department, 300 West Street, Hollister, CA 95023. Notice to Contractor shall be deemed complete when so posted and sent by City to the address for Contractor below set forth, unless Contractor provides City with a written notice of change of address in the manner above provided.
7. Assignment and Delegation. The Contractor shall not assign its rights or delegate its duties under this Agreement, or both, whether in whole or in part, without the prior written consent of the City, in its discretion, and any attempted assignment or delegation without such consent shall be null and void. For purposes of this section, City consent shall require a written Amendment to the Agreement, which is formally approved and executed by the parties. Any payments by the City to any approved delegate or assignee on any claim under this Agreement shall be deductible, at the City’s sole discretion, against the claims, which the Contractor may have against the City.
8. Time of the Essence. Time is of the essence of each and every portion of the Agreement. This Agreement represents the sole and complete understanding between the parties and incorporates herein any and all oral or written representatives express or implied by the between the parties and each of them prior to the execution hereof with regard to this matter.
9. Indemnification. Contractor agrees to hold City, its elected and appointed officers, employees, agents and volunteers harmless from any liability whatsoever arising from and/or relating to this Agreement, including any injury to Contractor or damage to the property of Contractor received or sustained in the performance of his or her duties under this Agreement and Contractor accepts, assumes and acknowledges all risks and hazards to which Contractor may be exposed during the performance of program services hereunder.
10. Damage to City Facilities, Buildings or Grounds.
A. Contractor shall repair, or cause to be repaired, at its own cost, any and all damage to City facilities, buildings, or grounds caused by the Contractor or employees or agents of the Contractor. Such repairs shall be made G.1.b
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3 immediately after the Contractor has become aware of such damage, but in no event later than thirty (30) days after the occurrence.
B. If Contractor fails to make timely repairs, City may make any necessary repairs. All costs incurred by City, as determined by City, for such repairs shall be repaid by Contractor by cash payment upon demand.
11. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. The Contractor agrees and consents to the exclusive jurisdiction of the courts of the State of California for all purposes regarding this Agreement and further agrees and consents that venue of any action brought hereunder shall be exclusively in the County of San Benito.
12. Counterparts/Electronic Signature. This Agreement may be executed in counterparts, including both counterparts that are executed on paper and counterparts that are in the form of a digital signature, meeting the requirements of California Government Code section 16.5. All executed counterparts shall constitute one agreement, and each counterpart shall be deemed an original.
13. Waiver. No waiver by the City of any breach of any provision of this Agreement shall constitute a waiver of any other breach or of such provision. Failure of the City to enforce at any time, or from time to time, any provision of this Agreement shall not be construed as a waiver thereof. The rights and remedies set forth in this Agreement shall not be exclusive and are in addition to any other rights and remedies provided by law.
14. Entire Agreement. The documents and exhibits attached hereto constitute the entire Agreement between the City and the Contractor for the provisions of the services stated herein. Statements or representations of any kind not embodied herein shall be of no force and effect. This Agreement may be modified only in writing by mutual agreement.
AGREEMENT ACKNOWLEDGEMENT
The undersigned has read this Agreement, fully understands its terms and conditions, and confirms that this Agreement is being signed freely and voluntarily.
City of Hollister CONTRACTOR
Mia Casey, Mayor Signature
Address
City/Zip
Contact Number
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STAFF REPORT
CITY COUNCIL REGULAR MEETING AGENDA
MEETING DATE: SEPTEMBER 18, 2023
SUBMITTED: June 7, 2023
DEPARTMENT:
DEPARTMENT HEAD:
Housing
Christine Hopper, Development
Services Director
TITLE OF ITEM: RESOLUTION NO. 2023-181, A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HOLLISTER APPROVING A MARKETING PLAN AND AFFORDABLE
HOUSING AGREEMENT BETWEEN KB HOMES AND THE CITY OF HOLLISTER FOR THE
AFFORDABLE HOUSING UNITS
BRIEF DESCRIPTION: Review and approve a resolution to accept the Marketing Plan and Affordable Housing Agreement with KB Homes for the West of Fairview Development Affordable Housing Units.
RECOMMENDATION: Adopt a resolution to approve the Marketing Plan and Affordable Housing Agreement with KB Homes for the West of Fairview Development Affordable Housing Units.
DEPARTMENT SUMMARY: The West of Fairview Development is composed of 507 single- family units, sixty-six (66) cluster units, and a 100-unit rental apartment complex. Of the six-six (66) cluster units, thirty-three (33) are restricted moderate-income affordable units. The West of Fairview Project Development Agreement was recorded on December 6, 2000 instrument 2000- 0016461. Following the recorded Development Agreement, the City of Hollister approved a settlement agreement along with two Development Agreement amendments instruments 2013- 0003414 and 2021-0009729, respectively.
A requirement of the Development Agreement is to produce a thorough written marketing plan approved by the City of Hollister and implemented by the Developer, KB Homes. The purpose of this Marketing Plan is to implement an affirmative and fair marketing plan for all thirty-three (33) restricted moderate-income affordable units.
During discussions with KB Homes, the Developer has requested the City of Hollister to agree and exercise its right, as provided in the Development Agreement, to select a private firm to assist in the entire application review process. With staffing limitations and to ensure fairness amongst all applicants the City of Hollister Staff recommend working with KB Homes to select a private 3rd party firm to administer the application process. KB Homes and the City of Hollister recommend using the firm, HouseKeys, to manage the application process and assist in vetting qualified buyers. KB Homes has entered into a separate direct contract with the selected 3rd party firm and there are no added fees to the City of Hollister for the service. The agreement between KB Homes and HouseKeys is included in the material.
Key features of the marketing plan indicate all digital and printed marketing material will be provided in both English and Spanish with the fair housing logo. To reach various demographics HouseKeys will place advertisements in two local and one surrounding newspaper publications.
To better engage the local market, HouseKeys will also work with local real estate agents, local mortgage lenders, and appropriate businesses. HouseKeys will establish a specific project webpage, directly on their website, so interested applicants can review marketing/eligibility G.2
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material and complete the entire application process. The current designated website for the project is www.housekeys25.com/brighton .
One important timeline to note, as approved in the settlement agreement, upon final approval of the last model home the Developer must begin to market the restricted units for a minimum three (3) consecutive marketing periods. Each marketing period is a minimum of 180 days.
During each marketing period, if an affordable housing unit is not in escrow with a qualified applicant the unit may be sold at the market rate to any purchaser. Up to eleven (11) affordable units can be sold, at market rate, after each marketing period. To meet this specific marketing timeline, the Developer, HouseKeys, and the City of Hollister will begin the marketing period upon approval of the Agreement and the included timeline. To ensure HouseKeys marketing model follows the specific language in the Development Agreement, HouseKeys will market the units and release the application simultaneously. The goal is to process, at minimum, eleven (11) applicants in each period to ensure a restricted unit is not lost to market rate.
To provide a thorough review, this report also includes the buyer documents the future applicants will review and qualified applicants will sign at the time of closing. The buyer documents include: Resale Restriction and Option to Purchase, Deed of Trust, and Promissory Note. Based on the approved Development Agreement, the housing units are restricted for a period of thirty years (30). This means for a period of thirty years (30) from the first qualified homeowners the restricted housing units cannot sell at market-rate and must remain affordable for moderate-income households. Additionally, a few key concepts in the recorded buyer documents indicate all current homeowners must remain in the home as their primary residence and cannot rent/lease any portion of the home. After the first year, the City of Hollister will monitor the restricted housing units to ensure the current homeowners are following the expected regulations.
Lastly, as a condition of approval the City of Hollister must approve a written Affordable Housing Agreement. The Affordable Housing Agreement provides a legal binding guarantee between the City and the Developer, which sets forth the necessary provisions to ensure all requirements regarding the affordable housing units are met. City of Hollister Staff, KB Homes, and HouseKeys have thoroughly discussed all included material, more specifically the Marketing Plan and Affordable Housing Agreement, and these documents follow the requirements stated in the Development Agreements. Staff recommend the City Council of the City of Hollister to review and approve all included material to execute the agreement and execute the marketing process.
Below is a list of the included material for review:
1) Marketing Plan
2) Affordable Housing Agreement
3) Buyer Documents
4) KB Homes & HouseKeys Agreement
FINANCIAL IMPACT: $200 payment from KB Homes to the City of Hollister for completion of review of qualified applications. An estimated $6,600 received to cover anticipated staff time expense.
CEQA: CEQA EXEMPT (CEQA Guidelines 15061(b)(3)). If it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
ATTACHMENTS:
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1. West of Fairview Final Affordable Housing Agreement
2. Exhibit C Brighton Marketing Plan-Final
3. Exhibit D Resale Restriction Agreement and Option to Purchase
4. Exhibit E Excess Proceeds Note
5. Exhibit F Performance Deed of Trust
6. HouseKeys Affordable Housing Admin Agmt - KB Home Brighton at West of Fairview 9.1.23
7. West of Fairview Original Development Agreement
8. award homes stipulated settlement agreement with Hollister
9. West of Fairview Development Agreement Amendment #1
10. West of Fairview Development Agreement Amedment #2
11. HouseKeys Applicant Infographic
THIS REPORT WAS REVIEWED BY THE CITY MANAGER WHO CONCURS WITH THE
STAFF RECOMMENDATION
David Mirrione, City Manager
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RESOLUTION NO. 2023-181
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HOLLISTER APPROVING A
MARKETING PLAN AND AFFORDABLE HOUSING AGREEMENT BETWEEN KB HOMES
AND THE CITY OF HOLLISTER FOR THE AFFORDABLE HOUSING UNITS
WHEREAS, on October 12, 2000, the City of Hollister City Council adopted Ordinance 951 approving a Development Agreement between the City of Hollister and Award Homes Inc., also known as the West of Fairview Project Development; and
WHEREAS, the West of Fairview Project Development Agreement was recorded on December 6, 2000 instrument 2000-0016461; and
WHEREAS, following the recorded Development Agreement, in 2004 the City of Hollister approved a Mutual Release and Settlement Agreement along with two Development Agreement amendments instruments 2013-0003414 and 2021- 0009729, respectively; and
WHEREAS, on June 27, 2007, the Planning Commission of the City of Hollister approved Resolution No. PC 2007-16 approving the tentative map for the West of Fairview Project, subject to certain conditions of approval; and
WHEREAS, indicated within the approved Conditions of Approval the Developer and the City of Hollister must enter into an Affordable Housing Agreement with recorded restrictive covenants for the thirty-three (33) affordable housing units; and
WHEREAS, indicated within the Development Agreement the City of Hollister must approve a Marketing Plan for the Developer to diligently market the thirty -three (33) affordable housing units; and
WHEREAS, the Developer, KB Homes, and City of Hollister staff have negotiated and drafted a Marketing Plan and an Affordable Housing Agreement for City Council consideration; and
WHEREAS, the Developer, KB Homes, is seeking to amend the marketing timeline from three consecutive marketing periods of 180 days to expand the timeframe to one year from the final occupancy per affordable lot; and
WHEREAS, the marketing timeline amendment is defined within the Affordable Housing Agreement; and
WHEREAS, all other terms of the Marketing Plan and Affordable Housing Agreement conform to the City of Hollister’s Condition of Approval and Development Agreement provisions.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Hollister hereby approves the Marketing Plan and Affordable Housing Agreement between KB Homes and the City of Hollister provided in Exhibits A and B, respectively.
PASSED AND ADOPTED, by the City Council of the City of Hollister at a Regular Meeting held this 18th day of September, 2023, by the following vote:
Mia Casey, Mayor
ATTEST:
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Jennifer Woodworth, MMC, City Clerk
APPROVED AS TO FORM:
Lozano Smith Attorneys at Law
Mary F. Lerner, City Attorney
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I, JENNIFER WOODWORTH, MMC, City Clerk of the City of Hollister, do hereby certify that the attached Resolution No. 2023-181, is an original Resolution, or true and correct copy of a City Resolution, duly adopted by the Council of the City of Hollister at a regular meeting of said Council held on the 18th day of September, 2023, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Hollister this City Council day of September, 2023.
Jennifer Woodworth, MMC
City Clerk of the City of Hollister
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1 Recording requested by and when
recorded mail to:
City of Hollister
375 Fifth Street
Hollister, CA 95023
Attention: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§ 6103, 27383
Space above this line for Recorder's use.
AFFORDABLE HOUSING AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
by and between
CITY OF HOLLISTER
and
KB HOME SOUTH BAY INC.
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2 EXHBITS
A: Property Legal Description
B: Restricted Unit Types
C: Affordable Housing Marketing Plan
D: Restriction Agreement
E. Promissory Note
F. Deed of Trust
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3 This Affordable Housing Agreement and Declaration of Restrictive Covenants (this “Agreement) is entered into effective as of [MONTH] [DATE], [YEAR] (“Effective Date”) by and between the City of Hollister, a California municipal corporation (the “City”) and KB Home South Bay Inc., a California corporation (“Developer”). City and Developer are hereinafter collectively referred to as the “Parties.”
RECITALS
A. Developer has purchased or shall purchase the real property located at [LOCATION DESCRIPTION] in the City of Hollister, California, identified by APN [APN NUMBER(S)] (the “Property”), and more particularly described in Exhibit A attached hereto.
B. Developer intends to market, construct and sell the Property, a [60]-unit development (the “Project”) which includes thirty-three (33) Restricted Units for Moderate-Income households in accordance with the Development Agreement dated as of October 10, 2000, and the Mutual Release and Settlement Agreement dated May 3, 2004, executed by and between City and Award Homes, Inc., a California Corporation, as assumed by Developer, and as amended from time to time (collectively the “DA”.)
C. The DA provides that thirty-three (33) residential units in the Project shall be affordable to and sold to and occupied by Moderate-Income households for a period of not less than thirty (30) years.
D. Developer intends to market and sell the thirty-three (33) Restricted Units in the Project to Eligible Households.
E. The Parties have agreed to enter into and record this Agreement in order to satisfy the conditions described in the foregoing Recitals. The purpose of this Agreement is to regulate and restrict the sale and occupancy of the Project’s Restricted Units for the benefit of its occupants. The covenants in this Agreement are intended to run with the land and be binding on Developer and Developer’s successors and assigns for the full term of the Agreement.
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 Agreement or the attached exhibits.
1.1.“Affordable Housing Cost” means the sum of all of the following: (i) principal and interest on a mortgage loan and any loan insurance fees associated therewith; (ii) property taxes and assessments; (iii) a reasonable allowance for property maintenance G.2.a
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4 and repairs; (iv) a reasonable allowance for an adequate level of service for utilities including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and refrigeration fuels, but excluding telephone service; (v) homeowner association fees; and (vi) fire and casualty insurance.
1.2.“Eligible Household” means a household which total household gross income does not exceed the maximum income level for a Restricted Unit as specified in Subsection 1.5 and that meets the requirements set forth in Section 3.2.
1.3.“Median Income” means the area median income for San Benito County, California, adjusted for household size, determined periodically by the California Department of Housing and Community Development (“HCD”) as published 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). If HCD ceases to make such determination, Median Income shall be the median income applicable to San Benito County, with adjustments for household size, as determined from time to time by the United States Department of Housing and Urban Development (“HUD”) pursuant to the United State Housing Act of 1937 as amended, or such other method of median income calculation applicable to the City of Hollister that HUD may hereafter adopt in connection with such Act.
1.4.“Moderate Income” means a household whose gross income does not exceed one- hundred twenty percent (120%) of the Median Income.
1.5.“Restricted Unit” means a dwelling unit which is reserved for occupancy as a primary place of residence for no more than one Moderate-Income Eligible Household in accordance with this Agreement.
1.6.Gross Annual Household Income” means the combined adjusted gross (pre-tax) income of all adult persons in a household as calculated pursuant to the Section 8 Program under the United States Housing Act of 1937, as amended, or its successor.
2. Affordable Housing Unit Design. The exterior design of the Restricted Units shall be indistinguishable from market rate units and the number of bedrooms in the Restricted Units shall reflect the household size need reflected in the City’s Housing Element. The lot configurations, building height, and lot coverage limitations and parking requirements shall all meet applicable City zoning, design, building, and development standards.
3. Use and Affordability Restrictions. Except as otherwise provided for in this Agreement, Developer hereby covenants and agrees, for itself and its successors and assigns, that the Project’s thirty-three (33) Restricted Units shall be used solely for the construction, sale, purchase, and occupancy in compliance with the DA, the development approvals granted by the City of Hollister, and the requirements set forth herein. Developer represents and G.2.a
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5 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 Agreement, and Developer covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.
Notwithstanding the foregoing or anything to the contrary contained herein, if the terms of financing for the Project require greater affordability restrictions than those imposed hereby, the requirements of such other financing shall prevail for the term thereof.
3.1 Affordability Requirements.
3.1.1 No fewer than thirty-three (33) dwelling units in the Project shall be both sold to and occupied (or if vacant, made available for purchase and occupancy) by Eligible Households.
3.1.2 Restricted Units shall be offered for sale and sold only to Eligible Households subject to the terms and conditions in the Affordable Housing Component of the DA and the Affordable Housing Marketing Plan, attached hereto as Exhibit C, including recordation of deed restrictions on the use and resale of the Restricted Units, attached hereto as Exhibit D.
3.2 Eligibility Requirements. The following restrictions apply to all Restricted Units for the duration of the deed restriction.
3.2.1 Owner Occupancy. The Restricted Unit must be the Eligible Household’s primary residence.
3.2.2 Prohibition Against Renting, Leasing, or Subleasing. Restricted Units may not be rented or subleased in whole or in part. This prohibition includes renting or subleasing any part of the Restricted Unit as a short-term or vacation rental or renting or subleasing a parking space or any other outdoor space purchased with the Restricted Unit.
3.2.3 Prohibition Against Resale to Non-Eligible Households. Restricted Units may only be sold to another Eligible Household. All sales of Restricted Units shall be facilitated through the City.
3.3 Sales Price for Restricted Units and Purchaser Qualifications. Sales prices for Restricted Units shall be calculated based on the assumptions in the Development Agreement. The Affordable Housing Cost for Eligible Households assumes a (i) five percent (5%) down payment, (ii) a thirty (30) year fixed amortized fixed rate loan, and (iii) an interest rate equal to the published Federal Housing Administration (“FHA”) thirty (30) year fixed rate at the time of the household’s application.
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6 Developer agrees to sell the Restricted Units solely to Eligible Households, at not more than the applicable Affordable Housing Cost. Developer shall apply the same purchase terms and conditions to potential buyers of Restricted Units as are applied to all other buyers, except as otherwise required to comply with this Agreement (e.g., income requirements) and/or government subsidy programs. Discrimination based on subsidies received by the prospective homeowner is prohibited.
3.4 Purchase and Sale and Escrow Agreement of a Restricted Unit. The purchase, sale, and escrow agreement between the Developer and the Eligible Household (“Homeowner Purchase Agreement”) of any of Restricted Unit must comply with the following:
3.4.1. The Homeowner Purchase Agreement shall include provisions requiring the prospective purchaser to meet the requirements of this Agreement.
3.4.2. The Homeowner Purchase Agreement shall include a provision substantially as follows:
“Purchaser is hereby advised that the unit and the terms and conditions of the sale of the unit to purchaser are subject to terms and provisions of that certain
AFFORDABLE HOUSING AGREEMENT AND DECLARATION OF
CONVENANT, CONDITIONS, AND RESTRICTIONS (“Affordable
Housing Agreement”) between KB Homes and the City of Hollister, which shall be recorded with the Official Record San Benito County Recorder’s Office as Instrument NO. A copy of that Affordable Housing Agreement (and any amendments thereto) were delivered to the purchaser prior to the purchaser’s execution of the Homeowner Purchase Agreement. Purchaser is encouraged to review the Affordable Housing Agreement. Any questions regarding the Affordable Housing Agreement can be directed to the City of Hollister Development Services Housing Division, 339 Fifth St. Hollister, CA 95023, telephone number (831) 636-4356.”
3.4.3. Within five (5) days after the date of execution of the Homeowner Purchase Agreement by the Developer and the Eligible Household, the Developer shall deliver to the City of Hollister a complete copy of the Homeowner Purchase Agreement and all exhibits and related documents.
3.4.4. The Homeowner Purchase Agreement shall include a provision which requires the close of escrow to be no later than one hundred twenty (120) days after the earlier to occur of the date the Homeowner Purchase Agreement has been signed by both parties or the date the Developer or the Developer’s authorized agent has certified the Eligible Household meets the eligibility requirements of this Agreement and the sale price has been calculated in G.2.a
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7 accordance with this Agreement. Notwithstanding the foregoing, delays in the close of escrow may be permitted provided that Eligible Household can recertify that it remains qualified as an Eligible Housing and Developer and the Eligible Household agree upon a revised purchase price equal to the applicable Affordable Sales Price for the Restricted Unit determined as of the rescheduled closing date for the Restricted Unit.
3.4.5. The Homeowner Purchase Agreement shall require as a condition to the close of escrow to the Restricted Unit that the Eligible Household enters into the Resale Restriction and Option to Purchase described in Exhibit D and shall be duly recorded.
3.4.6. Include representations and warranties for the benefit of Developer and the City of Hollister, from the purchaser of the Restricted Unit that it is an Eligible Household and that purchaser intends to occupy the unit as its primary residence.
4. Non-Discrimination; Compliance with Fair Housing Laws.
4.1 Fair Housing. Developer shall comply with state and federal fair housing laws in the marketing and sale of the units in the Project.
4.2 Non-Discrimination. Developer covenants for 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, sex, sexual orientation, marital status, familial status, ancestry, disability or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Property or the Project, 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, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Project. The foregoing covenant shall run with the land.
All deeds or contracts made or entered into by Developer, its successors or assigns, as to the Project’s thirty-three (33) Restricted Units shall contain the following language:
4.2.1 In Deeds:
“Purchaser agrees for itself and any successor in interest not to discriminate upon the basis of race, color, creed, religion, sex, sexual orientation, marital status, age, disability, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property or any part thereof.
Purchaser covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, G.2.a
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8 religion, sex, sexual orientation, marital status, age, disability, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property or any part thereof, nor shall Purchaser itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sublessees, or vendees in the Property.”
4.2.2 In Contracts:
“There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the sale, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.”
5. Marketing Plan. All Restricted Units shall be marketed pursuant to the written Marketing Plan which has been approved by the Developer and the City, attached hereto as Exhibit C.
The Marketing Plan addresses in detail how Developer shall market the Restricted Units to prospective Eligible Households in accordance with fair housing laws and this Agreement.
Developer shall abide by the terms of the Marketing Plan in marketing the Restricted Units, and throughout the term of this Agreement.
6. Reporting Requirements.
6.1 Monthly Reporting. Commencing with the marketing of the first Restricted Unit and continuing until all Restricted Units have been constructed and initially sold, Developer or Developer’s authorized agent shall submit a monthly report, on the first date of each month to the City which contains, at a minimum, the following information:
6.1.1 Time and method of public notices of availability of Restricted Units for sale.
6.1.2 Listing of all applications for Restricted Units received during the eligible application period.
6.1.3 Report of all applicants selected, identifying those who acquired Restricted Units and those who did not qualify or were deemed ineligible, and a copy of all correspondence to all applicants deemed ineligible.
6.1.4 An inventory of all remaining unsold Restricted Units.
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9 6.1.5 A timeline estimating the future sale date of the unsold Restricted Units.
6.2 Additional Information. Upon final sale of the last Restricted Unit, Developer shall provide any additional non-proprietary non-confidential information reasonably requested by City pertaining to the Project’s thirty-three (33) Restricted Units.
7. Eligible Household Certification.
7.1 Developer or Developer’s Authorized Agent shall obtain from each Eligible Household prior to initial sale of each Restricted Unit, a written certificate that is dated within the previous one-hundred and twenty days (120) days containing all the following in such format and with such supporting documentation as City may reasonably require:
7.1.1. A pre-approval letter from Eligible Household’s mortgage lender stating the lender has completed a review of the Eligible Household’s income and the lender has determined that the income of the Eligible Household is Moderate Income or less.
7.1.2. The identity and age of each member of the Eligible Household; and
7.1.3. The maximum loan amount for which the Eligible Household is qualified.
7.2 Upon final sale of the last Restricted Unit, Developer shall provide to the City all Eligible Household Certification documents described in section 8.1.
7.3 Upon final sale of the last Restricted Unit, Developer shall provide any additional non-proprietary non-confidential information reasonably requested by City pertaining to the Project’s thirty-three (33) Restricted Units
7.4 As a condition prior to the approval of the Eligible Household, the Developer shall certify to the City of Hollister the total Gross Household Income of the prospective Eligible Household. Gross Household Income shall mean all income, from whatever source derived, of all adult household members (eighteen (18) years of age and older) but does not include income from dependents up to age twenty-four (24) that are full time students whether or not such income is exempt from Federal Income Tax. All financial accounts from all household members, regardless of age, must be included in the application. Household Income will be based on current income projected out twelve (12) months from the time of application. Final determination of an applicant’s income level and program eligibility shall be the sole discretion of the City Housing Programs Coordinator and/or their designee.
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10 7.5 The Developer or the Developer’s Authorized Agency will request income certification from all proposed adult Eligible Household member(s) of the Restricted Unit in one or more of the follows methods:
i. Paycheck stubs from the three (3) most recent months;
ii. A true copy of an income tax return for the most recently completed tax year;
iii. Income verification from employers;
iv. Income verification certification from the Social Security Administration and/or the California Department of Social Services if a household member receives assistance from such agencies; or
v. An alternate form of income verification acceptable to the City.
8. Records. The Developer or Developer’s authorized agent shall maintain complete, accurate, and current records pertaining to the Project’s thirty-three (33) Restricted Units, and shall permit any duly authorized representative of the City to inspect records, including records pertaining to income and household size of Eligible Households. All Eligible Household lists, applications, and waiting lists relating to the Project’s thirty- three (33) Restricted Units shall at all times be kept separate and identifiable from any other business of the Developer and shall be maintained as required by the City in a reasonable condition for proper audit and subject to examination during business hours by representatives of the City. Upon final sale of the last Restricted Unit, Developer will provide to City all records described in this section 9.
9. Public Records. Developer understands and acknowledges that all records provided by the Developer to the City are public records and will be subject to disclosure under the California Public Records Act. (Gov. Code, §§ 7920.000, et. seq.)
10. Maintenance Requirements. Prior to the first sale of each unit to an Eligible Household, Developer shall maintain the Restricted Units in compliance with all applicable laws, ordinances, and regulations. Restricted Units shall be maintained in a good and clean condition.
11. Utilization of Restricted Units. All Restricted Units shall be sold and utilized only in accordance with this Agreement. No Restricted Unit shall be withdrawn from the market or otherwise held vacant, except vacancy during the period of time when the Developer is diligently attempting to sell the Restricted Unit to Eligible Households. No Restricted Unit shall be leased or rented.
12. Term of Agreement.
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11 12.1 Term of Restrictions. This Agreement shall remain in effect until all of the Restricted Units are sold. Notwithstanding anything to the contrary contained in the Agreement, if, despite Developer’s efforts in accordance with this Agreement, Developer is unable to sell a Restricted Unit to an Eligible Household on or before the City's final inspection, or issuance of a temporary certificate of occupancy, for the last model home available or designated as an Affordable Housing Unit, and shall extend for at least three one hundred eighty (180) days marketing periods then the affordability restrictions contained herein, including, without limitation those contained in Section 3, above, shall automatically terminate and no longer be applicable to such Restricted Unit and Developer may market and sell such unit as a market rate unit just as though such unit was never subject to this Agreement.
Developer shall market the Affordable Housing Units for a period of up to 180 days following the completion of all model homes available or designated as Affordable Housing Units, or until the Affordable Housing Unit is sold, whichever occurs earlier, as specified in F(2) entitled "Marketing of Affordable Housing Units" herein. The First Marketing Period shall commence upon the City's final inspection, or issuance of a temporary certificate of occupancy, for the last model home available or designated as an Affordable Housing Unit, and shall extend for at least one hundred eighty (180) days thereafter. Following the expiration of at least 180 days from issuance of a temporary occupancy permit for the completion of the designated model home(s), the Developer may give the City (or its designated nonprofit housing provider) written notice of the expiration of the First Marketing Period. Upon giving such notice, the Developer may convert up to one-third (1/3) of the Affordable Housing Units not in escrow (i.e., up to 11 of the 33 total agreed Affordable Housing Units) to unrestricted units, which may then be marketed and sold as market-rate homes.
Following the notice of expiration of the First Marketing Period, a second period shall then commence for marketing the remaining Affordable Housing Unit(s) at the restricted sales prices and terms herein for at least an additional one hundred eighty (180) days (the "Second Marketing Period"). After not less than one hundred eighty (180) days, the Developer may give the City (or its designated nonprofit housing provider) written notice of the expiration of the Second Marketing Period. Upon giving such notice, the Developer may convert up to twenty-two (22) of the Affordable Housing Units that then remain unsold to unrestricted units which may then be marketed and sold as market-rate homes.
Following the notice of expiration of the Second Marketing Period, a third period shall then commence for marketing all remaining Affordable Housing Unit(s) at the restricted sales prices and terms herein for at least an additional one hundred eighty (180) days (the "Third Marketing Period"). After not less than one hundred eighty ( G.2.a
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12 180) days, the Developer may give the City ( or its designated nonprofit housing provider) written notice of the expiration of the Third Marketing Period. Upon giving such notice, the Developer may convert any or all of the remaining agreed Affordable Housing Units to unrestricted units, to be marketed and sold as market-rate homes.
Developer shall have no further obligation to reserve or market any of the previously- designated Affordable Housing Units as restricted affordable housing following the expiration of the Third Marketing Period. Developer's obligations under the Development Agreement, the Settlement Agreement, or any other conditions of approval, to provide, reserve, market, or sell any of the homes in the development as restricted Affordable Housing Units shall be deemed terminated upon the expiration of the Third Marketing Period. All restrictions, resale controls, and other terms of the Affordable Housing Component shall terminate, and shall become null and of no further effect or limitation as to any previously designated Affordable Housing Unit that remains unsold as of the expiration of the Third Marketing Period, and any such units may thereafter be offered for sale, rental, occupancy, or transferred without any such limitations or restrictions.
12.2 Effectiveness Succeeds Conveyance of the Property. Subject to Section 11, above, this Agreement shall remain effective and fully binding on the Project’s thirty-three (33) Restricted Units for the full term hereof regardless of:
12.2.1 Any sale, assignment, transfer, or conveyance of the Property or the Project or any part thereof or interest therein;
12.2.2 Any reconveyance of the deed of trust, unless this Agreement is terminated earlier by City in a recorded writing.
12.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge the terms of this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement in accordance with its terms.
13. Binding Upon Successors: Covenants to Run with the Land.
13.1 Developer hereby subjects its interest in the Project’s thirty-three (33) Restricted Units to the covenants and restrictions set forth in this Agreement. The 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, conveyance or transfer of the Project’s thirty-three (33) Restricted Units or any part thereof or interest therein. Any successor-in-interest to Developer, G.2.a
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13 including without limitation any purchaser, transferee or lessee of the Project’s thirty- three (33) Restricted Units shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and every contract, deed, ground lease or other instrument affecting or conveying the Project’s thirty-three (33) Restricted Units 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, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Developer hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby.
13.2 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 Project’s thirty- three (33) Restricted Units in favor of City.
14. Prior to the close of escrow for the initial sale of each Restricted Unit, Developer shall ensure that the following documentation is entered into and/or obtained:
14.1 Resale Restriction. Developer shall ensure that the City and the buyer execute, acknowledge, and deposit into escrow for recordation against the Restricted Unit a Resale Restriction in the form attached hereto as Exhibit D. The Resale Restriction shall record immediately after the grant deed conveying the Restricted Unit and before any deed of trust or other instrument securing any financing to the buyer.
14.2 Promissory Note Related to the Excess Proceeds. Developer shall require the buyer to execute a promissory note in favor of the City that obligates the buyer to pay the City the amount required under Exhibit E. The promissory note will substantially conform with the form attached hereto as Exhibit E and will be subject to City’s reasonable review and approval.
14.3 Deed of Trust. Developer shall ensure that the City and the buyer execute, acknowledge, and deposit into escrow for recordation against the Restricted Unit a deed of trust in the form attached hereto as Exhibit F to secure performance of the buyer’s covenants under the Resale Restriction and payment of the amounts due under the Promissory Note. The deed of trust shall record immediately after the grant deed conveying the Inclusionary Housing Unit and concurrent with the Resale Restriction, subordinate only to the lien for the first mortgage loan obtained by the buyer to finance the purchase of the Restricted Unit.
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14 15. Fees, Taxes, and Other Levies. Developer shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies, including without limitation possessory interest taxes, if applicable, imposed by any public authority or utility company with respect to the Property or the Project, and shall pay such charges prior to delinquency. However, Developer shall not be required to pay any such charge so long as:
15.1 Developer is contesting such charge in good faith and by appropriate proceedings;
15.2 Developer maintains reserves adequate to pay any contested liabilities; and
15.3 On final determination of the proceeding or contest, Developer immediately pays or discharges any decision or judgement rendered against it, together with all costs, charges and interest
16 Administrative Costs.
16. 1 Administrative costs which are directly attributed to the monitoring and administration of selling an Affordable Housing Unit shall be set by the City and paid by the Developer upon close of escrow. The initial fee shall be set at $200 for each Affordable Housing Unit sold.
17. Recordation: No Subordination. This Agreement shall be recorded in the Official Records of San Benito County. Developer hereby represents, warrants and covenants that absent the written consent of City, this Agreement shall not be subordinated in priority to any lien (other than those pertaining to taxes or assessments), encumbrance, or other interest in the Project’s thirty-three (33) Restricted Units. If at the time this Agreement is recorded, any interest, lien, or encumbrance has been recorded against the Project’s thirty-three (33) Restricted Units in a position superior to the Agreement, upon the request of the City, Developer hereby covenants and agrees to promptly undertake all action necessary to clear such matter from title or to subordinate such interest to this Agreement consistent with the intent of and in accordance with this Section 17, and to provide such evidence thereof as City may reasonably request.
18. Transfer and Encumbrance.
18.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to the DA or this Agreement, Developer shall not make or permit the occurrence of any transfer of the Project without the prior written consent of the City; provided, however, that the following shall not require City consent: (i) the admission of an investor limited partner of Developer; (ii) the transfer, sale or assignment by the investor limited partner of Developer, its successors and assigns, of its ownership interest in Developer; or (iii) the withdrawal, removal, transfer and/or replacement of the general partner of Developer.
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15 18.2 Permitted Transfers. The City shall not withhold its consent to the following transfers:
18.2.1 A transfer from Developer to an entity which is controlled by the Developer; or
18.2.2 A transfer to the construction or permanent lender of the Project or to a third party by foreclosure, deed in lieu of foreclosure or comparable conversion of any lien on the Project or to any subsequent transfer by such lender or third party following such foreclosure, deed in lieu of foreclosure or comparable conversion, provided that:
18.2.2.1 Prior to any of the foregoing transfers (other than a third- party following foreclosure and transfers expressly permitted pursuant to Section 17.1), Developer or the proposed
Developer shall provide City with a copy of the transferee’s organizational documents and the final form of the agreement effectuating such transfer;
18.2.2.2 The Project is and shall continue to be operated in compliance with this Agreement; and
18.2.2.3 Except for transfers permitted pursuant to Section 17.1, the transferee executes all documents reasonably requested by the City with respect to the assumption of the Developer’s obligations under this Agreement, and upon reasonable
request of City, delivers to the City an opinion of transferee’s counsel to the effect that this Agreement is the valid, binding and enforceable obligation of such transferee.
18.2.3 In addition, City shall not unreasonably withhold its consent to the sale, transfer or other disposition of the Project, in whole or in part, provided that:
18.2.3.1 The Project is and shall continue to be operated in compliance with the Agreement;
18.2.3.2 The transferee expressly assumes all obligations of Developer imposed by this Agreement; and/or
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16 18.2.3.3 The transferee executes all documents reasonably requested by the City with respect to the assumption of the
Developer’s obligations under this Agreement.
19. Default and Remedies.
19.1 Events of Default.
19.1.1 The occurrence of any one or more of the following events shall constitute an event of default hereunder (“Event of Default”):
19.1.1.1 The occurrence of a transfer in violation of Section 17 hereof;
19.1.1.2 Subject to Developer’s right to contest the following charges, Developer’s failure to pay taxes or assessments due on the Property, Project, or Restricted Unit(s) and Developer’s failure to cure such default within ten (10) days.
19.1.2 Developer’s default in the performance of any term, provision, or covenant under this Agreement or under any other City document, and unless such provision specifies a shorter cure period for such default, the continuation of such default for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non- monetary default following the date upon which the City shall have given written notice of default to Developer, or if the nature of any such non-monetary default cannot be cured within thirty (30) days, Developer’s failure to commence to cure the default within thirty (30) days and thereafter prosecute the curing of such default with due diligence and in good faith, but in no event longer than one hundred and twenty (120) days from receipt of the notice of default.
19.1.3 At least ten (10) days prior to City’s declaring any default under this Agreement, City shall provide written notice of such default to Developer and to each of Developer’s lenders holding a security interest of record and Developer’s lender shall have the right, but not the obligation, to exercise any cure rights provided for in this Agreement as amended and such cure shall be accepted by City as and to the same extent as cure by Developer.
19.2 Remedies.
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17 19.2.1 If within the applicable cure period, Developer fails to cure a default or fails to commence to cure and diligently pursue completion of a cure, as applicable, or if a cure is not possible, City may proceed with any of the following remedies:
19.2.1.1 Bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory
relief;
19.2.1.2 Pursuant to the deed of trust, foreclose on the Property or Restricted Unit(s);
19.2.1.3 For violations of obligations with respect to sale price for Restricted Units, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Sales Price for Restricted Units; or
19.2.1.4 Pursue any other remedy allowed at law or in equity.
19.2.2 Each of the remedies provided herein is cumulative and not exclusive. The 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 Agreement.
20. Indemnification.
20.1 Notwithstanding the insurance coverage required hereunder, Developer shall defend, indemnify and hold harmless City and its officials, officers, directors, employees, and agents (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities, claims, demands, judgments, actions, court cases, and legal or other expenses (including reasonable attorneys’ fees) which an Indemnified Party may incur as a result of:
20.1.1 Developer’s failure to perform any obligation as and when required by the Agreement; and
20.1.2 Any act or omission by Developer, or any of Developer’s contractors, subcontractors, agents, employees, licensees or suppliers with respect to the Project’s thirty-three (33) Restricted Units, except to the extent that such losses are G.2.a
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18 caused by the gross negligence or willful misconduct of such Indemnified Party.
20.2 Developer shall pay immediately upon an Indemnified Party’s demand any amounts owing under the indemnity provided under this Section. The duty of Developer to indemnify includes the duty to defend the Indemnified Party in any court action, administrative action, or other proceeding brought by any third party arising in connection with the Project’s thirty-three (33) Restricted Units with counsel reasonably approved by City. Developer’s duty to indemnify the Indemnified Parties shall survive the expiration or earlier termination of this Agreement.
21. Miscellaneous.
21.1 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties.
21.2 No Waiver. Any waiver by City of any term or provision of this 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 Agreement or applicable law. No failure or delay by City at any time to require strict performance by Developer of any provision of this 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.
21.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this 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.
21.3.1 All such notices shall be sent by:
21.3.1.1 Personal delivery, in which case notice is effective upon delivery;
21.3.1.2 Certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; or
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19 notice is effective on delivery if delivery is confirmed by the delivery service.
21.3.2 All such notices shall be sent to:
City: City of Hollister
375 Fifth St.
Hollister, CA 95023
Attention: Housing Programs Manager
Developer: KB Home South Bay, Inc.
5000 Executive Parkway, Suite 125
San Ramon, CA 94583
Attention: Michael L. MacDonald
Telephone: (925) 983-4507
Email: [email protected]
21.4 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 Agreement.
21.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another.
21.6 Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or by any person who shall have been designated by the City Manager, without further approval by the governing body of the City.
21.7 Non-Liability of City and City Officials, Employees, and Agents. No member, official, employee, or agent of the City shall be personally liable to Developer or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Developer or its successor or for any obligation of City under this Agreement.
21.8 Headings; Construction. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party.
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20 21.9 Time is of the Essence. Time is of the essence in the performance of this Agreement.
21.10 Governing Law. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law.
21.11 Attorneys’ Fees and Costs. 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.
21.12 Severability. 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.
21.13 Entire Agreement; Exhibits. This Agreement, together with the DA, contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto. The exhibits attached hereto are incorporated herein by this reference.
21.14 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
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21 IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Agreement and Declaration of Restrictive Covenants as of the date first written above.
CITY OF HOLLISTER
a California Municipal Corporation
By: _____________________
Name: [NAME] _____________________________
[TITLE]
KB HOME South Bay, Inc.,
a California corporation
By:
Name:
Title:
By:
Name:
Title:
ATTEST:
By: _____________________
City Clerk
APPROVED AS TO FORM:
By: _____________________
City Attorney
SIGNATURES MUST BE NOTARIZED
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22 Exhibit A
PROPERTY LEGAL DESCRIPTION
Real property in the City of Hollister, County of San Benito, State of California, described as follows:
[LEGAL DESCRIPTIONS]
APN: [APN(S)]
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23 Exhibit B
RESTRICTED UNIT TYPES
Unit Type Accessor Parcel Numbers Lot 1 Three (3) Bedroom [NUMBER(S)] Lot 2 Three (3) Bedroom [NUMBER(S)] Lot 3 Three (3) Bedroom [NUMBER(S)] Three (3) Bedroom [NUMBER(S)]
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24 Exhibit C
AFFORDABLE HOUSING MARKETING PLAN
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25 Exhibit D
Grant Deed Containing Covenants, Conditions and Restrictions Governing Use and Resale of the Property
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AFFORDABLE HOUSING
MARKETING PLAN
West of Fairview
AFFORDABLE HOUSING FOR
MODERATE-INCOME HOMEOWNERS
August 2023
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1 Contents
West of Fairview Overview ........................................................................................................... 1 Section 1: Affordable Sales Price .................................................................................................. 3 Section 2: Eligibility Requirements ............................................................................................... 5 Section 3: Affordable Housing Advertising Plan ........................................................................... 7 Section 4: Affordable Housing Unit Marketing Timeline ............................................................ 10
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2 Section 1.Overview
The Brighton at West of Fairview Development is composed of the sixty-six (66) cluster units, thirty-three (33) of which are restricted moderate-income affordable units.
A requirement of the Development Agreement is to develop a written marketing plan approved by the City. The purpose of this Marketing Plan is to implement an affirmative and fair marketing plan to define the sale process for all thirty-three (33) restricted moderate- income affordable cluster units. The Marketing Plan discusses each step of how the affordable units will be advertised, initial sales price limits, and the application submittal process.
KB Home has contracted with HouseKeys Inc, a local affordable housing program administrator, to help execute the requirements detailed in the Affordable Housing Agreement.
Capitalized terms, unless otherwise defined in this marketing plan, shall the meanings given in the Development Agreement and any following amendments.
Section 2: Sale Price of Affordable Housing Units
Provides examples of the estimated maximum allowed list price based on the definitions in the recorded Development Agreement.
Section 3: Eligibility Requirements
Discusses the income and other eligibility requirements for each Affordable Housing Unit.
Section 4: Affordable Unit Advertising Plan
Details the advertising plan to ensure public awareness of the Affordable Housing Unit opportunity at West of Fairview subdivision as addressed in the Development Agreement.
Section 5: Affordable Unit Marketing Timeline
Details the advertising plan to ensure public awareness of the Affordable Housing Unit opportunity at the West of Fairview subdivision as required by the Development Agreement.
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3 Section 2: Sales Price of Affordable Housing Units
Estimated Affordable Sales Price
As stated in the Development Agreement, the initial Affordable Sales Price for the Affordable Housing Units will be limited to a mortgage payment that does not exceed one- twelfth (1/12) of thirty-five percent (35%) of one-hundred and ten percent (110%) of AMI, for a family of four (4). “AMI” means the area median income for San Benito County determined periodically by the California Department of Housing and Community Development (“HCD”) as published in Section 6932 of Title 25 of the California Code of Regulations.
Exhibit 4 Section (B)(2)(e) of the Development Agreement includes the following assumptions related to the Affordable Housing Unit Housing Costs include:
• Principal and interest on a mortgage loan and any loan insurance fees associated therewith
• Property taxes and assessments
• A reasonable allowance for property maintenance and repairs • A reasonable allowance for an adequate level of service for utilities, including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and refrigeration fuels, but excluding telephone service
• Homeowner Association fees
• Space rent, if the housing unit is situated on rented land • Fire and Casualty Insurance
Exhibit 4 Section E (Sales Price of Affordable Housing Units) of the Development Agreement including the following assumptions related to the Affordable Housing Unit Sale Price:
• Five Percent (5%) down payment
• Thirty (30) year amortized fixed loan rate
• Interest rate equal to the published Federal Housing Administration (“FHA”) 30 year fixed rate
Additionally, to enable the City to calculate the prices, the developer must describe expected homeowners' association fees plus any special assessments, such as Mello-Roos/CFD payments.
Stated in Exhibit 4 Section (E) (Sales Price of Affordable Housing Units) of the Development Agreement the maximum sales price is based upon the imputed family size for the unit is as shown below.
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4 Type of Unit Imputed Number of Person In Household
1 Bedroom 2
2 Bedrooms 3
3 Bedrooms 4
Sample Estimated Maximum Sales Price
Based on the assumptions stated in the Development Agreement and described above a Moderate-Income Affordable Sales Price for a 3-bedroom 4-person unit will be calculated using the factors below. The estimated maximum sales price will be reviewed by all parties and approved by the City of Hollister. The estimated sales price and will be published in the future on all marketing material.
Moderate at 120% 3 Bedroom 4-person Household
Family Size 4
Annual Area Median Income (AMI) $140,200
Maximum Monthly Affordable Housing Cost $4,498
Sales Price at Time of Purchase
Down Payment (5%)
Loan Amount
Interest Rate (FHA 30 year fixed)
Property Tax
Community Facility District
Mortgage Insurance
Homeowner’s Insurance
Utilities
HOA
Maintenance & Repairs
Monthly Mortgage Costs
Monthly Non-Mortgage Costs
Monthly Total Payment
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5 Section 2: Eligibility Requirements
To be eligible for an Affordable Housing Unit, eligible households must be a “Moderate- Income Household” defined as a household that has a gross income that is less than or equal to one-hundred and twenty percent (120%) of AMI as published by California Housing & Community Development (HCD).
2023 HCD Income
Household Size 4 5 6 7 8
Moderate @ 120% $168,250 $181,700 $195,150 $208,650 $222,100
Eligibility Factors
# Eligibility Factor
(Benchmark)
Agency Requirement
1 First-Time Homebuyer No First-Time Homebuyer
2 Asset Limits No Asset Limits
3 Minimum / Maximum
Occupancy
No Min or Max
Qualification Factors
# Qualification Factor
(Benchmark)
Agency Requirement
1 Credit Scores No Credit Score Requirement
2 Housing Payment Ratio
(Front End)
No Housing Payment Ratio Requirement
3 Minimum Down Payment No Down Payment Requirement
All Buyers will be required to sign an Intent to Abide outline the basic requirements of the deed restriction.
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6 Section 3: Affordable Housing Advertising Plan
HouseKeys will focus on the local market and will target potential homebuyers in San Benito and surrounding counties. All publications, emails, flyers and other marketing materials will display Equal Housing Opportunity logo, slogan or state “Equal Housing Opportunity.”
HouseKeys will market the housing opportunities in the project for 90 days prior to giving an official timeline for applicants to enter the Waitlist for available units. Applicant Households will be sent an official announcement with the entry deadline and instructions.
HouseKeys will work with KB Home and the City of Hollister to group all available units into “Opportunity Drawings” which are equivalent to Waitlist Groups tied to specific homes available based on the construction schedule. Since there is only 1 Income Category, Moderate-Income, homes will be placed in 1 Waitlist Group (AKA Opportunity Drawing) at a time.
HouseKeys will place advertisements in 3 publications:
1. Benitolink.com (local San Benito Publication)
2. Free Lance (local Hollister Paper)
3. Gilroy Dispatch
HouseKeys will also reach out to local real estate agents who have had at least 1 sale in San Benito County over the past 24 months. Additionally, HouseKeys will connect with local organizations, including but not limited to:
1. National Hispanic Organization of Real Estate Associates – San Benito County
2. San Benito County Office of Education
3. San Benito County Association of Realtors
4. Hollister Downtown Association
5. Community Services Development Corporation
6. San Benito County Community Foundation
All marketing materials will be in English and Spanish
Application Process
Key Terms:
Application ID – An Application ID List is like an Interest List. Applicants will create an account G.2.b
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7 at www.myhousekeys.com and Request an Application ID for the City of Hollister Affordable Homeownership Program. This will put them on a list to get invitations and notices for available homes in the West of Fairview development as they become available through an Opportunity Drawing.
Opportunity Drawing – An Opportunity Drawing List is like a Waitlist. Application ID holders are invited to “enter” Opportunity Drawings to put themselves in line for specific homes available in the project and grouped by Income Category.
Opportunity Listing - Each individual home is given an Opportunity Listing which is a record that shows property and program details (E.g., number of bedrooms, price, income category, etc.). When Applicants enter the Opportunity Drawing, they will make a selection of their priority choices amongst the available homes.
Lottery – The Lottery is the process of assigning a random number to Applicants who have entered an Opportunity Drawing for a specific property or group of properties. A randomly assigned “Ranking Number” is given to every Opportunity Drawing entrant who submitted their form by the entry deadline. The Ranking Number will determine the selection and processing order.
File Submission Deadline – Applicants who enter the Opportunity Drawing on time and receive a Ranking Number through the lottery process will be required to submit a minimum set of documents by a File Submission Deadline date and time.
Minimum Required Documents – Applicants will be required to submit 1) A Complete Program Application, 2) most recent 2 pay stubs for each income source (or latest tax return for any self-employment income), 3) proof of down payment funds, 4) pre-approval for the correct purchase price from a mortgage lender on the HouseKeys list or a lender who has made contact with HouseKeys to get on the list, 5) Loan Application (Form 1003) with lender information section (section “L”) completed, 6) Uniform Transmittal Summary (Form 1008).
Please note, loan officers must be able to provide applicants with items 4, 5, and 6. The full list of documentation will be available on the HouseKeys website.
Too Incomplete to Review Documents (TIRD) – For the files that are submitted by the File Submission Deadline, an Initial Review will be performed by HouseKeys staff to determine completeness. If a file does not contain the Minimum Required Documents standard, then the file will be labeled Too Incomplete to Review Documents (“TIRD"), and HouseKeys will move on to process and underwrite complete files.
Dedicated Program Website - Applicants will be able to obtain all application materials at the website that HouseKeys has set up for the City of Hollister Affordable Housing Opportunities, www.housekeys25.com/brighton . Applicants will have the opportunity to attend weekly question & answer sessions and will be directed to create an account at www.myhousekeys.com so that they can be assigned an Application ID which will be used to identify them throughout the application, lottery, selection, underwriting, and closing process.
Applicants will be required to attend a pre-application orientation class, either in person at one of the events held in the City of Hollister or an online webinar. HouseKeys will maintain a list of loan officers that applicants can work with who have confirmed that they have reviewed the resale restriction, promissory note, deed of trust, the application process, and are able to lend on the Restricted Housing Units at West of Fairview.
HouseKeys will process and underwrite complete file submissions and issue a decision to G.2.b
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8 approve, deny or suspend an applicant based on the program requirements above. Even though Minimum Required Documents are required to move on to processing and underwriting, a full file containing all supporting documents will be required for final approval.
Applicants will be given a chance to Appeal against the underwriting decision, provided they can provide information to document their claim. HouseKeys will make every effort to respond to Appeal requests within 2 business days. After the Appeal Review, HouseKeys will move on to the next file if there is no credible information to reverse the underwriting decision. HouseKeys will also notify the City of Hollister and KB Home of any Appeal requests it receives.
For each Applicant found to be approved and eligible for the program, HouseKeys will generate an approval letter, financial summary, property confirmation, and a completed Eligibility Summary will be submitted to City of Hollister before the buyer is put into contract. Once this step is completed, HouseKeys will coordinate with the buyer, loan officer, escrow, KB Home and City of Hollister Staff to complete the Purchase Contract, Resale Restriction Agreement, Promissory Note, and Deed of Trust.
Property Confirmation
HouseKeys will coordinate with KB Home Sales Staff to coordinate scheduled site visits on nights and weekends (providing convenient times for affordable housing applicants) once minimum construction milestones are met so that buyers can confirm their choice.
SELECTION PROCESS
HouseKeys will run the Lottery process with Applicants who enter the Opportunity Drawing by the entry deadline. The Lottery can be officially witnessed by City of Hollister Staff and the published results will be made available to the public. Each applicant will be listed by their Application ID and no personally identifiable information will be used in the published results to protect the identity of the applicant.
Section 4: Affordable Housing Units Marketing Timeline
# Milestone Estimated Date
1 Marketing Kick-Off 10/1/2023
2 Entry Deadline for Applicants 11/30/2023
3 File Submission Deadline 12/15/2023
4 Processing & Underwriting 2/15/2023
5 Escrow Closings
(180-Day Period applies to
Buyers in escrow)
2/15/2023 to
4/15/2023
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9 Marketing Kick-Off
1. City of Hollister Affordable Homeownership Program set up on myhousekeys.com a. Program-Dedicated Website set up for www.housekeys25.com/brighton
2. Build Prospective Buyer Pool – Application ID List
a. Approximately 4,159 renter households are in Hollister, CA (rentcafe.com) b. We’ll circulate at least 4,000 flyers to renter-occupied addresses and local offices.
c. Outreach to local agencies, organizations, and institutions
3. Advertisements in local publications
4. HouseKeys will hold at least 2 orientations for local loan officers to show them how to get registered to provide mortgage services to potential buyers
See attached Household Applicant Timeline and File Status Definitions for an explanation of the process that prospective homebuyers will go through.
Monthly Meetings with the City of Hollister
The HouseKeys team will maintain a monthly meeting schedule with Staff and provide a monthly written report to ensure that the pipeline of prospective buyers is review and that the city has enough time to confirm eligibility of applicants chosen and reviewed using the HouseKeys process.
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
1 Space above this line for Recorder’s use.
Escrow No.
Property Address: APN:
ATTENTION TITLE COMPANY:
THIS AGREEMENT IMPOSES RESTRICTIONS UPON RESALE AND REFINANCING.
VIOLATION OF SUCH RESTRICTIONS ENTITLES THE CITY OF HOLLISTER TO
EXERCISE REMEDIES, INCLUDING THE EXERCISE OF AN OPTION TO PURCHASE
THE PROPERTY AT A RESTRICTED PRICE AND FREE OF ALL UNAUTHORIZED LIENS.
IN THE EVENT THAT THE FIRST DEED OF TRUST IS REFINANCED OR A
SUBORDINATE DEED OF TRUST IS RECORDED, NOTICE OF THE REFINANCE
OR NEW LIEN MUST BE SENT TO THE CITY OF HOLLISTER AT ADDRESS LISTED ABOVE.
RESALE RESTRICTION
AGREEMENT AND OPTION TO
PURCHASE
This Resale Restriction Agreement and Option to Purchase (this “Agreement”) is entered into as
of , 20 , by and between the City of Hollister, a municipal corporation (“City”) and and (collectively, “Owner”). City and Owner are collectively referred to herein as the “Parties” and sometimes individually as “Party.”
RECITALS
WHEREAS, Owner has purchased, or intends to purchase, the property locatedproperty located at Street, Hollister, California, (as more particularly described in Exhibit A
attached hereto and incorporated herein, the “Property”);
WHEREAS, the City and the developer of the Property entered into a Development Agreement recorded on December 6, 2020 instrument 2000-0016461. Following the recorded Development Agreement, the City of Hollister approved a settlement agreement along with two Development Agreement amendments instrument 2013-0003414 and 2021- 0009729, respectively,
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Hollister City
375 Fifth Street
Hollister, CA 95023
Attention: Housing
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §27383
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
2 respectively, pursuant to which the Property is designated a restricted for-sale unit to eligible Moderate-Income Households at a below-market rate price;
WHEREAS, in accordance with the approvedthe approved Development Agreement, the intent of the City is to preserve the affordability of the Property for as long as possible;
WHEREAS, Owner has agreed to execute and comply with this Agreement in consideration for the opportunity to purchase the Property at a reduced purchase price; and
WHEREAS, this Agreement restricts the resale price of the Property, restricts the Property to owner-occupancy, and specifies, among other provisions, that City has an option to purchase the Property upon the occurrence of specified events. As described in Section 14 below, in connection with this Agreement, Owner will execute and deliver to City a secured promissory note pursuant to which Owner will be obligated to pay City excess sale proceeds, and a deed of trust for the benefit of City, which shall be recorded against the Property to secure payment of such note and performance of Owner’s obligations under this Agreement.
NOW, THEREFORE, in consideration of the benefits received by Owner, and other good and valuable consideration, the Parties agree as follows:
1. Principal Residence Requirement; Excess Proceeds Note and Performance Deed of Trust. Owner has purchased, or intends to purchase the Property, including any improvements thereon. The Property is designated as a below-market rate unit, and is subject to the terms and conditions set forth in this Agreement. Owner covenants and agrees that Owner will fully and timely comply with all of the provisions of this Agreement, will occupy the Property as Owner’s principal residence, and will not rent or lease the Property or part thereof without the prior written approval of City. Owner shall be considered as occupying the Property as a principal residence if Owner lives in the home located on the Property for at least ten (10) months out of each calendar year. Upon City’s request from time to time, Owner shall provide an affidavit to City certifying that the Property is Owner’s principal residence and shall provide such documents as City may reasonably require to verify compliance with the requirements of this Section.
Owner’s failure to occupy the Property as Owner’s principal residence shall constitute a default under this Agreement entitling City to exercise its option to purchase the Property pursuant to Section 8. In connection with Owner’s acquisition of the Property, Owner shall execute and deliver to City an Excess Proceeds Note substantially in the form attached hereto as Exhibit B (“Excess Proceeds Note”) and shall execute a Performance Deed of Trust substantially in the form attached hereto as Exhibit C (“Performance Deed of Trust”) which shall be recorded against the Property concurrently with the recordation of this Agreement.
2. Covenant Running with the Land. The terms and conditions set forth in this Agreement are intended to run with the land and shall bind Owner and all successors, heirs, grantees and assigns of Owner, unless and until expressly superseded by a subsequently recorded agreement. These terms and conditions shall be made part of each deed subsequently recorded and shall bind each successor in interest until the earlier of: (a) thirty (30) years from the date of recordationof recordation of this Agreement, or (b) the recordation of a subsequent and G.2.c
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
3 superseding
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
4 agreement. This Agreement and the covenants contained herein shall survive delivery of any deed conveying the Property.
3. Representation and Warranty. Owner represents and warrants to City that the financial and other information Owner has provided to City and City’s agents for the purpose of qualifying to purchase the Property was accurate and complete at the time it was provided and remains accurate and complete as of the date of this Agreement. Owner further understands that any material misstatement or misrepresentation shall be deemed to be a material breach of this Agreement and shall be grounds for declaring a default, terminating Owner’s rights in the Property, or seeking other such relief and remedies as are appropriate under the circumstances.
4. Refinance. For purposes of this Agreement, “Refinance” means any voluntary or involuntary refinancing, encumbrance, or other hypothecation of the Property, including, without limitation, any encumbrance of the Property by a mortgage or deed of trust that is recorded after this Agreement. Any Refinance of the Property will be subject to the conditions set forth in this Agreement.
a. Request to Refinance. Owner shall not cause or permit any Refinance of the Property or any interest therein, to or by any person or entity without first delivering written notice to City (a “Request to Refinance”) and obtaining City’s written consent. The Request to Refinance shall provide the name and address of the lender and the proposed terms of the encumbrance, refinancing, or hypothecation. Under no circumstances may Owner encumber, refinance, or otherwise hypothecate the Property for an amount in excess of ninety-five percent (95%) of the Purchase Price as determined pursuant to Section 8.b below.
b. City’s Rights. Within sixty (60) days following receipt of notice of a Request to Refinance, City may, in its sole discretion, do one of the following:
i. Provide written notice of exercise of the City’s Option to Purchase pursuant to Section 8 below, or
ii. Provide written notice of consent to the Refinance, which consent shall be consistent with City’s goal of creating, preserving, maintaining, and protecting housing for persons of low and moderate, or
iii. Provide written notice of denial of the Request to Refinance.
5. Sale Procedure. Any sale, conveyance, assignment, or other transfer of any legal, equitable, or possessory interest in the Property (“Sale”) will be subject to the conditions set forth in this Agreement.
a. Request to Sell. Owner shall not cause or permit any Sale of the G.2.c
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
5 Property or any interest therein, to any person or entity without first delivering written notice to City (a “Request to Sellto Sell”) and allowing sixty (60) days for City to exercise City’s Option to Purchase the Property pursuant to Section 8 below. The Request to Sell shall provide theprovide the proposed sale price and terms.
b. City’s Rights. Within sixty (60) days following receipt of a Request to Sell, City may, in its sole discretion, either provide written notice of exercise of the City’s Option to Purchase or provide a written waiver of City’s Option to Purchase.
6. Conditions of Sale to a Third Party. If Owner has complied with all requirements set forth in Section 5 above and if City provides a written waiver of City’s Option to Purchase, Owner may sell the Property to a third party provided that all of the following conditions are satisfied:
a. Occupancy. The prospective buyer certifies that they intend to occupy the Property as their principal residence;
b. Income. The prospective buyer qualifies as a Moderate-Income Household which means that they do not have a Gross Annual Household Income (defined below) exceeding one hundred twenty percent (120%) of the then-current San Benito County area median income (“Area Median Income”), adjusted for actual household size, as determined and 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 Section 50093(c) of the California Health and Safety Code. “Gross Annual Household Income” means the combined adjusted gross (pre-tax) income of all adult persons in a household as calculated pursuant to the Section 8 Program under the United States Housing Act of 1937, as amended, or its successor.
c. Price. The sale price does not exceed the Purchase Price determined pursuant to Section 8.b below; and
d. Restriction Agreement, Excess Proceeds Note and Performance Deed of Trust. The buyer must execute a new Resale Restriction Agreement and Option to Purchase restricting the resale and refinancing of the Property, in a form provided by City, which shall be recorded concurrently with recordation of the deed transferring title to the Property to the buyer, and the buyer must execute a new Excess Proceeds Note obligating the buyer to pay to the City any excess sales proceeds derived from a future sale of the Property in excess of the permitted Purchase Price, and a Performance Deed of Trust for the benefit of City securing the buyer’s obligations under the Commented [JPT1]: Is this definition compliant with the definition in the DA?
Commented [JS2R1]:
Commented [JS3R1]:
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
6 Excess Proceeds Note and the Resale Restriction Agreement, and such other documents as required by City.
7. Foreclosure. The recording by any lienholder of any notice of default or notice of sale pursuant to California Civil Code Section 2924 et seq. (as such may hereafter be amended or replaced), shall constitute a Request to Sell (as defined in Section 5), entitling the City, or its designee or assignee, to exercise the Option to Purchase pursuant to Section 8, provided, however, that City, or its designee or assignee, must complete such purchase no later than the end of the period established by California Civil Code Section 2924c for reinstatement of a monetary default under the deed of trust or mortgage.
a. Right to Cure. In the event of Owner’s default under a deed of trust or mortgage, City, or its designee or assignee, shall have the same right as Owner to cure defaults and redeem the Propertythe Property prior to foreclosure sale. Such
redemption shall be subject to the same fees, charges, and penalties thatpenalties that would otherwise be assessed against Owner.
Nothing herein shall be construed as creating any obligation on the part of 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.
b. Surplus Funds. In the event City, or its designee or assignee, does not exercise the Option to Purchase and a foreclosure sale is consummated, any Excess Sales Proceeds (defined in Section 14 below) resulting from such foreclosure sale that remain after payment of encumbrances as required by law, shall be paid to City, or its successors or assigns.
8. Option to Purchase. Owner hereby grants to City an option to purchase the Property (“Option to Purchase”) under conditions set forth in this Agreement. The Option to Purchase shall be exercisable upon the occurrence of any of the following: (i) Owner delivers a Request for Sale to City, (ii) a notice of default or notice of sale is recorded against the Property by any lienholder, (iii) a Prohibited Transfer occurs and continues in effect beyond the cure period specified in Section 10, (iv) Owner fails to occupy the Property as Owner’s principal residence and such failure continues for a period of thirty (30) days following written notice of default from City, or (v) a default arises under any other provision of this Agreement and continues beyond any applicable cure period.
a. Assignment. City may assign the Option to Purchase to a governmental or nonprofit organization. City or its assignee may further assign the Option to Purchase to an individual private buyer that qualifies as a Moderate- Income Household, is approved by City, and enters into a Resale Restriction and Option to Purchase Agreement and other documents as required by City. In no event shall City become in any way liable to Owner, nor become obliged in any manner, by reason of the assignment of its right to purchase, nor shall City be in any way obligated or liable to Owner for any failure of Formatted: Not Highlight
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
7 City’s assignee to consummate a purchase of the Property or to comply with the terms of any purchase and sale agreement.
b. Purchase Price. The purchase price for the Property (“Purchase Price”) that shall apply for both the exercise of the Option to Purchase by City or its designee or assignee and for any sale of the Property to a third party, shall be fixed at the lower of the Fair Market Value or [the Adjusted BaseAdjusted B ase
Price] [the Affordable Sales Price], determined as follows:
i. Fair Market Value. The fair market value of the Property (“Fair Market Value”) shall”) shall be determined as follows.
City or its
designee shall have an appraisal of the Property conducted by a neutral professionalneutral professional appraiser of its choice.
Owner may also
have an appraisal of the Property conducted, at Owner’s cost, by a neutral professional appraiser of Owner’s choice. If agreement cannot be reached, the average of the two (2) appraisals shall be deemed to be the Fair Market Value of the Property.
ii. Adjusted Base Price. The “Adjusted Base Price” shall equal the purchase price paid by Owner for the Property plus any prepayment fees paid by Owner at the time Owner purchased the Property (Property (the
“Base Price”) which Base Price is equalis equal to Dollars ($ ), plus an amount, if any, to compensate for any increases in the housing component of the Consumer Price Index, San Francisco-Oakland-San Jose, California, published periodically by the United States Department of Labor, Bureau of Labor Statistics (“Index”). For that purpose, the Index effective as of the date of this Agreement shall be compared with the latest Index available on the date the Property was last occupied in compliance with the Agreement. The percentage increase in the Index, if any, shall be computed, and the Base Price shall be adjusted by that percentage to calculate the Adjusted Base Price.
ii. Affordable Sales Price. Affordable Sales Price means a sales price that will result in an Affordable Ownership Cost for a household whose Gross Annual Household Income does not
exceed 110% of Area Median Income (defined in Section 6.b above) based upon Assumed Household Size (defined below). “Affordable Ownership Cost” means the projected monthly housing cost during the first calendar year of a household's occupancy, as determined by the City, including mortgage G.2.c
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
8 principal and interest payments, mortgage insurance fees, if any, property taxes, reasonable allowances for utilities based upon the established local Housing Authority Utility Allowance and property maintenance and repairs, homeowner's insurance, and homeowners' association dues, if applicable, that in the aggregate the sum of all of the following: (i) principal and interest on a mortgage loan and any loan insurance fees associated therewith; (ii) property taxes and assessments; (iii) a reasonable allowance for property maintenance and repairs based upon the estimated annual home warranty expense; (iv) a reasonable allowance for an adequate level of service for utilities based upon the established local Housing Authority Utility Allowance including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and refrigeration fuels, but excluding telephone service; (v) homeowner association fees; and (vi) fire and casualty insurance
Commented [JPT4]: I recommend defining this phrase
based upon some established index so that it is not subject to interpretation in the future.
Formatted: Indent: Left: 2"
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
9 does not exceed thirty fivethirty-five percent of 110% of Area Median Income. In calculating Affordable Ownership Cost, mortgage payments will be calculated using a thirty year term, an interest rate equal to the current Housing Finance Agency ( interestHFA) interest rate as published by the State’s HFA or an equivalent source and will assume a five percent down payment. “Assumed household size” means, a household with a total number of members equal to the number of bedrooms in the dwelling unit, plus one, consistent with Section 50052.5(h) of the California Health and Safety Code and subject to applicable federal rules (if any). The Property has [ 3 bedrooms ], therefore the Assumed Household Size is [ four ].
c. Improvements. The [Adjusted Base Price] [Affordable Sales Price] shall be increased by the actual cost of any reasonable and substantial structural or permanent fixed improvements made to the Property, provided such improvements were performed with prior written approval from City.
Examples of such improvements include, but are not limited to, structural, permitted additions of square footage or the addition of a pool. No price adjustment will be made except upon presentation to City of written documentation of all expenditures made by Owner for which an adjustment is requested.
d. Deferred Maintenance. The [Adjusted Base Price] [Affordable Sales Price] shall be decreased by an amount to compensate for deferred maintenance costs, which amount shall be determined in the following manner. Upon receipt of a Request to Sell, City or its designee shall be given reasonable right of entry to the Property to determine whether any violations of applicable building, plumbing, electric, fire, or housing codes or of any other provisions of the Hollister Municipal Code exist. In the event deficiencies are noted, City shall obtain estimates of the cost to cure the observed deficiencies. Owner shall cure the deficiencies in a reasonable manner acceptable to City or City’s designee within sixty (60) days of being notified of the results of the inspection, but, in no event, later than close of escrow. Should Owner fail to cure such deficiencies prior to the scheduled date of close of escrow, at the option of City, its designee or assignee, escrow may be closed, title conveyed, and sale proceeds paid to Owner subject to the condition that such funds as are necessary to pay for the curing of such deficiencies (based upon the written estimates obtained by City) will be withheld from the funds due to Owner and shall be released to City or its designee for the purpose of curing such deficiencies.
e. Escrow. If City exercises its Option to Purchase the Property, City Formatted: Not Highlight
Formatted: Not Highlight
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
10 shall open escrow within seven (7) days after delivery of written notice of the exercise of the option. Escrow shall close within ninety (ninety (90) days after the opening of escrow.
f. Disclosures. Owner shall provide City with all disclosures regarding the Property as required by law within seven (7) days after City provides notice ofnotice of the exercise of its Option to Purchase. City’s reviewCity’s andreview and approval of the condition of the Property is a contingency of City’s purchase. If theIf
conditionthe condition of the Property is unacceptable, City shall have thirty (30) days following receipt of all disclosures to cancel the purchase by providing written notice to Owner. . If City doesCity does not provide written notice of cancellation, then this contingency shall be deemed waived.
g. Title. Title to the Property shall be conveyed to City or its assignee by grant deed, free of all monetary liens and encumbrances. All property taxes, assessments and homeowner dues shall be paid current by Owner through the close of escrow.
h. Closing Costs. Closing costs and title insurance shall be paid pursuant to the custom and practice in the County of San Benito at the time of the opening of escrow.
9. Occupancy. Owner shall vacate the Property and deliver possession to City or its assignee upon close of escrow.
Subordination.
This Agreement shall be subordinate to the first deed of trust or mortgage securing a thirty (30) year, fully amortized, fixed rate promissory note for the repayment of funds used entirely for Owner’s purchase of the Property (“First Deed of Trust”), provided the beneficiary of the note is a federally or state chartered bank or savings and loan association qualified to do business in the State of California (“Senior Lien Holder”). City and Owner acknowledge and agree that this Agreement is subject and subordinate in all respects to the liens, terms, covenants, and conditions of the First Deed of Trust. This Agreement is also subject and subordinate to all advances made pursuant to the First Deed of Trust held by a Senior Lien Holder including all sums advanced for the purposes of protecting or further securing the lien of the First Deed of Trust, curing defaults by Owner under the First Deed of Trust, or any other purpose expressly permitted by the First Deed of Trust. Notwithstanding any other provision hereof, the provisions of this Agreement and the City Deed of Trust (defined in Section 14 below) shall be subordinate to the lien of the Senior Lien Holder’s First Deed of Trust and shall not impair the rights of the Senior Lien Holder, or such lender's assignee or successor in interest, to exercise its remedies under the Senior Lien Holder’s First Deed of Trust in the event of default under the Senior Lien Holder’s First Deed of Trust by Owner. Such remedies under the Senior Lien Holder’s First Deed of Trust include the right of foreclosure, acceptance of a deed in lieu of foreclosure, or assignment in lieu of foreclosure. After such foreclosure, acceptance of a deed in lieu of foreclosure or assignment in lieu of foreclosure, this Agreement and the City Deed of Trust shall be forever terminated and shall have Formatted: Right: 0.36", Tab stops: 1.57", Left +
1.57", Left + Not at 1.07"
Formatted: Indent: Left: 1.57", No bullets or
numbering
Formatted: List Paragraph, Right: 0.36", Numbered +
Level: 2 + Numbering Style: a, b, c, … + Start at: 1 +
Alignment: Left + Aligned at: 1.07" + Indent at: 1.57", Tab stops: 1.57", Left + 1.57", Left
Formatted: List Paragraph
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
11 no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Deed of Trust acquires title to the Property pursuant to a deed or assignment in lieu of foreclosure, this Agreement and the City Deed of Trust shall automatically terminate upon such acquisition of title only if (A) a notice of default was recorded under the applicable Senior Lien Holder’s First Deed of Trust or (B) if no notice of default was recorded, City has been given written notice of default under such Senior Lien Holder’s First Deed of Trust with a cure period of at least sixty (60) days and City or its designee shall not have cured the default within such cure period.
10.i. .
9. Subordination. This Agreement shall be subordinate to the first deed of trust or mortgage securing a thirty (30) year, fully amortized, fixed rate promissory note for the repayment of funds used entirely for Owner’s purchase of the Property (“First Deed of Trust”), provided the beneficiary of the note is a federally or state chartered bank or savings and loan association qualified to do business in the State of California (“Senior Lien Holder”). City and Owner acknowledge and agree that this Agreement is subject and subordinate in all respects to the liens, terms, covenants, and conditions of the First Deed of Trust. This Agreement is also subject and subordinate to all advances made pursuant to the First Deed of Trust held by a Senior Lien Holder including all sums advanced for the purposes of protecting or further securing the lien of the First Deed of Trust, curing defaults by Owner under the First Deed of Trust, or any other purpose expressly permitted by the First Deed of Trust. Notwithstanding any other provision hereof, the provisions of this Agreement and the City Deed of Trust (defined in Section 14 below) shall be subordinate to the lien of the Senior Lien Holder’s First Deed of Trust and shall not impair the rights of the Senior Lien Holder, or such lender's assignee or successor in interest, to exercise its remedies under the Senior Lien Holder’s First Deed of Trust in the event of default under the Senior Lien Holder’s First Deed of Trust by Owner. Such remedies under the Senior Lien Holder’s First Deed of Trust include the right of foreclosure, acceptance of a deed in lieu of foreclosure, or assignment in lieu of foreclosure. After such foreclosure, acceptance of a deed in lieu of foreclosure or assignment in lieu of foreclosure, this Agreement and the City 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 Deed of Trust acquires title to the Property pursuant to a deed or assignment in lieu of foreclosure, this Agreement and the City Deed of Trust shall automatically terminate upon such acquisition of title only if (A) a notice of default was recorded under the applicable Senior Lien Holder’s First Deed of Trust or (B) if no notice of default was recorded, City has been given written notice of default under such Senior Lien Holder’s First Deed of Trust with a cure period of at least sixty (60) days and City or its designee shall not have cured the default within such cure period.
11.10. Prohibited Transfer. Any voluntary or involuntary transfer, assignment, conveyance, lease, rental, Sale or Refinance of the Property (“Transfer”) in violation of the terms of this Agreement shall be deemed a “Prohibited Transfer”. Upon receiving notification of a Prohibited Transfer, City may give written notice to Owner specifying the nature of the Prohibited Transfer. If the violation is not corrected to the satisfaction of City within ten (10) days after the date of the notice or within such further time as City determines is necessary to correct the violation, City may declare a Default under this Agreement and may exercise the Option to Purchase or other remedies provided hereunder.
12. Permitted Transfers. Transfer of title to the Property to the spouse of Owner pursuant to marriage, divorce, or by inheritance upon the death of Owner, shall not constitute a Formatted: Right: 0.36", Tab stops: 1.57", Left +
1.57", Left + Not at 1.07"
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Not at 1.07"
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
12 Prohibited Transfer, and will not be subject to the Option to Purchase provisions of this Agreement, provided that all terms and conditions set forth in this Agreement shall continue to run with the Property following any such Transfer. The recipient of the Transfer must be named on the Senior Lien Holder's First Deed of Trust. Without limiting the foregoing, all terms and conditions set G.2.c
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
13 forth in this Agreement, including without limitation, the prohibition on rental or leasing of the Property, the continuation of the City’s Option to Purchase, and the continuation of restrictions upon Sale or Refinance of the Property shall continue to apply.
13.11. Default. Owner’s breach of any of the terms, covenants, or obligations under this Agreement, including, without limitation, Owner’s unauthorized leasing or rental of the Property or failure to occupy the Property as Owner’s principal residence, and/or any other Prohibited Transfer, shall be deemed a Default hereunder. City’s remedies for a Default include, but are not limited to, the following: City may exercise its Option to Purchase, and/or City may apply to a court of competent jurisdiction for specific performance of this Agreement, for an injunction prohibiting a proposed Transfer in violation of this Agreement, for a declaration that the Prohibited Transfer is void, for an award of damages and attorneys’ fees, and for such other relief as may be appropriate. Upon the occurrence of a Default, City may declare all sums due under the Excess Proceeds Note immediately due and payable and City may invoke the power of sale under the Performance Deed of Trust. Each of the remedies provided herein is cumulative and not exclusive, and 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 Agreement.
14.12. Distribution of Insurance and Condemnation Proceeds. In the event that the Property is partially or totally destroyed and insurance proceeds are distributed to Owner instead of being used to rebuild, or in the event of condemnation, if proceeds thereof are distributed to Owner, or in the event of termination of any applicable homeowner’s association and distribution of the assets of the association to the members thereof, including Owner, any surplus proceeds so distributed remaining after payment of encumbrances of said Property shall be distributed as follows: that portion of the surplus up to, but not to exceed, the net amount that Owner would have received under the formula set forth in Section 8 above had City exercised its Option to Purchase the Property on the date of the destruction, condemnation valuation date, or liquidation, shall be distributed to Owner, and the balance of such surplus, if any, shall be distributed to City or its successors or assigns.
15.13. Payment to City of Excess Sales Proceeds. If a Prohibited Transfer of the Property occurs, Owner shall immediately pay the Excess Sales Proceeds to the City. For purposes of this Agreement, “Excess Sales Proceeds” shall mean the amount by which the gross sales proceeds paid for the Property by the new purchaser exceeds the Purchase Price for the Property as determined pursuant to Section 8.b above. This amount shall be a debt of Owner to City, further evidenced by the Excess Proceeds Note and secured by the Performance Deed of Trust. Owner acknowledges that City shall have no obligation to cause reconveyance of this Agreement or the Performance Deed of Trust until any Excess Sales Proceeds payable to the City are paid in full.
Owner and City acknowledge that the formula for calculation of the amount of Excess Sales Proceeds due from Owner to City is intended to cause Owner to receive the same net sales proceeds from sale of the Property at an unrestricted price to a market purchaser (in violation of this Agreement) as Owner would receive from sale of the Property to City or to City’s assignee pursuant to City’s exercise of the Option to Purchase.
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
14 16.14. Notices. In every case when, under the provisions of the Agreement, it shall be necessary or desirable for one party to serve any notice, request, demand, report or other communication on another party, the same shall be in writing and shall not be effective for any purpose unless served: (i) personally; or (ii) by independent, reputable, overnight commercial courier; or (iii) by deposit in the United States mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested; addressed as follows:
To Owner: OWNER NAME
ADDRESS
Hollister, CA 95023
To City: Development Services Agency – Housing
City of Hollister
375 Fifth Street
Hollister, California 95023
Any notice that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of delivery thereof.
17.15. Successors Bound. The terms of the Agreement shall be binding upon the parties hereto and their respective heirs, successors and assigns.
18.16. Attorneys’ Fees and Costs. If any legal action is filed that arises out of the terms of this Agreement, or the interpretation or enforcement thereof, the prevailing party shall be entitled to an award of its reasonable attorney fees, costs and expenses incurred therein.
19.17. Right to Enforce. This Agreement shall not benefit or be enforceable by any person or entity except City and Owner and their respective successors and assigns.
20.18. Entire Agreement. This Agreement, the Excess Proceeds Note and the Performance Deed of Trust set forth the entire understanding between Owner and City. Any previous representations, warranties, agreements, and understandings among the Parties regarding the subject matter of this Agreement, the Excess Proceeds Note and the Performance Deed of Trust whether written or oral, are superseded by the terms of this Agreement, the Excess Proceeds Note and the Performance Deed of Trust.
21.19. Amendments; No Waiver. This Agreement may be modified or amended only by a written instrument duly executed by all parties hereto. Any waiver of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by a Party to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by a Party at any time to require strict performance of any provision of this 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.
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
15 22.20. 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 the document, and the document shall be construed as if such invalid, illegal or unenforceable provision had never been contained therein.
23.21. Controlling Law and Venue. The terms of the Agreement shall be interpreted under the laws of the State of California. The Agreement was entered into and is to be performed in the County of Santa Clara, which is the exclusive venue for any action or dispute arising out of said Agreement.
24.22. Captions. All captions and headings in the Agreement are for the purposes of reference and convenience and shall be disregarded for all other purposes, including the construction or enforcement of any of provisions thereof.
25.23. Joint and Several. The obligations of each party comprising Owner shall be joint and several.
26.24. Time of the Essence. Time is of the essence with regard to all matters contained in the Agreement.
27.25. 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 Agreement.
28.26. Parties Not Co-Venturers; No Agency Relationship. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. The relationship of Owner 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 Owner (except as expressly provided in this Agreement) or to any third party with respect to the Property.
29.27. Counterparts. This 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 PAGES.
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
16 IN WITNESS WHEREOF, the Parties have executed this Resale Restriction Agreement and Option to Purchase as of the date first written above.
CITY OF HOLLISTER
a municipal corporation
City Manager
OWNER:
Print Name:
Print Name:
APPROVED AS TO FORM:
City Attorney
(All signatures, except City Attorney, must be acknowledged by a Notary Public.) G.2.c
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Santa Clara} ss.
On , 20 , before me, , a 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 is true and correct.
WITNESS my hand and official seal
Signature of 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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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
18 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Santa Clara} ss.
On , 20 , before me, , a 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 is true and correct.
WITNESS my hand and official seal
Signature of 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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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
19 EXHIBIT A
LEGAL DESCRIPTION
[insert legal description]
APN:
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RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
20 EXHIBIT B
EXCESS PROCEEDS NOTE
(Attach form of Note.)
EXHIBIT C
PERFORMANCE DEED OF TRUST
(Attach form of Deed of Trust.)
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
1 SECURED PROMISSORY NOTE
(City of Hollister Affordable Housing Program – Below Market-Rate Units)
EXCESS SALES PROCEEDS Hollister, California
, 2023
FOR VALUE RECEIVED, the undersigned and
(collectively, the “Maker”) promise to pay immediately when due to the order of the City of Hollister, a municipal corporation (“City”), at 375 Fifth Street17575 Peak Avenue, Hollister, CA 95037 95023 or at any other place that may be designated in writing by the City, all amounts due to the City as Excess Sales Proceeds pursuant to Section 14 of the Resale Restriction Agreement (defined below). All sums due hereunder shall be payable in lawful money of the United States of America.
1. Definitions. As used herein, the following terms shall have the meanings set forth in this Section.
“City Deed of Trust” means that certain Performance Deed of Trust, Assignment of Rents and Security Agreement dated as of the date hereof, executed by Maker as Trustor for the benefit of the City and recorded against the Property to secure repayment of this Note and performance under the Resale Restriction Agreement, as such instruments may be amended, modified or supplemented from time to time.
“City Documents” means collectively this Note, the City Deed of Trust, and the Resale Restriction Agreement.
“Default” is defined in Section 8 of this Note.
“Excess Sales Proceeds” is defined in Section 14 of the Resale Restriction Agreement. “Note” means this Secured Promissory Note, as it may be amended, modified or supplemented from time to time.
“Prohibited Transfer” is defined in Section 10 of the Resale Restriction Agreement.
“Property” means the property located at Street in the City of Hollister Morgan
Hill together with the improvements located thereon, as more particularly described in Formatted: Indent: Left: 0.57", Space Before: 4.5 pt, Tab stops: 4.66", Left
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
2 Exhibit A attached to the City Deed of Trust.
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
3 “Resale Restriction Agreement” means that certain Resale Restriction Agreement and Option to Purchase executed by and between City and Maker, dated as of the date of this Note and recorded in the Official Records of Santa ClaraSan Benito County.
“Security” is defined in the City Deed of Trust.
“Transfer” is defined in Section 10 of the Resale Restriction Agreement.
2. Excess Proceeds. This Note is made and delivered pursuant to, and in implementation of, the City’s Below-Market Rate Affordable Housing Program a Development Agreement, pursuant to which, the City, in order to assist Maker to purchase the Property, has arranged for the sale of the Property to Maker at a below-market price. Concurrently with the execution of this Note, Maker shall execute the City Deed of Trust and the Resale Restriction Agreement, each of which shall be recorded against the Property. The Resale Restriction Agreement imposes restrictions upon the price at which the Property may be sold, and obligates Maker to pay to the City Excess Sales Proceeds in connection with any sale of the Property at a price greater than the Purchase Price as defined in Section 8.b of the Resale Restriction Agreement or upon the occurrence of any Prohibited Transfer.
3. Security. This Note is secured by the City Deed of Trust. The holder of this Note will be entitled to the benefits of the security provided by the City Deed of Trust and will have the right to enforce the covenants and agreements of Maker contained therein and in the Resale Restriction Agreement.
4. Payments. In the event any Excess Sales Proceeds become due and payable under the Resale Restriction Agreement, including without limitation, upon the occurrence of a sale of the Property at a price in excess of the Purchase Price permitted under Section 8.b of the Resale Restriction Agreement or a Prohibited Transfer of the Property, such amounts shall be immediately due and payable hereunder. Failure to declare such amounts due in any instance shall not constitute a waiver on the part of the City to declare them due in the future. Maker will pay to City all sums owing under this Note without deduction, offset, or counterclaim of any kind.
5. Default Rate of Interest. If Excess Sales Proceeds payable to City pursuant to the Resale Restriction Agreement and this Note are not paid to City within ten (10) days of the due date thereof, then interest shall accrue on such sum at a rate equal to the lesser of ten percent (10%) interest per annum, compounded annually, or the maximum rate permitted by law.
6. Prepayment. This Note may not be prepaid in whole or in part.
7. Transfer. Maker shall not transfer, lease, sell, assign, refinance, encumber, convey or otherwise Transfer any interest in the Property without complying with all requirements of the Resale Restriction Agreement. Maker’s failure to comply with the requirements of this paragraph shall be a Default under this Note.
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
4 8. Default. The occurrence of any one or more of the following shall constitute an event of default (“Default”) hereunder:
a. The occurrence of a breach of any of Maker’s covenants, warranties, or representations under this Note, the City Deed of Trust, or the Resale Restriction Agreement, including without limitation, any unauthorized refinancing, sale, conveyance, lease, assignment, encumbrance, or other Transfer of the Property, Maker’s failure to occupy the Property as Maker’s principal residence, any failure to pay amounts payable pursuant to this Note, and Maker’s failure to maintain insurance on the Property as required pursuant to the City Deed of Trust.
b. The entry of an order for relief under federal bankruptcy laws as to Maker or the adjudication of Maker as insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy act, or Maker’s consent to, acquiescence in, or attempt to secure the appointment of, any receiver for all or any substantial part of the Property.
c. The occurrence of an event of default under any loan secured by the Property and the continuance of such default beyond the expiration of all applicable cure periods such that the holder of such loan has the right to accelerate such loan.
9. Remedies. Upon the occurrence of a Default, the giving of any required notice thereof, and the expiration of any applicable cure period, City may, at its option, exercise any one or more of the following remedies:
a. Declare all of the sums payable under this Note to be immediately due and payable without further demand.
b. Pursue the exercise of the power of sale provided under the City Deed of Trust.
c. 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 Property and take possession thereof (or any part thereof) and of any of the Security in its own name or in the name of the 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, 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 Property, the City shall be entitled to exercise every remedy provided by the City Documents or by law, upon the occurrence of any uncured breach.
d. Commence an action to foreclose the City Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants set forth in the City Documents.
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
5 e. Exercise its option to purchase the Property pursuant to the Resale Restriction Agreement.
f. Exercise all other rights and remedies provided herein or in any other City Document.
g. Exercise any other remedy provided by law or in equity.
The rights and remedies of the City hereunder are cumulative, and the City’s exercise or failure to exercise one or more of such rights or remedies shall not preclude City’s exercise, at the same time or different times, of any other right or remedy for the same Default or any other Default.
10. Maker’s Personal Liability. Maker will be fully and personally liable for all loss, cost, liability, damage, and expense (including without limitation attorneys’ fees) suffered or incurred by City arising from any of the following:
a. Failure to pay taxes, assessments, and any other charges that could result in liens against any portion of the Property or any other Security.
b. Failure to pay and discharge any mechanics’ liens, materialmen’s liens, or other unpermitted liens against any portion of the Property or any other Security.
c. Maker’s fraud or intentional misrepresentation with respect to any representations, warranties, or certifications made in the City Documents or in connection with Maker’s application to participate in the City’s affordable housing program.
d. Maker’s retention of any rental income or other income arising with respect to any portion of the Property or any other Security subsequent to the date of City’s delivery of any notice of a Default, or which, under the terms of the City Documents, should otherwise have been paid to City.
e. Maker’s retention or use of insurance proceeds, condemnation awards, or other similar funds or payments attributable to the Property or any other Security that pursuant to the City Documents should have been paid to City or used for another purpose.
f. Waste of the Property, or any other failure to maintain, repair, or restore any portion of the Property or any other Security in accordance with the requirements of the City Documents.
g. The removal, demolition, damage or destruction of any portion of the Property or any other Security that is neither consented to in writing by City nor fully compensated for by insurance proceeds or condemnation awards.
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Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
6 h. The failure of the City Documents to constitute a lien or security interest, as applicable, on the Property or any other Security, subject only to those exceptions, if any, permitted by the City Documents or otherwise approved in writing by City.
Nothing in this paragraph will affect or limit the rights of City to enforce any of City’s rights or remedies with respect to any portion of the Property or any other Security.
11. Maker’s Waivers. Maker hereby expressly waives diligence, presentment, protest, and demand, and notice of protest, notice of dishonor and notice of nonpayment of this Note, and expressly waives 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 waives the right to plead any and all statutes of limitation as a defense to any demand on this Note.
12. Notices. All notices, requests, demands, reports or other communications regarding this Note shall be in writing and delivered: (i) personally; or (ii) by independent, reputable, overnight commercial courier; or (iii) by deposit in the United States mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested; addressed as follows, or to such other address as specified in written notice delivered to the parties pursuant to this Section:
To Maker: At the Property address.
To City: City of Hollister
375 Ffth St17575 Peak
Avenue Hollister, CA
95023037
Attention: Housing Manager
Any notice that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of delivery thereof.
13. Assignment by Lender; Successors and Assigns. This Note shall be binding upon Maker and Maker’s heirs, successors and assigns; provided however, Maker may not assign this Note without City’s prior written consent except as may be permitted in accordance with the City Deed of Trust and the Resale Restriction Agreement. City may assign its rights to receive the proceeds under this Note to any person or entity without the consent of Maker, and upon notice to Maker of such assignment, all payments shall be made to the assignee.
14. No Joint Venture. The relationship of Maker and City under this Note is solely G.2.d
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Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
7 that of a participant and administrator of an affordable housing program, and in no manner are the G.2.d
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
8 City and the Maker partners or joint venturers, nor do any of the City Documents establish a principal and agent relationship between City and Maker.
15. Attorneys’ Fees and Costs. If any legal action is filed to interpret or enforce this Note, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees, costs and expenses incurred therein. Maker agrees to pay all costs and expenses (including reasonable attorneys’ fees) that City may incur in connection with enforcement of this Note and collection of sums payable hereunder whether or not suit is filed.
16. No Third-Party Beneficiaries. This Note shall not benefit or be enforceable by any person or entity except the City and the Maker and their respective successors and assigns.
17. Entire Agreement; Amendments. This Note, together with the Resale Restriction Agreement and the City Deed of Trust, sets forth the entire understanding between Maker and the City with respect to the subject matter hereof. Any previous representations, warranties, agreements, and understandings among the parties regarding the subject matter of the Resale Restriction Agreement, this Note and City Deed of Trust whether written or oral, are superseded by the terms of the Resale Restriction Agreement, this Note and the City Deed of Trust. This Note may be modified or amended only by a written instrument duly executed by City and Maker.
18. No City Waiver. Any waiver of any term or provision of this Note must be in writing. No waiver of any breach, default or failure of condition under this Note or any other City Document shall be implied from City’s failure or delay in declaring a default or exercising any of City’s rights or remedies with respect to such breach, default or failure, or from any previous waiver of any similar or unrelated breach, default or failure, nor shall acceptance by City of any payment hereunder constitute a waiver of City’s right to require prompt payment of any remaining amounts owed. Without limiting the generality of the foregoing, City’s failure or delay in declaring any amount due hereunder shall not constitute a waiver of City’s right to declare such sum due for the same or any subsequent event that triggers Maker’s payment obligations hereunder.
19. Severability. If any provision of this Note shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Note shall not be affected or impaired thereby.
20. Controlling Law and Venue. The terms of this Note shall be interpreted under the laws of the State of California without regard to principles of conflicts of law. This Note was entered into and is to be performed in the County of Santa Clara, which is the exclusive venue for any action or dispute arising hereunder.
21. Captions. All captions and headings in this Note are for the purposes of reference and convenience and shall be disregarded for all other purposes, including the construction or enforcement of any of the provisions of this Note.
G.2.d
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
9 22. Joint and Several. The obligations of each signatory to this Note shall be joint and several.
23. Time of the Essence. Time is of the essence with regard to all matters contained in this Note.
SIGNATUTES ON FOLLOWING PAGE.
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EXCESS PROCEEDS NOTE
Form 5-20, revised 6.7.2023
4851-0987-7692 v.2
10 IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the date first written above.
MAKER
By:
Print Name:
By:
Print Name:
G.2.d
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1 Performance Deed of Trust
Form: 5-20 updated 6.7.2023
4830-3533-5868 v3
Escrow No:
Property Address:
APN:
, Hollister
Space above this line for Recorder’s use.
PERFORMANCE DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT
(City of Hollister Affordable Housing Program – Below Market-Rate Units)
THIS PERFORMANCE DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (“Deed of Trust”) is made as of , 20 , by and (collectively, “Trustor”) as Trustor, to
[ Title Company] [the City of Hollister, a municipal corporation] (“Trustee”) as Trustee, for the benefit of the City of Hollister, a municipal corporation (the “City”) as Beneficiary.
The Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably and unconditionally grants, transfers, conveys and assigns to Trustee, in trust for the benefit of City, with power of sale and right of entry and possession, all of Trustor’s right, title and interest now held or hereafter acquired in and to the property located in the City of Hollister, Santa ClaraSan Benito County, State of California, described in the attached Exhibit A and more commonly
known as: Street, Hollister, California (the “Property”);
TOGETHER with the rents, issues, and profits of such Property, subject however, to the right, power, and authority granted and conferred on City in this Deed of Trust to collect and apply the rents, issues, and profits; and
TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights of way, and appurtenances thereto, 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;
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Hollister
375 Fifth St
Hollister, CA 95023
Attention: Housing
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §27383
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All of the foregoing, together with the Property, is herein collectively 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 payment of the sums, and the performance of the covenants and agreements of the Trustor evidenced by (i) that certain Resale Restriction Agreement and Option to Purchase executed by and between Trustor and City, dated as of the date hereof and recorded substantially concurrently herewith (the “Resale Restriction Agreement”), and (ii) that certain Secured Promissory Note (the “Note”) dated as of the date hereof and executed by Trustor for the benefit of City, pursuant to which Trustor is obligated to pay to City Excess Proceeds (as defined in the Resale Restriction Agreement), and all extensions, modifications, or renewals of the Note and the Resale Restriction Agreement. The Note and the Resale Restriction Agreement are incorporated herein by this reference; 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 Trustor herein contained.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:
1. Trustor’s Estate. Trustor represents and warrants that Trustor is lawfully seized of the estate hereby conveyed, has the right to grant and convey the Security, and that other than this Deed of Trust, the Security is encumbered only by: (1) that certain deed of trust executed by Trustor and recorded against the Property substantially concurrently herewith to secure repayment of a loan made by (the “First Mortgage Lender”) to assist Trustor in the purchase of the Property and evidenced by a promissory note executed by Trustor in favor of the First Mortgage Lender in the original principal amount of Dollars ($ ) (the “First Mortgage Note”), and (2) the Resale Restriction Agreement. Trustor 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, and Trustor shall pay all costs and expenses, including cost of evidence of title and attorneys’ fees in a reasonable sum, in any such action or proceeding in which City or Trustee may appear, and in any suit brought by City to foreclose this Deed of Trust. As used in this Deed of Trust, the term “First Mortgage Lender” shall include all successors and assigns of the First Mortgage Lender with respect to the First Mortgage Note.
2. Note and Resale Restriction Agreement. Trustor will promptly pay when due all sums payable pursuant to the Note and shall perform all of Trustor’s covenants and obligations under the Note, the Resale Restriction Agreement, and this Deed of Trust.
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3. Charges and Liens. Trustor will promptly pay when due, the interest, principal, and all other charges accruing under any deed of trust, mortgage, or other instrument encumbering the Property, and will pay when due directly to the payee thereof all taxes, assessments and other charges, fines and impositions affecting the Property. Upon request by the City, Trustor will promptly furnish to the City copies of all notices of amounts due described in this Section and evidence of payment of such amounts. Trustor shall pay when due each obligation secured by or reducible to a lien, charge or encumbrance which now does or later may encumber or appear to encumber all or part of the Property or any interest therein, whether or not such lien, charge or encumbrance is or would be senior or subordinate to this Deed of Trust; provided however, Trustor will not be required to discharge the lien of the deed of trust securing the First Mortgage Note (the “First Mortgage Deed of Trust”), and Trustor will not be required to pay any tax, charge, lien or assessment described in this Section so long as Trustor is actively contesting its validity in good faith and by appropriate legal proceedings that will operate to prevent the enforcement of the lien or forfeiture of the Property or any part thereof. Trustor shall post security for the payment of such contested claims as may be requested by the City.
4. Protection of Security. If Trustor fails to perform any of the covenants and agreements set forth in this Deed of Trust, or if any action or proceeding is commenced that materially affects City’s interest in the Property, including, but not limited to, default under any senior lienholder document, eminent domain, insolvency, code enforcement, arrangements or proceedings involving a bankrupt or decedent, foreclosure of any mortgage secured by the Property or sale of the Property under a power of sale of any instrument secured by the Property, City, at its option, without releasing Trustor from any obligation hereunder, may upon notice to Trustor, make such appearance, disburse such sums and take such action as is necessary to protect City’s interest, including, but not limited to, the purchase of insurance, disbursement of reasonable attorneys’ fees and entry upon the Property to make repairs. Any amounts disbursed by City pursuant to this Section, with interest thereon, shall become additional indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and City agree to other terms of payment, such amounts shall be payable upon notice from City to Trustor requesting payment thereof, and shall bear interest from the date of disbursement at the highest rate permissible under applicable law.
Nothing contained in this Section shall require City to incur any expense or take any action hereunder.
5. Inspection. The City may make, or cause to be made, reasonable entries upon the Property and inspections of the Security; provided that the City will give Trustor reasonable notice of inspection.
6. Title Insurance. At Trustor’s expense, Trustor shall purchase a CLTA lender’s policy of title insurance for the benefit of City, insuring this Deed of Trust as a secondary lien on the Property, with no delinquent taxes or assessment liens appearing as exceptions to title.
7. Hazard Insurance. Trustor shall keep the Property insured by a standard all-risk property insurance policy with endorsements for vandalism, malicious mischief, and special extended perils, in the full replacement value of the improvements, and with endorsements for G.2.e
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increases in costs due to changes in code and inflation, with loss payable to City and any superior trust deed holder, as their interests may appear, and any other insurance required by the City.
The insurance carrier providing such insurance shall be licensed to do business in the State of California and may be chosen by Trustor, subject to approval by City. All insurance policies and renewals thereof shall be in a form acceptable to the City, and shall include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lien and the City as their interests may appear and in a form acceptable to the City. Trustor shall provide City with copies of all policies and renewals thereof, certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Trustor shall 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 Trustor. The policies shall include an endorsement providing that City shall receive thirty (30) days’ advance written notice of the cancellation, expiration or termination or any material change in the coverage afforded by any of the insurance policies required under this Section.
If the Property is acquired by the City, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Property 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 holder of any senior lien.
Renewal policies and any replacement policies, together with premium receipts satisfactory to the City, shall be delivered to the City at least thirty (30) days prior to the expiration of existing policies. Neither Trustee nor the City shall by reason of accepting, rejecting, approving or obtaining insurance incur any liability for the existence, nonexistence, form or legal sufficiency of such insurance, or solvency of any insurer for payment of losses. The application of proceeds pursuant to this Section shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
8. Awards and Damages. Subject to the rights of senior lienholders, all judgments, awards of damages, settlements and compensation made in connection with or in lieu of (a) taking of all or any part of or any interest in the Property by or under assertion of the power of eminent domain, (b) any damage to or destruction of the Property or any part thereof by insured casualty, and (c) any other injury or damage to all or any part of the Property, are hereby assigned to and shall be applied to the restoration or repair of the Property (if applicable) or paid to the City. The City is authorized and empowered (but not required) to collect and receive any such sums and is authorized to apply them in whole or in part upon any indebtedness or obligation secured hereby, in such order and manner as the City shall determine at its option. The City shall be entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds of such insurance the amount of all expenses incurred by it in connection with any such settlement or adjustment. All or any part of the amounts so collected and recovered by the City may be released to Trustor upon such conditions as the City may impose for its disposition. Application of all or any part of the amounts collected and received by the City or the release thereof shall not cure or waive any default under this Deed of Trust. If the Property is abandoned by Trustor, or if, after notice by City or its designated agent to Trustor that the G.2.e
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condemnor or insurer offers to make an award or settle a claim for damages, Trustor fails to respond to City within thirty (30) days after the date such notice is mailed, City or its designated agent is authorized to collect and apply the proceeds, at City’s option, either to restoration or repair of the Property or to the sums secured by this Deed of Trust
9. Maintenance. Trustor shall maintain the Property and all structures and landscaping thereon in good condition and repair. Trustor agrees to complete installation of landscaping as approved by the City, and to diligently maintain and care for installed landscaping, using generally accepted methods of cultivation and watering. Trustor shall not remove or demolish any building located on the Property, and agrees to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon, and to pay when due all claims for labor performed and materials furnished therefor, and to comply with all laws affecting the Property or requiring any alterations or improvements to be made thereon. Trustor shall not commit or permit waste thereof, and shall not commit or permit any act upon the Property in violation of applicable laws. Trustor will comply with all applicable laws, ordinances and governmental regulations affecting the Property or requiring any alteration or improvement thereof, and will not suffer or permit any violations of any such law, ordinance or governmental regulation, nor of any covenant, condition or restriction affecting the Property. If there arises a condition in contravention of this Section, and if the Trustor has not cured such condition within thirty (30) days after receiving a notice from City of such a condition, then in addition to any other rights available to City, 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 Property to recover its cost of cure.
10. Occupancy. Trustor shall occupy the Property as Trustor’s primary residence, and the Property shall be used as the primary residence of Trustor and Trustor’s household and for no other purpose. The Property shall not be leased or rented by Trustor to any person or entity other than as expressly permitted by the Resale Restriction Agreement or consented to by City in writing.
The City shall have the right to monitor whether the Property is owner-occupied by requesting that Trustor provide City with a written certification under penalty of perjury that the Property is owner-occupied, accompanied by supporting documentation reasonably satisfactory to the City.
11. Transfer. Trustor shall not Refinance or Transfer (as such terms are defined in the Resale Restriction Agreement) any interest in the Property without complying with all requirements of the Resale Restriction Agreement.
12. Assignment of Rents. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to City the rents, issues, revenue and profits of the Property. This is an absolute assignment and not an assignment for security only. Subject to the limitations on lease or rental of the Property as set forth herein and in the Resale Restriction Agreement, City hereby confers upon Trustor a license to collect and retain such rents, issues, revenue and profits, as they become due and payable prior to any Default hereunder. Upon the occurrence of any such Default, City may terminate such license without notice to or demand upon Trustor and without regard to the adequacy of any security for the indebtedness hereby secured, and may either in person, by agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property G.2.e
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or any part thereof, and sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys’ fees, to any indebtedness secured hereby, and in such order as City may determine. City’s right to the rents, issues, revenue and profits of the Property does not depend upon whether or not City takes possession of the Property. The entering upon and taking possession of the Property, the collection of such rents, issues, revenue and profits, and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. If a Default occurs while City is in possession of all or part of the Property and/or is collecting and applying rents as permitted under this Deed of Trust, City, Trustee and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this Deed of Trust and at law or in equity, including the right to exercise the power of sale granted hereunder. Regardless of whether or not City, in person or by agent, takes actual possession of the Property, City shall not be deemed to be a “mortgagee in possession,” shall not be responsible for performing any obligation of the lessor under any lease, shall not be liable in any manner for the Property, or the use, occupancy, enjoyment or operation of any part of it , and unless due solely to the willful misconduct or gross negligence of City, shall not be responsible for any dangerous or defective condition of the Property or any negligence in the management, repair or control of the Property.
13. Default. An event of default (“Default”) shall arise hereunder upon the occurrence of any one or more of the following and the expiration of any applicable cure period:
(a) Trustor fails to occupy the Property as Trustor’s principal residence;
(b) The sale, conveyance, encumbrance, refinance, assignment, or other transfer of the Property including without limitation, the lease or rental of the Property in violation of the Resale Restriction Agreement;
(c) An event of default arises under the Note or the Resale Restriction Agreement, and such default remains uncured following the expiration of any applicable cure period;
(d) Trustor fails to pay when due any sum payable pursuant to the Note, the Resale Restriction Agreement or this Deed of Trust;
(e) The Property is refinanced or encumbered in violation of the Resale Restriction Agreement or this Deed of Trust;
(f) Trustor fails to maintain insurance on the Property as required by the Resale Restriction Agreement and this Deed of Trust,
(g) Subject to Trustor’s right to contest the following charges, Trustor fails to pay prior to delinquency taxes or assessments due on the Property or fails to pay when due any other charge that may result in a lien on the Property, and Trustor fails to cure such default within twenty (20) days of date of G.2.e
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delinquency, but in all events prior to the time that the holder of such lien has the right to pursue foreclosure thereon;
(h) Trustor declares bankruptcy or makes an assignment of assets for the benefit of creditors, or an order for relief is entered under federal bankruptcy laws as to Trustor, or Trustor is adjudicated as insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy, or Trustor consents to, acquiesces in, or attempts to secure the appointment of, any receiver for all or any substantial part of the Property;
(i) The occurrence of an event of default under any loan secured by the Property and the continuance of such default beyond the expiration of all applicable cure periods such that the holder of such loan has the right to accelerate such loan.
(j) Trustor fails to observe or perform any other covenant, condition, or agreement to be observed or performed by Trustor pursuant to the Note, the Resale Restriction Agreement or this Deed of Trust.
14. Remedies. Upon the occurrence of a Default, the giving of notice thereof and the expiration of any applicable cure period, City may, at its option, exercise any one or more of the following remedies:
a. Declare all of the sums payable under the Note to be immediately due and payable without further demand.
b. Pursue the exercise of the power of sale provided under this Deed of Trust.
c. Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, enter upon, 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 and remedy provided under the Note, this Deed of Trust, or the Resale Restriction Agreement, or by law upon occurrence of any uncured breach.
d. Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof.
e. Exercise its option to purchase the Property pursuant to the Resale Restriction Agreement.
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f. Exercise all other rights and remedies provided herein, in the instruments by which the Trustor 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.
g. Exercise any other remedy provided by law or in equity.
15. Acceleration and Sale.
(a) Notice of Default. Upon Trustor’s breach of any covenant or agreement of Trustor under the Note, the Resale Restriction Agreement or this Deed of Trust, City shall mail notice to Trustor as provided in Section 24 hereof specifying: (i) the nature of the breach; (ii) the action required to cure such breach; (iii) a date no less than thirty (30) days from the date the notice is mailed to Trustor by which such breach must be cured or such shorter cure period as may be provided in the Note, the Resale Restriction Agreement or this Deed of Trust; and (iv) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the Loan and the sale of the Property. The notice shall further inform Trustor of Trustor’s right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Trustor to acceleration and sale. If the breach is not cured on or before the date specified in the notice, City at City’s option 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/or pursue any other remedy provided herein or available under law. City shall be entitled to collect from the Trustor, or from the proceeds of the sale of the Property, all reasonable costs and expenses incurred in pursuing the remedies provided hereunder, including, but not limited to, reasonable attorneys’ fees.
If a non-monetary default is not reasonably capable of being cured within thirty (30) days, the City, in its sole and absolute discretion, may grant the Trustor or the First Mortgage Lender such additional time as is reasonably necessary to cure the default provided that the Trustor or the First Mortgage Lender (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible.
Notwithstanding the cure periods established in this Section, in no event shall the City be precluded from sooner exercising any remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the first notice of default or delinquency is given.
(b) Trustor’s Right to Reinstate. Notwithstanding City’s acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of the judgment enforcing this Deed of Trust if: (a) Trustor pays City all sums which would be then due under this Deed of Trust and the Note had no acceleration occurred; (b) Trustor pays all reasonable expenses incurred by City and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, including, but not limited to, reasonable attorneys’ fees; (c) Trustor cures all breaches of any other covenants or agreements of Trustor set forth in the G.2.e
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Resale Restriction Agreement and this Deed of Trust; and (d) Trustor takes such action as City may reasonably require to assure that the lien of this Deed of Trust, City’s interest in the Property and Trustor’s obligation to pay the sums and perform the obligations secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred.
(c) Sale. After delivery to Trustee of a Notice of Default and Demand for Sale and after the expiration of such time and the giving of such notice of default and sale as may then be required by law, and without demand on Trustor, Trustee shall sell the Property at the time and place of sale fixed by it in said notice of sale, at public auction to the highest bidder for cash in lawful money of the United States of America, payable at time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement. Any person, including Trustor, Trustee or the City, may purchase at such sale. Upon such sale by Trustee it shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty expressed or implied. The recitals in such deed of any matters or facts shall be conclusive proof of their truthfulness. Upon sale by Trustee and after deducting all costs, expenses and fees of Trustee, Trustee shall apply the proceeds of sale to the payment of the indebtedness hereby secured, including without limitation the indebtedness evidenced by the Note, any advances made or costs or expenses paid or incurred by City under this Deed of Trust, any indebtedness evidenced by any other instrument hereby secured, and all other sums then secured hereby, including without limitation, interest as provided in the Note and the Resale Restriction Agreement, in such order as the City shall direct; and then the remainder, if any, shall be paid to the person or persons legally entitled thereto.
16. Remedies Cumulative; No Waiver. No exercise of any right or remedy by the City or Trustee hereunder shall constitute a waiver of any other right or remedy herein contained or provided by law, and no delay or forbearance by the City or Trustee in exercising any such right or remedy hereunder shall operate as a waiver thereof or preclude the exercise thereof in any continued or subsequent default hereunder. 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. No sale of the Property, forbearance on the part of City, or extension of the time for payment of the indebtedness hereby secured shall operate to release, discharge, waive, modify, change or affect the liability of Trustor either in whole or in part.
17. Indemnity. Trustor agrees to defend, indemnify, and hold the City of Hollister, and its elected and appointed officers, officials, employees, and agents harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys’ fees that they may incur as a direct or indirect consequence of: (i) Trustor’s failure to perform any obligations as and when required by the Note, the Resale Restriction Agreement, or this Deed of Trust; or (ii) the failure at any time of any of Trustor’s representations or warranties herein or in the Resale Restriction Agreement or the Note to be true and correct.
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18. Due on Transfer of the Property. If the Trustor sells, conveys, assigns, transfers, alienates, or otherwise disposes of its interest in the Property, either voluntarily or involuntarily or by operation of law, in part or in full, in violation of the Resale Restriction Agreement, the City may, at its option, require immediate payment in full of all sums due under the Note.
19. Reconveyance. Upon payment of all sums and satisfaction of all obligations secured by this Deed of Trust, including without limitation, payment of Excess Proceeds as defined in the Resale Restriction Agreement, and upon the expiration or termination of the Resale Restriction Agreement, the City will provide a written request to the Trustee to reconvey the Security and will surrender this Deed of Trust and the Note to Trustee. The Trustee shall reconvey the Security without warranty and without charge to the person or persons legally entitled thereto.
Such person or persons shall pay all costs of recordation, if any. The recitals in the reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
20. Trustee Substitution. The City, at its option and without prior notice, may from time to time, by written instrument, remove the Trustee and appoint a successor trustee pursuant to a written instrument executed by City and duly acknowledged and recorded in the Official Records of Santa ClaraSan Benito County. Such instrument shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the predecessor Trustee, succeed to all the title, estate, power and duties conferred upon the Trustee herein and by applicable law. Such instrument shall set forth the name of the Trustor, the original Trustee and the Beneficiary hereunder, the book and page where this Deed of Trust is recorded, and the name and address of the new Trustee.
21. City’s Rights to Release. Without affecting the liability of any person for payment of any indebtedness hereby secured (other than any person released pursuant hereto), including without limitation any one or more endorsers or guarantors, and without affecting the lien hereof upon any of the Property not released pursuant hereto, at any time and from time to time without notice: (a) City may in its sole discretion: (i) release any person now or hereafter liable for payment of any or all such indebtedness, (ii) extend the time for or agree to alter the terms of payment of any or all of such indebtedness, and (iii) release or accept additional security for such indebtedness, or subordinate the lien or charge hereof; and (b) Trustee, acting pursuant to the written request of the City, may reconvey all or any part of the Property, consent to the making of any map or plot of the Land, join in granting any easement thereon, or join in any extension agreement of any agreement subordinating the lien or charge hereof.
22. Subordination. Absent the prior written consent of City, this Deed of Trust shall not be subordinated to any other deed of trust or encumbrance on the Property.
23. Request for Notice. City requests that copies of any notice of default and notice of sale affecting the Property be sent to City at its address set forth herein. City shall record a Request for Notice of Default and Sale.
24. Notices. All notices, requests, demands, reports or other communications regarding this Deed of Trust shall be in writing and delivered: (i) personally; or (ii) by independent, G.2.e
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reputable, overnight commercial courier; or (iii) by deposit in the United States mail, postage and fees fully prepaid, registered or certified mail, with return receipt requested, and addressed as follows, or to such other address as specified in written notice delivered to the parties pursuant to this Section:
To Trustor: At the Property address.
To City: City of Hollister
17575 Peak Avenue375 Fifth St.
Hollister, California 95023
Attention: Housing
Any notice that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of delivery thereof.
25. Successors Bound. The terms of this Deed of Trust shall be binding upon the Trustor and the Trustor’s heirs, legatees, devisees, administrators, executors, successors and assigns.
26. Attorneys’ Fees and Costs. If any legal action is filed to enforce or interpret this Deed of Trust, or the interpretation or enforcement thereof, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees, costs and expenses incurred therein.
27. No Waiver. Any waiver of any term or provision of this Deed of Trust 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 Deed of Trust or applicable law.
No failure or delay by City at any time to require strict performance of any provision of this Deed of Trust 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.
28. No Third-Party Beneficiaries. This Deed of Trust shall not benefit or be enforceable by any person or entity except the City, the Trustee, and the Trustor and their respective successors and assigns.
29. .Entire Agreement. This Deed of Trust, together with the Resale Restriction Agreement and the Note, sets forth the entire understanding between Trustor and the City with respect to the subject matter hereof. Any previous representations, warranties, agreements, and understandings among the parties regarding the subject matter of the Resale Restriction Agreement, this Deed of Trust and Note whether written or oral, are superseded by the terms of the Resale Restriction Agreement, the Note and this Deed of Trust.
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30. Amendments. This Deed of Trust shall not be amended except by a written instrument duly executed by Trustor and Beneficiary and recorded in the Official Records of Santa San Benito Clara County.
31. Severability. If any provision of this Deed of Trust shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Deed of Trust shall not be affected or impaired thereby.
32. Controlling Law and Venue. The terms of this Deed of Trust shall be interpreted under the laws of the State of California without regard to principles of conflicts of law. This Deed of Trust was entered into and is to be performed in the County of Santa ClaraSan Benito, which is the exclusive venue for any action or dispute arising out of this Deed of Trust.
33. Captions and Gender. All captions and headings in this Deed of Trust are for the purposes of reference and convenience and shall be disregarded for all other purposes, including the construction or enforcement of any of provisions thereof. Whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural.
34. Joint and Several. The obligations of each signatory to this Deed of Trust shall be joint and several.
35. Time of the Essence. Time is of the essence with regard to all matters contained in this Deed of Trust.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above.
TRUSTOR:
By:
Print Name:
By:
Print Name:
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ACKNOWLEDGMENT
State of California )
County of Santa
ClaraSan Benito )
On , 20 , before me, ,
(Name of Notary Public)
a 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 is true and correct.
WITNESS my hand and official seal
Signature of Notary Public
(ABOVE AREA FOR OFFICIAL NOTARIAL SEAL)
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
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Exhibit A
PROPERTY DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
HOLLISTER, COUNTY OF SANTA CLARASAN BENITO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
[Insert legal description.]
APN:
OAK #4830-3533-5868 v2
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