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ARTICLE 11 DEFAULT; REMEDIES; TERMINATION
Section 11.1 Breach and Default. Subject to extensions of time under Section 2.2B or by mutual consent in writing, and subject to a Mortgagee’s right to cure under Section 7.3, failure by a Party to perform any material action or covenant required by this Agreement (not including any failure by Developer to perform any term or provision of any other Project Approval) within thirty (30) days following receipt of written Notice from the other Party specifying the failure shall constitute a “Default” under this Agreement; provided, however, that if the failure to perform cannot be reasonably cured within such thirty (30) day period, a Party shall be allowed additional time as is reasonably necessary to cure the failure so long as such Party commences to cure the failure within the thirty (30) day period and thereafter diligently prosecutes the cure to completion. Any Notice of Default given hereunder shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the Default, all facts constituting evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the Party charged therewith shall not be considered to be in Default for purposes of (a) termination of this Agreement, (b) institution of legal proceedings with respect thereto, or (c) issuance of any approval with respect to the Project. The waiver by either Party of any Default under this Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Agreement.
Section 11.2 Termination. In the event of a Default by a Party, the non-defaulting Party shall have the right to institute legal proceedings pursuant to Section 11.3 and/or terminate this Agreement effective immediately upon giving notice of intent to terminate. Termination of this Agreement shall be subject to the provisions of Section 11.7 hereof. In the event that this Agreement is terminated pursuant to Section 6.1 herein or this Section 11.2 and the validity of such termination is challenged in a legal proceeding that results in a final decision that such termination was improper, then this Agreement shall immediately be reinstated as though it had never been terminated.
Section 11.3 Legal Actions.
A. Institution of Legal Actions. In addition to any other rights or remedies, a Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any other remedies consistent with the terms of this Agreement.
B. Acceptance of Service of Process. In the event that any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City Clerk of City or in such other manner as may be provided by law. In the event that any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon Developer’s registered agent for service of process, or in such other manner as may be provided by law.
Section 11.4 Rights and Remedies Are Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by a Party of one or more of such rights or remedies Resolution No. XXXX
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shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party, except as otherwise expressly provided herein.
Section 11.5 No Damages. In no event shall a Party, or its boards, commissions, officers, agents or employees, be liable in damages for any Default under this Agreement, it being expressly understood and agreed that the sole legal remedy available to a Party for a breach or violation of this Agreement by the other Party shall be an action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party, or to terminate this Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of money from the other Party under the terms of this Agreement, including, but not limited to, obligations to pay attorneys’ fees and obligations to advance monies or reimburse monies. In connection with the foregoing provisions, each Party acknowledges, warrants and represents that it has been fully informed with respect to, and represented by counsel of such Party’s choice in connection with, the rights and remedies of such Party hereunder and the waivers herein contained, and after such advice and consultation has presently and actually intended, with full knowledge of such Party’s rights and remedies otherwise available at law or in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to rely to the extent herein specified solely on the remedies provided for herein with respect to any breach of this Agreement by the other Party.
Section 11.6 Resolution of Disputes. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable Law, a Party shall, at the request of the other Party, meet with designated representatives of the requesting Party promptly following its request. The Parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 11.6 shall in any way be interpreted as requiring that Developer and City reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to in writing by the Parties to such meetings. Nothing in this Section 11.6 shall prohibit either Party from pursuing any available remedies, including injunction relief, during the period of such discussions.
Section 11.7 Surviving Provisions. In the event this Agreement expires or is terminated, neither Party shall have any further rights or obligations hereunder, except for those obligations of Developer set forth in Section 3.5 (Life of Project Approvals), Section 4.6 (Prevailing Wage Requirements), Section 5.3 (Public Benefits) (provided, however, Public Benefits under Section 5.3 shall survive for seventeen (17) years following the Effective Date or such earlier or later date as such obligations terminate pursuant to Section 5.3), Section 5.7 (BMR Housing True Up Payment), Section 9.6 (Cooperation in the Event of Legal Challenge; provided, however, Developer shall have no obligation to defend any litigation if this Agreement has been terminated), or expressly set forth herein as surviving the expiration or termination of this Agreement. The termination or expiration of this Agreement shall not affect the validity of the Project Approvals (other than this Agreement).
Section 11.8 Effects of Litigation. In the event litigation is timely instituted, and a final judgment is obtained, which invalidates in its entirety this Agreement, neither Party shall Resolution No. XXXX
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have any obligations whatsoever under this Agreement, except for those obligations which by their terms survive termination hereof.
Section 11.9 California Claims Act. Compliance with the procedures set forth this ARTICLE 11 shall be deemed full compliance with the requirements of the California Claims Act (Government Code Section 900 et seq.) including, but not limited to, the notice of an event of default hereunder constituting full compliance with the requirements of Government Code Section 910.
ARTICLE 12 MISCELLANEOUS PROVISIONS
Section 12.1 Incorporation of Recitals, Exhibits and Introductory Paragraph. The Recitals contained in this Agreement, the introductory paragraph preceding the Recitals and the Exhibits attached hereto are hereby incorporated into this Agreement as if fully set forth herein.
Section 12.2 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual written agreement of the Parties.
Section 12.3 Construction. Each reference herein to this Agreement or any of the Existing Approvals or Subsequent Project Approvals shall be deemed to refer to the Agreement, Existing Approval or Subsequent Project Approval as it may be amended from time to time in accordance with the terms of this Agreement, whether or not the particular reference refers to such possible amendment. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Unless the context clearly requires otherwise, (i) the plural and singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (iv) “or” is not exclusive; (v) “include,” “includes” and “including” are not limiting and shall be construed as if followed by the words “without limitation,” and ;” (vi) “days” means calendar days unless specifically provided otherwise; and (vii) references to Sections shall be deemed to refer to Sections in this Agreement unless specifically provided otherwise.
Section 12.4 Covenants Running with the Land. Except as otherwise more specifically provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards, terms, covenants and obligations, shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities acquiring the Property, or any interest therein or portion thereof, and shall inure to the benefit of the Parties and their respective successors and assigns, as provided in Government Code section 65868.5.
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Section 12.5 Notices. Any notice or communication required hereunder between City and Developer (“Notice”) must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a Notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by registered or certified mail, such Notice shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom Notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such Notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a Notice shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written Notice to the other Party hereto, designate any other address in substitution of the address to which such Notice shall be given. Such Notices shall be given to the Parties at their respective addresses set forth below.
To City:
City of Menlo Park
Community Development
701 Laurel Street
Menlo Park, CA 94025
Attn: Community Development Director
and
City of Menlo Park
Community Development
701 Laurel Street
Menlo Park, CA 94025
Attn: City Manager
With a copy to: Burke, Williams & Sorensen, LLP
181 Third Street
Suite 200
San Rafael, CA 94901-6587
Attn: Nira Doherty
To Developer: c/o Meta Platforms, Inc.
1 Hacker Way
Menlo Park, CA 94025
Attention: Facilities, Real Estate Development
With a copy to:
c/o Meta Platforms, Inc.
1 Hacker Way
Menlo Park, CA 94025
Attention: Real Estate Counsel
Section 12.6 Counterparts and Exhibits; Entire Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original. This Resolution No. XXXX
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Agreement, together with the Project Approvals and attached Exhibits, constitutes the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof.
Section 12.7 Recordation of Agreement. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after the Effective Date, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of San Mateo.
Thereafter, if this Agreement is terminated, modified or amended, the City Clerk shall record notice of such action in the Official Records of the County of San Mateo.
Section 12.8 No Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any public improvements constructed by Developer as part of the Project until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Existing Approvals or Subsequent Project Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, Existing Approvals, Subsequent Project Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer.
Section 12.9 Waivers. Notwithstanding any other provision in this Agreement, any failures or delays by any Party in asserting any of its rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies or deprive any such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. A Party may specifically and expressly waive in writing any condition or breach of this Agreement by the other Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. Consent by one Party to any act by the other Party shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or similar acts in the future.
Section 12.10 California Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. The exclusive venue for any disputes or legal actions shall be the Superior Court of California in and for the County of San Mateo, except for actions that include claims in which the Federal District Court for the Northern District of the State of California has original jurisdiction, in which case the Northern District of the State of California shall be the proper venue.
Section 12.11 City Approvals and Actions. Whenever reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise. Wherever this Agreement permits the City Manager to exercise his/her discretion Resolution No. XXXX
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with respect to any of the terms and provisions herein, including but not limited to approval of an Extension Request, modifications to the timing set forth in Exhibit D and Exhibit F, Administrative Amendments, operating memoranda, and approval of a Transfer, as otherwise permitted in this Agreement, the City Manager shall advise the City Council of such exercise of discretion and where practical shall consult with the Mayor and/or the City Council prior to exercising such discretion. Notwithstanding such requirement to inform and consult with the City Council, Developer may rely on any writing evidencing the exercise of discretion by the City Manager.
Section 12.12 City Funding for Affordable Housing. Notwithstanding anything to the contrary in this Agreement, City shall have no obligation to contribute any monies from its Below Market Rate Housing Fund to finance affordable housing for the Project. Notwithstanding the foregoing, in the event that Developer provides any funding to the City for the senior affordable parcel to qualify for the County of San Mateo Affordable Housing Fund, or similar program that requires local matching funds, then such funds shall not be deposited into the City’s Below Market Rate Housing Fund and shall be used in accordance with the local matching fund requirement to advance affordable housing development associated with the Project.
Section 12.13 Estoppel Certificates. A Party may, at any time during the Term of this Agreement, and from time to time, deliver written Notice to the other Party requesting such Party to certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Agreement has not been amended or modified either orally or in writing, or if amended, identifying the amendments; (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults; and (iv) any other information reasonably requested. The requesting Party shall be responsible for all reasonable costs incurred by the Party from whom such certification is requested and shall reimburse such costs within thirty (30) days of receiving the certifying Party’s request for reimbursement. The Party receiving a request hereunder shall execute and return such certificate or give a written, detailed response explaining why it will not do so, within twenty (20) days following the receipt of Notice requesting such certificate. The failure of either Party to provide the requested certificate within such twenty (20) day period shall constitute a confirmation that this Agreement is in full force and effect and no modification or default exists. The City Manager shall have the right to execute any certificate requested by Developer hereunder. City acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees.
Section 12.14 No Third -Party Beneficiaries. City and Developer hereby renounce the existence of any third -party beneficiary to this Agreement and agree that nothing contained herein shall be construed as giving any other person or entity third -party beneficiary status.
Section 12.15 Signatures. Each Party represents that the individuals executing this Agreement on behalf of such Party have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Developer and City and that all necessary board of directors’, shareholders’, partners’, city councils’ or other approvals have been obtained.
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Section 12.16 Further Actions and Instruments. Each Party to this Agreement shall cooperate with and provide reasonable assistance to the other Party and take all actions necessary to ensure that the Parties receive the benefits of this Agreement, subject to satisfaction of the conditions of this Agreement. Upon the request of any Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement.
Section 12.17 Limitation on Liability. In no event shall: (a) any partner, officer, director, member, shareholder, employee, affiliate, manager, representative, or agent of Developer or any general partner of Developer or its general partners be personally liable for any breach of this Agreement by Developer, or for any amount which may become due to City under the terms of this Agreement; or (b) any member, officer, agent or employee of City be personally liable for any breach of this Agreement by City or for any amount which may become due to Developer under the terms of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written.
CITY:
CITY OF MENLO PARK, a California
municipal corporation
By:
Justin Murphy, City Manager
APPROVED AS TO FORM: [signature must be notarized]
By:
Nira Doherty, City Attorney
ATTEST:
By:
___, City Clerk
DEVELOPER:
PENINSULA INNOVATION PARTNERS,
LLC, a Delaware limited liability company
By:
Name:
Title:
[signature must be notarized]
By:
Name:
Title:
[signature must be notarized]
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Acknowledgement
ACKNOWLEDGMENTS
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
* * * * * * * * * * * * * *
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
Resolution No. XXXX
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Acknowledgement
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
Resolution No. XXXX
Ordinance No. XXXX
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ACKNOWLEDGMENT
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
Resolution No. XXXX
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Exhibit A-1-1
EXHIBIT A-1-1
MAIN PROJECT SITE MAP
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
Ordinance No. XXXX
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EXHIBIT A-1-2
HAMILTON PARCELS MAP
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
WILLOW ROAD
CARLTON AVENUE
HAMILTON AVENUE (EX)
PARCEL 2
71PM16
PARCEL 3
71PM16
71PM16
PARCEL1
OF SHEETS
JOB NO.
SHEET
PROJ. ENGR:
CHECKED: DCF DRAWN: RJL DESIGNED:
SCALE: AS SHOWN
DATE: 10/19/2022
SURVEYORS
www.freyerlaureta.com (415)534-7070
150 Executive Blvd Suite 4200 San Francisco, CA 94134
CIVIL ENGINEERS CONSTRUCTION MANAGERS
DATE DESCRIPTION
PARCEL 2
EXHIBIT B 1
1 Ordinance No. XXXX Page 71 of 106
Page D-1.311
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EXHIBIT A-2-1
MAIN PROJECT SITE LEGAL DESCRIPTION
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
FREYER & LAURETA, INC. Page 1 of 2
LEGAL DESCRIPTION
WILLOW VILLAGE SITE
MENLO PARK, CALIFORNIA
The land referred to is situated in the City of Menlo Park, County of San Mateo, State of California and is described as follows:
BEGINNING at the southwesterly corner of Parcel S; as shown on that certain map entitled “Menlo Industrial Center, City of Menlo Park, San Mateo County, California” filed in the office of the County Recorder of San Mateo County, State of California, on October 1, 1979, in Volume 99 of Maps at Pages 81-83, thence,
North 22°05'00" East, 120.17 feet; thence,
North 24°45'44" East, 143.14 feet; thence,
Along a tangent curve to the left, having a radius of 1,536.52 feet, length of 74.34 feet, and a delta angle of 02°46'19"; thence,
North 22°05'00" East, 864.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,032.50 feet, length of 55.72 feet, and a delta angle of 03°05'31"; thence,
North 25°35'47" East, 2.12 feet; thence,
North 19°19'09" East, 144.98 feet; thence,
North 22°05'00" East, 71.06 feet; thence,
North 84°59'41" East, 1,324.41 feet; thence,
Along a tangent curve to the left, having a radius of 11,509.17 feet, length of 251.79 feet, and a delta angle of 01°15'13"; thence,
Ordinance No. XXXX
FREYER & LAURETA, INC. Page 2 of 2
South 10°08'21" West, 1,612.25 feet; thence,
South 88°08'54" West, 1,182.95 feet; thence,
North 79°51'49" West, 668.96 feet to the POINT OF BEGINNING.
Containing 2,577,434.20 square feet (59.17 acres), more or less.
September 30, 2022
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EXHIBIT A-2-2
HAMILTON PARCELS LEGAL DESCRIPTION
(ATTACHED)
Ordinance No. XXXX
FREYER & LAURETA, INC. Page 1 of 1
LEGAL DESCRIPTION
PARCEL 2
PARCEL MAP FOR BELLE HAVEN RETAIL CENTER
MENLO PARK, CALIFORNIA
Parcel 2 as shown on that Map titled “Parcel Map for Belle Haven Retail Center”, which map was filed in the Office of the Recorder of San Mateo County, on December 31st in Book 71 of Maps, pages 15-16.
Containing 51,011 square feet, more or less.
October 19, 2022
Ordinance No. XXXX
FREYER & LAURETA, INC. Page 1 of 1
LEGAL DESCRIPTION
PARCEL 3
PARCEL MAP FOR BELLE HAVEN RETAIL CENTER
MENLO PARK, CALIFORNIA
Parcel 3 as shown on that Map titled “Parcel Map for Belle Haven Retail Center”, which map was filed in the Office of the Recorder of San Mateo County, on December 31st in Book 71 of Maps, pages 15-16.
Containing 28,191 square feet, more or less.
October 19, 2022
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EXHIBIT B
LLBG PROPERTIES, LLC CONSENT
LLBG Properties, LLC, a Delaware limited liability company, (“LLBG Properties”) has reviewed the terms and conditions of that certain Development Agreement dated as of on or about _______________, 2022, by and between Peninsula Innovation Partners, LLC, a Delaware limited liability company, and the City of Menlo Park, a California municipal corporation, (the “Development Agreement”) and hereby consents to the terms and conditions of the Development Agreement and the recordation of the Agreement against the property owned by LLBG Properties described in Exhibit A-2-2 to the Development Agreement.
LLBG PROPERTIES, LLC,
a Delaware limited liability company
By:
Name:
Title:
By:
Name:
Title:
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EXHIBIT C
IMPACT FEES
1. Transportation Impact Fee (Municipal Code Chapter 13.26)
2. Building Construction Street Impact Fee
3. Below Market Rate Housing Program (Municipal Code Chapter 16.96) [Note – being satisfied through provision of on-site affordable housing in accordance with Project affordable housing agreements and this Agreement rather than through payment of fee]
4. Residential Subdivision Recreation in Lieu Fees (Municipal Code Section 15.16.020) [Note – fee not applicable to current Project due to lack of for-sale residential units] Resolution No. XXXX
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EXHIBIT D
WILLOW VILLAGE PHASING PLAN
Project Component Timing/Milestones1 Required Minimum
Number of Residential
and BMR Units
associated with such
Phase of Construction2
1. Demolition, Grading, and
Infrastructure Installation
1. Commence construction
following approval of all
applicable Improvement Plans for
the area of construction.
2. Elevated Park and Meeting
and Collaboration Space
(“MCS”)
2. Commence construction
concurrently with or after
completion of demolition,
grading and infrastructure for the
area of construction.
1 The milestones set forth in this exhibit are based upon Developer’s plan to construct six (6) office buildings as reflected in the Willow Village CDP. In the event that office building square footages shift considerably in the reasonable judgment of the City Manager (e.g., increase by more than twenty-five percent (25%) as to any office building or buildings that trigger(s) a milestone) or combine, the obligations set forth in this exhibit shall shift in a correlative manner through a meet and confer process between the Parties, with resulting changes to this exhibit being documented in writing by the Parties through an Operating Memorandum pursuant to Section 8.7 of this Agreement. Nothing in this Footnote authorizes an increase in the total office building square footage for the Project above the amount approved in the Project Approvals. 2 Final distribution of residential units, including BMR units, to be determined at building permit for each building containing residential units. Reduction from required minimum number of units by up to five percent (5%) is permitted. Reduction from required number of units by more than five percent (5%) but less than up to ten percent (10%) requires approval through an Operating Memorandum pursuant to Section 8.7 of this Agreement. Reduction from the required number of units by more than 10 percent (10%) requires approval through amendment of this Agreement pursuant to Section 8.1 of this Agreement.
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Project Component Timing/Milestones1 Required Minimum
Number of Residential
and BMR Units
associated with such
Phase of Construction2
3. First, Second and Third
Office buildings3
3. Commence construction
concurrently with or after
commencement of Elevated Park
and MCS.
Complete Structural Podium of
the mixed-use building on Parcel
2 (“RS2”) and the residential
building on Parcel 6 (“RS6”)
prior to final Certificate of
Occupancy (“COO”) for first
office building, but if a temporary
COO has been issued, no later
than 120 days from the issuance
of a temporary COO for the first
office building.
Complete roof framing of RS2
and RS6 prior to final COO for
the second office building, but if
a temporary COO has been
issued, no later than 120 days
from the issuance of a temporary
COO for the second office
building.
4. Residential buildings RS2
and RS6
4. Commence construction of
RS2 on or before commencement
of construction of first office
building.
Commence construction of RS6
within 4 months 90 days after
commencement of construction
of first office building.
RS2 and RS6 have a
combined total of 505
units, including 54 BMR
units.
3 Office buildings as used in this Exhibit D excludes the MCS.
Resolution No. XXXX
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Exhibit D, p. 3
Project Component Timing/Milestones1 Required Minimum
Number of Residential
and BMR Units
associated with such
Phase of Construction2
5. Fourth Office building 5. Commence construction of
RS2 and RS6 prior to issuance of
building permits for the fourth
office building.
Issue final COO for RS6 prior to
final COO for the fourth office
building, but, if a temporary COO
has been issued, no later than 120
days from the issuance of a
temporary COO for the fourth
office building.
6. Sixth Office building 6. Complete construction of
podium of the mixed-use building
on Parcel 3 (“RS3”) and the
residential building on Parcel 7
(“RS7”) prior to issuance of
building permits for the sixth
office building.
Commence construction of the
residential building on Parcel 4
(“RS4”) and the residential
building on Parcel 5 (“RS5”)
prior to final COO for the sixth
office building, but, if a
temporary COO has been issued,
no later than 120 days after the
issuance of a temporary COO for
the sixth office building .
RS3 and RS7 (senior
building) have a
combined total of 539
units, including 162
BMR units.
RS4 and RS5 have a
combined total of 686
units, including 96 BMR
units.
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Exhibit E-1
EXHIBIT E-1
CONCEPTUAL SITE PLAN
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
North Loop Road
Willow Road
Ivy Drive
Adams Court
Hamilton Avenue
Main Street
O’Brien Drive
Center Street
East Street
SamTrans Corridor
Park Street (Public)
West Street (Public)
Main Street (Public)
Main Street (Public)
East Loop Road (Public)
East Loop Road
PARCEL 3
PARCEL 2
PARCEL 4
PARCEL 6
PUBLICLY
ACCESSIBLE PARK
DOG PARK PARCEL 7
PARCEL 5
MCS
HOTEL
TOWN
SQUARE
PAVILION
ELEVATED
PARK
CAMPUS
OFFICE
O1
O2
O3
O4
O5
SG
NG
O6
WILLOW VILLAGE
Menlo Park, CA
Peninsula Innovation Partners
MASTER PLAN
0 100 200 300 500 700'
1" = 100' at 24" x 36"
2 min. Walk 1/2 ac
1/8 ac
October 12, 2022
Conceptual Master Plan
Ordinance No. XXXX Page 84 of 106
Page D-1.324
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OAK #4891-8238-9520 v35 v48 Exhibit E-2
EXHIBIT E-2
CONCEPTUAL PUBLICLY ACCESSIBLE OPEN SPACE SITE PLAN
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
North Loop Road
East Loop Road
Willow Road
Ivy Drive
Adams Court
Hamilton Avenue
Park Street
West Street
Main Street
O’Brien Drive
Main Street
Center Street
East Street
SamTrans Corridor
PASEO
PUBLICLY
ACCESSIBLE PARK
DOG PARK
TOWN
SQUARE
ELEVATED
PARK
PARCEL 3
WILLOW VILLAGE
Menlo Park, CA
Peninsula Innovation Partners
MASTER PLAN
0 100 200 300 500 700'
1" = 100' at 24" x 36"
2 min. Walk 1/2 ac
1/8 ac
October 12, 2022
Publicly Accessible Open Space
Ordinance No. XXXX Page 86 of 106
Page D-1.326
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OAK #4891-8238-9520 v35 v48 Exhibit E-3
EXHIBIT E-3
CONCEPTUAL WILLOW ROAD TUNNEL
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
CLAY WITH TRACE SAND WILLOW ROAD WATER, GAS, COMM, FIBER OPTIC SANITARY SEWER, ELECTRICAL, UTLITIES: 0-30 -20 -10 +10 STORM DRAIN 94" OD RCP +4.09' +10.7' Section for Tunnel and Storm Drain Siphon GROUNDWATER TABLE 10 FT 26 FT 5 FT FILL on Engeo boring 2-B2 (2021). Subsurface conditions based NOTE: 46 FT TRAM BIKE 1 FT PEDS 12 FT
18 FT SHORING SHORING 0-30 -20 -10 +10
ELEVATION
ELEVATION
SD
SD SD SD SD SD SD SD SD SD SD JPB RAIL CORRIDOR MPK20 Willow Road CAMPUS TO CLASSIC EXISTING TUNNEL Bayfront Expressway
WILLOW VILLAGE
FACEBOOK WAY PG&E TOWER PG&E TOWER SOUTH PORTAL NORTH RAMP TRAMS BIKE/PEDSOUTH RAMP PORTAL NORTH North Loop Road BOAT STRUCTURE WILLOW ROAD TUNNEL SIPHON META WILLOW ROAD CROSSING wsp.com San Francisco, CA 94105 425 Market Street, 17th Floor WSP USA, INC TUNNEL SCHEMATIC DESIGN CUT AND COVER TSD-1 GENERAL LAYOUT WILLOW ROAD TUNNEL AND NORTH & SOUTH RAMP Elevations are referenced to NGVD 88. NOTE:
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Exhibit E-4
EXHIBIT E-4
CONCEPTUAL ALTERNATIVE DESIGN FOR ELEVATED
PARK VERTICAL TRANSPORTATION SYSTEM
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
0 40 80
DRAWING NO:
MEASUREMENTS THAT ARE NOT INDICATED.
SEEK CLARIFICATION FROM ARCHITECT FOR
DRAWINGS. USE FIGURED DIMENSIONS ONLY, OR
NOTE: THIS DRAWING IS ISO A1. DO NOT SCALE
SCALE: DRAWING TITLE:
MILESTONES
DATE ISSUE
05/14/2021 ACP
REVISIONS
NO. DATE ISSUEMenlo Park, CA WILLOW VILLAGE Architectural Control Package - Parcel X PENINSULA INNOVATION PARTNERS ##### GX.XX #####
0 20 40 10
0 1/16" = 1'-0"
40 80 20
1" = 32'
0 40 80
1" = 40'
0 4
3/16" = 1'-0"
8 16
0 8
3/32" = 1'-0"
16 32
0 16
1/8" = 1'-0"
84 0 8
1/4" = 1'-0"
42 0 4
1/2" = 1'-0"
21 0 10 20
0 1" = 10'
20 40
0 1" = 20'
50 100
0 1" = 50'
80 160
1" = 80'
Submittal
ACP
1 A2.05
10/26/2022ROOF PLAN
1”=50’-0”
WILLOW ROAD
TOWN SQUARE
Elevated Park
Access
Elevated Park
Access
Elevated Park
Access
HOTEL
Ordinance No. XXXX Page 90 of 106
Page D-1.330
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OAK #4891-8238-9520 v35 v48 Exhibit F, p 1
EXHIBIT F
WILLOW VILLAGE COMMUNITY AMENITIES
TIMING PROVISIONS
Building Related Amenities Timing/Milestones/Valuations
1. Elevated Park/MCS 1. First Vertical Improvements to be constructed .
2. Grocery Store and Rent Subsidies 2. Grocery store located in RS2 (first residential building);34 final COO for Grocery
Store tenant improvements to be issued within
12 months after final COO for RS2, but, if a
temporary COO has been issued, no later than
16 months from the issuance of a temporary
COO for RS2 .
Offsite Amenity
1. Affordable Housing Contribution 1. Total contribution of $5 6 Million to City, with an initial payment of $2 3 Million upon
issuance of first building permit for vertical
construction and three subsequent payments
of $1 a second payment of $3 Million on the
first anniversary of such issuance .
2. Air Quality and Noise Monitoring
Equipment Funding
2. Prior to issuance of the first demolition
permit .
3. Willow Road Feasibility Study funding or
for other use as determined by City
3. $100,000 prior to issuance of first building
permit for vertical construction.
4. Funding for Job Training Programs 4. Ongoing funding of $8,304,907 total for:
a) Year-up and Hub from February 2022-
December 2024.
b) Job Train from January 2022- December
2023.
5. Teacher Housing Rent Subsidies 5. Ongoing funding of $1,745,319 total for February 2022- March 2024 .
34 RS2 is the residential building located on Parcel 2.
Resolution No. XXXX
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Exhibit F, p 2
Building Related Amenities Timing/Milestones/Valuations Vertical Buildout Amenities
1. Bayfront Shuttle 1. Bayfront Shuttle to be operational at the earlier of the opening of the Grocery Store or
the completion of the Elevated Park .
2. Bank/Credit Union 2. Complete Construction and secure final COO within 12 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 22 months after the
issuance of a temporary COO for RS3 .
3. First Phase Dining (9,000 SF of
restaurants/cafes)
3. Complete Construction and secure final
COO within 9 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 13 months after the
issuance of a temporary COO for RS3 .
4. Second Phase Dining (2nd 9,000 SF of
restaurants/cafes)
4. Complete Construction and secure final
COO within 18 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 22 months after the
issuance of a temporary COO for RS3.
5. First Phase Community Entertainment
(12,500 SF of Community Entertainment)
5. Complete Construction and secure final
COO within 18 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 22 months after the
issuance of a temporary COO for RS3 .
6. Second Phase Community Entertainment
(2nd 12,500 SF of Community Entertainment)
6. Complete Construction and secure final
COO within 24 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 28 months after the
issuance of a temporary COO for RS3 .
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Exhibit F, p 3
Building Related Amenities Timing/Milestones/Valuations
7. Pharmacy Services 7. Timing is dependent on location; Complete Construction and secure final COO:
a) if within Willow Hamilton retail center,
then 12 months after completion of the
Elevated Park elevator tower at the Hamilton
center;
b) if within Willow Village in RS3, then
within 12 months after final COO for RS3,
but, if a temporary COO has been issued, no
later than 22 months after the issuance of a
temporary COO for RS3;
c) if within Willow Village in Office
Building O2 Retail (east side of Main), then
within 12 months after later of (i) final COO
for RS3 to correspond with retail on the west
side of Main (but, if a temporary COO has
been issued, no later than 22 months after the
issuance of a temporary COO for RS3) or (ii)
final COO for O2 (but, if a temporary COO
has been issued, no later than 22 months after
the issuance of a temporary COO for O2); or
d) if within Willow Village Parcel 2 in
conjunction with the grocery store, then
within 12 months after final COO for RS2,
but, if a temporary COO has been issued, no
later than 16 months from the issuance of a
temporary COO for RS2
Publicly Accessible Open Space Amenities
1. Town Square Open Space 2. Complete Construction of Town Square improvements east of West Street, up to O4,
within 12 months after completion of Town
Square garage structural podium regardless of
hotel status; commence construction of
remainder within 6 months after final COO
for hotel and complete within 18 months after
final COO for hotel; maintain improvements
following completion.
2. Elevated Park 5. Commence construction after issuance of first building permit for Elevated Park, and
diligently prosecute to Completion of
Construction
3. Excess Publicly Accessible Open Space 6. Construct concurrent with Completion of Construction of Elevated Park
Resolution No. XXXX
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Exhibit G
EXHIBIT G
FORM OF PARTIAL ASSIGNMENT AND
ASSUMPTION AGREEMENT
(ATTACHED)
Resolution No. XXXX
Ordinance No. XXXX
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Recording Requested by and
When Recorded Return to:
___________________________
___________________________
___________________________
___________________________
SPACE ABOVE THIS LINE FOR RECORDER’S USE
ASSIGNMENT AND ASSUMPTION AGREEMENT -
DEVELOPMENT AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”) is made and entered into as of _____________, 20__, by and between ______________________, a _____________ company (“Assignor”), and ______________________, a _____________ company (“Assignee”).
RECITALS
A. Assignor owns that real property located in the City of Menlo Park (“City”), County of San Mateo, State of California, and more particularly described in Exhibit A attached hereto (the “Property”).
B. On the date hereof, Assignee is acquiring approximately __ acres of the Property as more particularly described in Exhibit B attached hereto (the “Assigned Property”).
C. The City and Peninsula Innovation Partners, LLC, a Delaware limited liability company, entered into that certain Development Agreement dated as of ___________, 202_ and recorded against the Property on _______________, 202_ as Instrument No. _______________ in the San Mateo County Recorder’s Office (the “Development Agreement”).
D. Assignor desires to assign to Assignee all of Assignor’s rights, duties and obligations under the Development Agreement with respect to the Assigned Property only (excluding, however, Assignor’s obligations with respect to the construction of and/or payment for certain infrastructure and other project-wide items specified in Exhibit C, attached hereto (the “Assignor Retained Obligations”), for which Assignor remains responsible) (the “Assigned Rights and Obligations”), and Assignee desires to accept and assume Assignor’s rights and obligations under the Development Agreement with respect to the Assigned Property only (the “Assumed Rights and Obligations”), such assignment and assumption to be effective on the Effective Date (as defined in Section 1.3 below). The Assigned Rights and Obligations and the Assumed Rights and Obligations are referred to collectively herein as the “Assigned Property Rights and Obligations”.
NOW THEREFORE, in consideration of these promises, and of the agreements, covenants and conditions contained in this Agreement and other good and valuable consideration, the parties agree as follows:
Resolution No. XXXX
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 3
ARTICLE 1.
ASSIGNMENT AND ASSUMPTION OF
THE ASSIGNED PROPERTY RIGHTS AND OBLIGATIONS
1.1. Assignment. Assignor assigns to Assignee, as of the Effective Date (as defined in Section 1.3 below), all of Assignor’s rights, title and interest in and to the Assigned Property Rights and Obligations.
1.2. Assumption. As of the Effective Date, Assignee accepts Assignor’s assignment of the Assigned Rights and Obligations and assumes the Assumed Rights and Obligations. From and after the Effective Date, Assignee shall keep and perform all covenants, conditions and provisions of the Development Agreement relating to the Assigned Property. Effective Date.
For purposes of this Agreement, the “Effective Date” shall be the later to occur of (1) the date on which the deed from Assignor to Assignee for the Assigned Property is recorded in the Office of the Recorder of the County of San Mateo; or (2) the date of the execution of this Agreement by all parties; provided, however, that this Agreement shall have no force and effect without the written approval of the City, as evidenced by the full execution by the City’s representatives of the form entitled City of Menlo Park’s Consent, attached hereto as Exhibit D.Phasing. Nothing in this Agreement shall be deemed to relieve any party of the timing obligations established in Exhibits D and F to the Development Agreement.
RIGHTS AND REMEDIES
2.1. Assignor’s Release; No Assignor Liability or Default for Assignee Breach.
Pursuant to Section 10.2 of the Development Agreement, Assignor shall be released from the Development Agreement with respect to the Assigned Property and the Assumed Rights and Obligations as of the Effective Date. Any default or breach by Assignee under the Development Agreement following the Effective Date with respect to the Assigned Property or the Assumed Rights and Obligations (“Assignee Breach”) shall not constitute a breach or default by Assignor under the Development Agreement and shall not result in (a) any remedies imposed against Assignor, or (b) modification or termination of the Development Agreement with respect to that portion of the Property retained by Assignor after the conveyance of the Assigned Property, if any (the “Assignor Property”). No Assignee Liability or Default for Assignor Breach. As of the Effective Date, any default or breach by Assignor under the Development Agreement prior to or after the Effective Date (“Assignor Breach”), shall not constitute a breach or default by Assignee under the Development Agreement, and shall not result in (a) any remedies imposed against Assignee, including without limitation any remedies authorized in the Development Agreement, or (b) modification or termination of the Development Agreement with respect to the Assigned Property.
PERIODIC REVIEW OF COMPLIANCE
3.1. Assignor Responsibilities. Assignor shall participate in the annual review of the Development Agreement conducted pursuant to Section 65865.1 of the California Government Code with respect to the Assignor Property, and Assignee shall have no responsibility therefor.Assignee Responsibilities. Assignee shall participate in the annual review of the Ordinance No. XXXX
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Development Agreement conducted pursuant to Section 65865.1 of the California Government Code with respect to the Assigned Property, and Assignor shall have no responsibility therefor.
AMENDMENT OF THE DEVELOPMENT AGREEMENT
4.1. Assignor. Assignor shall not request, process or consent to any amendment to the Development Agreement that would affect the Assigned Property or the Assigned Property Rights and Obligations without Assignee’s prior written consent, which consent shall not be withheld unreasonably. The foregoing notwithstanding, Assignor may process any amendment that does not affect the Assigned Property, and, if necessary, Assignee shall consent thereto and execute all documents necessary to accomplish said amendment, provided that said amendment does not adversely affect the Assigned Property or any of Assignee’s Assigned Property Rights and Obligations pursuant to the Development Agreement.Assignee. Assignee shall not request, process or consent to any amendment to the Development Agreement that would affect the Assignor Property or the Assignor’s remaining rights and obligations pursuant to the Development Agreement without Assignor’s prior written consent, which consent shall not be withheld unreasonably. The foregoing notwithstanding, Assignee may process any amendment that does not affect the Assignor Property or any of Assignor’s remaining rights and obligations pursuant to the Development Agreement, and, if necessary, Assignor shall consent thereto and execute all documents necessary to accomplish said amendment.
GENERAL PROVISIONS
5.1. Notices. All notices, invoices and other communications required or permitted under this Agreement shall be made in writing, and shall be delivered either personally (including by private courier) or by nationally recognized overnight courier service to the following addresses, or to such other addresses as the parties may designate in writing from time to time:If to Assignee:
with copies to:
If to Assignor:
with a copies to:
Resolution No. XXXX
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 5
Notices personally delivered shall be deemed received upon delivery. Notices delivered by courier service as provided above shall be deemed received twenty-four (24) hours after the date of deposit. From and after the Effective Date and until further written notice from Assignee to the City pursuant to the terms of the Development Agreement, Assignee hereby designates as its notice address for notices sent by the City pursuant to Section 12.5 of the Development Agreement, the notice address set forth above.
5.2. Estoppel Certificates. Within ten (10) days after receipt of a written request from time to time, either party shall execute and deliver to the other, or to an auditor or prospective lender or purchaser, a written statement certifying to that party’s actual knowledge: (a) that the Development Agreement is unmodified and in full force and effect (or, if there have been modifications, that the Development Agreement is in full force and effect, and stating the date and nature of such modifications); (b) that there are no current defaults under the Development Agreement by the City and either Assignor or Assignee, as the case may be (or, if defaults are asserted, so describing with reasonable specificity) and that there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default; (c) that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect, and stating the date and nature of such modifications); and (d) such other matters as may be reasonably requested.Attorneys’ Fees. In the event of any legal or equitable proceeding in connection with this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable costs and expenses, including without limitation reasonable attorneys’ fees, costs and disbursements paid or incurred in good faith at the arbitration, pre-trial, trial and appellate levels, and in enforcing any award or judgment granted pursuant thereto. No Waiver. No delay or omission by either party in exercising any right, remedy, election or option accruing upon the noncompliance or failure of performance by the other party under the provisions of this Agreement shall constitute an impairment or waiver of any such right, remedy, election or option. No alleged waiver shall be valid or effective unless it is set forth in a writing executed by the party against whom the waiver is claimed. A waiver by either party of any of the covenants, conditions or obligations to be performed by the other party shall not be construed as a waiver of any subsequent breach of the same or any other covenants, conditions or obligations.Amendment. This Agreement may be amended only by a written agreement signed by both Assignor and Assignee, and subject to obtaining the City’s consent. Successors and Assigns. This Agreement runs with the land and shall be binding on and inure to the benefit of the parties and their respective successors and assigns. No Joint Venture. Nothing contained herein shall be construed as creating a joint venture, agency, or any other relationship between the parties hereto other than that of assignor and assignee.Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and enforceable to the full extent permitted by law; provided that, if the invalidation or unenforceability would deprive either Assignor or Assignee of material benefits derived from this Agreement or make performance under this Agreement unreasonably difficult, then Assignor and Assignee shall meet and confer and shall make good faith efforts to modify this Agreement in a manner that is acceptable to Assignor, Assignee and the City. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ordinance No. XXXX
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California.Third -Party Beneficiaries. Assignor and Assignee acknowledge that the City is a third -party beneficiary of the terms and conditions of this Agreement to the extent necessary for City to enforce the terms and conditions of the Development Agreement. This Agreement shall not be deemed or construed to confer any rights, title or interest, including without limitation any third -party beneficiary status or right to enforce any provision of this Agreement, upon any person or entity other than Assignor, Assignee and the City.Time of the Essence. Time is of the essence in the performance by each party of its obligations under this Agreement.Authority.
Each party represents that the individuals executing this Agreement on behalf of such Party have the authority to bind his or her respective party to the performance of its obligations hereunder and that all necessary board of directors’, shareholders’, partners’ and other approvals have been obtained. Term. The term of this Agreement shall commence on the Effective Date and shall expire upon the expiration or earlier termination of the Development Agreement, subject to any obligations under the Development Agreement that expressly survive the expiration or termination of the Development Agreement. Upon the expiration or earlier termination of this Agreement, the parties shall have no further rights or obligations hereunder, except with respect to any obligation to have been performed prior to such expiration or termination or with respect to any default in the performance of the provisions of this Agreement which occurred prior to such expiration or termination or with respect to any obligations which are specifically set forth as surviving this Agreement or the Development Agreement.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one document.Default. Any failure by either party to perform any material term or provision of this Agreement shall constitute a default (a) if such defaulting party does not cure such failure within thirty (30) days following written notice of default from the other party, where such failure is of a nature that can be cured within such thirty (30) day period, or (b) if such default is not of a nature that can be cured within such thirty (30) day period, if the defaulting party does not within such thirty (30) day period commerce substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence the curing of such failure.
Any notice of default given hereunder shall be given in the same manner as provided in Section
5.1 hereof and shall specify in detail the nature of the failures in performance that the noticing party claims and the manner in which such failure can be satisfactorily cured. [remainder of page left intentionally blank – signature pages follow] Resolution No. XXXX
Ordinance No. XXXX
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement by proper persons thereunto duly authorized, to be effective as of the Effective Date. “Assignor”
__________________________,
a ____________________________company
By:
Name:
Title:
By:
Name:
Title:
“Assignee”
__________________________,
a ____________________________company
By:
Name:
Title:
By:
Name:
Title:
Ordinance No. XXXX
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OAK #4891-8238-9520 v35 v48 Notary
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On ______________, 20__ before me, _____________________________________________ Notary Public (insert name and title of the officer),
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________
[Seal]
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
Resolution No. XXXX
Ordinance No. XXXX
080937\16265910v3
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OAK #4891-8238-9520 v35 v48 Notary
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On ______________, 20__ before me, _____________________________________________ Notary Public (insert name and title of the officer),
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________
[Seal]
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
Resolution No. XXXX
Ordinance No. XXXX
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EXHIBIT A
Description of the Property
(Attached)
Ordinance No. XXXX
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EXHIBIT B
Description of the Assigned Property
(Attached)
Ordinance No. XXXX
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EXHIBIT C
List of Assignor Retained Obligations
(Attached)
Ordinance No. XXXX
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EXHIBIT D
CONSENT OF CITY OF MENLO PARK
The City of Menlo Park hereby consents to the assignment and assumption of the Assigned Property Rights and Obligations as set forth in this Agreement and agrees to the terms and conditions set forth herein.
CITY OF MENLO PARK,
a California Municipal corporation
By:
Resolution No. XXXX
Ordinance No. XXXX
RESOLUTION NO. XXXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENLO PARK FOR
APPROVAL OF THE BELOW MARKET RATE HOUSING AGREEMENTS
BETWEEN THE CITY OF MENLO PARK AND PENINSULA INNOVATION
PARTNERS, LLC FOR THE WILLOW VILLAGE MASTER PLAN PROJECT The City Council of the City of Menlo Park does ordain as follows:
SECTION 1.
This resolution incorporates by reference those certain Below Market Rate (“BMR”) Housing Agreements (“BMR Agreements”) inclusive of Exhibits B1 and B2 thereto for the Willow Village Project by and between the City and Peninsula Innovation Partners, LLC (“Applicant”) attached hereto as Attachment A and incorporated herein by this reference. Specifically, Attachment A hereto contains the Project Wide Affordable Housing Agreement. Exhibit B1 contains the form non-age restricted Below Market Rate Housing Agreement and Declaration of Restrictive Covenants (“Non-Age Restricted BMR Agreement”) for all non-age restricted BMR units and Exhibit B2 contains the age restricted Below Market Rate Housing Agreement and Declaration of Restrictive Covenants (“Age Restricted BMR Agreement”). Exhibit C contains the Pro Forma Partial Release, Exhibit D documents the estimated BMR units by building, and Exhibit E contains the Pro Forma Assignment and Assumption Agreement. Collectively, the “BMR Agreements.”
SECTION 2.
The City, as lead agency, prepared an Environmental Impact Report (“EIR”) (SCH: 2019090428) pursuant to the California Environmental Quality Act (“CEQA”) that examined the environmental impacts of the redevelopment of the approximately 59-acre industrial site (the “main Project Site”) plus three parcels (within two sites) west of Willow Road (the “Hamilton Parcels” and collectively, with the main Project Site, the “Project Site”) with the construction of a mixed-use development consisting of up to 1.6 million square feet of office and accessory uses (a maximum of 1,250,000 square feet of offices and the balance for accessory uses), up to 1,730 multifamily dwelling units, up to 200,000 square feet of retail uses, an up to 193-room hotel, and associated open space and infrastructure (the “Project”). On __, 2022, by Resolution No. _____, the City Council certified the EIR, made certain findings, and adopted a Mitigation Monitoring and Reporting Plan, which Resolution together with the EIR are incorporated herein by reference.
The City Council finds that the BMR Agreements are within the scope of the EIR.
SECTION 3.
The Planning Commission reviewed the BMR Agreements at a duly and properly noticed public hearing held on October 24, 2022 and continued to November 3, 2022, and recommended that the City Council adopt this resolution. As part of its recommendation to the City Council, the Planning Commission determined that the BMR Agreements are consistent with the purpose of the City’s BMR Housing Program as stated in Municipal Code Section 16.96.010, which is to increase the housing supply for households that have extremely low, very low, low and moderate incomes compared to the median household income for San Mateo County. The Planning Commission also determined that the BMR Agreements are consistent with the primary objective of the BMR Housing Program as stated in Municipal Code Section 19.16.010, which is to create actual housing units. The Planning Commission further determined that Applicant’s request to deviate from requirements in BMR Guidelines Sections 5.1 and 8.1 for the Age Restricted BMR Agreement would result in BMR units of reasonably equivalent characteristics as what would be required under the BMR Guidelines and is necessary to provide affordable units for seniors.
ATTACHMENT H Page D-1.347
SECTION 4.
The City Council held a duly and properly noticed public hearing on the BMR Agreements on __, 2022. The City Council finds that the following are the relevant facts concerning the BMR Agreements:
1. The BMR Agreements will result in the construction of BMR units that meet the requirements of Municipal Code Chapter 16.96 and are commensurate with the goals of the BMR Housing Program Guidelines, resulting in the Project producing 312 affordable units, as more specifically described in the BMR Agreements.
2. To provide affordable senior housing, which is needed in San Mateo County, the Age Restricted BMR Agreement allows the senior affordable units to be in a senior housing building, as required by law, rather than distributed throughout the Project, and to have a different mix than the overall mix of units in the Project as a whole. The production of affordable senior units is a benefit to the City.
3. To provide affordable senior housing, which is needed in San Mateo County, the Age Restricted BMR Agreement will require the affordable units to be rented to persons over a certain age, which preference is not expressly contemplated in the City’s BMR rental preference criteria (set forth in the City of Menlo Park Below Market Rate Guidelines). The production of affordable senior units is a benefit to the City.
4. The waiver of the location requirements of Section 5.1 the City of Menlo Park Below Market Rate Guidelines with respect to the senior housing building would carry out the purposes of the BMR Housing Program and the Housing Element.
5. The rental of units in the senior building to persons over a certain age is a reasonably equivalent alternative to the preference criteria of the City of Menlo Park Below Market Rate Guidelines, is commensurate with the applicable requirements in the Guidelines and is consistent with the goals of the Guidelines.
SECTION 6.
Based upon the above findings of fact, the BMR Agreements for the Project are hereby approved. The City Council hereby authorizes the City Manager to execute the BMR Agreements in substantial conformance the BMR Agreements attached hereto and all documents required to implement the BMR Agreements on behalf of the City.
SECTION 7.
If any section of this resolution, or part hereof, is held by a court of competent jurisdiction in a final judicial action to be void, voidable or enforceable, such section, or part hereof, shall be deemed severable from the remaining sections of this ordinance and shall in no way affect the validity of the remaining sections hereof.
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Resolution No. XXXX
I, Judi A. Herren, City Clerk of Menlo Park, do hereby certify that the above and foregoing City Council Resolution was duly and regularly passed and adopted at a meeting by said City Council on the fifteenth thirtieth day of November, 2022, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of said City on this __ day of November, 2022.
Judi A. Herren, City Clerk
Attachments:
A. Project wide affordable housing agreement
Exhibits:
A. Legal description Willow Village site Menlo Park, California B1. Below market rate housing agreement and declaration of restrictive covenants (Willow Village Masterplan 1350 Willow Road)
B2. Below market rate housing agreement and declaration of restrictive covenants (Willow Village Masterplan 1350 Willow Road)
C. Partial release of project wide affordable housing agreement D. Estimated below market rate units by building
E. assignment and assumption agreement – project wide affordable housing agreement Resolution No. XXXX
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This document is recorded for the benefit of the City of Menlo Park and is entitled to be recorded free of charge in accordance with Sections 6103 and 27383 of the Government Code.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025
PROJECT WIDE AFFORDABLE HOUSING AGREEMENT
THIS PROJECT WIDE AFFORDABLE HOUSING AGREEMENT (“Agreement”) is made as of this ____ day of ________________, 2022, by and between Peninsula Innovation Partners, LLC, a Delaware limited liability company (“Project Wide Developer”) and the City of Menlo Park, a California municipal corporation (“City”) (each individually a “party” and together the “parties”), with reference to the following facts.
RECITALS
A. Project Wide Developer owns and is developing the real property commonly known as “Willow Village Master Plan Project” in the City of Menlo Park, County of San Mateo, (APNs 055-440-350, 055-440-210, 055-440-300, 055-440-130, 055-440-230, 055-440-110, 055-440- 340, 055-440-330, 055-440-260, 055-440-320, 055-440-310, 055-440-040, 055-440-020, 055- 440-010, 055-440-030, 055-440-050, 055-440-090, 055-440-190), more particularly described on Exhibit “A” attached hereto (“Property”). Development of the Property is governed by, among other items, Menlo Park Municipal Code Chapter 16.96 (“BMR Ordinance”) and the Below Market Rate Housing Program Guidelines (“Guidelines”).
B. Project Wide Devloper applied to demolish an existing office, research and development and industrial site and to comprehensively redevelop the main project site with up to 1.6 million square feet of office space (inclusive of meeting and collaboration space and accessory uses), up to 200,000 square feet of retail uses, a 193 room hotel (approximately 172,000 square feet in size), and up to 1,730 residential dwelling units, as well as publicly accessible open space and landscaping (the “Project”).
C. The BMR Ordinance and Guidelines require Project Wide Developer to provide fifteen percent (15%) of the total number of units in the Project as affordable to below market rate households. To satisfy the requirements of the BMR Ordinance and Guidelines, Project Wide Developer has proposed to provide 312 on-site Affordable Housing Units (as hereinafter defined) to below market rate households, inclusive of 119 age-restricted senior Affordable Housing Units and 193 non-age restricted Affordable Housing Units.
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D. On August 3, 2022, after a duly noticed public hearing, the Housing Commission recommended approval of the Affordable Housing Units (as hereinafter defined) with eighty-two (82) extremely-low-income age-restricted senior units, thirty-seven (37) very-low-income agerestricted senior units, seventy-six (76) low-income non-age restricted units and one hundred and seventeen (117) moderate-income non-age restricted units.
E. On _______________, 2022, after a duly noticed public hearing, and on the recommendation of the Housing Commission and the Planning Commission, the City Council certified the environmental impact report and granted General Plan Circulation Element and Zoning Map amendments, rezoning, conditional development permit, development agreement (the “Development Agreement”), vesting tenantive map, and below market rate (BMR) housing agreement for the Project (collectively, “Project Approvals”). The Project Approvals require the Project Wide Developer to provide Affordable Housing Units as described herein. In accordance with the BMR Ordinance and Guidelines, Project Wide Developer is required to execute and record an approved BMR housing agreement as a condition precedent to the issuance of a building permit for the Project. This Agreement is intended to satisfy that requirement.
F. The Project is anticipated to be completed in two phases over time, with a cumulative total of six parcels containing all of the Affordable Housing Units, with parcels known as 2, 3, 6, and 7 in the first phase and parcels known as 4 and 5 in the second phase.
G. This Agreement will serve to memorialize the following: Project Wide Developer’s agreement to provide the Affordable Housing Units within the Project needed to satisfy BMR Ordinance requirements; the security for the performance of this Agreement; the time frame for the construction of the Affordable Housing Units; the restriction of the Affordable Housing Units by the recordation of the Declarations (as defined below), in favor of the City and in a form agreed upon by Project Wide Developer and the City, as set forth in Exhibit “B-1” and “B-2” attached hereto, assuring affordability for the required term; and other related issues to the provision of Affordable Housing Units on the Property.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, Project Wide Developer hereby declares and the City hereby agrees as follows:
1. Definitions. The following terms shall have the meanings ascribed to them in this Section 1:
(a) Affordable Housing Units. “Affordable Housing Units” means the rental residential units that Project Wide Developer is required to provide on the Property, which are restricted as provided in this Agreement to assure affordability for households earning either 30% Area Median Income (as defined below), 50% Area Median Income (as defined below), 80% Area Median Income (as defined below), or 120% Area Median Income (as defined below). (b) Agreement. “Agreement” means this Project Wide Affordable Housing Agreement.
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(c) Area Median Income. “Area Median Income” or “AMI” means the area median income for San Mateo County, as published and periodically updated by the U.S. Department of Housing and Urban Development (“HUD”), adjusted for assumed household size. (d) BMR Ordinance. “BMR Ordinance” has that meaning ascribed to it in Recital A, above.
(e) Building Permit(s). “Building Permit(s)” means a permit for the actual structure(s) of a Development Parcel, as that term is defined herein, in which residential rental units shall be developed and/or permits for any site preparation construction work, which may include but not be limited to make-ready utility installation; excavation, shoring and grading; and/or foundation installation.
(f) City. “City” means the City of Menlo Park, a municipal corporation. (g) Declaration. “Declaration” means the Below Market Rate Housing Agreement and Declaration of Restrictive Covenants recorded in Senior Position against a parcel(s) and/or condominium(s) sufficient to accommodate construction of the Affordable Housing Units applicable to a Development Parcel or multiple Development Parcels. The Declaration shall be in substantially the same form as the Pro Forma Declaration attached hereto as Exhibit “B-1” and “B2”, with the form attached as Exhibit “B-1” used for the non-age restricted buildings, and the form attached as Exhibit “B-2” used for the age restricted building. The term Declaration includes the First Development Parcel Declaration as defined in Section 5(a) below. Each Declaration shall be made by the owner of the affordable housing portion of such corresponding Development Parcel. (h) Development Parcel. “Development Parcel” means those parcels within the Property upon which any group of Market Rate Units and Affordable Housing Units, and/or improvements for which Building Permits are being concurrently requested by the Project Wide Developer (or any successor owner of any portion of the Project ) are located, and shall include the First Development Parcel and any Subsequent Development Parcel, as such terms are defined herein.
(i) First Development Parcel. “First Development Parcel” shall mean and refer to: the first Development Parcel to be developed.
(j) Guidelines. “Guidelines” has that meaning ascribed to it in Recital A, above. (k) Market Rate Units. “Market Rate Units” means the rental residential units that Project Wide Developer will develop on the Property that are not constricted by affordability rules under a Declaration and are permitted under the Project Approvals. (l) Project Wide Developer. “Project Wide Developer” means Peninsula Innovation Partners, LLC, a Delaware limited liability company.
(m) Property. “Property” has that meaning ascribed to it in Recital A, above.
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(n) Project. “Project” has that meaning ascribed to it in Recital B, above. (o) Project Approvals. “Project Approvals” has that meaning ascribed to it in Recital E, above.
(p) Required Affordable Units. “Required Affordable Units” means the number of Affordable Housing Units which, as of the date of issuance of the first Building Permit for any particular Development Parcel, Project Wide Developer is required to construct pursuant to Section 2(c) of this Agreement (less any such Affordable Housing Units which have already been commenced by Project Wide Developer).
(q) Senior Position. “Senior Position” means that the document is recorded against the Property such that it is senior in recording priority to all mortgages and deeds of trust. (r) Subsequent Development Parcel. “Subsequent Development Parcel” (it being acknowledged that there will be approximately five Subsequent Development Parcels shall mean and refer to: each of the five remaining Development Parcels to be developed as part of the Project. (s) Targeted Household. “Targeted Household” means those households whose aggregate gross annual income does not exceed one hundred twenty percent (120%) of Area Median Income, as adjusted for family size.
(t) Other Terms. Other terms referenced in this Agreement in “quotations” (including those set forth in the Recitals) have the meanings ascribed to them in this Agreement.
2. Design, Construction and Occupancy Schedule for Affordable Housing Units. Project Wide Developer shall have no obligation to commence construction of the Affordable Housing Units except in accordance with the following schedule. (a) First Development Parcel. Upon the start of the First Development Parcel, Project Wide Developer and/or a successor owner of any portion of the Project shall obtain Building Permits for all of the Required Affordable Units for the First Development Parcel and shall diligently commence and pursue construction of such Affordable Housing Units. (b) Subsequent Development Parcel(s). Upon the commencement of any Subsequent Development Parcel, Project Wide Developer and/or a successor owner of such Subsequent Development Parcel shall obtain Building Permits for all of the Required Affordable Units for such Subsequent Development Parcel and shall diligently commence and pursue construction of such Affordable Housing Units. It is acknowledged that there may be more than one Subsequent Development Parcel.
(c) Construction of Affordable Housing Units. With respect to each Development Parcel, Project Wide Developer shall obtain Building Permits (and thereafter construct and complete pursuant to Sections 2(a) and 2(b), above) for the Required Affordable Units in relation to such Development Parcel, all as provided in Exhibit “D” attached hereto, as the same may be Resolution No. XXXX
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amended or updated with the mutual approval of the City and the Project Wide Developer, provided, however, that a reallocation of Affordable Housing Units of Affordable Housing Units from one Development Parcel to another Development Parcel is permitted without the approval of the City so long as the reallocation does not decrease the Affordable Housing Units in any given Development Parcel as set forth in Exhibit “D” by more than 5%; and provided further that a reallocation that decreases the number of Affordable Housing Units of any given Development Parcel by more than 5% but less than 10% shall require approval of the City pursuant to an Operating Memorandum as described in Section 8.7 of the Development Agreement. In the event of any reallocation of Affordable Housing Units as described in this Section and pursuant to Section 5.1 of the Guidelines (as that section may be amended), in the Development Parcel accommodating the reallocated Affordable Housing Units, the Affordable Housing Units shall generally be of the same proploritonate size (number of bedrooms and square footage) as the market-rate units in such Development Parcel, should be distributed through such development, and should be indistinguishable from the exterior. City shall reasonably cooperate in the amendment of Exhibit “D” if a reallocation of more than 10% of Affordable Units among the Parcels is requested by Project Wide Developer provided there is no material impact on the deliver of Affordable Units to the Project.
3. Building Permits. Issuance of Building Permits for any Development Parcel, and a corresponding release of this Agreement from the property comprising such Development Parcel, shall not be allowed until Project Wide Developer causes a parcel(s) and/or condominium(s) sufficient to accommodate construction of the Affordable Housing Units applicable to such Development Parcel to be encumbered by a Declaration in Senior Position.
4. Effect of Sale of Parcel by Project Wide Developer. If a parcel(s) or condominium(s) within the Project are sold or otherwise transferred by Project Wide Developer, every such parcel or condominium sold or transferred shall (at the time the owner thereof obtains Building Permits for residential rental units on such parcel(s) or condominium(s)) be included, for purposes of this Agreement, in the phased delivery of Affordable Housing Units and Market Rate Units as provided in Exhibit “D” attached hereto, as the same may be amended or updated with the mutual approval of the City and the Project Wide Developer pursuant to Section 2 of this Agreement, and the other requirements of this Agreement. Any such sale or transfer by the Project Wide Developer shall also be subject to the provisions of Section 11 of this Agreement.
5. Declarations of Covenants, Conditions and Restrictions. The Project Wide Developer, and/or a successor owner of any applicable portion of the Project, shall timely execute and record Declarations as and when required by this Agreement.
(a) First Development Parcel Declaration. Prior to the first date upon which Building Permits for Market Rate Units in the First Development Parcel are first issued, Project Wide Developer shall execute, acknowledge and deliver a “First Development Parcel Declaration” to the title company, who will cause the First Development Parcel Declaration to be recorded in Senior Priority against the parcel(s) and/or condominium(s) described in such First Development Parcel Declaration. The First Development Parcel Declaration shall ensure that the required number of Affordable Housing Units applicable to the First Development Parcel (as provided on Exhibit “D” attached hereto, as the same may be amended or updated with the mutual approval of Resolution No. XXXX
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the City and the Project Wide Developer) will be owned, operated, leased, rented, maintained, and occupied as Affordable Housing Units for the term of the First Development Parcel Declaration.
At the time the First Development Parcel Declaration is executed, the City shall execute a release of this Agreement for all of the parcel(s) and/or condominium(s) comprising the First Development Parcel. Such release shall be in the form attached as Exhibit “C” hereto. (b) Subsequent Development Parcel Declaration. Prior to the issuance of Building Permits for any Market Rate Units in any Subsequent Development Parcel, Project Wide Developer shall, to the extent a previously recorded Declaration does not already address the Affordable Housing Units applicable to such Subsequent Development Parcel, cause a parcel(s) or condominium(s) of real property sufficient to accommodate construction of the Affordable Housing Units applicable to such Subsequent Development Parcel to be encumbered by a Declaration in Senior Position. At the time a Declaration for such Subsequent Development Parcel is executed, the City shall execute a release of this Agreement for all of the parcel(s) and/or condominium(s) comprising such Subsequent Development Parcel. Such release shall be in the form attached as Exhibit “C” hereto.
(c) Restrictions. Each Declaration shall be in substantially the same form as the declarations set forth in Exhibit “B-1” for the non-age restricted buildings and Exhibit “B-2” for the age restricted building and shall provide for the bedroom mix of the Affordable Housing Units on each Development Parcel. Each Declaration shall also restrict the occupancy, and rents paid by the Targeted Households in accordance with the provisions of the Guidelines or as otherwise allowed by law.
6. Recordation. This Agreement shall be recorded against the Property in the Office of the County Recorder for the County of San Mateo in Senior Position; but subject to the release provisions of Sections 5(a) and 5(b) above and Section 16 below.
7. Indemnity. Project Wide Developer agrees to indemnify and hold harmless the City, and any and all of its members, officers, agents, servants, or employees (the “Indemnitees”) from and against all claims, liens, claims of lien, losses, damages, costs, and expenses, whether direct or indirect, arising in any way from the default by Project Wide Developer in the performance of its obligations under this Agreement; provided, however, that Project Wide Developer shall not be required to indemnify, defend or hold harmless any of the Indemnitees from claims, losses, damages, costs and expenses related to the negligence or willful misconduct of any of the Indemnitees.
8. Marketing Requirements. Project Wide Developer shall follow any applicable marketing requirements and procedures of the Guidelines.
9. Breach/Default. If Project Wide Developer is in material breach of the terms set forth in this Agreement and Project Wide Developer does not take action to correct such violation within 60 days of written notice of such failure from the City (or 180 days in the event such violation cannot be cured within 60 days and Project Wide Developer is diligently pursuing such cure), the City shall be entitled to all of its rights and remedies set forth herein and at law and in equity.
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10. Covenants to Run With the Land. Project Wide Developer agrees that all of its obligations hereunder shall constitute covenants, which shall run with the land and shall be binding upon the Property and upon every person having any interest therein at any time and from time to time during the term of this Agreement. Further, Project Wide Developer agrees that, if a court of competent jurisdiction determines that the obligations set forth herein do not qualify as covenants running with the land, they shall be enforced as equitable servitudes.
11. Successors and Assigns. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto, and their respective heirs, successors and assigns. Project Wide Developer shall not sell, transfer or otherwise dispose of the Property or any legal parcel or condominium comprising a portion thereof, unless: (i) the proposed transferee enters into a Declaration as described in Section 5 hereof or (ii) the proposed transferee shall have executed and delivered to the City an express written assumption of all of Project Wide Developer’s obligations under this Agreement as they relate to such acquired real property, on a form substantially similar to the attached Exhibit “E”. Upon any sale of any portion of the Property permitted by the preceding sentence, with respect solely to the transferred property, Project Wide Developer and any Property not so conveyed will be released from further obligations relating to such transferred property (and under any Declaration or other documentation related hereto). The foregoing restrictions on sale and transfer shall not apply to the granting of easements, rights-of-way, and similar conveyances in connection with the development of the Project which are not in the nature of a sale of one or more legal parcels or condominiums. Upon assignment and assumption by a successor entity, as approved by the City, Project Wide Developer shall be released from all further responsibility under the terms of this Agreement as to the subject parcel(s) and/or condominium(s) so conveyed.
The successors, heirs and assigns of the Project Wide Developer shall enter into and execute such other and further documents as the City shall reasonably require, as from time to time, may be needed to effectuate the affordable housing requirements of the Guidelines or as otherwise required or allowed by law.
12. Standing, Equitable Remedies; Cumulative Remedies. Project Wide Developer expressly agrees and declares that the City and/or its successors shall be the proper parties and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such a default may have actually been suffered by some other person or by the public at large. Nothing in this subparagraph, and no recovery to the City, shall restrict or limit the rights or remedies of persons or entities other than the City, against Project Wide Developer in connection with the same or related acts by Project Wide Developer. Neither Project Wide Developer, nor any tenant or occupant of the Property, shall have any claim or right of action against the City based on any alleged failure of the City to perform or enforce the terms of this Agreement, except that Project Wide Developer may reasonably rely upon City’stenant eligibility determination, and provided further that Project Wide Developer may pursue a claim of specific performance against the City in the event the City improperly withholds a release of a Development Parcel from this Agreement after a Declaration has been recorded against such Development Parcel according to the terms of this Agreement.
13. Certificate of Compliance. The City shall provide Project Wide Developer upon request with recordable evidence that a particular parcel(s) of real property or condominium(s) within the Resolution No. XXXX
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Project has satisfied all applicable requirements under this Agreement, or has been developed in a manner which makes this Agreement inapplicable thereto, and which instrument shall have the effect of making this Agreement no longer a lien or encumbrance upon title to such parcel(s) or condominium(s).
14. Term. This Agreement and the covenants and restrictions contained herein shall, subject to the provisions above relating to release hereof, remain in effect as a lien and charge against each legal parcel or condominium within the Property until the date of recordation of the final Declaration for the final Subsequent Development Parcel for the Property, at which time this Agreement shall be terminated.
15. Severability. In the event that any provision or covenant of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then it shall be severed from the remaining portions of this Agreement which shall remain in full force and effect.
16. Release of Non-Residential Parcels. This Agreement is entered into to provide for the development of Affordable Housing Units on the six (6) Development Parcels containing Affordable Housing Units. Those portions of the Project not containing the Development Parcels shall be released from this Agreement upon the earlier of (i) the recording of a parcel or final map for said portions of the Project not containing the six (6) Development Parcels, which map substantially conforms to the Willow Village Master Plan or (ii) the issuance of a demolition or building permit for the development of any portion of the Project not containing the six (6) Development Parcels. Such release shall be in the form attached as Exhibit “C” hereto.
17. General Provisions.
(a) Integration. The undersigned, and each of them, acknowledge and represent that no promise or inducement not expressed in this Agreement has been made in connection with this Agreement. This Agreement contains the entire agreement and understanding between the parties as to its subject matter.
(b) Waiver and Amendment. No provision of this Agreement, or breach of any provision, can be waived except in writing. Waiver of any provision or breach shall not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or other provision.
Except as otherwise provided herein, this Agreement may be amended, modified or rescinded only in writing signed by Project Wide Developer and the City. (c) Time of Essence. Time is expressly declared to be of the essence in this Agreement, and of every provision in which time is an element.
(d) Captions. Paragraph titles and captions contained in this Agreement are inserted as a matter of convenience and for reference, and are not a substantive part of this Agreement. (e) Further Assurances. The parties each agree to sign any additional documents, which are reasonably necessary to carry out this Agreement or to accomplish its intent.
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(f) Benefit and Burden. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns. This Agreement is not intended to benefit any person other than the parties hereto. (g) Governing Law. This Agreement has been entered into in the State of California, and shall be interpreted and enforced under California law. (h) Attorneys’ Fees. The prevailing party in any action, including, but not limited to, arbitration, a petition for writ of mandate, and/or an action for declaratory relief, brought to enforce, interpret or reform the provisions of this Agreement shall be entitled to reasonable attorneys’ fees and costs (including, but not limited to, experts’ fees and costs and trustees’ fees, and including “costs” regardless of whether recoverable as such under any statute) incurred in such action.
(i) Signatures. This Agreement may be executed in any number of counterparts and, as so executed, the counterparts shall constitute one and the same Agreement. All individuals signing this Agreement for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the City that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing.
(j) Intentionally Omitted.
(k) Notices. All notices given pursuant to this Agreement or law shall be written.
Notices shall be delivered with all delivery or postal charges prepaid. Notices may be given personally; by electronic mail; by United States first-class mail; by United States certified or registered mail; or by other recognized overnight service. Notices shall be deemed received on the date of personal delivery transmission; on the date shown on a signed return receipt or acknowledgment of delivery; or, if delivery is refused or notice is sent by regular mail, seventytwo (72) hours after deposit thereof with the U.S. Postal Service. Until a party gives notice of a change, notices shall be sent to:
If to the City: City of Menlo Park
701 Laurel Street
Menlo Park, CA 94025
Attention: City Clerk
E-mail:
If to Project Wide Developer: Peninsula Innovation Partners, LLC 1 Hacker Way
Menlo Park, CA 94025
Attn: ________________
E-mail:
With a copy to: Cox, Castle & Nicholson LLP
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50 California Street, Suite 3200
San Francisco, CA 94111
Attn: Ofer Elitzur, Esq.
E-mail: [email protected]
(l) Mortgagees Protection. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any permitted deed of trust recorded on the Property provided, however, that any subsequent owner of the Property shall be bound by the covenants, conditions, restrictions, limitations and provisions of this Agreement, whether such owner’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise. (m) Actions of Parties to be Reasonable. Each party to this Agreement agrees that it shall act reasonably in granting or withholding any consent or approval required by this Agreement and/or any other legal document executed in connection with this Agreement or in connection with the development of the Project.
(n) Estoppel Certificate. Upon the request of the Project Wide Developer, the City shall, through the City Manager, provide Project Wide Developer and any potential lender or purchaser, with an estoppel certificate by which the City confirms that neither Project Wide Developer nor the City is in default hereof (or setting forth such defaults) and confirming such other factual matters as Project Wide Developer or such potential lender or purchaser may reasonably request and the addressees of such estoppel certificates shall be entitled to rely upon the information contained therein.
[This Space Intentionally Left Blank]
Resolution No. XXXX
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IN WITNESS WHEREOF, the Project Wide Developer has caused this Agreement to be executed as of the date first written above.
PROJECT WIDE DEVELOPER:
PENINSULA INNOVATION PARTNERS, LLC, a Delaware limited liability company By:_____________________________________
Name: ______________________________
Its:______________________________________
By:_____________________________________
Name: ______________________________
Its:______________________________________
CITY:
CITY OF MENLO PARK, a California municipal corporation
By: _____________________________________
Name:
Title: City Manager
ATTEST:
____________________________________
City Clerk
Date: _____________________
Resolution No. XXXX
080937\15889901v8 12
ACKNOWLEDGMENT
State of California )
)
County of Mateo )
On ____________________, 20___ before me, _________________________________, personally appeared _____________________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _________________________________ (Seal)
Resolution No. XXXX
080937\15889901v8 13
ACKNOWLEDGMENT
State of California )
)
County of San Mateo )
On ____________________, 20___ before me, _________________________________, personally appeared _____________________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _________________________________ (Seal)
Resolution No. XXXX
080937\15889901v8 14
Exhibit “A”
Property Description
Resolution No. XXXX
080937\15889901v8 15
Exhibit “B-1”
Pro Forma Affordable Regulatory Agreement and
Declaration of Restrictive Covenants
Resolution No. XXXX
080937\15889901v8 16
Exhibit “B-2”
Pro Forma Affordable Regulatory Agreement and
Declaration of Restrictive Covenants (Age-Restricted)
Resolution No. XXXX
080937\15889901v8 17
Exhibit “C”
Pro Forma Partial Release
Resolution No. XXXX
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Exhibit “D”
Phase 1
Market Rate Units Affordable Units
Parcel 2 293 34
Parcel 3 376 43
Parcel 6 158 20
Parcel 7 1 (manager’s unit) 119
Phase 2
Market Rate Units Affordable Units
Parcel 4 378 62
Parcel 5 212 34
Resolution No. XXXX
080937\15889901v8 19
Exhibit “E”
Pro Forma Assignment and Assumption
Resolution No. XXXX
FREYER & LAURETA, INC. Page 1 of 2
EXHIBIT A
LEGAL DESCRIPTION
WILLOW VILLAGE SITE
MENLO PARK, CALIFORNIA
The land referred to is situated in the City of Menlo Park, County of San Mateo, State of California and is described as follows:
BEGINNING at the southwesterly corner of Parcel S; as shown on that certain map entitled “Menlo Industrial Center, City of Menlo Park, San Mateo County, California” filed in the office of the County Recorder of San Mateo County, State of California, on October 1, 1979, in Volume 99 of Maps at Pages 81-83, thence,
North 22°05'00" East, 120.17 feet; thence,
North 24°45'44" East, 143.14 feet; thence,
Along a tangent curve to the left, having a radius of 1,536.52 feet, length of 74.34 feet, and a delta angle of 02°46'19"; thence,
North 22°05'00" East, 864.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,032.50 feet, length of 55.72 feet, and a delta angle of 03°05'31"; thence,
North 25°35'47" East, 2.12 feet; thence,
North 19°19'09" East, 144.98 feet; thence,
North 22°05'00" East, 71.06 feet; thence,
North 84°59'41" East, 1,324.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,1509.17 feet, length of 251.79 feet, and a delta angle of 01°15'13"; thence,
EXHIBIT A Resolution No. XXXX
FREYER & LAURETA, INC. Page 2 of 2
South 10°08'21" West, 1,612.25 feet; thence,
South 88°08'54" West, 1,612.25 feet; thence,
North 79°51'49" West, 668.96 feet to the POINT OF BEGINNING.
Containing 2,577,434.20 square feet (59.17 acres), more or less.
September 30, 2022
Resolution No. XXXX
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Page D-1.371
080937\15890896v5
1 This document is recorded for the benefit of the City of Menlo Park and is entitled to be recorded free of charge in accordance with Sections 6103 and 27383 of the Government Code.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025
BELOW MARKET RATE HOUSING AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(Willow Village Masterplan 1350 Willow Road)
THIS BELOW MARKET RATE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is entered into as of , 2022, by and between the City of Menlo Park, a California municipal corporation (“City”), and ___________________, a ______________ (“Owner”). City and Owner may be referred to individually as a “Party” or collectively as the “Parties” in this Agreement.
RECITALS
A. Owner is the owner of that certain real property located at _________________ (APN _______), in the City of Menlo Park, California (“Property”), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference.
B. [Peninsula Innovation Partners, LLC] (“Project Wide Developer”) applied to demolish an existing office, research and development and industrial site (the “Main Willow Village Project Site”) and to comprehensively redevelop the project wide site with up to 1.6 million square feet of office space (inclusive of meeting and collaboration space and accessory uses), up to 200,000 square feet of retail uses, a 193 room hotel (approximately 172,000 square feet in size), and up to 1,730 residential dwelling units, as well as publicly accessible open space and landscaping as part of a master planned mixed-use project (the “Willow Village Project”), [which is subject to that certain Project Wide Affordable Housing Agreement (“Project Wide Affordable Housing Agreement”) between Project Wide Developer and City, dated as of [______________], 2022. The Property is part of Phase [___] as described in the Project Wide Affordable Housing Agreement.]
C. [The Project Wide Developer has transferred the Property to the Owner, and the City has released the Property from the Project Wide Affordable Housing Agreement pursuant to the terms of the Project Wide Affordable Housing Agreement, in conjunction with the recording of this Agreement.]
EXHIBIT B1 Resolution No. XXXX
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2 D. The Willow Village Project re-subdivided the Main Willow Village Project Site into ____ new legal parcels shown on the proposed Vesting Tentative Map in Exhibit ___ of the DA. Amongst those new parcels is parcel _____, which is approved for residential building [___] with a new multifamily residential project with [_____] rental units, as well as associated open space, circulation, parking and infrastructure improvements. (“Project”), of which [_______] (___) rental units (“BMR Units”) shall be affordable to below market rate households as follows:
[______] (__) low income units (“Low Income Units”) and [________] (__) moderate income units (“Moderate Income Units”). The allocation of BMR Units across the unit-sizes in the Project is more particularly described on Exhibit B, attached hereto and incorporated herein by this reference.
E. On _____________, 2022, after a duly noticed public hearing, and on the recommendation of the Housing Commission, the Plannin Commission, and the City Council certified the environmental impact report and granted General Plan Circulation Element and Zoning Map amendments, rezoning, conditional development permit, development agreement, vesting tenantive map, and below market rate (BMR) housing agreement for the Project (“Project Approvals”). The Project Approvals require the Project Wide Developer to provide BMR Units in accordance the Project Wide Affordable Housing Agreement. In accordance with the Menlo Park Municipal Code Chapter 16.96, the Below Market Rate Housing Program (“BMR Ordinance”), and the Below Market Rate Housing Program Guidelines (“Guidelines”), Owner is required to execute and record an approved BMR Housing Agreement as a condition precedent to the issuance of a building permit for the Project. This Agreement is intended to satisfy that requirement.
F. As required by the Project Wide Affordable Housing Agreement, and pursuant to this Agreement, Owner has agreed to observe all the terms and conditions set forth below for purposes of development and operation of the BMR Units. This Agreement will ensure the Project’s continuing affordability.
NOW, THEREFORE, the Parties hereto agree as follows. The recitals are incorporated into this Agreement by this reference.
1. CONSTRUCTION OF THE IMPROVEMENTS.
1.1 Construction of the Project. Owner agrees to construct the Project in accordance with the Menlo Park Municipal Code and all other applicable state and local building codes, development standards, ordinances and zoning ordinances.
1.2 City and Other Governmental Permits. Before commencement of the Project, Owner shall secure or cause its contractor to secure any and all permits which may be required by the City or any other governmental agency affected by such construction, including without limitation building permits. Owner shall pay all necessary fees and timely submit to the City final drawings with final corrections to obtain such permits; City staff will, without incurring liability or expense therefore, process applications in the ordinary course of business for the issuance of building permits and certificates of occupancy for construction that meets the requirements of the Menlo Park Municipal Code, and all other applicable laws and regulations.
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3 1.3 Compliance with Laws. Owner shall carry out the design, construction and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the Menlo Park Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
2. OPERATION OF THE BMR UNITS
2.1 Affordability Period. This Agreement shall remain in effect and the Property shall be subject to the requirements of this Agreement from the date that the City issues a final certificate occupancy for the Project (the “Effective Date”) until the 55th anniversary of such Effective Date.
The duration of this requirement shall be known as the “Affordability Period.”
2.2 Maintenance. Owner shall comply with every condition of the Project Approvals applicable to the Project and shall, at all times, maintain the Project and the Property in good repair and working order, reasonable wear and tear excepted, and in a safe and sanitary condition, and from time to time shall make all necessary and proper repairs, renewals, and replacements to keep the Project and the Property in a good, clean, safe, and sanitary condition.
2.3 Monitoring and Recordkeeping. Throughout the Affordability Period, Owner shall comply with all applicable recordkeeping and monitoring requirements set forth in the Guidelines. City shall have the right to inspect the books and records of Owner and its rental agent or bookkeeper upon reasonable notice during normal business hours. Representatives of the City shall be entitled to enter the Property, upon at least 48-hour prior written notice, which can be provided via email, to monitor compliance with this Agreement, to inspect the records of the Project with respect to the BMR Units, and to conduct, or cause to be conducted, an independent audit or inspection of such records. Owner agrees to cooperate with the City in making the Property available for such inspection or audit. Owner agrees to maintain records in businesslike manner, and to maintain such records for Affordability Period.
2.4 Non-Discrimination Covenants. Owner covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, familial status, disability, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. a. In deeds, the following language shall appear:
(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no Resolution No. XXXX
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4 discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) 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 paragraph (1).
b. In leases, the following language shall appear:
(1) The lessee herein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) 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 paragraph (1).
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5 c. In contracts pertaining to management of the Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) 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 paragraph (1).
2.5 Subordination. This Agreement shall be recorded in the Official Records of the County of San Mateo and shall run with the land. The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement for the benefit of lenders providing financing for the Project, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.
3. OPERATION OF THE BMR UNITS
3.1 BMR Units. Owner agrees to make available, restrict occupancy to, and lease not less than [________] (__) BMR Units, inclusive of [________] (__) Low Income Units and [____________] (__) Moderate Income Units, to Qualifying Households, as hereinafter defined, at an affordable rent, pursuant to the terms set forth below. The BMR Units shall be of a quality comparable to all of the other rental units in the Project. The BMR Units shall be initially distributed as set forth in Exhibit C, attached hereto and incorporated herein by this reference.
Thereafter, the location of the individual BMR Units may float to account for the next available unit requirement set forth below and as otherwise necessary for the professional maintenance and operation of the Project provided that the distribution of BMR Units are equitably disbursed throughout the Project and the City’s City Manager or Deputy Director of Community Development (“Deputy Director”) shall be notified of any change or relocation of BMR Units by Owner.
Resolution No. XXXX
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6 3.2 Qualifying Households. For purposes of this Agreement, “Qualifying Households” shall mean those households with incomes as follows:
a. “Low Income Unit”: means units restricted to households with incomes of not more than eighty percent (80%) of AMI. “AMI” means the median income for San Mateo County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision. Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Low Income eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Low Income Unit, and the Owner shall either (1) make the next available unit, which is comparable in terms of size, features and number of bedrooms, a Low Income Unit, or take other actions as may be necessary to ensure that the total required number of Low Income Units are rented to Qualifying Households, or (2) if the tenant’s income does not exceed one hundred twenty (120%) of the maximum income that would qualify the Tenant as a Moderate Income Household, the tenant shall be allowed to remain in the unit at a Moderate Income rent. If the tenant originally qualified as a Low Income Household, then the tenant’s rent will be increased to a Moderate Income rent upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to a Low Income Household. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Low Income Units pursuant to this paragraph.
b. “Moderate Income Unit”: means units restricted to households with incomes of not more than one hundred and twenty percent (120%) of AMI. “AMI” means the median income for San Mateo County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision. Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Moderate Income eligibility requirements, then the tenant shall no longer be qualified.
Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Moderate Income Unit and the Owner shall either (1) make the next available Moderate Income Unit, which is comparable in terms of size, features and number of bedrooms, a Moderate Income Unit, or take other actions as may be necessary to ensure that the total required number of Moderate Income Units are rented to Qualifying Households, or (2) If the tenant’s income does not exceed one hundred twenty (120%) of the maximum income that would qualify the Tenant as a Moderate Income Household, the tenant shall be allowed to Resolution No. XXXX
080937\15890896v5
7 remain in the unit at a Moderate Income rent. If the tenant originally qualified as a Moderate Income Household, then the Tenant shall be notified they are no longer eligible for the BMR unit and tenant’s rent will be increased to a market rate rent upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to a Moderate Income Household. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Moderate Income Units pursuant to this paragraph.
3.3 Income Verification and Annual Report. On or before July 1 of each year, commencing with the calendar year that the first residential unit in the Project is rented to a tenant, and annually thereafter, Owner shall obtain from each household occupying a BMR Unit and submit to the City an income computation and certification form, completed by a tenant of such unit, which shall certify that the income of each Qualifying Household is truthfully set forth in the income certification form, in the form proposed by the Owner and approved by the Deputy Director (“Annual Report”). Owner shall make a good faith effort to verify that each household leasing a BMR Unit meets the income and eligibility restrictions for the BMR Unit by taking the following steps as a part of the verification process: (a) obtain a minimum of the three (3) most current pay stubs for all adults age eighteen (18) or older; (b) obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain the three (3) most current savings and checking account bank statements; (e) obtain an income verification form from the applicant's current employer; (f) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (g) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications shall be available to the City upon request. The Annual Report shall, at a minimum, include the following information for each BMR Unit: unit number, number of bedrooms, current rent and other charges, dates of any vacancies during the reporting period, number of people residing in the unit, total household Gross Income, and lease commencement and termination dates. The Report shall also provide a statement of the owner’s management policies, communications with the tenants and maintenance of the BMR Unit, including a statement of planned repairs to be made and the dates for the repairs.
3.4 Affordable Rent. The maximum Monthly Rent, defined below, chargeable for the BMR Units and paid shall be as follows:
a. “Low Income Household”: shall be 1/12th of 30 percent of 80 percent of the AMI. The Monthly Rent for a Low Income Unit rented to a Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 1.5 persons for a onebedroom unit, 3 persons for a two-bedroom unit and 4.5 persons for a threebedroom unit, unless otherwise approved by the Deputy Director for an unusually large unit with a maximum of two persons per bedroom, plus one. b. “Moderate Income Household”: shall be 1/12th of 30 percent of 120 percent of the AMI. The Monthly Rent for a Moderate Income Unit rented to a Moderate Income Household and paid by the household shall be based Resolution No. XXXX
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8 on an assumed average occupancy per unit of one person per studio unit,
1.5 persons for a one- bedroom unit, 3 persons for a two-bedroom unit and
4.5 persons for a three- bedroom unit, unless otherwise approved by the Deputy Director for an unusually large unit with a maximum of two persons per bedroom, plus one.
For purposes of this Agreement, “Monthly Rent” means the total of monthly payments actually made by the household for (a) use and occupancy of each BMR Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Owner which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, and which are not paid directly by Owner, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or internet service, which reasonable allowance for utilities is set forth in the County of San Mateo’s Utility Allowance Schedule for detached homes, apartments, condominiums and duplexes, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Owner. Pursuant to the Guidelines, in no case shall the Monthly Rent for a BMR Unit exceed 75 percent of comparable market rate rents.
3.5 Agreement to Limitation on Rents. As described in Recital C above, Owner is developing at the bonus level of development, which is a form of assistance authorized by Chapter
4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where a developer has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a developer has so agreed by contract. Owner hereby agrees to limit Monthly Rent as provided in this Agreement in consideration of Owner’s receipt of the assistance and further agrees that any limitations on Monthly Rents imposed on the BMR Units are in conformance with the CostaHawkins Act. Owner further warrants and covenants that the terms of this Agreement are fully enforceable.
3.6 Lease Requirements. No later than 180 days prior to the initial lease up of the BMR Units, Owner shall submit a standard lease form to the City for approval by the Deputy Director or his/her designee. The City shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement and contains all of the provisions required pursuant to the Guidelines. The City's failure to respond to Owner's request for approval of the standard lease form within thirty (30) business days of City's receipt of such lease, shall be deemed City's approval of such lease form. Owner shall enter into a written lease, in the form approved by the City, with each new tenant of a BMR Unit prior to a tenant or tenant household’s occupancy of a BMR Unit. Each lease shall be for an initial term of not less than one year which may be renewed pursuant to applicable local and State laws, and shall not contain any of the provisions which are prohibited pursuant to the Guidelines, local, state and Federal laws.
3.7 Selection of Tenants. Each BMR Unit shall be leased to tenant(s) selected by Owner who meet all of the requirements provided herein, and, to the extent permitted by law, with priority given to those eligible households who either live or work in the City of Menlo Park, or meet at least one of the other preferences identified in the Guidelines. The City’s BMR Resolution No. XXXX
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9 Administrator, on behalf of the City will provide to Owner the names of persons who have expressed interest in renting BMR Units for the purposes of adding such interested persons to Owner’s waiting list, to be processed in accordance with Owner’s customary policies. Owner shall not refuse to lease to a holder of a certificate or a rental voucher under the Section 8 program or other tenant-based assistance program, who is otherwise qualified to be a tenant in accordance with the approved tenant selection criteria.
4. DEFAULT AND REMEDIES
4.1 Events of Default. The following shall constitute an “Event of Default” by Owner under this Agreement: there shall be a material breach of any condition, covenant, warranty, promise or representation contained in this Agreement and such breach shall continue for a period of thirty (30) days after written notice thereof to the Owner without the Owner curing such breach, or if such breach cannot reasonably be cured within such 30 day period, commencing the cure of such breach within such 30 day period and thereafter diligently proceeding to cure such breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of Section 4 of this Agreement, the specific provision shall control.
4.2 Remedies. The occurrence of any Event of Default under Section 4.1 shall give the City the right to proceed with an action in equity to require the Owner to specifically perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions of this Agreement, and the right to terminate this Agreement.
4.3 Obligations Personal to Owner. The liability of Owner under this Agreement to any person or entity is limited to Owner’s interest in the Project, and the City and any other such persons and entities shall look exclusively thereto for the satisfaction of obligations arising out of this Agreement or any other agreement securing the obligations of Owner under this Agreement.
From and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement, any agreement pertaining to any Project or any other agreement securing Owner’s obligations under this Agreement), shall be rendered against Owner, the assets of Owner (other than Owner’s interest in the Project), its partners, members, successors, transferees or assigns and each of their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Agreement or any agreement securing the obligations of Owner under this Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding. No subsequent Owner of the Project shall be liable or obligated for the breach or default of any obligations of Owner under this Agreement on the part of any prior Owner. Such obligations are personal to the person who was the Owner at the time the default or breach was alleged to have occurred and such person shall remain liable for any and all damages occasioned thereby even after such person ceases to be the Owner. Each Owner shall comply with and be fully liable for all obligations the Owner hereunder during its period of ownership of the Project.
4.4 Force Majeure. Subject to the party’s compliance with the notice requirements as set forth below, performance by either party hereunder shall not be deemed to be in default, and Resolution No. XXXX
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10 all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control and without the fault of the party claiming an extension of time to perform, which may include, without limitation, the following: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, acts or omissions of the other party, or acts or failures to act of any public or governmental entity (except that the City’s acts or failure to act shall not excuse performance of the City hereunder). An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within 30 days of the commencement of the cause.
4.5 Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover from the other party its costs of suit and reasonable attorneys' fees. This Section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.
4.6 Remedies Cumulative. No right, power, or remedy given by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given by the terms of any such instrument, or by any statute or otherwise.
4.7 Waiver of Terms and Conditions. The City may, in its sole discretion, waive in writing any of the terms and conditions of this Agreement. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition.
4.8 Non-Liability of City Officials and Employees. No member, official, employee or agent of the City shall be personally liable to Owner or any occupant of any BMR Unit, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Owner or its successors, or on any obligations under the terms of this Agreement.
4.9 Cure Rights. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by (i) Owner’s limited partner, or (ii) Owner’s senior mortgage lender, shall be deemed to be a cure by Owner and shall be accepted or rejected on the same basis as if made or tendered by Owner.
5. GENERAL PROVISIONS
5.1 Below Market Rate Guidelines (“Guidelines”). This Agreement incorporates by reference the Guidelines as of the date of this Agreement and any successor sections as the Guidelines may be amended from time to time. In the event of any conflict or ambiguity between this Agreement, the requirements of state and federal fair housing laws and the Guidelines, the Resolution No. XXXX
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11 terms and conditions of this Agreement and the requirements of state and federal fair housing laws shall control.
5.2 Time. Time is of the essence in this Agreement.
5.3 Notices. Unless otherwise indicated in this Agreement, any notice requirement set forth herein shall be deemed to be satisfied three days after mailing of the notice first-class United States certified mail, postage prepaid, or at the time of personal delivery, addressed to the appropriate party as follows:
Owner: [_______________]
[_______________]
[_______________]
Attention: [_______________]
Email: [_______________]
City : City of Menlo Park
701 Laurel Street
Menlo Park, California 94025-3483
Attention: City Manager
Such addresses may be changed by notice to the other party given in the same manner as provided above.
5.4 Successors and Assigns. This Agreement constitutes a covenant and legal restriction on the Property and shall run with the land, provided the Project remains on the Property, and all of the terms, covenants and conditions of this Agreement shall be binding upon Owner and the permitted successors and assigns of Owner.
5.5 Intended Beneficiaries. The City is the intended beneficiary of this Agreement and shall have the sole and exclusive power to enforce this Agreement. It is intended that the City may enforce this Agreement in order to, satisfy its obligations to improve, increase and preserve affordable housing within the City, as required by the Guidelines, and to provide that a certain percentage of new housing is made available at affordable housing cost to persons and families of very low, low and moderate incomes as required by the Guidelines. No other person or persons, other than the City and Owner and their assigns and successors, shall have any right of action hereon.
5.6 Partial Invalidity. If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
5.7 Governing Law. This Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto. The venue for any action shall be the County of San Mateo.
Resolution No. XXXX
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12 5.8 Amendment. This Agreement may not be changed orally, but only by agreement in writing signed by Owner and the City.
5.9 Approvals. Where an approval or submission is required under this Agreement, such approval or submission shall be valid for purposes of this Agreement only if made in writing.
Where this Agreement requires an approval or consent of the City, such approval shall not be unreasonably withheld may be given on behalf of the City by the City Manager or his or her designee. The City Manager or his or her designee is hereby authorized to take such actions as may be necessary or appropriate to implement this Agreement, including without limitation the execution of such documents or agreements as may be contemplated by this Agreement, and amendments which do not substantially change the uses or restrictions hereunder, or substantially add to the costs of the City hereunder.
5.10 Indemnification. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel reasonably approved by City) and hold the City, its heirs, successors and assigns (the “Indemnitees”) harmless from and against any and all demands. losses, claims, costs and expenses, and any other liability whatsoever, including without limitation, reasonable accountants’ and attorneys’ fees, charges and expense (collectively, “Claims”) arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s construction, management, or operation of the Property and the Project or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section
6.10 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 6.10 shall survive the expiration or earlier termination of this Agreement, but only as to claims arising from events occurring during the Affordability Period.
5.11 Insurance Coverage. Throughout the Affordability Period, Owner shall comply with the insurance requirements set forth in Exhibit D, attached hereto and incorporated herein by this reference, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in Exhibit D.
5.12 Transfer and Encumbrance.
5.12.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (other than a lease of a BMR Unit on an approved form under Section 3.6 hereof to a qualified tenant as described in Section 3.7 hereof) (collectively, “Transfer”) of the whole or any part of any BMR Unit, without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by Resolution No. XXXX
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13 the investor limited partner to subsequent limited partners shall be restricted by this provision.
5.12.2 Permitted Transfers. The prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of easements or permits to facilitate development of the Property; or (ii) assignments creating security interests for the purpose of financing the acquisition, construction, or permanent financing of the Project or the Property, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest.
5.12.3 Requirements for Proposed Transfers. The City may, in the exercise of its reasonable discretion, consent to a proposed Transfer of this Agreement and/or a BMR Unit if all of the following requirements are met (provided however, the requirements of this Section
5.12.3 shall not apply to Transfers described in clauses (i) or (ii) of Section 5.12.2. (i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete and manage the Project and to otherwise fulfill the obligations undertaken by the Owner under this Agreement. (ii) The Owner and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the BMR Unit or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Owner under this Agreement arising after the effective date of the Transfer and all obligations of Owner arising prior to the effective date of the Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Owner’s obligations pursuant to conditions, and restrictions set forth in this Agreement. (iv) The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the City’s Authorized Representative, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.
5.13 Effect of Transfer without City Consent. In the absence of specific written agreement by the City, no Transfer of any BMR Unit shall be deemed to relieve the Owner or any other party from any obligation under this Agreement. This Section 5.12 shall not apply to Transfers described in clauses (i) and (ii) of Section 5.12.2.
5.14 Recovery of City Costs. Owner shall reimburse City for all reasonable City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments Resolution No. XXXX
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14 and other legal documents proposed to effect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten (10) days following City’s delivery to Owner of an invoice detailing such costs.
5.15 [Satisfaction of Project Wide Affordable Housing Agreement Requirements.
The City hereby acknowledges and agrees that Owner’s execution and delivery of this Agreement and the performance of Owner’s obligations herein, satisfies Project Wide Developer’s obligation to execute and record a Below Market Rate Housing Agreement and Declaration of Restrictive Covenants against the Property as set forth in Section 5 of the Project Wide Affordable Housing Agreement.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year set forth above.
SIGNATURES ON FOLLOWING PAGE(S).
Resolution No. XXXX
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15 OWNER:
[_______________________], a [___________]
By:
Its:
CITY:
CITY OF MENLO PARK, a California municipal
corporation
By:
City Manager
ATTEST:
By:
City Clerk
List of Exhibits:
Exhibit A: Property Description
Exhibit B: Allocation of the BMR Units
Exhibit C: BMR Unit Locations
Exhibit D: Insurance Requirements
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Exhibit A
Property Description
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Exhibit B
Allocation of BMR Units in the Project
BMR Units Low Moderate
Studio apartment
1 bedroom apartment
2 bedroom apartment
3 bedroom apartment
Total - BMR Units
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Exhibit C
BMR Unit Locations
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Exhibit D
Insurance Requirements
Prior to initiating work on the Project and continuing throughout the Affordability Period, Owner shall obtain and maintain the following policies of insurance and shall comply with all provisions set forth in this Exhibit.
1. General Requirements. Owner shall procure and maintain the following insurance providing coverage against claims for injuries to persons or damages to property that may arise from or in connection with the Project, construction, management, or operation of the Property by the Owner or the Owner’s agents, representatives, employees and contractors, or subcontractors, including the following:
(a) Commercial General Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain a commercial general liability policy in an occurrence policy for protection against all claims arising from injury to person or persons not in the employ of the Owner and against all claims resulting from damage to any property due to any act or omission of the Owner, its agents, or employees in the conduct or operation of the work or the execution of this Agreement. Such insurance shall include products and completed operations liability, blanket contractual liability, personal injury liability, and broad form property damage coverage. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage.
(b) Commercial Automobile Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain insurance for protection against all claims arising from the use of vehicles, owned, hired, non-owned, or any other vehicle in connection with the Project, construction, operation or management of the Property. Such insurance shall cover the use of automobiles and trucks on and off the site of the Property. Coverage shall be at least as broad as Insurance Services Office covering Commercial Automobile Liability, any auto, owned, non-owned and hired auto.
(c) Workers' Compensation Insurance: The Owner (and the general partners thereof) shall furnish or cause to be furnished to City evidence satisfactory to City that Owner (and the general partners thereof), and any contractor with whom Owner has contracted for the performance of work on the Property or otherwise pursuant to this Agreement, shall maintain Workers' Compensation Insurance as required by the State of California and Employer’s Liability Insurance. (d) Builder’s Risk: Upon commencement of any construction work on the Property, Owner and all contractors working on behalf of Owner shall maintain a policy of builder's all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming City as loss payee as its interests may appear. (e) Professional Liability/Errors and Omissions: Owner shall require any architects, engineers, and general contractors working on the Property to maintain Professional Liability/Errors and Omissions insurance with limits not less than Two Million Dollars ($2,000,000) each claim. Certificates evidencing this coverage must reference both the Owner and the Indemnitees. If the professional liability/errors and omissions insurance is written on a Resolution No. XXXX
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claims made form: (i) the retroactive date must be shown and must be before the Effective Date, (ii) insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of Project construction, and (iii) if coverage is cancelled or non-renewed and not replaced with another claims made policy form with a retroactive date prior to the Effective Date, Owner must purchase, or require the provision of, extended period coverage for a minimum of three (3) years after completion of construction.
(f) Property: Owner shall maintain property insurance covering all risks of loss, including earthquake and flood (if required) for 100% of the replacement value of the Project with deductible, if any, in an amount acceptable to City, naming City as loss payee as its interests may appear.
2. Minimum Limits; Adjustments. Insurance shall be maintained with limits no less than the following:
(a) Commercial General Liability and Property Damage: $2,000,000 per occurrence and $5,000,000 annual aggregate for bodily injury, personal injury and property damage; provided however, with City’s advance written approval, subcontractors may maintain liability coverage with limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate. (b) Products and Completed Operations: $3,000,000 per occurrence/aggregate. (c) Commercial Automobile Liability: $2,000,000 combined single limit. (d) Employer’s Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or claim.
If the policy provides coverage on a claims-made basis, the retroactive date must be shown and must be before the date of the Agreement or the beginning of the contract work.
Coverage limits, and if necessary, the terms and conditions of insurance, shall be reasonably adjusted from time to time (not less than every five (5) years after the Effective Date nor more than once in every three (3) year period) to address changes in circumstance, including, but not limited to, changes in inflation and the litigation climate in California. City shall give written notice to Owner of any such adjustments, and Owner shall provide City with amended or new insurance certificates or endorsements evidencing compliance with such adjustments within thirty (30) days following receipt of such notice.
3. Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be Resolution No. XXXX
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declared to, and approved by, the City. Payment of all deductibles and self-insured retentions will be the responsibility of Owner. If the City determines that such deductibles or retentions are unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-insurance retentions as respects the Indemnitees or Owner shall procure a bond guaranteeing payment of losses and related investigations, claims administration and defense.
4. Additional Requirements. The required general liability and automobile policies shall contain, or be endorsed to contain, the following provisions:
(a) The Indemnitees are to be covered as Additional Insureds as respects: liability arising out of activities performed by or on behalf of the Owner; products and completed operations of the Owner; premises owned, occupied or used by the Owner; or automobiles owned, leased, hired or borrowed by the Owner. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. Additional insured endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010 10 01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
(b) All insurance shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees shall be excess of the Owner’s/contractor’s insurance and shall not contribute with it. (c) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the Indemnitees. (d) The Owner’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. (e) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City.
(f) If any insurance policy or coverage required hereunder is canceled or reduced, Owner shall, within five (5) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, City may, without further notice and at its option, procure such insurance coverage at Owner’s expense, and Owner shall promptly reimburse City for such expense upon receipt of billing from City. (g) Owner agrees to waive subrogation rights for commercial general liability, automobile liability and worker’s compensation against Indemnitees regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with any construction on the Property to do likewise. Each insurance policy shall contain a Resolution No. XXXX
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waiver of subrogation for the benefit of City. If any required insurance is provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs are included in such annual aggregate limit, such annual aggregate limit shall be three times the applicable occurrence limits specified above. (h) It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirement and/or limits shall be available to the additional insured. Furthermore, the requirement 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. For all liability insurance required by this Agreement, Owner (and Owner’s contractors, as applicable) shall obtain endorsements that name the Indemnitees as additional insured in the full amount of all applicable policies, notwithstanding any lesser minimum limits specified in this Agreement. This Agreement requires Owner (and Owner’s contractors, as applicable) to obtain and provide for the benefit of the Indemnitees, additional insured coverage in the same amount of insurance carried by Owner (or Owner’s contractors, as applicable), but in no event less than the minimum amounts specified in this Agreement. In the event that Owner (or Owner’s contractors as applicable) obtains insurance policies that provide liability coverage in excess of the amounts specified in this Agreement, the actual limits provided by such policies shall be deemed to be the amounts required under this Agreement. Without limiting the foregoing, the limits of liability coverage specified in this Agreement are not intended, nor shall they operate, to limit City’s ability to recover amounts in excess of the minimum amounts specified in this Agreement. (i) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. 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 before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. Acceptability of Insurers. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII.
6. Verification of Coverage. Prior to the Effective Date of this Agreement, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (a), (b), (c), and (e) of Section 1 above, duly executed endorsements evidencing the Indemnitees’ status as additional insured, and all other endorsements and coverage required hereunder pertaining to such coverage. Prior to commencement of any construction work on the Property, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (d) and (g) of Section 1 above. Prior to City’s issuance of a final certificate of occupancy or equivalent for the Project, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraph (f) of Section 1 above. Owner shall Resolution No. XXXX
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furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf.
7. Insurance Certificates and Endorsements. Owner shall submit to the City all of the necessary insurance documents, including the applicable amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of required Owner policies listing all required policy endorsements to the City. Insurance Certificates and Endorsements are to be received and approved by the City within the time periods specified in Section 6 above. Should Owner cease to have insurance as required at any time, all work by Owner pursuant to this Agreement shall cease until insurance acceptable to the City is provided. Upon City’s request, Owner shall, within thirty (30) days of the request, provide or arrange for the insurer to provide to City, complete certified copies of all insurance policies required under this Agreement. City’s failure to make such request shall not constitute a waiver of the right to require delivery of the policies in the future.
Resolution No. XXXX
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1 This document is recorded for the benefit of the City of Menlo Park and is entitled to be recorded free of charge in accordance with Sections 6103 and 27383 of the Government Code.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025
BELOW MARKET RATE HOUSING AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(Willow Village Masterplan 1350 Willow Road)
THIS BELOW MARKET RATE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is entered into as of , 2022, by and between the City of Menlo Park, a California municipal corporation (“City”), and [______________________], a [_______________] (“Owner”). City and Owner may be referred to individually as a “Party” or collectively as the “Parties” in this Agreement.
RECITALS
A. Owner is the owner of that certain real property located at _________________ (APN _______), in the City of Menlo Park, California (“Property”), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference.
B. [Peninsula Innovation Partners, LLC] (“Project Wide Developer”) applied to demolish an existing office, research and development and industrial site (the “Main Willow Village Project Site”) and to comprehensively redevelop the project wide site with up to 1.6 million square feet of office space (inclusive of meeting and collaboration space and accessory uses), up to 200,000 square feet of retail uses, a 193 room hotel (approximately 172,000 square feet in size), and up to 1,730 residential dwelling units, as well as publicly accessible open space and landscaping as a part of a master planned mixed-use project (the “Willow Village Project”), [which is subject to that certain Project Wide Affordable Housing Agreement (“Project Wide Affordable Housing Agreement”) between Project Wide Developer and City, dated as of [______________], 2022. The Property is part of Phase [___] as described in the Project Wide Affordable Housing Agreement.]
C. [The Project Wide Developer has transferred the Property to the Owner, and the City has released the Property from the Project Wide Affordable Housing Agreement pursuant to the terms of the Project Wide Affordable Housing Agreement, in conjunction with the recording of this Agreement.]
EXHIBIT B2 Resolution No. XXXX
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2 D. The Willow Village project re-subdivided the Main Willow Village Project Site into [___] new legal parcels shown on the proposed Vesting Tentative Map in Exhibit [___] of the Development Agreement. Amongst those new parcels is parcel [_____], which is approved for residential building RS7 with a new multifamily senior residential project with [one hundred twenty (120)] rental units, as well as associated open space, circulation, parking and infrastructure improvements. (“Project”), of which one hundred nineteen (119) rental units (“BMR Units”) shall be affordable to below market rate households as follows: eighty two (82) extremely low income units (“Extremely Low Income Units”) and thirty seven (37) very low income units (“Very Low Income Units”), and one (1) unit shall be a manager’s unit. The allocation of BMR Units across the unit-sizes in the Project is more particularly described on Exhibit B, attached hereto and incorporated herein by this reference.
E. On _____________, 2022, after a duly noticed public hearing, and on the recommendation of the Housing Commission, the Planning Commision, and the City Council certified the environmental impact report and granted General Plan Circulation Element and Zoning Map amendments, rezoning, conditional development permit, development agreement, vesting tenantive map, and below market rate (BMR) housing agreement for the Project (“Project Approvals”). The Project Approvals require the Project Wide Developer to provide BMR Units in accordance the Project Wide Affordable Housing Agreement. In accordance with the Menlo Park Municipal Code Chapter 16.96, the Below Market Rate Housing Program (“BMR Ordinance”), and the Below Market Rate Housing Program Guidelines (“Guidelines”), Owner is required to execute and record an approved BMR Housing Agreement as a condition precedent to approval of the issuance of a building permit for the Project. This Agreement is intended to satisfy that requirement.
F. [As required by the Project Wide Affordable Housing Agreement, and pursuant to this Agreement,] Owner has agreed to observe all the terms and conditions set forth below for purposes of development and operation of the BMR Units. This Agreement will ensure the Project’s continuing affordability.
NOW, THEREFORE, the Parties hereto agree as follows. The recitals are incorporated into this Agreement by this reference.
1. CONSTRUCTION OF THE IMPROVEMENTS.
1.1 Construction of the Project. Owner agrees to construct the Project in accordance with the Menlo Park Municipal Code and all other applicable state and local building codes, development standards, ordinances and zoning ordinances.
1.2 City and Other Governmental Permits. Before commencement of the Project, Owner shall secure or cause its contractor to secure any and all permits which may be required by the City or any other governmental agency affected by such construction, including without limitation building permits. Owner shall pay all necessary fees and timely submit to the City final drawings with final corrections to obtain such permits; City staff will, without incurring liability or expense therefore, process applications in the ordinary course of business for the issuance of Resolution No. XXXX
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3 building permits and certificates of occupancy for construction that meets the requirements of the Menlo Park Municipal Code, and all other applicable laws and regulations.
1.3 Compliance with Laws. Owner shall carry out the design, construction and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the Menlo Park Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
2. OPERATION OF THE BMR UNITS
2.1 Affordability Period. This Agreement shall remain in effect and the Property, shall be subject to the requirements of this Agreement from the date that the City issues a final certificate of occupancy for the Project (the “Effective Date”) until the 55th anniversary of such Effective Date. The duration of this requirement shall be known as the “Affordability Period.”
2.2 Maintenance. Owner shall comply with every condition of the Project Approvals applicable to the Project and shall, at all times, maintain the Project and the Property in good repair and working order, reasonable wear and tear excepted, and in a safe and sanitary condition, and from time to time shall make all necessary and proper repairs, renewals, and replacements to keep the Project and the Property in a good, clean, safe, and sanitary condition.
2.3 Monitoring and Recordkeeping. Throughout the Affordability Period, Owner shall comply with all applicable recordkeeping and monitoring requirements set forth in the Guidelines. City shall have the right to inspect the books and records of Owner and its rental agent or bookkeeper upon reasonable notice during normal business hours. Representatives of the City shall be entitled to enter the Property, upon at least 48-hour prior written notice, which can be provided via email, to monitor compliance with this Agreement, to inspect the records of the Project with respect to the BMR Units, and to conduct, or cause to be conducted, an independent audit or inspection of such records. Owner agrees to cooperate with the City in making the Property available for such inspection or audit. Owner agrees to maintain records in businesslike manner, and to maintain such records for Affordability Period.
2.4 Non-Discrimination Covenants. Owner covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, familial status, disability, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. a. In deeds, the following language shall appear:
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4 (1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) 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 paragraph (1).
b. In leases, the following language shall appear:
(1) The lessee herein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) 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 Resolution No. XXXX
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5 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
c. In contracts pertaining to management of the Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) 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 paragraph (1).
2.5 Subordination. This Agreement shall be recorded in the Official Records of the County of San Mateo and shall run with the land. The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement for the benefit of lenders providing financing for the Project, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.
3. OPERATION OF THE BMR UNITS
3.1 BMR Units. Owner agrees to make available, restrict occupancy to, and lease not less than one hundred nineteen (119) BMR Units, inclusive of eighty two (82) Extremely Low Income Units and thirty seven (37) Very Low Income Units, to Qualifying Households, as hereinafter defined, at an affordable rent, pursuant to the terms set forth below. The BMR Units shall be of a quality comparable to all of the other rental units in the Project. The Project Approvals included a modification to the proportionality requirement to permit exclusively studio and one bedroom BMR Units and a modification to the location requirement to accommodate 119 BMR units at the Project. The BMR Units shall be initially distributed as set forth in Exhibit C, attached hereto and incorporated herein by this reference. Thereafter, the location of the individual BMR Units may float to account for the next available unit requirement set forth below and as otherwise Resolution No. XXXX
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6 necessary for the professional maintenance and operation of the Project provided that the distribution of BMR Units are equitably disbursed throughout the Project and the City’s City Manager or Deputy Director of Community Development (“Deputy Director”) shall be notified of any change or relocation of BMR Units by Owner.
3.2 Qualifying Households. For purposes of this Agreement, “Qualifying Households” shall mean those households with incomes as follows:
a. “Extremely Low Income Unit”: means units restricted to households with incomes of not more than thirty percent (30%) of AMI. “AMI” means the median income for San Mateo County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision.
Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Extremely Low Income eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed an Extremely Low Income Unit, and the Owner shall either (1) make the next available unit, which is comparable in terms of size, features and number of bedrooms, an Extremely Low Income Unit, or take other actions as may be necessary to ensure that the total required number of Extremely Low Income Units are rented to Qualifying Households, or (2) if the tenant’s income does not exceed eighty (80%) of the maximum income that would qualify the Tenant as a Very Low Income Household, the tenant shall be allowed to remain in the unit at a Very Low Income rent. If the tenant originally qualified as an Extremely Low Income Household, then the tenant’s rent will be increased to a Very Low Income rent upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to an Extremely Low Income Household. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Extremely Low Income Units pursuant to this paragraph.
b. “Very Low Income Unit”: means units restricted to households with incomes of not more than fifty percent (50%) of AMI. “AMI” means the median income for San Mateo County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision.
Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Very Low Income eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Very Low Income Unit and the Owner shall either (1) make the next available Very Low Income Unit, which is Resolution No. XXXX
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7 comparable in terms of size, features and number of bedrooms, a Very Low Income Unit, or take other actions as may be necessary to ensure that the total required number of Very Low Income Units are rented to Qualifying Households, or (2) If the tenant’s income does not exceed one hundred twenty (120%) of the maximum income that would qualify the Tenant as a Very Low Income Household, the tenant shall be allowed to remain in the unit at a Very Low Income rent. If the tenant originally qualified as a Very Low Income Household, then the Tenant shall be notified they are no longer eligible for the BMR unit and tenant’s rent will be increased to a market rate rent upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to a Very Low Income Household. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Very Low Income Units pursuant to this paragraph.
3.3 Income Verification and Annual Report. On or before July 1 of each year, commencing with the calendar year that the first residential unit in the Project is rented to a tenant, and annually thereafter, Owner shall obtain from each household occupying a BMR Unit and submit to the City an income computation and certification form, completed by a tenant of such unit, which shall certify that the income of each Qualifying Household is truthfully set forth in the income certification form, in the form proposed by the Owner and approved by the Deputy Director (“Annual Report”). Owner shall make a good faith effort to verify that each household leasing a BMR Unit meets the income and eligibility restrictions for the BMR Unit by taking the following steps as a part of the verification process: (a) obtain a minimum of the three (3) most current pay stubs for all adults age eighteen (18) or older; (b) obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain the three (3) most current savings and checking account bank statements; (e) obtain an income verification form from the applicant's current employer; (f) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (g) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications shall be available to the City upon request. The Annual Report shall, at a minimum, include the following information for each BMR Unit: unit number, number of bedrooms, current rent and other charges, dates of any vacancies during the reporting period, number of people residing in the unit, total household Gross Income, and lease commencement and termination dates. The Report shall also provide a statement of the owner’s management policies, communications with the tenants and maintenance of the BMR Unit, including a statement of planned repairs to be made and the dates for the repairs.
Notwithstanding anything to the contrary contained herein, for so long as the Project is encumbered a Regulatory Agreement from the California Tax Credit Allocation Committee (“Tax Credit Regulatory Agreement”) due to the Project’s receipt of federal/and or state low-income housing tax credits, copies of any annual reporting required by the Tax Credit Regulatory Agreement delivered to the City shall satisfy the requirements of this Section.
3.4 Affordable Rent. The maximum Monthly Rent, defined below, chargeable for the BMR Units and paid shall be as follows:
Resolution No. XXXX
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8 a. “Extremely Low Income Household”: maximum Monthly Rent shall be 1/12th of 30 percent of 30 percent of the AMI. The Monthly Rent for an Extremely Low Income Unit rented to an Extremely Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 1.5 persons for a onebedroom unit, 3 persons for a two-bedroom unit and 4.5 persons for a threebedroom unit, unless otherwise approved by the Deputy Director for an unusually large unit with a maximum of two persons per bedroom, plus one. b. “Very Low Income Household”: maximum Monthly Rent shall be 1/12th of 30 percent of 50 percent of the AMI. The Monthly Rent for a Very Low Income Unit rented to a Very Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 1.5 persons for a one- bedroom unit, 3 persons for a two-bedroom unit and 4.5 persons for a three- bedroom unit, unless otherwise approved by the Deputy Director for an unusually large unit with a maximum of two persons per bedroom, plus one.
c. Notwithstanding anything to the contrary contained herein, if the the Project is encumbered by a Tax Credit Regulatory Agreement and there is a conflict between the provisions of this Agreement and the provisions of such Tax Credit Regulatory Agreement regarding rent, utility allowance, and/or household size appropriate for each unit, the Tax Credit Regulatory Agreement shall govern.
For purposes of this Agreement, “Monthly Rent” means the total of monthly payments actually made by the household for (a) use and occupancy of each BMR Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Owner which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, and which are not paid directly by Owner, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or internet service, which reasonable allowance for utilities is set forth in the County of San Mateo’s Utility Allowance Schedule for detached homes, apartments, condominiums and duplexes, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Owner. Pursuant to the Guidelines, in no case shall the Monthly Rent for a BMR Unit exceed 75 percent of comparable market rate rents.
3.5 Agreement to Limitation on Rents. As described in Recital C above, Owner is developing at the bonus level of development, which is a form of assistance authorized by Chapter
4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where a developer has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a developer has so agreed by contract. Owner hereby agrees to limit Monthly Rent as provided in this Agreement in consideration of Owner’s receipt of the assistance and further agrees that any limitations on Monthly Rents imposed on the BMR Units are in conformance with the CostaResolution No. XXXX
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9 Hawkins Act. Owner further warrants and covenants that the terms of this Agreement are fully enforceable.
3.6 Lease Requirements. No later than 180 days prior to the initial lease up of the BMR Units, Owner shall submit a standard lease form to the City for approval by the Deputy Director or his/her designee. The City shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement and contains all of the provisions required pursuant to the Guidelines. The City's failure to respond to Owner's request for approval of the standard lease form within thirty (30) business days of City's receipt of such lease, shall be deemed City's approval of such lease form. Owner shall enter into a written lease, in the form approved by the City, with each new tenant of a BMR Unit prior to a tenant or tenant household’s occupancy of a BMR Unit. Each lease shall be for an initial term of not less than one year which may be renewed pursuant to applicable local and State laws, and shall not contain any of the provisions which are prohibited pursuant to the Guidelines, local, state and Federal laws.
3.7 Selection of Tenants. Each BMR Unit shall be leased to tenant(s) selected by Owner who meet all of the requirements provided herein, and, to the extent permitted by law, with priority given to those eligible households (i) with a minimum of one household member who is a senior of age [__] and above, and (ii) who either live or work in the City of Menlo Park, or meet at least one of the other preferences identified in the Guidelines. The City’s BMR Administrator, on behalf of the City will provide to Owner the names of persons who have expressed interest in renting BMR Units for the purposes of adding such interested persons to Owner’s waiting list, to be processed in accordance with Owner’s customary policies. Owner shall not refuse to lease to a holder of a certificate or a rental voucher under the Section 8 program or other tenant-based assistance program, who is otherwise qualified to be a tenant in accordance with the approved tenant selection criteria.
4. DEFAULT AND REMEDIES
4.1 Events of Default. The following shall constitute an “Event of Default” by Owner under this Agreement: there shall be a material breach of any condition, covenant, warranty, promise or representation contained in this Agreement and such breach shall continue for a period of thirty (30) days after written notice thereof to the Owner without the Owner curing such breach, or if such breach cannot reasonably be cured within such 30 day period, commencing the cure of such breach within such 30 day period and thereafter diligently proceeding to cure such breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of Section 4 of this Agreement, the specific provision shall control.
4.2 Remedies. The occurrence of any Event of Default under Section 4.1 shall give the City the right to proceed with an action in equity to require the Owner to specifically perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions of this Agreement, and the right to terminate this Agreement.
4.3 Obligations Personal to Owner. The liability of Owner under this Agreement to any person or entity is limited to Owner’s interest in the Project, and the City and any other such Resolution No. XXXX
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10 persons and entities shall look exclusively thereto for the satisfaction of obligations arising out of this Agreement or any other agreement securing the obligations of Owner under this Agreement.
From and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement, any agreement pertaining to any Project or any other agreement securing Owner’s obligations under this Agreement), shall be rendered against Owner, the assets of Owner (other than Owner’s interest in the Project), its partners, members, successors, transferees or assigns and each of their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Agreement or any agreement securing the obligations of Owner under this Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding. No subsequent Owner of the Project shall be liable or obligated for the breach or default of any obligations of Owner under this Agreement on the part of any prior Owner. Such obligations are personal to the person who was the Owner at the time the default or breach was alleged to have occurred and such person shall remain liable for any and all damages occasioned thereby even after such person ceases to be the Owner. Each Owner shall comply with and be fully liable for all obligations the Owner hereunder during its period of ownership of the Project.
4.4 Force Majeure. Subject to the party’s compliance with the notice requirements as set forth below, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control and without the fault of the party claiming an extension of time to perform, which may include, without limitation, the following: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, acts or omissions of the other party, or acts or failures to act of any public or governmental entity (except that the City’s acts or failure to act shall not excuse performance of the City hereunder). An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within 30 days of the commencement of the cause.
4.5 Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover from the other party its costs of suit and reasonable attorneys' fees. This Section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.
4.6 Remedies Cumulative. No right, power, or remedy given by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given by the terms of any such instrument, or by any statute or otherwise.
4.7 Waiver of Terms and Conditions. The City may, in its sole discretion, waive in writing any of the terms and conditions of this Agreement. Waivers of any covenant, term, or Resolution No. XXXX
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11 condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition.
4.8 Non-Liability of City Officials and Employees. No member, official, employee or agent of the City shall be personally liable to Owner or any occupant of any BMR Unit, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Owner or its successors, or on any obligations under the terms of this Agreement.
4.9 Cure Rights. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by (i) Owner’s limited partner, or (ii) Owner’s senior mortgage lender, shall be deemed to be a cure by Owner and shall be accepted or rejected on the same basis as if made or tendered by Owner.
5. GENERAL PROVISIONS
5.1 Below Market Rate Guidelines (“Guidelines”). This Agreement incorporates by reference the Guidelines as of the date of this Agreement and any successor sections as the Guidelines may be amended from time to time. In the event of any conflict or ambiguity between this Agreement, the requirements of state and federal fair housing laws and the Guidelines, the terms and conditions of this Agreement and the requirements of state and federal fair housing laws shall control.
5.2 Time. Time is of the essence in this Agreement.
5.3 Notices. Unless otherwise indicated in this Agreement, any notice requirement set forth herein shall be deemed to be satisfied three days after mailing of the notice first-class United States certified mail, postage prepaid, or at the time of personal delivery, addressed to the appropriate party as follows:
Owner: _______________
_______________
_______________
Attention: ____________
Email: [_______________]
City : City of Menlo Park
701 Laurel Street
Menlo Park, California 94025-3483
Attention: City Manager
Such addresses may be changed by notice to the other party given in the same manner as provided above.
5.4 Successors and Assigns. This Agreement constitutes a covenant and legal restriction on the Property and shall run with the land, provided the Project remains on the Resolution No. XXXX
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12 Property, and all of the terms, covenants and conditions of this Agreement shall be binding upon Owner and the permitted successors and assigns of Owner.
5.5 Intended Beneficiaries. The City is the intended beneficiary of this Agreement and shall have the sole and exclusive power to enforce this Agreement. It is intended that the City may enforce this Agreement in order to, satisfy its obligations to improve, increase and preserve affordable housing within the City, as required by the Guidelines, and to provide that a certain percentage of new housing is made available at affordable housing cost to persons and families of very low, low and moderate incomes as required by the Guidelines. No other person or persons, other than the City and Owner and their assigns and successors, shall have any right of action hereon.
5.6 Partial Invalidity. If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
5.7 Governing Law. This Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto. The venue for any action shall be the County of San Mateo.
5.8 Amendment. This Agreement may not be changed orally, but only by agreement in writing signed by Owner and the City.
5.9 Approvals. Where an approval or submission is required under this Agreement, such approval or submission shall be valid for purposes of this Agreement only if made in writing.
Where this Agreement requires an approval or consent of the City, such approval shall not be unreasonably withheld may be given on behalf of the City by the City Manager or his or her designee. The City Manager or his or her designee is hereby authorized to take such actions as may be necessary or appropriate to implement this Agreement, including without limitation the execution of such documents or agreements as may be contemplated by this Agreement, and amendments which do not substantially change the uses or restrictions hereunder, or substantially add to the costs of the City hereunder.
5.10 Indemnification. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel reasonably approved by City) and hold the City, its heirs, successors and assigns (the “Indemnitees”) harmless from and against any and all demands. losses, claims, costs and expenses, and any other liability whatsoever, including without limitation, reasonable accountants’ and attorneys’ fees, charges and expense (collectively, “Claims”) arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s construction, management, or operation of the Property and the Project or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section
6.10 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 6.10 shall survive the expiration or earlier termination of this Agreement, but only as to claims arising from events occurring during the Affordability Period.
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13 5.11 Insurance Coverage. Throughout the Affordability Period, Owner shall comply with the insurance requirements set forth in Exhibit D, attached hereto and incorporated herein by this reference, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in Exhibit D.
5.12 Transfer and Encumbrance.
5.12.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (other than a lease of a BMR Unit on an approved form under Section 3.6 hereof to a qualified tenant as described in Section 3.7 hereof) (collectively, “Transfer”) of the whole or any part of any BMR Unit, without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by the investor limited partner to subsequent limited partners shall be restricted by this provision.
5.12.2 Permitted Transfers. The prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of easements or permits to facilitate development of the Property; or (ii) assignments creating security interests for the purpose of financing the acquisition, construction, or permanent financing of the Project or the Property, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest.
5.12.3 Requirements for Proposed Transfers. The City may, in the exercise of its reasonable discretion, consent to a proposed Transfer of this Agreement and/or a BMR Unit if all of the following requirements are met (provided however, the requirements of this Section 5.12.3 shall not apply to Transfers described in clauses (i) or (ii) of Section 5.12.2. (i) The proposed transferee demonstrates to the City’s
satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete and manage the Project and to otherwise fulfill the obligations undertaken by the Owner under this Agreement. (ii) The Owner and the proposed transferee shall submit for Resolution No. XXXX
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14 City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the BMR Unit or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request. (iii) The proposed transferee shall expressly assume all of the rights and obligations of the Owner under this Agreement arising after the effective date of the Transfer and all obligations of Owner arising prior to the effective date of the Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Owner’s obligations pursuant to conditions, and restrictions set forth in this Agreement. (iv) The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the City’s Authorized Representative, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.
5.13 Effect of Transfer without City Consent. In the absence of specific written agreement by the City, no Transfer of any BMR Unit shall be deemed to relieve the Owner or any other party from any obligation under this Agreement.
This Section 5.12 shall not apply to Transfers described in Section 5.12.2.
5.14 Recovery of City Costs. Owner shall reimburse City for all reasonable City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten (10) days following City’s delivery to Owner of an invoice detailing such costs.
5.15 [Satisfaction of Project Wide Affordable Housing Agreement Requirements. The City hereby acknowledges and agrees that Owner’s execution and delivery of this Agreement and the performance of Owner’s obligations herein, satisfies Project Wide Developer’s obligation to execute and record a Below Market Rate Housing Agreement and Declaration of Restrictive Covenants against the Property as set forth in Section 5 of the Project Wide Affordable Housing Agreement.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year set forth above.
SIGNATURES ON FOLLOWING PAGE(S).
Resolution No. XXXX
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15 OWNER:
[_________________________], a
[______________]
By:
Its:
CITY:
CITY OF MENLO PARK, a California municipal
corporation
By:
City Manager
ATTEST:
By:
City Clerk
List of Exhibits:
Exhibit A: Property Description
Exhibit B: Allocation of the BMR Units
Exhibit C: BMR Unit Locations
Exhibit D: Insurance Requirements
Resolution No. XXXX
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Exhibit A
Property Description
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Exhibit B
Allocation of BMR Units in the Project
BMR Units Extremely Low Very Low Manager’s Unit
Studio apartment
1 bedroom apartment
2 bedroom apartment 1
Total - BMR Units 82 37
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Exhibit C
BMR Unit Locations
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Exhibit D
Insurance Requirements
Prior to initiating work on the Project and continuing throughout the Affordability Period, Owner shall obtain and maintain the following policies of insurance and shall comply with all provisions set forth in this Exhibit.
1. General Requirements. Owner shall procure and maintain the following insurance providing coverage against claims for injuries to persons or damages to property that may arise from or in connection with the Project, construction, management, or operation of the Property by the Owner or the Owner’s agents, representatives, employees and contractors, or subcontractors, including the following:
(a) Commercial General Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain a commercial general liability policy in an occurrence policy for protection against all claims arising from injury to person or persons not in the employ of the Owner and against all claims resulting from damage to any property due to any act or omission of the Owner, its agents, or employees in the conduct or operation of the work or the execution of this Agreement. Such insurance shall include products and completed operations liability, blanket contractual liability, personal injury liability, and broad form property damage coverage. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage.
(b) Commercial Automobile Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain insurance for protection against all claims arising from the use of vehicles, owned, hired, non-owned, or any other vehicle in connection with the Project, construction, operation or management of the Property. Such insurance shall cover the use of automobiles and trucks on and off the site of the Property. Coverage shall be at least as broad as Insurance Services Office covering Commercial Automobile Liability, any auto, owned, non-owned and hired auto.
(c) Workers' Compensation Insurance: The Owner (and the general partners thereof) shall furnish or cause to be furnished to City evidence satisfactory to City that Owner (and the general partners thereof), and any contractor with whom Owner has contracted for the performance of work on the Property or otherwise pursuant to this Agreement, shall maintain Workers' Compensation Insurance as required by the State of California and Employer’s Liability Insurance. (d) Builder’s Risk: Upon commencement of any construction work on the Property, Owner and all contractors working on behalf of Owner shall maintain a policy of builder's all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming City as loss payee as its interests may appear. (e) Professional Liability/Errors and Omissions: Owner shall require any architects, engineers, and general contractors working on the Property to maintain Professional Liability/Errors and Omissions insurance with limits not less than Two Million Dollars ($2,000,000) each claim. Certificates evidencing this coverage must reference both the Owner and the Indemnitees. If the professional liability/errors and omissions insurance is written on a Resolution No. XXXX
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claims made form: (i) the retroactive date must be shown and must be before the Effective Date, (ii) insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of Project construction, and (iii) if coverage is cancelled or non-renewed and not replaced with another claims made policy form with a retroactive date prior to the Effective Date, Owner must purchase, or require the provision of, extended period coverage for a minimum of three (3) years after completion of construction.
(f) Property: Owner shall maintain property insurance covering all risks of loss, including earthquake and flood (if required) for 100% of the replacement value of the Project with deductible, if any, in an amount acceptable to City, naming City as loss payee as its interests may appear.
2. Minimum Limits; Adjustments. Insurance shall be maintained with limits no less than the following:
(a) Commercial General Liability and Property Damage: $2,000,000 per occurrence and $5,000,000 annual aggregate for bodily injury, personal injury and property damage; provided however, with City’s advance written approval, subcontractors may maintain liability coverage with limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate. (b) Products and Completed Operations: $3,000,000 per occurrence/aggregate. (c) Commercial Automobile Liability: $2,000,000 combined single limit. (d) Employer’s Liability:
Bodily Injury by Accident - $1,000,000 each accident.
Bodily Injury by Disease - $1,000,000 policy limit.
Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or claim.
If the policy provides coverage on a claims-made basis, the retroactive date must be shown and must be before the date of the Agreement or the beginning of the contract work.
Coverage limits, and if necessary, the terms and conditions of insurance, shall be reasonably adjusted from time to time (not less than every five (5) years after the Effective Date nor more than once in every three (3) year period) to address changes in circumstance, including, but not limited to, changes in inflation and the litigation climate in California. City shall give written notice to Owner of any such adjustments, and Owner shall provide City with amended or new insurance certificates or endorsements evidencing compliance with such adjustments within thirty (30) days following receipt of such notice.
3. Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be Resolution No. XXXX
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declared to, and approved by, the City. Payment of all deductibles and self-insured retentions will be the responsibility of Owner. If the City determines that such deductibles or retentions are unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-insurance retentions as respects the Indemnitees or Owner shall procure a bond guaranteeing payment of losses and related investigations, claims administration and defense.
4. Additional Requirements. The required general liability and automobile policies shall contain, or be endorsed to contain, the following provisions:
(a) The Indemnitees are to be covered as Additional Insureds as respects: liability arising out of activities performed by or on behalf of the Owner; products and completed operations of the Owner; premises owned, occupied or used by the Owner; or automobiles owned, leased, hired or borrowed by the Owner. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. Additional insured endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010 10 01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
(b) All insurance shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees shall be excess of the Owner’s/contractor’s insurance and shall not contribute with it. (c) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the Indemnitees. (d) The Owner’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. (e) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City.
(f) If any insurance policy or coverage required hereunder is canceled or reduced, Owner shall, within five (5) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, City may, without further notice and at its option, procure such insurance coverage at Owner’s expense, and Owner shall promptly reimburse City for such expense upon receipt of billing from City. (g) Owner agrees to waive subrogation rights for commercial general liability, automobile liability and worker’s compensation against Indemnitees regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with any construction on the Property to do likewise. Each insurance policy shall contain a Resolution No. XXXX
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waiver of subrogation for the benefit of City. If any required insurance is provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs are included in such annual aggregate limit, such annual aggregate limit shall be three times the applicable occurrence limits specified above. (h) It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirement and/or limits shall be available to the additional insured. Furthermore, the requirement 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. For all liability insurance required by this Agreement, Owner (and Owner’s contractors, as applicable) shall obtain endorsements that name the Indemnitees as additional insured in the full amount of all applicable policies, notwithstanding any lesser minimum limits specified in this Agreement. This Agreement requires Owner (and Owner’s contractors, as applicable) to obtain and provide for the benefit of the Indemnitees, additional insured coverage in the same amount of insurance carried by Owner (or Owner’s contractors, as applicable), but in no event less than the minimum amounts specified in this Agreement. In the event that Owner (or Owner’s contractors as applicable) obtains insurance policies that provide liability coverage in excess of the amounts specified in this Agreement, the actual limits provided by such policies shall be deemed to be the amounts required under this Agreement. Without limiting the foregoing, the limits of liability coverage specified in this Agreement are not intended, nor shall they operate, to limit City’s ability to recover amounts in excess of the minimum amounts specified in this Agreement. (i) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. 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 before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. Acceptability of Insurers. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII.
6. Verification of Coverage. Prior to the Effective Date of this Agreement, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (a), (b), (c), and (e) of Section 1 above, duly executed endorsements evidencing the Indemnitees’ status as additional insured, and all other endorsements and coverage required hereunder pertaining to such coverage. Prior to commencement of any construction work on the Property, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraphs (d) and (g) of Section 1 above. Prior to City’s issuance of a final certificate of occupancy or equivalent for the Project, Owner shall furnish City with certificates of insurance in form acceptable to City evidencing the insurance coverage required under paragraph (f) of Section 1 above. Owner shall Resolution No. XXXX
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furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf.
7. Insurance Certificates and Endorsements. Owner shall submit to the City all of the necessary insurance documents, including the applicable amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of required Owner policies listing all required policy endorsements to the City. Insurance Certificates and Endorsements are to be received and approved by the City within the time periods specified in Section 6 above. Should Owner cease to have insurance as required at any time, all work by Owner pursuant to this Agreement shall cease until insurance acceptable to the City is provided. Upon City’s request, Owner shall, within thirty (30) days of the request, provide or arrange for the insurer to provide to City, complete certified copies of all insurance policies required under this Agreement. City’s failure to make such request shall not constitute a waiver of the right to require delivery of the policies in the future.
Resolution No. XXXX
080937\16327866v1 1
RECORDING REQUESTED BY
Peninsula Innovation Partners, LLC
1 Hacker Way
Menlo Park, California 94025
Attention: ____________
(Space Above for Recorder’s Use)
APN/Parcel ID: ______________
PARTIAL RELEASE
OF
PROJECT WIDE AFFORDABLE HOUSING AGREEMENT
THIS PARTIAL RELEASE OF PROJECT WIDE AFFORDABLE HOUSING AGREEMENT (“Release”) is made and entered into as of the ________ day of ___________________, 202_ by THE CITY OF MENLO PARK, a California municipal corporation (“City”) in favor of PENINSULA INNOVATION PARTNERS, LLC, a Delaware limited liability company (“Project Wide Developer”) and its successors and assigns with reference to the following:
RECITALS
A. Pursuant to that certain Project Wide Affordable Housing Agreement executed by Project Wide Developer and City, recorded on ______________ as Instrument No. ____________ of the County Recorder of San Mateo County, California (the “Instrument”), the City imposed certain covenants, conditions and/or restrictions upon the real property described therein, a portion of which is more particularly described in Exhibit A attached hereto (the “Released Property”).
B. As provided for in [Section 5]/[Section 16] of the Instrument, the City has agreed to release a portion of the real property from the Instrument.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Project Wide Developer hereby agree that the restrictions contained in the Instrument as they relate only to the Released Property are hereby unconditionally and irrevocably released and terminated as to the Released Property. [Remainder of Page Intentionally Left Blank; Signature Pages Follow] EXHIBIT C Resolution No. XXXX
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IN WITNESS WHEREOF, this Release is made and executed as of this ____ day of _______, 202_.
[ALL SIGNATURES TO BE ACKNOWLEDGED]
PROJECT WIDE DEVELOPER:
PENINSULA INNOVATION PARTNERS, LLC, a Delaware limited liability company By:_____________________________________
Name: ______________________________
Its:______________________________________
By:_____________________________________
Name: ______________________________
Its:______________________________________
CITY:
CITY OF MENLO PARK, a California municipal corporation
By: _____________________________________
Name:
Title: City Manager
ATTEST:
____________________________________
City Clerk
Date: _____________________
Resolution No. XXXX
080937\16327866v1 3
CALIFORNIA ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of
County of
On _______________ ___, 2022, before me, ______________________________, a notary public, personally appeared ______________________________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of _____________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
Resolution No. XXXX
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CALIFORNIA ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of
County of
On _______________ ___, 2022, before me, ______________________________, a notary public, personally appeared ______________________________________________, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of _____________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
Resolution No. XXXX
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EXHIBIT A
Resolution No. XXXX
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Exhibit “D”
Phase 1
Market Rate Units Affordable Units
Parcel 2 293 34
Parcel 3 376 43
Parcel 6 158 20
Parcel 7 1 (manager’s unit) 119
Phase 2
Market Rate Units Affordable Units
Parcel 4 378 62
Parcel 5 212 34
EXHIBIT D Resolution No. XXXX
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1 Recording Requested by and
When Recorded Return to:
___________________________
___________________________
___________________________
___________________________
SPACE ABOVE THIS LINE FOR RECORDER’S USE
ASSIGNMENT AND ASSUMPTION AGREEMENT -
PROJECT WIDE AFFORDABLE HOUSING AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”) is made and entered into as of _____________, 20__, by and between ______________________, a _____________ company (“Assignor”), and ______________________, a _____________ company (“Assignee”).
RECITALS
A. Assignor owns that real property located in the City of Menlo Park (“City”), County of San Mateo, State of California, and more particularly described in Exhibit A attached hereto (the “Property”).
B. On the date hereof, Assignee is acquiring approximately __ acres of the Property as more particularly described in Exhibit B attached hereto (the “Assigned Property”).
C. The City and Peninsula Innovation Partners, LLC, a Delaware limited liability company, entered into that certain Project Wide Affordable Housing Agreement dated as of ___________, 202_ and recorded against the Property on _______________, 202_ as Instrument No. _______________ in the San Mateo County Recorder’s Office (the “Project Wide Affordable Housing Agreement”).
D. Assignor desires to assign to Assignee all of Assignor’s rights, duties and obligations under the Project Wide Affordable Housing Agreement with respect to the Assigned Property only (the “Assigned Rights and Obligations”), and Assignee desires to accept and assume Assignor’s rights and obligations under the Project Wide Affordable Housing Agreement with respect to the Assigned Property only (the “Assumed Rights and Obligations”), such assignment and assumption to be effective on the Effective Date (as defined in Section 1.3 below). The Assigned Rights and Obligations and the Assumed Rights and Obligations are referred to collectively herein as the “Assigned Property Rights and Obligations”.
NOW THEREFORE, in consideration of these promises, and of the agreements, covenants and conditions contained in this Agreement and other good and valuable consideration, the parties agree as follows:
EXHIBIT E Resolution No. XXXX
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2 ARTICLE 1
ASSIGNMENT AND ASSUMPTION OF
THE ASSIGNED PROPERTY RIGHTS AND OBLIGATIONS
1.1 Assignment. Assignor assigns to Assignee, as of the Effective Date (as defined in Section 1.3 below), all of Assignor’s rights, title and interest in and to the Assigned Property Rights and Obligations.
1.2 Assumption. As of the Effective Date, Assignee accepts Assignor’s assignment of the Assigned Rights and Obligations and assumes the Assumed Rights and Obligations. From and after the Effective Date, Assignee shall keep and perform all covenants, conditions and provisions of the Project Wide Affordable Housing Agreement relating to the Assigned Property.Effective Date. For purposes of this Agreement, the “Effective Date” shall be the later to occur of (1) the date on which the deed from Assignor to Assignee for the Assigned Property is recorded in the Office of the Recorder of the County of San Mateo; or (2) the date of the execution of this Agreement by all parties; provided, however, that this Agreement shall have no force and effect without the written approval of the City, as evidenced by the full execution by the City’s representatives of the form entitled City of Menlo Park’s Consent, attached hereto as Exhibit C.
RIGHTS AND REMEDIES
2.1 Assignor’s Release; No Assignor Liability or Default for Assignee Breach.
Pursuant to Section 11 of the Project Wide Affordable Housing Agreement, Assignor shall be released from the Project Wide Affordable Housing Agreement with respect to the Assigned Property and the Assumed Rights and Obligations as of the Effective Date. Any default or breach by Assignee under the Project Wide Affordable Housing Agreement following the Effective Date with respect to the Assigned Property or the Assumed Rights and Obligations (“Assignee Breach”) shall not constitute a breach or default by Assignor under the Project Wide Affordable Housing Agreement and shall not result in (a) any remedies imposed against Assignor, or (b) modification or termination of the Project Wide Affordable Housing Agreement with respect to that portion of the Property retained by Assignor after the conveyance of the Assigned Property, if any (the “Assignor Property”). No Assignee Liability or Default for Assignor Breach. As of the Effective Date, any default or breach by Assignor under the Project Wide Affordable Housing Agreement prior to or after the Effective Date (“Assignor Breach”), shall not constitute a breach or default by Assignee under the Project Wide Affordable Housing Agreement, and shall not result in (a) any remedies imposed against Assignee, including without limitation any remedies authorized in the Project Wide Affordable Housing Agreement, or (b) modification or termination of the Project Wide Affordable Housing Agreement with respect to the Assigned Property.
INTENTIONALLY OMITTED
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3 ARTICLE 4
AMENDMENT OF THE PROJECT WIDE AFFORDABLE HOUSING AGREEMENT
4.1 Assignor. Assignor shall not request, process or consent to any amendment to the Project Wide Affordable Housing Agreement that would affect the Assigned Property or the Assigned Property Rights and Obligations without Assignee’s prior written consent, which consent shall not be withheld unreasonably. The foregoing notwithstanding, Assignor may process any amendment that does not affect the Assigned Property, and, if necessary, Assignee shall consent thereto and execute all documents necessary to accomplish said amendment, provided that said amendment does not adversely affect the Assigned Property or any of Assignee’s Assigned Property Rights and Obligations pursuant to the Project Wide Affordable Housing Agreement.Assignee. Assignee shall not request, process or consent to any amendment to the Project Wide Affordable Housing Agreement that would affect the Assignor Property or the Assignor’s remaining rights and obligations pursuant to the Project Wide Affordable Housing Agreement without Assignor’s prior written consent, which consent shall not be withheld unreasonably. The foregoing notwithstanding, Assignee may process any amendment that does not affect the Assignor Property or any of Assignor’s remaining rights and obligations pursuant to the Project Wide Affordable Housing Agreement, and, if necessary, Assignor shall consent thereto and execute all documents necessary to accomplish said amendment.
GENERAL PROVISIONS
5.1 Notices. All notices, invoices and other communications required or permitted under this Agreement shall be made in writing, and shall be delivered either personally (including by private courier) or by nationally recognized overnight courier service to the following addresses, or to such other addresses as the parties may designate in writing from time to time:If to Assignee:
with copies to:
If to Assignor:
with a copies to:
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4 Notices personally delivered shall be deemed received upon delivery. Notices delivered by courier service as provided above shall be deemed received twenty-four (24) hours after the date of deposit. From and after the Effective Date and until further written notice from Assignee to the City pursuant to the terms of the Project Wide Affordable Housing Agreement, Assignee hereby designates as its notice address for notices sent by the City pursuant to Section 17(k) of the Project Wide Affordable Housing Agreement, the notice address set forth above.
5.2 Estoppel Certificates. Within ten (10) days after receipt of a written request from time to time, either party shall execute and deliver to the other, or to an auditor or prospective lender or purchaser, a written statement certifying to that party’s actual knowledge:
(a) that the Project Wide Affordable Housing Agreement is unmodified and in full force and effect (or, if there have been modifications, that the Project Wide Affordable Housing Agreement is in full force and effect, and stating the date and nature of such modifications); (b) that there are no current defaults under the Project Wide Affordable Housing Agreement by the City and either Assignor or Assignee, as the case may be (or, if defaults are asserted, so describing with reasonable specificity) and that there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default; (c) that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect, and stating the date and nature of such modifications); and (d) such other matters as may be reasonably requested.Attorneys’ Fees. In the event of any legal or equitable proceeding in connection with this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable costs and expenses, including without limitation reasonable attorneys’ fees, costs and disbursements paid or incurred in good faith at the arbitration, pre-trial, trial and appellate levels, and in enforcing any award or judgment granted pursuant thereto. No Waiver. No delay or omission by either party in exercising any right, remedy, election or option accruing upon the noncompliance or failure of performance by the other party under the provisions of this Agreement shall constitute an impairment or waiver of any such right, remedy, election or option. No alleged waiver shall be valid or effective unless it is set forth in a writing executed by the party against whom the waiver is claimed. A waiver by either party of any of the covenants, conditions or obligations to be performed by the other party shall not be construed as a waiver of any subsequent breach of the same or any other covenants, conditions or obligations.Amendment. This Agreement may be amended only by a written agreement signed by both Assignor and Assignee, and subject to obtaining the City’s consent.
5.6 Successors and Assigns. This Agreement runs with the land and shall be binding on and inure to the benefit of the parties and their respective successors and assigns. No Joint Venture. Nothing contained herein shall be construed as creating a joint venture, agency, or any other relationship between the parties hereto other than that of assignor and assignee.Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and enforceable to the full extent permitted by law; provided that, if the invalidation or unenforceability would deprive either Assignor or Assignee of material benefits derived from Resolution No. XXXX
080937\16319350v1
5 this Agreement or make performance under this Agreement unreasonably difficult, then Assignor and Assignee shall meet and confer and shall make good faith efforts to modify this Agreement in a manner that is acceptable to Assignor, Assignee and the City. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.Third Party Beneficiaries. Assignor and Assignee acknowledge that the City is a third party beneficiary of the terms and conditions of this Agreement to the extent necessary for City to enforce the terms and conditions of the Project Wide Affordable Housing Agreement.
This Agreement shall not be deemed or construed to confer any rights, title or interest, including without limitation any third party beneficiary status or right to enforce any provision of this Agreement, upon any person or entity other than Assignor, Assignee and the City.Time of the Essence. Time is of the essence in the performance by each party of its obligations under this Agreement.Authority. Each party represents that the individuals executing this Agreement on behalf of such Party have the authority to bind his or her respective party to the performance of its obligations hereunder and that all necessary board of directors’, shareholders’, partners’ and other approvals have been obtained. Term. The term of this Agreement shall commence on the Effective Date and shall expire upon the expiration or earlier termination of the Project Wide Affordable Housing Agreement, subject to any obligations under the Project Wide Affordable Housing Agreement that expressly survive the expiration or termination of the Project Wide Affordable Housing Agreement. Upon the expiration or earlier termination of this Agreement, the parties shall have no further rights or obligations hereunder, except with respect to any obligation to have been performed prior to such expiration or termination or with respect to any default in the performance of the provisions of this Agreement which occurred prior to such expiration or termination or with respect to any obligations which are specifically set forth as surviving this Agreement or the Project Wide Affordable Housing Agreement.Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one document.Default. Any failure by either party to perform any material term or provision of this Agreement shall constitute a default (a) if such defaulting party does not cure such failure within thirty (30) days following written notice of default from the other party, where such failure is of a nature that can be cured within such thirty (30) day period, or (b) if such default is not of a nature that can be cured within such thirty (30) day period, if the defaulting party does not within such thirty (30) day period commerce substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence the curing of such failure. Any notice of default given hereunder shall be given in the same manner as provided in Section 5.1 hereof and shall specify in detail the nature of the failures in performance that the noticing party claims and the manner in which such failure can be satisfactorily cured.
[remainder of page left intentionally blank – signature pages follow] Resolution No. XXXX
080937\16319350v1
6 IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement by proper persons thereunto duly authorized, to be effective as of the Effective Date. “Assignor”
__________________________,
a ____________________________ company
By:
Name:
Title:
By:
Name:
Title:
“Assignee”
__________________________,
a ____________________________ company
By:
Name:
Title:
By:
Name:
Title:
Resolution No. XXXX
080937\16319350v1
7 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On ___________________, before me, _____________________________________________, (insert name and title of the officer),
Notary Public personally appeared _________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________
[Seal]
Resolution No. XXXX
080937\16319350v1
8 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On ___________________, before me, _____________________________________________, (insert name and title of the officer),
Notary Public personally appeared _________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________
[Seal]
Resolution No. XXXX
080937\16319350v1
Exhibit A-1
EXHIBIT A
Description of the Property
(Attached)
Resolution No. XXXX
080937\16319350v1
Exhibit B-1
EXHIBIT B
Description of the Assigned Property
(Attached)
Resolution No. XXXX
080937\16319350v1
Exhibit C-1
EXHIBIT C
CONSENT OF CITY OF MENLO PARK
The City of Menlo Park hereby consents to the assignment and assumption of the Assigned Property Rights and Obligations as set forth in this Agreement and agrees to the terms and conditions set forth herein.
CITY OF MENLO PARK,
a California Municipal corporation
By:
Resolution No. XXXX
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CITY OF MENLO PARK
LOCATION MAP
WILLOW VILLAGE
Scale: 1:9,000 Drawn By: KTP Checked By: CDS Date: 10/24/2022 MidPen High
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Meta Classic
Campus
Meta West Campus
Open Mind
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SFPUC Hetch Hetchy
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City Limits
F1 ATTACHMENT K
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WILLOW VILLAGE CAMPUS DISTRICT TRIP CAP
MONITORING AND ENFORCEMENT POLICY
This policy applies to the Campus District of the Willow Village Project (“Project"). For purposes of this policy, the term "Willow Village Campus District" is intended to include the six office buildings (O1 – O6) and the meeting and collaboration space (MCS) that are proposed as part of the Project. This trip cap does not apply to the Town Square District or Residential/Shopping District of the Willow Village Project.
There are separate trip cap monitoring and enforcement policies for the Classic and Bayfront Campuses that are independently enforced.
DEFINITIONS
Trip - A single vehicle (car, truck, van, shuttle, etc.) arriving at a location in Menlo Park, whose occupant(s)' final destination is the Willow Village Campus District, or a single vehicle departing from a location in Menlo Park, whose occupant(s)' origin is the Willow Village Campus District. Therefore, for example, a roundtrip by a single vehicle arriving at a location in Menlo Park and departing from a location in Menlo Park whose occupant(s)' destination and origin is the Willow Village Campus District equals two trips. A vehicle transiting from either the Classic or Bayfront campuses to Willow Village Campus District or from the Willow Village Campus District to either the Classic or Bayfront campuses is a trip. A single shuttle coming from outside Menlo Park or from the Menlo Park Caltrain station that makes stops at multiple Meta campuses shall only count as one trip against the Daily Trip Cap. Intra-campus shuttle trips that enter or exit the Willow Village Campus District via Willow Road or University Avenue during the peak periods shall count fully against the Peak Hour Trip Caps. Trams, shuttles, or other vehicles utilizing the planned Willow Road undercrossing between the Bayfront Campus and Willow Village Campus District shall not count against either the Daily Trip Cap or the Peak Hour Trip Caps. Trips also do not include bicycles, e-bikes, scooters, or other self-powered modes of travel.
Peak Hour Trip Cap -The maximum number of trips allowed in each hour of the AM Peak Period or the PM Peak Period.
Peak Period - Roadway morning and evening commuter peak travel times:
AM Peak Period - 7:00 AM to 9:00 AM
PM Peak Period - 4:00 PM to 6:00 PM
Daily Trip Cap-The maximum number of trips per day.
Trip Cap - Generally refers to the AM Peak Hour Trip Caps, the PM Peak Hour Trip Caps and the Daily Trip Cap.
TRIP CAP
The Campus District must comply with the Trip Cap and may not exceed the Trip Cap without an application for and approval of a change to the Conditional Development Permit (CDP) for Willow Village.
ATTACHMENT M Page D-1.436
October 20November 22, 2022
If the Trip Cap is exceeded without the appropriate approval, the Campus District Property Owner is in violation of the CDP.
The Trip Cap proposed as part of the Willow Village Campus District is as follows:
AM Peak Period Trip Caps:
o 1,670 trips are permitted between 7:00 a.m. and 8:00 a.m. o 1,670 trips are permitted between 8:00 a.m. and 9:00 a.m. PM Peak Period Trip Caps:
o 1,670 trips are permitted between 4:00 p.m. and 5:00 p.m. o 1,670 trips are permitted between 5:00 p.m. and 6:00 p.m. Daily Trip Cap: 18,237 trips
MONITORING
To monitor compliance with the Trip Cap, traffic counts shall be taken at the Willow Village Campus District. The monitoring shall be done through automated means (e.g., imbedded loop detectors in the pavement in each travel lane or video detection) approved by the City1. All vehicular entrances to the Willow Village Campus District parking facilities, transit hubs, and loading docks shall be included in the monitoring. The Campus District Property Owner shall be solely responsible for paying all costs related to monitoring, including, but not limited to, development, installation, maintenance, and repair of all monitoring equipment.
In addition to monitoring the Campus District parking structures, adjustments will need to be made for Campus District visitors that use the shared parking structures or arrive via ride hailing services (Uber, Lyft, or taxis). Since these activities will occur in areas shared by multiple land uses, they will be accounted for in the reliability (sensitivity) factors described later in this document.
The City reserves the option to require the Campus District Property Owner to monitor neighborhood parking intrusion in the Belle Haven neighborhood, parking on other public streets in the City, or parking at any off site parking lot(s) in Menlo Park (other than any property or properties leased or owned by and occupied by any affiliate of the Campus District Property Owner) if it is observed or suspected that vehicles whose occupant(s)' final destination is the Willow Village Campus District are parking at any of these locations. If the City requires monitoring of these off-site locations and, after investigation, it is confirmed that vehicle occupant(s) whose final destination is the Willow Village Campus District are parking vehicles at these off-site locations (other than a property or properties leased or owned and
1 City approvals related to monitoring equipment will be through the Director of Public Works or his/her designee.
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occupied by any affiliate of the Campus District Property Owner), the trips to these locations will be counted toward the Trip Cap.
Monitoring program details are as follows:
Monitoring Days/Times- Each hour within the AM Peak Period, each hour within the PM Peak Period and total daily trips will be monitored on all non-holiday weekdays. Holidays are those days identified as State holidays in California Government Code Section 6700. Exclusions - TwoThree types of exclusions from the Trip Cap shall be permissible as discussed below:
o Special Events: To account for special events and their effect on trips, the Campus District Property Owner may have up to 25 special event exclusions per year or 25 days on which one or more of the AM Peak Hour Trip Caps, PM Peak Hour Trip Caps or Daily Trip Cap are exceeded, but are not considered violations of the Trip Cap. These special events do not represent typical operating conditions at the Willow Village Campus District. A special event will be defined as an activity that is not typical of the normal operations of the Willow Village Campus District and may involve more than Meta workers. If the Trip Cap has been violated as a result of a special event, the Campus District Property Owner shall provide documentation to the City that a special event took place. Upon City review and approval, in the City's reasonable discretion, an exclusion for a special event shall apply. o Non-event exclusions: For non-special events, the Campus District Property Owner will be allowed three days on which one or more of the AM Peak Hour Trip Caps, PM Peak Hour Trip Caps or Daily Trip Cap are exceeded within a 180-day period without incurring penalties.
These nonevent exclusion days are intended to allow the Campus District Property Owner time to correct the Trip Cap violation. If the Campus District Property Owner exceeds the Trip Cap on more than three days within a 180-day period, then the non-event exclusion is exhausted, and penalties will be imposed for violations of the Trip Cap until compliance is reached for a consecutive 180-day period. Additional violations, if any, within the 180-day compliance period, will re-set the 180-day compliance period. If after a consecutive 180-day period, the Campus District Property Owner remains in full compliance with the Trip Cap, then the three days of non-event exclusions will become available again. o MCS Community Events: The Campus District Property Owner shall be entitled to an exclusion from the Trip Cap for MCS Community Events as defined in Section 5.3.I of the Development Agreement between the Property Owner and the City. Count Equipment - Automated count equipment will be designed and constructed at the Campus District Property Owner’s sole expense to collect data on the number of trips at each of the Willow Village Campus District driveways including parking structures, underground parking, and loading areas, and send the data back to the City offices. The type of count equipment (initial Page D-1.438
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and any future changes) shall be approved by the City, in consultation with the Campus District Property Owner and considering the latest technologies for detection, counting and reporting.
The City shall not unreasonably withhold approval of initial count equipment or any future equipment which achieves the result envisioned in this document. The City shall also approve the count equipment that will be used to monitor off-site locations, if the City exercises the option to require such monitoring. The City shall not unreasonably withhold approval of such additional count equipment.
Initial Calibration Process - Once any new count equipment has been established, a calibration process will be undertaken to determine the reliability and accuracy of the count equipment.
Depending on the type of equipment, the count accuracy can be affected by a number of environmental factors which will need to be confirmed. This calibration process would be conducted prior to issuance of the occupancy permit for the final Willow Village Campus District office building.
Determination of Reliability (Sensitivity) Factor - Based on the calibration analysis, the City and the Campus District Property Owner will agree to a reliability factor for the count stations which will be used to evaluate the count results consistent with what the City and Meta have historically agreed upon for the Classic and Bayfront campus trip cap monitoring. The reliability factor would represent the margin of error inherent in the vehicle counting equipment, address the exclusion of shuttle trips that serve multiple Meta campuses, and address the inclusion of trips to and from the Campus District that do not use the office worker parking (Campus District visitors and ride hailing passengers). Periodically, the reliability factor will be updated using data provided by the Campus District Property Owner or collected by a third-party for the following trip types:
o Worker shuttles serving multiple Meta campuses. The reliability factor would account for single shuttles coming from outside Menlo Park or from the Menlo Park Caltrain station and making stops at multiple campuses. Periodically, the reliability factor, based on reporting from Meta, may be modified to address the anticipated or actual number of shuttles coming from outside Menlo Park or from the Menlo Park Caltrain station making stops as part of one trip at multiple campuses outside of the peak period. At a minimum, Meta shall provide an annual report to the City Transportation Manager for each upcoming year that provides data on the proposed number of shuttle trips so that the City may analyze whether the reliability factor is accurately accounting for single shuttles coming from outside Menlo Park or from the Menlo Park Caltrain station and making stops at multiple campuses. o Willow Road Tunnel Adjustments. The reliability factor will need to be adjusted for vehicles that access the Campus District via the Willow Road tunnel. The trips that use the Willow Road tunnel to access the Willow Village Campus District will not be adding traffic to Willow Road or Bayfront Expressway. These trips may include intraPage D-1.439 October 20November 22, 2022
campus trams, on-demand vehicles, and maintenance and security vehicles. These vehicles may be captured by one of the count locations, but would not count against the trip cap.
Some, or all, of the intra-campus trams will be routed through one or both of the Willow Village Campus District transit hubs. In addition, other Meta transportation vehicles (e.g. Campus Cars or Candidate Cars) may use the Willow Road tunnel and drop off or pick up passenger within the transit hubs. By using the Willow Road tunnel, these trips do not impact the public roadways. Similar to the workers shuttles, any intra-campus trams that use public roads (Willow Road or Bayfront Expressway) will need an adjustment factor to account for these trams passing through both of the Willow Village Campus District transit hubs. Meta will report the tram schedules, track on-demand trips, and provide adjustment factors during the annual reporting to account for these tram and on-demand trips.
o Maintenance and security vehicle trip adjustments. On the Classic and Bayfront campuses, many of the maintenance and security trips travel between origins and destinations within a single campus. These are internal trips to the Meta campuses so they never pass over a monitoring station. In addition, these trips do not travel on public roadways (e.g. Bayfront Expressway and Willow Road). The maintenance and security trips passing through the Willow Road tunnel will avoid travelling on Bayfront Expressway and Willow Road, but they would be counted entering and existing the parking structures or loading areas. Therefore, these trips should not be included in the trip cap. A process will be developed to account for these trips and subtract them from the driveway counts. The adjustment process will be included in the development of the annual reliability factor.
o Campus District Visitor Parking – Visitors to the Campus District will use the Town Square shared parking. The Campus District Property Owner will establish a system to track the Campus District visitor parking activity that is approved by the Public Works Director. The system will need to track the number of daily visitor trips and record the activity and provide the data to the City when the reliability factor is calculated. The shared parking areas will include control systems that will collect data on vehicles using the Town Square parking structure. Campus District visitors will be required to validate their parking when they check-in at the Campus District entrances. This data will be used to account for Campus District visitor parking. o Campus District Visitor Ride Hailing – Meta currently monitors ride hailing trips at their campuses as part of the trip cap monitoring for the Classic and Bayfront campuses. The existing ride hailing monitoring includes vehicle counts and origindestination surveys conducted at ride hailing lounges located at Meta buildings within in Menlo Park. A similar survey approach will be used to monitor ride hailing activity at the Willow Village Campus District. Unlike the other two campuses, ride Page D-1.440
October 20November 22, 2022
hailing at the Willow Village Campus District will occur on public streets that are shared with the other Willow Village districts. Therefore, a survey will be used to capture the number of vehicles and information on the origin/destination of passengers to determine if the trip if related to the Campus District or the other Willow Village Districts. The annual survey will be conducted of the ride hailing activity at the same time the reliability factor is developed. The Campus District Property Owner will establish a survey procedure that is approved by the Public Works Director. This is consistent with the procedure used for the Classic and Bayfront Campuses.
To capture the ride hailing activity for events, the Campus District Property Owner in consultation with City staff shall once a quarter select either a medium (1,001 -2,500 persons) or large (2,501 -5,000 persons) event to survey ride hailing trips for a minimum of two years after buildout of the Office Campus. During each twelvemonth period, at least one survey shall occur during a large event. In addition, surveys for two smaller events of less than 1,000 persons shall be conducted during each twelve-month period. The surveys should include rideshare location, arrival/departure date and time, drop-off or pick-up, and number of passengers. Periodic Count Equipment Testing/Recalibration - The vehicle detection system will be periodically tested to ensure the accuracy of the monitoring counts. During the first two years of operation, testing will be conducted at six-month intervals. If these tests show that the system is operating reliably, then testing can be reduced to once a year. If the equipment is thought to be out of calibration, the Campus District Property Owner will work with the City to test and calibrate the equipment if necessary. The City will have final approval, which approval shall be granted or withheld in a reasonable manner, on all testing and calibration. Installation and Repairs - New count equipment shall be installed and in good working order prior to final building permit sign-off for occupancy of first Willow Village Camus District office building. The City shall have final approval, which approval shall be granted or withheld in a reasonable manner, of the contractor completing the installation and the maintenance contractor completing any repairs. Non-emergency repairs and maintenance of the monitoring equipment shall occur only on evenings and weekends, unless otherwise approved by the City. The Transportation Division shall be notified at least 48 hours in advance of any nonemergency repairs or maintenance work. The City Transportation Division shall be notified within 24 hours of any emergency repairs. City inspection and approval of any repairs or maintenance is required.
Failure to keep monitoring equipment operational in good working order will be considered a violation of the Trip Cap after two working days, unless the repairs/maintenance require additional time as approved by the City and the Campus District Property Owner is diligently pursuing such repairs/maintenance. The Trip Cap penalty will not be enforced during the repair/maintenance of the monitoring equipment. If the City, in its sole and reasonable discretion, Page D-1.441
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determines that the Campus District Property Owner is not diligently pursuing the repairs/maintenance, the City may elect to perform the repairs/maintenance and charge the cost of the repair/maintenance, staff time, and 15 percent penalty fee to the Campus District Property Owner.
Access to Count Equipment/Reporting- The City shall have the ability to access the count equipment at any time after reasonable prior notice to the Campus District Property Owner. The Campus District Property Owner will not have access to the count equipment, unless approved by the City or in case of the need for emergency repairs. The City shall not unreasonably withhold approval of access for repair/maintenance contractors. The Campus District Property Owner shall have "read-only" access to the reporting data but shall have the ability to record such data and run history reports in order to track trends. Reporting data shall be provided to the Campus District Property Owner and the City in real time. Real time data will provide the Campus District Property Owner the opportunity to take immediate action, if necessary, to avoid violating the Trip Cap.
ENFORCEMENT
The Campus District Property Owner shall be responsible not only for monitoring, but also for achieving compliance with the Trip Cap, which includes, by definition, all trip cap measurements on a daily basis (the AM Peak Hour Trip Caps, the PM Peak Hour Trip Caps and the Daily Trip Cap). The City shall enforce compliance with the Trip Cap.
If, on a given day, the results of the monitoring indicate that the number of trips is at or below the Trip Cap, considering the reliability factor, then the Campus District Property Owner is considered in compliance. If, however, the monitoring, considering the reliability factor, reveals that any of the AM Peak Hour Trip Caps or the PM Peak Hour Trip Caps or the Daily Trip Cap has been exceeded (after accounting for any permitted exclusions), the Campus District Property Owner is in violation of its CDP and the City may take steps to enforce the Trip Cap.
The specifics for enforcement are as follows:
Threshold - If there are any AM Peak Hour Trip Cap, PM Peak Hour Trip Cap or Daily Trip Cap violations that do not qualify for an exclusion as discussed above, then penalties will be imposed. Penalties - Monetary penalties will be imposed for violations of the Trip Cap in excess of the threshold. Penalties are calculated on a per trip basis and progressively increasing penalties will be imposed for subsequent violation(s) of the Trip Cap based on a tiered system described in the table below. Penalties will be applied for each violation including the AM Peak Hour, PM Peak Hour, and the Daily Period. If any of the AM Peak Hour Trip Caps, and/or PM Peak Hour Trip Caps and Daily Trip Cap are exceeded on the same day, the penalty paid shall be the greater of the sum of the penalties for the AM Peak Hour and PM Peak Hour or the Daily penalty. The penalty payment schedule is shown in the table below.
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Penalty Tier1 Applicability Penalty Amount
per Trip per Day
Tier 1 Tier 1 is the default tier and applies for the month unless one of the other tiers is applicable.
$66.26 per trip per day
Tier 2 Tier 2 applies for the month if either (a) penalties were imposed in both of the 2 months immediately
preceding that month or (b) penalties were imposed
in any 4 of the 6 months immediately preceding that
month. Tier 2 will not apply if Tier 3 applies.
$132.56 per trip per day
Tier 3 Tier 3 applies for the month if penalties were imposed in each of the 6 months immediately preceding that
month.
$265.11 per trip per day
1 - Only one tier is applicable for any given violation. In addition, the penalty amounts are shown in 2022 dollars based on the original 2012 penalty amounts that applied to the original project approvals for Building 20 adjusted by CPI.
An example table showing the penalty amounts:
Penalty Cost Per Day
Vehicles Over Trip Cap Tier 1 Tier 2 Tier 3
100 $6,626 $13,256 $26,511
500 $33,130 $66,280 $132,555
1000 $66,260 $132,560 $265,110
2000 $132,520 $265,120 $530,220
Example calculation:
AM Peak Period exceeds AM Peak Period Trip Cap by 100 trips PM Peak Period exceeds PM Peak Period Trip Cap by 50 trips Daily trips exceed the Daily Trip Cap by 400 trips
AM penalty = 100 trips x $66.26 = $6,626
PM penalty = 50 trips x $66.26 = $3,313
Daily penalty = 400 trips x $66.26 = $26,504
The Payment would be:
AM + PM penalties = $9,939
Daily penalty = $26,504 - $9,939 = $16,565
Total Penalty = $9,939 (Peak Period Penalty) + $16,565 (Daily Penalty) = $26,504 Page D-1.443
October 20November 22, 2022
The base penalties are stated in 2022 dollars (based on the original 2012 penalty amounts that applied to the approval of Meta’s Building 20, as adjusted by CPI) and shall be adjusted annually per the Consumer Price Index for All Urban Consumers All Items in the San Francisco-Oakland-San Jose Metropolitan Area [1982-84=100] (the intent is for the same penalty rate to apply to Classic, Bayfront and Willow Village Campuses). Penalties are due and payable to the City within 30 days of the issuance of an invoice, which the City shall issue on a monthly basis. The City shall use the penalties collected for programs or projects designed to reduce trips or traffic congestion within Menlo Park and the City shall share 25 percent of the penalties collected with the City of East Palo Alto for use on transportation systems and solutions that help reduce traffic in the City of East Palo Alto around the Classic, Bayfront and Willow Village Campuses.
In addition to monetary penalties, failure to comply with the Trip Cap is considered a violation of the CDP and could result in revocation of the CDP.
Violations of the Trip Cap for Willow Village are independent of violations of the Classic and Bayfront Trip Caps. This means, for instance, that if there are violations of the Trip Cap at the Classic and Bayfront campuses for the six months immediately preceding a particular month, but there are no violations of the Trip Cap at the Willow Village Campus District during that same period, Tier 3 would be applicable to the Classic and/or Bayfront Campuses and Tier 1 would be applicable to the Willow Village Campus District. Interim Measure - If the Campus District Property Owner determines that it needs to secure parking in another location as an interim measure to maintain compliance with the Trip Cap, the Campus District Property Owner may, through the City's entitlement process, obtain approval for the use of another private property in Menlo Park (not the Classic, Bayfront or Willow Village campuses) that includes both a building and associated parking. Trips to such an off-site location will not count toward the Trip Cap only if there will be no more trips to that off-site location than is allowed under the then current use of that property. Compliance - If after non-compliance, the Campus District Property Owner comes back into compliance with the Trip Cap and maintains compliance for 180 consecutive days, the scale of penalties will revert to the base level and the relevant threshold would once again apply before there is non-conformance and the onset of penalties.
Page D-1.444
1 Perata, Kyle T
From: Alan Brown <[email protected]>
Sent: Friday, November 18, 2022 1:43 PM
To: _CCIN
Cc: Willow Village; Perata, Kyle T; Murphy, Justin I C
Subject: Willow Village shuttle suggestion
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Unless you recognize the sender's email address and know the content is safe, DO NOT click links, open attachments or reply.
Hello,
I understand that Willow Village approval is still under negotiation. I have a suggestion for this.
I know Meta runs a number of electric shuttles through its properties. I have also noticed that there are lot of large residences being built in the are, not necessarily Facebook.
There have been a few concerns about traffic, grocery store utilization, and air pollution on this project.
I was wondering if there could be electric shuttles that use roads on Meta properties, that could be used by residents of these other large buildings to use the grocery store and other amenities. The advantage of using these paths are that they, for the most part, avoid local streets which may become clogged. Shuttles which service these apartment buildings would encourage the residents of these buildings to make use of this retail and other services, while not adding to traffic to the other roads. Opening it up to residents of these buildings would result in higher utilization of the shuttles and amenities of Willow Village, while not adding to overall traffic.
I suppose they could restrict usage to these residents (they might need an electronic card), and even charge a modest fee - so they could feel confident in security, and make it work well financially. Higher usage would justify improved frequency.
Sincerely,
Alan Brown
1155 Carlton Ave, Menlo Park, Ca 94025
ATTACHMENT N Page D-1.445
1 Perata, Kyle T
From: Chow, Deanna M
Sent: Monday, November 28, 2022 5:50 PM
To: Perata, Kyle T
Subject: FW: Please Support Willow Village - Housing Leadership Council of San Mateo County Attachments: Housing Leadership Council - Support Willow Village.pdf
Deanna M. Chow
Assistant Community Development Director
City Hall - 1st Floor
701 Laurel St.
tel 650-330-6733
menlopark.gov
From: Ken Chan [mailto:[email protected]]
Sent: Monday, November 21, 2022 8:37 PM
To: _CCIN <[email protected]>
Subject: Please Support Willow Village ‐ Housing Leadership Council of San Mateo County CAUTION: This email originated from outside of the organization. Unless you recognize the sender's email address and know the content is safe, DO NOT click links, open attachments or reply.
Dear Members of the Menlo Park City Council,
Please see the attached support letter regarding the Willow Village proposal set for discussion at the upcoming November 30, 2022 City Council Special meeting.
You may also find the text of the letter below:
Dear Mayor Nash and Members of the Menlo Park City Council,
The Housing Leadership Council of San Mateo County (HLC) works with our communities and their leaders to produce and preserve quality affordable homes.
On behalf of HLC, and as expressed in our previous communications, I’m writing to express our support for the Willow Village proposal by Peninsula Innovation Partners and Signature Development Group. Of the potential 1,730 homes, a total of 312 will be affordable, including 119 set aside for your senior community members at both the Very Low (VLI) and Extremely-Low Income (ELI) levels. These homes, combined with the newly increased $6 million in additional funding for Page D-1.446
2 affordable housing for your community members in Menlo Park and rent subsidies for local teachers, can provide the City of Menlo Park with the much-needed relief against the job-housing imbalance that all your residents are collectively experiencing at this moment.
In addition, by approving the Willow Village, you have the opportunity to help ensure that your city will achieve a legally compliant Housing Element in January 2023. HLC has been closely following the City of Menlo Park’s 6th Cycle (2023-2031) RHNA obligations and Housing Element Update process over the past year. The City Council is scheduled to adopt the updated Housing Element on December 6, 2022 and the statutory deadline for HDC to certify updated Housing Element is no later than January 31, 2023.
As you may know, this proposal alone represents 1) 59% of Menlo Park’s total 6th Cycle 2023-2031 RNHA obligation, 2) 16% of the City's VLI RNHA obligation, and 3) 19% of Menlo Park's VLI to Moderate (MOD) ("BMR") RNHA obligation. Please see Table 7-1 RNHA Allocation below.
It has taken more than five years of input from your community members and fellow city leaders, and revisions by the developer, for Willow Village to get to this juncture; leading to its overlap with the aforementioned and upcoming Housing Element. With your support of this proposal, you can avoid the onerous task of revising your City’s Housing Element and the need to identify new housing sites throughout your city to fulfill it’s RNHA obligations,
We also caution you to fully comply with California State housing law and adopt a realistic Housing Element with viable versus theoretical housing sites, as the consequences, such as what has occurred in Santa Monica over the past year, are pronounced. Any city that does not have an adopted Housing Element by January 31, 2023 is subject to the “builder’s remedy.” Under California State law and the builder’s remedy application process, your authority to approve or reject certain housing proposals can temporarily be taken out of your control.
A builder’s remedy proposal also DOES NOT need to comply with your city’s Zoning or General Plan standards — it can be much larger than Menlo Park would otherwise permit AND you will not be able to deny a builder’s remedy proposal solely on the basis that it does not comply with those standards.
The only grounds for the rejection of a proposal is if it can be proven to “have a specific, adverse impact upon the public health or safety,” which is a much higher standard than California Environmental Quality Act (CEQA) and a very difficult finding to make with a housing proposal.
According to the Department of Housing and Community Development (HCD), any housing proposals submitted after a city fails to meet its compliance deadline, will earn automatic permit approval if they meet the standards for serving low- and moderate-income households by committing least 20% Page D-1.447
3 of their homes as affordable to lower income households or 100% as affordable to moderate income households. In addition, these proposals are not necessarily subject to community amenities requirements and may not be required to provide any; like the ones included in Willow Village. If a jurisdiction were to receive a housing proposal while it’s Housing Element is out of compliance, any potential benefits afforded to the applicant as a result of the jurisdiction’s noncompliant status would remain throughout the entitlement process even if the jurisdiction subsequently achieves compliance during the entitlement process according to HCD. If Menlo Park falls into this category, it would make it that much harder for you to make impactful and meanful land use decisions for your community.
To illustrate the “builder’s remedy” in action: while the City of Santa Monica was out of compliance with Housing Element law, leaders had no choice but to approve 12 development proposals in just this year alone - totaling nearly 4,000 homes. Please see: Developers capitalize on Housing Element fiasco to force 3,968 undeniable units into the city’s pipeline.
With your support of the Willow Village proposal, Menlo Park can avoid the consequences experienced by your counterparts in Santa Monica and also provide much-needed quality affordable homes for your community members. We urge you to take all the necessary steps to approve this proposal at the November 30, 2022 City Council meeting.
Sincerely,
Ken Chan
--
Ken Chan
he/him/his
Senior Organizer
Housing Leadership Council of San Mateo County
2905 S El Camino Real
San Mateo, CA 94403
(408) 421 - 0586
www.hlcsmc.org
Page D-1.448
November 21, 2022
The Honorable Betsy Nash and Members of the Menlo Park City Council City of Menlo Park
701 Laurel St.
Menlo Park, CA 94025
Via Email: [email protected]
Re: Support Willow Village – Menlo Park RNHA Obligations / Housing Element Compliance - Housing Leadership Council of San Mateo County Dear Mayor Nash and Members of the Menlo Park City Council, The Housing Leadership Council of San Mateo County (HLC) works with our communities and their leaders to produce and preserve quality affordable homes.
On behalf of HLC, and as expressed in our previous communications, I’m writing to express our support for the Willow Village proposal by Peninsula Innovation Partners and Signature Development Group. Of the potential 1,730 homes, a total of 312 will be affordable, including 119 set aside for your senior community members at both the Very Low (VLI) and Extremely-Low Income (ELI) levels. These homes, combined with the newly increased $6 million in additional funding for affordable housing for your community members in Menlo Park and rent subsidies for local teachers, can provide the City of Menlo Park with the much-needed relief against the job-housing imbalance that all your residents are collectively experiencing at this moment.
In addition, by approving the Willow Village, you have the opportunity to help ensure that your city will achieve a legally compliant Housing Element in January 2023. HLC has been closely following the City of Menlo Park’s 6th Cycle (2023-2031) RHNA obligations and Housing Element Update process over the past year. The City Council is scheduled to adopt the updated Housing Element on December 6, 2022 and the statutory deadline for HDC to certify updated Housing Element is no later than January 31, 2023.
As you may know, this proposal alone represents 1) 59% of Menlo Park’s total 6th Cycle 2023-2031 RNHA obligation, 2) 16% of the City's VLI RNHA obligation, and 3) 19% of Menlo Park's VLI to Moderate (MOD) ("BMR") RNHA obligation. Please see Table 7-1 RNHA Allocation below.
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It has taken more than five years of input from your community members and fellow city leaders, and revisions by the developer, for Willow Village to get to this juncture; leading to its overlap with the aforementioned and upcoming Housing Element. With your support of this proposal, you can avoid the onerous task of revising your City’s Housing Element and the need to identify new housing sites throughout your city to fulfill it’s RNHA obligations, We also caution you to fully comply with California State housing law and adopt a realistic Housing Element with viable versus theoretical housing sites, as the consequences, such as what has occurred in Santa Monica over the past year, are pronounced. Any city that does not have an adopted Housing Element by January 31, 2023 is subject to the “builder’s remedy.” Under California State law and the builder’s remedy application process, your authority to approve or reject certain housing proposals can temporarily be taken out of your control.
A builder’s remedy proposal also DOES NOT need to comply with your city’s Zoning or General Plan standards — it can be much larger than Menlo Park would otherwise permit AND you will not be able to deny a builder’s remedy proposal solely on the basis that it does not comply with those standards. The only grounds for the rejection of a proposal is if it can be proven to “have a specific, adverse impact upon the public health or safety,” which is a much higher standard than California Environmental Quality Act (CEQA) and a very difficult finding to make with a housing proposal.
According to the Department of Housing and Community Development (HCD), any housing proposals submitted after a city fails to meet its compliance deadline, will earn automatic permit approval if they meet the standards for serving low- and moderate-income households by committing least 20% of their homes as affordable to lower income households or 100% as affordable to moderate income households. In addition, these proposals are not necessarily subject to community amenities requirements and may not be required to provide any; like the ones included in Willow Village. If a jurisdiction were to receive a housing proposal while it’s Housing Element is out of compliance, any potential benefits afforded to the applicant as a result of the jurisdiction’s noncompliant status would remain throughout the entitlement process even if the jurisdiction subsequently achieves compliance during the entitlement process according to HCD. If Menlo Park falls into this category, it would make it that much harder for you to make impactful and meanful land use decisions for your community.
Housing Leadership Council of San Mateo County
2905 S. El Camino Real, San Mateo, CA 94403 • (650) 242-1764 • hlcsmc.org Page D-1.450
To illustrate the “builder’s remedy” in action: while the City of Santa Monica was out of compliance with Housing Element law, leaders had no choice but to approve 12 development proposals in just this year alone - totaling nearly 4,000 homes. Please see Developers capitalize on Housing Element fiasco to force 3,968 undeniable units into the city’s pipeline.
With your support of the Willow Village proposal, Menlo Park can avoid the consequences experienced by your counterparts in Santa Monica and also provide much-needed quality affordable homes for your community members. We urge you to take all the necessary steps to approve this proposal at the November 30, 2022 City Council meeting.
Sincerely,
Ken Chan
Senior Organizer
Housing Leadership Council of San Mateo County
2905 S. El Camino Real, San Mateo, CA 94403 • (650) 242-1764 • hlcsmc.org Page D-1.451
1 Perata, Kyle T
From: Perata, Kyle T
Sent: Monday, November 28, 2022 6:11 PM
To: Perata, Kyle T
Subject: Willow Village Undermines the Housing Element
On Nov 27, 2022, at 5:14 PM, Patti Fry <[email protected]> wrote:
City Council,
Your decisions related to Willow Village and the ConnectMenlo General Plan will communicate to our community ‐ and to the State – your dedication to remedy the housing shortage.
Our city’s final Housing Element to be submitted to the State in January needs to be a lot more realistic ‐ and convincing. It must describe strategies such as the five listed below that would repair ConnectMenlo’s rules that have already led to a 20% worsened jobs/housing imbalance in the six years since ConnectMenlo was adopted in 2015. Your Council can demonstrate that large projects are approved only when they improve the City’s ratio of housing to jobs.
The draft Housing Element Menlo Park submitted last summer did not include strategies that other cities have adopted to address jobs/housing imbalances:
1. Capping office growth when the jobs/housing ratio exceeds 2.0; Menlo Park's ratio was 2.9 in 2021 without a cap
2. Adjusting the ConnectMenlo Maximum Buildout so that the potential cumulative non‐residential square feet is reduced when housing replaces non‐residential square feet
3. Revising industrial and office zoning to reflect contemporary worker density practices by reducing the total allowable square feet
4. Enlarging mixed use zoning districts, while shrinking office‐only zoning districts
5. Revising mixed‐use zoning so that housing densities would exceed new demand from non‐residential elements
If the pending large projects such as Willow Village and Parkline are approved as currently proposed, the State would have evidence that Menlo Park is not serious about correcting its part in the regional jobs/housing imbalance. Each project worsens the housing shortage – and you have the power to require a different result.
You will not want to have your names attached to hefty RHNA allocations that will affect every District and neighborhood of Menlo Park. You will not want to be held accountable for large projects that worsen the jobs/housing imbalance. You will not want to be blamed for inherent problems in ConnectMenlo’s zoning that have not been addressed during your tenure.
Use this opportunity to get the City on the right path by beginning to unravel the mistakes of former Councils. This is the time and this is your moment.
Page D-1.452
2 Sincerely,
Patti Fry, former Menlo Park Planning Commissioner
Kyle T. Perata
Planning Manager
City Hall - 1st Floor
701 Laurel St.
tel 650-330-6721
menlopark.gov
Page D-1.453
1 Perata, Kyle T
From: Perata, Kyle T
Sent: Monday, November 28, 2022 6:04 PM
To: Perata, Kyle T
Subject: RE: Willow Village
From: Paul Collacchi [mailto:[email protected]]
Sent: Monday, November 28, 2022 1:06 PM
To: _CCIN <[email protected]>
Subject: Willow Village
CAUTION: This email originated from outside of the organization. Unless you recognize the sender's email address and know the content is safe, DO NOT click links, open attachments or reply.
Council Members,
Here are my recommendations for Willow Village
Deny unmitigated project configurations
Move to cap ConnectMenlo (Bayfront) development as part of the Housing Element SEIR process.
1.) DENY UNMITIGATED PROJECT CONFIGURATIONS
As configured, the Willow Village project will worsen the housing deficit, displace low‐income families, gentrify District 1, and unleash Bayfront development beyond the ConnectMenlo Program EIR envelope into the enormous uncapped, unplanned ConnectMenlo zoning envelope.
I would urge you to deny Willow Village unless it contains the following mitigations:
A reduced office footprint to eliminate the net housing deficits and displacement caused by the project, A requirement that the applicant build all proposed housing units, and link office build‐out to housing unit build‐out, and
A valid mechanism to monitor and enforce off‐site employment caps.
Denying the project might seem to require courage, but council might take a lesson from the most recent Stanford GUP approval process in which Supervisor Simitian led the call for full mitigation of that project, a call which then Mayor Taylor and Vice Mayor Nash joined. As with the Stanford GUP, denied or withdrawn projects don't go away, they return with more favorable configurations. Sometime denial is required as part of the process of setting community boundaries.
2.) MOVE TO CAP CONNECTMENLO (BAYFRONT) DEVELOPMENT AS PART OF THE HOUSING ELEMENT SEIR PROCESS The future growth potential under the uncapped ConnectMenlo zoning envelope is staggering. In my view, and apparently in the view of at least three of you, ConnectMenlo is objectionable local land use policy. It enables unneeded levels of office development with little local benefit and large, permanent negative impacts. ConnectMenlo Page D-1.454
2 housing development will forever change the character of District 1, and ConnectMenlo office development will create perpetual housing pressure with RHNA‐driven political strife throughout the city.
Development in Bayfront should be capped and metered similarly to the way downtown development is capped and metered, and the caps should insure full housing mitigation during build out.
Rather than creating a separate process to revisit ConnectMenlo, council could move to create a subcommittee of council members to work with staff to create area development caps in Bayfront similar to those in the Downtown Specific Plan. These could be approved in conjunction with the Housing Element SEIR process.
At one time or another, three of you, members Mueller, Taylor, and Nash have expressed disapproval over ConnectMenlo Bayfront development. Your legacy will be defined by your actions or inactions to make it right when you had that chance.
Thank you for your consideration.
Sincerely,
Paul Collacchi
Virus-free.www.avast.com
Kyle T. Perata
Planning Manager
City Hall - 1st Floor
701 Laurel St.
tel 650-330-6721
menlopark.gov
Page D-1.455
City Manager's Office
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov
STAFF REPORT
City Council
Meeting Date: 11/30/2022
Staff Report Number: 22-229-CC
Regular Business: Direction on City Council vacancy
Recommendation
Staff recommends that the City Council provide direction on the City Council vacancy resulting from the resignation of City Councilmember Mueller, District 5.
Policy Issues
According to Ordinance No. 1092 (Attachment A) and Government Code Section 36512 the City Council can appoint or call a special election to fill a City Council vacancy within 60 days of the creation of a vacancy.
Background
On November 17 City Councilmember Mueller submitted a notice of resignation to Mayor Nash and the City Council. The notice of resignation specifies that City Councilmember Mueller’s resignation shall be effective upon appointment of his successor, but no later than January 1, 2023. Thus the vacancy would be created when the resignation becomes effective, either upon appointment of his successor or January 1, 2023, if there is no appointment.
As a result of the impending vacancy, the City Council may decide whether it wants to appoint or call a special election in order to fill this City Council vacancy, in conformance with the provisions of Government Code Section 36512 and Ordinance No. 1092. Resolution No. 6775 (Attachment B) provides the process that shall be utilized in the event that a City Council seat will be filled by appointment.
Analysis
The City Council has two options of filling a vacancy within 60-days from the commencement of the vacancy: either fill the vacancy by appointment or call a special election to fill the vacancy.
If the City Council fills the vacancy by appointment, the person appointed to fill the vacancy shall hold office pursuant to one of the following:
A. If the vacancy occurs in the first half of a term of office and at least 130 days before the next general municipal election, the person appointed to fill the vacancy shall hold office until the next general municipal election that is scheduled 130 or more days after the date the City Council is notified of the vacancy, and thereafter until the person who is elected at that election to fill the vacancy has been qualified. The person elected to fill the vacancy shall hold office for the unexpired balance of the term of office.
B. If the vacancy occurs in the first half of a term of office, but less than 130 days before the next general municipal election, or if the vacancy occurs in the second half of a term of office, the person AGENDA ITEM E-1 Page E-1.1
Staff Report #: 22-229-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov appointed to fill the vacancy shall hold office for the unexpired term of the former incumbent.
If the appointment occurs before December 16, 2022, then the vacancy will occur in the first half of City Councilmember Mueller’s term of office and at least 130 days before the next general municipal election, as described in option A. This means that a person appointed to office would only serve until the next general municipal election (i.e., November 2023.) Thereafter, the person elected shall fill the vacancy for the unexpired balance of the term of office (i.e., until December 2024.) If the appointment occurs after December 16, 2022, then the vacancy will occur in the second half of City Councilmember Mueller’s term of office and the person appointed to fill the vacancy shall hold office for the unexpired term of City Councilmember Mueller (i.e., until December 2024.) In this case, if the City Council desires to appoint someone to the City Council seat, the appointment will likely occur after December 16, 2022 due to the publication requirements in Resolution No. 6775, which requires, among other things that upon a determination that the City Council desires to appoint to the City Council seat a notice in the newspaper and other locations be published at least two weeks before the meeting at which the City Council will consider candidates.
Below is the timeline if the City Council directs the appointment to fill the vacancy:
• November 30, 2022: Direct staff to begin the process for appointment. • December 6, 2022: Publish a notice of the vacancy in a newspaper of general circulation, advertise in local online media and social media, and post on the City’s website. • December 6 – December 20, 2022: Application acceptance. • December 21 – December 31, 2022: City Council to interview qualified applicants and elect by motion at a special meeting.
• The City Council will be polled for this special meeting if direction is received at this meeting.
If the City Council decides not to appoint anyone to the seat and instead decides to call a special election, the special election must be called at the next regularly established election date not less than 114 days from the call of the special election. A person elected to fill a vacancy holds office for the unexpired term of the former incumbent.
Since the special election must be held on a date not less than 114 days from the call of the special election, the City would not be able to hold the special election March 10, 2023, which is a statewide election date. The only other date for a polling place election in 2023 would be the November 7, 2023 election. The City may also be able to conduct the special election by mail-in ballot.
If the City Council directs the calling of a special election, staff will return to the City Council after the resignation becomes effective with a resolution calling the special election. The City has requested information from the County related to an all mail-in ballot special election and is pending response.
Impact on City Resources
As of November 2022, the estimated cost of consolidated election services for one City Councilmember seat is approximately between $97,000 and $116,400. Along with the request for information to the County related to an all mail-in ballot special election, the estimated cost is still pending.
Page E-1.2
Staff Report #: 22-229-CC
City of Menlo Park 701 Laurel St., Menlo Park, CA 94025 tel 650-330-6600 menlopark.gov Environmental Review
This action is not a project within the meaning of the California Environmental Quality Act (CEQA) Guidelines §§ 15378 and 15061(b)(3) as it will not result in any direct or indirect physical change in the environment.
Public Notice
Public notification was achieved by posting the agenda, with the agenda items being listed, at least 24 hours prior to the meeting.
Attachments
A. Ordinance No. 1092
B. Resolution No. 6775
Report prepared by:
Judi A. Herren, Assistant to the City Manager/City Clerk Report reviewed by:
Denise Bazzano, Assistant City Attorney
Page E-1.3
ORDINANCE NO. 1092
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MENLO PARK REPEALING AND REPLACING SECTION 2.04.190, “FILLING OF VACANCIES ON THE CITY COUNCIL,” OF CHAPTER 2.04 WITHIN TITLE 2 OF THE MENLO
PARK MUNICIPAL CODE
WHEREAS, in 1974, the City Council adopted Ordinance No. 559 establishing a process for filling vacancies on the City Council; and
WHEREAS, Ordinance No. 559 is codified in Section 2.04.190 of the Menlo Park Municipal Code; and
WHEREAS, on August 23, 2022, the City Council discussed the various options available to public agencies to fill vacancies of elected officers; and WHEREAS, the City Council desires to repeal Section 2.04.190 and replace the provision with language that conforms to the requirements in Government Code Section 36512, which provides, among other things, that a city may appoint or call a special election within sixty days of a vacancy.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MENLO PARK:
SECTION 1. Findings.
The above recitals are hereby declared to be true and correct findings of the City Council of the City of Menlo Park.
SECTION 2. Repeal and Replace. Section 2.04.190 - Filling of vacancies on the City Council of Chapter 2.04 - City Council of Title 2 - Administration and Personnel of the Menlo Park Municipal Code is hereby repealed in its entirety and replaced to read as follows:
“Section 2.04.190-Filling of vacancies on the City Council If a vacancy occurs in the office of a member of the City Council, the City Council may appoint or call a special election in order to fill the City Council vacancy, in conformance with the provisions of Government Code section 36512, as that section may be amended. If the City Council decides to fill the vacancy by appointment, the appointment shall be made pursuant to an appointment process set forth in a separate Resolution of the City Council, which Resolution may be amended from time to time.”
SECTION 3. Severability.
If any provision or clause of this ordinance or the application thereof to any person or circumstance is held to be unconstitutional or to be otherwise invalid by a final judgment of any court or competent jurisdiction, such invalidity shall not affect other provisions or clauses or application, and to this end, the provisions and clauses of this ordinance are declared to be severable.
SECTION 4. California Environmental Quality Act.
This Ordinance is not subject to review under the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21000, et seq. and the CEQA Guidelines (14 Cal.
Code Regs. §§ 15000 et. seq.), including without limitation, Public Resources Code Section *5/7.214Ā+4803560Ā-*'Ā#+$*)#+%Ȁ"%!&Ȁ"&&"Ȁ(,,+Ȁ(), $%,! !, ATTACHMENT A Page E-1.4
Ordinance No. 1092