Agenda packet — Livermore City Council, June 24, 2024 (part 4 of 7)

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volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Consultant/ Contractor; or automobiles owned, leased, hired or borrowed by the Consultant/ Contractor, The coverage shall contain no special limitations on the scope of protection afforded to the City of Livermore, its officers, officials, employees, or volunteers.

2. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. The additional insured coverage under the Consultant' s/ Contractor' s policy shall be primary and non- contributory and will not seek contribution from the City's insurance or self- insurance and shall be at least as broad as ISO Form CG 20 10 04 13. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of the City of Livermore before the City's own insurance or self-insurance shall be called upon to protect it as a named insured.

3. Any failure to comply with reporting or other provisions of the policy, including breaches of warranties, shall not affect coverage provided to the City of Livermore, its officers, officials, employees, or volunteers.

4. The Consultant's/ Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer' s liability.

5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party before expiration of the policy unless notice is delivered in accordance with policy provisions.

6. It shall be a requirement under this agreement that any available insurance proceeds broader than, or in excess of, the specified minimum insurance coverage requirements and/ or limits shall be available to the additional insured. Furthermore, the requirements for coverage and limits shall be ( 1) the minimum coverage and limits specified in this agreement; or ( 2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named Insured; whichever is greater.

7. Certificate Holder section of the insurance certificate should read: City of Livermore, 1052 S. Livermore Avenue, Livermore, CA 94550 Verification of Coverage
Consultant/ Contractor shall furnish certificates of insurance and endorsement( s) effecting coverage to the City of Livermore for approval. The endorsements shall be on forms acceptable to the City of Livermore. All certificates and endorsements are to be received and approved by the City of Livermore before work commences. The City of Livermore reserves the right to require complete and certified copies of all insurance policies required by this Agreement.

Revised 51112018 B16 — 2M E&O

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SCIENCE AND

SOCIETY

BUILDING
Stockman’s
Park

BLACK BOX

THEATER

RAILROAD AVE

VETERANS WAY
S. L ST
Linear Park Entry Lawn
Playground
Bench, Typ
Decomposed
Granite Path,
Typ
Concrete Path, Typ
Ghost Train
Planter
Gateway
Element
Gateway
Element
Gateway
Element
Trellised
Picnic Area
with Flexible
Seating
Flag Allee
Mini Event
Plaza
Shade Tree, Bench, Typ Typ Table, Typ
Flag Allée creates a patriotic gateway that encourages
visitors to reflect and remember. Flag poles stationed
around the oval entry lawn memorialize Livermore’s
veterans before opening into the wider central lawn,
perfect for larger memorial events and community
gatherings.

Just bellow the entry lawn, a trellised picnic area shades visitors while the train-yard inspired playground engages the children of Livermore with their town’s history,
providing a play amenity that centers the site within its cultural context.

CONCEPT 1: Flag Allée
Veterans Park
Livermore, CA.

CONCEPT 1: Flag Allée
0’ 10’ 20’ 40’ 80’
SCALE 1” = 20’ NOVEMBER 10, 2021

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SCIENCE AND

SOCIETY

BUILDING

BLACK BOX

THEATER

RAILROAD AVE

VETERANS WAY
S. L ST
Linear Park
Playground
Lawn
Bench, Typ Table, Typ
Specimen Tree with
Quite Seating Area
Decomposed
Granite Path, Typ
Gateway
Element
Flexible
Seating Specimen
Tree, Typ
Seatwall, Typ
Shade
Trellises
Accent Trees
Flagpole
Plaza
Shade Tree,
Typ
Concrete Path,Typ
Stockman’s
Park
Flagpole Plaza creates a flexible event space that can
cater to formal memorials or everyday use. Flags of
the armed forces are massed at the heart of the site,
memorializing Livermore’s veterans in a central plaza. A specimen tree shades the plaza while lawn buffers the
plaza from the playground to the South.

As the avenue arcs along the large, central lawn, a
giant accent oak tree catches visitors’ eyes and creates a serene sense of place that encourages passers-by to
pause for a quite respite.

CONCEPT 2: Flagpole Plaza
0’ 10’ 20’ 40’ 80’
SCALE 1” = 20’ NOVEMBER 10, 2021
Veterans Park
Livermore, CA.

CONCEPT 2: Flagpole Plaza

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SCIENCE AND

SOCIETY

BUILDING

BLACK BOX

THEATER

RAILROAD AVE

VETERANS WAY
S. L ST
Linear Park
Early Livermore
Themed
Playground
Central Lawn
Bench, Typ
Table, Typ
Concrete Path, Typ
Gateway
Element
Flags
Specimen
Tree, Typ
Shade
Trellises, Typ
Accent Trees
Upper Plaza
Playground
Picnic
Area with
Flexible
Seating
Shade Tree, Typ
Central Lawn creates multiple protected and
comfortable community gathering space while
providing a direct, pleasant connection to neighboring
destinations. Flags of the armed forces are set in the
upper plaza, serving as the site’s thematic focal point under the shade of the large trellises.

The circular turf lawn creates a central gathering
space as people pass through the park, while buffering
the upper plaza from the “Early Livermore” inspired
playground.

Visitors are drawn through the site thanks to the strong connection created by the grand central lawn, while
benches and shade trees create comfortable nodes.

CONCEPT 3: Central Lawn
0’ 10’ 20’ 40’ 80’
SCALE 1” = 20’ NOVEMBER 10, 2021
Veterans Park
Livermore, CA.

CONCEPT 3: Central Lawn

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INTRODUCTION

HOW TO USE THIS DOCUMENT

CAPITAL IMPROVEMENT PLAN
Presents the City's Capital Improvement Program budget.

STAFF ALLOCATION
Includes authorized staffing levels and allocation history.

APPENDIX
Provides a listing and description of all City funds and the relationship of departments with funds. It also includes a Glossary of Terms that may be unique to local government finance departments or the City's Financial Plan.

BUDGET FY 2023-25

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Airport

CAPITAL IMPROVEMENT PROGRAM

EXECUTIVE SUMMARY AND ANALYSIS
The City operates a general aviation airport located southwest of State Route 84, Airway Boulevard, and 1-580. The airport is operated as an independent enterprise fund. Airport projects in the 2023-28 CIP includes projects to enhance Airport safety and operations and to rehabilitate existing facilities.

Airport Project expenditures are approximately 3% of the total proposed CIP budget with $5.6 million in Fiscal Year 2023-24 and 2024-25. Projects include construction of the airfield safety improvements outlined in the Airfield Geometry Study, and airport pavement maintenance. Funding for airport projects is provided from airport operating revenues and Federal Aviation Administration grants.

Projects listed herein comply with the current Airport Layout Plan, and the City's General Plan. Airport projects are derived from the 2014 Airport Layout Plan.

Downtown
Downtown projects are intended to revitalize and enhance the downtown economically and aesthetically through land acquisition, design and construction of public infrastructures including those which support the Downtown Core Plan approved by City Council in January 2017.

Downtown Revitalization projects are the second largest source of expenditures with approximately 18% of the total proposed CIP budget or $38.1 million over Fiscal Year 2023-24 and 2024-25. Some of the major expenditures include the Livermore Village Parking Garage; Flagpole Plaza and Downtown Streetscape Improvements, Downtown Sidewalk and Miscellaneous ADA Improvements, Downtown Landscape Rehabilitation, and Veterans Park. Projects are funded primarily through General Fund, park fees, Measure BB, R&R Infrastructure Reserves, bond funding, and grants.

Projects included in this programmatic area are consistent with the City's General Plan and Downtown Specific Plan. Projects are funded primarily through General Fund, park fees, Measure BB, R&R Infrastructure Reserves and grants.

Parks and Beautification
The objective of the Parks and Beautification programmatic areas is to improve, renovate, and enhance existing City-owned or maintained park areas, public spaces, roadways, walls, and medians. Although the Livermore Area Recreation and Park District (LARPD) is the responsible agency for maintaining most of the parks in Livermore, there are several City-owned properties as well as streetscapes that are constructed and maintained by the City.

Parks and Beautification Projects account for approximately 3% of the total proposed CIP expenditures, $5.9 million in Fiscal Year 2023-24 and 2024-25. Projects that are funded in the 2023-28 CIP include reimbursements to LARPD for their eligible park development impact fee-funded projects, Doolan Park Landscape Rehabilitation, Springtown Open Space Improvements, Phase 1, and Elaine Avenue Median Landscaping. Additional Park projects are shown in the Downtown category. Projects are funded primarily through General Fund, park fees, Measure BB, Capital Reserves and grants.

Projects listed herein comply with the goals and policies of the City's General Plan and Downtown Specific Plan and the Park Facilities Fee Study.

BUDGET FY 2023-25

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Airport
The City operates a general aviation airport located southwest of State Route 84, Airway Boulevard, and 1-580. The airport is operated as an independent enterprise fund. Airport projects in the 2023-28 CIP includes projects to enhance Airport safety and operations and to rehabilitate existing facilities.

Funding for airport projects is provided from airport operating revenues and Federal Aviation Administration grants.

Projects listed herein comply with the current Airport Layout Plan, and the City's General Plan.

Airport projects are derived from the 2014 Airport Layout Plan.

Downtown Revitalization projects are the second largest source of expenditures with approximately 18% of the total proposed CI P budget or $38.1 million over Fiscal Year 2023-24 and 2024-25. Some of the major expenditures include the Livermore Village Parking Garage, Flagpole Plaza and Downtown Streetscape Improvements, Downtown Sidewalk and Miscellaneous ADA Improvements, Downtown Landscape Rehabilitation, and Veterans Park.

Projects are funded primarily through General Fund, park fees, Measure BB, R&R Infrastructure Reserves, bond funding, and grants.

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"
Downtown Revitalization
I
Summary of Downtown Revitilization Projects:

Project Name
200512 - Downtown Landscape Rehabilitation
200827 - Downtown Streetscape Phase II
201436 - Livermorium Park - Plaza at Mills Square
201715 - I Street Garage and Land Acquisition
201824 - Iron Horse Trail - Downtown
201959 - Downtown Sidewalk and Misc. ADA Improvements 2019-21 202118 - Livermore Village Remediation
202119 - Livermore Village Joint Trench
202120 - Downtown Surface Parking
202121 - Veterans Park
202225 - Flag Pole Plaza and Downtown Streetscape Improvements 583018 - Livermore Village Infrastructure
586003 - Livermore Village L Street Garage
Total Downtown Revitilization Funding
$
$
$
$
$
$
$
$
$
$
$
$
$
$
Prior Years FY 2022-23
$
1,556,441.29 $ 1,030,000.00
5,301,771.48 $ 160,000.00
16,154,669.06 $ 325,000.00
$
85,981.73 $ 33,000.00
728,120.38 $ 620,000.00
52,400.67 $ 300,000.00
30,173.75 $ 130,000.00
95,159.23 $ 20,000.00
$ 60,000.00
839,975.81 $ 5,000.00
1,692,055.37 $ 5,000,000.00
26,536,748.77 $ 7,683,000.00
28 EXHIBIT J
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FY 2023-25 Capital Improvement Plan
Project Description
Downtown Revitalization
Project #202121
Veterans Park
Public park between work force housing buildings at northwest corner of Livermore Village. Approximately 30,000 to 40,000 square feet of landscaping and hardscape.

Project Justification
During public outreach for Downtown Core Development open space and parks was one of the top priorities.

Veterans Park will provide complimentary open space to Stockmen's Park and provide a continuous strip of public open space between North Livermore Ave and L Street.

Project Funding
Park Fees (Fund 337) will pay for these public park improvements. Eden was awarded $1,000,000 in Congressional funding for Veterans Park which will offset some of these Park Fee expenses.

O&M Cost Assumptions
O&M costs are estimated at $60,000 per year beginning FY 26-27.

Funding Source and Budgeted Expenditures - Project #202121 - Veterans Park FY 2022-23 FY2023-24 FY2024-25 FY2025-26 FY2026-27 FY2027-28 (337) PARK FEE • AB 1600 $20,000 $185,000 $185,000 $5,000,000 $0 $0 TOTAL $20,000 $185,000 $185,000 $5,000,000 $0 $0
FY2028-43
$0
$0
41 EXHIBIT J
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Expenditures
Project Expenditures by Program
Fund Project Name FY 2022-23
210 201314 - Slurry Seal Northside Aprons and Taxi Lanes $ 19,000.00 210 201425 - Airport Pavement Maintenance $ 30,000.00
210 201718 -Airport Airfield Markings Maintenance $ 30,000.00 210 201849 - FBO Building Flood Proofing $ 60,000.00
210 202017 - Airport Geometry Study Improvements (AIP27) $ 239,283.00 212 202017 - Airport Geometry Study Improvements (AIP27) $ 1,760,717.00 TOTAL AIRPORT $ 2,139,000.00
001 200512 - Downtown Landscape Rehabilitation $
651 200827 - Downtown Streetscape Phase II $ 450,000.00 678 200827 - Downtown Streetscape Phase II $ 130,000.00 687 200827 - Downtown Streetscape Phase II $
688 200827 - Downtown Streetscape Phase II $ 450,000.00 337 201436 - Livermorium Park-Plaza at Mills Square $ 160,000.00 001 201715 - I Street Garage and Land Acquisition $ 325,000.00 624 201824 - Iron Horse Trail - Downtown $
681 201959 - Downtown Sidewalk and Misc ADA Improvements 2019-21 $ 33,000.00 320 202118 - Livermore Village Remediation $ 500,000.00 337 202118 - Livermore Village Remediation $ 20,000.00
611 202118 - Livermore Village Remediation $ 100,000.00 320 202119 - Livermore Village Joint Trench $ 200,000.00 337 202119 - Livermore Village Joint Trench $ 50,000.00 650 202119- Livermore Village Joint Trench $ 50,000.00
001 202120 - Downtown Surface Parking $ 80,000.00
335 202120 - Downtown Surface Parking $ 50,000.00
337 202121 -Veterans Park $ 20,000.00
650 202225 - Flag Pole Plaza and Downtown Streetscape Improvements $ 688 202225 - Flag Pole Plaza and Downtown Streetscape Improvements $ 60,000.00 337 583018 - Livermore Village Infrastructure $
611 583018 - Livermore Village Infrastructure $
650 583018 - Livermore Village Infrastructure $ 5,000.00 320 586003 - Livermore Village L Street Garage $ 5,000,000.00 TOTAL DOWNTOWN REVITILIZATION $ 7,683,000.00
337 200429 - Doolan Park Landscape Rehabilitation $
337 200646 - Park Facilities Fee Reimbursements $ 500,000.00 001 200654 - Decorative Wall Replacement - Citywide $ 60,000.00 001 201416 - Hagemann Farm Site Assessment & Renovation $ 001 201813 - Citywide Street Tree Irrigation $
001 202014 - Stanley Blvd Median Improvements $
608 202122 - Citywide Sculptures $ 70,000.00
608 202318 - Citywide Art Installation $
337 202319 - Springtown Open Space Phase 1 Improvements $ 001 202324 - Elaine Ave Median Landscaping $
650 202520 - Springtown Boulevard Median Improvements $ 337 202611 - Slurry Seal Northside Aprons and Taxi Lanes $ TOTAL PARKS & BEAUTIFICATION $ 630,000.00
001 200439 - New Civic Center Meeting Hall $ 85,000.00
740 201518 - Carpet Replacement for City Buildings $ 675,000.00 740 201830 - City Hall HVAC & Central Plant Chiller Replacement $ 1,300,000.00 740 201833 - Generator Replacement at Fire Station No. 6 $ 80,000.00 740 201930 - Fleet Services Fuel Dispenser $ 100,000.00 284

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.. ,
Expenditures
. -
651 202104 -Slurry Seal 2023 $ $
740 202104 -Slurry Seal 2024 $ $
TOTAL $ 306,530 $ 310,000
677 202106 -Annual Crosswalk Safety Improvement 2021-22 $ $ TOTAL $ $
650 202107 -ADA Access Ramps 2020-21 $ 53,990 $ 20,000
TOTAL $ 53,990 $ 20,000
221 202112 -Storm Drain Trash Capture Devices $ $
698 202112 -Storm Drain Trash Capture Devices $ $
TOTAL $ $
677 202114 - 2022 ATP Bike Lane Improvements $ $
687 202114 - 2022 ATP Bike Lane Improvements $ $
688 202114 - 2022 ATP Bike Lane Improvements $ $
TOTAL $ $
239 202116 - Railroad Ave Street Improvements $ $
651 202116 - Railroad Ave Street Improvements $ 251,512 $ 100,000 688 202116 - Railroad Ave Street Improvements $ $ 40,000 TOTAL $ 251,512 $ 140,000
320 202118 -Livermore Village Remediation $ 115,000 $ 500,000 337 202118 -Livermore Village Remediation $ 135,000 $ 20,000 611 202118 - Livermore Village Remediation $ 478,120 $ 100,000 TOTAL $ 728,120 $ 620,000
320 202119 -Livermore Village Joint Trench $ $ 200,000
337 202119 -Livermore Village Joint Trench $ 26,022 $ 50,000 650 202119 -Livermore Village Joint Trench $ 26,379 $ 50,000 TOTAL $ 52,401 $ 300,000
001 202120 -Downtown Surface Parking $ $ 80,000
335 202120 -Downtown Surface Parking $ 30,174 $ 50,000
TOTAL $ 30,174 $ 130,000
337 202121 -Veterans Park $ 95,159 $ 20,000
TOTAL $ 95,159 $ 20,000
608 202122 -Citywide Sculptures $ 34,690 $ 70,000
698 202122 - Citywide Sculptures $ $
TOTAL $ 34,690 $ 70,000
698 202123 -Stream Maintenance by Contractors $ 128,514 $ 10,000 TOTAL $ 128,514 $ 10,000
740 202125 - UPS Replacements at Civic Center $ $
TOTAL $ $
740 202126 - Recoating of Civic Center Library $ $
TOTAL $ $
239 202128 -WRP UV Treatment System Replacement $ 2,039 $ 363,000 241 202128 -WRP UV Treatment System Replacement $ 1,000 $ 124,000 TOTAL $ 3,039 $ 487,000
310

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INTEROFFICE MEMORANDUM
Date: June 14, 2024
To: Marianna Marysheva, City Manager
Brent Smith, Community Development Director
Debbie Elam, Acting City Clerk
From: Jason R. Alcala, City Attorney
Subject: Analysis of Referendum Process and Appellate Court Decision in Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024) This memorandum provides information on referenda and their processing, and the Appellate Court decision in the matter of Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024) attached hereto.

I. Referenda.

1. Power of Referendum
The power of referendum is generally reserved to the People of California by the California Constitution.1 Referendum limits the Legislature’s power by reserving to the state electorate the final approval of statutes.
2 Similarly, the California Constitution
reserves to the city’s electors the power of referendum over a city’s legislative acts, subject to procedures that the Legislature shall provide. 3 2. Power of Referendum is Limited to Legislative Acts The right of referendum is jealously guarded by the courts as a fundamental right, but it is well established principal of law by those same courts “that a referendum may be used to review only legislative acts and not executive or administrative acts of a local government.”4
California courts have determined that an act is legislative when it adopts a new policy or plan, declares a public purpose, and provides ways and means of its accomplishment.5 1 Cal.Const.art. IV, § 1.
2 Cal.Const.art. II, § 9(a).
3 Cal.Const.art. II, § 11(a); see also, Cal.Elec.Code §§ 9235 et seq. [setting forth the municipal referendum procedures established by the Legislature].
4 Worthington v. City Council of City of Rohnert Park (2005) 130 Cal.App.4th 1132, 1140. 5 City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 399-400, emphasis, citations, and quotations omitted; see also, 38 Cal.Jur.3d Initiative and Referendum §§ 1 and 10-13; see also, Simpson v. Hite, ATTACHMENT 3
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June 14, 2024

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Those same courts have determined that subsequent actions implementing an adopted policy or plan are administrative and not subject to referendum. 6 California courts have
repeatedly held that the referendum power does not extend to administrative or executive acts.7 Unlike new legislative policy decisions, administrative and executive acts implementing adopted policies are not subject to referendum because those steps are necessary for the efficient administration and operation of government. 8 It bears noting there even a number of legislative acts exempt from referendum.9 As such, the right to referendum is not absolute.

3. Referendum Process
California Elections Code Sections 9235 through 9247 set forth the requirements to process referendum petitions by general law cities like Livermore.

To qualify, Elections Code section 9215 states a referendum petition must contain signatures of at least 10% of registered Livermore voters based on the county election official’s last official Report of Registration to the Secretary of State.

Upon timely submission of a referendum petition, the City Clerk performs a technical review to determine whether the form of the referendum complies with the requirements of the Elections Code. Following the technical review, the City Clerk then performs a prima facie review to determine whether the number of signatures affixed to the petition equals or exceeds the 10% threshold (i.e. the “raw count”). If the number of signatures in the raw count does not equal the 10% threshold, the petition is not accepted for filing and is returned to the petitioner.

Once the petition is accepted for filing, the elections official has 30 days, excluding weekends and holidays, to examine the signatures for validity (i.e. the “signature verification process”). The elections official can perform a full examination of signatures or may use a random sampling method established by the Elections Code. Because Livermore coordinates with Alameda County to conduct elections, the signature verification process is performed by the Alameda County Registrar of Voters.

If the Alameda County Registrar of Voters certifies the referendum is signed by at least 10% of the registered voters in the City, the results of the verification are then certified to (1950) 36 Cal.2d 125, 129-130; see also, Lincoln Property Co. No. 41 Inc. v. Law, (1975) 45 Cal.App.3d 230, 231-232 and 234-35; see also, Fishman v. City of Palo Alto, (19780) 86 Cal.App.3d 506, 511-512; see also, Southwest Diversified, Inc. v. City of Brisbane (1991) 229 Cal.App.3d 1548, 1557-58; see also, Worthington, 130 Cal.App.4th at 1141 (“The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it”); see also, Valentine v. Town of Ross, (1974) 39 Cal.App.3d 954, 957.
6 Ibid. 7 Ibid.
8 Ibid.
9 Cal.Const.art.II, §§ 9(a) and 11(a).

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the City Council. During the pendency of the signature verification process and following certification of the referendum petition, the legislative act protested by the referendum is suspended and the City Council, at its sole discretion, must either repeal the protested legislative act, or call an election for the voters to approve or reject the protested legislative act.
10 Following a repeal or rejection of the protested legislative act, the City Council cannot adopt that same or similar legislative act for a period of one year.11 However, the City Council may nevertheless deal further with the subject matter of the suspended action so long as it avoids the legislative act that was protested.12 That exception is referred to as the Stratham Rule and has been followed and endorsed by several courts.13 It also bears noting the proponent of a referendum may withdraw it at any time before the 88th day before an election without any notice to the persons signing the petition. 14 II. Analysis of Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024)
The First District Court of Appeal opinion in Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024) held that “the construction of and improvements to a new public park” in Resolution No. 2022-085 “was a legislative act subject to the referendum power” because the “agreement at issue approved the construction of and improvements to a new public park.”15 The opinion also held that “the City did not act legislatively in approving loan terms and an indemnity provision relating to hazardous waste” in the Amended and Restated Disposition, Development, and Loan Agreement with Eden Housing.16
The Court reasoned that the primary substantive decisions for the affordable housing project were made prior to 2022 and are not subject to referendum, but that the primary substantive decisions to fund the construction of and improvements to Veterans Park “were only set out in the 2022 Agreement.”17
Based upon the administrative record before it, the Appellate Court determined the Amended and Restated Disposition, Development and Loan Agreement with Eden Housing, Inc. for “the first time, authorizes the construction of and improvements to 10 Cal.Elec.Code §§ 9237 and 9241.
11 Cal.Elec.Code § 9241.
12 In re Stratham, (1920) 45 Cal.App. 436, at 439-440; see also, Reagan v. Sausalito, (1962) 210 Cal.App.2d 618, 629-631; see also, 38 Cal.Jur.3d Initiative and Referendum, § 90. 13 See, Rubalcava v. Martinez, (2007) 158 Cal.App.4th 563, at 569-570; see also, Assembly v. Deukmejian, (1982) 30 Cal.3d 638, at 678; Gilbert v. Ashley, (1949) 93 Cal.App.2d 414, at 415; Martin v. Smith, (1959) 176 Cal.App.2d 115, at 118; Reagan v. City of Sausalito, (1962) 210 Cal.App.2d 618, at 629-630; Lindelli v. Town of San Anselmo, (2003) 111 Cal.App.4th 1099, 1109-1110. 14 Cal.Elec.Code § 9237.2.
15 Move Eden Housing v. Livermore, (2024) 100 Cal.App.5th 263, 269. 16 Ibid, Footnote 1. 17 Move Eden Housing v. Livermore, (2024) 100 Cal.App.5th 263, 278.

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Veteran’s [SIC] Park” and was therefore political in nature and an exercise of its legislative powers.18 The Appellate Court determined that the prior agreement merely contained an option for that work, and that the 2022 agreement for the first time authorized that work. The Appellate Court, however, did not have the benefit of a full administrative record on this matter.

As you and the community are aware, over the years prior to the adoption of Resolution No. 2022-085 the City Council made a series of decisions to implement its legislative decision to approve the location, design, and construction Veterans Park as a City park between the two buildings for the 130 units of workforce housing.

However, that information was not in the record before the Appellate Court, and the Appellate Court’s opinion controls at this time. Therefore, the City Council must now act on the referendum protesting the portion of Resolution No. 2022-085 that approved the construction of and improvements to Veterans Park.

If the administrative record before the Appellate Court contained the City Council’s prior legislative acts, that would have provided the information the Appellate Court needed to determine that it was the City Council’s earlier acts, and not the adoption of Resolution No. 2022-085, that fixed the City’s policy for the construction of and improvements to Veterans Park as a public project just as the Appellate Court did for the portions of the Resolution that approved the affordable housing project.19 As such, I recommend that information be assembled to clearly show that the location, design, and construction of Veterans Park as a City park was not first authorized by Resolution No. 2022-085 so that the administrative record for any subsequent review by the court is complete on that issue.

The City Council must either repeal Resolution No. 2022-085 or send the portions that approved the construction of and improvements to Veterans Park to the voters for approval or rejection. Absent approval by the voters, the construction of and improvements to Veterans Park in the Amended and Restated Disposition, Development and Loan Agreement with Eden Housing is suspended for one-year from the date of repeal or rejection. Consistent with the Stratham rule, the City Council may deal with the remaining subject matter of Resolution No. 2022-085 so long is it avoids, for a period of one year, the protested legislative act to approve the construction of and improvements to Veterans Park.
cc: Paul Spence, Assistant City Manager
Marie Weber, Deputy City Manager
Attachments
Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024) 18 Move Eden Housing v. Livermore, (2024) 100 Cal.App.5th 263, 275-278. 19 Move Eden Housing v. Livermore, (2024) 100 Cal.App.5th 263, 278.

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Move Eden Housing v. City of Livermore, 100 Cal.App.5th 263 (2024) 318 Cal.Rptr.3d 826, 2024 Daily Journal D.A.R. 2083
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 100 Cal.App.5th 263
Court of Appeal, First District, Division 5, California.

MOVE EDEN HOUSING et
al., Plaintiffs and Appellants,
v.

CITY OF LIVERMORE et al.,
Defendants and Respondents;
Eden Housing, Inc., Real Party
in Interest and Respondent.

A167346
|
Filed March 6, 2024
|
As Modified on Denial of Rehearing March 15, 2024
|
Certified for Partial Publication. *
Synopsis
Background: Objectors petitioned for writ of mandate
seeking to compel city, pursuant to Elections Code,
to process objectors' referendum petition challenging
city's resolution approving affordable housing project that contained component of a new public park. Developer
moved for bond. The Superior Court, Alameda County, No. 22CV015399, Michael Markman, J., granted motion for bond and denied petition. Objectors appealed.

Holdings: The Court of Appeal, Simons, J., held that:
city's adoption of resolution was a legislative act subject to local referendum power;
city did not act as state's administrative agent under statutes dissolving community redevelopment agencies; and
proceeding was to enforce Elections Code thus precluding statutory bond requirement.

Reversed and remanded with directions.

Procedural Posture(s): Petition for Rehearing; On Appeal; Petition for Writ of Mandate; Motion for Bond.
**829 Trial Court: Alameda County Superior Court, Trial Judge: Hon. Michael Markman (Alameda County Super. Ct.

No. 22CV015399)
Attorneys and Law Firms
Latham & Watkins LLP, Winston P. Stromberg, Michelle
Cornell-Davis, Los Angeles, and Kevin A. Homrighausen,
Costa Mesa, for Plaintiffs and Appellants.

Richards, Watson & Gershon, T. Peter Pierce and Steven A.

Nguy, San Francisco; Jason Alcala and Kimberly D. Cilley, City Attorney, for Defendants and Respondents.

Cox, Castle & Nicholson LLP, Andrew B. Sabey, Scott B.

Birkey, San Francisco, Robbie C. Hull, for Real Party in Interest and Respondents.

Opinion
SIMONS, J.
*268 Plaintiffs and appellants Move Eden Housing (Move
Eden), Richard Ryon, and Thomas Ramos (jointly, plaintiffs) appeal the superior court's denial of their petition for a writ of mandate requiring respondents City of Livermore (City) and Livermore City Clerk Marie Weber (City Clerk) (jointly, respondents) to process plaintiffs’ referendum petition in accordance with the Elections Code. The proposed referendum challenges a City Council resolution approving a development agreement between the City and real party in interest Eden Housing, Inc. (Eden Housing) for development of housing in downtown Livermore.

The referendum petition presented to the City Clerk contained more than the minimum number of signatures required by
the Election Code, but, on advice from the City Attorney, the City Clerk refused to take further action on the petition. The City took the position that the proposed referendum would *269 be invalid because the challenged resolution was an administrative act. The superior court agreed and denied the writ petition.

We reverse. Adoption of the challenged resolution was a legislative act subject to the referendum power, because the development agreement at issue approved the construction of and improvements to a new public park. 1 We also conclude that, in approving the development agreement, the City did not act as an administrative agent for the State of California under the statutes dissolving California's redevelopment ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 2 agencies, enacted starting in 2011. We direct the superior court to order respondents to process the referendum petition as required by the Elections Code. We also reverse the court's order requiring plaintiffs to file an undertaking under Code of Civil Procedure section 529.2 as a security for costs and damages due to the action.

BACKGROUND
The present appeal involves a proposed residential
development and new public park in downtown Livermore
(the Project), at the location of a former supermarket, in an area bounded by Railroad Avenue, Livermore Avenue,
First Street, and L Street (the Property). (See **830
Save Livermore Downtown v. City of Livermore (2022)
87 Cal.App.5th 1116, 1122, 304 Cal.Rptr.3d 103 (Save
Livermore Downtown) [describing the Project in a proceeding challenging the City's compliance with environmental and zoning laws].)
In 2008, the City's former Redevelopment Agency acquired the Property using the City's inclusionary housing funds, and, in 2009, a portion of the purchase price was refinanced using “Residential Development Loan Program” funds from the State of California. The funds were awarded to the City for “site acquisition and pre-development expenses” in the City's downtown. The City loaned the funds to the former Redevelopment Agency, and a deed restriction was recorded requiring any development of the Property to include “at least” 28 units of “low-income” housing and 56 units of “moderate-income” housing. The restriction was “a condition of accepting” the development funds from the State. When the State of California dissolved the Redevelopment Agency (see Part IV.A., post), the Property was included in a long range property management plan (Long Range Plan), which the State approved. The Long Range Plan identified the
Property as a housing asset to be transferred to the City as the successor to the former redevelopment agency; it specified that the “goal” is to develop the Property “as a high density residential project with an affordable component and repay the $5,000,000 State” redevelopment loan.
*270 In 2018, the City and Eden Housing entered
into a Disposition and Development and Loan Agreement
for development of the Property (2018 Agreement). The
2018 Agreement recited that, in January, the City Council “approved the development of the Livermore Village Site 2 to include a public park, up to 130 units of workforce housing, a science center, a black box theater, and retail space.” The City selected Eden Housing to develop housing at the Property, and the agreement states a portion of the Property “will be dedicated to the City for a park.” The City agreed to sell the Property to Eden Housing, after satisfaction of various conditions, for the Property's fair market value at the time of sale and to make “a future acquisition loan to [Eden Housing] in the amount of the Purchase Price of the Property.” The term of the loan would be 55 years, at either “3% annual simple interest” or “the long-term applicable federal rate for annual compounding published by the Internal Revenue Service,” with the City and Eden Housing agreeing “upon the Site Acquisition Loan's applicable interest prior to Site acquisition, based on the Project's overall financial feasibility and Investor requirements.” The 2018 Agreement also stated that Eden Housing “and City shall enter into an indemnity agreement to apportion any potential liability related to Hazardous Materials at, on, in, beneath, or from the Property from and after the date of the close of escrow between the Parties. The form of the indemnity agreement shall be mutually agreed upon by the Parties.”
In December 2020, the City reviewed “Conceptual Plans” and “instructed staff to move forward” (capitalization omitted) with the Project. In May 2021, the City approved land
use entitlements for the Project, subject to conditions. That same month, the City approved an amended development
agreement (2021 Agreement). The approval resolution and the 2021 Agreement recited that the City and Eden Housing “wish to amend the [2018 Agreement] to clarify the definition of the Property subject to transfer by City for development of the Project, define development and financial obligations for Veteran's Park, allow for reimbursement by City to
**831 Developer for certain emergency vehicle access
road improvements adjacent to the Project, and to update the entitlement, financing and development timeline in the Schedule of Development.” With respect to the park, the 2021 Agreement stated, “[a]t City's option, City and Developer may negotiate a future construction and reimbursement
agreement with Developer to coordinate the construction of the Veteran's Park Improvements. These improvements would be exclusive of any development loan provided by the City for development of the Project.”
In June 2021, a group known as Save Livermore Downtown
filed a petition for a writ of mandate alleging that the City violated the California Environmental Quality Act (CEQA) and state and local planning and zoning laws in approving the Project. The *271 trial court denied the petition and ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 3 this court affirmed. (Save Livermore Downtown, supra, 87 Cal.App.5th 1116, 304 Cal.Rptr.3d 103.)
On May 24, 2022, the City adopted Resolution No. 2022-085 (the Resolution), which is the subject of the present action.

The Resolution authorized the execution of an “Amended and Restated Disposition, Development and Loan Agreement” for the Project (2022 Agreement). The 2022 Agreement states that it supersedes the original 2018 Agreement, as amended in 2021. Among other provisions, the 2022 Agreement requires the City to make a loan to Eden Housing for the purchase price of the Property ($7.8 million), at an interest rate of 3 percent and payable over 55 years. The 2022 Agreement also reflects the City's decision to spend $5.5 million on constructing and improving Veteran's Park as part of the Project. In particular, the agreement provides, “The Parties agree that the Developer will manage the construction of the Veteran's Park Improvements but that the City will pay for the costs of the Veteran's Park Improvements at its sole expense. City and Developer will negotiate a future construction management and reimbursement agreement to coordinate the construction of the Veteran's Park Improvements. The Agreement shall authorize reimbursement for the construction of the park, per the designs and specifications issued by the City, and shall not exceed [$5.5 million] ... without additional approval of the City Council.” Finally, to address historic subsurface contamination of the Property, the 2022 Agreement requires the City and Eden Housing to enter into an indemnity
agreement “to apportion costs and potential liability related to Hazardous Materials” at the Project site, with the City's obligation not to exceed $4.3 million.

On May 27, 2022, counsel for plaintiff and appellant Richard Ryon provided the City Clerk with a proposed summary of the Resolution for the purpose of a proposed referendum on the Resolution. On June 3, plaintiff and appellant Move Eden was formed to, among other things, promote the
qualification of the proposed referendum. On June 9, the City Attorney approved a summary for purposes of the proposed referendum. Move Eden then sought to obtain the statutorily required number of signatures from registered voters to qualify the referendum for the November 2022 ballot. On July 8, the referendum proponents submitted the referendum petition to the City Clerk with more than the required number of signatures.

On July 13, 2022, the City Clerk sent a letter to plaintiff and appellant Ryon stating that she “took in the petition ... for the purpose of making the prima facie count of signatures to determine whether the total number of signatures equals or is in excess of the minimum number of signatures *272 required, which is 5,702,” citing **832 Elections Code
section 9210.
3 A prima facie signature count was prepared,
counting 9,737 total signatures and noting it was “not a determination that signatures are valid.” However, rather than accepting the petition for filing and determining the validity of the signatures pursuant to statutory requirements (see Part II, post), the City Clerk's letter stated that, “[b]ased on the advice from the City Attorney and special counsel, ... the City has determined that Resolution No. 2022-085 was an administrative act, not a legislative act, and not subject to referendum.” On that basis, the City Clerk stated that the petition is “not eligible for filing or processing as a referendum” and “the City is taking no further action on this petition.”
In August 2022, plaintiffs commenced the present action by filing a petition for writ of mandate (Petition) seeking to compel the City and the City Clerk to process the referendum petition in accordance with the Elections Code.

In September 2022, Eden Housing filed a motion for a bond pursuant to Code of Civil Procedure section 529.2. In October, the superior court granted the motion, directing plaintiffs to file an undertaking in the amount of $500,000 as security for costs and damages due to the action.

In January 2023, the superior court denied the Petition on the merits. The court concluded the Resolution was not subject to challenge by referendum because it was an administrative act or, in the alternative, because the City acted as an administrative agent of the State in adopting it. The court concluded that either it was lawful for the City Clerk to refuse to process the referendum petition, or it is proper to “ ‘retroactively validate[ ]’ ” the conclusion that the proposed referendum is invalid, even if the City Clerk violated the law.

The superior court denied the Petition, and the present appeal followed.

DISCUSSION
I. Standard of Review
A traditional writ of mandate under Code of Civil Procedure section 1085 “ ‘is used to compel a public entity to perform a legal and usually ministerial duty.’ ” (Schmid v. City & County of San Francisco (2021) 60 Cal.App.5th 470,
484–485, 274 Cal.Rptr.3d 727.) “ ‘On appeal following a ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 4 trial court's decision on a petition for a writ of mandate, the reviewing court “ ‘need only review the record to
determine whether the trial court's findings are supported by substantial evidence.’ ” [Citation.] However, we review *273 questions of law independently. [Citation.] Where, as here, the facts are undisputed and the issue involves statutory interpretation, we exercise our independent judgment and review the matter de novo. [Citation.]’ [Citations.] [¶] The trial court's determination that [respondents’] actions did not violate the Elections Code is a legal finding subject to independent review.” (Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, 1104, 4 Cal.Rptr.3d 453 (Lindelli).) II. Referendum Process and Judicial Review
“Under the California Constitution, ‘[t]he legislative power of this State is vested in the California Legislature ... but the people reserve to themselves the powers of initiative and referendum.’ (Cal. Const., art. IV, § 1.) ... The initiative power allows voters to propose new measures and place them on the ballot for a popular vote. If the measure is approved by popular vote, it becomes law. (Cal. Const., art. II, §§ 8, 10, subd. (a).) The referendum power, by contrast, allows voters **833 to weigh in on laws that have already been passed by their elected representatives. Any voter or group of voters that gathers enough signatures can place a legislative enactment on the ballot for an up or down vote. A referendum suspends operation of the law until it is approved by a majority of voters.” (Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105, 1111, 266 Cal.Rptr.3d 688, 470 P.3d 590.)
“Under [ ] section 9237, if a petition protesting the adoption of an ordinance is signed by more than 10 percent of the voters of the city, ‘the effective date of the ordinance shall be suspended and the legislative body shall reconsider the ordinance.’ If the legislative body does not repeal the ordinance, then it ‘shall submit the ordinance to the voters’ and ‘[t]he ordinance shall not become effective until a majority of the voters voting on the ordinance vote in favor of it.’ ([ ]§ 9241.) Local governments are not empowered to exercise discretion in determining whether a duly certified referendum is placed on the ballot. [Citations.] If the local government believes an initiative or referendum is unlawful and should not be presented to voters, it should file a petition for a writ of mandate seeking to remove it from the ballot.” (Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, 663, 229 Cal.Rptr.3d 238 (Save Lafayette); see also Friends of Bay Meadows v. City of San Mateo (2007) 157 Cal.App.4th 1175, 1185–1186, 68 Cal.Rptr.3d 916 (Bay Meadows).) 4
*274 Although the law is clear that local governments
are not permitted to refuse to process a referendum due to concerns about its validity, “[i]n practice, and in the interest of equity and judicial economy, courts have allowed local governments to assert such invalidity as a ‘defense’ in the original writ proceeding. [Citation.] But in doing so, neither courts nor litigants should lose sight of the fact that the burden of establishing this ‘defense’ falls squarely on the entity or person asserting the” referendum's invalidity. (Save Stanislaus, supra, 13 Cal.App.4th at p. 150, 16 Cal.Rptr.2d 408.) The standard for such “preelection review” of a
referendum “is one of great deference where ‘a court will remove an initiative [or referendum] from the ballot only “on a compelling showing that a proper case has been established for interfering.” ’ [Citation.] If a city refuses to place a referendum on the ballot, ‘this refusal—improper as it is —may be retroactively validated by a judicial declaration that the measure should not be submitted to the voters.’ ” (Save Lafayette, supra, 20 Cal.App.5th at pp. 663–664, 229 Cal.Rptr.3d 238.)
“The Constitution ‘speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.’ [Citation.] Since then, courts have **834
consistently declared it their duty to ‘ “jealously guard” ’ and liberally construe the right so that it ‘ “be not improperly annulled.” ’ [Citation.] Moreover, when weighing the tradeoffs associated with the initiative [or referendum] power, we have acknowledged the obligation to resolve
doubts in favor of the exercise of the right whenever
possible.” (California Cannabis Coal. v. City of Upland (2017) 3 Cal.5th 924, 934, 222 Cal.Rptr.3d 210, 401 P.3d 49; see also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473 (Associated Home Builders).)
Respondents appear to argue the City Clerk's action was not unlawful because the superior court subsequently agreed the proposed referendum was invalid. They are mistaken.

An election official may not “refuse to submit an initiative [or referendum] measure to the electorate on the ground that it deals with a matter not subject to the initiative [or referendum].” (Farley v. Healey (1967) 67 Cal.2d 325, 327, 62 Cal.Rptr. 26, 431 P.2d 650; accord Yost, supra, 36 Cal.3d at p. 564, fn. 2, 205 Cal.Rptr. 801, 685 P.2d 1152 [following Farley in referendum context]; see also Bay Meadows, supra, 157 Cal.App.4th at p. 1187, 68 Cal.Rptr.3d 916 [“The role of the election official is meant to be as impersonal as ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 5 possible. There is to be no concern *275 with whether
a referendum ‘will be valid if enacted.’ ”].) Rather, “In certifying a referendum petition, a clerk's duty is limited to the ministerial function of determining whether the procedural requirements have been met.” (Lin v. City of Pleasanton (2009) 175 Cal.App.4th 1143, 1155, 96 Cal.Rptr.3d 730, 176 Cal.App.4th 408 (2009).) The case respondents rely upon, Am. Fed'n of Lab. v. Eu (1984) 36 Cal.3d 687, 206 Cal.Rptr. 89, 686 P.2d 609, is not to the contrary. That case did not involve a local government's refusal to process a petition; instead, opponents of an initiative filed an action to prevent it from appearing on the ballot. (Id. at p. 694, 206 Cal.Rptr. 89, 686 P.2d 609.)
In the present case, the City Clerk made a determination “that the number of signatures, prima facie, equals or is in excess of the minimum number of signatures required.” (§ 9210, subd. (b).) In these circumstances, the law directs that the clerk “shall accept the petition for filing” (§ 9210, subd. (b)) and then “shall examine the petition and certify the results” pursuant to statutory procedures (§ 9240). 5 “The word ‘shall’ indicates a mandatory or ministerial duty.” (Lazan v. Cnty. of Riverside (2006) 140 Cal.App.4th 453, 460, 44 Cal.Rptr.3d 394.) But, instead of complying with her statutory obligations, the City Clerk refused to process the referendum petition based on legal advice that the Resolution was not subject **835 to the referendum power. In doing so, the City Clerk violated her duties under the Elections Code. “ ‘Improper as’ ” the clerk's conduct was, we nevertheless proceed to the question of whether the City has made a “ ‘ “compelling showing” ’ ” that the proposed referendum “ ‘should not be submitted to the voters.’ ” (Save Lafayette, supra, 20 Cal.App.5th at pp. 663–664, 229 Cal.Rptr.3d 238).

III. Due to The Policy Decision to Construct and Improve Veteran's Park, Adoption of The Resolution Was a
Legislative Act
“Courts have long observed that ‘[t]he power of referendum applies only to acts that are legislative in character; executive or administrative acts *276 are not within the scope of that remedy.’ ... ‘This legislative-administrative dichotomy reflects a determination to balance the ideal of direct legislation by the people against the practical necessity of freeing municipal governments from time consuming and
costly referenda on merely administrative matters.’ ” (San Bruno Comm. for Econ. Just. v. City of San Bruno (2017) 15 Cal.App.5th 524, 530, 223 Cal.Rptr.3d 250 (San Bruno); see also Yost, supra, 36 Cal.3d at p. 569, 205 Cal.Rptr. 801, 685 P.2d 1152 [“The powers of referendum and initiative apply only to legislative acts by a local governing body.”].) “Although the test is not precise and the published decisions reflect some inconsistency in approach, ‘[l]egislative acts generally are those which declare a public purpose and make provisions for the ways and means of its accomplishment.

Administrative acts, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body.’ [Citation.] Alternatively stated, ‘ “[t]he power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.” ’ [Citation.] ‘The plausible rationale for this rule espoused in numerous cases is that to allow the referendum or initiative to be invoked to annul or delay the executive or administrative conduct would destroy the efficient administration of the business affairs of a city or municipality.’ ” (San Bruno, supra, 15 Cal.App.5th at p. 530, 223 Cal.Rptr.3d 250 [italics omitted].)
The Supreme Court's decision in Hopping v. Council of
Richmond (1915) 170 Cal. 605, 150 P. 977 (Hopping), is
instructive. In Hopping, the issue was whether city council resolutions providing “for the acquisition ... of certain tracts of land and the construction of a building thereon for a city hall and city offices” were legislative and subject to referendum. (Id. at p. 607, 150 P. 977.) The Supreme Court concluded the challenged resolutions were legislative because “[t]hey involved and required a determination by the council that the public interest of the city required that it should have a city hall, that the same should be located on the land offered for that purpose, that said offer should be accepted, that a suitable building should be erected thereon, that the money of the city should be appropriated and used in the construction thereof, and that, when completed, the building should be occupied and used by the city officers as a city hall and for municipal purposes ....” (Id. at pp. 614–615, 150 P. 977; see also Citizens Against a New Jail v. Bd. of Supervisors (1976) 63 Cal.App.3d 559, 563, 134 Cal.Rptr. 36 [“factors of cost and practicality” make decision to build new jail or renovate old jail legislative]; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 581, 104 Cal.Rptr. 793 [whether to invest public funds **836 in a municipal golf course is a legislative policy decision]; Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 624, 628, 26 Cal.Rptr. 775
(Reagan) [decision to purchase property is a legislative act]; Knowlton v. Hezmalhalch (1939) 32 Cal.App.2d 419, 435,
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 6 89 P.2d 1109 [determination *277 to construct city hall and appropriation of funds therefor were legislative acts]; Burdick v. City of San Diego (1938) 29 Cal.App.2d 565, 569, 84 P.2d 1064 (Burdick) [determination to construct police station and appropriation of funds therefor were legislative acts].) The 2022 Agreement, for the first time, authorizes the
construction of and improvements to Veteran's Park.

Respondents argue the City had “already approved a future negotiation” regarding construction of Veteran's Park, but we observe that the 2021 Agreement only states the City in its “sole discretion” has the “option” to negotiate an agreement to fund construction of the park and improvements. At oral argument, respondents argued only that the 2021 Agreement “put[ ] the possibility on the table.” (Italics added.) Thus, the record demonstrates that the Resolution approving the 2022 Agreement was the initial relevant policy determination regarding the park's construction and improvements. Contrary to respondents’ suggestion, with respect to the park, the Resolution did not involve merely the City's determination to appropriate specific amounts of public funds for a plan that had already been adopted.

Burdick informs this analysis. There, the City of San Diego decided to erect a police station at a designated site and, in a series of acts, developed plans for the facility and appropriated funds for the project. (Burdick, supra, 29 Cal.App.2d at pp. 566–568, 84 P.2d 1064.) Subsequently, the city council approved a resolution authorizing a call for construction bids. (Id. at pp. 568–569, 84 P.2d 1064.) The court of appeal held that the final resolution was not subject to referendum, explaining, “Prior to the passage of [the resolution], the site for the police station had been designated and accepted. The city council had decided to erect the structure on that site. Money for the work had been appropriated and was available. The plans for the building had been approved and remained unchanged. The specifications and form of the contract had been approved. The three earlier acts were legislative in character and fixed the policy of the City of San Diego to erect the police station on the designated site.” (Id. at p. 569, 84 P.2d 1064.) In the present case, the challenged Resolution is not analogous to the final resolution at issue in Burdick; instead, in approving the construction and improvement of Veteran's Park, the Resolution corresponds to the prior legislative approval of construction of a police station.

The trial court relied on San Bruno, supra, 15 Cal.App.5th 524, 223 Cal.Rptr.3d 250, in deciding adoption of the
Resolution was an administrative act. In San Bruno, the Court of Appeal concluded a resolution approving the sale of property to a hotel developer was not a legislative act subject to a referendum. (Id. at p. 528, 223 Cal.Rptr.3d 250.) The San Bruno court distinguished Hopping in language that undermines respondents’ position: “In the present case, the City is not acquiring land for any municipal purpose, and is not appropriating any of its own funds in *278 connection with the real estate transaction. Instead, the City is selling land to a private developer for a profit, and is not providing any subsidy to the developer.” (San Bruno, 15 Cal.App.5th at p. 531, 223 Cal.Rptr.3d 250.) In contrast, the Resolution at issue here involves a public policy determination to construct and improve Veteran's Park **837 at the public's expense. (Hopping, supra, 170 Cal. at pp. 613–614, 150 P. 977.)
San Bruno also concluded the contract to sell land in that case was an administrative act because “the primary substantive decisions pertaining to the proposed development [had]
already been made.” (San Bruno, supra, 15 Cal.App.5th at p. 536, 223 Cal.Rptr.3d 250.) In the present case, although the “primary substantive decisions” relating to the housing aspects of the Project were made prior to the 2022 Agreement, the “primary substantive decisions” regarding Veteran's Park were only set out in the 2022 Agreement. (Cf. id. at p. 536, 223 Cal.Rptr.3d 250 [noting that the resolution at issue in the case did “not include any new action to further amend the Specific Plan, adopt new legislation, or otherwise take legislative action”].) The City's decision to construct and improve Veteran's Park for $5.5 million was “political in nature” (id. at p. 534, 223 Cal.Rptr.3d 250), and, in so deciding, the City “could consider the questions of public good, public interests, and public policy involved solely by virtue of and in the exercise of its legislative powers, and its action thereon was clearly an act in the exercise of that power.” (Hopping, supra, 170 Cal. at p. 615, 150 P. 977.) IV. The City Was Not Acting as the State's Administrative Agent in Approving the Resolution
The superior court also accepted respondents’ argument
that, even if the Resolution would typically be considered a legislative act, approval of the Resolution was, in the language of Yost, “administrative in nature by virtue of the fact that the council was acting under the authority delegated by the state to implement [the redevelopment dissolution process]—that, in effect, the [dissolution law] preempts the exercise of the power of referendum.” (Yost, supra, 36 Cal.3d at p. 570, 205 Cal.Rptr. 801, 685 P.2d 1152.) We reject that alternate basis to affirm.

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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 7 A. Legal Principles and the Dissolution Law
“Acts of a local governing body which, in a purely local context, would otherwise be legislative and subject to
referendum may ... become administrative ‘in a situation in which the state's system of regulation over a matter of statewide concern is so pervasive as to convert the local legislative body into an administrative agent of the state.’ ” (Yost, supra, 36 Cal.3d at p. 570, 205 Cal.Rptr. 801, 685 P.2d 1152.) Stated differently, acts are considered administrative where “the state has acted to establish the basic policy and has vested the responsibility for carrying out that policy” to a local governing body. (Simpson v. Hite (1950) 36 Cal.2d 125, 130, 222 P.2d 225.) Nevertheless, in light of the presumption in *279 favor of the right to initiative and referendum, there must be a “definite indication that the Legislature, as part of the exercise of its power to preempt all local legislation in matters of statewide concern, has intended to restrict that right.” (DeVita, supra, 9 Cal.4th at p. 776, 38 Cal.Rptr.2d 699, 889 P.2d 1019; accord City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, 1078–1079, 236 Cal.Rptr.3d 835, 423 P.3d 960 (Bushey).)
“In the aftermath of World War II, the Legislature
authorized the formation of community redevelopment
agencies in order to remediate urban decay. [Citations.] The Community Redevelopment Law ‘was intended to help local governments revitalize blighted communities.’ ” (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 245–246, 135 Cal.Rptr.3d 683, 267 P.3d 580 (Matosantos); see also **838 Marek v. Napa Cmty. Redevelopment Agency (1988) 46 Cal.3d 1070, 1082, 251 Cal.Rptr. 778, 761 P.2d 701 [the redevelopment law was intended to remove and prevent blight, to create jobs and low-to-moderate income housing, and to attract private investment].)
“[I]n the summer of 2011 the Legislature enacted
legislation ... that barred any new redevelopment agency obligations, and established procedures for the windup and dissolution of the obligations of the nearly 400 redevelopment agencies then existing.” (City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1463, 176 Cal.Rptr.3d 729.) 6 The move “reflected a state policy to curtail perceived abuses of the [redevelopment law] by which [redevelopment
agencies] and their ‘sponsor’ entities (usually cities) ... used an increasing share of local property taxes as ‘tax increments’ (increases in property tax attributable to [agency] projects) for their own benefit.” (City of Grass Valley v. Cohen (2017) 17 Cal.App.5th 567, 573, 226 Cal.Rptr.3d 543; see also Matosantos, supra, 53 Cal.4th at p. 248, 135 Cal.Rptr.3d 683, 267 P.3d 580 [explaining that the Legislature was
particularly concerned that property tax revenues were shifted away from school districts]; id. at p. 247, 135 Cal.Rptr.3d 683, 267 P.3d 580 [pointing out that, by 2011, redevelopment agencies received “12 percent of all property tax revenue in the state”]; Stephenshaw, supra, 91 Cal.App.5th at p. 357, 308 Cal.Rptr.3d 418.)
Prior to dissolution, redevelopment agencies were
usually “governed by the sponsoring community's own
legislative body. [Citations.] An agency [was] *280
authorized to ‘prepare and carry out plans for the
improvement, rehabilitation, and redevelopment of blighted areas.’ [Citation.] To carry out such redevelopment plans, agencies [could] acquire real property ... and undertake certain improvements to other public facilities in the project area [citation]. While redevelopment agencies [ ] used
their powers in a wide variety of ways, in one common
type of project the redevelopment agency [bought] and
[assembled] parcels of land, buil[t] or enhance[d] the
site's infrastructure, and transfer[red] the land to private parties on favorable terms for residential and/or commercial development.” (Matosantos, supra, 53 Cal.4th at p. 246, 135 Cal.Rptr.3d 683, 267 P.3d 580.)
As explained in Matosantos, the redevelopment dissolution legislation “dissolves all redevelopment agencies [citation] and transfers control of redevelopment agency assets to successor agencies, which are contemplated to be the city or county that created the redevelopment agency [citations].... [S]uccessor agencies [are required] to continue to make payments and perform existing obligations.” (Matosantos, supra, 53 Cal.4th at p. 251, 135 Cal.Rptr.3d 683, 267 P.3d 580; see also Health and Saf. Code, § 34167; Stephenshaw, supra, 91 Cal.App.5th at pp. 357–358, 308 Cal.Rptr.3d 418.) As relevant in the present case, Health and Safety Code section 34191.5, subdivision (b) requires a successor agency to “prepare a long-range property management **839 plan that addresses the disposition and use of the real properties of the former redevelopment agency” and submit the plan for approval by the Department of Finance and a local “oversight board” (id. at § 34179). The plan must inventory the former redevelopment agency properties with specified information and “[a]ddress the use or disposition of all of the properties in the trust.” (Id. at § 34191.5, subd. (c).) A property may not be transferred “unless the long-range property management plan ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 8 has been approved by the oversight board and the Department of Finance.” (Id. at § 34191.5, subd. (c)(2)(C).) In reviewing such a plan, “[t]he department shall only consider whether the long-range property management plan makes a good faith effort to address the requirements set forth in subdivision (c)” (id. at § 34191.5, subd. (d)), requiring an inventory and proposed disposition of all properties. An approved plan “govern[s], and supersede[s] all other provisions relating to, the disposition and use of the real property assets of the former redevelopment agency.” (Id. at § 34191.3, subd. (a).) Finally, the legislation specifies that “[a]ctions to implement the disposition of property pursuant to an approved longrange property management plan shall not require review by the department.” (Id. at § 34191.5, subd. (f).)
B. Respondents’ Authorities
The City's Long Range Plan identified the Property as a housing asset to be transferred to the City with the “goal” of development of a “high density *281 residential project with an affordable component.” The Long Range Plan was
approved by the Department of Finance.

Respondents assert that “Redevelopment Dissolution
preempts local governments’ legislative powers,” but they do not clarify why that is so. Although the Dissolution Law required the City to inventory and describe the disposition of the former redevelopment agency properties, and although the approved Long Range Plan thereafter governed the
disposition of the Property, respondents fail to explain how that rendered the City's decision to construct and
improve Veteran's Park administrative. The Long Range Plan says nothing about the construction of a public park, and respondents are misplaced in arguing the City merely acted as an administrative agent of the State in making the policy decision to do so.

The cases respondents rely upon are distinguishable
because they involve instances where “the local legislative body's discretion was largely preempted by statutory
mandate.” (DeVita, supra, 9 Cal.4th at p. 776, 38 Cal.Rptr.2d 699, 889 P.2d 1019.) Thus, in Simpson v. Hite, supra, 36 Cal.2d 125, 133–134, 222 P.2d 225, the court held that
the initiative or referendum power could not be used to interfere with a board of supervisors’ duty to provide suitable accommodations for courts. But, as explained in Yost, supra, 36 Cal.3d at p. 573, 205 Cal.Rptr. 801, 685 P.2d 1152, “the only discretion left to the local government by the Legislature in Simpson was the choice of a site for a municipal and superior court. The board of supervisors had a duty to provide suitable quarters for the courts...” (See also Bushey, supra, 5 Cal.5th at p. 1083, 236 Cal.Rptr.3d 835, 423 P.3d 960 [distinguishing Simpson on same ground]; Associated Home Builders, supra, 18 Cal.3d at p. 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473 [characterizing Simpson as a case “in which the state's system of regulation over a matter of statewide concern is so pervasive as to convert the local legislative body into an administrative agent of the state”].) No analogous mandate constrained the City's discretion here.
**840 Also distinguishable are cases arising in the context of the Housing Authorities Law, enacted “to take advantage of the federal loans provided by the United States Housing Authority Act of 1937” and thereby provide for “lowrent, safe and sanitary dwellings” throughout the State. (Kleiber v. San Francisco (1941) 18 Cal.2d 718, 719, 723, 117 P.2d 657 (Kleiber).) The court in Kleiber rejected a claim that certain contracts entered into pursuant to the Housing Authorities Law were void because they were
legislative acts that under the San Francisco charter had to be accomplished by ordinance. (Kleiber, at p. 719, 117 P.2d 657.) The court concluded that the challenged resolutions were administrative, because “[t]he public purpose here involved was declared and made law by the legislature of this state ....” (Id. at p. 723, 117 P.2d 657.) Upon a local finding of necessity, the law provided for the operation of a local housing authority and “prescribed the powers, duties and obligations of the authority and of the city in carrying out *282 its salutary purposes. Every necessary legislative act was completed by the legislature. There was nothing left to do except to administer the law.” (Id. at pp. 720, 724, 117 P.2d 657.)
In Hous. Auth. of City of Los Angeles v. City of Los Angeles (1952) 38 Cal.2d 853, 243 P.2d 515 (Housing Authority of L.A.), the City of Los Angeles sought to avoid performance of its obligations under an agreement between the city
and the local housing authority relating to a previously approved project. (Id. at pp. 856–857, 243 P.2d 515.) The Supreme Court concluded that the applicable state and
federal laws did not permit “the city's attempted cancellation, abandonment and abrogation of its contracts.” (Id. at p. 870, 243 P.2d 515.) Citing Kleiber, the court concluded that, “having taken the initial discretionary action to bring the housing authority into operation and having approved a project and entered into a cooperation agreement, there was nothing left to be done by either contracting party but to perform administratively whatever was necessary to carry the agreement into effect.” (Id. at p. 862, 243 P.2d 515.)
ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 9 A third housing authority case not cited by the parties is Hous. Auth. of City of Eureka v. Superior Ct. of
Humboldt Cnty. (1950) 35 Cal.2d 550, 219 P.2d 457 (Housing Authority of Eureka). That case, unlike Kleiber and Housing Authority of L.A., did involve the referendum power. There, citizens sought to challenge by referendum the local housing authority's application to the federal government for a loan of money to be used in the construction of low-rent public housing, approved by the city council. (Id. at pp. 552–555, 219 P.2d 457.) Citing Kleiber, the Supreme Court concluded that the city acted administratively in approving the loan application and, therefore, the resolution was not subject to the referendum power. (Housing Authority of Eureka, at pp. 558–559, 219 P.2d 457.)
The Supreme Court subsequently narrowly construed the
Housing Authority of Eureka decision. Bushey characterized the decision as one “where state law mandates a certain result with no discretion or that involves an ‘administrative’ task.” (Bushey, supra, 5 Cal.5th at p. 1083, 236 Cal.Rptr.3d 835, 423 P.3d 960.) Similarly, the court in DeVita, supra, 9 Cal.4th at p. 776, 38 Cal.Rptr.2d 699, 889 P.2d 1019, characterized the Housing Authority of Eureka decision as involving an “area[ ] in which the local legislative body's discretion was largely preempted by statutory mandate.” The present case is distinguishable. The redevelopment
dissolution laws sought to free up real estate resources held by redevelopment agencies while still honoring prior commitments. ( **841 Stephenshaw, supra, 91 Cal.App.5th at pp. 357–358, 308 Cal.Rptr.3d 418.) While the Long Range Plan specifies use of the Property as high density housing with an affordable component, in deciding to construct and improve Veteran's Park, the City made discretionary policy determinations that were not dictated by the Long Range Plan or any provision of the Dissolution Law. Accordingly, contrary to respondents’ view, this is not a case where there is a “ ‘definite indication’ or a ‘ “clear showing” ’ ” the Legislature intended, in *283 enacting the Dissolution Law, to “limit[ ] the local legislative body's discretion such that its task is ‘administrative’ rather than ‘legislative.’ ” (Bushey, 5 Cal.5th at p. 1079, 236 Cal.Rptr.3d 835, 423 P.3d 960.) 7 C. The Yost and Bushey Decisions
Yost, supra, 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152, is instructive. That case involved a petition for writ of mandate to compel a city clerk to process a referendum petition challenging a city council's authorization of a hotel and conference center on undeveloped coastal land pursuant to the city's local coastal plan approved by the Coastal Commission. (Id. at pp. 565–566, 569, 205 Cal.Rptr. 801, 685 P.2d 1152.) The Supreme Court held that the Coastal Act did not preempt local planning authority or the power of the voters to act through referendum. (Id. at p. 565, 205 Cal.Rptr. 801, 685 P.2d 1152.) Although the court recognized that “the Coastal Act is an attempt to deal with coastal land use on a statewide basis,” the court observed that the act only “sets minimum standards and policies with which local governments within the coastal zone must comply; it does not mandate the action to be taken by a local government in implementing local land use controls.” (Id. at pp. 571– 572, 205 Cal.Rptr. 801, 685 P.2d 1152.) Because the law “leaves wide discretion to a local government not only to determine the contents of its land use plans, but to choose how to implement these plans,” in making planning decisions “a city is acting legislatively and its actions are subject to the normal referendum procedure.” (Id. at p. 573, 205 Cal.Rptr. 801, 685 P.2d 1152.) Similarly, the Dissolution Law and the approved Long Range Plan left wide discretion to the City in determining the content of the 2022 Agreement. 8
Bushey, supra, 5 Cal.5th 1068, 236 Cal.Rptr.3d 835, 423 P.3d 960, though not cited by the parties, is also instructive. In Bushey, a city filed a petition for writ of mandate contesting the validity of a referendum on a city rezoning ordinance in support of a hotel project. ( **842 Id. at pp. 1076– 1077, 236 Cal.Rptr.3d 835, 423 P.3d 960.) The Supreme
Court held the ordinance was *284 subject to challenge
by referendum even though, if approved, the referendum
would create a temporary inconsistency with the city's general plan. (Id. at pp. 1075–1076, 236 Cal.Rptr.3d 835, 423 P.3d 960.) The court acknowledged that local zoning and general plans raise issues of “ ‘statewide concern’ ” and that the Legislature had mandated local governments to adopt general plans and required conformity between general plans and zoning ordinances. (Id. at p. 1079, 236 Cal.Rptr.3d 835, 423 P.3d 960.) Nevertheless, the court concluded that the Legislature had not “preempted local electors’ power to challenge by referendum a local government ordinance ... aligning the relevant zoning designations with the amended general plan.” (Id. at p. 1080, 236 Cal.Rptr.3d 835, 423 P.3d 960.) Critically, the local government had other options to bring the general plan and zoning into conformity if the referendum passed. (Id. at pp. 1083, 1090–1091, 236 Cal.Rptr.3d 835, 423 P.3d 960.) As the court explained, “Where the local government can still implement one of
multiple approaches to achieve consistency between the
ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 10 zoning ordinance and the general plan while complying with [state law], the zoning ordinance is best understood as the product of a discretionary policy choice about the proper use of the land.” (Id. at p. 1083, 236 Cal.Rptr.3d 835, 423 P.3d 960 [emphasis added].) The same reasoning applies here.

Although the 2022 Agreement is consistent with the Long Range Plan, it is not the only consistent approach. Because the City had many choices about how to develop the Property, its decision to construct and improve Veteran's Park as part of the Project was, as Bushey phrased it, “a discretionary policy choice about the proper use of the land.” (Ibid.)
D. Conclusion
Under respondents’ view, the City acts as a mere
administrative agent of the State in developing the Property as a “high density residential project with an affordable component,” regardless of the discretionary decisions the City makes in doing so. Respondents are mistaken. Because there is no “ ‘definite indication’ ” (Bushey, supra, 5 Cal.5th at pp. 1078–1079, 236 Cal.Rptr.3d 835, 423 P.3d 960) that the Legislature, in enacting the Dissolution Law, intended to preempt local discretionary policy decisions regarding municipal developments, the superior court erred in concluding the referendum power did not encompass the Resolution on the ground that the City was acting as an administrative agent of the State.

V. The City's Approvals of the Loan Terms and
Indemnification Provision in the 2022 Agreement Did Not Render the Resolution Legislative **
Unpublished Text Follows
Plaintiffs also contend the Resolution was legislative because, in the 2022 Agreement, the City (1) agreed to provide Eden Housing with a $7.8 million loan at 3 percent simple interest to be repaid over 55 years, and (2) agreed to bear up to $4.3 million in liability under an indemnification provision. At oral argument, both parties agreed that, moving forward, it would be helpful for this court to resolve those contentions.

As to the loan terms, the 2018 Agreement provided that, “The price of the property shall be equal to the appraised fair market value of the Property, and such appraisal shall be performed by an appraiser that is mutually agreed upon by the City and the Developer.” That policy decision to sell the Property for fair market value was the relevant declaration of policy and “provision[ ] for the ways and means of its accomplishment,” and the subsequent approval of the amount was an administrative act carrying out the previously determined “legislative policies and purposes.” (San Bruno, supra, 15 Cal.App.5th at p. 530.) The same is true of
the specification of 3 percent as the rate of interest. The 2018 Agreement provided that 3 percent was one of two
potential interest rates, with the rate to be agreed upon “based on the Project's overall financial feasibility and Investor requirements.” The ultimate determination that the Project finances supported selection of the 3 percent rate was an administrative determination pursuant to the policy established in the 2018 Agreement. Finally, the 55-year loan term was already specified in the 2018 Agreement.

Accordingly, approval of the loan terms in the 2022
Agreement was not a legislative act.

The indemnification provision in the 2022 Agreement
authorizes the City Manager “to negotiate and execute [an] indemnity and cooperation agreement in an amount not to exceed $4,300,000,” in order to “apportion costs and any potential liability related to Hazardous Materials at, on, in, beneath, or from the Property ...” At oral argument, plaintiffs conceded that, absent agreement from Eden Housing to
assume a portion of the liability, the City would bear the liability. Plaintiffs further conceded that the effect of the 2022 Agreement was to cap the City's potential liability at $4.3 million, and that the cap benefitted taxpayers by limiting the City's liability. Finally, plaintiffs conceded that approval by the City of a stand-alone agreement identical to the indemnification provision would be an administrative act. On appeal, plaintiffs, as appellants, bear the burden of showing the superior court erred. (L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 619.) Given their concessions, they fail to do so. They cite no authority that or reasoning why a municipality's decision to enter into a contract
that potentially saves public funds by limiting liability is legislative, especially after the municipality has already approved a contract acknowledging its potential liability. And they cite no authority that or reasoning why a determination that is otherwise administrative may be treated as legislative because the provision at issue is part of a larger agreement, the approval of which is legislative due to a wholly unrelated provision. Accordingly, plaintiffs have not shown approval of the indemnification provision in the 2022 Agreement was a legislative act. 9
End of Unpublished Text
VI. The Superior Court Erred in Requiring a Bond
As noted previously, the superior court required plaintiffs to furnish an undertaking in the amount of $500,000 under ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 11 *285 Code of Civil Procedure section 529.2. That statute provides that a defendant in a civil action “brought by any plaintiff to challenge a housing project which is a development project ... and which meets or exceeds the
requirements for low- or moderate-income housing” may
request an order requiring the plaintiff “to furnish an undertaking as security for costs and any damages that may be incurred by the defendant by the conclusion of the action or proceeding as the result of a delay in **843 carrying out the development project.” (Code Civ. Proc. § 529.2, subd. (a).) “The motion shall be made on the grounds that:
(1) the action was brought in bad faith, vexatiously, for the purpose of delay, or to thwart the low- or moderateincome nature of the housing development project, and (2) the plaintiff will not suffer undue economic hardship by filing the undertaking.” (Ibid.)
On appeal, plaintiffs contend the superior court erred in concluding the present action is within the scope of Code of Civil Procedure section 529.2. They argue the writ was brought “to enforce provisions of the Elections Code and secure for the City's voters their right to referendum” rather than to challenge the Project.

We agree. Although the proposed referendum challenges the Project and would have the effect of delaying the Project if it meets the statutory requirements, the present action is not itself a challenge to the Project. Instead, it is a challenge to the City Clerk's violation of the Elections Code. (Cf. Save Livermore Downtown, supra, 87 Cal.App.5th at p. 1123,
304 Cal.Rptr.3d 103 [bond appropriate in action alleging “the project violated state and local planning and zoning laws” and CEQA].) It is revealing that, if the City Clerk had complied with her legal obligations and processed the referendum, then plaintiffs would not have had to file the present action. Instead, any challenge to the validity of the referendum could have been heard pursuant to a petition brought by the City. (Save Lafayette, supra, 20 Cal.App.5th at p. 663, 229 Cal.Rptr.3d 238 [“If the local government believes an initiative or referendum is unlawful and should not be presented to voters, it should file a petition for a writ of mandate seeking to remove it from the ballot.”].) In those circumstances, no colorable claim that plaintiffs were required to post a bond under Code of Civil Procedure section 529.2 would exist. Requiring plaintiffs to file an undertaking in the present circumstances, in effect, rewards the City's chosen partner Eden Housing for the City's violation of clear and well-established law protecting the people's constitutional referendum power. (See Part II, ante.)
Real party in interest Eden Housing argues that, in
challenging the City Clerk's refusal to process the referendum petition, plaintiffs’ action “challenges a City determination that directly impacts the Project.” But Eden Housing proposes no plain language interpretation of Code of Civil Procedure section 529.2 that encompasses an action that does not
directly challenge any *286 aspect of a housing project.

At oral argument, Eden Housing attempted to analogize
plaintiffs’ action to enforce the referendum power to a CEQA action to enforce environmental protections. But Code of Civil Procedure section 529.2 expressly states that CEQA actions are within the scope of the statute. (Code Civ. Pro. § 529.2, subd. (a) [referencing “actions brought pursuant to Section 21167 of the Public Resources Code”].)
Because the present action does not come within the plain language of Code of Civil Procedure section 529.2, the
superior court erred as a matter of law in requiring plaintiffs to file an undertaking under that statute.

DISPOSITION
The judgment is reversed and the case is remanded to the superior court with directions to issue a peremptory writ of mandate ordering respondents to process the referendum petition as required by the Elections Code. The superior court's order requiring plaintiffs to file an undertaking under **844 Code of Civil Procedure section 529.2 is also
reversed. Costs on appeal are awarded to plaintiffs/appellants.

We concur.

JACKSON, P. J.

CHOU, J.

All Citations
100 Cal.App.5th 263, 318 Cal.Rptr.3d 826, 2024 Daily
Journal D.A.R. 2083
ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 12 Footnotes
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part V.
1 In a portion of the opinion not certified for publication, we conclude the City did not act legislatively in approving loan terms and an indemnity provision relating to hazardous waste. 2 The Livermore Village Site is a larger area that includes the Property. 3 All undesignated section references are to the Elections Code. 4 Courts have not distinguished between referendums and initiatives with respect to the ministerial duty to act in accordance with the Elections Code in processing referendum and initiative petitions. (See Save Stanislaus Area Farm Econ. v. Bd. of Supervisors (1993) 13 Cal.App.4th 141, 152, fn. 3, 16 Cal.Rptr.2d 408 (Save Stanislaus) [“There is no textual basis for construing the power of referendum as broader than the initiative power, or vice versa.”]; see also, e.g., Yost v. Thomas (1984) 36 Cal.3d 561, 564, fn. 2, 205 Cal.Rptr. 801, 685 P.2d 1152 (Yost) [substituting word “referendum” for “initiative” in quoting prior case on issue of clerk's duty to process referendum]; Save Lafayette, supra, 20 Cal.App.5th at pp. 663–664, 229 Cal.Rptr.3d 238 [relying on both initiative and referendum caselaw on the topic].) Respondents cite no authority to the contrary.

We also observe that, “it is well established that any legislative act may be enacted by initiative and may be subject to referendum, regardless of whether that act is denominated an ‘ordinance’ or ‘resolution.’ ” (DeVita v. Cnty. of Napa (1995) 9 Cal.4th 763, 787, fn. 9, 38 Cal.Rptr.2d 699, 889 P.2d 1019 (DeVita).) 5 Section 9210 provides in relevant part, “When the petition is presented for filing, the elections official shall do all of the following: [¶] (a) Ascertain the number of registered voters of the city last reported by the county elections official to the Secretary of State pursuant to Section 2187 effective at the time the notice specified in Section 9202 was published. [¶] (b) Determine the total number of signatures affixed to the petition. If, from this examination, the elections official determines that the number of signatures, prima facie, equals or is in excess of the minimum number of signatures required, he or she shall accept the petition for filing.” Section 9240 provides, “After the petition has been filed as herein provided, the elections official shall examine the petition and certify the results in the same manner as are county petitions in Sections 9114 and 9115 except that, for the purposes of this section, references to the board of supervisors shall be treated as references to the legislative body of the city.” Sections 9114 and 9115 detail procedures for validation of signatures on a petition. If “the petition is found to be sufficient, the elections official shall certify the results of the examination to the [city council].” (§§ 9114, 9115, subd. (f).)
6 The initial legislation was Assembly Bill No. 26 (2011-2012 1st Ex. Sess., ch. 5), which was upheld in Matosantos and went into effect on February 1, 2012. (Matosantos, supra, 53 Cal.4th at p. 275, 135 Cal.Rptr.3d 683, 267 P.3d 580.) “The Legislature subsequently adopted additional legislation—Assembly Bill No. 1484 (2011-2012 Reg. Sess.), eff. June 27, 2012, Assembly Bill No. 471 (2013-2014 Reg. Sess.), eff.

Feb. 18, 2014, and Senate Bill No. 107 (2015-2016 Reg. Sess.), eff. Sept. 22, 2015—to clarify or modify the dissolution and wind down process. [Citations.] Taken together, we shall refer to these laws as the ‘Dissolution Law.’ ” (City of Chula Vista v. Stephenshaw (2023) 91 Cal.App.5th 352, 357, 308 Cal.Rptr.3d 418 (Stephenshaw).)
7 Although respondents do not cite to them, we observe that several cases have held that local decisions pursuant to the Community Redevelopment Law were beyond the reach of the referendum power. (Gibbs v. City of Napa (1976) 59 Cal.App.3d 148, 154, 130 Cal.Rptr. 382; see also PR/JSM Rivara LLC v. Cmty.

Redevelopment Agency (2009) 180 Cal.App.4th 1475, 1482, 104 Cal.Rptr.3d 52; Walker v. City of Salinas ATTACHMENT 3
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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 13 (1976) 56 Cal.App.3d 711, 718, 128 Cal.Rptr. 832; Andrews v. City of San Bernardino (1959) 175 Cal.App.2d 459, 346 P.2d 457.) But the City in this case did not act pursuant to the redevelopment law. Instead, the present case involves the Dissolution Law. As we have explained, the City was bound only by the very general specification in the Long Range Plan to build housing with an affordable component on the Property. 8 Respondents argue Yost is distinguishable because section 30500, subdivision (c) of the Public Resources Code states, “The precise content of each local coastal program shall be determined by the local government, consistent with Section 30501, in full consultation with the commission ....” (See also Yost, supra, 36 Cal.3d at pp. 571–572, 205 Cal.Rptr. 801, 685 P.2d 1152.) However, even though the Dissolution Law does not contain a precisely analogous provision, respondents point to no provision denying cities a comparable level of discretion over local developments.
** See footnote *, ante.
9 At oral argument, respondents requested that this court direct the superior court to process the referendum only as to those parts of the 2022 Agreement that involved legislative determinations, citing Dye v. Council of City of Compton, 80 Cal.App.2d 486, 487, 182 P.2d 623. But the issue in Dye was whether the referendum power permitted a challenge to only parts of a city ordinance. (Id. at p. 488, 182 P.2d 623.) The court did not suggest that, where a referendum petition challenges the whole of a resolution or ordinance, as in the present case, it would be proper to limit the scope of the referendum. Given respondents’ failure to present authority supporting their request, we decline it.

ATTACHMENT 3
637
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION ACCEPTING THE ALAMEDA COUNTY REGISTRAR OF

VOTERS CERTIFICATION AS TO THE SUFFICIENCY OF SIGNATURES ON THE REFERENDUM PETITION AGAINST RESOLUTION NO. 2022-085
On May 24, 2022, the City Council adopted Resolution No. 2022-085 authorizing the execution of an Amended and Restated Disposition, Development and Loan Agreement with Eden Housing, Inc. (“Eden Housing”) for the development of the downtown multi-family housing site. That agreement amended the then existing agreement with Eden Housing for the affordable housing project that was first approved by the City Council on November 26, 2018, (Resolution No. 2018-197), and that was later amended by the City Council on May 25, 2021, (Resolution No. 2021-073).

Resolution No. 2022-085 also approved the language in the agreement for the construction of and improvements to Veterans Park.

On July 9, 2022, Move Eden Housing’s (“MEH”) petition against Resolution 2022- 085 was presented to the City Clerk for processing as a referendum. The Report of Registration at the time of filing the petition identified 57,028 registered Livermore voters, establishing the 10% threshold at 5,702 signatures.

The City Clerk’s technical review determined the referendum petition appeared on its face to comply with all format requirements. The City Clerk then completed a prima facie review of signatures and identified 9,737 unverified signatures affixed to the petition, which exceeds the required number of signatures to qualify the petition for further examination. Although numerous signatures were scratched out, the City Clerk nevertheless counted the signature as part or her prima facie review if she could see the signature along with a printed name, address, and city for the signer.

On July 13, 2022, the City Clerk advised MEH, based upon legal advice, that she would not process the petition as a referendum because it only contains administrative acts and did not contain any new legislative acts by the City Council. As the City Clerk explained, since the referendum petition does not challenge a legislative act, it was therefore not eligible for processing as a referendum.

Litigation ensued, and MEH identified and asserted it protested the following aspects of Ordinance No. 2022-085 that it asserted were legislative acts:
 Policy decision to construct and improve Veterans Park;  Policy decision to loan Eden Housing money to buy the property; and,  Policy decision to limit the City of Livermore’s (“City”) indemnity owed to Eden Housing for the remediation of environmental contamination on the property. 638
RESOLUTION NO. ________
On January 25, 2023, the Trial Court entered judgment in the City’s favor after finding “the Court confirms that the referendum at issue here was improper under California Law because it is directed at an administrative act and not a legislative one.” On March 6, 2024, the Appellate Court reversed the Trial Court’s decision and issued an opinion finding that Resolution No. 2022-085 is subject to referendum because it approved “the construction of and improvements to a new public park,” which is Veterans Park, in the agreement. The Appellate Court determined that the prior agreement merely contained an option for that work, and that the 2022 agreement for the first time authorized that work. The Appellate Court’s opinion also determined that MEH’s other protested aspects were administrative acts, not legislative, and therefore not subject to referendum. The Appellate Court specifically held that “the approval of the loan terms in the 2022 agreement is not a legislative act” and “plaintiffs have not shown approval of the indemnification provision in the 2022 agreement was a legislative act.” The Appellate Court having determined the portions of Resolution No. 2022-085 approving the construction of and improvements to Veterans Park is subject to referendum, the City Clerk resumed processing the petition as a referendum and delivered the petition to the Alameda County Registrar of Voters and requested full examination of the signatures.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby accepts the Alameda County Registrar of Voters certification as to the sufficiency of the petition, attached hereto as Exhibit A.

On motion of Council Member ____________________, seconded by Council Member _____________________, the foregoing resolution was passed and adopted on June 24, 2024, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Jason R. Alcala
Deborah L. Elam Jason R. Alcala
Acting City Clerk City Attorney
Exhibit A – Registrar of Voters Certification
639

EXHIBIT A
640
RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA A RESOLUTION REPEALING RESOLUTION NO. 2022-085
On May 24, 2022, the City Council adopted Resolution No. 2022-085 authorizing the execution of an Amended and Restated Disposition, Development and Loan Agreement with Eden Housing, Inc. (“Eden Housing”) for the development of the downtown multi-family housing site. That agreement amended the then existing agreement with Eden Housing for the affordable housing project that was first approved by the City Council on November 26, 2018, (Resolution No. 2018-197), and that was later amended by the City Council on May 25, 2021, (Resolution No. 2021-073). Resolution No. 2022-085 also approved the language in the agreement for the construction of and improvements to Veterans Park.

On January 25, 2023, the Trial Court entered judgment in the City’s favor after finding “the Court confirms that the referendum at issue here was improper under California Law because it is directed at an administrative act and not a legislative one.” 641
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On March 6, 2024, the Appellate Court reversed the Trial Court’s decision and issued an opinion finding that Resolution No. 2022-085 is subject to referendum because it approved “the construction of and improvements to a new public park,” which is Veterans Park, in the agreement. The Appellate Court determined that the prior agreement merely contained an option for that work, and that the 2022 agreement for the first time authorized that work. The Appellate Court’s opinion also determined that MEH’s other protested aspects were administrative acts, not legislative, and therefore not subject to referendum. The Appellate Court specifically held that “the approval of the loan terms in the 2022 agreement is not a legislative act” and “plaintiffs have not shown approval of the indemnification provision in the 2022 agreement was a legislative act.” The City Council understands how the Appellate Court reached its conclusion regarding Veterans Park based upon the administrative record it considered. However, the City Council also understands that record focused on the housing project and the inclusion of Veterans Park in the agreement for the project, rather than the long history of Council decisions for the construction of Veterans Park that occurred prior to the 2022 agreement. That history is thoughtfully set forth in the staff report for this adoption of this resolution, and clearly reflects that the City Council’s prior actions fixing the City’s policy to construct Veterans Park as a public project prior to the adoption of Resolution No. 2022-085.

The Appellate Court having determined the portions of Resolution No. 2022-085 approving the construction of and improvements to Veterans Park is subject to referendum, the City Clerk resumed processing the petition as a referendum and delivered the petition to the Alameda County Registrar of Voters and requested full examination of the signatures.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it respects the Appellate Court’s opinion that the approval of the construction of and improvements to Veterans Park is a legislative act, and the will of the voters to set aside that act, and hereby repeals Resolution No. 2022-085.

On motion of Council Member ____________________, seconded by Council Member _____________________, the foregoing resolution was passed and adopted on June 24, 2024, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:
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ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Jason R. Alcala
Deborah L. Elam Jason R. Alcala
Acting City Clerk City Attorney
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RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION CALLING FOR AND GIVING NOTICE OF THE
HOLDING OF AN ELECTION TO SUBMIT RESOLUTION NO. 2022-085 TO THE

VOTERS TO APPROVE OR SET ASIDE THE LEGISLATIVE ACTS FOR THE

CONSTRUCTION OF AND IMPROVEMENT TO VETERANS PARK

THAT WERE PROTESTED BY REFERENDUM, AND CONSOLIDATING

THAT ELECTION WITH THE GENERAL MUNICIPAL ELECTION TO BE HELD TUESDAY, NOVEMBER 5, 2024
On May 24, 2022, the City Council adopted Resolution No. 2022-085 authorizing the execution of an Amended and Restated Disposition, Development and Loan Agreement with Eden Housing, Inc. (Exhibit A) for the development of the downtown multi-family housing site. That agreement amended the then existing agreement with Eden Housing, Inc. (“Eden Housing”) for the affordable housing project that was first approved by the City Council on November 26, 2018, (Resolution No. 2018-197), and that was later amended by the City Council on May 25, 2021, (Resolution No. 2021-073).

Resolution No. 2022-085 also approved language in the agreement for the construction of and improvements to Veterans Park, which language has been pulled from the agreement and set forth in Exhibit B to this resolution for clarity.

On January 25, 2023, the Trial Court entered judgment in the City’s favor after finding “the Court confirms that the referendum at issue here was improper under California Law because it is directed at an administrative act and not a legislative one.” On March 6, 2024, the Appellate Court reversed the Trial Court’s decision and issued an opinion finding that Resolution No. 2022-085 is subject to referendum because it approved “the construction of and improvements to a new public park,” which is Veterans Park, in the agreement. The Appellate Court determined that the prior agreement merely contained an option for that work, and that the 2022 agreement for the first time authorized that work. The Appellate Court’s opinion also determined that MEH’s other protested aspects were administrative acts, not legislative, and therefore not subject to referendum. The Appellate Court specifically held that “the approval of the loan terms in the 2022 agreement is not a legislative act” and “plaintiffs have not shown approval of the indemnification provision in the 2022 agreement was a legislative act.” The City Council understands how the Appellate Court reached its conclusion regarding Veterans Park based upon the administrative record it considered. However, the City Council also understands that record focused on the housing project and the inclusion of Veterans Park in the agreement for the project, rather than the long history of Council decisions for the construction of Veterans Park that occurred prior to the 2022 agreement. That history is thoughtfully set forth in the staff report for this adoption of this resolution, and clearly reflects that the City Council’s prior actions fixing the City’s policy to construct Veterans Park as a public project prior to the adoption of Resolution No. 2022-085. While the City Council disagrees with the Appellate Court’s decision, the City Council respects and will abide by that decision.

On June 4, 2024, the Alameda County Registrar of Voters determined the number of unverified legible signatures (in contrast to the City Clerk’s prima facie review which includes both legible and illegible signatures) was 8,019. The Alameda County Registrar of Voters then performed an examination of the signatures and issued a certificate of sufficiency after determining the petition contained 6,043 valid signatures. 645
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Previously, on May 13, 2024, the City Council adopted Resolution No. 2024-074 calling for and giving notice of the holding of a General Municipal Election in the City of Livermore to be consolidated with the Statewide General Election on November 5, 2024.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore as follows:

1. Under the requirements of the laws of the State of California relating to general law cities within the State, there is hereby called and ordered held in the City of Livermore, County of Alameda, State of California, a municipal election for the purpose of submitting Resolution No. 2022-085 to the qualified electors of the City to approve or set aside the legislative acts for the approval of the construction of and improvements to Veterans Park in the Amended and Restated Disposition, Development and Loan Agreement, Exhibit A, to approve the language for the development of and improvements to Veterans Park identified in Exhibit B for clarity, pursuant to the referendum measure that is attached as Exhibit C, each incorporated herein by reference. The ballot question shall read as follows:

Measure: Referendum of the Construction of and Improvements to Veterans Park by Resolution No. 2022-085.

Shall the legislative acts in City Council Resolution No. 2022-085 approving the construction of and improvements to Veterans Park in an Amended and Restated Disposition, Development and Loan Agreement be adopted? Yes
[ ] No

2. Under the laws of the State of California relating to general law cities, and in particular section 1405 of the Elections Code, it is hereby ordered that the election on the referendum measure is to be consolidated with the General Municipal Election in the City of Livermore that is to be consolidated with the Statewide General Election on November 5, 2024, that was ordered by Resolution No. 2024-074.

3. The County Election Department is authorized to canvass the returns of the election on the referendum measure.

4. Under Elections Code section 10002, the City Council of the City of Livermore requests the Alameda County Board of Supervisors to permit the Registrar of Voters to render assistance in all required election services in the conduct of the November 5, 2024, municipal election. The requested services include, but are not limited to, the following:
a. Precinct consolidation, establishment of voting centers, securing election officers, preparing and mailing notices of appointment and publication of precinct officers and vote center locations;
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b. Typesetting, printing, and translating sample ballots, which includes ballot notifications, ballot arguments, statements of candidates' qualifications, and mailing to registered voters;
c. Printing of official ballots;
d. Purchasing precinct supplies and vote by mail voter supplies; e. Providing for vote by mail voting;
f. Delivery of voting booths, ballots, ballot boxes, and precinct supplies to precincts/election officers;
g. Tabulation of votes;
h. Canvassing and certifying to the City Clerk the results of elections; and i. All things necessary or incidental to the above in accordance with California election law in effect at the time of the election or other functions as may be requested from time to time by the City

5. The City Clerk is hereby directed to forthwith file a certified copy of this resolution with the Board of Supervisors and the County Election Department of the County of Alameda.

6. The City Clerk is directed to transmit a copy of the referendum measure to the City Attorney, and the City Attorney is instructed to prepare an impartial analysis thereof, consistent with the provisions of section 9280 of the Elections Code. The City Clerk is further instructed to include the City Attorney's impartial analysis in the Voters Information Pamphlet.

7. Pursuant to the requirements of the laws of the State of California relating to general law cities within the State, and in particular sections 9282 and 9286(a) of the Elections Code which states that arguments must be submitted within 14 days of calling the election, arguments for and against the referendum measure may be submitted to the City Clerk, 1052 South Livermore Avenue, no later than 5:00 p.m. on Friday, June 28, 2024.

8. Pursuant to section 9285 of the Elections Code, rebuttal arguments will be permitted and must be submitted to the City Clerk, 1052 South Livermore Avenue, no later than 5:00 p.m. on Monday, July 8, 2024.

9. Voting shall be available on the referendum measure in the ways set forth in Resolution 2024-074 that ordered Livermore’s General Election for November 5, 2024.

10. The City Clerk is hereby directed to post and/or publish all official notices and printed matters, and in cooperation with the County of Alameda, furnish all supplies necessary to lawfully conduct the election.
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11. Notice of the time and place of holding the election is hereby given and the City Clerk is directed to give such further or additional notice of the election in the time, form, and manner as required by law.

12. In all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections.

13. This resolution shall take effect immediately.

On motion of Council Member ____________________, seconded by Council Member _____________________, the foregoing resolution was passed and adopted on June 24, 2024, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
____________________________ /s/ Jason R. Alcala
Deborah L. Elam Jason R. Alcala
Acting City Clerk City Attorney
Exhibit A – Resolution No. 2022-085
Exhibit B – Language from Agreement for the Construction of and Improvement to Veterans Park
Exhibit C – Referendum Measure
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1 RESOLUTION NO. 2022-085

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING EXECUTION OF AN AMENDED AND

RESTATED DISPOSITION, DEVELOPMENT AND LOAN AGREEMENT
DDLA”) WITH EDEN HOUSING, INC. FOR DEVELOPMENT OF THE

DOWNTOWN MULTI-FAMILY HOUSING SITE
APN 098-0289-022-00)
On February 9, 2004, the City Council certified the General Plan and Downtown Specific Plan Environmental Impact Report (“ Specific Plan EIR”) ( SCH No.:
2003032038).

On March 30, 2009, the City Council certified the Downtown Specific Plan Amendments and Regional Performing Arts Theater Subsequent Environmental Impact Report (“Specific Plan Subsequent EIR”) (SCH No.: 2008092085).

On September 10, 2018, May 13, 2019, and October 26, 2020, the City Council adopted addenda to the Downtown Specific Plan Subsequent Environmental Impact Report by Resolution Nos: 2018-153, 2019-064, and 2020-178.

On November 27, 2018, the City of Livermore (“ City”) and Eden Housing, Inc.

Eden”) entered into a Disposition, Development and Loan Agreement (“ DDLA”) with respect to the approximately 2.0-acre City owned site for the 130-unit, affordable, multifamily, “workforce” housing component of the Downtown Plan.

On May 26, 2021, the City and Eden entered into a First Amendment to the DDLA to define the development and financial obligations for Veteran’s Park, allow for reimbursement by City to Developer for certain emergency vehicle access road improvements adjacent to the Project, and to update the entitlement, financing, and development timeline in the Schedule of Development.

On June 24, 2021, a Petition for Writ of Mandate was filed by Save Livermore Downtown, challenging the City’s CEQA determination (the “Litigation”). On February 14, 2022, the Court entered judgment denying the Petition for Writ of Mandate with prejudice. On April 13, 2022, a further appeal was filed by Save Livermore Downtown.

The case is currently still pending.

Now, the City and Eden desire to enter into an Amended and Restated DDLA and make several modifications and additions that will facilitate the development process, enumerate specific financial contributions and agreements that would be under the authority of the City Manager to execute, and modify the Schedule of Performance to extend the time period for Eden to complete development of the project in light of the pending Litigation.

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EXHIBIT A
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2 RESOLUTION NO. 2022-085
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore finds that the Amended and Restated Disposition, Development and Loan Agreement with Eden Housing, Inc. is within the scope of the Specific Plan EIR, dated February 9, 2004 ( SCH No.: 2003032038), the Specific Plan Subsequent EIR, dated March 30, 2009 ( SCH No.: 2008092085), and the Specific Plan Subsequent EIR Addenda adopted by City Council on September 10, 2018 by Resolution 2018-153, May 13, 2019 by Resolution 2019-064, and October 26, 2020 by Resolution 2020-178.

No new or more severe significant impacts were identified for the Project that were not identified in the 2004 Final EIR and 2009 Subsequent EIR, and no new mitigation measures would be required for the downtown plan. For all environmental topics addressed in the addendums, there were no substantial changes in environmental circumstances that would result in new or more severe significant environmental effects than were identified and evaluated in the 2004 Final EIR and 2009 Subsequent EIR.

The DDLA is also exempt from the provisions of CEQA pursuant to CEQA Guidelines Sections 15182 ( c), 15332, 15304 ( a)(b) and 15308 and none of the exceptions to the categorical exemptions in CEQA Guidelines Section 15300.2 apply, as described in the Eden Housing Project resolution, dated May 26, 2021 ( Resolution 2021-071).

BE IT FURTHER RESOLVED by the City Council of the City of Livermore that the City Manager is authorized to execute the Amended and Restated Disposition, Development and Loan Agreement, attached hereto as Exhibit A, and is granted the authority to execute the final documents and agreements referenced in the Agreement and other related documents to implement the intent and terms of the Agreement, as well as the specific delegations of authority set forth in the Agreement.

On motion of Council Member Kiick, seconded by Council Member Munro, the foregoing resolution was passed and adopted on May 24, 2022, by the following vote:

AYES: Council Members Carling, Kiick, Munro, Vice Mayor Bonanno, and Mayor Woerner
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED AS TO FORM:

Marie Weber Kelly Trujillo
City Clerk Assistant City Attorney
Exhibit A – Amended and Restated Disposition, Development, and Loan Agreement DocuSign Envelope ID: FA6C0401- 9A2E-4AFE- 8235-4A3F31941446 5/ 27/ 2022 | 10: 16 AM PDT

EXHIBIT A
650

AMENDED AND RESTATED

DISPOSITION AND DEVELOPMENT AND LOAN AGREEMENT
by and between

CITY OF LIVERMORE
and
EDEN HOUSING, INC.

May 24, 2022
Prior Agreements:

1. Disposition and Development Agreement, dated November 27, 2018, approved by City Council Resolution No. 2018- 197.

2. First Amendment to the DDLA, dated May 26, 2021 approved by City Council Resolution No. 2021-073.

EXHIBIT A
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EXHIBIT A
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TABLE OF CONTENTS
ARTICLE 1. SUBJECT OF THE AGREEMENT 3
Section 1.1 Purpose of this Agreement 3
Section 1.2 Parties to the Agreement 4
ARTICLE 2. DEFINITIONS 4
Section 2.1 Definitions 4
Section 2.2 Exhibits 10
ARTICLE 3. CITY FINANCIAL ASSISTANCE 11
Section 3.1 Predevelopment Loan 11
Section 3.2 Acquisition Loan 12
Section 3.3 Development Loan/Contribution 15
Section 3.4 Financing for EVA Improvements 15
Section 3.5 Construction and Financing for Veterans Park Improvements 15 ARTICLE 4. PREDISPOSITION REQUIREMENTS 16
Section 4.1 City’ s Conditions Precedent to Close of Escrow 16 Section 4.2 Financing Commitment 16
Section 4.3 City Approvals 16
Section 4.4 Organizational Documents 16
Section 4.5 Federal Environmental Review and Clearance 16 Section 4.6 Insurance 17
Section 4.7 Time Extensions 17
Section 4.8 Lease Back of the Undivided Parcel 17
ARTICLE 5. DISPOSITION OF THE UNDIVIDED PARCEL 17
Section 5.1 Purchase and Sale 18
Section 5.2 Purchase Price 18
Section 5.3 Opening Escrow 18
Section 5.4 Additional Closing Conditions 18
Section 5.5 Deposit of Documents 19
Section 5.6 Close of Escrow 19

EXHIBIT A
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EXHIBIT A
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Section 5.7 Additional Escrow Instructions 20
Sectio n 5.8 Condition of Title to the Property 20
Section 5.9 Condition of the Property 20
Section 5.10 Inspections; Condition of Site 22
Section 5.11 Right of Entry 22
Section 5.12 Real Estate Commissions 23
ARTICLE 6. HAZARDOUS MATERIALS REPRESENTATIONS 23
Section 6.1 Existing Hazardous Materials 23
Section 6.2 Indemnification and Cooperation 24
ARTICLE 7. DESIGN REQUIREMENTS 25
Section 7.1 Project Design 25
Section 7.2 Additional Permits and Approvals 25
Section 7.3 City Review 25
ARTICLE 8. PRE- CONSTRUCTION AND CONSTRUCTION OF THE IMPROVEMENTS 25 Section 8.1 Commencement of Construction 25
Section 8.2 Completion of Construction 25
Section 8.3 Construction Pursuant to Scope and Plans 26 Section 8.4 Mechanics' Liens 26
Section 8.5 Compliance with Applicable Law 26
Section 8.6 Progress Reports 28
Section 8.7 Entry by City 28
Section 8.8 Non-Discrimination During Construction; Equal Opportunity. 28 Section 8.9 Insurance Requirements 29
Section 8.10 Dedication of Veterans Park Parcel 29
Section 8.11 Reserved Parking for the Project' s Residents 29 ARTICLE 9. OBLIGATIONS WHICH CONTINUE THROUGH AND BEYOND THE COMPLETION OF CONSTRUCTION 30
Section 9.1 Affordable Housing Use 30
Section 9.2 Downtown Landscape Maintenance District 30
Section 9.3 Maintenance 30

EXHIBIT A
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EXHIBIT A
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Section 9.4 Developer To Indemnify City 30
Section 9.5 Hazardous Materials 31
Section 9.6 Non-Discrimination 33
ARTICLE 10. ASSIGNMENT AND TRANSFERS 33
Section 10.1 Definitions 33
Section 10.2 Purpose of Restrictions on Transfer 34
Section 10.3 Prohibited Transfers 34
Section 10.4 Permitted Transfers 34
Section 10.5 Effectuation of Permitted Transfers 35
ARTICLE 11. SECURITY FINANCING AND RIGHTS OF HOLDERS 36 Section 11.1 No Encumbrances Except for Development Purposes 36 Section 11.2 Holder Not Obligated to Construct 36
Section 11.3 Notice of Default and Right to Cure 36
Section 11.4 Cure of Developer Defaults 37
Section 11.5 Failure of Holder to Complete Development 38 Section 11.6 Right of City to Cure 38
Section 11.7 Right of City to Satisfy Other Liens 39
Section 11.8 Holder to be Notified 39
Section 11.9 Modifications 39
ARTICLE 12. DEFAULT AND REMEDIES 39
Section 12.1 Application of Remedies 39
Section 12.2 Fault of City 39
Section 12.3 Fault of Developer 40
Section 12.4 Right of Reverter 430
Section 12.5 Damages 431
Section 12.6 Rights and Remedies Cumulative 42
Section 12.7 Survival 42
ARTICLE 13. GENERAL PROVISIONS 43
Section 13.1 Identity of Developer 43
Section 13.2 Notices, Demands and Communications 44

EXHIBIT A
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Section 13.3 Non-Liability of Officials, Employees and Agents 45 Section 13.4 Enforced Delay 45
Section 13.5 Intentionally Omitted 45
Section 13.6 Inspection of Books and Records 46
Section 13.7 Title of Parts and Sections 46
Section 13.8 Applicable Law 46
Section 13.9 Severability 46
Section 13.10 Legal Actions 46
Section 13.11 Binding Upon Successors; Covenants to Run With Land 46 Section 13.12 Parties Not Co -Venturers 46
Section 13.13 Entire Understanding of the Parties 46
Section 13.14 Counterparts 47
Section 13.15 Amendments 47
Section 13.16 Recordation of Memo of DDLA 47
Section 13.17 Standard of Approval 47
Section 13.18 Effectiveness of Agreement 47
Section 13.19 Delegation of Authority to City Manager 46

EXHIBIT A
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EXHIBIT A
655
1 AMENDED AND RESTATED

DISPOSITION AND DEVELOPMENT AND LOAN AGREEMENT

THIS AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AND LOAN AGREEMENT ( this "Agreement") is made as of May 24, 2022, by and between the City of Livermore, a municipal corporation ( the "City"), and Eden Housing, Inc. a California public benefit corporation (the "Developer"), with reference to the following facts, purposes, and understandings.

RECITALS
A. These Recitals refer to and utilize certain capitalized terms that are defined in Article 2 and various other areas of this Agreement. The Parties intend to refer to those definitions in connection with their use in these Recitals.

B. City is the owner of a certain property that is approximately 5.5 acres, bound by Railroad Avenue, Livermore Avenue, First Street, and L Street. This property is commonly referred to as the “ Livermore Village Site”.

C. In 2008, the former Redevelopment Agency acquired the Livermore Village Site from Livermore Village I, LLC for approximately $ 10,100,000 from City inclusionary housing funds (Fund 611). A portion of this amount was refinanced using a loan from the State Residential Development Loan Program, which required a deed restriction on the property to require low-income and moderate- income housing units be developed on the property. Both of these sources restrict the use of the site to a residential development with an affordable component. In 2010 the Livermore Village Site was subdivided into three parcels for the purpose of separate public community uses, private community uses, and housing. Upon dissolution of the Livermore Redevelopment Agency, the Undivided Parcel was identified as a housing asset in the Long Range Property Management Plan, which was approved by the Livermore Successor Agency Oversight Board and California Department of Finance, and was transferred to the City as the Housing Successor to the Livermore Redevelopment Agency.

D. On January 29, 2018, the City Council approved the development of the Livermore Village Site to include a public park, up to 130 units of workforce housing, a science center, a black box theater, and retail space.

E. The City selected Eden Housing, Inc. as the Developer of the Undivided Parcel through a Request for Qualifications to develop the Undivided Parcel, more particularly described in Exhibit A, attached hereto. Through a competitive process in response to the City’ s goals and objectives for the Undivided Parcel, the Developer proposed to develop low-income and workforce housing on the Property.

F. The Developer obtained Entitlements from the City to construct the Project consistent of workforce housing, which will be comprised of up to 130 units of non-age restricted, multi-family rental housing over two phases of development, which will be affordable

EXHIBIT A
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EXHIBIT A
656
2 for households with a range of incomes no greater than 110% of Area Median Income for Alameda County, on the Property.

G. On May 24, 2021, Developer obtained approval from the City for Vesting Tentative Parcel Map No. 11186 on behalf of the City for recordation of the Parcel Map in the Official Records of Alameda County ( the “ Tentative Map”), subdividing the Undivided Parcel into the following three parcels: ( i) Parcel 1, as shown on the Tentative Map (the “ Housing Parcel North”); ( ii) Parcel 2, as shown on the Tentative Map (the “ Veterans Park Parcel”); and iii) Parcel 3, as shown on the Tentative Map (the “ Housing Parcel South”). Parcels 1 and 3 are also referred to collectively as the Property and more fully depicted in Exhibit M, attached hereto and Parcel 2 is more fully depicted in Exhibit N, attached hereto.

H. The City has concluded that the Developer has the necessary expertise, skill, and ability to carry out the commitments contained in this Agreement.

I. Upon satisfaction of the conditions precedent set forth in this Agreement, City will conv ey the Undivided Parcel to Developer upon the terms and conditions set forth herein, and City will provide a loan to assist in financing Developer’ sacquisition of the Property. City has additionally provided a predevelopment loan to the Developer in an amount up to Five Hundred Thousand Dollars ($500,000) (the “ Predevelopment Loan”) that helped finance the initial predevelopment and expenses necessary to assess and determine the final scope of development and obtain entitlements to develop the Project. City and Developer agree that City may, but is not obligated to, provide a future development loan and/or other financial contribution to fund development and/or operations of the Project in an amount that will be determined through the activities provided for herein. Approval of any future development loan amounts shall be subject to approval of a final financing plan by the City and the timely submittal of items described in this Agreement.

J. Developer intends to assign this Agreement and the obligations contained herein to its Affiliate DTLM, L.P. (“ Housing North Developer”) to develop the Housing Parcel North with 79 affordable units (the “ Housing North Phase ”) and to thereafter assign a portion of this Agreement its Affiliate DTLM South, L.P. (the “ Housing South Developer”), which will develop the Housing Parcel South with 51 affordable units (the “ Housing South Phase ”), as more particularly described herein.

K. The City and Developer intend to continue in good faith discussions and negotiations of the Project Objectives attached hereto as Exhibit B. To facilitate development of a public park on the Veterans Park Parcel, the Developer will dedicate that Parcel back to the City upon the closing of construction financing for the first phase of the Project and in accordance with the Schedule of Performance.

L. Pursuant to CEQA, the City ( in its capacity as " lead agency") approved on September 10, 2018 an Addendum to the Downtown Specific Plan 2009 Subsequent Environmental Impact Report.

EXHIBIT A
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EXHIBIT A
657
3 M. On November 27, 2018, the City and Developer entered into a Disposition and Development and Loan Agreement, which was subsequently amended by a First Amendment to the DDLA dated May 26, 2021, which updated certain definitions, exhibits and provisions ( as amended, the “ Original Agreement”). This Agreement is intended to amend and restate and supersede the Original Agreement and will capture all necessary changes to the Original Agreement.

N. The Developer has subsequently formed the Housing North Developer entity to serve as the developer of the Project. All of Eden Housing Inc., rights and obligations under the Agreement shall be assigned to the Housing North Developer through execution of an assignment upon approval of this Agreement.

O. On June 24, 2021, Save Livermore Downtown filed a Petition for Writ of Mandate in Alameda County Superior Court, challenging the City’ s approval of the Project.

Litigation ensued and on February 14, 2022, Alameda County Superior Court Judge Roesch denied the petition and entered judgment in favor of the City of Livermore. SLD filed an appeal on April 13, 2022 and the appeal is still pending (the “ Litigation”).

P. On April 4, 2022, a Request for Stay of Expiration Date for the Project Entitlements and Approvals during the pendency of the above- referenced litigation, including any appeals, was submitted to the City by the Developer. On May 9, 2022, the City granted the request. Those documents are attached hereto as Exhibit P.

Q. Now, to ensure the Project continues to move forward in a timely manner, the parties desire to update this Agreement to allow for transfer of the Undivided Parcel upon completion of federal environmental review and clearance, to make arrangements for an interim use of public parking prior to construction of the housing and cooperation between the parties regarding the environmental condition of the Undivided Parcel, and update the entitlement, financing, and development timeline in the Schedule of Performance.

NOW, THEREFORE, in consideration of the mutual covenants herein, the City and the Developer agree that the recitals are true and correct and further agree as follows:

ARTICLE 1. SUBJECT OF THE AGREEMENT
Section 1.1 Purpose of this Agreement. The purpose of this Agreement is to provide the terms and conditions under which the Developer shall: prepare or cause to be prepared all required documents necessary to receive development approvals for the Project, to obtain title to the Property, and develop the Project. This Agreement shall also provide terms and conditions under which the City shall convey the Undivided Parcel to the Developer for the purpose of developing, building, and operating affordable Workforce Housing at rents that are for households earning up to 110% of Area Median Income, in accordance with the Project Objectives, attached hereto as Exhibit B, and the City to contribute certain funds for the acquisition and predevelopment of the Property.

EXHIBIT A
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EXHIBIT A
658
4 Section 1.2 Parties to the Agreement.
a) The City. The City is a municipal corporation, organized and existing under the laws of the State of California. The office of the City is located at 1052 S. Livermore Avenue, Livermore, California 94550.
b) The Developer. The Developer is Eden Housing, Inc., a California nonprofit public benefit corporation. For purposes of this Agreement, the principal address of Developer is 22645 Grand Street, Hayward, California 94541.

The qualifications and identity of Developer are of particular concern to the City, and it is because of such qualifications and identity that the City has entered into this Agreement with Developer. No voluntary or involuntary successor in interest of Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein.

Notwithstanding anything to the contrary contained herein, this Agreement is assignable and transferable to Housing North Developer and/or Housing South Developer, so long as any such assignment or other document evidencing such assignment is acceptable to the City.

Following any such assignment, the Housing North Developer and/or Housing South Developer may transfer limited partner interests to a tax credit investor (“ Investor”), and such Investor may further transfer its limited partner interests, and the Investor may remove a general partner of the Housing North Developer and/or Housing South Developer ( as applicable) pursuant to the terms of its limited partnership agreement, without the consent of the City .

ARTICLE 2. DEFINITIONS
Section 2.1 Definitions. In addition to the terms defined elsewhere in this Agreement, the following capitalized words shall have the following meanings:
a) " Affiliate" means any Person which (1) directly or indirectly through one or more intermediaries, ( i) Controls, or (ii) is Controlled by, or (iii) is under common Control with, Developer.
b) " Agreement" shall mean this Amended and Restated Disposition and Development and Loan Agreement.
c) “ Area Median Income” shall have the meaning set forth in the form of the Regulatory Agreement attached to this Agreement as Exhibit H. d) " Building Permit" shall mean an excavation, foundation or other building permit issued by the City ministerially in connection with the construction of the Improvements. e) " CEQA" shall mean the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.), and its implementing guidelines.

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5 f)" Certificate of Occupancy " shall mean that certificate issued by the City to the Developer to allow occu pancy of the Project.
g)" Close of Escrow" shall have the meaning set forth in Section 5.6. h )" Control" shall mean (i) direct or indirect management or control of the managing member or members in the case of a limited liability company; ( ii) direct or indirect management or control of the managing general partner or general partners in the case of a partnership and (iii) (a) boards of directors that overlap by fifty percent (50%) or more of their directors, or (b) direct or indirect control of a majority of the directors in the case of a corporation.
i)" City" shall mean the City of Livermore .
j)“ City Documents” shall mean collectively, this Agreement, the Seller Take -Back Property Acquisition Note (Exhibit F), the Seller Take -Back Property Acquisition Deed of Trust (Exhibit G), the Predevelopment Loan Promissory Note (Exhibit E), the Predevelopment Loan Note Assignment and Amendment, the Predevelopment Loan Deed of Trust (Exhibit G), and the Regulatory Agreement ( Exhibit H). k )" City Event of Default" shall mean any event of default by the City as set forth in Section 12.2, subject to any applicable notice and cure rights set forth therein. l)“ City Impact Fees” shall mean all fees set forth in the schedule of fees adopted by the City on July 1, 2018, with the exception of those fees that are paid to the City on behalf of and passed through to a third party agency.
m)“ Deed of Trust” shall mean the deed of trust to be recorded against the Undivided Parcel and subsequently the Property to secure repayment of the Pre -Development and Site Acquisition Loan s. A form of Deed of Trust is attached to this Agreement as Exhibit G. n ) “ Developer” shall mean Eden Housing, Inc., or any permitted transferee of the Developer in accordance with Article 10.
o ) “ Developer Event of Default” shall mean any event of default by the Developer as set forth in Section 12.3 or 12.4, subject to any applicable notice and cure rights set forth therein.
p )" Effective Date" shall mean the date which is the later of (i) the date this Agreement is executed by the Developer and (ii) the date this Agreement is approved and executed by the City.
q )“ Eligible Household” shall have the meaning set forth in the Regulatory Agreement, attached to this Agreement as Exhibit H.

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6 r)" Entitlemen ts" shall mean, collectively, zoning approvals, conditional use permit and any other discretionary approvals required for construction of the Project. For definitional purposes in this Agreement, " Entitlements" do not include the Building Permit, the Fina l Map, or any other ministerial approvals.
s)" Escrow" shall mean the escrow opened with the Escrow Holder to close the transactions described in Article 5 .
t)" Escrow Holder" shall mean Old Republic Title Company. u )“ Final Construction Drawings” shall mean final drawings for the construction of the Improvements used to obtain a Building Permit from the City. v)“ Final Map” shall mean Final Parcel Map 11186.
w)“ Force Majeure” shall have the meaning set forth in Section 13.4. x)" Grant Deed" shall mean the grant deed by which the City conveys its fee estate in the Undivided Parcel to the Developer. A form of the Grant Deed is attached to this Agreement as Exhibit L.
y )" Hazardous Materials" shall mean:
1 ) Those substances included within the definitions of "hazardous substances", " Hazardous Materials", " toxic substances", or "solid waste" in the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) CERCLA"), as amended by Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499 100 Stat. 1613) ("SARA"), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§6901 et seq.) (" RCRA"), and the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq., and in the regulations promulgated pursuant to said laws, all as amended; 2 ) Those substances listed in the United States Department of Transportation Table (49 CFR 172.101 and amendments thereto) or by the Environmental Protection Agency ( or any successor agency) as hazardous substances ( 40 CFR Part 302 and amendments thereto);
3 ) Any material, waste or substance which is (A) petroleum, ( B) asbestos, ( C) polychlorinated biphenyls, ( D) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (33 U.S.C. §§1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §§ 1317); (E) flammable explosives; or (F) radioactive materials;
4 ) Any toxic or hazardous waste, material or substance or any oil or pesticide listed in, covered by, or regulated pursuant to, any state or local law, ordinance, rule or regulation applicable to the Property, as heretofore or hereafter amended; and 5 ) Such other substances, materials and wastes which are or become regulated as hazardous or toxic under applicable local, state or federal law, or the United States

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7 government, or which are classified as hazardous or toxic under federal, state, or local laws or regulations.

The term "Hazardous Materials" shall not include: construction materials, gardening materials, household products, office supply products, medical supplies and equipment or janitorial supply products customarily used in the construction, maintenance, rehabilitation, use, occupancy or management of a medical office building and its supporting parking structure, and which are used and stored in accordance with all applicable environmental ordinances and regulations.
z) " Hazardous Materials Laws" shall mean environmental and health and safety laws, regulations, ordinances, administrative decisions, common law decisions ( whether federal, state, or local) with respect to Hazardous Materials, including those relating to soil and groundwater conditions.
aa) “ Housing North Developer” has the meaning set forth in Recital J bb) “ Housing North Phase ” has the meaning set forth in Recital J. cc) “ Housing South Developer” has the meaning set forth in Recital J. dd) “ Housing South Phase ” has the meaning set forth in Recital J. ee) “ Improvements” shall mean up to 130 units of multi-family rental housing to be constructed in accordance with the Project Documents. As the context requires, the term Improvements” shall refer to the 79 units of housing to be constructed on the Housing North Phase and the 51 units of housing to be constructed on the Housing South Phase individually. ff) “ Indemnitees” shall have the meaning set forth in Section 9.4. gg) [ Intentionally deleted].
hh) " Official Records" means the Official Records of Alameda County. ii) [ Intentionally deleted].
jj) [ Intentionally deleted ].
kk) “ Parties” shall mean the City and the Developer.
ll) “ Party ” shall mean either the City or the Developer depending on the context.
mm) “ Permitted Exceptions” shall mean the following exceptions to title with respect to the Property:

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8 1) the lien of any non-delinquent property taxes and assessments; 2 ) all existing easements over, under and across the Property for ingress and egress and public utilities, which do not preclude Developer’ s intended use of the Property;
3) any incidental easements or other matters affecting title which do not preclude or materially impair Developer’ s intended use of the Property; 4 ) applicable building and zoning laws and regulations; 5 ) the provisions of this Agreement;
6 ) other matters created by, through or under Developer; and 7 ) such other exceptions to title as may hereafter be mutually approved by the City and the Developer.
nn) “ Person ” or “Persons” shall mean any individual, partnership, joint venture, corporation, limited liability company, limited liability partnership, trust or other entity, private or public with the power and authority to act and conduct business on its own behalf. oo) Intentionally Omitted .
pp) " Pro Forma" shall mean the preliminary sources and uses of funds for the development of the Project on the Housing Parcel North and Housing Parcel South , which will be submitted to the City in accordance with the Schedule of Performance and subject to approval by the City .
qq) " Project" shall mean (i) the Property and (ii) the Improvements, as more fully set forth in the Project Objectives. As the context requires, the term “ Project” shall refer to the Housing North Phase and Housing South Phase individually. rr) " Project Documents" shall mean the site plan, elevations and landscaping plans submitted by the Developer to enable the Developer to obtain the Entitlements or other City permits, approvals, or authorizations for development of the Project. ss) “ Project Objectives” shall mean the description of preliminary characteristics of the Project, desired items the Parties will strive to achieve, and shall serve as the basis to inform application documents for the Entitlements, attached hereto as Exhibit B. tt) " Property" shall collectively mean the City -owned parcels defined as Parcel 1 (“ Housing Parcel North”) and 3 (“ Housing Parcel South”) on Vesting Tentative Parcel Map 11186, as more particularly described in Exhibit M, attached to this Agreement. uu) “ Purchase Price” shall have the meaning set forth in Section 5.2.

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9 vv) “ Regulatory Agreement” shall have the meaning set forth in Section 9 .1, and a form of which is attached as Exhibit H.
ww) " Schedule of Performance" shall mean the summary schedule of actions to be taken by the Parties pursuant to this Agreement to achieve the disposition of the Undivided Parcel to the Developer and the construction of the Improvements. The Schedule of Performance is attached to this Agreement as Exhibit C.
xx) “ Security Financing Interests” has the meaning set forth in Section 11.1. yy) “ Seller Take-Back Property Acquisition Note” has the meaning set forth in Section 3 .2(a), a form of which is attached as Exhibit F. zz) “ Site Acquisition Loan” has the meaning set forth in Section 3 .2(a). aaa) “ TCAC” shall mean the California Tax Credit Allocation Committee, which administers the low income tax credit financing program. bbb) “ Title Company” shall mean Old Republic Title Company. ccc) “ Title Policy ” has the meaning set forth in Section 5 .3. ddd) " Transfer" shall mean a transfer of this Agreement or an interest in the Developer, as more particularly described in Article 10. eee) “ Workforce Housing” shall mean non age -restricted housing that is targeted to a broad range of working incomes, up to 110% Area Median Income. To the extent permitted by law and consistent with the program regulations for funding sources used for development of the Project, selection priority will be provided first to Livermore Valley Joint Unified School District school teachers, employees working for businesses in the Livermore Downtown, first responders employed in Livermore (including emergency medical personnel), professional artists working in Livermore, and then to all other persons who live or work in Livermore. Notwithstanding the foregoing, in the event of a conflict between this provision and the provisions of Section 42 or Section 142 of the Internal Revenue Code of 1986, as amended, the provisions of such Section 42 or Section 142, as applicable, shall control. fff) “ EVA Improvements” is defined as the Emergency Vehicle Access Improvements which are identified on Vesting Tentative Parcel Map 11186 and in the associated Engineering Conditions ( Sections 7.c & d) for the Project approval. ggg) “ Veterans Park Parcel” is defined as Parcel 2 on Vesting Tentative Parcel Map 11186, as more particularly described in Exhibit N, attached to this Agreement. This parcel will be dedicated back to the City upon construction financing closing for the first phase of the Project and in accordance with the Schedule of Performance.

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10 hhh) “ Veterans Park Improvements” is defined as the constructed improvements within the Veterans Park Parcel which shall be entitled and designed at the sole discretion of the City .
iii)“ Undivided Parcel” is defined as that real property in the City of Livermore known as Lot 1 of Tract Map No. 8574, recorded December 23, 2020, in Book 365 of Maps at pages 15-19, in Alameda County Records, as more particularly described in Exhibit A.

Section 2.2 Exhibits. The following exhibits are attached to and incorporated into this Agreement:

Exhibit A: Description of the Undivided Parcel
Exhibit B: Project Objectives
Exhibit C: Schedule of Performance
Exhibit D: Intentionally Omitted
Exhibit E: Predevelopment Loan Promissory Note dated November 27, 2018 Exhibit F: Form of Seller Take -Back Property Acquisition Loan Promissory Note
Exhibit G: Form of City Deed of Trust for both Predevelopment Loan and Seller Take -Back Property Acquisition Deed of Trust
Exhibit H: Form of Regulatory Agreement
Exhibit I: Insurance Requirements
Exhibit J: City Impact Fee Schedule dated July 1, 2018
Exhibit K: Form of Memo of DDLA
Exhibit L: Form of Grant Deed
Exhibit M: Description of the Property – Housing Parcel North and Housing Parcel South
Exhibit N: Description of the Veterans Park Parcel
Exhibit O: Form of Temporary Parking Lease Agreement
Exhibit P: Request for Stay of Expiration Date for the Project Entitlements and Approvals and Approval by City of Livermore

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11 Exhibit Q: Form of Irrevocable Parking Spaces Lease
ARTICLE 3. CITY FINANCIAL ASSISTANCE
Section 3.1 Predevelopment Loan.
a) Loan amount. The City provided a predevelopment loan of Five Hundred Thousand Dollars ($500,000) for predevelopment costs including architecture and design costs, legal and specialty consultant fees, site feasibility analysis, title review, due diligence, and preconstruction costs. The Predevelopment Loan is evidenced by the Predevelopment Note between Developer and City dated November 27, 2018, attached as Exhibit E. Prior to transfer of the Undivided Parcel, the City , Developer and Housing North Developer shall enter into an assignment and amendment of the Predevelopment Note to: (i) assign the Note from Developer to Housing North Developer as contemplated in Recital J; and (ii) to amend the Predevelopment Loan Term set forth in the Note attached as Exhibit E to 65 years. b) Interest. The City Predevelopment Loan shall bear three percent ( 3%) annual interest.
c) Loan repayment. The City Predevelopment Loan shall have a term that expires on the sooner of the date fifty -five (55) years from either the conversion of the permanent financing (the “ Predevelopment Loan Term”) or 65 years from the date of this Agreement, unless otherwise terminated for infeasibility as described herein . The City Predevelopment Loan repayment shall be deferred during development of the Project. Upon issuance of a certificate of occupancy, payment on the City Predevelopment Loan shall be made from a pro rata share of residual receipts, the terms of which are described in the Predevelopment Loan Note.

Developer shall have the right to prepay the City Predevelopment Loan at any time, with no prepayment penalty. However, this DDLA shall remain in effect for the duration of the Predevelopment Loan Term, regardless of any prepayment or timely payment of the City Predevelopment Loan.

All principal and interest on the City Predevelopment Loan shall, at the option of the City, be due and payable upon the earliest of: (i) the occurrence of an Event of Default, as described in Section 3.2(e), for which the City exercises its right to cause the indebtedness to become immediately due and payable; or (ii) subject to the terms of Section 3.1(e) below.

Developer shall be responsible for payment of the principal of, or interest on, the City Predevelopment Loan as described in the Predevelopment Loan Promissory Note, attached hereto as Exhibit E. The sole recourse of the City with respect to principal of, or interest on, the Predevelopment Loan shall be as described in the Predevelopment Loan Promissory Note.

Upon the transfer of the Undivided Parcel to Developer, the Predevelopment Loan shall be secured by a deed of trust recorded against the Undivided Parcel (the “ Predevelopment Loan

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12 Deed of Trust”, form of which is attached to this Agreement as Exhibit G). Once the Final Map is recorded and in accordance with the Schedule of Performance, and upon the close of construction financing for the first phase of the Project, the Veterans Park Parcel shall be dedicated back to the City, free and clear of any encumbrances ( except as otherwise provided herein). The parties shall execute necessary documents to remove any encumbrances from the Veterans Park Parcel, including but not limited to a partial reconveyance of the Predevelopment Loan Deed of Trust and partial termination of the Regulatory Agreement. d ) In the event that this Agreement is partially assigned to the Housing South Developer as contemplated in Section 1.2, at Developer’ s option in its sole discretion, the Predevelopment Loan shall be partially assign ed to Housing South Developer and the Predevelopment Loan documents will be modified accordingly. In such an event, the City hereby acknowledges and agrees that there shall be no cross defaults between the Predevelopment Loan and applicable loan documents for the Housing North Developer and the Predevelopment Loan and applicable loan documents for the Housing South Developer. e) Termination for Infeasibility. Predevelopment Loan shall terminate if during the predevelopment analysis the Project is determined to be infeasible. City shall have no obligations to disburse additional funds. In the event that, prior to Developer’ s construction finance closing, the Project is determined by Developer or City to be infeasible through no fault of Developer, or if Developer terminates pursuant to Section 5.10, the Predevelopment Loan shall terminate and Developer’ s obligation to repay such Predevelopment Loan shall be forgiven.

Section 3.2 Site Acquisition Loan .
a) Loan amount. City shall make an acquisition loan to the Developer in the amount of the Purchase Price of the Property (“ Site Acquisition Loan”). The purchase price of the property shall be Seven Million Eight Hundred Thousand Dollars ($7.8M). The Site Acquisition Loan shall be evidenced and secured by the Seller Take- Back Note and Seller- Take Back Site Acquisition Deed of Trust recorded against the Undivided Parcel, the forms of which are attached as Exhibit F and Exhibit G.
b ) Interest. The Site Acquisition Loan shall bear interest at 3% annual simple interest.
c) Loan conditions to disbursement. Disbursement of Site Acquisition Loan shall be contingent on the Developer entering into a Regulatory Agreement to provide for affordable rents in no more than forty -nine percent ( 49%) of units in the Project in the form attached hereto as Exhibit H.
d ) Loan repayment. Annual payments on the Seller Take-Back Note shall be due and payable on a pro-rata residual receipts basis in accordance with the formula set forth in the Seller Take- Back Note. The annual loan payments shall commence upon conversion of the project to permanent financing and continue for fifty-five years. The entire outstanding principal balance of the Site Acquisition Loan, together with interest accrued thereon and all other sums accrued, shall be payable in full on the date Maturity Date, as defined in the Seller Take -Back

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13 Note. City shall have the right to accelerate the Maturity Date and declare all sums payable under the Seller Take- Back Note immediately due and payable upon the expiration of all applicable cure periods following the occurrence of an event of borrower default, as described in Section

3.2(e).

Upon the transfer of the Undivided Parcel to Developer, the Site Acquisition Loan shall be secured by a deed of trust recorded against the Undivided Parcel, a form of which is attached to this Agreement as Exhibit G. The Veterans Park Parcel shall be dedicated back to the City, free and clear of any encumbrances ( except as otherwise provided herein), upon close of construction financing for the first phase of the Project on the timeframe specified by the Schedule of Performance. The parties shall execute necessary documents to remove any unauthorized encumbrances from the Veterans Park Parcel including but not limited to a partial reconveyance of the Seller- Take Back Site Acquisition Deed of Trust and partial termination of the Regulatory Agreement.
e) Event of Site Acquisition Loan Default. The following events shall constitute an event of default under the Site Acquisition Loan:
1) Developer fails to pay when due the principal and interest payable under the Note , and such failure continues for thirty (30) days after City notifies Borrower thereof in writing;
2) A transfer occurs in violation of Article 10;
3) Developer fails to maintain insurance, as required in Section 4.6 and fails to cure such default within five days;
4) Developer fails to pay prior to delinquency taxes or assessments due on the Property Improvements or fails to pay when due any other charge that may result in a lien on the Property or the Improvements, and Developer fails to cure such default within twenty 20) days of the date of delinquency, but in all events prior to the date upon which the holder of any such lien has the right to foreclose thereon;
5) A default arises under any loan secured by a mortgage, deed of trust or other security instrument recorded against the Property and remains uncured beyond any applicable cure period such that the holder of such security instrument has the right to accelerate repayment of such loan;
6) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made and continues to be materially adverse to the City;
7) If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors Bankruptcy Law”), Developer or any general partner thereof (i) commences a voluntary case

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14 or proceeding; ( ii) consents to the entry of an order for relief against Borrower or any general partner thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Developer or any general partner thereof; ( iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due;
8) A court of competent jurisdiction shall have made or entered any decree or order (i) adjudging the Developer to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of the Developer or seeking any arrangement for Developer under bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, ( iii) appointing a receiver, trustee, liquidator, or assignee of the Developer in bankruptcy or insolvency or for any of its properties, or (iv ) directing the winding up or liquidation of the Developer, in each case if such decree, order, petition, or appointment is not removed or rescinded within ninety (90) days; 9) Developer shall have assigned its assets for the benefit of its creditors ( other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure pursuant to paragraphs ( 7) or (8) above or pursuant to any other mortgage on the Property, in which event such lesser time period shall apply under this subsection as well) or prior to any sooner sale pursuant to such sequestration, attachment, or execution;
10) Developer shall have voluntarily suspended its business or Developer shall have been dissolved or terminated;
11) A material breach of this Agreement or any City Document and remains uncured beyond any applicable cure period.
f) If, in the City’ s sole discretion, the Developer fails to observe or perform any condition contained in Section 3.2(d) or (e), or take diligent action towards the cure or remedy of such event, for a period of sixty (60) days after written notice from the City specifying such failure and requesting that it be cured, such event shall be deemed a default under the Site Acquisition Loan and the City shall be entitled, and in addition to all other remedies provided by law or in equity, to compel specific performance by the Developer of its obligations under the Site Acquisition Loan. Any investor or limited partner of Developer or Developer’ s assignee shall have the same notice and cure rights granted to Developer, and any cure tendered by such investor shall be accepted or rejected on the same basis as if tendered by Developer. g) City and Developer acknowledge and agree that the City is conveying the Undivided Parcel prior to recordation of the Final Map. In the event that the Property Undivided Parcel and Project are subdivided into more than one parcel and/or ownership structure, the Site Acquisition Loan may be divided into multiple loans, to be allocated proportionally amongst some or all of the subdivided Property and Project as mutually determined by the City and Developer, each with terms in accordance with this Section 3.2. If requested by either City or

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15 Developer, this Agreement, the Site Acquisition Loan documents, and the Regulatory Agreement may be amended to reflect any such changes.

The City hereby acknowledges and agrees that there shall be no cross defaults between the Site Acquisition Loan and applicable loan documents ( including the Regulatory Agreement) once those are divided and assigned to the Affiliated limited partnership.

Section 3.3 Development Loan/Contribution. Subject to approval of a final finance plan, the City may, but is not obligated to, make a future development loan and/or other financial contribution (“ Development Loan/Contribution ”) to be disbursed to pay for development and/or operations costs in connection with the Project. The Development Loan /Contribution shall be contingent upon the City and Developer agreeing to terms for each phase of development.

Development Loan/Contribution will only be disbursed following approval of the finance plan, and the necessary land use, environmental, and permit approvals. A Development Loan/ Contribution agreement, the form of which shall be mutually agreed upon by City and Developer and be consistent with this Agreement, will control the specific terms of the Development Loan/Contribution. The amount of the Predevelopment Loan allocated to each phase may be included in the Development Loan/Contribution for such phase and be deemed to have been previously disbursed.

Section 3.4 Financing for EVA Improvements. As set forth in this subsection and subject to the conditions set forth herein, the City will reimburse Developer for the approved costs associated with constructing EVA Improvements solely consisting of the installation of retractable bollards described in 7c of the City’ s Engineering Conditions (“ EVA Improvement Reimbursables”) that are approved by the City. Developer shall first provide the City with a cost proposal for the EVA Improvement Reimbursables, including design and construction, and City shall maintain the right to approve or disapprove costs. Reimbursement of City-approved costs will not be included as part of City ’s loan assistance to develop the Project. Improvements shall be constructed in compliance with all applicable laws as described in Sections 8.5 and in Exhibit B. Developer will submit actual invoices to City only for that portion of work which is approved for reimbursement by City.

Section 3.5 Construction and Financing for Veterans Park Improvements. The Parties agree that the Developer will manage the construction of the Veterans Park Improvements but that the City will pay for the costs of the Veterans Park Improvements at its sole expense. City and Developer will negotiate a future construction management and reimbursement agreement to coordinate the construction of the Veterans Park Improvements. The Agreement shall authorize reimbursement for the construction of the park, per the designs and specifications issued by the City, and shall not exceed Five Million Five Hundred Thousand Dollars ($ 5,500,000) (not including any grants obtained by Developer to help fund the construction costs), without additional approval of the City Council. The Agreement and the procurement of the contractor

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16 who will build the park shall comply with all applicable local, state, and federal procurement laws to the extent such laws apply.

These improvements would be exclusive of any development loan provided by the City for development of the Project.

ARTICLE 4. PREDISPOSITION REQUIREMENTS
Section 4.1 City’ s Conditions Precedent to Close of Escrow. As conditions precedent to the Close of Escrow for the Undivided Parcel, the conditions set forth in this Article 4 and Section 6.2 must first be met by the times specified for such conditions in the Schedule of Performance ( as such times may be extended pursuant to Section 4.7) or, if no time is so specified, on or before the Close of Escrow. Satisfaction of these conditions depends on performance by the Developer. Only the City can waive satisfaction of the conditions in this Article 4 and Section 6.2.

Section 4.2 Financing Commitment. The Developer shall provide the City with a preliminary development Pro Forma, setting forth the Developer' s estimate of sources and uses of funds for development of the Project. No later than the time specified in the Schedule of Performance, but not as a condition to Close of Escrow, the Developer will submit a true copy of each letter of interest from lenders, TCAC, and/or equity partners to provide funds in the amounts necessary to fully finance the projected costs of development of the Improvements, each of which shall be approved by the City. Prior to conveyance of the Housing South Parcel as contemplated in Recital J and section 1.2(b), but not as a condition to Close of Escrow on the Undivided Parcel, Developer shall have either (i) obtained all financing necessary to build the Improvements, or (ii) will close on the financing necessary to build the Improvements.

Section 4.3 City Approvals. The Developer shall obtain all Entitlements necessary for the Improvements. Developer and City acknowledge that the Litigation is pending, and therefore the Parties agree that Entitlements issued by the City during the pendency of the Litigation shall be deemed to have been obtained.

Section 4.4 Organizational Documents. The City shall approve the Developer’ s organizational documents in the time specified in the Schedule of Performance.

Section 4.5 Federal Environmental Review and Clearance. Notwithstanding any other provision in this Agreement, the City shall have no obligation to sell the Undivided Parcel, the Developer shall have no obligation to purchase the Undivided Parcel, and no transfer of title to the Developer may occur, unless and until the City has provided the Developer with written notification that: (1) the City has completed a federally required environmental review pursuant to the National Environmental Policy Act (“ NEPA”) and the City’ s request for release of funds has been approved and, subject to any other conditions in this Article 4, (a) the purchase may proceed, or (b) the purchase may proceed only if certain conditions to address issues in the environmental review are satisfied before or after the purchase of the Undivided Parcel; or (2) it has determined the purchase is exempt from federal environmental review pursuant to NEPA and

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17 a request for release of funds is not required. The City shall use its best efforts to conclude the environmental review pursuant to NEPA of the Undivided Parcel expeditiously.

Section 4.6 Insurance. Within the time specified in the Schedule of Performance, the Developer shall furnish to the City the type and amounts of insurance specified in Exhibit I, which may be modified from time to time by the City’ s Risk Manager upon written notice, provided that such modifications are commercially reasonable and reasonably financially feasible .

Section 4.7 Time Extensions. The City Manager shall have the authority to approve two extensions of the Schedule of Performance, as mutually agreed upon in writing between the Parties and which the City Manager deems reasonable and appropriate.

Section 4.8 Lease Back of the Undivided Parcel. Prior to the Close of Escrow on the Undivided Parcel, the parties shall enter into a Temporary Parking Lease for the Undivided Parcel in substantial conformance with Exhibit O wherein parking will be available for public parking until construction of the first phase of the Project commences and shall deposit an executed counterpart of the Temporary Parking Lease Agreement for the Undivided Parcel with the Escrow Holder. As further set forth in the Temporary Parking Lease Agreement, the lease shall be a triple net lease, with City responsible for payment of all costs it incurs during its lease of the Undivided Parcel. In addition, in consideration for the use of the Undivided Parcel during the lease period, City shall either pay directly or reimburse Developer for all third party costs incurred as a result of Developer’ s ownership of the property, including insurance, property taxes and assessments and any other expenses which are required to be paid directly by the Developer as part of the operation of the Undivided Parcel as temporary public parking. Any other expenses that the City shall be responsible for under the Temporary Parking Lease Agreement other than insurance, property taxes and assessments shall be subject to review and approval by the City prior to commitment or obligation by the Developer. City’ s obligations to reimburse Developer for insurance, property taxes and assessments under the Lease shall not exceed One Hundred Twenty Thousand ($ 120,000) per year, for the term of the lease, increasing 3% annually, or further Council approval shall be required.

Section 4.9 Air Rights to Housing Parcels. Prior to the Close of Escrow on the disposition of the Undivided Parcel the parties shall have taken the necessary steps to ensure that the City will receive the air rights to Parcels 1 and 3 at and above the elevation of 534 feet by modifying the Veterans Park Parcel accordingly. The intent of this paragraph is to ensure that the Project shall not exceed the entitled height elevation of 534, or 52 feet above the surface elevation ( the benchmark elevation is 482 feet, measured from a monument at the corner of Railroad Avenue and L Street), provided, however, that the City shall provide Developer with a temporary access easement to access the air rights above Parcels 1 and 3 during construction of the Project. Veterans Park Parcel shall be dedicated back to the City as described in Section

8.10. ARTICLE 5. DISPOSITION OF THE UNDIVIDED PARCEL

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18 Section 5.1 Purchase and Sale. Provided the predisposition requirements set forth in Article 4 and the additional closing conditions set forth in Section 5.4 have been satisfied, the City shall sell to the Developer, and the Developer shall purchase from the City, the Undivided Parcel pursuant to the terms, covenants, and conditions of this Agreement.

Section 5.2 Purchase Price. The Purchase Price for the Property shall be $7,800,000 Seven Million Eight Hundred Thousand Dollars).

Section 5.3 Opening Escrow. To accomplish the conveyance of the Undivided Parcel from the City to the Developer, in accordance with the Schedule of Performance, the Parties shall establish an escrow and execute and deliver to the Escrow Holder written instructions that are consistent with this Agreement. At Close of Escrow, Title Company shall provide Developer at Developer’ s sole cost and expense) an ALTA owner’ s policy of title insurance issued by the Title Company insuring fee title to the Property vested in Developer subject only to the Permitted Exceptions ( the “Title Policy ”).

Section 5.4 Additional Closing Conditions. Subject to the satisfaction of all predisposition conditions to the Close of Escrow set forth in this section, the Close of Escrow shall occur and the City shall convey, and the Developer shall accept conveyance of, a fee interest in the Property pursuant to the Grant Deed, a form of which is attached to this Agreement as Exhibit L.

The following shall constitute conditions to the completion of the Close of Escrow:
a) The conditions precedent set forth in Article 4 above shall have been satisfied.
b ) The Developer shall have deposited the following with the Escrow Holder:
i) City Documents, executed and acknowledged as applicable, ( ii) Developer’ s share of closing costs, and (iii) any other documents required by Article 4 and Section 6.2 and that may be reasonably requested by the Escrow Holder and the Title Company and that are customarily delivered in connection with the closing of real estate transactions in Alameda County. c) There shall exist no condition, event or act which would constitute a Developer Event of Default or which, upon the giving of notice or the passage of time, or both, would constitute a Developer Event of Default.
d ) The representations and warranties of Developer as set forth in Section

13.1 remain true and correct in all material respects. There has been no material adverse change in the financial condition of the Developer as of the date of the Close of Escrow. e) Title Company shall be prepared to issue the Title Policy without any exceptions other than the Permitted Exceptions.
f ) Reserved.

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19 g) The City shall have deposited the following with the Escrow Holder (i) the Grant Deed, in recordable form, (ii) an owner’ s affidavit as reasonably and customarily required by the Title Company, and (iii) any other documents required by Article 4 and Section 6.2 and that may be reasonably requested by the Escrow Holder and the Title Company and that are customarily delivered in connection with the closing of real estate transactions in Alameda County.

Section 5.5 Deposit of Documents. Within ten (10) business days after the satisfaction or waiver of all of the conditions set forth in Article 4, the Parties shall deposit into Escrow any and all documents and funds necessary to effectuate the Close of Escrow. Each such agreement, instru ment and document shall be duly executed, and in recordable form if it is to be recorded.

Section 5.6 Close of Escrow. Provided that all of the conditions set forth in Article 4 have been satisfied or waived and all of the documents set forth in Section 5.5 have been deposited into Escrow, Escrow Holder shall do all of the following:
a) Complete all blank spaces, if any, in the Grant Deed, including the effective dates thereof;
b) Attach thereto final and accurate legal descriptions consistent with the title policies required under this Agreement;
c) Deliver copies of fully executed originals of Grant Deed to the appropriate parties; and
d) Cause to be recorded or distributed ( as set forth below) the following documents:
1) Record in the Official Records the Grant Deed conveying the Property to the Developer;
2) Record in the Official Records the Seller Take- Back Site Acquisition Deed of Trust and Predevelopment Loan Deed of Trust; 3) Record in the Official Records the Regulatory Agreement; 4) File any informational reports required by Internal Revenue Code Section 6045( e), as amended, and any other applicable requirements; 5) Forward to both the Developer and the City a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon;
6) Provide the Title Policy to Developer; and

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20 7) Distribute or record such other documents as may be specified in the Parties’ escrow instructions, if any.

The date on which the Escrow Holder records the last of the above items shall be the "Close of Escrow."
Section 5.7 Additional Escrow Instructions. The Parties shall execute such further escrow instructions as Escrow Holder may require; provided that Escrow Holder shall not require the imposition of any additional obligations or liabilities on the Parties. Such further escrow instructions shall not modify the provisions of this Agreement unless the Parties otherwise expressly provide for such modification in such additional instructions.

Section 5.8 Condition of Title to the Property . The City shall convey the fee interest in the Undivided Parcel to the Developer free of all liens, encumbrances, clouds, conditions, and rights of occupancy and possession, except the (a) the Permitted Exceptions, ( b) reservations, licenses, easements and rights of way in, to, over or affecting the Property for any purpose whatsoever that are existing as of the date of this Agreement and have been disclosed to Developer in writing or are otherwise known to Developer or would be apparent or discoverable by an ALTA survey of the Property. Notwithstanding the foregoing, City acknowledges and hereby agrees to remove that certain easement dated November 7, 1978 and recorded May 18, 1979, as Instrument No 79-095080 prior to conveyance of the Undivided Parcel.

Section 5.9 Condition of the Undivided Parcel.
a)" As Is" Conveyance.
1 ) THE DEVELOPER SPECIFICALLY ACKNOWLEDGES
AND AGREES THAT THE CITY IS CONVEYING THE PROPERTY ON AN " AS IS WITH ALL FAULTS" BASIS AND THAT THE DEVELOPER IS NOT RELYING ON

ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,

EXPRESS ( EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT) OR

IMPLIED, FROM CITY AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION: ( A) THE QUALITY, NATURE, ADEQUACY

AND PHYSICAL CONDITION OF THE PROPERTY ( INCLUDING, WITHOUT

LIMITATION, TOPOGRAPHY, CLIMATE, AIR, WATER RIGHTS, WATER, GAS,

ELECTRICITY, UTILITY SERVICES, GRADING, DRAINAGE, SEWERS, ACCESS TO PUBLIC ROADS AND RELATED CONDITIONS); ( B) THE QUALITY, NATURE,

ADEQUACY, AND PHYSICAL CONDITION OF SOILS, GEOLOGY AND

GROUNDWATER, ( C) THE EXISTENCE, QUALITY, NATURE, ADEQUACY AND

PHYSICAL CONDITION OF UTILITIES SERVING THE PROPERTY, ( D) THE

DEVELOPMENT POTENTIAL OF THE PROPERTY, AND THE PROPERTY' S USE,

HABITABILITY, MERCHANTABILITY, OR FITNESS, SUITABILITY, VALUE OR

ADEQUACY OF THE PROPERTY OR ANY PARTICULAR PURPOSE, ( E) THE

ZONING OR OTHER LEGAL STATUS OF THE PROPERTY OR ANY OTHER

PUBLIC OR PRIVATE RESTRICTIONS ON THE USE OF THE PROPERTY, ( F) THE

COMPLIANCE OF THE PROPERTY OR THEIR OPERATION WITH ANY

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21 APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES,

COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY GOVERNMENTAL OR

QUASI- GOVERNMENTAL ENTITY OR OF ANY OTHER PERSON OR ENTITY, (G)

THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS ON, UNDER OR

ABOUT THE PROPERTY OR THE ADJOINING OR NEIGHBORING PROPERTY, EXCEPT AS PROVIDED IN ARTICLE 6, AND (H) THE CONDITION OF TITLE TO THE PROPERTY. THE DEVELOPER AFFIRMS THAT THE DEVELOPER HAS NOT

RELIED ON THE SKILL OR JUDGMENT OF THE CITY OR ANY OF ITS

RESPECTIVE AGENTS, EMPLOYEES OR CONTRACTORS TO SELECT OR

FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT THE

CITY MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE. THE DEVELOPER ACKNOWLEDGES THAT IT SHALL

USE ITS INDEPENDENT JUDGMENT AND MAKE ITS OWN DETERMINATION AS

TO THE SCOPE AND BREADTH OF ITS DUE DILIGENCE INVESTIGATION

WHICH IT SHALL MAKE RELATIVE TO THE PROPERTY AND SHALL RELY

UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL,

ECONOMIC AND LEGAL CONDITION OF THE PROPERTY ( INCLUDING,

WITHOUT LIMITATION, WHETHER THE PROPERTY IS LOCATED IN ANY AREA

WHICH IS DESIGNATED AS A SPECIAL FLOOD HAZARD AREA, DAM FAILURE

INUNDATION AREA, EARTHQUAKE FAULT ZONE, SEISMIC HAZARD ZONE,

HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY). THE DEVELOPER UNDERTAKES AND ASSUMES

ALL RISKS ASSOCIATED WITH ALL MATTERS PERTAINING TO THE

PROPERTY' S LOCATION IN ANY AREA DESIGNATED AS A SPECIAL FLOOD

HAZARD AREA, DAM FAILURE INUNDATION AREA, EARTHQUAKE FAULT

ZONE, SEISMIC HAZARD ZONE, HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY.
2) Developer' s Release of City. Except as provided in Section 6 .2, the Developer, on behalf of itself and anyone claiming by, through or under the Developer hereby waives its right to recover from and fully and irrevocably releases the City, employees, officers, directors, representatives, and agents ( the "Released Parties") from any and all claims, responsibility and/or liability that the Developer may have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to (i) the condition ( including any construction defects, errors, omissions or other conditions, latent or otherwise), valuation, salability or utility of the Property, or their suitability for any purpose whatsoever, ( ii) any presence of Hazardous Materials, and (iii) any information furnished by the Released Parties under or in connection with this Agreement. 3) Scope of Release. The release set forth in Sec tion 5.9(a)( 2) hereof includes claims of which the Developer is presently unaware or which the Developer does not presently suspect to exist which, if known by the Developer, would materially affect the Developer' s release of the Released Parties. The Developer specifically waives the provision of any statute or principle of law that provides otherwise. In this connection and to the extent permitted by law, the Developer agrees, represents and warrants that the Developer realizes and acknowledges that factual matters now unknown to the Developer may have given or may

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22 hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and the Developer further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that the Developer nevertheless hereby intends to release, discharge and acquit the City from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses. Accordingly, the Developer, on behalf of itself and anyone claiming by, through or under the Developer, hereby assumes the above -mentioned risks and hereby expressly waives any right the Developer and anyone claiming by, through or under the Developer, may have under Section 1542 of the California Civil Code, which reads as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR

OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR

HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
Developer' s Initials: __________
b) The provisions of this section shall survive the termination of this Agreement.

Section 5.10 Inspections; Condition of Site . Developer shall conduct its own investigation of the Property, its physical condition, the soils and environmental conditions of the Property and all other matters which, in Developer’ s sole and absolute judgment, affect or influence Developer’s willingness to develop the Property pursuant to this Agreement. Within the time set forth in the Schedule of Performance, Developer shall provide written notice to City of Developer’ s determinations concerning the suitability of the physical cond ition of the Property and its economic feasibility for development and intended use. If, in the Developer’ s sol e and absolute discretion, the physical condition of the Property is unsuitable for the use or uses to which the Property will be put, or that it is not economically feasible for Developer to develop the Project pursuant to this Agreement, then Developer shall have the option to (a) take any action necessary to place the Property in a condition suitable for development, at no cost to City; or (b) terminate this Agreement pursuant to the provisions in Section 3.1 (e). If Developer has not given written notice to City of its determination concerning the suitability of Property within the time set forth in the Schedule of Performance, Developer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section.

Section 5.11 Right of Entry . Prior to the Close of Escrow, City will grant to the Developer and the Developer’ s agents the right to enter upon the Property for the exclusive purpose of conducting studies and investigations that will assist the Developer in performing its due diligence investigation. Such entry shall be made only during regular business hours and upon not less than five (5) business days' advance telephonic, email, or written facsimile notice to the City’ s Housing Programs Manager.

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23 Prior to exercise of the right of entry, the Developer shall provide the City with satisfactory evidence, in the form of a certificate of insurance, that the Developer’ s agents who obtain access to the Property are insured to the levels required by the City’ s Risk Manager.

The Developer shall indemnify, defend and hold the City of Livermore, Indemnitees, as defined in Section 9.4 and the Property harmless from and against, any and all costs, expenses including, without limitation, attorneys' fees), damages, claims, liabilities, liens (including, without limitation, mechanics liens) encumbrances and charges to the extent such arise out of or are in any way directly related to any entry by the Developer or the Developer’ s agents upon the Property , but only to the extent such matters do not arise from the gross negligence or willful misconduct of the City or other Indemnitee, from pre-existing conditions of the Property, or from Developer’ s discovery of any information potentially having a negative impact on the Property.

The foregoing obligation of the Developer shall survive the expiration or termination of this Agreement.

Section 5.12 Real Estate Commissions. The City shall not be liable for any real estate commissions or brokerage fees that may arise from this Agreement. The Developer represents that it has not obtained or engaged the services of a real estate broker in this transaction. If a real estate commission is claimed through either Party in connection with the transaction contemplated by this Agreement, then the Party through whom the commission is claimed shall indemnify, defend and hold the other Party harmless from any liability related to such commission. The provisions of this Section shall survive termination of this Agreement.

ARTICLE 6. HAZARDOUS MATERIALS REPRESENTATIONS
Section 6.1 Existing Hazardous Materials. Environmental investigations conducted at the Undivided Parcel found limited areas of metals ( lead, arsenic) in shallow soil, total petroleum hydrocarbons ( TPH) in soil and groundwater, and volatile organic compounds ( VOCs) in groundwater and soil gas (air in between soil particles). Environmental investigations conducted to support development off-property, at adjacent properties, found VOCs associated with former dry-cleaning operations to the south of the Undivided Parcel.

Data from the recent investigation and prior sampling events indicate the following:

Soil: Metals were confirmed in shallow soil within the areas proposed for excavation during the proposed development of the Undivided Parcel. The detected metals concentrations are generally within the range of naturally occurring ( background) levels or, when evaluated as a whole, less than Water Board Tier 1 environmental screening levels.

Groundwater: Chemicals detected in groundwater include tetrachloroethene ( PCE), total petroleum hydrocarbons ( TPH) as diesel, and chloroform. Based on historical site use and known use of neighboring properties, these chemicals are a result of releases from upgradient sources and concentrations have been decreasing over time.

Soil Vapor: Chemicals detected in soil vapor include PCE and benzene. VOCs detected in soil vapor at the Property are likely the result of one or more VOCs release( s) from historical dry-cleaning operations at the, adjacent, former Quality Cleaners located south of the Property at 2048 First Street, rather than the result of past use of the Property.

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24 Data was used to evaluate potential health risks to future occupants of the planned residential buildings. Based on this assessment, using conservative ( health protective) assumptions, the estimated risks are well within levels considered by the California and United States Environmental Protection Agencies to be protective of human health and do not warrant further remediation or mitigation as part of the proposed development of the Property.

The San Francisco Bay Regional Water Quality Control Board (“ Water Board ”) has required submittal of a Site Management Plan (“ SMP”) prior to the start of construction on the Property.

The SMP is intended to ensure protection of human health at the property by establishing procedures and protocols to be followed during construction and post-construction. The SMP includes procedures to help ensure that chemicals ( e.g., petroleum and metals) in soil and groundwater from historical site uses and uses at other nearby sites are safely managed and disposed of should they be encountered during site development. The SMP will also include protocols for confirmation testing to demonstrate that volatile organic compounds in soil gas do not pose a risk to future occupants.

Once completed and approved by the Water Board, the SMP will be provided to the Developer in accordance with the Schedule of Performance.

Section 6.2 Indemnification and Cooperation. After Developer completes analysis of the SMP and the environmental condition of the Property, and prior to the close of escrow for the Undivided Parcel, the Developer and City shall enter into an indemnity and cooperation agreement to apportion costs and any potential liability related to Hazardous Materials at, on, in, beneath, or from the Property from and after the date of the close of escrow between the Parties.

The Parties acknowledge that no remediation or mitigation is required for the Undivided Parcel in order to develop the Project as more particularly described in section 6.1, above. The indemnity and cooperation agreement between the parties will delineate each party’ s responsibilities regarding the following:

Soil Handling Protocols for the development of the Project; Post Construction Confirmation Testing to Confirm Results of the City’ s Human Health Assessment; and
Operation and Maintenance of the HVAC system in the Project’ s garage.

The indemnity and cooperation agreement shall also address any action items resulting from the City’ s remedial work plan to be submitted for Water Board review and approval; and access issues related to neighboring sites, including any need for access to install groundwater monitoring or soil vapor wells to the south of the Housing Parcel South, should the City be unable to place the wells in the Public Right of Way.

The City Manager is authorized to negotiate and execute the indemnity and cooperation agreement in an amount not to exceed $4,300,000, subject to the City Attorney' s approval of the agreement as to form. The obligations of the City under the indemnity and cooperation agreement shall not exceed $ 4,300,000, without further council approval.

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25 Furthermore, Developer shall have no responsibility for any environmental compliance costs resulting from the City’ s other open Water Board cases applicable to other city-owned properties near the Project site.

ARTICLE 7. DESIGN REQUIREMENTS
Section 7.1 Project Design. The Parties acknowledge that the Developer worked with City in designing the Project to standards that are acceptable to City and that met the objectives identified in the Project Objective, attached as Exhibit B. To the extent any further Entitlements are required for the Project, Developer acknowledges and agrees that the City has full authority and discretion to grant or deny applications for Entitlements.

Section 7.2 Additional Permits and Approvals. Within the time specified in the Schedule of Performance ( as such times may be extended pursuant to Section 4.7 or by mutual agreement of the Parties), Developer shall obtain all ministerial permits and approvals necessary to construct the Improvements. All applications for such ministerial permits and approvals shall be consistent with the approved Project Documents. The Developer acknowledges that execution of this Agreement by the City does not constitute approval by the City of any required ministerial permits or approvals, and in no way limits the City ’s approval process for any such permit and approval. The City shall provide reasonable assistance to the Developer in securing such ministerial permits and approvals.

Section 7.3 City Review. Except for the activities to be performed by or on behalf of the City as otherwise contemplated herein, the Developer shall be solely responsible for all aspects of the Developer' s conduct in connection with the Project, including, but not limited to, the quality and suitability of the Project Documents, the supervision of construction work for the Project and the Veterans Park Improvements, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Except for the activities to be performed by or on behalf of the City as otherwise contemplated herein, any review or inspection undertaken by the City with reference to the Project is solely for the purpose of determining whether the Developer is properly discharging its obligations to the City under this Agreement, and should not be relied upon by the Developer or by any third parties as a warranty or representation by the City as to the quality of the design or construction of the Improvements.

ARTICLE 8. PRE- CONSTRUCTION AND CONSTRUCTION OF THE IMPROVEMENTS Section 8.1 Commencement of Construction. The Developer shall commence preconstruction activities and the construction of the Improvements within the times set forth in the Schedule of Performance. Construction shall be deemed to commence on the date the Developer issues a notice to proceed pursuant to a valid Building Permit from the City.

Section 8.2 Completion of Construction. The Developer shall diligently prosecute to completion the construction of the Improvements, and shall complete construction of the Improvements within the time set forth in the Schedule of Performance, subject to Force Majeure

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26 requirements in Section 13.4 of this Agreement. As between the City and the Developer, except for, Veterans Park Improvements, and work contemplated by the Cooperation and Indemnity Agreement referenced in section 6.2, above, the Developer shall be solely responsible for the construction of the Improvements, including all costs of construction (except for the EVA Improvement Reimbursables referenced in Section 3.4).

Section 8.3 Construction Pursuant to Scope and Plans.
a) The Developer shall construct the Improvements in accordance with the approved Final Construction Drawings, and the terms and conditions of all City and other governmental approvals.
b) The Developer shall submit or cause to be submitted for the City approval any proposed change in the Final Construction Drawings which materially changes the size, location, or elevations of the Improvements, including the landscape and/or hardscape, or signage of the Improvements, or which materially changes the quality or appearance of the exterior materials of the Improvements, or which would require an amendment to any City Approval prior to making such change. The City, through the City Manager or his/her designee, shall reasonably approve or disapprove a proposed material change within fifteen (15) days after receipt by the City. If City does not approve or disapprove within fifteen (15) days after receipt by the City, such non-response shall be deemed approval. If the City rejects the proposed material change, then, upon request of Developer, the City shall provide the Developer with the specific reasons therefor, and the approved Final Construction Drawings shall continue to control.

The obligations of the City pursuant to this section are separate from the rights the City may have in exercising its municipal regulatory authority and nothing contained herein shall limit the City’ s rights under its regulatory authority . c) No change which is required for compliance with building codes, government health and safety regulations or other applicable laws or regulations, or to comply with changes or corrections required of the Developer in the plan check process shall be deemed material. However, the Developer must submit to the City any change that is required for such compliance within ten (10) days after making such change, and such change shall become a part of the approved Final Construction Drawings, binding on the Developer.

Section 8.4 Mechanics' Liens. The Developer shall indemnify the City and hold the City harmless against and defend the City in any proceeding related to any mechanic' s lien, stop notice or other claim brought by a subcontractor, laborer or material supplier who alleges having supplied labor or materials in the course of the construction of the Improvements by the Developer. This indemnity obligation shall survive the issuance of a Certificate of Occupancy by the City and the termination of this Agreement.

Section 8.5 Compliance with Applicable Law; Prevailing Wage Requirement.

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27 a) The Developer shall cause all construction to be performed in compliance with: 1) All applicable laws, ordinances, rules and regulations of federal, state, county ormunicipal governments or agencies now in force orthat may be enacted hereafter. ( 2) All directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed only after the payment of all applicable fees, procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and the Developer shall be responsible to the City for the procurement and maintenance thereof, as may be required of the Developer and all entities engaged in work on the Property.
b) The Developer shall pay and shall cause the contractor and subcontractors to pay prevailing wages in the construction of the Development as those wages are determined pursuant to California Labor Code Section 1720 etseq., to employ apprentices as required by California Labor Code Sections 1777.5 et seq., and the implementing regulations of the Department of Industrial Relations ( the " DIR").

In addition, as applicable, the Developer shall cause its respective contractors and subcontractors in the construction of the Project to do all the following: 1) all calls for bids, bidding materials and the construction contract documents for the Project must specify that (A) no contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for the Project unless registered with the DIR pursuant to Labor Code Section 1725.5, and (B) the Project is subject to compliance monitoring and enforcement by the DIR; 2) the Developer is required to provide the City all information required by Labor Code Section 1773.3 as set forth in the DIR's online form PWC-100 within 2 days of the award ofthe contract https:// www.dir.ca.gov/pwc100ext/); 3) the Developer shall cause its respective contractors to post job site notices, as prescribed by regulation by the DIR; or 3) the Developer shall cause its respective contractors to furnish payroll records required by Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the electronic format prescribed by the Labor Commissioner.

Developer shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Developer, its contractor and subcontractors) to pay prevailing wages in accordance with the terms of this Agreement as determined pursuant to California Labor Code Section 1720 et seq., to employ apprentices pursuant to California Labor Code Section 1777.5 et seq., and implementing regulations of the DIR or to comply with the other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and the implementing regulations of the DIR in connection with the construction of the Development. The requirements in this Subsection survive the repayment of the City Loans, the reconveyance of the Deed of Trust, and the expiration of the Regulatory Agreement.

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28 c) The Developer shall defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity including the Developer, its contractor and subcontractors) to pay prevailing wages in accordance with this Agreement as determined pursuant to Labor Code Sections 1720 et seq., and implementing regulations of the Department of Industrial Relatio ns or comply with the other applicable provisions ofLabor Code Sections 1720 et seq., to employ apprentices pursuant to Labor Code Sections 1777.5 et seq., and implementing regulations of the Department of Industrial Relations in connection with the construction, pursuant to this Agreement, of the Project and shall indemnify and hold the City harmless against any damages, compensation, fines, penalties or other amounts resulting from the successful prosecution of such claim.
d) The Developer shall construct the Project to comply with all applicable federal and state disabled persons accessibility requirements including but not limited to the Federal Fair Housing Act, Section 504 of the Construction Act of 1973, Title II and/ or Title III of the Americans with Disabilities Act of 1990, Title 24 of the California Code of Regulations and the Uniform Federal Accessibility Standards, and in compliance with Section 504 of the Rehabilitation Act of 1973 29 U.S.C. 794, et seq.).

Section 8.6 Progress Reports. Until a Certificate of Occupancy has been issued by the City, the Developer shall provide the City with periodic progress reports, as reasonably requested by the City (but not more than once every calendar month), regarding the status of the construction of the Improvements. Such report shall consist of an executive summary of the work to date, including, but not limited to, the causes for any delays and the work that is anticipated for the following month, a reasonable number of construction photographs taken since the last report submitted to the City, and shall be in form reasonably acceptable to the City.

Section 8.7 Entry by City . After the expiration of the Temporary Parking Lease Agreement and the City’ s issuance of a Building Permit for the Project, but prior to the City’ s issuance of a Certificate of Occupancy has been issued by the City, the Developer shall permit the City, upon reasonable prior notice (which shall in no event be less than 48 hours), through its officers, agents, or employees, to enter the Property during normal business hours to inspect the work of construction to determine that such work is in substantial conformity with the Scope of Development and the approved Final Construction Drawings or to inspect the Property for compliance with this Agreement. The City is under no obligation to (a) supervise construction, b) inspect the Property, or (c) inform the Developer of information obtained by the City during any inspection. The Developer shall not rely upon the City for any supervision or inspection.

The rights granted to the City pursuant to this section are in addition to any rights of entry and inspection the City may have in exercising its municipal regulatory authority.

Section 8.8 Non- Discrimination During Construction; Equal Opportunity . The Developer ( for purposes of this Section 8 .8, the term “ Developer” shall include Developer’ s

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29 contractors), for itself, its successors and assigns, and transferees agrees that in the construction of the Project provided for in this Agreement:
a) The Developer will not discriminate against any employee or applicant for employment because of race, color, religion, creed, national origin, ancestry, disability, actual and perceived, medical condition, age, marital status, sex, sexual orientation, Acquired Immune Deficiency Syndrome (AIDS), actual or perceived, or retaliation for having filed a discrimination complaint (" Nondiscrimination Factors"). The Developer will take affirmative steps to ensure that applicants are employed by the Developer, and that its employees are treated without regard to the Nondiscrimination Factors during employment including, but not limited to, activities of:
upgrading, demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

The Developer agrees to post in conspicuous places, available to its employees and applicants for employment, the applicable nondiscrimination clause set forth herein. b) The Developer will ensure that its solicitations or advertisements for employment are in compliance with the aforementioned nondiscrimination factors; and Section 8.9 Insurance Requirements. Developer, its contractors, subcontractors and/or agents shall furnish or cause to be furnished to the City duplicate originals of insurance policies, complete with additional insured and loss payee endorsement, as applicable pursuant to this Agreement. Developer shall, until Developer’ s obligations under this Agreement are paid and discharged in full, maintain and keep in full force and effect any insurance required by City, issued by companies approved and regulated by the State Department of Insurance in the amounts and terms set forth in Exhibit I. Upon reasonable written notice, Developer shall comply with any changes to the amounts and terms of insurance as may be required from time to time by the City’ s Risk Manager, provided that such changes are commercially reasonable and reasonably financially feasible.

Section 8.10 Dedication of Veterans Park Parcel. Developer shall dedicate the Veterans Park Parcel (Parcel 2) back to the City upon recordation of the Final Map and upon construction finance closing for the first phase of the Project, at the time specified in the Schedule of Performance. Parcel 2 shall have air rights over Parcels 1 and 3, as described in Section 4.10 above. Parcel 2 shall also be dedicated to the City free and clear of any encumbrances created by the Developer that have not been authorized by the City.

Notwithstanding the foregoing, City hereby acknowledges and agrees that City will grant certain temporary construction easements to Housing North Developer and Housing South Developer necessary for the construction of the Project, in form and substance as mutually agreed upon by the Parties .

The parties hereto agree that irreparable damage would occur in the event Section 8 .10 of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.

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30 Section 8.11 Reserved Parking for the Project’ s Residents. The City agrees to enter into an irrevocable parking space lease, in a form substantially compliant with Exhibit Q, with the Developer for 16 reserved parking spaces for Project residents in the L Street Garage, which will be constructed and owned by the City to serve the Project. The spaces will be leased at $300 per space per year, for an annual cost of $4,800, for a 55 -year term with a 2.5% escalator. The term will commence from lease- up of the first phase of the Project. The lease can be assumed by a future owner of the Project subject to any existing encumbrances, so long as the Project remains in compliance with its permanent affordable housing covenants.

ARTICLE 9. OBLIGATIONS WHICH CONTINUE THROUGH

AND BEYOND THE COMPLETION OF CONSTRUCTION
Section 9.1 Affordable Housing Use. The Developer covenants to use the Property for affordable housing for a period of not less than 55 years, in conformance with the regulatory agreement (“ Regulatory Agreement”), the form of which is attached hereto as Exhibit H. As further set forth herein, upon conveyance of the Housing South Parcel, the Regulatory Agreement shall be modified to reflect the correct unit count and mix for the Housing North Parcel, and a new regulatory agreement shall be executed by the Housing South Developer that will be specific to the Housing South Project.

Section 9.2 Downtown Landscape Maintenance District. The Parties acknowledge that the City’ s Downtown Landscape Maintenance District LL-859 applies to the Property upon completion of the construction of the Project. The parties agree that no other existing Community Facility District applies to the Project.

Section 9.3 Maintenance. The Developer hereby agrees that, after the Close of Escrow and prior to completion of construction of the Improvements, the Property shall be maintained in a neat and orderly condition and in accordance with industry health and safety standards, and that, once the Project is completed, the Project shall be well maintained as to both external and internal appearance of the buildings, the common areas, and the parking areas. The Developer shall maintain or cause to be maintained the Improvements in good repair and working order, and in a neat, clean and orderly condition, including the walkways, driveways, parking areas and landscaping, and from time to time make all necessary and proper repairs, renewals, and replacements. In the event that there arises a condition in contravention of the above maintenance standard, then the City shall notify the Developer in writing of such condition, giving the Developer thirty (30) days from receipt of such notice to commence and thereafter diligently to proceed to cure said condition. In the event the Developer fails to cure or commence to cure the condition within the time allowed, the City shall have the right to perform all acts necessary to cure such a condition. The City shall receive from the Developer the City' s reasonable cost in taking such action and shall provide reasonable evidence of such costs to the Developer.

Section 9.4 Developer To Indemnify City.
a) The Developer shall indemnify, defend (with counsel approved by the City) and hold harmless the City and its elected officials, officers, employees, agents,

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31 consultants, designated volunteers, and contractors ( collectively, the “ Indemnitees”) from and against any and all liabilities, losses, costs, expenses ( including without limitation attorneys’ fees and costs of litigation), claims, demands, actions, suits, causes of action, writs, judicial or administrative proceedings, penalties, deficiencies, fines, orders, judgments and damages ( all of the foregoing collectively “ Claims”) which in any manner, directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, result from, or relate to: (i) approval of this Agreement and/or the Improvements; ( ii) performance of this Agreement on the part of the Developer or any contractor or subcontractor of Developer; and/or (iii) the development, operation, maintenance or management of the Improvements, whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that the City does not and shall not waive any rights against Developer which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by the City, or Developer’ s deposit with the City of any of the insurance policies described in this Agreement. b) The Developer shall pay immediately upon the Indemnitees’ demand any amounts owing under this indemnity. The duty of Developer to indemnify includes the duty to defend the Indemnitees or, at the Indemnitees’ choosing, to pay the Indemnitees’ costs of its defense in any court action, administrative action, or other proceeding brought by any third party arising from the Improvements or the Property. The Indemnitees shall have reasonable approval rights regarding decisions with respect to their representation in any legal proceeding, including, but not limited to, the selection of attorney( s). Developer' s obligations set forth in this Section shall survive the issuance of the Certificate of Occupancy by the City, and termination of this Agreement. Developer’ s indemnification obligations set forth in this Section 9.4 shall not apply to Claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees.

Section 9.5 Hazardous Materials.
a) Certain Covenants and Agreements. Following possession of the Property, the Developer hereby covenants and agrees that:
1 ) The Developer shall not knowingly permit the Property or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials or otherwise knowingly permit the presence of Hazardous Materials in, on or under the Property in violation of any applicable law, except to the extent of any Existing Contamination ( defined in Article 9.5(b)) and as further acknowledged in Article 7 herein;
2) The Developer shall keep and maintain the Project and each portion thereof in material compliance with, and shall not cause or permit the Project or any portion thereof to be in violation of, any Hazardous Materials Laws;

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32 3) Upon receiving actual knowledge of any material lack of compliance in relation Hazardous Materials Laws, the Developer shall within ten (10) days advise the City in writing of: (A) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer or the Project pursuant to any applicable Hazardous Materials Laws; (B) any and all claims made or threatened by any third party, including without limitation the Water Board and any adjacent landowners, against the Developer or the Project relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials ( the matters set forth in the foregoing clause (A) and this clause (B) are hereinafter referred to as "Hazardous Materials Claims"); ( C) the presence of any Hazardous Materials in, on or under the Property in such quantities which require reporting to a government agency; or (D) the Developer' s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Project or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Project under any Hazardous Materials Laws.
b) Indemnity. Without limiting the generality of the indemnification set forth in Section 9.4, and subject to Section 6.2, and excepting any liability or Hazardous Materials Claims relating to the presence of any Hazardous Materials in environmental media at the Property as of Closing ( collectively, “ Existing Contamination”), , the Developer hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the City) the City, its elected officials, officers, employees, and designated volunteers from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith ( including, but not limited to, reasonable attorney' s fees and expenses), arising directly or indirectly, in whole or in part, out of:
1) the failure of the Developer, its agents, employees, or contractors to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials into, on, under or from the Project; (2) the presence in, on or under the Project of any Hazardous Materials or any releases or discharges of any Hazardous Materials into, on, under or from the Property; or (3) any activity carried on or undertaken on or off the Project, subsequent to the conveyance of the Property to the Developer, and whether by the Developer or any employees, agents, contractors or subcontractors of the Developer at any time occupying or present on the Property, in connection with the handling, treatment, removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials at any time located or present on or under the Property ( collectively " Indemnification Claims"). The foregoing indemnity shall not apply to Existing Contamination on or under the Property, or affecting any natural resources, unless and to the extent Developer materially exacerbates such Existing Contamination, but shall apply to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials by Developer or any employees, agents, contractors or subcontractors of the Developer, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws. Notwithstanding the foregoing, Developer’ s indemnity under this Section 9.5(b) shall not apply to any Indemnification Claims to the extent arising from the gross negligence or willful misconduct of the City , it’ s elected officials, officers, employees, and designated volunteers.. Solely in relation to the Existing

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33 Contamination, the City hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the Developer) the Developer and its officers, contractors, employees, agents, tenants, and invitees and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith ( including, but not limited to, reasonable attorney' s fees and expenses), arising directly or indirectly, in whole or in part, out of : (1) the failure of the City, its agents, employees, or contractors to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials into, on, under or from the Project,; and (2) the presence in, on or under the Project of any Hazardous Materials or any releases or discharges of any Hazardous Materials into, on, under or from the Property ( collectively " City Indemnification Claims"). For avoidance of doubt nothing herein shall abrogate any of the Developer’ s responsibilities under the SMP, except as provided by the cooperation and indemnity agreement contemplated in section 6.2.
c) No Limitation . The Developer hereby acknowledges and agrees that the Developer' s duties, obligations and liabilities under this Agreement, including, without limitation, under Section 9.5(b) above, are in no way limited or otherwise affected by any information the City may have concerning the Project and/or the presence within the Project of any Hazardous Materials, whether the City obtained such information from the Developer or from its own investigations.

Section 9.6 Non- Discrimination .
a) The Developer covenants and agrees for itself, its successors and its assigns in interest to the Site or any part thereof, that there shall be no discrimination against or segregation of any person or persons on any basis listed in subdivision ( a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision ( m) and paragraph ( 1) of subdivision ( p) of Section 12955, and Section 12955.2 of the Government Code. All deeds, leases, or contracts for the sale, lease, sublease, or other transfer of the Site shall contain or be subject to the nondiscrimination or non-segregation clauses hereafter prescribed.
b) Notwithstanding subdivision ( a), with respect to familial status, subdivision ( a) shall not be construed to apply to housing for older persons, as defined in Section 12955. 9 of the Government Code. With respect to familial status, nothing in subdivision ( a) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision ( d) of Section 51 and Section 1360 of the Civil Code and subdivisions ( n), (o), and (p) of Section 12955 of the Government Code shall apply to subdivision ( a).

ARTICLE 10. ASSIGNMENT AND TRANSFERS
Section 10.1 Definitions. As used in this Article 10, the term "Transfer" means:

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34 a) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode of form, of or with respect to this Agreement, or of the Property, or any part thereof or any interest therein or of the Project constructed thereon, or any contract or agreement to do any of the same; or
b) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, of or with respect to more than fifty percent (50%) ownership interest in the Developer, or any contract or agreement to do any of the same.

Section 10.2 Purpose of Restrictions on Transfer. This Agreement is entered into solely for the purpose of development and operation of the Improvements on the Property and its subsequent use in accordance with the terms of this Agreement and the Regulatory Agreement.

The qualifications and identity of the Developer are of particular concern to the City, in view of:
a) The importance of the redevelopment of the Property to the general welfare of the community; and
b) The fact that a Transfer as defined in Section 10.1 above is for practical purposes a transfer or disposition of the Property.

It is because of the qualifications and identity of the Developer that the City is entering into this Agreement with the Developer and that Transfers are permitted only as provided in this Agreement.

Section 10.3 Prohibited Transfers. The limitations on Transfers set forth in this Article 11 shall apply from the Effective Date of this Agreement until the issuance of a Certificate of Occupancy by the City. Except as expressly permitted in this Agreement, the Developer represents and agrees that the Developer has not made or created, and will not make or create or suffer to be made or created, any Transfer, either voluntarily or by operation of law, without the prior approval of the City, which shall not be unreasonably withheld, conditioned, or delayed.

Any Transfer made in contravention of this Section 10.3. shall be void and shall be deemed to be a default under this Agreement, whether or not the Developer knew of or participated in such Transfer.

Section 10.4 Permitted Transfers. Notwithstanding the provisions of Section 10.3, the following Transfers shall be permitted ( subject to satisfactio n of the conditions of Section 10.5), so long as such Transfer is permitted under, and accomplished in accordance with this Agreement:
a) Any Transfer creating a Security Financing Inter est (defined in Section

11.1).
b) Any Transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest.

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35 c) Any Transfer resulting directly from the death or mental incapacity of an individual.
d) The conveyance or dedication of a portion of the Property to any public entity, including a public utility, required to allow for the development of the Improvements. e) The granting of temporary or permanent easements or permits to facilitate development of the Project.
f) A Transfer to an Affiliate of Developer, provided that such Transfer does not result in a change of Control.
g) A Transfer otherwise approved by the City.
h) A Transfer permitted under Article 1 of this Agreement.

As a condition of the City approval of a Transfer described in Section 10.4(f),10. 4(g), and

10.4(h) above, the transferee must concurrently assume the obligations of the Developer under this Agreement. As a condition of the City's approval of a Transfer described in Section 10.4(f), the City must review and approve the transferee' s organizational documents for the purposes of determining that such transferee is controlled by the Developer.

Section 10.5 Effectuation of Permitted Transfers.
a) Other than as permitted in Section 10.4, no Transfer of a direct interest in this Agreement shall be permitted unless, at the time of the Transfer, the person or entity to which such Transfer is made, by an agreement reasonably satisfactory to the City and in form recordable among the land records, expressly agrees to perform and observe, from and after the date of the Transfer, the obligations, terms and conditions of this Agreement; provided, however, that no such transferee shall be liable for the failure of its predecessor to perform any such obligation. The City shall grant or deny approval of a proposed Transfer within sixty (60) days of receipt by the City of the Developer' s request for approval of a Transfer, which request shall include evidence of the proposed transferee' s business expertise and financial capacity. Subject to the provisions of Section 10.5 of this Agreement, failure by the City to approve or disapprove the proposed Transfer within sixty (60) days after receipt of the Developer' swritten request shall be deemed to be approval of the proposed Transfer by the City. b) Any assignment of rights and/or delegation of obligations under this Agreement in connection with a Transfer of a direct interest in this Agreement ( whether or not the City approval is required) shall be in writing executed by Developer and the assignee or transferee, which written agreement shall name the City as an express third party beneficiary with respect to such agreement ( the "Assumption Agreement") with a copy thereof delivered to the City within thirty (30) days after the effective date thereof. Upon Transfer of a direct interest in this Agreement pursuant to an Assumption Agreement, the assignor shall be relieved of liability with respect to any such obligations relating to the Project accruing from and after the date of such assignment or transfer. Notwithstanding the foregoing, unless such assignee

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36 specifically assumes pursuant to the Assumption Agreement the obligations under this Agreement to indemnify the City with respect to the Project, the assignor will retain such obligations and remain jointly and severally liable for such indemnity obligations with such assignee; however, in the event of such an assumption of the indemnification obligation, Developer shall be released from all liability under such indemnity obligations. c) Notwithstanding the foregoing, the City and Developer acknowledge agree that, in accordance with Section 1.2 above, this Agreement and the rights and obligations hereunder shall be partially assigned to Housing South Developer upon the conveyance of the Housing Parcel South. The partial assignment shall be in writing, executed by the City, Developer and Housing South Developer, and shall include a partial assignment of all rights and obligations applicable to the Housing South Parcel hereunder ( and under any other documents contemplated by this Agreement, including but not limited to the indemnity and cooperation agreement contemplated in Section 6.2) as well as language whereby City shall acknowledge and agree that there shall be no cross defaults under this Agreement between the Housing South Project and the Housing North Project.

ARTICLE 11. SECURITY FINANCING AND RIGHTS OF HOLDERS
Section 11.1 No Encumbrances Except for Development Purposes. Prior to the City' s issuance of a Certificate of Occupancy, mortgages, deeds of trust, assignment of rents and security agreements, and other real property security instruments to secure the funds necessary for the construction and permanent financing of the Improvements as shown in the Financing Plan are permitted to be placed upon the Property only as permitted pursuant to this Section 12.1.

Such permitted security instruments and related interests shall be referred to as "Security Financing Interests". The Developer shall promptly notify the City of any Security Financing Interest that has been or will be created or attached to Developer' s fee interest in the Property.

Until the Developer is entitled to issuance of a Certificate of Occupancy, the Developer may place mortgages, deeds of trust, or other reasonable methods of security on Developer' s fee interest in the Property only for the purpose of securing acquisition of the fee interest and for predevelopment, construction and permanent financing approved by the City as part of the approved Financing Plan. City hereby acknowledges and agrees that Developer intends to obtain a predevelopment loan from the County of Alameda and that in the event such loan is obtained, the County may secure such loan with a deed of trust and regulatory agreement recorded against the Property, and which time such instruments will be deemed “ Security Financing Interests” hereunder.

Section 11.2 Holder Not Obligated to Construct. The holder of any Security Financing Interest authorized by this Agreement is not obligated to construct or complete any improvements or to guarantee such construction or completion. However, nothing in this Agreement shall be deemed to permit or authorize any such holder to devote the Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement.

Section 11.3 Notice of Default and Right to Cure . Whenever the City pursuant to its rights set forth in Article 12 delivers any notice to the Developer of the occurrence of a

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37 Developer Event of Default (a "Cure Notice"), the City shall not exercise any remedy available to it unless and until each of the following have occurred: ( a) written notice of the Developer Event of Default is provided to each and every then-existing holder of record of any Security Financing Interest ( each an "Encumbrance Holder") that has notified the City in writing of (i) its interest in receiving such a notice, and (ii) its address for the receipt of such notice; and (b) such Developer Event of Default remains uncured after the expiration of the applicable cure period set forth in Section 12.3. The Cure Notice shall be sent simultaneously with any similar notice or notices of a Developer Event of Default that the City may be required to provide to Developer pursuant to Article 12. An Encumbrance Holder shall have the right and the power to cure any Developer Event of Default specified in a Cure Notice within the cure periods set forth in Section 12.3 below, and, if such Developer Event of Default is so cured, this Agreement shall remain in full force and effect. Nothing contained in this Agreement shall be deemed to permit or authorize such Encumbrance Holder to undertake or continue the construction or completion of the Improvements ( beyond the extent necessary to conserve or protect such improvements or construction already made) without first having expressly assumed in writing the Developer' s obligations to the City under this Agreement. The Encumbrance Holder in that event must agree to complete, in the manner provided in this Agreement, the construction of the Improvements.

Any such Encumbrance Holder properly completing construction of the Improvements pursuant to this section shall assume all rights and obligations of Developer under this Agreement and shall be entitled, upon written request made to the City, to a Certificate of Occupancy from the City.

Section 11.4 Cure of Developer Defaults. Developer Events of Default may be cured by any Encumbrance Holder in the following manner within the following time frames:
a) For all Developer Events of Default, an Encumbrance Holder shall have a) thirty ( 30) days after the later of (i) its receipt of the earliest Cure Notice issued by the City to such Encumbrance Holder setting forth such Developer Event of Default, or (ii) expiration of the applicable Cure Period set forth in Article 12 to cure such Developer Event of Default if such Developer Event of Default can reasonably be cured by an Encumbrance Holder within such thirty (30)-day period; or (b) if an Encumbrance Holder has promptly commenced to cure such Developer Event of Default within such applicable period and has been diligently prosecuting the same, but such Developer Event of Default cannot reasonably be cured by such Encumbrance Holder within such applicable period, then such Encumbrance Holder shall be provided with such additional time as is necessary to complete the cure, provided such Encumbrance Holder continues to diligently pursue such cure to completion. b) If a Developer Event of Default cannot practicably be cured by an Encumbrance Holder without the need for such Encumbrance Holder to obtain possession of the Property ( for example, by foreclosure of a Security Financing Interest), or if a Developer Event of Default cannot be cured by an Encumbrance Holder (for example, the insolvency of Developer), then, in each case, if at least one Encumbrance Holder has delivered to the City within thirty (30) days after its receipt of an Cure Notice a written undertaking wherein such Encumbrance Holder agrees ( 1) that it will commence foreclosure proceedings forthwith, and (2) will cure or obtain an agreement from the Foreclosure Transferee that such Foreclosure Transferee will cure such Developer Event of Default (to the extent that it can be cured), upon

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38 completion of the foreclosure and the resultant Foreclosure Transfer, and if thereafter any such Encumbrance Holder actually commences foreclosure proceedings and prosecutes the same thereafter with due diligence, then the cure period shall not commence until completion of such foreclosure proceedings and the resultant Foreclosure Transfer; provided, that if said Encumbrance Holder is prevented from commencing or continuing foreclosure proceedings by any bankruptcy stay, or any order, judgment or decree of any court or regulatory body of competent jurisdiction, and said Encumbrance Holder diligently seeks release from or reversal of such stay, order, judgment or decree, then the cure period shall not commence until such stay, order, judgment or decree is released or reversed, and such foreclosure proceedings and the resultant Foreclosure Transfer are thereafter actually commenced and prosecuted thereafter with due diligence to completion. Upon completion of any such Foreclosure Transfer, the Foreclosure Transferee ( whether such Foreclosure Transferee is the Encumbrance Holder or another party) shall have until the expiration of the applicable cure periods set forth in this Section 11.4 to cure the Developer Event of Default giving rise to such Foreclosure Transfer, to the extent curable by such Foreclosure Transferee ( unless such Developer Event of Default has already been cured), and any other Developer Events of Default that may then exist and be curable by such Foreclosure Transferee. The Encumbrance Holder shall have the right to terminate its foreclosure proceedings hereunder in the event of a cure of a Developer Event of Default giving rise to such foreclosure proceedings.

As used herein, a "Foreclosure Transfer" shall mean any transfer of the entire fee interest of Developer in the Property pursuant to any judicial or non-judicial foreclosure or other enforcement of remedies under or with respect to a Security Financing Interest, or by voluntary deed or other transfer in lieu thereof. A "Foreclosure Transferee" shall mean any transferee inclu ding without limitation an Encumbrance Holder) which acquires title to the fee interest of Developer in the Property pursuant to a Foreclosure Transfer.

Section 11.5 Failure of Holder to Complete Development. Subject to Section 11.4(b), in any case where six (6) months after default by the Developer in completion of construction of the Improvements under this Agreement, the holder of record of any Security Financing Interest, having first exercised its option to construct, has not proceeded diligently with construction, the City shall be afforded those rights against such holder it would otherwise have against the Developer under this Agreement.

Section 11.6 Right of City to Cure. In the event of a default or breach by the Developer of a Security Financing Interest prior to the completion of construction of the Improvements, and if the holder has not exercised its option to complete the construction of the Improvements, the City may, upon prior written notice to the Developer, cure the default, prior to the completion of any foreclosure. In such event the City shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the City in curing the default. The City shall also be entitled to a lien upon the Developer' s fee interest in the Property to the extent of such costs and disbursements. The City agrees that such lien shall be subordinate to any Security Financing Interest, and the City shall execute from time to time any and all documentation reasonably requested by the Developer to effect such subordination.

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39 Section 11.7 Right of City to Satisfy Other Liens. After the Close of Escrow and after the Developer has had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the Property, or any portion thereof, which is not permitted under this Agreement, and has failed to do so, in whole or in part, the City shall, upon at least ten (10) days' prior written notice to the Developer, have the right to satisfy any such lien or encumbrances; provided, however that nothing in this Agreement shall require the Developer to pay or make provision for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof and so long as such delay in payment shall not subject the Property or any portion thereof to forfeiture or sale.

Section 11.8 Hold er to be Notified . To the extent deemed necessary by the City, the Developer shall insert each term contained in this Article 11 into each Security Financing Interest or shall procure acknowledgement of such terms by each prospective holder of a Security Financing Interest prior to its coming into any security right or interest in the Property or portion thereof.

Section 11.9 Modifications. If a holder of a Security Financing Interest should, as a condition of providing financing or funding for development of all or a portion of the Improvements, request any modification of this Agreement in order to protect its interests in the Project or this Agreement, the City shall consider such request in good faith consistent with the purpose and intent of this Agreement and the rights and obligations of the parties under this Agreement.

ARTICLE 12. DEFAULT AND REMEDIES
Section 12.1 Application of Remedies. The provisions of this Article shall govern the Parties' remedies for breach of this Agreement.

Section 12.2 Fault of City .
a) Event of Default. Following notice and cure as set forth in subsection ( b) below, each of the following events constitutes a " City Event of Default" and a basis for the Developer to take action against City:
1 ) The City fails to convey a fee interest in the Property as provided in this Agreement and the Developer is otherwise entitled by this Agreement to such conveyance.
2) The City breaches any other material provision of this Agreement. b) Notice and Cure Procedure; Remedies. Upon the occurrence of any of the above- described events, the Developer shall first notify the City in writing of its purported breach or failure, giving the City thirty (30) days from receipt of such notice to cure such breach

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694
40 or failure. In the event the City does not then cure the default within such thirty (30)-day period or, if the default is not reasonably susceptible of cure within such thirty (30)-day period, the City fails to commence the cure within such period and thereafter to prosecute the cure diligently to completion), then the Developer shall be entitled to any rights afforded it in law or in equity by pursuing any or all of the following remedies: ( 1) terminating this Agreement by written notice to the City; (2) prosecuting an action for damages ( excluding punitive damages and consequential damages); or (3) seeking specific performance or any other remedy available at law or in equity (excluding punitive damages and consequential damages).

Section 12.3 Fault of Developer.
a) Event of Default. Following notice and cure as set forth in subsection ( b) below, each of the following events constitutes a "Developer Event of Default" and a basis for the City to take action against the Developer:
1 ) The Developer does not attempt diligently and in good faith to cause satisfaction of all conditions in Article 4 within the reasonable control of the Developer by the time set forth in the Schedule of Performance.
2) The Developer fails to construct the Improvements in the manner and by the deadline set forth in Article 8 and the Schedule of Performance. 3) The Developer breaches any provision of Article 7.
4) The Developer attempts or completes a Transfer except as permitted under Article 10 .
5) The Developer' s: (1) filing for bankruptcy, dissolution, or reorganization, or failure to obtain a full dismissal of any such involuntary filing brought by another party before the earlier of final relief or ninety (90) days after the filing; (2) making a general assignment for the benefit of creditors; ( 3) applying for the appointment of a receiver, trustee, custodian, or liquidator, or failure to obtain a full dismissa lof any such involuntary application brought by another party before the earlier of final relief or ninety (90) days after the filing; (4) insolvency; or (5) failure, inability or admission in writing of its inability to pay its debts as they become due.
6) The Developer defaults under any Security Financing Interest and has not cured such default within the applicable cure period contained in such agreement. 7) The Developer breaches any other material provision of this Agreement.
b) Notice and Cure Procedure. Upon the happening of any of the abovedescribed events the City shall first notify the Developer in writing of its purported breach or failure, giving the Developer thirty (30) days from receipt of such notice to cure such breach or failure. If the Developer does not cure the default within such thirty (30)-day period (or if the

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695
41 default is not reasonably susceptible of being cured within such thirty (30)-day period, the Developer fails to commence the cure within such period and thereafter to prosecute the cure diligently to completion), then the City shall be afforded all of its rights at law or in equity by taking any or all of the following remedies: ( 1) terminating this Agreement by written notice to the Developer; ( 2) prosecuting an action for damages ( excluding, punitive damages and consequential damages); or (3) seeking specific performance or any other remedy available at law or in equity (excluding punitive damages and consequential damages). If the City elects to terminate this Agreement, the provisions of this Agreement that are specified to survive such termination shall remain in full force and effect. Any investor limited partner of Developer’ s assignee shall have the same notice and cure rights granted to Developer, and any cure tendered by such investor shall be accepted or rejected on the same basis as if tendered by Developer.

Section 12.4 Right of Reverter. Following the Close of Escrow of the Undivided Parcel, (1) if the Developer fails to commence the pre-construction activities or construction of the Improvements by the dates listed in the Schedule of Performance ( as such dates may be extended), or (2) if the City does not prevail in the Litigation; then the City may, in addition to other rights granted in this Agreement, re -enter and take possession of the Undivided Parcel or Property as the case may be with all improvements thereon, and revest in the City the estate previously conveyed to the Developer by the City with respect to the Undivided Parcel subject to the provisions set forth below.

The City' s rights under this Section 12 .4 shall terminate and be of no further force and effect once the Developer closes on construction financing for the first phase of the Project.

The interest created pursuant to this Section 12.4 shall be a "Power of Termination" as defined in California Civil Code Section 885.010. The City's Power of Termination shall be subordinate and subject to and be limited by and shall not defeat, render invalid, or limit:
a) Any Security Financing Instrument with respect to the Undivided Parcel or Property; or
b) Any rights or interests provided in this Agreement for the protection of the holder of a Security Financing Interest with respect to the Undivided Parcel or Property. c) Any leases affecting the Undivided Parcel or Property as of the date of such termination.

Upon revesting in the City of title to the Undivided Parcel as provided in this Section 12 .4, the City shall, pursuant to its responsibilities under state law, use its best efforts to resell the Undivided Parcel as soon as possible, in a commercially reasonable manner and consistent with the objectives of such law, to a qualified and responsible party or parties ( as reasonably determined by the City) who will assume the obligation of making or completing such improvements as are acceptable to the City in accordance with the uses specified for the Property and in a manner satisfactory to the City . In addition, upon revesting in the City of title to the Undivided Parcel as provided in this Section 12 .4, the Predevelopment Loan and Site Acquisition Loan shall be deemed paid in full and cancelled. It is anticipated that the sale of the

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696
42 Undivided Parcel to a new buyer would be on substantially the same terms and that the payment price would be paid in in the form of an Acquisition Loan from the City evidence by a Seller Take Back Note and Deed of Trust.

If this clause is triggered because the City did not prevail in Litigation, the City shall reimburse Developer for actual costs incurred and paid as a result of its ownership of the Undivided Parcel, and not already reimbursed through the Lease Back provisions.

The rights established in this Section 12.4 are to be interpreted in light of the fact that the City will convey the Undivided Parcel to the Developer for development of the Project and not for speculation.

Section 12.5 Damages. This Agreement does not and shall not be interpreted in any manner to restrict, limit, or otherwise impair the City’ s governmental power. Developer acknowledges that the City’ s execution of this Agreement in no way limits the City’ s discretion in the permit and approval process in connection with development of the Project. Likewise, Developer acknowledges that the City’ s execution of this Agreement cannot and does not limit the City’ s ability to exercise its legislative authority.

City acknowledges the exercise of its legislative authority for a land use action, such as but not limited to a General Plan Amendment, Specific Plan Amendment, or zoning action collectively, a “ Land Use Action”) that prevents the Project from being developed does not constitute a compensable taking absent extraordinary circumstances. Examples of extraordinary circumstances that could subject the City to a taking without payment of compensation include, but are not limited to, eliminating all value from the property, the denial of due process, and reclassifying the property in a manner to prevent its improvement so that it might be acquired at a lesser price.

The City acknowledges that Developer has expended significant resources to develop the Project that could have been used to develop affordable housing elsewhere and that could be lost, and obtained grant and/or loan funding that would need to be repaid, if the City subsequently exercises its legislative authority for a Land Use Action that prevents the Project from being developed. The City and Developer agree that they would be able to quantify the losses equal to the grant and/or loan funding that would need to be repaid should a Land Use Action by the City prevent the Project from being developed. The City and Developer also agree that quantifying the scope of the economic and noneconomic losses arising from a Land Use Action that prevents the Project from being developed is inherently difficult insofar as the action results in the loss of affordable housing opportunities, negatively impacts Developer’ s reputation, and cannot adequately capture the soft costs expended on the Project.

The City and Developer agree and stipulate that the repayment of Project grant and/or loan funds already expended for the Project that are not available for repayment and the agreed upon sum of $2,300,000 is a reasonable measure of the damages based upon their experience in the affordable housing industry and given the nature of the losses that may result from a Land Use Action that prevents the Project from being developed.

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697
43 Therefore, in the event the City exercises is legislative authority for a Land Use Action that prevents the Project from being developed, then the City shall pay damages to Developer as follows:
1) An amount equal to the grant and/or loan funds that were expended by Developer prior to the date of that Land Use Action that is not available for repayment in the event the awarding/ loaning agency demands Developer repay the expended funds; and 2) The stipulated amount of $2,300,000 for the losses that cannot be quantified.

The City and Developer further agree that these agreed upon sums are not penalties, and further agree that they are a reasonable measure of Developer’ s damages given the nature of the losses that may result from a Land Use Action by the City that prevents the Project from being developed.

This provision shall not apply in the event Developer or its successor applies to the City for a new Land Use Action for the Project site or for a different Project. The parties further agree that this provision shall not apply in the event an action by Developer, its successor, a court of competent jurisdiction, or the State of California prevents the Project from being developed.

Section 12.6 Rights and Remedies Cumulative. Except as otherwise provided, the rights and remedies of the Parties are cumulative, and the exercise or failure to exercise any right or remedy shall not preclude the exercise, at the same time or different times, of any right or remedy for the same default or any other default.

Section 12.7 Survival. Upon termination of this Agreement under this Article 12, the following provisions of this Agreement shall survive: 5.9, 5.12, 8.4, 8.5, and 9.4, 9.5, 11.1, 13.3.

This Section 12.7 exists for reference purposes only, and does not alter the scope or nature of the surviving provisions.

ARTICLE 13. GENERAL PROVISIONS
Section 13.1 Identity of Developer. The Developer represents and warrants to the City as of the Effective Date and as of the Close of Escrow, as follows:
a) Organization . The Developer is a California limited partnersh ip duly organized, validly existing and in good standing under the laws of the State of California with full power and authority to conduct its business as presently conducted and to execute, deliver and perform its obligations under this Agreement.
b) Authorization . The Developer has taken all necessary action to authorize its execution, delivery and, subject to any conditions set forth in this Agreement performance of

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698
44 the Agreement. Upon the Effective Date of this Agreement, this Agreement shall constitu te a legal, valid and binding obligation of the Developer, enforceable against the Developer in accordance with its terms.
c) No Conflict. The execution, delivery and performance of this Agreement by the Developer does not and will not conflict with, or constitute a violation or breach of, or constitute a default under (i) the charter or incorporation documents of the Developer, ( ii) any applicable law, rule or regulation binding upon or applicable to the Developer, or (iii) any material agreements to which the Developer is a party.
d) No Litigation . Aside from the Litigation and unless otherwise disclosed in writing to the City prior to the date of this Agreement, there is no existing or, to the Developer' s actual knowledge, pending or threatened litigation, suit, action or proceeding before any court or administrative agency affecting the Developer or the Undivided Parcel that would, if adversely determined, materially and adversely affect the Developer or the Undivided Parcel or the Developer' s ability to perform its obligations under this Agreement or to develop and operate the Project.
e) No Material Adverse Change. There has been no material adverse change in the financial condition of the Developer since the Effective Date. f) Default Under Other Agreements. There is no event, act or omission which constitute, or but for the passage of time or the giving of notice, or both, would constitute a breach, violation or default under any agreement materially related to the development or operation of the Project, including but not limited any other partnership agreement, joint venture agreement, or loan agreement.

Until the Close of Escrow, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in Section 13.1 not to be true, immediately give written notice of such fact or condition to the City. Upon the Developer' s Transfer prior to the Close of Escrow, the Developer shall cause the Developer' s assignee to update the representations and warranties set forth above.

Section 13.2 Notices, Demands and Communications. Formal notices, demands, submittals and communications between the City and the Developer shall be sufficiently given if, and shall not be deemed given unless, delivered personally, or dispatched by certified mail, return receipt requested, or by reputable overnight delivery service with a receipt showing date of delivery, to the principal offices of the City and the Developer as follows:

City: City of Livermore
Attn: City Manager
1052 S. Livermore Avenue
Livermore CA 94550
Developer DTLM, L.P.

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45 with copies to :

C/o Eden Housing, Inc.
22645 Grand Avenue
Hayward, CA 94541
Attn: Sr. VP of Development
KLeichner@edenhousing. org
Jeremy. Hoffman@edenhousing. org
Matt.Graves@edenhousing. org
Gubb & Barshay LLP
505 14th Street, Suite 450
Oakland, CA 94612
Attn: Evan Gross
Notices to Developer shall be sent by electronic mail in addition to other means of communication described above. Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section 13.2. Delivery shall be deemed to have occurred at the time indicated on the receipt for delivery or refusal of delivery.

Section 13.3 Non- Liability of Officials, Employees and Agents. No member, official, employee, consultant, counsel, or agent of a Party shall be personally liable to the other Party, or any successor in interest to the other Party, in the event of any default or breach or for any amount or on any obligation under the terms of this Agreement.

Section 13.4 Enforced Delay. In addition to specific provisions of this Agreement, performance by any Party hereunder shall not be deemed to be in default where delays or defaults are due any of the following items that constitute Force Majeure for purposes of this Agreement: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority ( except for restrictions or priorities established by the Party required to perform the action required under this Agreement); unusually severe weather; inability to secure necessary labor, materials or tools; acts or the failure to act of any public or governmental agency or entity (except that acts or the failure to act of a Party shall not excuse performance by such Party, including without limitation the Developer' s inability to obtain financing for the Project or the economic infeasibility of the Project). An extension of time for Force Majeure shall only be for the period of the enforced delay, which period shall commence to run from the time of the notification of the delay by the Party requesting the extension to the other Party. The Party requesting an extension of time under this Section 13.4 shall give notice promptly following knowledge of the delay to the other Party. If, however, notice by the Party claiming such extension is sent to the other Party more than thirty (30) days after knowledge of the commencement of the delay, the period shall commence to run upon the earlier of (i) thirty (30) days prior to the giving of such notice or (ii) the date that the other Party received knowledge of the events giving rise to the delay.

Section 13.5 Intentionally Omitted.

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46 Section 13.6 Inspection of Books and Records. The City has the right at all reasonable times and upon five (5) business days prior written notice to inspect the books, records and all other documentation of the Developer pertaining to its obligations under this Agreement.

Section 13.7 Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of its provision. References to "Articles" and " Sections" are to sections of this Agreement, unless otherwise specifically provided.

Section 13.8 Applicable Law. This Agreement shall be interpreted under and pursuant to the laws of the State of California.

Section 13.9 Severability . If any term, provision, covenant or condition of this Agreement is held in a final disposition by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability.

Section 13.10 Legal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, each Party shall bear their own attorneys' fees and no attorneys' fees may be awarded to the Party prevailing in the action.

Section 13.11 Binding Upon Successors; Covenants to Run With Land . This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the Parties; provided, however, that there shall be no Transfer except as permitted in Section 10 .4. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any successor, heir, administrator, executor, successor, or assign of such Party who has acquired an interest in compliance with the terms of this Agreement or under law.

The terms of this Agreement shall run with the land, and shall bind all successors in title to the Property until the termination of this Agreement, except that the provisions of this Agreement that are specified to survive termination of this Agreement shall run with the land in perpetuity and remain in full force and effect following such termination. Every contract, deed, or other instrument hereafter executed covering or conveying the Undivided Parcel, or any portion thereof, shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the City expressly releases the Undivided Parcel, or the applicable portion of the Undivided Parcel, from the requirements of this Agreement.

Section 13.12 Parties Not Co -Venturers. Nothing in this Agreement is intended to or does establish the Parties as partners, co-venturers, or principal and agent with one another.

Section 13.13 Entire Understanding of the Parties. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the conveyance of the Undivided

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47 Parcel and the development of the Project. This Agreement supersedes the Disposition, Development and Loan Agreement dated November 11, 2018, as it was amended on May 16, 2021, but this agreement is also intended to fulfill and complete those agreements. In the event a court of competent jurisdiction determines that Government Code section 54234 prevents the sale and disposition of the Undivided Parcel or that a decision by the California Department of Housing and Community Development should prevent the sale and disposition of the Undivided Parcel, the Parties hereby express their intent that either of those situations will work to automatically revive the Development and Loan Agreement dated November 11, 2018, as it was amended on May 16, 2018, which may then be reinstated by the Parties in their collective discretion.

Section 13.14 Counterparts. This Agreement may be executed in counterparts and multiple originals.

Section 13.15 Amendments. The Parties can amend this Agreement only by means of a writing signed by both Parties.

Section 13.16 Recordation of Memo of DDLA. The Parties consents to the recordation of the memorandum of this Agreement, in the form attached as Exhibit K in the Official Records against Developer' s interest in the Property.

Section 13.17 Standard of Approval. Any consents or approvals required or permitted under this Agreement shall not be unreasonably withheld or made, except where itis specifically provided that a sole discretion standard applies.

Section 13.18 Effectiveness of Agreement. This Agreement is dated for convenience only and shall only become effective on the Effective Date.

Section 13.19 Delegation of Authority to City Manager. This Agreement may be amended from time to time as the Parties find is necessary. The City Manager shall have the authority to make minor amendments to effectuate the intent of this Agreement. Upon approval of this Agreement by the City Council, the City Manager shall also have the authority to execute the final documents and agreements referenced in this Agreement and other related documents to implement the intent and terms of this Agreement, as well as the specific delegations of authority set forth herein as approved by the City Council’ s resolution approving this Agreement.

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702
WHEREFORE, the Parties have executed this Agreement as of the date first above written.

Date:

City :

City of Livermore, a municipal corporation
By:

Marc Roberts
Its: City Manager

APPROVED AS TO FORM
By:

Assistant City Attorney
DEVELOPER:

By: Eden Housing, Inc.,
a California nonprofit public benefit
corporation,
its manager
By: ____________________________
Name: Andrea Osgood
Title: Senior Vice President of Real
Estate Development

EXHIBIT A
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703

EXHIBIT A

LEGAL DESCRIPTION UNDIVIDED PARCEL

REAL PROPERTY SITUATED IN THE CITY OF LIVERMORE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEING ALL OF PARCEL 1 OF TRACT MAP NO. 8574, RECORDED
DECEMBER 23, 2020, IN BOOK 365 OF MAPS AT PAGES 15-19, ALAMEDA COUNTY RECORDS.

CONTAINING 90,615 SQUARE FEET OF LAND MORE OR LESS
APN: 098-0289-22
SHEET 1 OF2

EXHIBIT A
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704

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705
Exhibit B
Project Objectives
The Property shall be developed as multi-family affordable rental housing with up to 130 units.

The Project was approved by City Council for entitlement May 24, 2021 and as part of the design and development of the Improvements, the Project shall make way for and accommodate the development of an open green/ publicly accessible City-owned park space and pedestrian access path ( Veterans Park) as generally depicted in the approved Downtown Concept Plan and described in the Downtown Core Landscape Design Guidelines.

Parties have satisfied through the Project entitlements, completion of environmental studies and as described herein the DDLA, the following elements:

Configuration of the Property and potential Property subdivision Environmental Condition of the Property at Transfer
Developer’ s contribution to the Downtown Landscape Maintenance District LL-859 Design elements, which shall be consistent with zoning and downtown specific plan requirements.

Integration with adjacent planned uses including, Stockman’ s Park, a Science and Society Center, Black Box Theater, and Veterans Park.

Parking accommodations on the site
A housing selection process to give application preferences for renting to local workers, including teachers, emergency responders ( including emergency medical response), employees of businesses downtown, and professional artists as permitted by federal law.

Unit sizes and mix of unit types
Affordability levels, which shall, at a minimum, satisfy the restrictions in the First Amendment to a Notice of Affordability Restrictions on Transfer of Property and Declaration of Restrictive Covenants, recorded in the Official Records of Alameda County, document number 2018227103
Parties shall negotiate in good faith to finalize the following additional Project elements:

A plan for ongoing operations and maintenance of the Improvements Financing of the Improvements

EXHIBIT A
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706
Schedule of Performance
Pre-Development
Milestone Due Date/ Completion Date
1 Insurance Requirements Fulfilled Completed
2 Organization Documents Completed
3 Complete Site Due Diligence Completed
4 Obtain Planning Approval/Development Entitlements Completed 5 Preliminary Pro Forma Completed
6 Appraisal Completed
7 Predevelopment Loan Completed
Prior to Close of Escrow on Undivided Parcel
8 Final approved Regulatory Agreement and Prommissory Note For A&R DDLA 23- May- 22
9 CC Approval of Amended and Restated DDLA 23-May-22
10 Federal Environmental Review and Clearance 22- Jul- 22 11 Submit Application for Minor Amendment to Tentative Map 1-Jun-22 Close of Escrow on Undivided Parcel 30-Sep- 22
Pre- Construction
12 Financing Commitments 2 years post- litigation
13 Final Pro Forma 2 years post-litigation
14 Developer Submit Draft Final Map and Public Improvement Plans for review 2 years, 3 months post-litigation
15 Developer Submit draft Building Permit Plans for review 2 years, 3 months post-litigation 16 City Council Approval of Final Parcel Map, including acceptance of Veterans Park Parcel, Subdivision Improvement Agreement, & Public Improvement Plans
5 months post submittal ( line 14)
17 Developer Dedicates Veterans Park Parcel to City via Final Map
On or before first phase construction
financing closing
18 Close of Escrow on all Construction Financing 2 years + 194 days post-litigation Commence Construction Phases 1 & 2
Within 60 days of City Issuance of Final
Building Permit Plans for each phase
Complete Constructions Phases 1 & 2 3 years post commencement of each phase

EXHIBIT C EXHIBIT A
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707

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INTENTIONALLY OMITTED)

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Page 1 of 8 ends

NOTICE TO BORROWER:

THIS DOCUMENT CONTAINS PROVISIONS

RESTRICTING RESALE AND ASSUMPTIONS

PROMISSORY NOTE
Downtown Housing Project Site Acquisition
Secured by a Deed of Trust
Principal Amount: $ 7,800,000_ [ DATE]
ADDRESS/ APN: 098-0289-22]
FOR VALUE RECEIVED, the undersigned [ NAME OF OWNER L.P.], [ ENTITY TYPE] Borrower”) whose address is [ ], hereby promise( s) to pay to the order of the City of Livermore, a municipal corporation (“ City”), at 1052 South Livermore Avenue, Livermore, California 94550, the principal amount of Seven Million Eight Hundred Thousand Dollars 7,800,000 ), together with interest accrued thereon, as set forth in this Promissory Note (the Seller Take Back Note” or “Note”).

Pursuant to that certain Amended and Restated Disposition, Development and Loan Agreement (“ DDLA”) dated May __ , 2022 by and between City and Borrower ( the Developer”), the Developer agreed to develop the “Undivided Parcel” as described in Exhibit A, attached hereto, into three parcels, and more particularly to develop 130 units of affordable workforce housing ( the “Project”) on the property as described in Exhibit B, attached hereto the “Property”).

In accordance with the DDLA, the Borrower intends to purchase, develop, own and operate the Project on the Property. Pursuant to the DDLA, the City has made an acquisition loan to Borrower in the original principal amount of Seven Million Eight Hundred Thousand Dollars 7,800,000)(the “Site Acquisition Loan”) to purchase the Property.

This Note is made and delivered pursuant to and in conjunction with the DDLA and that certain Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants entered into by and between the City and Borrower dated as of even date herewith ( the Regulatory Agreement”). All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the DDLA. The Borrower’ s obligations with respect to this Note are secured by that certain Deed of Trust and Assignment of Rents (Short Form) entered into by Borrower for the benefit of the City as of even date herewith ( the “ Seller Take Back Site Acquisition Deed of Trust” or “Deed of Trust”) executed by the Borrower concurrently herewith.

1. Borrower’ s Obligation. This Note evidences the Borrower’ s obligation to pay the City the Principal Amount, as that term is subsequently defined, loaned to the Borrower by the City to finance the Property’ s purchase, as set forth in the DDLA. As a condition of receiving the Principal Amount, the Borrower promises and agrees to comply will all terms and conditions of this Note.

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2. Principal. The principal amount of this Note, $7,800,000(“Principal Amount”), is loaned to the Borrower by the City to finance acquisition of the Property, as set forth in the DDLA.

3. Interest. The Note shall bear simple interest at three percent ( 3%)] annual interest as of the date of this Note.

4. Term. The entire indebtedness evidenced by this Note shall be repaid to the City by no later than the date that is the earlier of: (i) fifty-five ( 55) years from the date the Project’ s financing converts to permanent financing; or (ii) the sixty fifth (65th) anniversary of the date hereof (the “Maturity Date”).

5. Repayment. The Borrower shall make payments towards principal and accrued interest due on the Property Acquisition Loan from residual receipts pari passu with other City and other soft lender financing from a pro rata share of Surplus Cash as described in 5.1 during the Term of this Note. This Note becomes due and payable in full on (a) the date the Property is sold or transferred in a manner which is ineligible under the terms of the DDLA, Loan Agreement, or Regulatory Agreement, or (b) an Event of Default by Borrower which has not been cured as provided for in this Agreement, but in any event ( c) no later than the Maturity Date. Any payments made by Borrower pursuant to this section shall be applied first to pay current annual interest due, and then to reduce the principal amount of the Property Acquisition Loan. All payments by the Borrower shall be paid to the City in currency of the United States of America, which at the time of the payment is lawful for the payment of public and private debts.

All payments on this Note shall be made payable to the City of Livermore, and shall be delivered to the City at 1052 South Livermore Avenue, Livermore, California, 94550, or to such other place as the City may from time-to-time designate.

All payments on this Note shall be without expense to the City, and the Borrower agrees to pay all costs and expenses incurred in connection with the payment.

5.1 Annual Payments from Surplus Cash. By not later than July 1 of each year, Borrower shall pay to City fifty percent ( 50%) of Surplus Cash split pro rata with all other soft lenders approved by the City, generated by the Property during the previous calendar year to reduce the indebtedness owed under this Note.

By not later than June 1 of each year, Borrower shall provide to City Borrower’ s calculation of Surplus Cash for the previous calendar year, accompanied by such supporting documentation as City may reasonably request to substantiate Borrower’ s calculation of Surplus Cash. City shall have the right to inspect and audit Borrower’ s books and records concerning the calculation of Surplus Cash, and to object within ninety (90) days from receipt of Borrower' s statement. Failure to timely object shall be deemed acceptance. If City does object, City shall specify the reasons for disapproval. Borrower shall have thirty (30) days to reconcile any disapproved item.

No later than November 1 of each year, Borrower shall provide to City a projected budget for the following calendar year which shall include an estimate of Surplus Cash. City will review the proposed budget and, if acceptable, approve it, which approval shall not be unreasonably withheld, provided, however, if the proposed budget has not been rejected by City within 30 days of receipt, City shall be deemed to have accepted the budget. If the budget is not acceptable, City shall specify the reasons for disapproval. Once approved, any

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changes to the budget that exceed ten percent ( 10%) of the total budget shall require City's prior written consent, which consent shall not be unreasonably withheld.

5.1.1 “ Surplus Cash” shall mean for each calendar year during the term hereof, the amount by which Gross Revenue ( defined below) exceeds Annual Operating Expenses defined below) for the Property. Surplus Cash shall also include net cash proceeds realized from any refinancing of the Property, less fees and closing costs reasonably incurred in connection with such refinancing, and any City-approved uses of the net cash proceeds of the refinancing.

5.1.2 “ Gross Revenue” shall mean for each calendar year during the term hereof, all revenue, income, receipts and other consideration actually received from the operation and leasing of the Property. Gross Revenue shall include, but not be limited to: all rents, fees and charges paid by tenants; Section 8 payments or other rental subsidy payments received for the dwelling units; deposits forfeited by tenants; all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements; and the proceeds of casualty insurance not required to be paid to the holders of Approved Senior Loans ( provided however, expenditure of such proceeds for repair or restoration of the Property shall be included within Annual Operating Expenses in the year of the expenditure).

Gross Revenue shall not include tenant security deposits, loan proceeds, capital contributions or similar advances, or interest earned on restricted reserve accounts.

5.1.3 “ Annual Operating Expenses” shall mean for each calendar year during the term hereof, the following costs reasonably and actually incurred for the operation and maintenance of the Property to the extent that they are substantiated by such documentation as City may reasonably require: property taxes and assessments; debt service currently due and payable on a non-optional basis ( excluding debt service due from residual receipts or surplus cash of the Property) on loans which have been approved in writing by the City and which are secured by deeds of trust senior in priority to the Deed of Trust (“Approved Senior Loans”); property management fees and reimbursements in amounts in accordance with industry standards for similar residential projects and paid pursuant to a property management agreement approved by City; premiums for property damage and liability insurance; utility service costs not paid for directly or indirectly by tenants; maintenance and repair costs; fees for licenses and permits required for the operation of the Property; expenses for security services; advertising and marketing costs; accounting costs; payment of deductibles in connection with casualty insurance claims not paid from reserves; tenant services; the amount of uninsured losses actually replaced, repaired or restored and not paid from reserves; cash deposits into reserves for capital replacements and operating expenses in the amount specified in the Regulatory Agreement or reasonably approved by the City; annual monitoring fees, if any, payable to the City or other public agencies in connection with loans provided for the Property; and other ordinary and reasonable operating expenses approved by City.

5.1.4 Exclusions from Annual Operating Expenses. Annual Operating Expenses shall exclude the following: contributions to Property operating or replacement reserves, except as provided in Section 5.1.3; debt service payments on any loan which is not an Approved Senior Loan, including without limitation, unsecured loans or loans secured by deeds of trust which are subordinate to the Deed of Trust; depreciation, amortization, depletion and other non-cash expenses; expenses paid for with disbursements from any reserve account; any amount paid to Borrower, or any entity controlled by the persons or

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entities in control of Borrower. Notwithstanding the foregoing limitation regarding payments to Borrower and related parties, the following fees shall be included in Annual Operating Expenses, subject to applicable limitations set forth in Section 5.1.3 above, even if paid to Borrower or an affiliate of Borrower: fees paid to a property management agent, resident services agent, or social services agent; deferred developer fees; annual asset management fees paid to Borrower’ s limited partner; an annual partnership management fee paid to Borrower’ s general partner in an annual amount of up to $25,000 increasing no more than 3% annually; and subject to Section 5.1.5, repayment of cash advances by Borrower to cover Property operating expense deficits or emergency cash needs of the Property. Payments to Borrower or affiliates in excess of the limitations set forth in Section 5.1.3 shall not be counted toward Annual Operating Expenses for the purpose of calculating Surplus Cash.

5.1.5 Adjustments to Annual Operating Expenses. Notwithstanding anything to the contrary set forth herein, for the purpose of calculating Surplus Cash, Annual Operating Expenses shall include the repayment of operating deficit loans provided by Borrower provided however, interest payable on such loans may be included in Annual Operating Expenses only in an amount equivalent to the lesser of (i) interest accrued at the actual interest rate charged for the loan, or (ii) interest accrued at a rate equal to the Applicable Federal Rate.

6. Prepayment. At its option and without any premium or penalty, Borrower may pay all or a portion of the outstanding Principal Amount prior to the amount becoming due. The Borrower may make such prepayments at any time, or from time-to-time, before the prepaid amount is due. All prepayments shall be applied by the City to reduce the amount of the outstanding Principal Amount owed under this Note.

7. Encumbrances. The Borrower shall not encumber the Property, permit the covenancy, transfer, or encumbrance of the Property, allow the placement of any liens, notes or deeds on the Property, or use the Property as security for any note or loan, without the City’s prior written approval; provided, however, that the approval of encumbrances consistent with the approved Financing Plan included in the DDLA shall not be unreasonably withheld. Any written approval by the City shall be consistent with the requirements of Section 12 below.

8. Payment Acceleration. The Principal Amount of this Note, together with all accrued interest and other outstanding payments and penalties, shall become immediately due and payable upon the occurrence of any of the following events, each subject to any applicable notice and cure periods:

A. The Borrower fails to use the Property in accordance with the DDLA, Loan Agreement or Regulatory Agreement;
B. The Borrower fails to cure a default consistent with the requirements of Section 9 below;
C. The transfer of the Property or this Note in violation of Section 11, and without the City’s written approval consistent with the requirements of Sections 12 and 13 below;
D. The encumbrance of the Property in violation of Section 7, without the City’s written approval consistent with the requirements of Sections 7 and 13; E. Borrower is found to be in Default of the DDLA

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Livermore City CouncilJune 24, 2024

Livermore City Council
June 24, 2024