May 5, 2023
Negative Declaration
for the Village One Specific Plan
Amendment No. 26,
General Plan Amendment,
Village One Precise Plan No. 35
Vesting Tentative Subdivision Map “The Crossings”
Final Development Plan “The Crossings”
GPA-22-001/SPA-22-003/PP-22-001
TSM-22-002/FDP-22-003
Environmental Assessment No. EA/C&ED 2023-26
Prepared for:
City of Modesto
P.O. Box 642
Modesto, CA 95353
Contact: Katharine Martin, Senior Planner
209/209-577-5267
Prepared by:
City of Modesto
Community & Economic Development Department
209/577-5267
May 5, 2023
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CEQA Environmental Checklist
PROJECT DESCRIPTION AND BACKGROUND
Project Title:
GPA-22-001/SPA-22-003: Village One Specific Plan Amendment No. 26 and General Plan Amendment
Lead agency name and address:
City of Modesto, 1010 Tenth Street, Suite 3300, Modesto CA 95354 Contact person and phone number:
Katharine Martin, Senior Planner, 209-577-5267
Project Location:
The project is located in Stanislaus County within the City of Modesto, on 83 acres located north of E. Briggsmore Avenue/MID Lateral No. 3 and east of Claus Road. Assessor’s Parcels No. 014-026-017 and 014-026-034.
Project applicant’s name and address:
DR Horton Bay Inc.
3000 Executive Parkway, Suite 100
San Ramon, CA 94583
General plan description:
Business Park-Commercial-Residential (BCR)
Zoning:
SP (Specific Plan) as part of the Village One Specific Plan Description of project:
General Plan Amendments:
• Proposed amendment of the City of Modesto Urban Area General Plan Land Use Diagram to amend the land use of approximately 140 acres from Business ParkCommercial-Residential (BCR) to Residential (R), plus associated textual and exhibit amendments to the General Plan document.
• Proposed amendment of the Circulation Diagram to downgrade the classification of Claus Road between Sylvan Avenue and Briggsmore Avenue from an Expressway to a four-lane Principal Arterial Street.
• Proposed amendment of the Circulation Diagram to downgrade the classification of East Briggsmore Avenue between Claus Road and the BNSF Railroad crossing from an Expressway to a four lane Principal Arterial Street. • Proposed amendment of text in Section VI.H.12 regarding minimum sizing of Neighborhood Parks.
The proposed project would connect a future East Merle Avenue to Claus Road, an Expressway. General Plan policy disallows direct access from a residential development to an #20..
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Expressway. The project as proposed relies on the downgrade of Claus Road from its current designation of a six-lane Expressway to a four-lane Principal Arterial Street, by an amendment to the Circulation Element of the General Plan.
The proposed project would connect Held Drive to a 2-lane roundabout at the intersection of Briggsmore Avenue and Held Drive, an Expressway. General Plan policy disallows direct access from a residential development to an Expressway. The project as proposed relies on the downgrade of Briggsmore Avenue east of Claus Road from its current designation of an Expressway to a four-lane Principal Arterial Street, by an amendment to the Circulation Element of the General Plan.
Specific Plan Amendment: Proposed amendment of the land use diagram of the Village One Specific Plan, to amend approximately 140 acres from Business Park (BP) to Village Residential (VR) to allow for single family residential development, plus associated textual and exhibit amendments to the Specific Plan document. Together with an amendment to the Circulation Diagram of the Specific Plan to change the designation of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street, and to change the designation of East Briggsmore Avenue east of Claus Road from a Class C Expressway to a four-lane Principal Arterial Street.
Precise Plan Document: Proposed adoption of a Precise Plan document for the southerly 257 acres of Village One Precise Plan Area No. 35. The Precise Plan document outlines land uses, circulation plans and utility plans for the project area.
Vesting Tentative Subdivision Map: Division of 84.1 acres of the overall Precise Plan area into 527 single-family residential lots (The Crossings).
Final Development Plan: FDP for the architecture and home siting of The Crossings project.
The proposed project is being analyzed as a subsequent project to the City’s General Plan MEIR (SCH 2014042081), certified in March 2019. Mitigation Measures from the General Plan MEIR will be applied to the project as applicable. Additional project-specific mitigation measures will be applied as required and listed with the applicable mitigation measures from the MEIR in a Mitigation Monitoring and Reporting Program (MMRP).
Surrounding land uses and setting (briefly describe the project’s surroundings):
North: SP Zone as part of the Village One Specific Plan, rural residential uses, orchards.
South: Low Density Residential (R-1) Zone, single-family residential uses and Planned Development Zone P-D(359), mobile home park; MID Lateral No. 3 canal and E. Briggsmore Avenue, a four-lane Class-B Expressway with posted speed limit of 45 MPH.
East: County Unincorporated Area; Agricultural and Rural Residential Uses, East Side Mosquito Abatement District facility and airstrip; Burlington Northern Santa Fe Railroad, Modesto Amtrak Train Station.
West: SP Zone as part of the Village One Specific Plan, single-family residential uses, Claus Road (currently a two-lane roadway with posted speed limit of 50 mph).
The amendment area is flat and currently in use as fruit tree and nut tree orchards, with one single-family residence located at 1740 Claus Road (APN 014-026-017). No Williamson Act #20..
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contracts are in place on the parcels of the amendment area. Current permitted uses for the amendment area is Business Park as provided by Chapter II of the Village One Specific Plan, adopted on October 6, 1990 by City Council Resolution No. 90-828A.
Other public agencies whose approval is required (e.g. permits, financial approval, or participation agreements):
None.
List of Attachments:
Attachment A: Fehr and Peers November 2023 Traffic Study Attachment B: Illingworh & Rodkin, Inc. September 2022 Noise and Vibration Study Attachment C: Illingworh & Rodkin, Inc. December 2022 Response to Comments Letter Attachment D: Moore Biological Consultants, December 2022 Special Status Species Review Attachment E: Mitigation Monitoring and Reporting Program, The Crossings #20..
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PROJECT VICINITY MAP
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PROPOSED GENERAL PLAN
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VILLAGE ONE SPECIFIC PLAN
PROPOSED LAND USE DIAGRAM AMENDMENT
BUSINESS PARK (BP) TO VILLAGE RESIDENTIAL (VR)
Village One Specific Plan
Land Use Diagram
Office
Business Park
Village Commercial Center
General Commercial
Community Facilities
Very Low Density Residential
Village Residential
Multi-Family Residential
Senior Housing
Public Park
School
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PRECISE PLAN NO. 35
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PRECISE PLAN NO. 35
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VESTING TENTATIVE SUBDIVISION MAP
THE CROSSINGS
ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED:
The environmental factors checked below would be potentially affected by this project.
Please see the checklist beginning on page 3 for additional information.
Aesthetics Agriculture and Forestry Air Quality
Biological Resources Cultural Resources Geology/Soils
Greenhouse Gas
Emissions
Hazards and Hazardous
Materials
Hydrology/Water
Quality
Land Use/Planning Mineral Resources Noise
Population/Housing Public Services Recreation
Transportation/Traffic Utilities/Service Systems Mandatory Findings of Significance
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DETERMINATION:
On the basis of this initial evaluation:
1 1 1 find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. 1 find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared.
1 1 1 find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required.
1 find that the proposed project MAY have a "potentially significant impact" or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed.
I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required Printed Name: Katharine Martin
Date: November 13,
2023
May 5, 2023
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This checklist identifies physical, biological, social and economic factors that might be affected by the proposed project. In many cases, background studies performed in connection with the projects indicate no impacts. A NO IMPACT answer in the last column reflects this determination. Where there is a need for clarifying discussion, the discussion is included either following the applicable section of the checklist or is within the body of the environmental document itself. The words "significant" and "significance" used throughout the following checklist are related to CEQA, not NEPA, impacts. The questions in this form are intended to encourage the thoughtful assessment of impacts and do not represent thresholds of significance.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
I. AESTHETICS: Would the project:
a) Have a substantial adverse effect on a scenic
vista
b) Substantially damage scenic resources,
including, but not limited to, trees, rock
outcroppings, and historic buildings within a state
scenic highway
c) Substantially degrade the existing visual
character or quality of the site and its
surroundings?
d) Create a new source of substantial light or glare
which would adversely affect day or nighttime
views in the area?
KI
KI
KI
KI
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Discussion
a) The site is flat with current use as orchards with some rural residential and church uses, with some views of the Sierra Nevada foothills and orchards to the east of the site. The impact of the proposed project is less than significant.
b) There are no state scenic highways within or in the vicinity of the amendment area. There is no impact. No mitigation is required.
c) The amendment area is primarily undeveloped land within the City of Modesto Sphere of Influence and Planned Urbanizing Area (PUA), as part of the Village One Specific Plan, adopted on October 16, 1990 and subsequently updated. Development that would be facilitated by the General Plan and Specific Plan amendments would be similar to the low and medium-density residential development in the vicinity of the amendment area. No impact would occur with visual character or quality of the site and surroundings. d) The amendment area is predominately undeveloped and currently utilized for almond orchards, but is expected to be developed with a mixture of commercial and residential uses which would create new sources of light that is consistent with urban development. Impacts would be less than significant with existing development standards for light fixtures applied to subsequent projects, such as shielding lights.
Resource: Refer to pages V-19-1 to V-19-7 of the Modesto Urban Area General Plan (MEIR), approved earlier (SCH 2014042081).
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
II. AGRICULTURE AND FOREST RESOURCES:
In determining whether impacts to agricultural
resources are significant environmental effects,
lead agencies may refer to the California
Agricultural Land Evaluation and Site Assessment
Model (1997) prepared by the California Dept. of
Conservation as an optional model to use in
assessing impacts on agriculture and farmland. In
determining whether impacts to forest resources,
including timberland, are significant environmental
effects, lead agencies may refer to information
compiled by the California Department of Forestry
and Fire Protection regarding the state’s inventory
of forest land, including the Forest and Range
Assessment Project and the Forest Legacy
Assessment Project; and the forest carbon
measurement methodology provided in Forest
Protocols adopted by the California Air Resources
Board. Would the project:
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a) Convert Prime Farmland, Unique Farmland, or
Farmland of Statewide Importance (Farmland), as
shown on the maps prepared pursuant to the
Farmland Mapping and Monitoring Program of the
California Resources Agency, to non-agricultural
use?
b) Conflict with existing zoning for agricultural use,
or a Williamson Act contract?
c) Conflict with existing zoning for, or cause
rezoning of, forest land (as defined in Public
Resources Code section 12220(g)), timberland (as
defined by Public Resources Code section 4526),
or timberland zoned Timberland Production (as
defined by Government Code section 51104(g))?
d) Result in the loss of forest land or conversion of
forest land to non-forest use?
e) Involve other changes in the existing
environment which, due to their location or nature,
could result in conversion of Farmland, to nonagricultural use or conversion of forest land to nonforest use? Discussion
a) The amendment area is primarily in use as almond orchards with some rural residential uses and a church. As of data available from the California Department of Conservation as of 2018, the project area is categorized by the FMMP as primarily Unique Farmland with small portions categorized as Vacant and Disturbed area and Urban Area, and 15 acres designated as Prime Farmland. On April 9, 2013 by Resolution No. 2013-129, the City Council adopted a policy to exempt from agricultural mitigation requirements all land area within the current City limits, including the Village One Specific Plan area. Therefore, no mitigation is required as the impact is less than significant. b) There are no Williamson Act contracts on the parcels of the amendment area. No impact. c) There is no forest or timberland within the amendment area. No impact. d) See item C above.
e) See item A, B and C above.
Resource: Pages V-4-1 to V-4-13 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
KI
KI
KI
KI
KI
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III. AIR QUALITY: Where available, the
significance criteria established by the applicable
air quality management or air pollution control
district may be relied upon to make the following
determinations. Would the project:
a) Conflict with or obstruct implementation of the
applicable air quality plan?
b) Violate any air quality standard or contribute
substantially to an existing or projected air quality
violation?
c) Result in a cumulatively considerable net
increase of any criteria pollutant for which the
project region is non- attainment under an
applicable federal or state ambient air quality
standard (including releasing emissions which
exceed quantitative thresholds for ozone
precursors)?
d) Expose sensitive receptors to substantial
pollutant concentrations?
e) Create objectionable odors affecting a
substantial number of people?
KI
KI
KI
KI
KI
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Discussion
a) The project would not obstruct implementation of an applicable air quality plan. b) The project was referred to the San Joaquin Valley Air Pollution Control District (SJAPC), who indicated concerns that construction activities and/or operation of the project may exceed significance thresholds; however, development would adhere to applicable mitigation measures from the General Plan’s Master EIR with regards to construction equipment emissions and screening of potential impacts to nearby sensitive receptors (nearby commercial and residential uses), reducing impacts to less than significant with mitigation measures from the General Plan Master EIR applied. c) Impacts to air quality would be associated with vehicle emissions, construction activities and on-site residential sources such as landscape maintenance and barbecues. As identified in the City’s General Plan MEIR, subsequent development would be consistent with assumptions for land use in the Residential land use of the City’s General Plan, and would be subject to all air quality policies of the City. Mitigation measures related to construction activities from the MEIR would be applied to any subsequent development.
Less than significant impact.
d) The nearest sensitive receptors are residential areas approximately 500 feet to the west, two rural residential homes and a church that are within the project area, an existing commercial landscape nursery to the south of the amendment area. Subsequent construction activities within the amendment area could potentially include the application of architectural coatings and asphalt paving material that could generate local temporary odors. The use of diesel-powered construction equipment could also generate localized odors. Any future construction activities would be mitigated as called for by the MEIR.
Less than significant impact.
e) See item D, above.
Resource: See pages V-2-1 through V-2-43 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
IV. BIOLOGICAL RESOURCES: Would the
project:
a) Have a substantial adverse effect, either directly
or through habitat modifications, on any species
identified as a candidate, sensitive, or special
status species in local or regional plans, policies, or regulations, or by the California Department of Fish
and Game or U.S. Fish and Wildlife Service?
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b) Have a substantial adverse effect on any
riparian habitat or other sensitive natural
community identified in local or regional plans,
policies, regulations or by the California
Department of Fish and Game or US Fish and
Wildlife Service?
c) Have a substantial adverse effect on federally
protected wetlands as defined by Section 404 of
the Clean Water Act (including, but not limited to,
marsh, vernal pool, coastal, etc.) through direct
removal, filling, hydrological interruption, or other
means?
d) Interfere substantially with the movement of any
native resident or migratory fish or wildlife species
or with established native resident or migratory
wildlife corridors, or impede the use of native
wildlife nursery sites?
e) Conflict with any local policies or ordinances
protecting biological resources, such as a tree
preservation policy or ordinance?
f) Conflict with the provisions of an adopted Habitat
Conservation Plan, Natural Community
Conservation Plan, or other approved local,
regional, or state habitat conservation plan?
KI
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Discussion
a) The amendment area is not a biologically sensitive site as defined by Figure V-7-1 of the MEIR. The California Department of Fish and Wildlife and the US Fish and Wildlife Service were consulted in the production of the MEIR.
The general area is within proximity of nesting sites for Swainsons’ Hawks and Burrowing Owls have been known to be located within the Village One Specific Plan area. However, a special status species review provided by the applicant (Moore Biological Consultants, October 3, 2022 (Appendix A)) concluded that the incidence of the two species in the project area was unlikely, due to poor foraging habitat, and lack of found examples in a survey conducted at the site. Implementation of the mitigation measures (j) and (k) in Table V-7-1 of the MEIR would reduce impacts to both species to less than significant levels. b) See Item A above.
c) The site does not qualify as a federally protected wetland per Section 404 of the Clean Water Act.
d) The amendment area is primarily flat land utilized as almond tree orchards. Burrowing Owls are known to have been located within the Village One Specific Plan area. Any subsequent development would be required to implement mitigation measures from the MEIR to reduce impacts to less-than-significant levels.
e) There would be no conflict with any local policies or ordinance protecting biological resources. The City does not have a heritage tree ordinance. f) There would be no conflict with any habitat conservation plan, natural community conservation plan, or other approved local, regional or state habitat conservation plan.
Resource: See pages V-7-1 through V-7-39 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
V. CULTURAL RESOURCES: Would the project:
a) Cause a substantial adverse change in the
significance of a historical resource as defined in
§15064.5?
b) Cause a substantial adverse change in the
significance of an archaeological resource pursuant
to §15064.5?
c) Directly or indirectly destroy a unique
paleontological resource or site or unique geologic
feature?
d) Disturb any human remains, including those
interred outside of formal cemeteries?
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Discussion
a) The project is consistent with the historical resource policies of the General Plan. b) The project would be consistent with the archaeological resource polices in the General Plan.
The project was referred to local Native American Tribes for consultation, who did not indicate concerns with the proposed amendments.
c) The proposed amendments would not result in impact to a unique paleontological or unique geological feature. The area is flat land historically utilized as pasture and currently planted in nut tree orchards, with no known paleontological or geological features. d) There are no known human remains in the amendment area.
Resource: See pages V-8-1 through V-8-34 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
VI. GEOLOGY AND SOILS: Would the project:
a) Expose people or structures to potential
substantial adverse effects, including the risk of
loss, injury, or death involving:
i) Rupture of a known earthquake fault, as
delineated on the most recent Alquist-Priolo
Earthquake Fault Zoning Map issued by the State
Geologist for the area or based on other substantial
evidence of a known fault? Refer to Division of
Mines and Geology Special Publication 42?
ii) Strong seismic ground shaking?
iii) Seismic-related ground failure, including
liquefaction?
iv) Landslides?
b) Result in substantial soil erosion or the loss of
topsoil?
c) Be located on a geologic unit or soil that is
unstable, or that would become unstable as a
result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence,
liquefaction or collapse?
d) Be located on expansive soil, as defined in
Table 18-1-B of the Uniform Building Code (1994),
creating substantial risks to life or property?
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e) Have soils incapable of adequately supporting
the use of septic tanks or alternative waste water
disposal systems where sewers are not available
for the disposal of waste water?
Discussion
a) The amendment area is level and comprised of loam and sandy loam soils. The area is not located near a seismic zone and would not be susceptible to liquefaction or landslide. b) The amendment would not result in substantial soil erosion. c) The site is not located on a geologic unit or soil that is unstable or would become unstable as a result of subsequent development.
d) The soils at the site are predominately sandy loam soils, not expansive soils. The City’s Urban Area General Plan MEIR found that there is low exposure to expansive soils and any exposure can be reasonably controlled by the adopted Uniform Building Code. e) Future development at the site will utilize the City’s sewer system for the disposal of waste water.
Resource: See pages V-17-1 through V-17-14 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
VII. GREENHOUSE GAS EMISSIONS: Would the
project:
a) Generate greenhouse gas emissions, either
directly or indirectly, that may have a significant
impact on the environment?
b) Conflict with an applicable plan, policy or
regulation adopted for the purpose of reducing the
emissions of greenhouse gases?
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Discussion
a) Generation of greenhouse gases would predominately occur with vehicle traffic.
Previous assumptions for development of the area were for Business Park, Multi-Family Residential and/or Commercial uses.
As proposed, the Crossings project would have two access points: Claus Road at Merle Avenue and Briggsmore Avenue at Held Drive.
A Traffic study provided by Fehr and Peers (November 2023, Attachment A) concludes that the project as proposed would not result in new deficiencies at Briggsmore/Held with installation of a roundabout for intersection control, and a roundabout or signalized intersection for Claus/Merle if Claus Road is downgraded to a Principal Arterial Street.
Under the General Plan’s model for daily trip rates for single-family residential uses, fewer trips would be generated if the amendment area develops with low-density residential uses.
Therefore, with mitigation measures applied, impacts would be less than significant. b) The project would not conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of greenhouse gasses.
Resource: See pages V-2-38 through V-2-43 of the MEIR, and Fehr and Peers November 2023 Traffic Study, Attachment A.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
VIII. HAZARDS AND HAZARDOUS MATERIALS:
Would the project:
a) Create a significant hazard to the public or the
environment through the routine transport, use, or
disposal of hazardous materials?
b) Create a significant hazard to the public or the
environment through reasonably foreseeable upset
and accident conditions involving the release of
hazardous materials into the environment?
c) Emit hazardous emissions or handle hazardous
or acutely hazardous materials, substances, or
waste within one-quarter mile of an existing or
proposed school?
d) Be located on a site which is included on a list of
hazardous materials sites compiled pursuant to
Government Code Section 65962.5 and, as a
result, would it create a significant hazard to the
public or the environment?
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May 5, 2023
e) For a project located within an airport land use
plan or, where such a plan has not been adopted,
within two miles of a public airport or public use
airport, would the project result in a safety hazard
for people residing or working in the project area?
f) For a project within the vicinity of a private
airstrip, would the project result in a safety hazard
for people residing or working in the project area?
g) Impair implementation of or physically interfere
with an adopted emergency response plan or
emergency evacuation plan?
h) Expose people or structures to a significant risk
of loss, injury or death involving wildland fires,
including where wildlands are adjacent to
urbanized areas or where residences are
intermixed with wildlands?
Discussion
a) The proposed amendments would allow for residential uses including low-density residential uses. Any impacts would be related to development of the amendment area. Upon development as a result of the amendments, subsequent projects would be subject to compliance with all applicable federal, state and local regulations pertaining to the handling, storage, disposal and transport of toxic or hazardous materials or wastes. b) See item A above.
c) See item A above.
d) The amendment area is not on the list of hazardous materials sites. e) The amendment area is more than six miles away from the nearest airport. f) The amendment area is approximately two hundred feet away from an airstrip that is part of the service facility of the East Side Mosquito Abatement District. The airstrip is used for a single prop-airplane used for mosquito-control spraying. The project was referred to the district, who did not indicate concerns with the project. g) The proposed amendment would not interfere with an emergency access plan or evacuation plan. Residential development would be subject to review by Modesto Police and Fire regarding emergency access.
h) No forest or wildland is in the vicinity of the amendment area.
Resource: See pages V-16-1 through V-16-15 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
#20..
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May 5, 2023
IX. HYDROLOGY AND WATER QUALITY: Would
the project:
a) Violate any water quality standards or waste
discharge requirements?
b) Substantially deplete groundwater supplies or
interfere substantially with groundwater recharge
such that there would be a net deficit in aquifer
volume or a lowering of the local groundwater table
level (e.g., the production rate of pre-existing
nearby wells would drop to a level which would not
support existing land uses or planned uses for
which permits have been granted)?
c) Substantially alter the existing drainage pattern
of the site or area, including through the alteration
of the course of a stream or river, in a manner
which would result in substantial erosion or siltation
on- or off-site?
d) Substantially alter the existing drainage pattern
of the site or area, including through the alteration
of the course of a stream or river, or substantially
increase the rate or amount of surface runoff in a
manner which would result in flooding on- or offsite?
e) Create or contribute runoff water which would
exceed the capacity of existing or planned
stormwater drainage systems or provide
substantial additional sources of polluted runoff?
f) Otherwise substantially degrade water quality?
g) Place housing within a 100-year flood hazard
area as mapped on a federal Flood Hazard
Boundary or Flood Insurance Rate Map or other
flood hazard delineation map?
h) Place within a 100-year flood hazard area
structures which would impede or redirect flood
flows?
i) Expose people or structures to a significant risk
of loss, injury or death involving flooding, including
flooding as a result of the failure of a levee or dam?
j) Inundation by seiche, tsunami, or mudflow
#20..
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May 5, 2023
Discussion
a) The proposed amendments to the General Plan land use diagram and Village One Specific Plan land use diagram would not cause a violation of any standards. Residential development to occur as a result of the amendments would be required by the City and state regulations to comply with water quality standards and waste discharge requirements. b) The proposed amendments would not substantially deplete groundwater supplies or interfere substantially with groundwater recharge. Subsequent development will be required to incorporate on-site storm water handling and drainage as provided by City Standards and the Village One Specific Plan.
c) The amendments would not substantially alter the existing drainage pattern of the site or area in a manner which would result in substantial surface runoff, erosion or siltation. There are no streams within or in the vicinity of the amendment area. The nearest river is Dry Creek approximately 0.5 miles away to the south.
d) See item C above.
e) New development as a result of the land use amendments would be required to treat and retain stormwater as required by City standards, and would therefore not be expected to result in substantial runoff.
f) See items B through E above.
g) The amendment area is not located within a 100-year floodplain or a 200-year floodplain. h) See item G above.
i) See item G above.
j) The City is not subject to impacts as a result of seiche or tsunami. The City is inland approximately 90 miles from the Pacific Ocean and has no large water bodies within its jurisdiction or nearby. The amendment area is flat land and is not subject to mudslides.
Resource: See pages V-9-1 through V-9-13 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
X. LAND USE AND PLANNING: Would the
project:
a) Physically divide an established community?
b)Conflict with any applicable land use plan, policy,
or regulation of an agency with jurisdiction over the
project (including, but not limited to the general
plan, specific plan, local coastal program, or zoning
ordinance) adopted for the purpose of avoiding or
mitigating an environmental effect?
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May 5, 2023
c) Conflict with any applicable habitat conservation
plan or natural community conservation plan?
Discussion
a) The proposal would not physically divide an established community. b) Regulations of the City of Modesto and development policies of the Village One Specific Plan (as amended) would be applicable to any subsequent development at the site. The proposed amendment to the General Plan and Specific Plan would allow for residential uses within the amendment area. Less than significant impact. c) The amendment would not conflict with any applicable habitat conservation plans or natural community conservation plans. The City currently does not have habitat conservation plans in place.
Resource: V-20-1 through V-20-14 of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XI. MINERAL RESOURCES: Would the project:
a) Result in the loss of availability of a known
mineral resource that would be of value to the
region and the residents of the state?
b) Result in the loss of availability of a locallyimportant mineral resource recovery site delineated on a local general plan, specific plan or other land
use plan?
Discussion
a) The amendment area is currently planted in nut tree orchards and has no known mineral resources.
b) The amendment area is not identified on any plan as being a location with mineral resources.
Resource: See pages V-17-1 through V-17-14 of the MEIR. #20..
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May 5, 2023
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XII. NOISE: Would the project result in:
a) Exposure of persons to or generation of noise
levels in excess of standards established in the
local general plan or noise ordinance, or applicable
standards of other agencies?
b) Exposure of persons to or generation of
excessive groundborne vibration or groundborne
noise levels?
c) A substantial permanent increase in ambient
noise levels in the project vicinity above levels
existing without the project?
d) A substantial temporary or periodic increase in
ambient noise levels in the project vicinity above
levels existing without the project?
e) For a project located within an airport land use
plan or, where such a plan has not been adopted,
within two miles of a public airport or public use
airport, would the project expose people residing or
working in the project area to excessive noise
levels?
f) For a project within the vicinity of a private
airstrip, would the project expose people residing
or working in the project area to excessive noise
levels?
#20..
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May 5, 2023
Discussion
a) The amendment area is adjacent to Claus Road to the west and the Burlington Northern Santa Fe railroad to the east. Claus Road is currently a two-lane county road with travel speeds in excess of 55 MPH and is also currently designated as a future six-lane expressway in the City’s General Plan.
The Noise Element of the General Plan found that decibel levels along the Claus Road frontage between Floyd Avenue and Orangeburg Avenue are at 73Ldn and up to 77Ldn with implementation of development per the General Plan, as measured at 75-feet from the centerline of the street. The applicant has provided a noise and vibration analysis (Illingworth and Rodkin Acoustics-Air Quality (September 2022, Attachment B and letter Attachment C).
The applicant has included with the Precise Plan document a Wall Plan that provides for a seven-foot high soundwall along the Claus Road frontage, a nine-foot soundwall along the BNSF Railroad to the east. Impacts, with the mitigation measures of soundwalls and structural acoustical treatment, would be less than significant. b) The proposal involves the development of new single-family residential uses which would not be expected to generate excessive ground borne vibration or groundborne noise levels.
However, the project area is adjacent to Claus Road and the Burlington Northern Santa Fe (BNSF) railroad. Homes within 200 feet of the rail line would potentially experience vibration generated by passing trains, and there would be vibration from passing traffic from Claus Road.
The applicant has provided a noise and vibration analysis by Illingworth & Rodkin, Inc.
Acoustics-Air Quality (September 2022, Attachment B and letter Attachment C). The study found that without mitigation measures applied, the vibration levels from passing traffic on Claus would be 75 VdB or less, and that ground borne vibration from passing train traffic would at the same levels. Application of mitigation measures for sound walls and structural acoustical treatment for homes within 200 feet of the railway would reduce impacts to a less than significant level.
c) Subsequent development as a result of the land use amendments would generate a temporary increase in ambient noise as a result of construction processes, but at a less than significant level.
d) See Item C above.
e) The amendment area is more than three miles away from the nearest public airport. There would be no impact. No mitigation is necessary.
f) The amendment area is within 75-feet of an airstrip operated by the East Side Mosquito Abatement District, which operates a single prop-engine airplane used for mosquito control spraying. The noise level of the facility’s operation is not expected to expose new residents to excessive noise levels. Therefore, impacts would be less than significant.
Resource: See pages V-3-1 through V-3-46 of the MEIR, and Illingworth & Rodkin, Inc. Noise Study (Attachment B) and letter (Attachment C).
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May 5, 2023
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XIII. POPULATION AND HOUSING: Would the
project:
a) Induce substantial population growth in an area,
either directly (for example, by proposing new
homes and businesses) or indirectly (for example,
through extension of roads or other infrastructure)?
b) Displace substantial numbers of existing
housing, necessitating the construction of
replacement housing elsewhere?
c) Displace substantial numbers of people,
necessitating the construction of replacement
housing elsewhere?
Discussion
a) The proposed amendments and associated 84-acre Vesting Tentative Subdivision Map would provide for 527 single-family residential lots, a density of approximately seven units per acre. The development would add much needed dwelling units to the housing stock of the City of Modesto and contribute to its Regional Housing Needs Allocation (RHNA) of the Housing Element.
b) The amendment area is currently in use as almond tree orchards. One existing residence would be demolished to facilitate new residential development in the area. c) See item B above.
Resource: See pages V-20-1 through V-20-14 of the MEIR. #20..
- 1456 -
May 5, 2023
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XIV. PUBLIC SERVICES:
a) Would the project result in substantial adverse
physical impacts associated with the provision of
new or physically altered governmental facilities,
need for new or physically altered governmental
facilities, the construction of which could cause
significant environmental impacts, in order to
maintain acceptable service ratios, response times
or other performance objectives for any of the
public services:
Fire protection?
Police protection?
Schools?
Parks?
Other public facilities?
#20..
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May 5, 2023
Discussion
a) New residential development as a result of the proposed General Plan and Specific Plan land use amendments would increase demand for police and fire services to the use, but subsequent development will be expected to pay into Community Facilities Districts (CFDs) and pay associated Capital Facilities Fees (CFF) at the time of building permit issuance, to mitigate the impact to less than significant. The police and fire departments indicated no concerns with the project. The nearest fire station is Station No. 11 at 4225 Carver Road, 1.2 miles to the east.
New residential development as a result of the amendments would increase demand for public school services, and any subsequent development would pay school impact fees at the time of building permit issuance.
Any subsequent development will be required to pay CFF for their fair share contribution towards the development and maintenance of parks in the vicinity to the site, in addition to paying into a Community Finance District (CFD) to cover the maintenance of the Specific Plan’s amenities. The Vesting Tentative Subdivision Map provides for a 4-acre dual-use storm basin/park and several small park/landscape lots throughout the subdivision that would be maintained by a new CFD.
Section VI.H.12 of the General Plan directs that new neighborhood parks have a minimum sizing of seven acres. As the project proposes a smaller park, the project would require a General Plan amendment to the policy to allow for more flexibility in the sizing of a new Neighborhood Park.
The nearest established parks to the area are Freedom Park approximately 0.50 miles away to the west, and Mary Grogan Community Park 1.75 miles to the northwest.
Resource: See pages V-14-1 through V-14-8 (Fire Services), V-13-1 through V-13-7 (Police Services), V-12-1 through V-12-8 (Schools), and V-11-1 through V-11-10 (Parks) of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XV. RECREATION:
a) Would the project increase the use of existing
neighborhood and regional parks or other
recreational facilities such that substantial physical
deterioration of the facility would occur or be
accelerated?
b) Does the project include recreational facilities or
require the construction or expansion of
recreational facilities which might have an adverse
physical effect on the environment?
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May 5, 2023
Discussion
a) The proposed amendments and tentative subdivision map would allow for new residential development which would potentially increase the use of existing parks in the vicinity of the amendment area, but not at a level that would cause substantial physical deterioration of the facilities. Any subsequent development would be required to pay Capital Facilities Fees (CFF) for its fair share contribution towards the development of any new parks. Less than significant impact.
b) The tentative subdivision map includes the provision of a four-acre dual-use storm basin/park and several small parks/landscape areas, but these would not have a significant adverse physical effect on the environment.
Resource: See pages V-11-1 through V-11-10 (Parks) of the MEIR.
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XVI. TRANSPORTATION/TRAFFIC: Would the
project:
a) Conflict with an applicable plan, ordinance or
policy establishing measures of effectiveness for
the performance of the circulation system, taking
into account all modes of transportation including
mass transit and non-motorized travel and relevant
components of the circulation system, including but
not limited to intersections, streets, highways and
freeways, pedestrian and bicycle paths, and mass
transit?
b) Conflict with an applicable congestion
management program, including, but not limited to
level of service standards and travel demand
measures, or other standards established by the
county congestion management agency for
designated roads or highways?
c) Result in a change in air traffic patterns,
including either an increase in traffic levels or a
change in location that results in substantial safety
risks?
d) Substantially increase hazards due to a design
feature (e.g., sharp curves or dangerous
intersections) or incompatible uses (e.g., farm
equipment)?
e) Result in inadequate emergency access?
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May 5, 2023
f) Conflict with adopted policies, plans or programs
regarding public transit, bicycle, or pedestrian
facilities, or otherwise decrease the performance or
safety of such facilities?
Discussion
a) Currently, Claus Road and East Briggsmore Avenue are classified in the General Plan’s Circulation Element as Expressways. General Plan policy disallows direct connection of a residential development to an Expressway. The project proposes the downgrade of Claus Road from its current designation of a six-lane Expressway to a four-lane Principal Arterial Street, for the segment between Sylvan Avenue and East Briggsmore Avenue, and the downgrade of East Briggsmore Avenue from an Expressway to a four-lane Principal Arterial street for the segment between Claus Road and the BNSF railroad crossing. If a GPA to downgrade the classification of both roadway segments is approved by the City Council, the intersection control of either a two-lane roundabout or signalized intersection would result in an LOS of C or better for Claus Road/Merle Ave,, and for the intersection of Briggsmore Avenue and Held Drive, installation of a roundabout would result in an LOS of B or better.
With these intersection controls as mitigation, the impact is less than significant. b) See Item A above.
c) The amendment area is not within the vicinity of a public airport, but the airstrip of the East Side Mosquito Abatement District, which utilizes a single prop-engine airplane for mosquito control spraying, is located approximately 75-feet away from the east boundary of the site.
The project is not expected to cause any impact to the airstrip nor cause a change in air traffic pattern.
d) The project, if approved with a General Plan amendment to the Circulation Plan to downgrade Claus Road and East Briggsmore Avenue to four-lane Principal Arterial streets, would require construction of roundabouts at the intersections of Claus Road/Merle Avenue and East Briggsmore/Held Drive. The roundabout at Claus/Merle would include an enhanced crosswalk feature to provide safer pedestrian crossings from the project area to schools and parks to the west of Claus Road. With these mitigation measures, the impact is less than significant.
e) The proposed amendments would not substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment). f) The Fire Department reviewed the proposed amendment and did not identify any issues with emergency access.
g) The project would not conflict with policies regarding public transit, bicycle or pedestrian facilities.
Resources: See pages V-1-1 through V-1-46 of the MEIR and Fehr and Peers November 2023 Traffic Study (Attachment A)
#20..
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May 5, 2023
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XVII. UTILITIES AND SERVICE SYSTEMS:
Would the project:
a) Exceed wastewater treatment requirements of
the applicable Regional Water Quality Control
Board?
b) Require or result in the construction of new
water or wastewater treatment facilities or
expansion of existing facilities, the construction of
which could cause significant environmental
effects?
c) Require or result in the construction of new
storm water drainage facilities or expansion of
existing facilities, the construction of which could
cause significant environmental effects?
d) Have sufficient water supplies available to serve
the project from existing entitlements and
resources, or are new or expanded entitlements
needed?
e) Result in a determination by the wastewater
treatment provider which serves or may serve the
project that it has adequate capacity to serve the
project’s projected demand in addition to the
provider’s existing commitments?
f) Be served by a landfill with sufficient permitted
capacity to accommodate the project’s solid waste
disposal needs?
g) Comply with federal, state, and local statutes
and regulations related to solid waste?
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May 5, 2023
Discussion
a) The amendments and residential development would not exceed treatment requirements of an applicable water quality control board.
b) The proposal would not result in the construction of new water or wastewater treatment facilities. The proposal was referred to the City’s Land Development Engineering Department and the Public Works Department, who indicated no concerns with the amendments and residential development.
c) The project will provide for storm water handling and treatment with the installation of a new dual-use park/basin and new underground storm mains as required by City Standards.
Projects would also comply with the City’s Stormwater Management Program, Guidance Manual for New Development.
d) There are sufficient water supplies to serve the project area. e) The City has sufficient wastewater capacity to serve the project area. f) Solid waste service is handled by the Gilton Solid Waste Management company, who indicated ability to serve the area at the time of the Specific Plan’s adoption. g) New development will be required to comply with statues and regulations related to solid waste.
Resources: See pages V-5-1 through V-5-24 (water) and V-6-1 through V-6-13 of the MEIR. #20..
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May 5, 2023
Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Less Than
Significant
Impact
No
Impact
XVIII. MANDATORY FINDINGS OF
SIGNIFICANCE
a) Does the project have the potential to degrade
the quality of the environment, substantially reduce
the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining
levels, threaten to eliminate a plant or animal
community, substantially reduce the number or
restrict the range of a rare or endangered plant or
animal or eliminate important examples of the
major periods of California history or prehistory?
b) Does the project have impacts that are
individually limited, but cumulatively considerable?
("Cumulatively considerable" means that the
incremental effects of a project are considerable
when viewed in connection with the effects of past
projects, the effects of other current projects, and
the effects of probable future projects)?
c) Does the project have environmental effects
which will cause substantial adverse effects on
human beings, either directly or indirectly?
#20..
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May 5, 2023
Discussion
a) As discussed in Section IV: Biological Resources, development at the site as a result of the land use amendments would not substantially impact wildlife habitat with mitigation measures applied.
b) As discussed in Section III: Air Quality, Section VII: Greenhouse Gases, Section XII: Noise, and Section XVI: Transportation and Traffic, the proposed land use amendments would result in the development of single-family residential uses in an area originally designated for Business Park, Commercial and Medium-High Density Residential uses. Generation of greenhouse gases would predominately occur with vehicle traffic, but not at levels that would exceed those assumed by the MEIR for low density residential uses. Potential impacts to traffic circulation, noise, greenhouse gasses and air quality would result from the project, but at levels less than significant with the application of mitigation measures from the MEIR and project-level mitigation measures for new intersection controls and sound attenuation.
As discussed in Section XIV: Public Services, above, new residential development as a result of the amendments would increase demand for public school services and parks, but not at a level that would cause substantial impacts to those facilities. Any subsequent development would pay school impact fees, and Capital Facilities Fees (CFF) for their fair share contribution towards the development and maintenance of schools and parks in the vicinity to the site.
c) This document identifies that the proposed amendments and residential development would have some cumulative environmental impact, but not at significant levels with the application of mitigation measures upon the onset of development. Therefore, impacts that may result from the proposed amendments to the General Plan and Village One Specific Plan are less than significant with mitigation measures applied.
Mitigation Measures to be applied to the project shall be outlined in a Mitigation Monitoring and Reporting Program (MMRP), attached with this Mitigated Negative Declaration (Attachment E). #20..
- 1464 -
The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 2 October 6, 2023
THE CROSSINGS
PROJECT MITIGATION MONITORING AND REPORTING PROGRAM
Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule Transportation and Circulation
1: Claus Road at Merle Avenue: The project developers shall install a twolane roundabout with an enhanced high-visibility crosswalk and a pedestrian HAWK signal system for the class 1 bike path crossing. Final Design shall consider if two-lane bypass roundabout design and right in/right out access is appropriate. This roundabout shall be designed by an experienced engineer who specializes in roundabout geometry and to the satisfaction of the City Engineer.
Project
Developers
Project Developers shall be
responsible for the road
improvement plans and
construction for the
intersection of Claus Road
and Merle Avenue (east and
west of Claus Road). Fair
share contribution by the
developer shall be by
mutual agreement between
the developer and the City
based on funding sources
through the establishment
of the Community Facilities
District or other sources.
City Engineer shall review
and approve road
improvement plans.
Developer shall construct
improvements.
Engineering Services
Department shall inspect and
accept improvements.
All improvement plans shall be
accepted by the City Engineer prior
to recordation of the Phase One
Final Map. All improvements shall
be completed prior to recordation of
the Phase Two Final Map.
2: East Briggsmore Avenue at Held Drive: The project developers shall construct a 2-lane roundabout with an enhanced high-visibility crosswalk.
This roundabout shall be designed by an experienced engineer who specializes in roundabout geometry and to the satisfaction of the City Engineer.
Project
Developers
Project Developers shall be
responsible for the road
improvement plans and
construction for the
intersection of East
Briggsmore Avenue and
Held Drive.
City Engineer shall review
and approve road
improvement plans.
Developer shall construct
improvements.
Engineering Services
Department shall inspect and
accept improvements.
All improvement plans shall be
accepted by the City Engineer prior
to recordation of the Phase Two
Final Map. All improvements shall
be completed prior to recordation of
the Phase Three Final Map.
3: East Merle Avenue at Street F: The project developers shall install a roundabout to the Tivoli Specific Plan roundabout standard and to the satisfaction of the City Engineer.
Project
Developers
Project Developers shall be
responsible for the road
improvement plans and
construction of the
roundabout.
City Engineer shall review
and approve road
improvement plans.
Developer shall construct
improvements.
Engineering Services
Department shall inspect and
accept improvements.
All improvement plans shall be
accepted by the City Engineer prior
to recordation of the Phase Two
Final Map. All improvements shall
be completed prior to recordation of
the Phase Three Final Map.
#20..
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 3 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule 4: Held Drive at Street M: The project developers shall install a roundabout to the Tivoli Specific Plan roundabout standard and to the satisfaction of the City Engineer.
Project
Developers
Project Developers shall be
responsible for the road
improvement plans and
construction of the
roundabout.
City Engineer shall review
and approve road
improvement plans.
Developer shall construct
improvements.
Engineering Services
Department shall inspect and
accept improvements.
All improvement plans shall be
accepted by the City Engineer prior
to recordation of the Phase Two
Final Map. All improvements shall
be completed prior to recordation of
the Phase Three Final Map.
5: Claus Road between Sylvan Avenue and Briggsmore Avenue:
Developer shall dedicate sufficient right-of-way along the project frontage to allow for four-lane Principal Arterial Street alignment. Developer shall install improvements along project frontage that shall include but not be limited to:
• Median, curb, gutter and sidewalk along Claus Road frontage; • Landscape planter between concrete masonry wall and sidewalk per approved street cross-sections;
• Landscape planter between sidewalk and northbound travel lanes per approved street cross-sections.
Project
Developers
Project Developers shall be
responsible for the road
improvement plans and
construction of frontage
improvements including but
not limited to curb, gutter,
sidewalk and landscape
planters.
City Engineer shall review
and approve road
improvement plans.
Developer shall construct
improvements.
Engineering Services
Department shall inspect and
accept improvements.
All improvement plans shall be
accepted by the City Engineer prior
to recordation of the Phase One
Final Map. All improvements shall
be completed prior to recordation of
the Phase Two Final Map.
6. Interior 60’ and 69’ street cross-sections:
The interior streets shall be designed to the satisfaction of the City Engineer.
Current plans submitted only show renderings. Revisions to the proposed bike path that runs throughout the neighborhood may be required, specifically design for intersection bike/ped crossings.
Project
Developers
Project Developers shall be
responsible for the road
improvement plans and
construction of frontage
improvements including but
not limited to curb, gutter,
sidewalk, bike path and
landscape planters.
City Engineer shall review
and approve road
improvement plans.
Developer shall construct
improvements.
Engineering Services
Department shall inspect and
accept improvements.
Noise
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 4 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule
1. Sound Walls
Developer shall install CMU or pre-cast concrete masonry walls per the Wall Plan of the Precise Plan, as follows:
• A nine-foot-high sound wall along the BNSF rail alignment at the rear of Lots 204-231 and 285-305,
• A seven-foot-high sound wall along the Claus Road frontage at the rear of Lots 148 and 316-330 (excepting entry Lots A and B at Merle Avenue)
• A seven-foot-high sound wall along the East Briggsmore Avenue frontage at the rear of Lots 1-12.
Project
Developers
Project Developers shall be
responsible for wall
installation to the
satisfaction of the Chief
Building Official.
Chief Building Official shall
review and approve wall
plans.
Developer shall construct
improvements.
Building Safety Division shall
inspect and accept
improvements.
Nine-foot-high sound wall shall be
installed prior to Certificate of
Occupancy of the first residence
along Lots 204-231 or 285-305.
Seven-foot-high sound wall shall be
installed prior to Certificate of
Occupancy of the first residence
along Lots 1-12., 316-330 or Lot
148.
2. General Plan MEIR Mitigation Measures, Noise
• Noise-7. Incorporate construction practices and acoustic treatment in new residential construction to reduce typical indoor noise levels to 45 dB. Developers of residential buildings within the 65 dBA contours shown in the General Plan Master EIR shall demonstrate that interior noise has been reduced to 45 dB. Other types of development should be protected against noise intrusion at least to the levels indicated on UAGP Table VII-2. (Policy VIIG.3.e) o All homes within 200-feet of the BNSF railway
o All homes within 90 feet of Claus Road
o All homes within 90 feet of East Briggsmore Avenue
Project
Developers
Project Developers shall
submit construction plans
showing the location and
design features of noise
reduction features and
implement the features.
Chief Building Official shall
review and approve building
permits for affected homes.
Building Safety Division shall
inspect and accept
construction.
All noise reducing features shall be
incorporated into the construction of
affected homes to the satisfaction
of the Chief Building Official prior to
issuance of Certificate of
Occupancy for each affected home.
• Noise-14. For new residential development proposed in areas within 200 feet of the center of the near mainline of active rail lines where single-event noise from trains is of concern, demonstrate that the proposed development will incorporate measures to reduce maximum noise levels generated during train passbys to 50 dBA Lmax or less inside bedrooms and to 55 dBA Lmax or less inside other noise sensitive occupied areas. (Policy VII-G.3.l) Project
Developers
Project Developers shall
submit construction plans
showing the location and
design features of noise
reduction features and
implement the features.
Chief Building Official shall
review and approve building
permits for affected homes.
Building Safety Division shall
inspect and accept
construction.
All noise reducing features shall be
incorporated into the construction of
affected homes to the satisfaction
of the Chief Building Official prior to
issuance of Certificate of
Occupancy for each affected home.
• Noise-15. For new residential and vibration sensitive commercial development (including but not limited to lodging facilities, hospitals and similar uses) located within 200 feet of the center of the near mainline of active rail lines, demonstrate that the proposed development will incorporate measures to reduce vibration levels generated during train passby events to meet the FTA vibration criteria as shown in Master EIR Table V-3-6. (Policy VII-G.3.m)
Project
Developers
Project Developers shall
submit construction plans
showing the location and
design features of noise
reduction features and
implement the features.
Chief Building Official shall
review and approve building
permits for affected homes.
Building Safety Division shall
inspect and accept
construction.
All noise reducing features shall be
incorporated into the construction of
affected homes to the satisfaction
of the Chief Building Official prior to
issuance of Certificate of
Occupancy for each affected home.
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 5 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule
3. General Plan MEIR Mitigation Measures, Noise
• Noise-4: Implement noise-reducing construction practices as conditions of approval where substantial construction-related noise impacts would be likely to occur, such as with extended periods of pile driving, or where construction is expected to continue or where sensitive receptors would be affected by construction noise. Conditions of approval may include, but are not limited to:
◦ Require construction equipment, including air compressors and pneumatic equipment to have properly maintained mufflers; ◦ Require impact tools to be equipped with shrouds or shields; ◦ Require that the quietest equipment available be used; and, ◦ Require selection of haul routes that affect the fewest number of people. (Policy VII-G.3.b)
Project
Developers
Project Developers shall be
responsible for
implementation of noisereducing construction
practices.
Project Developers shall
report to the Community and
Economic Development
Director on techniques used
to reduce noise impacts in
the construction phases of
the project.
Throughout all phases of
construction.
Air Quality
1. Development of the project shall incorporate the following mitigation measures from the Modesto Urban Area General Plan MEIR:
• AQ-100. Reduce particulate emissions from construction, grading, excavation, and demolition to the maximum extent feasible in accordance with the requirements of SJVAPCD Regulation VIII.
Regulation VIII was adopted to reduce the amount of particulate matter suspended in the atmosphere as a result of emissions generated from anthropogenic (man-made) fugitive dust sources. (Policy VII.H.2.jj) Project
Developers
Project Developers shall
review Regulation VIII and
submit a compliance plan to
the City of Modesto’s
Community and Economic
Development Department.
The compliance plan shall
be incorporated in
construction contracts and
implemented by developers.
Project Developers shall
provide draft compliance plan
to the Community and
Economic Development
Department for review and
approval.
Compliance plan shall be submitted
to and approved by the Community
and Economic Development
Department prior to the issuance of
a grading or building permit,
whichever occurs first.
• AQ-103. Effectively stabilize dust emissions using water, chemical stabilizer / suppressant, cover with a tarp or other suitable cover or vegetative ground cover, all disturbed areas, including storage piles, which are not being actively utilized for construction purposes. (Policy VII.H.2.mm)
Project
Developers
Developer shall ensure that
construction practices
stabilizes dust emissions
throughout all phases of
construction.
Project Developers shall
report to the Community and
Economic Development
Director on techniques used
to stabilize dust emissions
during construction phases.
Throughout all phases of
construction.
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 6 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule • AQ-104. Effectively stabilize dust emissions using water or chemical stabilizer / suppressant, all onsite unpaved roads and off-site unpaved access roads. (Policy VII.H.2.nn)
Project
Developers
Developer shall ensure that
construction practices
stabilizes dust emissions
throughout all phases of
construction.
Project Developers shall
report to the Community and
Economic Development
Director on techniques used
to stabilize dust emissions
during construction phases.
Throughout all phases of
construction.
• AQ-105. Effectively control fugitive dust emissions utilizing application of water or by presoaking all land clearing, grubbing, scraping, excavation, land leveling, grading, cut & fill, and demolition activities. (Policy VII.H.2.oo)
Project
Developers
Developer shall ensure that
construction practices
stabilizes dust emissions
throughout all phases of
construction.
Project Developers shall
report to the Community and
Economic Development
Director on techniques used
to stabilize dust emissions
during construction phases.
Throughout all phases of
construction.
• AQ-107. When materials are transported off site, cover all materials, or effectively wet them to limit visible dust emissions, and maintain at least six inches of freeboard from top of container. (Policy VII.H.2.qq) Project
Developers
Developer shall ensure that
construction practices
stabilizes dust emissions
throughout all phases of
construction.
Project Developers shall
report to the Community and
Economic Development
Director on techniques used
to stabilize dust emissions
during construction phases.
Throughout all phases of
construction.
• AQ-108. Limit operations or expeditiously remove the accumulation of mud or dirt from adjacent public streets at the end of each workday (the use of dry rotary brushes is expressly prohibited except where preceded or accompanied by sufficient wetting to limit the visible dust emissions.) (Use of blower devices is expressly forbidden.) (Policy VII.H.2.rr)
Project
Developers
The construction foreman or
liaison shall ensure that
wheel washers and/or
equipment washers are in
place at all points of exit
from the site and are
correctly implemented.
Construction foreman or
liaison shall record
inspections in a daily
construction log and submit
results in a monthly report to
the Community and
Economic Development
Director.
The washers shall be provided prior
to issuance of grading or building
permit, whichever occurs first.
Implement measures throughout
the construction duration.
• AQ-109. Following the addition of materials to, or the removal of materials from, the surface of outdoor storage piles, effectively stabilize said piles for fugitive dust emissions utilizing sufficient water or chemical stabilizer / suppressant. (Policy VII.H.2.ss)
Project
Developers
Developer shall ensure that
construction practices
stabilizes dust emissions
throughout all phases of
construction.
Project Developers shall
report to the Community and
Economic Development
Director on techniques used
to stabilize dust emissions
during construction phases.
Throughout all phases of
construction.
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 7 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule • AQ-110. Within urban areas, immediately remove trackout when it extends 50 or more feet from the site and at the end of each workday. (Policy VII.H.2.tt)
Project
Developers
The construction foreman or
liaison shall establish and
implement a daily street
sweeping schedule during
construction activities that
involve movement of soil.
The construction foreman or
liaison shall monitor daily
street sweeping and provide
a daily log.
Results shall be submitted in
a monthly report to the
Community and Economic
Development Director.
Project Developer shall provide a
daily street sweeping schedule prior
to the issuance of grading or
building permit, whichever occurs
first.
Implement measures throughout
the construction duration.
• AQ-111. Prevent carryout and trackout for any site with 150 or more vehicle trips per day. (Policy VII.H.2.uu)
Project
Developers
The construction foreman or
liaison shall establish and
implement a daily street
sweeping schedule during
construction activities that
involve movement of soil.
The construction foreman or
liaison shall monitor daily
street sweeping and provide
a daily log.
Results shall be submitted in
a monthly report to the
Community and Economic
Development Director.
Project Developer shall provide a
daily street sweeping schedule prior
to the issuance of grading or
building permit, whichever occurs
first.
Implement measures throughout
the construction duration.
• AQ-112. Limit traffic speeds on unpaved roads to 15 mph. (Policy VII.H.2.vv)
Project
Developers
The construction foreman or
liaison shall post speed limit
signs and ensure that
construction vehicle
operators travel at or less
than 15 mph.
The construction foreman or
liaison shall monitor speed
limits.
Project Developers shall
monitor compliance
throughout the construction
duration.
The Project Developers shall install
speed limit signs as part of the site
preparation process prior to
issuance of a grading permit.
Implement measures throughout
the construction duration.
• AQ-113. Install sandbags or other erosion control measures to prevent silt runoff to public roadways from sites with a slope greater than one percent (1%). (Policy VII.H.2.ww)
Project
Developers
All slopes shall be
measured by the Project
Developers and identified
on the building permit plan
set submitted. The
construction foreman or
liaison shall oversee the
placement of sandbags or
other runoff control
measure(s) on all slopes
determined to have a slope
greater than 1 percent.
The construction foreman or
liaison shall monitor runoff
control measure(s) and shall
conduct weekly runoff control
measure(s) inspections and
shall submit results in a
monthly report to the
Community and Economic
Development Director.
The building permit submittal shall
identify slope measurements.
Implement measures throughout
the construction duration.
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 8 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule • AQ-114. Install wheel washers for all exiting trucks, or wash all trucks and equipment leaving the site. (Policy VII.H.2.xx)
Project
Developers
The construction foreman or
liaison shall ensure that
wheel washers and/or
equipment washers are in
place at all points of exit
from the site and are
correctly implemented.
Construction foreman or
liaison shall record
inspections in a daily
construction log and submit
results in a monthly report to
the Community and
Economic Development
Director.
The washers shall be provided prior
to issuance of grading or building
permit, whichever occurs first.
Implement measures throughout
the construction duration.
• AQ-115. Install wind breaks at windward side(s) of construction areas. (Policy VII.H.2.yy)
Project
Developers
Windbreaks shall be
installed by the Project
Developers.
The construction foreman or
liaison shall ensure that
windbreaks are correctly
placed and implemented.
The construction foreman or
liaison shall inspect installed
windbreaks on a weekly
basis and record inspections
in the construction log.
Inspection results shall be
submitted in a monthly report
to the Community and
Economic Development
Director.
Windbreaks shall be installed by the
Project Developers prior to the
issuance of grading or building
permit, whichever occurs first.
Implement measures throughout
the construction duration.
• AQ-116. Suspend excavation and grading activity when winds exceed 20 mph (regardless of windspeed, an owner/operator must comply with Regulation VIII’s 20 percent opacity limit). (Policy VII.H.2.zz) Project
Developers
Project developers shall
install wind speed
measuring devices and
ensure that these devices
are correctly located and
calibrated.
The construction foreman
shall cease all excavating
and grading activities when
wind speed measuring
devices indicate speeds over
20 mph.
Suspension of construction
activity due to wind speeds
shall be recorded in the
construction log.
Construction reports shall be
submitted to the Community
and Economic Development
Director on a monthly basis.
Wind speed measuring devices
shall be installed by the Project
Developers prior to the issuance of
grading or building permit,
whichever occurs first.
Implement measures throughout
the construction duration.
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 9 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule • AQ-117. Limit the area subject to excavation, grading, and other construction activity at any one time. (Policy VII.H.2.aaa) Project
Developers
The project sponsor shall
provide a written statement
with any request for
development permits or
other permits involving
movement of soil supporting
a determination that the
request minimizes the
amount of exposed soil on
the project site during the
relevant construction period.
The Community and
Economic Development
Director will either accept
the report or require
additional means to reduce
the amount of exposed soil,
such as hydroseeding or
planting vegetation with
irrigation, in areas that are
proposed to be exposed for
more than 20 days with no
construction activity.
Construction shall comply
with the General
Construction Permit.
The construction foreman or
liaison shall ensure that
construction activities do not
exceed the allowable area of
excavation and grading
activity permitted on the site
and shall oversee
implementation of any
required best management
practices.
The construction foreman or
liaison shall record
excavation and grading
activities in a construction log
on a daily basis and submit
results in a monthly report to
the Community and
Economic Development
Director.
Project Developer shall provide a
plan to reduce soil exposure prior to
the issuance of grading or building
permit, whichever occurs first.
Implement measures throughout
the construction duration.
Increased Demand for Storm Drainage/Flooding and Water Quality
1. Development of the project shall incorporate the following mitigation measures from the Modesto Urban Area General Plan MEIR:
• SD-10/FWQ-11. Construction activities shall comply with the requirements of the City’s Stormwater Management Plan under its municipal NPDES stormwater permit, and the State Water Resources Control Board’s General Permit for Discharges of Storm Water Associated with Construction Activity. (Policy VI.G.3)
Project
Developers
Project Developers shall
submit construction
drawings demonstrating
compliance with relevant
City requirements.
The City Engineer and
Building Division shall review
and approve all construction
plans to ensure that all
required storm water
requirements are met.
Prior to issuance of a building or
grading permit.
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 10 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule • SD-12/FWQ-13. Ensure that new development complies with the City of Modesto’s Stormwater Management Program: Guidance Manual for New Development Stormwater Quality Control Measures. (Policy VI.G.5)
Project
Developers
Project Developers shall
submit construction
drawings demonstrating
compliance with relevant
City requirements.
The City Engineer and
Building Division shall review
and approve all construction
plans to ensure that all
required storm water
requirements are met.
Prior to issuance of a building or
grading permit.
• SD-13/FWQ-14. Require new development to implement an appropriate selection of permanent pollution control measures in accordance with the City’s implementation policies for the municipal NPDES stormwater permit. (Policy VI.G.6)
Project
Developers
Project Developers shall
submit construction
drawings demonstrating
compliance with relevant
City requirements.
The City Engineer and
Building Division shall review
and approve all construction
plans to ensure that all
required storm water
requirements are met.
Prior to issuance of a building or
grading permit.
• SD-15/FWQ-16. Integrate Low Impact Development principles into proposed development projects’ design. Low Impact Development is a storm water management and land development strategy that promotes conservation and use of natural on-site features combined with engineered small-scale hydrologic devices. In designing development projects, minimize the amount of impervious surface in order to maximize on-site infiltration of stormwater runoff and minimize the potential for storm water runoff from the site. (Policy VI.G.8) Project
Developers
Project Developers shall
submit construction
drawings demonstrating
compliance with relevant
City requirements.
The City Engineer and
Building Division shall review
and approve all construction
plans to ensure that all
required storm water
requirements are met.
Prior to issuance of a building or
grading permit.
Generation of Hazardous Materials
1. Development of the project shall incorporate the following mitigation measures from the Modesto Urban Area General Plan MEIR:
• HM-5. In the event that site inspection or construction activities uncover chemical contamination, underground storage tanks, abandoned drums, or other hazardous materials or wastes at a parcel, the inspection report preparer shall so notify the City. The City shall notify the County Health Services Department. Under the direction of these agencies, a site remediation plan would be prepared by the project applicant.
Project
Developers
Project Developers shall
retain a registered
environmental assessor to
conduct Phase I
Environmental Site
Assessments on properties
where the assessment was
not previously prepared and
implement the remediation.
The Community and
Economic Development
Department shall review and
approve the Phase I
Environmental Site
Assessments.
Conduct Phase I Environmental
Site Assessments prior to issuance
of grading or building permit,
whichever occurs first.
Remediation shall be implemented
prior to issuance of grading or
building permit or as determined by
the Phase I ESA.
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The Crossings: Project Mitigation Monitoring and Reporting Program Initial Study EA No. C&ED 2023-26 The Crossings Project City of Modesto General Plan Master EIR 11 October 6, 2023 Mitigation Measure Mitigation
Responsibility Monitoring Actions Monitoring / Reporting Responsibility Schedule • HM-8. Applicants for building permits should determine that a site containing or formerly containing residences or farm buildings / structures has been fully investigated for the presence of hazardous materials or wastes prior to issuance of the permit. Investigation should consist of, at minimum, a Phase I environmental site assessment and a Phase II site assessment, if found necessary as a result of the Phase I assessment. The findings of the site assessment should be reported to the City and the County’s Department of Environmental Resources. The appropriate remediation should occur prior to final occupancy of the approved development. (Policy VI.M.6) Project
Developers
Project Developers shall
retain a registered
environmental assessor to
conduct Phase I
Environmental Site
Assessments on properties
where the assessment was
not previously prepared and
implement the remediation.
The Community and
Economic Development
Department shall review and
approve the Phase I
Environmental Site
Assessments.
Conduct Phase I Environmental
Site Assessments prior to issuance
of grading or building permit,
whichever occurs first.
Remediation shall be implemented
prior to issuance of grading or
building permit or as determined by
the Phase I ESA.
Loss of Sensitive Wildlife and Plant Habitat
1. Development of the project shall incorporate the following mitigation measures from the Modesto Urban Area General Plan MEIR:
• SWPH-12: For proposed development consistent with the adopted Urban Area General Plan on lands within the Baseline Developed Area and Downtown, exclusive of lands within the Dry Creek and Tuolumne River Comprehensive Planning Districts, an assessment of whether any potential habitat for special-status species is present within proposed development areas shall be made. No further biological study is warranted unless habitat is present or if specific information concerning the known or potential presence of significant biological resources is identified in future updates of the California Natural Diversity Database, or through formal or informal input received from resource agencies or other qualified sources (Policy VII-E.2[a]).
Project
Developers
Project Developers shall
retain a qualified
ornithologist to conduct preconstruction surveys of
project site and adjacent
areas within 0.5 mile of
project site during at least
two of the survey periods
identified. Identify and
implement appropriate
mitigation measures.
CDFG shall review and
approve the pre-construction
surveys to ensure that
project initiation will not result
in nest disturbance.
Prior to issuance of the first grading
or building permit, whichever occurs
first.
• SWPH-14. Additional measures to protect sensitive habitats may be implemented. Potential measures to be implemented may include measures listed in Table V-7-1 in the General Plan MEIR.
Project Developer Project Developer shall
provide and implement
mitigation plans in
accordance with CDFG
requirements.
CDFG shall review and
approve the habitat
mitigation strategy.
Provide and implement approved
habitat mitigation strategy prior to
issuance of the first grading or
building permit, whichever occurs
first.
−
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City of Modesto Planning Commission
Minutes
December 18, 2023
1 Being the hour of 6:00 pm, the meeting was called to order by Chairperson Silva.
I. ROLL CALL
Commissioners Present: Birring, Black, Russell, Shanks, Silva, and Vohra Commissioners Absent: Vazquez
MOTION
It was moved by Commissioner Russell, seconded by Commissioner Birring, and carried unanimously (6-0) that Commissioner Vazquez be excused from this meeting.
II. APPROVAL OF MINUTES
It was moved by Commissioner Shanks, seconded by Commissioner Vohra, and carried unanimously (5-0-1) that the minutes of the regular meeting of November 6, 2023, be approved. Commissioner Black abstained as she was not present at the meeting.
III. CONFLICT OF INTEREST DECLARATION
None
IV. PUBLIC HEARINGS
Item A The Crossings: General Plan Land Use Amendment, Specific Plan Land Use Amendment, with Precise Plan Area No. 35, Vesting Tentative Subdivision Map and Final Development Plan; submitted by DR Horton Bay Inc.
Contact Info: Katharine Martin, 577-5267, [email protected] Motion/Action (Approved)
It was moved by Commissioner Vohra, seconded by Commissioner Shanks, and carried by majority (5-1) (Birring, Russell, Shanks, Silva, Vohra, ayes; Black, noes; Vazquez, absent; None, recused) that the Planning Commission adopt Resolution No. 2023-31 A RESOLUTION RECOMMENDING TO THE CITY
COUNCIL ADOPTION OF AN AMENDMENT TO THE MODESTO URBAN AREA GENERAL PLAN (DR HORTON BAY INC.)
Motion/Action (Approved)
It was moved by Commissioner Vohra, seconded by Commissioner Shanks, and carried by majority (5-1) (Birring, Russell, Shanks, Silva, Vohra, ayes; Black, noes; Vazquez, absent; None, recused) that the Planning Commission adopt Resolution No. 2023-32 A RESOLUTION RECOMMENDING TO THE CITY COUNCIL APPROVAL OF SPECIFIC PLAN AMENDMENT NO. 26 TO THE VILLAGE
ONE SPECIFIC PLAN TO AMEND THE LAND USE DIAGRAM FROM BUSINESS PARK (BP) TO VILLAGE RESIDENTIAL (VR), 140 ACRES EAST OF CLAUS ROAD
AND NORTH OF EAST BRIGGSMORE AVENUE, WITH ASSOCIATED AMENDMENT
TO THE CIRCULATION DIAGRAM AND TEXT AMENDMENTS (DR HORTON BAY INC)
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Planning Commission Minutes 2 December 18, 2023
Motion/Action (Approved)
It was moved by Commissioner Vohra, seconded by Commissioner Shanks, and carried by majority (5-1) (Birring, Russell, Shanks, Silva, Vohra, ayes; Black, noes; Vazquez, absent; None, recused) that the Planning Commission adopt Resolution No. 2023-33 A RESOLUTION RECOMMENDING TO THE CITY
COUNCIL APPROVAL OF A PRECISE PLAN FOR VILLAGE ONE PRECISE PLAN AREA NO. 35 SOUTH AND AN AMENDMENT TO SECTION 18-3-10 OF THE
ZONING MAP TO REZONE FROM SPECIFIC PLAN-HOLDING (SP-H) ZONE TO
SPECIFIC PLAN (SP) ZONE, PROPERTY LOCATED EAST OF CLAUS ROAD, SOUTH
OF MILNES ROAD AND NORTH OF EAST BRIGGSMORE AVENUE (DR HORTON BAY INC.)
Motion/Action (Approved)
It was moved by Commissioner Vohra, seconded by Commissioner Shanks, and carried by majority (5-1) (Birring, Russell, Shanks, Silva, Vohra, ayes; Black, noes; Vazquez, absent; None, recused) that the Planning Commission adopt Resolution No. 2023-34 A RESOLUTION RECOMMENDING TO THE CITY
COUNCIL APPROVAL OF THE VESTING TENTATIVE MAP OF THE CROSSINGS (DR HORTON BAY INC)
Motion/Action (Approved)
It was moved by Commissioner Vohra, seconded by Commissioner Shanks, and carried by majority (5-1) (Birring, Russell, Shanks, Silva, Vohra, ayes; Black, noes; Vazquez, absent; None, recused) that the Planning Commission adopt Resolution No. 2023-35 A RESOLUTION RECOMMENDING TO THE CITY
COUNCIL APPROVAL OF A FINAL DEVELOPMENT PLAN FOR THE CROSSINGS, IN THE VILLAGE ONE SPECIFIC PLAN, FOR 527 SINGLE–FAMILY RESIDENTIAL
LOTS, FIVE LANDSCAPE LOTS AND ONE PARK LOT ON PROPERTY LOCATED EAST OF CLAUS ROAD AND NORTH OF E. BRIGGSMORE AVENUE (DR HORTON
BAY INC)
V. OTHER BUSINESS
Item B Conformity Report Determination for the Proposed Acquisition of Property Located at 1920 Blue Gum Avenue (APN: 081-026-004 and 081-026-005); submitted by Modesto City School District
Contact Info: Michael Hren, 577-5267, [email protected] Motion/Action (Approved)
It was moved by Commissioner Shanks, seconded by Commissioner Black, and carried unanimously (6-0) (Birring, Black, Russell, Shanks, Silva, Vohra, ayes; None, noes; Vazquez, absent; None, recused) that the Planning Commission adopt Resolution No. 2023-36 A RESOLUTION DETERMINING GENERAL PLAN
CONFORMITY FOR THE PROPOSED ACQUISITION OF REAL PROPERTY BY THE MODESTO CITY SCHOOL DISTRICT, PROPERTY LOCATED AT 1920 BLUE GUM AVENUE (APN: 081 026 004 AND 081 026 005)
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Planning Commission Minutes 3 December 18, 2023
Item C Resolution of Appreciation of Commissioner Vohra Motion/Action (Approved)
It was moved by Commissioner Shanks, seconded by Commissioner Birring, and carried unanimously (6-0) (Birring, Black, Russell, Shanks, Silva, ayes; None, nones; Vazquez, absent; None, recused) that the Planning Commission adopt Resolution No. 2023-37 A RESOLUTION OF APPRECIATION TO AMIN VOHRA Item D Election of Chair and Vice Chair
Motion/Action (Approved)
It was moved by Commissioner Vohra, seconded by Commissioner Silva, and carried unanimously (6-0) (Birring, Black, Russell, Shanks, Silva; ayes; None, noes; Vazquez, absent; None, recused) that the Planning Commission appoint Commissioner Roger Shanks as the 2024 Chair and Commissioner Cecil Russell the 2024 Vice Chair
Item E Elect Board of Zoning Adjustment Representative
Motion/Action (Approved)
It was moved by Commissioner Russell, seconded by Commissioner Silva, and carried unanimously (6-0) (Birring, Black, Russell, Shanks, Silva, ayes; None, noes; Vazquez, absent; None, recused) that the Planning Commission appoint Commissioner Shanks to the Board of Zoning Adjustment
Item F Elect Citizen’s Housing & Community Development Committee Representative Motion/Action (Approved)
It was moved by Commissioner Shanks, and seconded by Commissioner Silva, and carried unanimously (6-0) (Birring, Black, Russell, Shanks, Silva, ayes; None, noes; Vazquez, absent; None, recused) that the Planning Commission appoint Commissioner Russell to the Citizens Housing & Community Development Committee
Item G 2024 PC BZA LPC Calendar Approval
Motion/Action (Approved)
It was moved by Commissioner Shanks, seconded by Commissioner Silva, and carried unanimously (6-0) (Birring, Black, Russell, Shanks, Silva, Vohra, ayes; None, noes; Vazquez, absent; None, recused) that the Planning Commission approve the 2024 calendar #20..
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Planning Commission Minutes 4 December 18, 2023
VI. ORAL COMMUNICATIONS
None.
VII. MATTERS TOO LATE FOR THE AGENDA
None.
VIII. ADJOURNMENT
The meeting was adjourned at 7:30 pm.
Original, signed copy on file in CEDD
Jessica Hill, Secretary
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ITEM A
Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 1
CITY OF MODESTO
PLANNING COMMISSION STAFF REPORT
1010 10th STREET
MODESTO, CA 95354
(209) 577-5267
TO: Chairperson Silva and Members of the Planning Commission PREPARED BY: Katharine Martin, Senior Planner
Contact Info: 577-5267 [email protected]
APPROVED BY: Jessica Hill, Acting Planning Manager
MEETING DATE: December 18, 2023
SUBJECT: GPA-22-001/SPA-22-002/PP-22-001/TSM-22-002/FDP-22-003 – The Crossings: General Plan Land Use Amendment, Specific Plan Land Use Amendment, with Precise Plan Area No. 35, Vesting Tentative Subdivision Map and Final Development Plan; submitted by DR Horton Bay Inc.
RECOMMENDATION
Resolution recommending to the City Council adoption of an amendment to the Modesto Urban Area General Plan;
Resolution recommending to the City Council approval of Specific Plan Amendment No. 26 to the Village One Specific Plan, to amend the Land Use Diagram from Business Park (BP) to Village Residential (VR), 140 acres east of Claus Road and north of East Briggsmore Avenue, with associated amendment to the Circulation Diagram and text amendments; Resolution recommending to the City Council approval of a Precise Plan for Village One Precise Plan Area No. 35 South and an amendment to Section 18-3-10 of the Zoning Map to rezone from Specific Plan-Holding (SP-H) Zone to Specific Plan (SP) Zone, property located east of Claus Road, south of Milnes Road and North of East Briggsmore Avenue; Resolution recommending to the City Council approval of the Vesting Tentative Subdivision Map of The Crossings;
Resolution recommending to the City Council approval of a Final Development Plan for The Crossings, in the Village One Specific Plan, for 527 single-family residential lots, five landscape lots and one park lot on property located east of Claus Road and north of East Briggsmore Avenue.
BACKGROUND
The Village One Specific Plan, comprised of 35 individual Precise Plan areas, was adopted on October 16, 1990, to allow for new residential and commercial developments in northeast Modesto. Precise Plan No. 35 is located at the easterly edge of the Specific Plan and was designated for Business Park (BP) uses to allow for employment-intensive office and industrial development adjacent to Claus Road, designated as an Expressway in both the General Plan #20..
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Public Hearing Item A Page 2
and Specific Plan, and the Burlington Northern Santa Fe railroad to the east. Subsequently to the establishment of the Specific Plan’s land use designation, the General Plan’s 2019 update changed the General Plan Land Use Element’s designation of the area to Business ParkCommercial-Residential (BCR). This was done to facilitate commercial and multi-family residential development in addition to the office/industrial uses permitted in the Business Park designation. In order for a project to develop in the area, it would require the adoption of a Precise Plan document to outline such development and associated infrastructure. However, no commercial, office or multi-family residential development has been proposed for the area since adoption of the Specific Plan, and Claus Road remains in its current alignment as a two-lane road.
PROJECT DESCRIPTION
On July 14, 2022, DR Horton Bay Inc. proposed the following:
An amendment to the Land Use Element of the General Plan to amend approximately 85 acres of the Precise Plan area to Village Residential (VR), An amendment to the land use diagram of Village One to change the land use from Business Park (BP) to Village Residential (VR),
A Precise Plan No. 35 document,
A Vesting Tentative Subdivision Map to divide the area into 527 single-family residential lots, and
A Final Development Plan to facilitate development of the residential lots.
The site plan relies on a direct connection between the development and Claus Road to the west and E. Briggsmore Avenue at Held Drive to the south. However, General Plan policy disallows direct connections to expressways for residential development. Upon initial analysis of the proposal, Planning staff advised DR Horton that further amendments to the General Plan and Specific Plan would be necessary for the proposed residential uses to develop as proposed.
Additionally, staff advised DR Horton that the scope of the Precise Plan should also incorporate lands to the north of their site in order to avoid incremental development of the area, and that at minimum, the document must outline the land uses and backbone infrastructure for at least the southernmost 257 acres south of Milnes Road.
Consequently, DR Horton amended their application to the following multi-part proposal:
Amendment of the Land Use Element of the Urban Area General Plan to change 140 acres from Business Park-Commercial-Residential (BCR) uses to Residential Uses (R), accompanied by a City-initiated amendment to the Circulation Element downgrade the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from an Expressway to a four-lane Principal Arterial Street, and to downgrade East Briggsmore Avenue from Claus Road to the BNSF Railroad crossing from an Expressway to a four-lane Principal Arterial Street, and to amend Section VI.H.11 and VI.H.12 of the General Plan regarding the minimum sizing of Neighborhood Parks; Amendment No. 26 of the Village One Specific Plan to amend the land use designation of the above 140 acres from Business Park (BP) to Residential (R) with associated text amendments, together with a City-initiated amendment to the Circulation Diagram to amend the designation of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street, and to amend the designation of East Briggsmore Avenue east of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street; #20..
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 3
Adoption of a Precise Plan document for Village One Precise Plan Area No. 35, for the purpose of establishing land use, circulation and infrastructure requirements of the Precise Plan area, properties totaling 257 acres located generally south of Milnes Road, east of Claus Road, west of the BNSF Railroad and north of East Briggsmore Avenue; Proposed Vesting Tentative Subdivision Map, “The Crossings”, to divide 84.1 acres of the Precise Plan area into 527 single-family residential lots, five landscape lots and one park lot;
Proposed Final Development Plan for The Crossings for the purpose of establishing development and architectural standards for The Crossings development.
ANALYSIS
General Plan Amendment: The site plan for the project relies on multiple proposed amendments to the General Plan: land use element, circulation element, and policies related to neighborhood park sizing:
Land Use Element: Currently, the area of Village One Precise Plan Area 35 is designated in the General Plan as Business Park-Commercial-Residential (BCR), which limits residential development to 30 percent of gross area and medium-high densities of 10- 30 units per acre. As proposed, The Crossings is single-family development of approximately 7 units per acre, necessitating the amendment from BCR to Village Residential (VR).
The applicant is proposing an amendment of 140 acres of the General Plan land use to change the designation from BCR to Village Residential (VR) to allow for the singlefamily residential development for The Crossings, as well as additional single-family residential development anticipated in the near future. Circulation Element: Currently, Claus Road and East Briggsmore Avenue are designated as an Expressway, and since the adoption of the Village One Specific Plan in 1990, most of the right-of-way for the future expressway alignment of Claus Road has been dedicated.
However, construction of Claus Road has not occurred, and the roadway remains in its current two-lane county-road configuration. General Plan policy does not allow residential development to have a direct access to an Expressway. Since the site plan of The Crossings relies on direct access to Claus Road via Merle Avenue and the likelihood of Claus Road being rebuilt as a multi-lane expressway remains low, the City has agreed to consider a downgrade of Claus Road from Expressway into a four-lane Principal Arterial Street, from Sylvan Avenue to East Briggsmore Avenue. This would then allow for the future East Merle Avenue to connect to Claus Road as a Collector Street, providing an outlet for the new residential development.
Additionally, though the intersection of East Briggsmore Avenue and Held Drive exists with a stop sign at Held Drive, in order for a residential development to meet the General Plan policy cited above, East Briggsmore Avenue between Claus Road and the BNSF Railroad must also be downgraded to a four-lane Principal Arterial Street.
For intersection controls at Claus Road/Merle and East Briggsmore/Held, construction of two-lane roundabouts would be required, with installation prior to recordation of a Final Map. In the case of the Claus/Merle roundabout, design of the roundabout may require alteration or removal of certain lots in the tentative subdivision map. The affected lots #20..
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Public Hearing Item A Page 4
are noted on the tentative map, so that if those lots are altered or removed for the roundabout prior to recordation of a Final Map, there would be no need to return the tentative map to the Planning Commission for reconsideration.
However, should the City Council elect to not downgrade Claus Road to a Principal Arterial Street, the developer has an alternative for east Merle Avenue that would terminate the street as a cul-de-sac, utilizing Held Drive as the point of access to the development.
Park sizing and storm drainage: The site plan of The Crossings proposes a dual-use park/storm basin of approximately four acres. Current General Plan policy requires neighborhood parks to have a minimum usable park size of seven acres or more. To facilitate development, the City is willing to consider an amendment to the policy to allow for the seven acre minimum to be in increments of smaller parks no less than 3.5 acres each. Any new future development within the Precise Plan area would then be required to account for the additional park space to meet the seven acre minimum.
Specific Plan Amendment: As with the above General Plan amendments to the land use element and circulation element, similar amendments to the Land Use Diagram (140 acres from Business Park to Village Residential uses) and Circulation Diagram (downgrade of Claus Road to Principal Arterial Street) of the Village One Specific Plan are proposed as well.
In addition to the amendments, the applicant is proposing text amendments to the document to allow for multi-family residential development in the Business Park (BP) land use designation with Final Development Plan approved by the Planning Commission, 10-foot wide front-yard setbacks for residences and 18-foot front-yard setbacks for garages with a Final Development Plan, and shorter dimensions to usable private rear-yard spaces while maintaining the 300- square foot private rear-yard space minimum. The text amendments are shown in red-line format in Attachment No. 6, below.
Precise Plan No. 35 South: Per Village One Specific Plan policy, a guiding document for each precise plan of the Specific Plan must be adopted by Council prior to development. The document outlines land uses, circulation and utility plans, and provides development standards for each precise plan area. The draft document for Precise Plan No. 35 South, Attachment No. 7 below, provides the allowable uses, circulation and utility plans and development standards for the portion of the precise plan area south of Milnes Avenue (any future development of the portion north of Milnes Avenue would require a separate Precise Plan document). Of particular note is the proposal for 60- and 69-foot wide roadways throughout the Precise Plan that would incorporate Class-1 Bike Lanes throughout the Precise Plan, and the Wall Plan which dictates the placement of sound walls along the adjacent BNSF Railroad alignment to the east, and Claus Road to the west.
Vesting Tentative Subdivision Map “The Crossings”: The developer is proposing division of 84.1 acres within the Precise Plan area into 527 single-family residential lots, one park/dual-use basin lot and five landscape lots. Since the site plan of the tentative map is dependent on access to Claus Road, the project relies on the abovementioned GPA and SPA prior to recordation of a Final Map. Additionally, design of the Claus/Merle roundabout may cause some of the lots to be altered in configuration or removed altogether. Those affected lots are noted on the tentative map, so that if some or all of the lots are impacted/removed, there would be no need to return the tentative map to the Commission for consideration of the changes.
Final Development Plan, “The Crossings”: Per Village One Specific Plan policy, a Final Development Plan is proposed for the residential development as a result of The Crossings #20..
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 5
VTSM. The Final Development Plan outlines development standards including home siting and setbacks, and architectural design of The Crossings project.
Noise: The project proposes new residential development adjacent to the BNSF Railroad along the east side of the site. To mitigate noise impacts of train traffic, the developer will be required to include acoustical treatments with construction of homes within 200-feet of the rail alignment, install a nine-foot high sound wall along the east side of the Vesting Tentative Subdivision Map, and a seven-foot high sound wall along the Claus Road frontage of the development. These requirements are outlined in the Wall Plan of the Precise Plan No. 35 document and in conditions of approval for the tentative map and Final Development Plan, as well as listed as a mitigation measures in the Mitigation Monitoring and Reporting Program for the project.
Long-Range Development of the Precise Plan area: Though the Vesting Tentative Subdivision Map is for the development of 84.1 acres within the Precise Plan area, the proposed amendments to the General Plan and Specific Plan land uses are for 140 acres, in anticipation of future residential development. Any new projects would be subject to either Administrative or Planning Commission review and approval prior to development.
GENERAL PLAN CONSISTENCY
The project proposes an amendment to the General Plan to change the land use designation of 140 acres from Business Park-Commercial-Residential (BCR) to Village Residential (VR). General Plan Section I-F-3(c) provides criteria for analysis of a proposed General Plan Amendment. The policy requires the proposed amendment’s impacts to be analyzed for the amendment’s effects compared to the adopted General Plan on the following issues:
(1) Compatibility with surrounding, existing, and planned land uses; (2) Traffic impacts, both existing and planned;
(3) Air quality impacts, as addressed in the Master EIR; (4) Water quality impacts, as addressed in the Master EIR; (5) Water supply and wastewater, as addressed in the Master EIR; (6) Preservation of open space, both existing and planned; (7) Public facilities and public services, both existing and planned, including financing approaches.
(8) Consistency with the overall goals and policies contained within the General Plan.
A Mitigated Negative Declaration was prepared for this project, which references and uses information from the Modesto Urban Area General Plan’s Master EIR, certified earlier. The Initial Study, Environmental Assessment No. EA/C&ED 2023-26, prepared for the Mitigated Negative Declaration (Attachments No. 8 and 9) provides an analysis of each of the above topics in detail and concludes that with mitigation measures applied, impacts as a result of the amendments to the General Plan are less than significant.
ENVIRONMENTAL ASSESSMENT
A Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED 2023-26, was prepared for this project, which concluded that while the proposed project could have a #20..
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 6
significant impact on the environment, impacts as a result of the project are less than significant with the application of mitigation measures outlined in the Mitigation Monitoring and Reporting Program (Attachments No. 8 and 9)
ATTACHMENTS
1. Draft Planning Commission Resolution (GPA) – December 18, 2023
2. Draft Planning Commission Resolution (SPA) – December 18, 2023
3. Draft Planning Commission Resolution (Precise Plan No. 35) – December 18, 2023
4. Draft Planning Commission Resolution (VTSM) – December 18, 2023
5. Draft Planning Commission Resolution (FDP) – December 18, 2023
6. Village One Specific Amendment No. 26 (text amendments) – December 18, 2023
7. Precise Plan No. 35 Draft Document – December 18, 2023
8. Initial Study/Mitigated Negative Declaration EA/C&ED No. 2023-26
9. Draft Mitigation Monitoring and Reporting Program, EA/C&ED No. 2023-26
10. Financial Interest Disclosure Form
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 7
PROPOSED GENERAL PLAN LAND USE ELEMENT AMENDMENT
GPA-22-001
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 8
PROPOSED GENERAL PLAN CIRCULATION ELEMENT AMENDMENT
GPA-22-001
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 9
PROPOSED SPECIFIC PLAN LAND USE DIAGRAM AMENDMENT
SPA-22-003
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 10
PROPOSED SPECIFIC PLAN LAND USE DIAGRAM AMENDMENT
SPA-22-003
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 11
PROPOSED SPECIFIC PLAN CIRCULATION DIAGRAM AMENDMENT
SPA-22-003
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 12
PRECISE PLAN NO. 35 (SOUTH) LAND USE DIAGRAM
PP-22-001
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 13
VESTING TENTATIVE SUBDIVISION MAP “THE CROSSINGS”
TSM-22-001
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 14
VESTING TENTATIVE SUBDIVISION MAP “THE CROSSINGS”
TSM-22-001
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Planning Commission Agenda Report December 18, 2023
Public Hearing Item A Page 15
VESTING TENTATIVE SUBDIVISION MAP “THE CROSSINGS”
PHASING PLAN
TSM-22-001
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GPA-22-002
PLANNING COMMISSION
RESOLUTION NO. 2023-31
A RESOLUTION RECOMMENDING TO THE CITY COUNCIL ADOPTION OF
AN AMENDMENT TO THE MODESTO URBAN AREA GENERAL PLAN (DR HORTON BAY INC.)
WHEREAS, a General Plan for the City of Modesto entitled “City of Modesto Urban Area General Plan” (UAGP), was adopted by the City Council by Resolution No. 95-409 on August 15, 1995, in accordance with Section 65300 of the Government Code; WHEREAS, said General Plan has been amended by Modesto City Council Resolution Nos. 95-584, 96-20, 96-338, 96-639, 97-3, 97-137, 97-158, 98-293, 99-162, 99-564, 2000-303, 2000-633, 2001-47, 2001-476, 2002-154, 2002-526, 2003-101, 2003-122, 2007-066, 2007-599, 2008-142, 2008-583, 2009-419, 2011-253, 2011-254, 2011-436, 2012-430, 2014-17, 2014-422, 2015-262, 2016-34, 2017-21, 2019-109, 2022-101, 2022-193 and 2022-449, copies of which are on file in the office of the City Clerk; and
WHEREAS, Government Code Section 65358 permits the amendment of General Plans by the legislative body; and
WHEREAS, DR Horton Bay has filed an application for a General Plan Amendment (File No. GPA-22-001) to amend the Land Use Element of the General Plan to change 140 acres from Business Park-Commercial-Residential (BCR) uses to Residential Uses (R), property located east of Merle Avenue, north of East Briggsmore Avenue, within the Village One Specific Plan, to facilitate development of a new 527-lot single-family residential project, “The Crossings”; and
WHEREAS, to facilitate said development the City of Modesto proposes an amendment to the Circulation Element of the General Plan to downgrade the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from an Expressway to a four-lane Principal Arterial Street, and to downgrade East Briggsmore Avenue from Claus Road to the BNSF Railroad crossing from an Expressway to a four-lane Principal Arterial Street, and to amend Section VI.H.11 and VI.H.12 of the General Plan regarding the minimum sizing of Neighborhood Parks; and WHEREAS, said application was made concurrently with a proposed amendment to the Village One Specific Plan to amend the land use designation of the above 140 acres from Business Park (BP) to Residential (R) with associated text amendments (File No. SPA-22-003) together with a City-initiated amendment to the Circulation Diagram to amend the designation of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street, and to amend the designation of East Briggsmore Avenue east of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street; and WHEREAS, said application was also made concurrently with a proposal to adopt a Precise Plan document for Village One Precise Plan Area No. 35 (File No. PP-22-001), for the purpose of establishing land use, circulation and infrastructure requirements of the Precise Plan area, properties totaling 257 acres located generally south of Milnes Road, east of Claus Road, west of the BNSF Railroad and north of East Briggsmore Avenue; and
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Res No. 2023-31 Page 2
GPA-22-001
WHEREAS, said application was also made concurrently with a proposed Vesting Tentative Subdivision Map “The Crossings” to divide 84.1 acres of the Precise Plan area into 527 single-family residential lots, five landscape lots and one park lot (File No. TSM22-002); and WHEREAS, said application was also made concurrently with a proposed Final Development Plan for the purpose of establishing development standards and architectural guidelines for The Crossings development (File No. FDP-22-003); and WHEREAS, an Initial Study has been prepared by staff, as required by CEQA; and WHEREAS, the Initial Study concluded that while the project may have a potentially significant effect on the environment, the incorporation of mitigation measures would reduce the impact to a less than significant level, and a Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED No. 2023-26, was prepared; and
WHEREAS, a 30-day public review period for the proposed Initial Study/Mitigated Negative Declaration began on November 14 and concluded on December 14, 2023; and WHEREAS, the City received public comments on the draft Initial Study/Mitigated Negative Declaration and no changes to the document were necessary as a result; and WHEREAS, the Mitigation Monitoring Plan (MMP) is included and described within the Initial Study/Mitigated Negative Declaration; and
WHEREAS, a public hearing was held by the Planning Commission on December 18, 2023, in Chambers, 1010 Tenth Street, Modesto, California, at which hearing evidence both oral and documentary was received and considered.
NOW, THEREFORE, BE IT RESOLVED, by the Planning Commission of the City of Modesto that it hereby recommends that the City Council approve the amendment to the Land Use Diagram of the General Plan to change the designation of 140 acres from Business Park-Commercial-Residential to Residential (R), and to amend the Circulation Plan to amend the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from Expressway to Principal Arterial Street, and to amend the Circulation Plan to amend the classification of East Briggsmore Avenue between Claus Road and the BNSF Railroad crossing from Expressway to Principal Arterial Street, and to amend Section VI.H.12 with regards to minimum sizing of Neighborhood Parks, and to find as follows:
1. The proposed General Plan amendments to the Land Use Diagram and Sections VI.H.11 and VI.H.12 regarding Neighborhood Parks would result in Residential uses that would provide for development of new housing within the Village One Specific Plan, consistent with the Residential (R) designation.
2. The proposed amendment to the Circulation Diagram of the General Plan would facilitate residential development as part of the project, as General #20..
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Res No. 2023-31 Page 3
GPA-22-001
Plan policy disallows connection of residential development to Expressways.
3. An Initial Study/Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED No. 2023-26, has been prepared by the City of Modesto that analyzed the proposed General Plan Amendment, and the Planning Commission has determined that, on the basis of the whole record before it, that while the project may have a potentially significant effect on the environment, the incorporation of project-specific mitigation measures would reduce the impact to a less than significant level.
BE IT FURTHER RESOLVED by the Planning Commission of the City of Modesto that it hereby recommends the City Council adopt the proposed amendment to the Land Use Diagram of the Urban Area General Plan as described in Exhibit “A”, the proposed amendment to the Circulation Diagram as described in Exhibit “B” and the proposed amendment to Sections VI.H.11 and VI.H.12 as described in Exhibit “C”, attached hereto and incorporated herein by reference.
The foregoing resolution was introduced at the regular meeting of the Planning Commission held on December 18, 2023, by Commissioner Vohra, who moved its adoption, which motion was seconded by Shanks, and carried by the following vote:
Ayes: Birring, Russell, Shanks, Silva, Vohra
Noes: Black
Absent: Vazquez
Recused: None
BY ORDER OF THE PLANNING COMMISSION OF THE CITY OF MODESTO.
Original, signed copy on file C&EDD
Jessica Hill, Secretary
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GPA-22-002
EXHIBIT "A"
GENERAL PLAN AMENDMENT: LAND USE DIAGRAM
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GPA-22-001
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GPA-22-001
EXHIBIT "B"
GENERAL PLAN AMENDMENT: CIRCULATION DIAGRAM
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GPA-22-001
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GPA-22-001
EXHIBIT "C"
GENERAL PLAN AMENDMENT: SECTION VI.H.11 AND VI.H.12
VI-H-11
Design and construct dual-use facilities in accordance with the standards and criteria contained in the Design Standards for Dual use Flood Control / Recreation Facilities manual. Alternative design solutions for dual-use facilities may be allowed as long as they meet the intent of the Design Standards for Dual use Flood Control / Recreation Facilities manual and are approved by the Direction of Parks, Recreation and Neighborhoods and the City Engineer.
VI.H.12
Provide at least one neighborhood park within each residential neighborhood or Park Planning Area as defined in Figure VI-C-2. The neighborhood park should be centrally located within the neighborhood Park Planning Area and have a service radius of one-half to three-quarters of a mile. The neighborhood park should have one collector street frontage, and the remaining sides should front on residential streets. The minimum size for a neighborhood park shall be seven acres or the total acreage based on one acre of park land per one thousand population within the neighborhood Park Planning Area, whichever is greater. With the approval of the Director of Parks, Recreation and Neighborhoods, the neighborhood park acreage may be provided in no more than two separate park locations within a Park Planning Area, provided that each park location is at least three acres in size, both parks total (in aggregate) at least the minimum required park acreage for the Park Planning Area, and both parks are maintained by a Community Facilities District.”
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SPA-22-003
PLANNING COMMISSION
RESOLUTION NO. 2023-32
A RESOLUTION RECOMMENDING TO THE CITY COUNCIL APPROVAL OF SPECIFIC PLAN AMENDMENT NO. 26 TO THE VILLAGE ONE SPECIFIC
PLAN TO AMEND THE LAND USE DIAGRAM FROM BUSINESS PARK (BP) TO VILLAGE RESIDENTIAL (VR), 140 ACRES EAST OF CLAUS ROAD AND
NORTH OF EAST BRIGGSMORE AVENUE, WITH ASSOCIATED
AMENDMENT TO THE CIRCULATION DIAGRAM AND TEXT AMENDMENTS (DR HORTON BAY INC)
WHEREAS, Government Code Section 65450 et. seq. permits cities and counties to adopt specific plans for the systematic implementation of the General Plan and to provide for a greater level of detail in planning sites or areas of special interest or value; and
WHEREAS, on October 16, 1990, the City Council by Resolution No. 90-828A, adopted the Village One Specific Plan; and
WHEREAS, Government Code Section 65453 permits the amendment of specific plans as often as deemed necessary by the legislative body; and WHEREAS, the City Council on June 18, 1991, by Resolution No. 91-405, adopted Specific Plan Amendment No. 1 to the Village One Specific Plan to adopt an amended Affordable Housing Program; and
WHEREAS, the City Council on May 5, 1992, by Resolution No. 92-222, adopted Specific Plan Amendment No. 2 to the Village One Specific Plan to improve technical correctness, readability, and comprehension; and
WHEREAS, the City Council on February 1, 1994, by Resolution No. 94-72, adopted Specific Plan Amendment No. 3 to the Village One Specific Plan to rewrite and reorganize the Plan to be more implementation oriented; and WHEREAS, the City Council on May 24, 1994, by Resolution No. 94-297, certified the Final Supplemental EIR for Village One (SCH No. 90020181) which provided environmental analysis for the revisions in Specific Plan Amendment No. 4; and WHEREAS, the City Council on May 24, 1994, by Resolution No. 94-298, adopted Specific Plan Amendment No. 4 to the Village One Specific Plan to widen Floyd Avenue from three to five lanes, realign the Claus/Sylvan intersection, delete the nonpotable water supply for public landscaping, and integrate mitigation monitoring into the Specific Plan; and
WHEREAS, the City Council on June 28, 1994, by Resolution No. 94-372, adopted Specific Plan Amendment No. 5 to the Village One Specific Plan to revise the Residential Design Policies for cul-de-sacs, alleys, garage orientation, and plan processing; and WHEREAS, the City Council on June 28, 1994, by Resolution No. 94-373, adopted Specific Plan Amendment No. 6 to the Village One Specific Plan to revise the school and park sites within the Specific Plan and redistribute residential units among the Village One Precise Plan Areas; and
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Res. No. 2023-32 Page 2
SPA-22-003
WHEREAS, the City Council on October 10, 1995, by Resolution No. 95-487, adopted Specific Plan Amendment No. 7 to the Village One Specific Plan to reduce costs and to implement recommendations to increase the marketability of development within the Village One area; and
WHEREAS, the City Council on May 14, 1996, by Resolution No. 96-245, adopted Specific Plan Amendment No. 7.1 to the Village One Specific Plan to delete the multiplefamily development designation from Precise Plan Areas Nos. 8 and 33, and Resolution No. 26-246, to amend the Design Standard portion of the Village One Specific Plan pertaining to single-family dwelling setbacks and three-car garages, limited to Precise Plan Areas Nos. 8, 32, and 33; and
WHEREAS, the City Council on June 4, 1996, by Resolution No. 96-295, adopted Specific Plan Amendment No. 8 to the Village One Specific Plan to incorporate changes previously approved in Specific Plan Amendment No. 7 into the Specific Plan document itself, to make minor editorial changes to the Specific Plan, and to incorporate changes resulting from development of a revised Village One Facilities Master Plan; and WHEREAS, the City Council on August 13, 1996, by Resolution No. 96-453, adopted Specific Plan Amendment No. 9 to the Village One Specific Plan to modify the standards for dwelling setbacks and three-car garages for the entire Specific Plan area; and
WHEREAS, the City Council on May 6, 1997, by Resolution No. 97-225, adopted Specific Plan Amendment No. 10 to the Village One Specific Plan to eliminate redundancy with the General Plan Housing Element policies and to eliminate language that was too restrictive; and
WHEREAS, the City Council on June 3, 1997, by Resolution No. 97-300, adopted Specific Plan Amendment No. 11 to the Village One Specific Plan to exempt public facilities from precise plan requirements, to streamline the Specific Plan amendment process, and to provide minor clarification to various policies and diagrams; and WHEREAS, the City Council on October 21, 1997, by Resolution No. 97-602, adopted Specific Plan Amendment No. 12 to the Village One Specific Plan to allow changes in public service providers, delete the requirement for a business park market study, revise Amtrak station language, revise the business park precise plan diagram, and allow regional commercial uses in the business park; and WHEREAS, the City Council on February 17, 1998, by Resolution No. 98-97, adopted Specific Plan Amendment No. 13 to the Village One Specific Plan to redesignate
9.8 acres in Precise Plan Area No. 3 from Multi-Family Residential to Village Residential; and
WHEREAS, the City Council on August 17, 1999, by Resolution No. 99-416, adopted Specific Plan Amendment No. 14 to the Village One Specific Plan to modify the mix of land uses allowed in the southeast quadrant of Precise Plan Area No. 20; and #20..
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WHEREAS, the City Council on September 26, 2000, by Resolution No. 2000-507, adopted Specific Plan Amendment No. 15 to the Village One Specific Plan to reduce the noise setback along Claus Road; and
WHEREAS, the City Council on May 7, 2002, by Resolution No. 2002-230, adopted Specific Plan Amendment No. 16 to the Village One Specific Plan to move 4.1 acres from Precise Plan Area No. 6 to Precise Plan Area No. 7; and WHEREAS, the City Council on April 1, 2003, by Resolution No. 2003-177, adopted Specific Plan Amendment No. 17 to the Village One Specific Plan to allow for a revised infrastructure financing plan for Village One, including the formation of a new community facilities district for the remaining undeveloped, unvested property in Village One; and
WHEREAS, the City Council on December 7, 2004, by Resolution No. 2004-650, adopted Specific Plan Amendment No. 18 to the Village One Specific Plan to change the land use designation of Precise Plan Areas 23 and 24 from Commercial, Village Residential, and Multi-Family Residential to Village Residential and Medium-Density Residential and to amend some of the Village One design and development standards; and
WHEREAS, the City Council on March 8, 2005, by Resolution No. 2005-129, adopted Specific Plan Amendment No. 19 to the Village One Specific Plan to change the land use designation of a portion of Precise Plan Area No. 1 from Very-Low-Density Residential to Office and High School and to allow City Council approval of a Final Development Plan concurrent with approval of Precise Plan Area No. 1; and WHEREAS, the City Council on November 1, 2005, by Resolution No. 2005-547, adopted Specific Plan Amendment No. 20 to the Village One Specific Plan to allow for a revised layout for the Village Center Retail Center, property located at the southeast corner of Roselle and Floyd Avenues; and
WHEREAS, the City Council on May 9, 2006, by Resolution No. 2006-290, adopted Specific Plan Amendment No. 21 to the Village One Specific Plan to modify policies related to the development of the Village One Town Center Housing Project, property located at the northeast corner of Roselle Avenue and Belharbour Drive; and WHEREAS, the City Council on December 12, 2007 by Resolution No 2007-749, adopted Specific Plan Amendment No. 22 to the Village One Specific Plan to change the land use designation from Multi-Family Residential to Village Center for the property at the northeast corner of Floyd Avenue and Roselle Avenue; and WHEREAS, the City Council on March 11, 2014 by Resolution No 2014-89, adopted Specific Plan Amendment No. 23 to the Village One Specific Plan to change the land use designation of six acres located at the southeast corner of Hillglen Avenue and Caden Drive from Elementary School to Village Residential; and WHEREAS, the City Council on February 24, 2015 by Resolution No. 2015-55 adopted Specific Plan Amendment No. 24 to change the land use designation of 9.5 #20..
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acres located at the southwest corner of Kodiak Drive and Lincoln Oak Drive from MultiFamily Residential to Village Residential; and WHERAS, the City Council on September 14, 2020, by Resolution No. 2020-09 adopted Specific Plan Amendment No. 25 to the Village One Specific Plan to allow smalllot single-family residential developments of a minimum density of 10 units per net acre and multi-family residential uses within the Senior Housing land use designation; and WHEREAS, DR Horton Bay Inc. has filed an application to amend the Village One Specific Plan to amend approximately 140 acres in the Land Use Diagram from Business Park (BP) to Village Residential (VR) to allow for single family residential development, plus associated textual and exhibit amendments to the Specific Plan document; and WHEREAS, to facilitate said residential development, the City of Modesto proposes an amendment to the Circulation Diagram of the Specific Plan to downgrade the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from a Class A Expressway to a four-lane Principal Arterial Street, and to downgrade East Briggsmore Avenue from Claus Road to the BNSF Railroad crossing from a Class C Expressway to a four-lane Principal Arterial Street; and WHEREAS, said application was made concurrently with a proposed amendment to the Land Use Element of the City of Modesto Urban Area General Plan, to change 140 acres from Business Park-Commercial-Residential (BCR) uses to Residential Uses (R), property located east of Merle Avenue, north of East Briggsmore Avenue, within the Village One Specific Plan, to facilitate development of a new 527-lot single-family residential project, “The Crossings”; together with a City-Initiated amendment to the Circulation Element of the General Plan to downgrade the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from an Expressway to a four-lane Principal Arterial Street, and to downgrade East Briggsmore Avenue from Claus Road to the BNSF Railroad crossing from an Expressway to a four-lane Principal Arterial Street, and to amend Section VI.H.11 and VI.H.12 of the General Plan regarding the minimum sizing of Neighborhood Parks; and
WHEREAS, said application was also made concurrently with a proposal to adopt a Precise Plan document for Village One Precise Plan Area No. 35 (File No. PP-22-001), for the purpose of establishing land use, circulation and infrastructure requirements of the Precise Plan area, properties totaling 257 acres located generally south of Milnes Road, east of Claus Road, west of the BNSF Railroad and north of East Briggsmore Avenue; and
WHEREAS, said application was also made concurrently with a proposed Vesting Tentative Subdivision Map “The Crossings” to divide 84.1 acres of the Precise Plan area into 527 single-family residential lots, five landscape lots and one park lot (File No. TSM22-002); and WHEREAS, said application was also made concurrently with a proposed Final Development Plan for the purpose of establishing development standards and architectural guidelines for The Crossings development (File No. FDP-22-003); and WHEREAS, an Initial Study has been prepared by staff, as required by CEQA; and WHEREAS, the Initial Study concluded that while the project may have a potentially significant effect on the environment, the incorporation of mitigation measures #20..
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would reduce the impact to a less than significant level, and a Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED 2023-26, was prepared; and WHEREAS, a 30-day public review period for the proposed Initial Study/Mitigated Negative Declaration began on November 14 and concluded on December 14, 2023; and WHEREAS, the City received public comments on the draft Initial Study/Mitigated Negative Declaration and no changes to the document were necessary as a result; and WHEREAS, the Mitigation Monitoring Plan (MMP) is included and described within the Initial Study/Mitigated Negative Declaration; and
WHEREAS, a public hearing was held by the Planning Commission on December 18, 2023, in Chambers, 1010 Tenth Street, Modesto, California, at which hearing evidence both oral and documentary was received and considered.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission that it hereby finds and determines as follows:
1. The proposed amendment to the Village One Specific Plan is consistent with the General Plan (as amended), because the amendment would result in new residential development within the Specific Plan.
2. The proposed amendment to the Village One Specific Plan’s Circulation Diagram to amend Claus Road from Expressway to a four-lane Principal Arterial Street would allow for connection of new residential development to Claus Road at Merle Avenue.
3. An Initial Study/Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED No. 2023-26, has been prepared by the City of Modesto that analyzed the proposed Specific Plan Amendment, and the Planning Commission has determined that, on the basis of the whole record before it, that while the project may have a potentially significant effect on the environment, the incorporation of project-specific mitigation measures would reduce the impact to a less than significant level.
BE IT FURTHER RESOLVED by the Planning Commission that it hereby recommends to the City Council adoption of the proposed Village One Specific Plan Amendment No. 26 as described in Exhibit "A" (text) Exhibit “B” (Land Use Diagram) and Exhibit “C” (Circulation Diagram) attached hereto and incorporated herein by reference.
The foregoing resolution was introduced at the regular meeting of the Planning Commission held on December 18, 2023, by Vohra, who moved its adoption, which motion was seconded by Shanks, and carried by the following vote:
Ayes: Birring, Russell, Shanks, Silva, Vohra
Noes: Black
Absent: Vazquez
Recused: None
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BY ORDER OF THE PLANNING COMMISSION OF THE CITY OF MODESTO.
Jessica Hill, Secretary
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PP-22-001
PLANNING COMMISSION
RESOLUTION NO. 2023-33
A RESOLUTION RECOMMENDING TO THE CITY COUNCIL APPROVAL OF A PRECISE PLAN FOR VILLAGE ONE PRECISE PLAN AREA NO. 35 SOUTH AND AN AMENDMENT TO SECTION 18-3-10 OF THE ZONING MAP TO
REZONE FROM SPECIFIC PLAN-HOLDING (SP-H) ZONE TO SPECIFIC
PLAN (SP) ZONE, PROPERTY LOCATED EAST OF CLAUS ROAD, SOUTH
OF MILNES ROAD AND NORTH OF EAST BRIGGSMORE AVENUE (DR
HORTON BAY INC.)
WHEREAS, the City Council, on October 16, 1990, adopted the Village One Specific Plan, pursuant to California Government Code Section 65450 et. seq., to implement the Modesto Urban Area General Plan in this area; and WHEREAS, the Village One Specific Plan is divided into 35 precise plan areas, and a precise plan is required prior to development in each area; and WHEREAS, the Village One Specific Plan also requires a concurrent rezoning to Specific Plan Zone in conjunction with approval of a precise plan; and WHEREAS, an application has been filed by DR Horton Bay Inc. for a precise plan for the southern portion of Village One Precise Plan Area No. 35 and for concurrent rezoning from Specific Plan-Holding (SP-H) Zone to Specific Plan (SP) Zone for all that portion of Precise Plan Area No. 35 south of Milnes Road, generally referred to as Precise Plan Area No. 35 South; and
WHEREAS, said application was made concurrently with a proposed amendment to the Urban Area General Plan (File No. GPA-22-001) to amend the Land Use Element of the General Plan to change 140 acres from Business Park-Commercial-Residential (BCR) uses to Residential Uses (R), property located east of Merle Avenue, north of East Briggsmore Avenue, within the Village One Specific Plan, to facilitate development of a new 527-lot single-family residential project, “The Crossings”; and WHEREAS, to facilitate said development the City of Modesto proposes an amendment to the Circulation Element of the General Plan to downgrade the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from an Expressway to a four-lane Principal Arterial Street, and to downgrade East Briggsmore Avenue from Claus Road to the BNSF Railroad crossing from an Expressway to a four-lane Principal Arterial Street, and to amend Section VI.H.11 and VI.H.12 of the General Plan regarding the minimum sizing of Neighborhood Parks; and WHEREAS, said application was made concurrently with a proposed amendment to the Village One Specific Plan to amend the land use designation of the above 140 acres from Business Park (BP) to Residential (R) with associated text amendments (File No. SPA-22-003) together with a City-initiated amendment to the Circulation Diagram to amend the designation of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street, and to amend the designation of East Briggsmore Avenue east of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street; and #20..
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WHEREAS, said application was also made concurrently with a proposed Vesting Tentative Subdivision Map “The Crossings” to divide 84.1 acres of the Precise Plan area into 527 single-family residential lots, five landscape lots and one park lot (File No. TSM22-002); and WHEREAS, said application was also made concurrently with a proposed Final Development Plan for the purpose of establishing development standards and architectural guidelines for The Crossings development (File No. FDP-22-003); and WHEREAS, an Initial Study has been prepared by staff, as required by CEQA; and WHEREAS, the Initial Study concluded that while the project may have a potentially significant effect on the environment, the incorporation of mitigation measures would reduce the impact to a less than significant level, and a Mitigated Negative Declaration, Environmental Assessment EA/C&ED No. 2023-26, was prepared; and WHEREAS, a 30-day public review period for the proposed Initial Study/Mitigated Negative Declaration began on November 14 and concluded on December 14, 2023; and WHEREAS, the City received public comments on the draft Initial Study/Mitigated Negative Declaration and no changes to the document were necessary as a result; and WHEREAS, the Mitigation Monitoring Plan (MMP) is included and described within the Initial Study/Mitigated Negative Declaration; and
WHEREAS, a public hearing was held by the Planning Commission on December 18, 2023, in Chambers, 1010 Tenth Street, Modesto, California, at which hearing evidence both oral and documentary was received and considered.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission that it hereby finds and determines as follows:
1. The proposed Precise Plan and rezoning are consistent with the Village One Specific Plan (as amended) and Modesto Urban Area General Plan (as amended).
2. An Initial Study/Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED No. 2023-26, has been prepared by the City of Modesto that analyzed the proposed Specific Plan Amendment, and the Planning Commission has determined that, on the basis of the whole record before it, that while the project may have a potentially significant effect on the environment, the incorporation of project-specific mitigation measures would reduce the impact to a less than significant level.
BE IT FURTHER RESOLVED by the Planning Commission that it recommends to the City Council adoption of Precise Plan No. 35 South as described in Exhibits “A” and “B”, attached hereto and incorporated herein by reference, stamped approved by the Planning Commission on December 18, 2023, and on file in the office of the Community Development Department.
BE IT FURTHER RESOLVED by the Planning Commission that it recommends to the City Council an amendment to Section 18-3-10 of the Zoning Map to reclassify the #20..
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property described below from Specific Plan-Holding (SP-H) Zone to Specific Plan (SP) Zone:
SP-H to SP:
All that real property in the City of Modesto, County of Stanislaus, State of California, lying within the Northwest Quarter of Section 18, Township 3 South, Range 10 East, Mount Diablo Base and Meridian, described as follows:
Commencing from the intersection of Claus Road and Milnes Avenue, said point being the northwest corner of Section 18, Township 3 South, Range 10 East; thence South 89° 51’ 16” West a distance of 144.5 feet to the Point of Beginning; thence the following eight courses:
1. South 3° 28’ 48” East a distance of 1,326.4 feet; thence
2. North 89° 51’ 10” East a distance of 70.8 feet; thence
3. South 0° 17’ 48” East a distance of 4,021.53 feet; thence
4. North 89° 57’ 40” East a distance of 2,807.54 feet; thence
5. South 17° 41’ 1” East a distance of 85.87 feet; thence
6. South 88° 47’ 30” East a distance of 105.32 feet; thence
7. North 17° 58’ 35” West a distance of 5,695.10 feet; thence
8. North 89° 39’ 12” West a distance of 1,358.36 feet to the Pont of Beginning.
Also including the easterly one-half of the right-of-way of Claus Road, the southerly one-half of the right-of-way of Milnes Avenue, and the northerly one-half of the right-of-way of East Briggsmore Avenue, all immediately adjacent to the above description.
Totaling 255.87 acres, more or less.
APNs: 014-025-002, 014-025-015, 014-025-018, 014-025-019, 014-026-003, 014-026-017, 014-026-018, 014-026-025, 014-026- 030 through 014-026-035.
The foregoing resolution was introduced at the regular meeting of the Planning Commission held on the 18th day of December 2023, by Commissioner Vohra, who moved its adoption, which motion was seconded by Commissioner Shanks, and carried by the following vote:
Ayes: Birring, Russell, Shanks, Silva, Vohra
Noes: Black
Absent: Vazquez
Recused: None
BY ORDER OF THE PLANNING COMMISSION OF THE CITY OF MODESTO. #20..
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Original, signed copy on file in CEDD
Jessica Hill, Secretary
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TSM-22-002
PLANNING COMMISSION
RESOLUTION NO. 2023-34
A RESOLUTION RECOMMENDING TO THE CITY COUNCIL APPROVAL OF
THE VESTING TENTATIVE MAP OF THE CROSSINGS (DR HORTON BAY INC)
WHEREAS, on July 14, 2022 an application was filed by DR Horton Bay Inc. for the proposed adoption of a precise plan document for the southerly 257-acre portion of Village One Precise Plan Area No. 35 generally located south of Milnes Road, and for concurrent rezoning from Specific Plan-Holding (SP-H) Zone to Specific Plan (SP) Zone for all that portion of Precise Plan Area No. 35 south of Milnes Road, generally referred to as Precise Plan Area No. 35 South (File No. PP-22-001); and WHEREAS, said application was made concurrently with a proposed amendment to the Urban Area General Plan (File No. GPA-22-001) to amend the Land Use Element of the General Plan to change 140 acres from Business Park-Commercial-Residential (BCR) uses to Residential Uses (R), property located east of Claus Road, north of East Briggsmore Avenue, within the Village One Specific Plan, to facilitate development of a new 527-lot single-family residential project, “The Crossings”; and WHEREAS, to facilitate said development the City of Modesto proposes an amendment to the Circulation Element of the General Plan to downgrade the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from an Expressway to a four-lane Principal Arterial Street, and to downgrade East Briggsmore Avenue from Claus Road to the BNSF Railroad crossing from an Expressway to a four-lane Principal Arterial Street, and to amend Section VI.H.11 and VI.H.12 of the General Plan regarding the minimum sizing of Neighborhood Parks; and WHEREAS, said application was made concurrently with a proposed amendment to the Village One Specific Plan to amend the land use designation of the above 140 acres from Business Park (BP) to Residential (R) with associated text amendments (File No. SPA-22-003) together with a City-initiated amendment to the Circulation Diagram to amend the designation of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street, and to amend the designation of East Briggsmore Avenue east of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street; and WHEREAS, DR Horton Bay Inc. has filed an application for a Vesting Tentative Subdivision Map, The Crossings, to divide 84.1 acres located east of Claus Road and north of E. Briggsmore Avenue into 527 single family residential lots, five landscape lots and one park lot; and
WHEREAS, said Vesting Tentative Map was received in the office of the Secretary of the Planning Commission on July 14, 2022, and was accepted for filing and deemed complete on November 9, 2023, in accordance with the provisions of Section 4-4.401 of the Modesto Municipal Code; and
WHEREAS, copies of said vesting tentative map have been sent to the Sylvan Elementary School and Modesto High School Districts, Modesto Irrigation District, the local utility companies, and the City Engineering and Transportation Department; and #20..
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WHEREAS, City services, including sewer and water facilities, are available; and WHEREAS, the area can be served by elementary schools in the Sylvan School District and by Fire Station No. 9 at 4025 Fara Biundo Drive, 0.50 miles distant; and WHEREAS, an Initial Study, EA/C&ED No. 2023-26 has been prepared by staff, as required by CEQA; and
WHEREAS, the Initial Study concluded that while the project may have a potentially significant effect on the environment, the incorporation of mitigation measures would reduce the impact to a less than significant level, and a Mitigated Negative Declaration was prepared; and
WHEREAS, a 30-day public review period for the proposed Initial Study/Mitigated Negative Declaration began on November 14, 2023 and concluded on December 14, 2023; and
WHEREAS, the City received public comments on the draft Initial Study/Mitigated Negative Declaration and no changes to the document were necessary as a result; and WHEREAS, the Mitigation Monitoring and Reporting Program (MMRP) is included and described within the Initial Study/Mitigated Negative Declaration; and WHEREAS, a public hearing was held by the Planning Commission on December 18, 2023, in Chambers, 1010 Tenth Street, Modesto, California, at which hearing evidence both oral and documentary was received and considered.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission that it hereby finds and determines as follows:
1. The proposed vesting tentative subdivision map, together with the provisions for its design and improvements, is consistent with the General Plan of the City of Modesto (as amended), the Village One Specific Plan (as amended), Precise Plan Area No. 35 South (as adopted) and the Subdivision Map Act of the State of California.
2. The discharge of waste as a result of the proposed vesting tentative subdivision map into the existing sewer system will not result in a violation of existing requirements by the California Regional Water Quality Control Board pursuant to Division 7 (commencing with Section 13000) of the Water Code of the State of California.
3. An Initial Study/Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED No. 2023-26, has been prepared by the City of Modesto that analyzed the proposed Specific Plan Amendment, and the Planning Commission has determined that, on the basis of the whole record before it, that while the project may have a potentially significant effect on the environment, the incorporation of project-specific mitigation measures would reduce the impact to a less than significant level. #20..
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BE IT FURTHER RESOLVED by the Planning Commission that it hereby recommends to the City Council the approval of the Vesting Tentative Map of The Crossings, accepted for filing in the office of the Secretary of the Planning Commission on November 9, 2023, as submitted and as shown in red on the face of the map and subject to the following conditions:
1. The Crossings Final Map cannot be recorded unless and until the City Council approves the proposed amendment to the General Plan Land Use Element and Circulation Element (Project No. GPA-22-001) and proposed amendment to the Village One Specific Plan land use diagram and circulation diagram (Project No. SPA-22-003) to allow for development of the 527-lot single-family residential subdivision as proposed. Said approval shall be noted on the Final Map.
2. The Crossings Final Map cannot be recorded unless and until the City Council approves the Precise Plan No. 35 South document by Ordinance and said Ordinance is adopted and in effect. Said approval shall be noted on the Final Map.
3. Prior to recordation of a Final Map, new street names for all lettered streets and cul-de-sac courts of the subdivision shall be proposed and approved by both the City and the County.
4. Prior to recordation of a Final Map, Merle Avenue as shown on the tentative subdivision map shall be identified as “East Merle Avenue” from the intersection of Claus Road to the intersection of “Street F” of the tentative subdivision map, and the continuation of said street eastward from Street F shall be identified as “Held Drive”.
5. Prior to issuance of a building permit for lots that back up to Claus Road, plot plans for said lots shall demonstrate that all rear yard setbacks be at least fifteen (15) feet, in accordance to the setback standards outlined in Section 10-408(c) of the City’s Zoning Code.
6. Prior to Certificate of Occupancy of any structure adjacent to required fences and walls, such fences and walls shall be installed in accordance to the Wall Plan of Precise Plan Area No. 35 South as adopted by the City Council, and the Village One Specific Plan, Section II.G.13, Residential— Community Design Policies, including but not limited to the following standards:
a. A minimum seven (7) foot high decorative concrete masonry sound wall with cap treatment along the Claus Road frontage at the rear of Lots 148 and 316-330 (excepting entry Lots A and B at Merle Avenue), and along the East Briggsmore Avenue frontage at the rear of Lots 1-12. Said wall should be designed with two-foot offsets at every other property line.
b. A minimum nine (9) foot high CMU or pre-cast concrete masonry sound wall along the BNSF rail alignment at the rear of lots 204-231 and 285-305. Such CMU or pre-cast concrete masonry wall may step #20..
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down to seven (7) feet in height beyond the 200-foot distance from the center of the mainline of the railroad.
c. Walls and fences along the collector streets shall be provided as required by Section II.G.13.a.8 of the Specific Plan.
7. Prior to issuance of a building permit for any lot within 200-feet of the center of the near mainline of the adjacent BNSF Railroad along the easternmost boundaries of the subdivision, and any lot that backs up to Claus Road, building plans shall demonstrate the provision of acoustical treatments to reduce exterior noise impacts to an interior decibel level of 45Ldn or less, to the satisfaction of the Chief Building Official and the Director of Community and Economic Development.
In addition, for those lots within 200-feet of the center of the near mainline of the adjacent BNSF Railroad along the easternmost boundaries of the subdivision, building plans shall demonstrate structural improvements to mitigate vibration levels generated by passing train traffic, to the satisfaction of the Chief Building Official and the Director of Community and Economic Development.
LAND DEVELOPMENT ENGINEERING
8. Prior to recordation of a Final Map, improvement plans for required improvements shall be prepared by a Registered Civil Engineer and submitted for approval by the City Engineer or designee.
The improvement plans shall include but not be limited to the following:
a. Dedication of Claus Road to a four-lane Principal Arterial Street per the Circulation Plan of Precise Plan No. 35 South, with installation of roadway and frontage improvements as demonstrated on the Wall Plan of the Precise Plan, consisting of a separated sidewalk between landscaped areas along the entirety of the tentative map frontage of Claus Road. Dedication and design of improvements shall be to the satisfaction of the City Engineer or designee.
b. Dedication and installation of a two-lane bypass roundabout at the intersection of Claus Road and Merle Avenue. Final design shall consider if two-lane bypass roundabout design and right in/right out access is appropriate. Said roundabout shall be designed by a registered engineer with specialization in roundabout geometry and be designed to the satisfaction of the City Engineer or designee.
Dedication and installation of the two-lane roundabout at the intersection of Claus Road and Merle Avenue shall include an enhanced high-visibility crosswalk and a pedestrian HAWK signal system for the Class 1 Bike Path crossing.
Dedication and installation of the roundabout may require the reconfiguration or removal of the following Lots: Entry Lots A and B, and Lots 149, 148, 157, 316 and 317. Said reconfiguration shall be reflected in the improvement plans and Final Map.
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c. Dedication and installation of a two-lane roundabout at the intersection of East Briggsmore Avenue and Held Drive. Said roundabout shall be designed by a registered engineer with specialization in roundabout geometry and be designed to the satisfaction of the City Engineer or designee.
d. Dedication and installation of Tivoli Specific Plan standard roundabouts at the intersections of Held Drive/Street M and East Merle Avenue/Street F. Said roundabouts shall be designed by a registered engineer with specialization in roundabout geometry and be designed to the satisfaction of the City Engineer or designee.
Dedication and installation of the roundabouts may require the reconfiguration or removal of the following Lots: 77, 78, 93, 94, 102, 103, 175, 176, 254, 255, 304 and 305. Said reconfiguration shall be reflected in the improvement plans and Final Map.
Interior 60-foot and 69-foot street cross-sections, including but not limited to roadways, curb, gutter, sidewalks, landscape, Class 1 Bike Lanes, bike path crossings and ADA curb ramps, shall be designed to the satisfaction of the City Engineer or designee.
e. Roundabout truck aprons shall be constructed with roll-over curbs to facilitate bus travel.
9. For adequate water system distribution capacity, the project must either:
a. Tie into the 16-inch Claus Road transmission line, and loop into the 12-inch main off of Held Drive; or
b. Extend and loop the 12-inch main located at Merle Avenue to 12-inch main on Held Drive.
c. Further comments regarding water utility needs will be provided at the improvement plan stage, and the developer shall work with City Staff on requirements for water system connectivity, looping, and offsite CIPs.
10. Per the City’s Wastewater Master Plan and the Village One Facilities Master Plan, it is recommended that the development area tie into the 18-inch main located off of Merle Avenue. This service main is sized to have adequate capacity for development of this scale. Further comments will be provided at the improvement plan stage regarding the viability of using the existing eight-inch main on Held Drive for some additional flow demand. The developer shall work with City staff on sewer alignment and connectivity issues for this development.
11. All storm drainage must be retained within the development area per City Standards for conveyance, storage and water quality. This project may not discharge any stored storm water without the approval of the City Engineer. Such approval will only be granted if additional interconnectivity and other improvements are constructed in the future #20..
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12. Prior to recordation of a Final Map, calculations must be submitted confirming proposed park/basin, and any other proposed storm drainage management measures, which may or may not be shown, are adequately sized for the 6-day 100-year Storm (R=5.6”) per the 2014 Modesto City Standards, and the 2011 Revised Guidance Manual for Development of Stormwater Quality Measures.
13. Improvement plans shall clearly indicate that adequate space is being designated for storm drainage requirements to the satisfaction of Parks Planning and Development and the City Engineer or designee. Further comments will be provided at the improvement plan stage in regard to meeting required City Standards.
14. Improvement plans shall demonstrate placement of fire hydrants no more than 500-feet apart as measured along the curb.
15. Any public improvements that are missing, damaged or not to current City standards shall be designed per City standards in accordance with City Code (Article 7-1.701), standards and specifications. Such improvements may include, but not be limited to curb & gutter, drive approach, sidewalk, ADA access ramps, fire hydrants and street lights. All public improvement plans shall be designed by a Registered Engineer, reviewed and approved by the City Engineer prior to issuance of an Encroachment permit.
PARKS PLANNING
16. Applicant shall submit Landscape and Irrigation (L&I) plans for review and approval by the City’s Parks Planning and Development (PPD) Division. L&I plans shall meet the current State of California Model Water Efficient Landscape Ordinance (MWELO) requirements, Modesto Municipal Code (MMC) requirements and City of Modesto standards at time of submittal.
17. Applicant shall install street trees every thirty-five (35) to forty (40) feet on center along all proposed streets.
18. Applicant shall install one (1) street tree per residential lot unless on a corner lot which requires street trees every thirty-five (35) to forty (40) feet on center of the parcel’s length.
19. Applicant shall install climbing vines on all walls along the Claus Road frontage, in a landscape planter, to discourage tagging.
20. Applicant shall provide signage with appropriate landscaping for Clear Vision Triangles at entrances. Within the triangle, the area between three (3) and eight (8) feet in height measured from top of curb adjacent to landscape shall be clear.
21. Low Impact Development (LID) control and treatment measures shall be planted with vegetation for erosion protection and sediment entrapment to collect/treat storm water run-off before entering the storm drain system. Storm drainage basins shall be appropriately landscaped and #20..
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irrigated to address the specific type of storm water control measure.
Provide total square feet of the landscape area in project information.
22. Applicant shall install bicycle parking racks as part of the project development per MMC and Green Building Standards Code at all landscape lots with park amenities and park site.
23. All landscape and improvement plans shall be reviewed and accepted by Parks Planning and Development or designee prior to recordation of a Final Map. All Landscape Lot and Park Design Plans shall demonstrate but not be limited to the following:
a. Provision of underground storm water tank systems on all Landscape Lots.
b. Selection of trees with root systems that will not affect underground storm tank systems.
c. Lower Tier Park Land shall hold nuisance water.
d. Provision of design feature to dissipate storm and/or nuisance water fallout.
e. Planters along the Claus Road frontage shall be at minimum seven (7) feet in width. Planters along internal streets of the project shall be at a minimum width to accommodate landscaping including trees, to the satisfaction of the Parks Planning and Development Manager and the Director of Community and Economic Development or designee.
INFRASTRUCTURE FINANCE
24. Prior to recordation of a Final Map, the developer shall take all actions to secure and establish a mechanism for the funding of the installation of some or all of the site’s facilities, through the creation of a new MelloRoos Community Facilities District (CFD) for the Village One Triangle, and ongoing maintenance of these items and/or facilities. The developer and City will work toward a comprehensive list of facilities and improvements, and ongoing maintenance will be determined during the CFD formation process and listed in the CFD’s Public Report.
UTILITY COMPANIES
25. The Pacific Gas and Electric (PG&E) company operates an 8.625-inch high-pressure gas transmission main within the boundaries of Claus Road that will be impacted by the proposed Claus Road extended right-of-way.
Prior to the issuance of a grading or building permit, whichever occurs first, developer shall submit a full grading plan for review and approval by PG&E.
26. A PG&E Gas Transmission Standby Inspector shall be present during any demolition or construction activity that comes within ten (10) feet of the gas pipeline. This includes all grading, trenching, substructure depth verifications (potholes), asphalt or concrete demolition/removal, removal #20..
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of trees, signs, light poles, etc. This inspection shall be coordinated through the Underground Service Alert (USA) service at 811.
27. The Modesto Irrigation District (MID) Ralston Drain (Ralston Drain ID – ID No. 3D) that lies within the project site must be replaced with rubbergasketed reinforced concrete pipe (RGRCP), unless all parcels within the project site submit a Sign-Off of Drainage Facilities form to MID’s Civil Engineering Department.
28. All privately-owned irrigation facilities that will have alignment changed or relocated must be protected by an irrigation easement dedicated by separate instrument to the downstream landowner(s) that are served by the existing private infrastructure and must be shown on the subdivision map.
29. Ten-foot-wide public utility easements and six-foot-wide planting easements located within the ten-foot-wide public utility easements shall be dedicated along all street frontages as required by the City Engineer or designee.
30. All existing underground and aboveground utilities, irrigation, and electrical lines shall be protected, relocated, or removed as required by the utility companies and the City Engineer or designee. Easements for utilities, irrigation and electrical lines to remain shall be reserved as required.
GENERAL CONDITIONS
31. Improvement plans for required improvements shall be prepared by a Registered Civil Engineer and submitted for approval by the City Engineer or designee. All improvements shall be constructed in accordance with the approved plans.
32. Future home buyers and prospective residents of the Precise Plan Area No. 35 South shall be provided disclosure that they are subject to noise, dust, odor and other impacts from adjacent agricultural operations. Such notice shall be placed on the final deeds for the individual lots.
33. Future home buyers and prospective residents of the Precise Plan Area No. 35 South that are within 200-feet of the right-of-way of the Burlington Northern Santa Fe railroad shall be provided disclosure that they are subject to noise, vibration and other impacts from rail operations. final deeds for the individual lots.
34. Future home buyers and prospective residents of the Precise Plan Area No. 35 South shall be provided disclosure that they are subject to noise, vibration and other impacts from aircraft operations of the East Side Mosquito Abatement District facility located on Santa Fe Avenue to the east of the project. Such notice shall be placed on the final deeds for the individual lots.
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35. All fire hydrants and fire apparatus access roads meeting the requirement for “all weather” shall be installed prior to combustible construction materials being brought into the site.
36. Prior to the Final Inspection, Building Inspection Division shall verify that all fireplaces and wood stoves in residential units are equipped to meet the performance and emissions standards set forth in Part 60, Title 40, Subpart AAA Code of Federal Regulations, February 26, 1988.
37. Prior to start of construction, all-weather, hard-surfaced roadways shall be constructed and maintained free of obstructions at all times during construction as required by Director of Community and Economic Development and the Fire Department.
38. At the time of issuance of a building permit, the developer shall pay development impact fees at the established rate. Such fees may include but are not limited to, sewer and water connection fees, community facility fees, building permit and plan check fees.
39. All department Conditions of Approval for the project shall be included with building plans and shall be continuously maintained on-site during project construction to the satisfaction of the Chief Building Official.
40. All landscaping, fences, and walls shall be maintained and the premises shall be kept free of weeds, trash, and other debris.
41. The property owner and developer shall, at their sole expense, defend, indemnify and hold harmless the City of Modesto, its agents, officers, directors and employees, from and against all claims, actions, damages, losses, or expenses of every type and description, including but not limited to payment of attorneys’ fees and costs, by reason of, or arising out of, this development approval. The obligation to defend, indemnify and hold harmless shall include but is not limited to any action to arbitrate, attack, review, set aside, void or annul this development approval on any grounds whatsoever. The City of Modesto shall promptly notify the developer of any such claim, action, or proceeding and shall cooperate fully in the defense.
The following Conditions of Approval are Mitigation Measures from the Mitigation Monitoring and Reporting Program (MMRP) of the Mitigated Negative Declaration, EA C&ED No. 2023-26, that are applicable to the project:
Transportation and Circulation:
42. Claus Road at Merle Avenue: The project developers shall install a twolane roundabout with an enhanced high-visibility crosswalk and a pedestrian HAWK signal system for the class 1 bike path crossing. Final Design shall consider if tw-lane bypass roundabout design and right in/right out access is appropriate. This roundabout shall be designed by an experienced engineer who specializes in roundabout geometry and to the satisfaction of the City Engineer.
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43. East Briggsmore Avenue at Held Drive: The project developers shall construct a 2-lane roundabout with an enhanced high-visibility crosswalk.
This roundabout shall be designed by an experienced engineer who specializes in roundabout geometry, to the satisfaction of the City Engineer.
44. East Merle Avenue at Street F: The project developers shall install a roundabout to the Tivoli Specific Plan roundabout standard, to the satisfaction of the City Engineer.
45. Held Drive at Street M: The project developers shall install a roundabout to the Tivoli Specific Plan roundabout standard and to the satisfaction of the City Engineer.
46. Claus Road between Sylvan Avenue and Briggsmore Avenue: Developer shall dedicate sufficient right-of-way along the project frontage to allow for four-lane Principal Arterial Street alignment. Developer shall install improvements along project frontage that shall include but not be limited to:
a. Median, curb, gutter and sidewalk along Claus Road frontage; b. Landscape planter between concrete masonry wall and sidewalk per approved street cross-sections;
c. Landscape planter between sidewalk and northbound travel lanes per approved street cross-sections.
47. Interior 60-ft and 69-ft street cross-sections: The interior streets shall be designed to the satisfaction of the City Engineer. Current plans submitted only show renderings. Revisions to the proposed Class 1 bike path that runs throughout the neighborhood may be required, specifically design for intersection bike/pedestrian crossings.
Noise:
48. Sound Walls: Developer shall install CMU or pre-cast concrete masonry walls per the Wall Plan of the Precise Plan, as follows:
a. A nine-foot high sound wall along the BNSF rail alignment at the rear of Lots 204-231 and 285-305, and along the East Briggsmore Avenue frontage at the rear of Lots 1-12.
b. A seven-foot high sound wall along the Claus Road frontage at the rear of Lots 148 and 316-330 (excepting entry Lots A and B at Merle Avenue)
49. General Plan Master EIR Mitigation Measure Noise-7: Incorporate construction practices and acoustic treatment in new residential construction to reduce typical indoor noise levels to 45 dB. Developers of residential buildings within the 65 dBA contours shown in the General Plan Master EIR shall demonstrate that interior noise has been reduced to 45 dB. Other types of development should be protected against noise #20..
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intrusion at least to the levels indicated on UAGP Table VII-2. (Policy VIIG.3.e) a. All homes within 200-feet of the BNSF railway
b. All homes within 90 feet of Claus Road
c. All homes within 90 feet of East Briggsmore Avenue
50. GP MEIR Noise-14: For new residential development proposed in areas within 200 feet of the center of the near mainline of active rail lines where single-event noise from trains is of concern, demonstrate that the proposed development will incorporate measures to reduce maximum noise levels generated during train passbys to 50 dBA Lmax or less inside bedrooms and to 55 dBA Lmax or less inside other noise sensitive occupied areas. (Policy VII-G.3.l)
51. GP MEIR Noise-15: For new residential and vibration sensitive commercial development (including but not limited to lodging facilities, hospitals and similar uses) located within 200 feet of the center of the near mainline of active rail lines, demonstrate that the proposed development will incorporate measures to reduce vibration levels generated during train passby events to meet the FTA vibration criteria as shown in Master EIR Table V-3-6. (Policy VII-G.3.m)
Air Quality:
52. GP MEIR AQ-100: Reduce particulate emissions from construction, grading, excavation, and demolition to the maximum extent feasible in accordance with the requirements of SJVAPCD Regulation VIII.
Regulation VIII was adopted to reduce the amount of particulate matter suspended in the atmosphere as a result of emissions generated from anthropogenic (man-made) fugitive dust sources. (Policy VII.H.2.jj)
53. GP MEIR AQ-103. Effectively stabilize dust emissions using water, chemical stabilizer / suppressant, cover with a tarp or other suitable cover or vegetative ground cover, all disturbed areas, including storage piles, which are not being actively utilized for construction purposes. (Policy VII.H.2.mm)
54. GP MEIR AQ-104. Effectively stabilize dust emissions using water or chemical stabilizer / suppressant, all onsite unpaved roads and off-site unpaved access roads. (Policy VII.H.2.nn)
55. GP MEIR AQ-105. Effectively control fugitive dust emissions utilizing application of water or by presoaking all land clearing, grubbing, scraping, excavation, land leveling, grading, cut & fill, and demolition activities. (Policy VII.H.2.oo)
56. GP MEIR AQ-107. When materials are transported off site, cover all materials, or effectively wet them to limit visible dust emissions, and maintain at least six inches of freeboard from top of container. (Policy VII.H.2.qq)
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57. GP MEIR AQ-108. Limit operations or expeditiously remove the accumulation of mud or dirt from adjacent public streets at the end of each workday (the use of dry rotary brushes is expressly prohibited except where preceded or accompanied by sufficient wetting to limit the visible dust emissions.) (Use of blower devices is expressly forbidden.) (Policy VII.H.2.rr)
58. GP MEIR AQ-109. Following the addition of materials to, or the removal of materials from, the surface of outdoor storage piles, effectively stabilize said piles for fugitive dust emissions utilizing sufficient water or chemical stabilizer / suppressant. (Policy VII.H.2.ss)
59. GP MEIR Within urban areas, immediately remove trackout when it extends 50 or more feet from the site and at the end of each workday. (Policy VII.H.2.tt)
60. GP MEIR AQ-111. Prevent carryout and trackout for any site with 150 or more vehicle trips per day. (Policy VII.H.2.uu)
61. GP MEIR AQ-112. Limit traffic speeds on unpaved roads to 15 mph. (Policy VII.H.2.vv)
62. GP MEIR AQ-113. Install sandbags or other erosion control measures to prevent silt runoff to public roadways from sites with a slope greater than one percent (1%). (Policy VII.H.2.ww)
63. GP MEIR AQ-114. Install wheel washers for all exiting trucks, or wash all trucks and equipment leaving the site. (Policy VII.H.2.xx)
64. GP MEIR AQ-115. Install wind breaks at windward side(s) of construction areas. (Policy VII.H.2.yy)
65. GP MEIR AQ-116. Suspend excavation and grading activity when winds exceed 20 mph (regardless of windspeed, an owner/operator must comply with Regulation VIII’s 20 percent opacity limit). (Policy VII.H.2.zz)
66. GP MEIR AQ-117. Limit the area subject to excavation, grading, and other construction activity at any one time. (Policy VII.H.2.aaa) Increased Demand for Storm Drainage/Flooding and Water Quality:
67. SD-10/FWQ-11. Construction activities shall comply with the requirements of the City’s Stormwater Management Plan under its municipal NPDES stormwater permit, and the State Water Resources Control Board’s General Permit for Discharges of Storm Water Associated with Construction Activity. (Policy VI.G.3)
68. SD-12/FWQ-13. Ensure that new development complies with the City of Modesto’s Stormwater Management Program: Guidance Manual for New Development Stormwater Quality Control Measures. (Policy VI.G.5)
69. SD-13/FWQ-14. Require new development to implement an appropriate selection of permanent pollution control measures in accordance with the #20..
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City’s implementation policies for the municipal NPDES stormwater permit. (Policy VI.G.6)
70. SD-15/FWQ-16. Integrate Low Impact Development principles into proposed development projects’ design. Low Impact Development is a storm water management and land development strategy that promotes conservation and use of natural on-site features combined with engineered small-scale hydrologic devices. In designing development projects, minimize the amount of impervious surface in order to maximize on-site infiltration of stormwater runoff and minimize the potential for storm water runoff from the site. (Policy VI.G.8)
Generation of Hazardous Materials:
71. HM-5. In the event that site inspection or construction activities uncover chemical contamination, underground storage tanks, abandoned drums, or other hazardous materials or wastes at a parcel, the inspection report preparer shall so notify the City. The City shall notify the County Health Services Department. Under the direction of these agencies, a site remediation plan would be prepared by the project applicant.
72. HM-8. Applicants for building permits should determine that a site containing or formerly containing residences or farm buildings / structures has been fully investigated for the presence of hazardous materials or wastes prior to issuance of the permit. Investigation should consist of, at minimum, a Phase I environmental site assessment and a Phase II site assessment, if found necessary as a result of the Phase I assessment. The findings of the site assessment should be reported to the City and the County’s Department of Environmental Resources. The appropriate remediation should occur prior to final occupancy of the approved development. (Policy VI.M.6)
Loss of Sensitive Wildlife and Plant Habitat:
73. SWPH-12: For proposed development consistent with the adopted Urban Area General Plan on lands within the Baseline Developed Area and Downtown, exclusive of lands within the Dry Creek and Tuolumne River Comprehensive Planning Districts, an assessment of whether any potential habitat for special-status species is present within proposed development areas shall be made. No further biological study is warranted unless habitat is present or if specific information concerning the known or potential presence of significant biological resources is identified in future updates of the California Natural Diversity Database, or through formal or informal input received from resource agencies or other qualified sources (Policy VII-E.2[a]).
74. SWPH-14. Additional measures to protect sensitive habitats may be implemented. Potential measures to be implemented may include measures listed in Table V-7-1 in the General Plan MEIR. #20..
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BE IT FURTHER RESOLVED by the Planning Commission of the City of Modesto that it hereby recommends to the City Council approval of the Vesting Tentative Subdivision Map for The Crossings, as described in Exhibit “A”, attached hereto and incorporated herein by reference.
The foregoing resolution was introduced at the regular meeting of the Planning Commission held on December 18, 2023, by Commissioner Vohra, who moved its adoption, which motion was seconded by Commissioner Shanks, and carried by the following vote:
Ayes: Birring, Russell, Shanks, Silva, Vohra
Noes: Black
Absent: Vazquez
Recused: None
BY ORDER OF THE PLANNING COMMISSION OF THE CITY OF MODESTO.
Original, signed copy on file in CEDD
Jessica Hill, Secretary
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PLANNING COMMISSION
RESOLUTION NO. 2023-34
A RESOLUTION RECOMMENDING TO THE CITY COUNCIL APPROVAL OF
THE VESTING TENTATIVE MAP OF THE CROSSINGS (DR HORTON BAY INC)
WHEREAS, on July 14, 2022 an application was filed by DR Horton Bay Inc. for the proposed adoption of a precise plan document for the southerly 257-acre portion of Village One Precise Plan Area No. 35 generally located south of Milnes Road, and for concurrent rezoning from Specific Plan-Holding (SP-H) Zone to Specific Plan (SP) Zone for all that portion of Precise Plan Area No. 35 south of Milnes Road, generally referred to as Precise Plan Area No. 35 South (File No. PP-22-001); and WHEREAS, said application was made concurrently with a proposed amendment to the Urban Area General Plan (File No. GPA-22-001) to amend the Land Use Element of the General Plan to change 140 acres from Business Park-Commercial-Residential (BCR) uses to Residential Uses (R), property located east of Claus Road, north of East Briggsmore Avenue, within the Village One Specific Plan, to facilitate development of a new 527-lot single-family residential project, “The Crossings”; and WHEREAS, to facilitate said development the City of Modesto proposes an amendment to the Circulation Element of the General Plan to downgrade the classification of Claus Road between Sylvan Avenue and East Briggsmore Avenue from an Expressway to a four-lane Principal Arterial Street, and to downgrade East Briggsmore Avenue from Claus Road to the BNSF Railroad crossing from an Expressway to a four-lane Principal Arterial Street, and to amend Section VI.H.11 and VI.H.12 of the General Plan regarding the minimum sizing of Neighborhood Parks; and WHEREAS, said application was made concurrently with a proposed amendment to the Village One Specific Plan to amend the land use designation of the above 140 acres from Business Park (BP) to Residential (R) with associated text amendments (File No. SPA-22-003) together with a City-initiated amendment to the Circulation Diagram to amend the designation of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street, and to amend the designation of East Briggsmore Avenue east of Claus Road from a Class A Expressway to a four-lane Principal Arterial Street; and WHEREAS, DR Horton Bay Inc. has filed an application for a Vesting Tentative Subdivision Map, The Crossings, to divide 84.1 acres located east of Claus Road and north of E. Briggsmore Avenue into 527 single family residential lots, five landscape lots and one park lot; and
WHEREAS, said Vesting Tentative Map was received in the office of the Secretary of the Planning Commission on July 14, 2022, and was accepted for filing and deemed complete on November 9, 2023, in accordance with the provisions of Section 4-4.401 of the Modesto Municipal Code; and
WHEREAS, copies of said vesting tentative map have been sent to the Sylvan Elementary School and Modesto High School Districts, Modesto Irrigation District, the local utility companies, and the City Engineering and Transportation Department; and #20..
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WHEREAS, City services, including sewer and water facilities, are available; and WHEREAS, the area can be served by elementary schools in the Sylvan School District and by Fire Station No. 9 at 4025 Fara Biundo Drive, 0.50 miles distant; and WHEREAS, an Initial Study, EA/C&ED No. 2023-26 has been prepared by staff, as required by CEQA; and
WHEREAS, the Initial Study concluded that while the project may have a potentially significant effect on the environment, the incorporation of mitigation measures would reduce the impact to a less than significant level, and a Mitigated Negative Declaration was prepared; and
WHEREAS, a 30-day public review period for the proposed Initial Study/Mitigated Negative Declaration began on November 14, 2023 and concluded on December 14, 2023; and
WHEREAS, the City received public comments on the draft Initial Study/Mitigated Negative Declaration and no changes to the document were necessary as a result; and WHEREAS, the Mitigation Monitoring and Reporting Program (MMRP) is included and described within the Initial Study/Mitigated Negative Declaration; and WHEREAS, a public hearing was held by the Planning Commission on December 18, 2023, in Chambers, 1010 Tenth Street, Modesto, California, at which hearing evidence both oral and documentary was received and considered.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission that it hereby finds and determines as follows:
1. The proposed vesting tentative subdivision map, together with the provisions for its design and improvements, is consistent with the General Plan of the City of Modesto (as amended), the Village One Specific Plan (as amended), Precise Plan Area No. 35 South (as adopted) and the Subdivision Map Act of the State of California.
2. The discharge of waste as a result of the proposed vesting tentative subdivision map into the existing sewer system will not result in a violation of existing requirements by the California Regional Water Quality Control Board pursuant to Division 7 (commencing with Section 13000) of the Water Code of the State of California.
3. An Initial Study/Mitigated Negative Declaration, Environmental Assessment No. EA/C&ED No. 2023-26, has been prepared by the City of Modesto that analyzed the proposed Specific Plan Amendment, and the Planning Commission has determined that, on the basis of the whole record before it, that while the project may have a potentially significant effect on the environment, the incorporation of project-specific mitigation measures would reduce the impact to a less than significant level. #20..
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BE IT FURTHER RESOLVED by the Planning Commission that it hereby recommends to the City Council the approval of the Vesting Tentative Map of The Crossings, accepted for filing in the office of the Secretary of the Planning Commission on November 9, 2023, as submitted and as shown in red on the face of the map and subject to the following conditions:
1. The Crossings Final Map cannot be recorded unless and until the City Council approves the proposed amendment to the General Plan Land Use Element and Circulation Element (Project No. GPA-22-001) and proposed amendment to the Village One Specific Plan land use diagram and circulation diagram (Project No. SPA-22-003) to allow for development of the 527-lot single-family residential subdivision as proposed. Said approval shall be noted on the Final Map.
2. The Crossings Final Map cannot be recorded unless and until the City Council approves the Precise Plan No. 35 South document by Ordinance and said Ordinance is adopted and in effect. Said approval shall be noted on the Final Map.
3. Prior to recordation of a Final Map, new street names for all lettered streets and cul-de-sac courts of the subdivision shall be proposed and approved by both the City and the County.
4. Prior to recordation of a Final Map, Merle Avenue as shown on the tentative subdivision map shall be identified as “East Merle Avenue” from the intersection of Claus Road to the intersection of “Street F” of the tentative subdivision map, and the continuation of said street eastward from Street F shall be identified as “Held Drive”.
5. Prior to issuance of a building permit for lots that back up to Claus Road, plot plans for said lots shall demonstrate that all rear yard setbacks be at least fifteen (15) feet, in accordance to the setback standards outlined in Section 10-408(c) of the City’s Zoning Code.
6. Prior to Certificate of Occupancy of any structure adjacent to required fences and walls, such fences and walls shall be installed in accordance to the Wall Plan of Precise Plan Area No. 35 South as adopted by the City Council, and the Village One Specific Plan, Section II.G.13, Residential— Community Design Policies, including but not limited to the following standards:
a. A minimum seven (7) foot high decorative concrete masonry sound wall with cap treatment along the Claus Road frontage at the rear of Lots 148 and 316-330 (excepting entry Lots A and B at Merle Avenue), and along the East Briggsmore Avenue frontage at the rear of Lots 1-12. Said wall should be designed with two-foot offsets at every other property line.
b. A minimum nine (9) foot high CMU or pre-cast concrete masonry sound wall along the BNSF rail alignment at the rear of lots 204-231 and 285-305. Such CMU or pre-cast concrete masonry wall may step #20..
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down to seven (7) feet in height beyond the 200-foot distance from the center of the mainline of the railroad.
c. Walls and fences along the collector streets shall be provided as required by Section II.G.13.a.8 of the Specific Plan.
7. Prior to issuance of a building permit for any lot within 200-feet of the center of the near mainline of the adjacent BNSF Railroad along the easternmost boundaries of the subdivision, and any lot that backs up to Claus Road, building plans shall demonstrate the provision of acoustical treatments to reduce exterior noise impacts to an interior decibel level of 45Ldn or less, to the satisfaction of the Chief Building Official and the Director of Community and Economic Development.
In addition, for those lots within 200-feet of the center of the near mainline of the adjacent BNSF Railroad along the easternmost boundaries of the subdivision, building plans shall demonstrate structural improvements to mitigate vibration levels generated by passing train traffic, to the satisfaction of the Chief Building Official and the Director of Community and Economic Development.
LAND DEVELOPMENT ENGINEERING
8. Prior to recordation of a Final Map, improvement plans for required improvements shall be prepared by a Registered Civil Engineer and submitted for approval by the City Engineer or designee.
The improvement plans shall include but not be limited to the following:
a. Dedication of Claus Road to a four-lane Principal Arterial Street per the Circulation Plan of Precise Plan No. 35 South, with installation of roadway and frontage improvements as demonstrated on the Wall Plan of the Precise Plan, consisting of a separated sidewalk between landscaped areas along the entirety of the tentative map frontage of Claus Road. Dedication and design of improvements shall be to the satisfaction of the City Engineer or designee.
b. Dedication and installation of a two-lane bypass roundabout at the intersection of Claus Road and Merle Avenue. Final design shall consider if two-lane bypass roundabout design and right in/right out access is appropriate. Said roundabout shall be designed by a registered engineer with specialization in roundabout geometry and be designed to the satisfaction of the City Engineer or designee.
Dedication and installation of the two-lane roundabout at the intersection of Claus Road and Merle Avenue shall include an enhanced high-visibility crosswalk and a pedestrian HAWK signal system for the Class 1 Bike Path crossing.
Dedication and installation of the roundabout may require the reconfiguration or removal of the following Lots: Entry Lots A and B, and Lots 149, 148, 157, 316 and 317. Said reconfiguration shall be reflected in the improvement plans and Final Map.
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c. Dedication and installation of a two-lane roundabout at the intersection of East Briggsmore Avenue and Held Drive. Said roundabout shall be designed by a registered engineer with specialization in roundabout geometry and be designed to the satisfaction of the City Engineer or designee.
d. Dedication and installation of Tivoli Specific Plan standard roundabouts at the intersections of Held Drive/Street M and East Merle Avenue/Street F. Said roundabouts shall be designed by a registered engineer with specialization in roundabout geometry and be designed to the satisfaction of the City Engineer or designee.
Dedication and installation of the roundabouts may require the reconfiguration or removal of the following Lots: 77, 78, 93, 94, 102, 103, 175, 176, 254, 255, 304 and 305. Said reconfiguration shall be reflected in the improvement plans and Final Map.
Interior 60-foot and 69-foot street cross-sections, including but not limited to roadways, curb, gutter, sidewalks, landscape, Class 1 Bike Lanes, bike path crossings and ADA curb ramps, shall be designed to the satisfaction of the City Engineer or designee.
e. Roundabout truck aprons shall be constructed with roll-over curbs to facilitate bus travel.
9. For adequate water system distribution capacity, the project must either:
a. Tie into the 16-inch Claus Road transmission line, and loop into the 12-inch main off of Held Drive; or
b. Extend and loop the 12-inch main located at Merle Avenue to 12-inch main on Held Drive.
c. Further comments regarding water utility needs will be provided at the improvement plan stage, and the developer shall work with City Staff on requirements for water system connectivity, looping, and offsite CIPs.
10. Per the City’s Wastewater Master Plan and the Village One Facilities Master Plan, it is recommended that the development area tie into the 18-inch main located off of Merle Avenue. This service main is sized to have adequate capacity for development of this scale. Further comments will be provided at the improvement plan stage regarding the viability of using the existing eight-inch main on Held Drive for some additional flow demand. The developer shall work with City staff on sewer alignment and connectivity issues for this development.
11. All storm drainage must be retained within the development area per City Standards for conveyance, storage and water quality. This project may not discharge any stored storm water without the approval of the City Engineer. Such approval will only be granted if additional interconnectivity and other improvements are constructed in the future #20..
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12. Prior to recordation of a Final Map, calculations must be submitted confirming proposed park/basin, and any other proposed storm drainage management measures, which may or may not be shown, are adequately sized for the 6-day 100-year Storm (R=5.6”) per the 2014 Modesto City Standards, and the 2011 Revised Guidance Manual for Development of Stormwater Quality Measures.
13. Improvement plans shall clearly indicate that adequate space is being designated for storm drainage requirements to the satisfaction of Parks Planning and Development and the City Engineer or designee. Further comments will be provided at the improvement plan stage in regard to meeting required City Standards.
14. Improvement plans shall demonstrate placement of fire hydrants no more than 500-feet apart as measured along the curb.
15. Any public improvements that are missing, damaged or not to current City standards shall be designed per City standards in accordance with City Code (Article 7-1.701), standards and specifications. Such improvements may include, but not be limited to curb & gutter, drive approach, sidewalk, ADA access ramps, fire hydrants and street lights. All public improvement plans shall be designed by a Registered Engineer, reviewed and approved by the City Engineer prior to issuance of an Encroachment permit.
PARKS PLANNING
16. Applicant shall submit Landscape and Irrigation (L&I) plans for review and approval by the City’s Parks Planning and Development (PPD) Division. L&I plans shall meet the current State of California Model Water Efficient Landscape Ordinance (MWELO) requirements, Modesto Municipal Code (MMC) requirements and City of Modesto standards at time of submittal.
17. Applicant shall install street trees every thirty-five (35) to forty (40) feet on center along all proposed streets.
18. Applicant shall install one (1) street tree per residential lot unless on a corner lot which requires street trees every thirty-five (35) to forty (40) feet on center of the parcel’s length.
19. Applicant shall install climbing vines on all walls along the Claus Road frontage, in a landscape planter, to discourage tagging.
20. Applicant shall provide signage with appropriate landscaping for Clear Vision Triangles at entrances. Within the triangle, the area between three (3) and eight (8) feet in height measured from top of curb adjacent to landscape shall be clear.
21. Low Impact Development (LID) control and treatment measures shall be planted with vegetation for erosion protection and sediment entrapment to collect/treat storm water run-off before entering the storm drain system. Storm drainage basins shall be appropriately landscaped and #20..
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irrigated to address the specific type of storm water control measure.
Provide total square feet of the landscape area in project information.
22. Applicant shall install bicycle parking racks as part of the project development per MMC and Green Building Standards Code at all landscape lots with park amenities and park site.
23. All landscape and improvement plans shall be reviewed and accepted by Parks Planning and Development or designee prior to recordation of a Final Map. All Landscape Lot and Park Design Plans shall demonstrate but not be limited to the following:
a. Provision of underground storm water tank systems on all Landscape Lots.
b. Selection of trees with root systems that will not affect underground storm tank systems.
c. Lower Tier Park Land shall hold nuisance water.
d. Provision of design feature to dissipate storm and/or nuisance water fallout.
e. Planters along the Claus Road frontage shall be at minimum seven (7) feet in width. Planters along internal streets of the project shall be at a minimum width to accommodate landscaping including trees, to the satisfaction of the Parks Planning and Development Manager and the Director of Community and Economic Development or designee.
INFRASTRUCTURE FINANCE
24. Prior to recordation of a Final Map, the developer shall take all actions to secure and establish a mechanism for the funding of the installation of some or all of the site’s facilities, through the creation of a new MelloRoos Community Facilities District (CFD) for the Village One Triangle, and ongoing maintenance of these items and/or facilities. The developer and City will work toward a comprehensive list of facilities and improvements, and ongoing maintenance will be determined during the CFD formation process and listed in the CFD’s Public Report.
UTILITY COMPANIES
25. The Pacific Gas and Electric (PG&E) company operates an 8.625-inch high-pressure gas transmission main within the boundaries of Claus Road that will be impacted by the proposed Claus Road extended right-of-way.
Prior to the issuance of a grading or building permit, whichever occurs first, developer shall submit a full grading plan for review and approval by PG&E.
26. A PG&E Gas Transmission Standby Inspector shall be present during any demolition or construction activity that comes within ten (10) feet of the gas pipeline. This includes all grading, trenching, substructure depth verifications (potholes), asphalt or concrete demolition/removal, removal #20..
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of trees, signs, light poles, etc. This inspection shall be coordinated through the Underground Service Alert (USA) service at 811.
27. The Modesto Irrigation District (MID) Ralston Drain (Ralston Drain ID – ID No. 3D) that lies within the project site must be replaced with rubbergasketed reinforced concrete pipe (RGRCP), unless all parcels within the project site submit a Sign-Off of Drainage Facilities form to MID’s Civil Engineering Department.
28. All privately-owned irrigation facilities that will have alignment changed or relocated must be protected by an irrigation easement dedicated by separate instrument to the downstream landowner(s) that are served by the existing private infrastructure and must be shown on the subdivision map.
29. Ten-foot-wide public utility easements and six-foot-wide planting easements located within the ten-foot-wide public utility easements shall be dedicated along all street frontages as required by the City Engineer or designee.
30. All existing underground and aboveground utilities, irrigation, and electrical lines shall be protected, relocated, or removed as required by the utility companies and the City Engineer or designee. Easements for utilities, irrigation and electrical lines to remain shall be reserved as required.
GENERAL CONDITIONS
31. Improvement plans for required improvements shall be prepared by a Registered Civil Engineer and submitted for approval by the City Engineer or designee. All improvements shall be constructed in accordance with the approved plans.
32. Future home buyers and prospective residents of the Precise Plan Area No. 35 South shall be provided disclosure that they are subject to noise, dust, odor and other impacts from adjacent agricultural operations. Such notice shall be placed on the final deeds for the individual lots.
33. Future home buyers and prospective residents of the Precise Plan Area No. 35 South that are within 200-feet of the right-of-way of the Burlington Northern Santa Fe railroad shall be provided disclosure that they are subject to noise, vibration and other impacts from rail operations. final deeds for the individual lots.
34. Future home buyers and prospective residents of the Precise Plan Area No. 35 South shall be provided disclosure that they are subject to noise, vibration and other impacts from aircraft operations of the East Side Mosquito Abatement District facility located on Santa Fe Avenue to the east of the project. Such notice shall be placed on the final deeds for the individual lots.
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35. All fire hydrants and fire apparatus access roads meeting the requirement for “all weather” shall be installed prior to combustible construction materials being brought into the site.
36. Prior to the Final Inspection, Building Inspection Division shall verify that all fireplaces and wood stoves in residential units are equipped to meet the performance and emissions standards set forth in Part 60, Title 40, Subpart AAA Code of Federal Regulations, February 26, 1988.
37. Prior to start of construction, all-weather, hard-surfaced roadways shall be constructed and maintained free of obstructions at all times during construction as required by Director of Community and Economic Development and the Fire Department.
38. At the time of issuance of a building permit, the developer shall pay development impact fees at the established rate. Such fees may include but are not limited to, sewer and water connection fees, community facility fees, building permit and plan check fees.
39. All department Conditions of Approval for the project shall be included with building plans and shall be continuously maintained on-site during project construction to the satisfaction of the Chief Building Official.
40. All landscaping, fences, and walls shall be maintained and the premises shall be kept free of weeds, trash, and other debris.
41. The property owner and developer shall, at their sole expense, defend, indemnify and hold harmless the City of Modesto, its agents, officers, directors and employees, from and against all claims, actions, damages, losses, or expenses of every type and description, including but not limited to payment of attorneys’ fees and costs, by reason of, or arising out of, this development approval. The obligation to defend, indemnify and hold harmless shall include but is not limited to any action to arbitrate, attack, review, set aside, void or annul this development approval on any grounds whatsoever. The City of Modesto shall promptly notify the developer of any such claim, action, or proceeding and shall cooperate fully in the defense.
The following Conditions of Approval are Mitigation Measures from the Mitigation Monitoring and Reporting Program (MMRP) of the Mitigated Negative Declaration, EA C&ED No. 2023-26, that are applicable to the project:
Transportation and Circulation:
42. Claus Road at Merle Avenue: The project developers shall install a twolane roundabout with an enhanced high-visibility crosswalk and a pedestrian HAWK signal system for the class 1 bike path crossing. Final Design shall consider if tw-lane bypass roundabout design and right in/right out access is appropriate. This roundabout shall be designed by an experienced engineer who specializes in roundabout geometry and to the satisfaction of the City Engineer.
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43. East Briggsmore Avenue at Held Drive: The project developers shall construct a 2-lane roundabout with an enhanced high-visibility crosswalk.
This roundabout shall be designed by an experienced engineer who specializes in roundabout geometry, to the satisfaction of the City Engineer.
44. East Merle Avenue at Street F: The project developers shall install a roundabout to the Tivoli Specific Plan roundabout standard, to the satisfaction of the City Engineer.
45. Held Drive at Street M: The project developers shall install a roundabout to the Tivoli Specific Plan roundabout standard and to the satisfaction of the City Engineer.
46. Claus Road between Sylvan Avenue and Briggsmore Avenue: Developer shall dedicate sufficient right-of-way along the project frontage to allow for four-lane Principal Arterial Street alignment. Developer shall install improvements along project frontage that shall include but not be limited to:
a. Median, curb, gutter and sidewalk along Claus Road frontage; b. Landscape planter between concrete masonry wall and sidewalk per approved street cross-sections;
c. Landscape planter between sidewalk and northbound travel lanes per approved street cross-sections.
47. Interior 60-ft and 69-ft street cross-sections: The interior streets shall be designed to the satisfaction of the City Engineer. Current plans submitted only show renderings. Revisions to the proposed Class 1 bike path that runs throughout the neighborhood may be required, specifically design for intersection bike/pedestrian crossings.
Noise:
48. Sound Walls: Developer shall install CMU or pre-cast concrete masonry walls per the Wall Plan of the Precise Plan, as follows:
a. A nine-foot high sound wall along the BNSF rail alignment at the rear of Lots 204-231 and 285-305, and along the East Briggsmore Avenue frontage at the rear of Lots 1-12.
b. A seven-foot high sound wall along the Claus Road frontage at the rear of Lots 148 and 316-330 (excepting entry Lots A and B at Merle Avenue)
49. General Plan Master EIR Mitigation Measure Noise-7: Incorporate construction practices and acoustic treatment in new residential construction to reduce typical indoor noise levels to 45 dB. Developers of residential buildings within the 65 dBA contours shown in the General Plan Master EIR shall demonstrate that interior noise has been reduced to 45 dB. Other types of development should be protected against noise #20..
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intrusion at least to the levels indicated on UAGP Table VII-2. (Policy VIIG.3.e) a. All homes within 200-feet of the BNSF railway
b. All homes within 90 feet of Claus Road
c. All homes within 90 feet of East Briggsmore Avenue
50. GP MEIR Noise-14: For new residential development proposed in areas within 200 feet of the center of the near mainline of active rail lines where single-event noise from trains is of concern, demonstrate that the proposed development will incorporate measures to reduce maximum noise levels generated during train passbys to 50 dBA Lmax or less inside bedrooms and to 55 dBA Lmax or less inside other noise sensitive occupied areas. (Policy VII-G.3.l)
51. GP MEIR Noise-15: For new residential and vibration sensitive commercial development (including but not limited to lodging facilities, hospitals and similar uses) located within 200 feet of the center of the near mainline of active rail lines, demonstrate that the proposed development will incorporate measures to reduce vibration levels generated during train passby events to meet the FTA vibration criteria as shown in Master EIR Table V-3-6. (Policy VII-G.3.m)
Air Quality:
52. GP MEIR AQ-100: Reduce particulate emissions from construction, grading, excavation, and demolition to the maximum extent feasible in accordance with the requirements of SJVAPCD Regulation VIII.
Regulation VIII was adopted to reduce the amount of particulate matter suspended in the atmosphere as a result of emissions generated from anthropogenic (man-made) fugitive dust sources. (Policy VII.H.2.jj)
53. GP MEIR AQ-103. Effectively stabilize dust emissions using water, chemical stabilizer / suppressant, cover with a tarp or other suitable cover or vegetative ground cover, all disturbed areas, including storage piles, which are not being actively utilized for construction purposes. (Policy VII.H.2.mm)
54. GP MEIR AQ-104. Effectively stabilize dust emissions using water or chemical stabilizer / suppressant, all onsite unpaved roads and off-site unpaved access roads. (Policy VII.H.2.nn)
55. GP MEIR AQ-105. Effectively control fugitive dust emissions utilizing application of water or by presoaking all land clearing, grubbing, scraping, excavation, land leveling, grading, cut & fill, and demolition activities. (Policy VII.H.2.oo)
56. GP MEIR AQ-107. When materials are transported off site, cover all materials, or effectively wet them to limit visible dust emissions, and maintain at least six inches of freeboard from top of container. (Policy VII.H.2.qq)
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57. GP MEIR AQ-108. Limit operations or expeditiously remove the accumulation of mud or dirt from adjacent public streets at the end of each workday (the use of dry rotary brushes is expressly prohibited except where preceded or accompanied by sufficient wetting to limit the visible dust emissions.) (Use of blower devices is expressly forbidden.) (Policy VII.H.2.rr)
58. GP MEIR AQ-109. Following the addition of materials to, or the removal of materials from, the surface of outdoor storage piles, effectively stabilize said piles for fugitive dust emissions utilizing sufficient water or chemical stabilizer / suppressant. (Policy VII.H.2.ss)
59. GP MEIR Within urban areas, immediately remove trackout when it extends 50 or more feet from the site and at the end of each workday. (Policy VII.H.2.tt)
60. GP MEIR AQ-111. Prevent carryout and trackout for any site with 150 or more vehicle trips per day. (Policy VII.H.2.uu)
61. GP MEIR AQ-112. Limit traffic speeds on unpaved roads to 15 mph. (Policy VII.H.2.vv)
62. GP MEIR AQ-113. Install sandbags or other erosion control measures to prevent silt runoff to public roadways from sites with a slope greater than one percent (1%). (Policy VII.H.2.ww)
63. GP MEIR AQ-114. Install wheel washers for all exiting trucks, or wash all trucks and equipment leaving the site. (Policy VII.H.2.xx)
64. GP MEIR AQ-115. Install wind breaks at windward side(s) of construction areas. (Policy VII.H.2.yy)
65. GP MEIR AQ-116. Suspend excavation and grading activity when winds exceed 20 mph (regardless of windspeed, an owner/operator must comply with Regulation VIII’s 20 percent opacity limit). (Policy VII.H.2.zz)
66. GP MEIR AQ-117. Limit the area subject to excavation, grading, and other construction activity at any one time. (Policy VII.H.2.aaa) Increased Demand for Storm Drainage/Flooding and Water Quality:
67. SD-10/FWQ-11. Construction activities shall comply with the requirements of the City’s Stormwater Management Plan under its municipal NPDES stormwater permit, and the State Water Resources Control Board’s General Permit for Discharges of Storm Water Associated with Construction Activity. (Policy VI.G.3)
68. SD-12/FWQ-13. Ensure that new development complies with the City of Modesto’s Stormwater Management Program: Guidance Manual for New Development Stormwater Quality Control Measures. (Policy VI.G.5)
69. SD-13/FWQ-14. Require new development to implement an appropriate selection of permanent pollution control measures in accordance with the #20..
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City’s implementation policies for the municipal NPDES stormwater permit. (Policy VI.G.6)
70. SD-15/FWQ-16. Integrate Low Impact Development principles into proposed development projects’ design. Low Impact Development is a storm water management and land development strategy that promotes conservation and use of natural on-site features combined with engineered small-scale hydrologic devices. In designing development projects, minimize the amount of impervious surface in order to maximize on-site infiltration of stormwater runoff and minimize the potential for storm water runoff from the site. (Policy VI.G.8)
Generation of Hazardous Materials:
71. HM-5. In the event that site inspection or construction activities uncover chemical contamination, underground storage tanks, abandoned drums, or other hazardous materials or wastes at a parcel, the inspection report preparer shall so notify the City. The City shall notify the County Health Services Department. Under the direction of these agencies, a site remediation plan would be prepared by the project applicant.
72. HM-8. Applicants for building permits should determine that a site containing or formerly containing residences or farm buildings / structures has been fully investigated for the presence of hazardous materials or wastes prior to issuance of the permit. Investigation should consist of, at minimum, a Phase I environmental site assessment and a Phase II site assessment, if found necessary as a result of the Phase I assessment. The findings of the site assessment should be reported to the City and the County’s Department of Environmental Resources. The appropriate remediation should occur prior to final occupancy of the approved development. (Policy VI.M.6)
Loss of Sensitive Wildlife and Plant Habitat:
73. SWPH-12: For proposed development consistent with the adopted Urban Area General Plan on lands within the Baseline Developed Area and Downtown, exclusive of lands within the Dry Creek and Tuolumne River Comprehensive Planning Districts, an assessment of whether any potential habitat for special-status species is present within proposed development areas shall be made. No further biological study is warranted unless habitat is present or if specific information concerning the known or potential presence of significant biological resources is identified in future updates of the California Natural Diversity Database, or through formal or informal input received from resource agencies or other qualified sources (Policy VII-E.2[a]).
74. SWPH-14. Additional measures to protect sensitive habitats may be implemented. Potential measures to be implemented may include measures listed in Table V-7-1 in the General Plan MEIR. #20..
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BE IT FURTHER RESOLVED by the Planning Commission of the City of Modesto that it hereby recommends to the City Council approval of the Vesting Tentative Subdivision Map for The Crossings, as described in Exhibit “A”, attached hereto and incorporated herein by reference.
The foregoing resolution was introduced at the regular meeting of the Planning Commission held on December 18, 2023, by Commissioner Vohra, who moved its adoption, which motion was seconded by Commissioner Shanks, and carried by the following vote:
Ayes: Birring, Russell, Shanks, Silva, Vohra
Noes: Black
Absent: Vazquez
Recused: None
BY ORDER OF THE PLANNING COMMISSION OF THE CITY OF MODESTO.
Original, signed copy on file in CEDD
Jessica Hill, Secretary
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1/8/2024
LIST OF INVOLVED PARTIES FOR THE PLANNING COMMISSION
AGENDA OF DECEMBER 18, 2023
At the Commission’s request, staff has compiled a list of persons having a personal/financial interest in the matters contained in the accompanying agenda report to help identify potential conflicts of interest.
ITEM A The Crossings: General Plan Land Use Amendment, Specific Plan Land Use Amendment, with Precise Plan Area No. 35, Vesting Tentative Subdivision Map and Final Development Plan
Relationship Name/Address
Applicant DR Horton, 3000 Executive Parkway#100, San Ramon, CA 94583 Owner 1740 Clause Road, Modesto, CA 95355
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Updated: 06/25/20
FINANCIAL INTEREST DISCLOSURE FORM GUIDELINES
City ordinance requires that all individuals with a material interest in a decision of the City Council must be disclosed. The following is for your assistance in completing the attached disclosure form:
1. For all of the below, corporate names/LLC’s/limited partnerships are not acceptable in and of themselves, all individuals with an interest of $2000 or more must be disclosed in these cases.
2. Individuals with a material interest include all property owners.
3. Individuals with a material interest include any developer.
4. Individuals with a material interest include any architect, engineer, or other design professional.
5. Individuals with a material interest include the applicant’s attorney or other representative.
6. Individuals with a material interest include any real estate agent who is party to the transaction.
7. Individuals with a material interest include any contractor constructing the project for which the contract has been arranged by the time of the hearing.
The above is for guidance only and not an inclusive list of all individuals at interest. You have a responsibility to determine and list all individuals in accordance with the Tests of Materiality as set forth on the attached.
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FINANCIAL INTEREST DISCLOSURE FORM
All persons included within the meaning of either of the following tests have a material financial interest in an agreement, or application for development rights, submitted for approval or disapproval by the City Council, and shall be identified by the applicant, by name.
Tests of Materiality:
1. Whether it is foreseeable to a reasonable person that the value of their interest in property available for use by an applicant, or their interest in the applicant itself, may increase or decrease by an amount greater than $2,000.00 as a direct or indirect result of Council action on the applicant’s agreement or application for development rights.
2. Whether it is foreseeable to a reasonable person that the person’s gross income from the applicant may increase or decrease by a sum greater than $2,000.00 as a direct or indirect result of Council action on the agreement or application for development rights.
It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the agreement or application or development rights is true, correct and complete. The applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
PROJECT: ____________________________________
APPLICANT SIGNATURE
__________________________________
APPLICANT NAME (type or print)
In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, programs, or activities. For more information, please visit the City of Modesto website: https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA #20..
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NAMES
Property Owner(s) – (Please list name of company and names of individual names of said company) Developer(s) – (Please list name of company and names of individual owner(s) of company) Architect(s), Engineer(s) or Other Design Professional(s) – (Please list name of company and names of individual owner(s) of company)
Attorney(s) or Representative(s) – (Please list name of company and names of individual owner(s) of company)
Real Estate Agent(s) – (Please list name of company and names of individual owner(s) of company) Contractor(s)
Other – (Investors, Trustees, etc.)
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
January 23, 2024
Date: December 20, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Approval of funding agreements for 710 N. 9th Street, Traveler’s Motel CONTACT: Edgar Garcia, Community Development Manager,
[email protected], 209-571-5211
DESCRIPTION:
Consider accepting the Homekey 3 award in the amount of $ 16,059,562 and HOME Investment Partnerships loans to Modesto Homekey LP in the amount of $3,473,712, and $200,000 for staff activity, and approving an Agreement with Stanislaus County Community Services Agency (CSA) for the acceptance of Homeless Housing Assistance and Prevention Program (HHAP) funding in the amount of $1,775,077 for the project located at 710 N. 9th Street. (Funding Source: Homekey 3 funds, American Rescue Plan HOME Investment Partnership (HOME-ARP), HOME Investment Partnership funds, and Homeless Housing Assistance and Prevention Program) STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan, Goal C: Develop a Homelessness and Housing Plan
BACKGROUND:
As an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development (HUD) that requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP).The City additionally qualifies for an annual allocation from the State of California from the Permanent Local Housing Allocation (PLHA), each designated to fund components of the development of affordable housing.
On December 14, 2022, the City of Modesto released an Affordable Housing Request for Proposal (RFP) on to solicit projects for the various funding sources that the City received that could be used for the development of affordable housing. This RFP submission was to increase the ability for the City and its project applicants to leverage the Notice of Funding Availability (NOFA) for the Homekey program which was announced on March 29, 2023. The Round 3 NOFA in the amount of approximately $736 million included approximately $43 million for the San Joaquin Valley. #21..
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City Council, January 23, 2024
Approval of funding agreements for 710 N. 9th Street, Traveler’s Motel
Through this RFP process the City received a proposal for RHCB Development LP (RHCB), operating as Modesto Homekey LP for this project for the rehabilitation of Traveler’s Motel located at 710 N. 9th Street to serve as a 56-unit permanent supportive housing project with one on-site manager unit and 38 units to serve youth experiencing homelessness and the remaining 17 units for the general population that is experiencing homelessness.
On May 2, 2023, by Resolution 2023-212 and 2023-210 the City committed the allocation of $2,274,923 and the commitment of $1,775,077 from the Community System of Care (CSOC), both allocations intended to fill the gap needed to support the development of the project contingent on the award of Homekey funding.
DISCUSSION:
On May 2, 2023, by Council Resolution 2023-210, Council authorized staff to submit a Homekey application with an estimated total project cost of $23,200,000. That was inclusive of all the available sources secured from the other community partners and the highest estimated amount that could be requested through the Homekey application of $17,000,000.
Homekey Application Details
Source Use Amount
Homekey Round 3 Application Capital $17,000,000
Stanislaus County Community System of Care
HHAP
Capital $ 1,775,077
City Pre-Award Commitment Capital $2,274,923
Health Plan of San Joaquin HHIP (Cal-AIM) Relocation $2,150,000 Homekey Application Total $23,200,000
The project consists of the acquisition of the Hotel at the of appraised value under the State of California’s Homekey appraisal rules, relocation, and rehabilitation of the existing Traveler’s site that will create a sustainable source of permanent supportive housing in the City. In addition to the housing opportunities, there will be supportive services onsite that include case management, peer support activities, mental health services, and linkages to outside community service providers, including physical and dental health care. Further, the service team will also be trained in assessing mental health and substance use disorders to assist client connections to appropriate services.
On September 26, 2023, the City was notified of the Homey Round 3 award to the City and Modesto Homekey, LP Development in the amount of $16,059,562. The mission of the Homekey funding is to prevent homelessness by rapidly housing individuals through the provision of coordinated, compassionate, and high-quality services.
Homekey Award
Source Amount
Capital Award (Acquisition and/or Rehab) $14,950,000
Relocation Costs $ 750,000
Operating Subsidy $ 359,562
Homekey Commitment $ 16,059,562
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City Council, January 23, 2024
Approval of funding agreements for 710 N. 9th Street, Traveler’s Motel
Project Timeline
Milestone Estimated Date
Agreement Execution January 2024
Relocation January 2024
Acquisition January 2024
Construction Start February 2024
Construction Completion Winter 2024
Occupancy Winter 2024
The Project Scope
Since the initial application, City and project staff have reviewed and assessed the engineers estimated budget and after significant forensic construction investigation it was identified that substantial work is needed behind the walls of the units to ensure a healthy and safe living environment for fulltime residents. This identified work resulted in rehabilitation cost of the project being higher than initially estimated. The updated project total is $23,485,924.
Project Costs: Housing Development of 710 N 9th Street
Source Use Amount
Homekey Round 3 Award
Capital Award (Acquisition and/or Rehab) Capital $ 14,950,000 Relocation Costs Relocation $ 750,000
Operating Subsidy Operating $ 359,562
Homekey Commitment $ 16,059,562
Other Community Partner Commitments
Stanislaus County Community System of Care
HHAP
Capital $ 1,775,077
Health Plan of San Joaquin HHIP (Cal-AIM) Capital $ 1,670,901 Health Plan of San Joaquin HHIP (Cal-AIM) Relocation $ 479,099 Other Local Commitments $ 3,925,077
Developer Commitments Capital $ 27,573
Modesto Recommended Commitment
Modesto HOME-ARP Capital $ 2,800,000
Modesto HOME Capital $ 673,712
Modesto Commitment $ 3,473,712
Total $23,485,924
The combination of the engineered estimate on the building and the split of the Homekey award to non-capital components of the scope of work resulted in the need for an additional $1,208,789 to ensure that this project has sufficient funding.
It should be noted that this project is paid on a reimbursement basis and the final cost incurred to this project will be for actual expenditures and will be monitored closely by City staff to ensure that work and labor is performed to the standard that meets all local, State, and Federal #21..
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City Council, January 23, 2024
Approval of funding agreements for 710 N. 9th Street, Traveler’s Motel
requirements. City staff has worked with the developer to refine the expenses and to assist with the gap in funding.
Homekey 3 funds must be used as described in the application to provide housing for individuals and families experiencing homelessness or who are at risk of homelessness. The funding will be available to begin upon the execution of the Standard Agreement.
As such the City is recommending a commitment in an amount not to exceed $3,473,712 in loans at 3% interest to start accruing upon the issuance of the Certificate of Occupancy and to be paid back to the City in the form of residual receipts for thirty years. All funding saved in relocation, unspent contingencies, and any interest accrued during the project duration will be utilized in the project capital costs that is intended to result in savings to the City investments.
FISCAL IMPACT:
The total estimated cost of the project is in the amount not to exceed $23,485,924 which includes all associated expenses including acquisition, relocation, rehabilitation, and operation expenses.
The table below includes the expenditure details:
Funding Sources Amount
Homekey 3 Funding $16,059,562
City’s HOME Investment Partnership Program $ 673,712
City’s HOME – American Rescue Plan $ 2,800,000
Stanislaus Community System of Care $ 1,775,077
Health Plan of San Joaquin $ 2,150,000
Developer Commitments $ 27,572
TOTAL $23,485,924
Additionally, the City will include an allocation of $200,000 in activity delivery expenses from HOME and HOME-ARP. There will be no impact to the General Fund.
COMMITTEE RECOMMENDATION:
This item was presented to the Citizen Housing and Community Development Committee on November 9, 2023, and recommended forwarding to Council for acceptance.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution accepting the Homekey 3 award in the amount of $16,059,562 and approving the Homekey Regulatory Agreement authorizing the City Manager or his designee to negotiate and execute an Agreement with Modesto Homekey LP and the State of California for the development at 710 N. 9th Street.
Resolution approving a HOME American Rescue Plan Act loan to Modesto Homekey LP in an amount not to exceed $2,800,000, $98,308 in staff activity delivery, and authorizing the City Manager or his designee to negotiate and execute an Agreement with Modesto Homekey LP for the development at 710 N. 9th Street.
Resolution approving a HOME Investment Partnership Program loan to Modesto Homekey LP in an amount not to exceed $673,712, $102,000 in staff activity delivery, and authorizing the #21..
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City Council, January 23, 2024
Approval of funding agreements for 710 N. 9th Street, Traveler’s Motel
City Manager or his designee to negotiate and execute an Agreement with Modesto Homekey LP for the development at 710 N. 9th Street.
Resolution approving an Agreement with Stanislaus County Community Services Agency (CSA) for the acceptance of Homeless Housing Assistance and Prevention Program (HHAP) funding in the amount of $1,775,077 and to issue a grant in an amount not to exceed $1,755,077 to Modesto Homekey LP and authorizing the City Manager or his designee to negotiate and execute an Agreement with Modesto Homekey LP for the development at 710 N. 9th Street.
Resolution rescinding Resolution 2023-213 and amending the fiscal year 2023-2024 multi-year fund budget for the Traveler’s project fund (101542) to be funded with Homekey 3.0 program funds, HOME American Rescue Plan Funds (HOME ARP) funds, HOME Investment Partnerships funds (HOME), and Homeless Housing Assistance and Prevention Program (HHAP) funds for the development of the 710 N. 9th Street affordable housing project totaling $21,308,351 and $200,000 for activity delivery costs and budgeting the necessary revenue, expense transfers and authorizing the City Manager or his designee to take the necessary steps to implement the provisions in this Resolution.
Approved by:
Jessica Hill, Director of Community and Economic Development Joseph P. Lopez, City Manager
Attachments:
1. Resolution – Homekey
2. Resolution – HOME-ARP
3. Resolution – HOME
4. Resolution – CSA Agreement
5. Resolution – Budget
6. Traveler's Motel HOME ARP Loan Agreement
7. Traveler's Motel HOME ARP Deed of Trust
8. Traveler's Motel HOME ARP Promissory Note
9. Traveler's Motel HOME ARP Regulatory Agreement
10. Traveler's Motel HOME Loan Agreement
11. Traveler's Motel HOME Deed of Trust
12. Traveler's Motel HOME Promissory Note
13. Traveler's Motel HOME Regulatory Agreement
14. Traveler's Motel Homekey Regulatory Agreement
15. MOU with Stanislaus County Community Services Agency (CSA)
16. Travelers Motel HHAP Grant Agreement
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01/23/2024/CED/EGarcia/Item X 1 2024-xx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION ACCEPTING THE HOMEKEY 3 AWARD IN THE AMOUNT OF $16,059,562 AND APPROVING THE HOMEKEY REGULATORY AGREEMENT
AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO NEGOTIATE
AND EXECUTE AN AGREEMENT AND DOCUMENTS WITH MODESTO
HOMEKEY LP AND THE STATE OF CALIFORNIA FOR THE DEVELOPMENT AT 710 N. 9TH STREET
WHEREAS, on September 26, 2023, the City was notified of the Homekey Round 3 award to the City and Modesto Homekey, LP Development in the amount of $16,059,562, and
WHEREAS, the mission of the Homekey funding is to prevent homelessness by rapidly housing individuals through the provision of coordinated, compassionate, and high-quality services, and
WHEREAS, the City receives approximately $1 million in HOME funds annually to support a wide range of activities, and
WHEREAS, Homekey 3 funds must be used as described in the application to provide housing for individuals and families experiencing homelessness or who are at risk of homelessness. The funding will be available to begin upon the execution of the Standard Agreement, and
WHEREAS, the condition of the Homekey 3 funding is to secure the property under a Regulatory commitment to operate for fifty-five years.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it accepts the Homekey 3 award in the amount of $16,059,562.
BE IT FURTHER RESOLVED by that Council of the City of Modesto that it approves the Regulatory Agreement with Modesto Homekey LP for the development at #21..
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710 N. 9th Street.
BE IT FURTHER RESOLVED by that Council of the City of Modesto that it authorizes the City Manager or his designee to negotiate and execute all necessary agreements and documents with Modesto Homekey LP and the State of California to carry out the purpose and intent of this resolution.
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01/23/2024/CED/EGarcia/Item X 3 2024-xx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 23rd day of January 2024, by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ________________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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01/23/2024/CED/EGarcia/Item X 1 2024-xx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING A HOME AMERICAN RESCUE PLAN ACT LOAN TO MODESTO HOMEKEY LP IN AN AMOUNT NOT TO EXCEED $2,800,000, $98,308 IN STAFF ACTIVITY DELIVERY, AND AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE TO NEGOTIATE AND EXECUTE AN
AGREEMENT WITH MODESTO HOMEKEY LP FOR THE DEVELOPMENT
AT 710 N. 9TH STREET
WHEREAS, as an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development (HUD) that requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP), and
WHEREAS, on March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARP) into law, which provided over $1.9 trillion in relief to address the continued impact of the COVID-19 pandemic on the economy, public health, State and local governments, individuals, and businesses, and WHEREAS, to address the need for homelessness assistance and supportive services, Congress appropriated $5 billion in ARP funds to be administered through HOME Investment Partnership Program to perform four activities that must primarily benefit qualifying individuals and families who are homeless, at risk of homelessness, or in other vulnerable populations, and
WHEREAS, on April 8, 2021, HUD issued the direct allocation of $3,409,774 with an expenditure deadline of September 30, 2030, and WHEREAS, on December 14, 2022, the City of Modesto released an Affordable #21..
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Housing Request for Proposal (RFP) on to solicit projects for the various funding sources that the City received that could be used for the development of affordable housing, and WHEREAS, through this RFP process the City received a proposal for RHCB Development LP (RHCB), operating as Modesto Homekey LP for this project for the rehabilitation of Traveler’s Motel located at 710 N. 9th Street to serve as a 56-unit permanent supportive housing project that devotes 38 units to serve youth experiencing homelessness and the remaining 17 units will serve the general population that is experiencing homelessness, and one manager’s unit, and
WHEREAS, the HOME-American Rescue Plan Act loan will be for a term of 30 years and accrue interest at a rate of 3% per year any remaining balance is due in full at the end of the term with interest to start accruing upon the issuance of the Certificate of Occupancy and to be paid back to the City in the form of residual receipts annually these payments will be based on an independent auditor’s report and applied first to interest and then to principal beginning April 1st after the issuance of the Certificate of Completion.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it approves a HOME-American Rescue Plan Act loan to Modesto Homekey LP in an amount not to exceed $2,800,000, $98,308 in staff activity delivery for the development at 710 N. 9th Street.
BE IT FURTHER RESOLVED by that Council of the City of Modesto that it authorizes the City Manager or his designee to negotiate and execute an agreement with Modesto Homekey LP to carry out the purpose and intent of this resolution. #21..
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01/23/2024/CED/EGarcia/Item X 3 2024-xx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 23rd day of January 2024, by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
______________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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01/23/2024/CED/EGarcia/Item X 1 2024-xx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING A HOME INVESTMENT PARTNERSHIP
PROGRAM LOAN TO MODESTO HOMEKEY LP IN AN AMOUNT NOT TO
EXCEED $673,712, $102,000 IN STAFF ACTIVITY DELIVERY, AND
AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO NEGOTIATE
AND EXECUTE AN AGREEMENT WITH MODESTO HOMEKEY LP FOR THE DEVELOPMENT AT 710 N. 9TH STREET
WHEREAS, as an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development (HUD) that requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP), and
WHEREAS, the objective of the HOME program is to support a wide range of activities including building, buying, and/or rehabilitating affordable housing for rent or homeownership or providing direct rental assistance to low-income people, and WHEREAS, the City receives approximately $1 million in HOME funds annually to support a wide range of activities, and
WHEREAS, on December 14, 2022, the City of Modesto released an Affordable Housing Request for Proposal (RFP) on to solicit projects for the various funding sources that the City received that could be used for the development of affordable housing, and WHEREAS, through this RFP process the City received a proposal for RHCB Development LP (RHCB), operating as Modesto Homekey LP for this project for the rehabilitation of Traveler’s Motel located at 710 N. 9th Street to serve as a 56-unit permanent supportive housing project that devotes 38 units to serve youth experiencing #21..
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homelessness and the remaining 17 units will serve the general population that is experiencing homelessness, and one manager’s unit, and
WHEREAS, the HOME loan will be for a term of 30 years and accrue interest at a rate of 3% per year any remaining balance is due in full at the end of the term with interest to start accruing upon the issuance of the Certificate of Occupancy and to be paid back to the City in the form of residual receipts annually these payments will be based on an independent auditor’s report and applied first to interest and then to principal beginning April 1st after the issuance of the Certificate of Completion.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it approves a HOME Investment Partnership loan to Modesto Homekey LP in an amount not to exceed $673,712, $102,000 in staff activity delivery for the development at 710 N. 9th Street.
BE IT FURTHER RESOLVED by that Council of the City of Modesto that it authorizes the City Manager or his designee to negotiate and execute an agreement with Modesto Homekey LP to carry out the purpose and intent of this resolution. #21..
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01/23/2024/CED/EGarcia/Item X 3 2024-xx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 23rd day of January 2024, by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
______________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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01/23/2024/CED/EGarcia/Item X 1 2024-xx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING AN AGREEMENT WITH STANISLAUS COUNTY
COMMUNITY SERVICES AGENCY (CSA) FOR THE ACCEPTANCE OF
HOMELESS HOUSING ASSISTANCE AND PREVENTION PROGRAM (HHAP) FUNDING IN THE AMOUNT OF $1,775,077 AND TO ISSUE A GRANT IN AN AMOUNT NOT TO EXCEED $1,755,077 TO MODESTO HOMEKEY LP AND
AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO NEGOTIATE
AND EXECUTE AN AGREEMENT WITH MODESTO HOMEKEY LP FOR THE DEVELOPMENT AT 710 N. 9TH STREET
WHEREAS, as an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development (HUD) that requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP), and
WHEREAS, on December 14, 2022, the City of Modesto released an Affordable Housing Request for Proposal (RFP) on to solicit projects for the various funding sources that the City received that could be used for the development of affordable housing, and WHEREAS, through this RFP process the City received a proposal for RHCB Development LP (RHCB), operating as Modesto Homekey LP for this project for the rehabilitation of Traveler’s Motel located at 710 N. 9th Street to serve as a 56-unit permanent supportive housing project that devotes 38 units to serve youth experiencing homelessness and the remaining 17 units will serve the general population that is experiencing homelessness, and one manager’s unit, and
WHEREAS, on May 2, 2023, by Resolution 2023-212 and 2023-210 the City contingently committed the allocation of $2,274,923 and the commitment of $1,775,077; #21..
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from the Community System of Care (CSOC), both allocations intended to fill the gap needed to support the development of the project, and
WHEREAS, Homekey 3 funds must be used as described in the application to provide housing for individuals and families experiencing homelessness or who are at risk of homelessness with funding being available to begin upon the execution of the Standard Agreement, and
WHEREAS, on December 5, 2023 Stanislaus County committed Stanislaus Community System of Care’s (SCOC) Homeless Housing Assistance and Prevention Program (HHAP), for the award amount of $1,775,077 in the form of a grant to be managed by the City for this project.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it approves an agreement with Stanislaus County Community Services Agency (CSA) for the acceptance of Homeless Housing Assistance and Prevention Program (HHAP) funding in the amount of $1,775,077.
BE IT FURTHER RESOLVED that it approves the issuance of a grant in the amount not to exceed $1,775,077 to Modesto Homekey LP for the Development at 710 N. 9th Street.
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BE IT FURTHER RESOLVED that it authorizes the City Manager or his designee to negotiate and execute an agreement with Modesto Homekey LP to carry out the purpose and intent of this resolution.
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01/23/2024/CED/EGarcia/Item X 4 2024-xx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 23rd day of January 2024, by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
___________________________
DIANE NAYARES-PEREZ,
CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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01/23/2024/CED/EGarcia/Item X 1 2024-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION RESCINDING RESOULTION 2023-213 AND AMENDING THE FISCAL YEAR 2023-2024 MULTI-YEAR FUND BUDGET FOR THE
TRAVELER’S PROJECT FUND (101542) TO BE FUNDED WITH HOMEKEY
3.0 PROGRAM FUNDS, HOME INVESTMENT PARTNERSHIP FUNDS
(HOME), HOME AMERICAN RESCUE PLAN ACT FUNDS (HOME-ARP), AND
HOMELESS HOUSING ASSISTANCE AND PREVENTION PROGRAM (HHAP) FUNDS FOR THE DEVELOPMENT OF THE 710 N 9TH STREET AFFORDABLE HOUSING PROJECT TOTALING $21,308,351 AND $200,000 FOR ACTIVITY
DELIVERY COSTS AND BUDGETING THE NECESSARY REVENUE,
EXPENSE TRANSFERS AND AUTHORIZING THE CITY MANAGER OR HIS
DESIGNEE TO TAKE THE NECESSARY STEPS TO IMPLEMENT THE
PROVISIONS IN THIS RESOLUTION
WHEREAS, the City of Modesto has been selected to receive funding from the State of California Housing and Community Development Department (HCD) in partnership with RHCB Development LP (RHCB) operating as Modesto Homekey LP for the Traveler’s Motel project located at 710 N. 9th Street for the Homekey 3.0 Program, and
WHEREAS, the fiscal year 2023-2024 multi-year budget currently has pre-award costs budgeted with Community Development Block Grant (CDBG) Funding approved by Resolution 2023-213 in project 101542, and
WHEREAS, the City originally proposed using CDBG funding as a loan to RHCB Development LP (RHCB) to assist with property rehabilitation expense, it has been determined that the project funding source should change from CDBG funding to HOME American Rescue Plan (HOME ARP) loan and HOME Investment Partnerships (HOME) loan, and
WHEREAS, the project funding will include the Homekey 3.0 Program funds totaling $16,059,562, and $2,800,000 in HOME ARP funds, and $673,712 in HOME #21..
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funds, and $1,775,077 in HHAP funds for property acquisition, capital improvements, and operating subsidies and $198,308 in HOME ARP and HOME funds for administration.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby amends the fiscal year 2023-2024 multi-year fund budget to rescind Resolution 2023-213 and amend project 101542 to be funded with Homekey 3.0 Program funds, HOME American Rescue Plan Funds (HOME ARP) HOME Investment Partnership funds (HOME) and Homeless Housing Assistance and Prevention Program (HHAP) funds for the development of the 710 N. 9th Street affordable housing project totaling $21,308,351 and $200,000 for activity delivery costs and budgeting the necessary revenue, expense transfers.
BE IT FURTHER RESOLVED by that Council of the City of Modesto that it authorizes the City Manager or his designee to take the necessary steps to implement the provisions of this resolution.
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01/23/2024/CED/EGarcia/Item X 3 2024-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 23rd day of January 2024, by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following votes:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ________________________________
DIANE NAYARES-PEREZ,
CMC,City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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5569905.1
HOME ARP LOAN AGREEMENT
BY AND BETWEEN
THE CITY OF MODESTO,
a California Charter City
AND
MODESTO HOMEKEY LP
A California Limited Partnership
(Traveler’s Motel – 701 North 9th Street)
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5569905.1 1
HOME ARP LOAN AGREEMENT BETWEEN THE CITY OF MODESTO AND
MODESTO HOMEKEY LP
(Traveler’s Motel – 701 North 9th Street)
This HOME ARP Loan Agreement (the "Agreement"), effective _______________________, 2024 (the "Effective Date"), is entered into by and between the City of Modesto, a California charter city (the "City"), and Modesto Homekey LP, a California limited partnership (the "Developer"). City and Developer may each be referred to herein as a “Party” or collectively as the “Parties”.
RECITALS
A. These Recitals refer to and utilize certain capitalized terms which are defined in Article 1 of this Agreement. The Parties intend to refer to those definitions in connection with the use of capitalized terms in these Recitals.
B. The City has received HOME Investment Partnership Act funds from the United States Department of Housing and Urban Development ("HUD") pursuant to the CranstonGonzales National Housing Act of 1990 and Section 3205 of the American Rescue Plan Act of 2021 (P.L. 117-2) ("HOME Funds"). The HOME funds must be used by the City in accordance with 24. C.F.R. Part 92 and HUD Notice: CPD-21-10 (collectively, the “HOME Regulations”).
C. Developer owns, or has the legal right to purchase, certain real property located at 710 North 9th Street, Modesto, California, also known as Stanislaus County Assessor’s Parcel Number _________________, as more particularly described in the attached Exhibit A and incorporated herein by this reference (the “Property”).
D. The Developer intends to rehabilitate a former motel located on the Property, commonly known as Travelers Motel, to serve as permanent supportive housing development consisting of fifty-six (56) units (the “Development”). Eight (8) units will be individuals who are Homeless or At Risk of Homelessness. All units in the Development will be studio apartment units, with sanitary and kitchen facilities.
E. The Developer desires to borrow from the City and the City desires to provide Developer with a loan of HOME Funds in the amount not to exceed Two Million Eight Hundred Thousand Dollars ($2,800,000) (the “HOME Loan”). The HOME Loan funds are to be used to fund construction costs of the Development.
F. The HOME Loan is being made to increase the supply of affordable rental housing in the City of Modesto for individuals who are homeless or at risk of homelessness. Due to the assistance provided Developer pursuant to this Agreement, the City has classified eight (8) units in the Development as HOME-assisted units (each such unit a "HOME Unit"), which eight (8) Home Units are "floating" Units as defined in 24 C.F.R. 92.252(j). The HOME Units are required to be intermingled throughout the Development and of comparable quality to all other Units and must meet the Uniform Federal Accessibility Standards and Section 3.8(g) below. All of the HOME Units shall be occupied by individuals who are either (i) Homeless, or (ii) At Risk of Homelessness, as those terms are defined herein.
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5569905.1 2
G. As a condition to providing the HOME Loan to the Developer, the City is imposing occupancy and affordability restrictions on the Development, ensuring that specified units therein remain affordable to specified income eligible households for a specified period as set forth in the Regulatory Agreement and Declaration of Restrictive Covenants dated as of ________ (the “HOME Regulatory Agreement”)
H. Concurrently herewith, Developer shall execute: i) a Secured Promissory Note evidencing Developer’s obligation to repay the HOME Loan (the “Note”), and ii) a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing which shall secured performance of the Note (the “HOME Deed of Trust”). This Agreement, the Note, Home Regulatory Agreement and Home Deed of Trust are collectively referred to herein as the “HOME Loan Documents.”
I. In accordance with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) ("NEPA"), the City has completed and approved all applicable environmental review for the activities proposed to be undertaken under this Agreement.
J. In accordance with the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) ("CEQA"), the City has completed and approved all applicable environmental review for the activities proposed to be undertaken under this Agreement.
NOW, THEREFORE, in consideration of the recitals hereof and the mutual promises and covenants set forth in this Agreement, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
The following capitalized terms have the meanings set forth in this Section 1.1 wherever used in this Agreement, unless otherwise provided:
(a) "Annual Operating Expenses" with respect to a particular calendar year means the following costs reasonably and actually incurred for operation and maintenance of the Development to the extent that they are consistent with an annual independent audit performed by a certified public accountant using generally accepted accounting principles:
(1) Property taxes and assessments imposed on the Development; (2) Debt service currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the Development) on loans associated with the development of the Development and approved by the City in the Final Financing Plan; (3) Property management fees and reimbursements, not to exceed fees and reimbursements which are standard in the industry, and pursuant to a management contract approved by the City;
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5569905.1 3
(4) Premiums for property damage and liability insurance; utility services not paid for directly by tenants, including water, sewer, and trash collection; maintenance and repair;
(5) Any annual license or certificate of occupancy fees required for operation of the Development;
(6) Security services;
(7) Advertising and marketing costs;
(8) Cash deposited into reserves for capital replacements of the Development in an amount to be approved by the City as part of the Final Financing Plan or such greater amount as may be required by a lender or the tax credit investor; (9) Cash deposited into an operating reserve in an amount approved by the City as part of the Final Financing Plan or annual operating budgets or such greater amount as may be required by a lender or the tax credit investor,; (10) Utility services, maintenance and repair, including pest control, landscaping, grounds maintenance, painting and decorating, cleaning, common systems repair, janitorial supplies and services, advertising and marketing; (11) Deferred developer fee; provided however the development fee shall the exceed the amount approved by the City as part of the Final Financing Plan; (12) Extraordinary operating costs specifically approved by the City; (13) Payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves; (14) Reasonable accounting and legal fees;
(15) Social services fees and expenses in the amount in approved Financing Plan
(16) Asset management fee, a limited partner partnership management fee for the first fifteen (15) years of the Term, in the annual amount approved Financing Plan which amount may increase annually by up to three percent (3%), and a general partner partnership management fee in the annual amount approved in Financing Plan which amount may increase annually by up to three percent (3%);
(17) Other ordinary and reasonable operating expenses approved in writing by the City and not listed above; and
(18) Annual Operating Expenses shall exclude the following:
depreciation, amortization, depletion or other non-cash expenses, or any amount expended from a reserve account.
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5569905.1 4
(b) "Approved Financing" means the loans or grants and equity acquired, or to be acquired, by the Developer and approved by the City in its reasonable discretion for the purpose of financing the Development, in addition to the HOME Loan, City of Modesto Land Loan and City of Modesto Community Facilities Fee Deferral and any other loans identified in the Final Financing Plan.
(c) “At Risk of Homelessness” shall have the same meaning as in 24 CFR
91.5, as amended from time to time.
(d) "City's Share of Residual Receipts" means the City's Pro Rata Share (as defined below) of fifty percent (50%) of Residual Receipts (the 50% being the "Lenders' Share of Residual Receipts") which shall be determined at the close of permanent financing, or any time any determination thereof is needed to be made. The Pro Rata Share shall be determined by calculating the percentage resulting from dividing the amount of the HOME Loan funds disbursed to the Developer in accordance with this Agreement by the aggregate sum of the funds disbursed to the Developer under the HOME Loan and the Approved Financing subordinate loans, in accordance with the applicable agreements. The Developer shall be entitled to the other 50% share of the Residual Receipts ("Developer's Share of Residual Receipts"). (e) "Close of Escrow" shall refer to the date of recordation of the HOME Deed of Trust against the Property pursuant to the terms of this Agreement and the date of recordation of the HOME Regulatory Agreement against the Property pursuant to the terms of this Agreement.
(f) "Construction Bonds" means copies of labor and material bonds and performance bonds for the Construction Work in an amount equal to one hundred percent (100%) of the scheduled cost of the Construction Work.
(g) "Completion Date" means the date that all of the following have occurred:
(i) a final certificate of occupancy is issued by the City to certify completion of the construction of the Development; (ii) the final disbursement of HOME funds for the Development has been made; (iii) the City has verified the Development complies with the property standards set forth in 24 CFR 92.251; and (iv) all project completion information has been entered by the City into the Integrated Disbursement and Information System (IDIS). (h) "Construction Work" means the physical Construction Work to construct the Development in accordance with the Approved Plans and Specifications and the Governmental Approvals.
(i) "Escrow" means the escrow account established by the Developer for the closing of Development financing with _______________, located at ______________ (Escrow #: ____________), or another escrow company satisfactory to the City. (j) "Final Financing Plan" means the Developer's final plan for financing the construction of the Development and the operation of the Development. The Final Financing Plan approved by the City as of the date of this Agreement is attached to this Agreement as #21..
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5569905.1 5
Exhibit B, incorporated herein by reference, and may be revised from time to time with the approval of the City pursuant to Section 3.2 below.
(k) "Governmental Approvals" means the City and other governmental permits and approvals necessary for the construction and operation of the Development, including but not limited to submissions of a precise plan, detailed exterior plans, overall design and architectural review and any required operating licenses, but excluding a building permit. (l) "Gross Revenue" with respect to a particular calendar year, means all revenue, income, receipts, and other consideration actually received from operation and leasing of the Development, including, but not be limited to:
(1) All rents, fees and charges paid by tenants, payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements resulting in actual income;
(2) The proceeds of business interruption or similar insurance; (3) The fair market value of any goods or services provided in consideration for the leasing or other use of any portion of the Development; (4) Subject to the rights of Senior Lenders, the proceeds of casualty insurance to the extent not utilized to repair or rebuild the Development (or applied toward the cost of recovering such proceeds);
(5) Subject to the rights of Senior Lenders, condemnation awards for a taking of part or all of the Development or Property for a temporary period; and (6) Gross Revenue shall exclude tenants' security deposits, loan proceeds, capital contributions or other similar advances. (m) "Hazardous Materials" means any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," or "toxic substances" under any applicable federal or state laws or regulations.
(n) "Hazardous Materials Claim" means: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer or the Development pursuant to Hazardous Materials Laws; (2) all claims made or threatened by any third party against the Developer or the Development relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials.
(o) "Hazardous Materials Law" means any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials. #21..
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(p) “Homeless” shall have the same meaning as defined in 24 CFR 91.5, as amended from time to time.
(q) "HOME Term" or “Term” means the period beginning on the date of this Agreement and ending on the fifteenth (15th) anniversary of the Completion Date, but in no case later than December 31, 2041.
(r) "HOME Units" means the eight (8) Units whose occupancy and rental charges are restricted pursuant to the HOME Regulatory Agreement.. (s) "Management Plan" has the meaning set forth in Section 3.7 below. (t) "Marketing Plan" has the meaning set forth in Section 4.11 below. (u) "Notice of Completion" means the Notice of Completion executed by Developer in the form specified in California Civil Code Section 9204. (v) "Residual Receipts" means, in a particular calendar year, the amount by which Gross Revenue (as defined in Section 1.1(bb) exceeds Annual Operating Expenses (as defined in Section 1.1(b)) for that calendar year.
(w) "Section 3" means Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. Section 1701(u).
(x) "Transfer" means any sale, assignment, or transfer, whether voluntary or involuntary, of: (1) any rights and/or duties under this Agreement, and/or (2) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Development is transferred and the Developer retains title.
(y) "Unit" means the fifty-six (56) units to be constructed as part of the Development.
Section 1.2 Exhibits.
The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A: Legal Description
Exhibit B: Financing Plan
Exhibit C: Federal Award Identification Information
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ARTICLE 2
LOAN PROVISIONS
Section 2.1 Loan.
(a) Subject to satisfaction of the conditions set forth in this Article 2, as applicable, the City shall lend to the Developer HOME Funds in the amount not to exceed Two Million Eight Hundred Thousand Dollars ($2,800,000) (the “HOME Loan”) for the purposes set forth in Section 2.3 of this Agreement. The obligation to repay the HOME Loan shall be evidenced by the Note, in the form to be provided by the City. (b) Federal award identification information regarding the funding provided to Developer by this Agreement, as required by 24 CFR 200.331, is included in Exhibit C, attached hereto and incorporated herein.
Section 2.2 Interest.
(a) Subject to the provisions of subsection (b) below, the outstanding principal balance of the HOME Loan shall bear simple interest at a rate of three percent (3%) per year.
(b) In the event of a Default, interest on the HOME Loan shall begin to accrue, as of the date of Default, and continuing until such time as HOME Loan funds are repaid in full or the Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.
Section 2.3 Use of HOME Loan Funds.
(a) Construction. The Developer shall use the HOME Loan to partially fund the construction of the Development consistent with the Final Financing Plan, and to the extent feasible, to fund the Developer Fee in accordance with the terms of this Agreement. (b) Reimbursements. No portion of the Loan shall be used to fund costs incurred more than twenty-four (24) months prior to the Effective Date or for any costs not allowed under 24 C.F.R. 92.206
(c) No Other Uses. The Developer shall not use any proceeds of the HOME Loan for any other purpose without the prior written consent of the City.
Section 2.4 Security.
The Developer shall secure its obligations to repay the HOME Loan, as evidenced by the Note, by executing the HOME Deed of Trust and recording the HOME Deed of Trust against the Property at the Close of Escrow.
Section 2.5 Subordination.
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Any agreement by the City to subordinate the HOME Loan Documents to an encumbrance securing and/or evidencing Approved Financing (each such approved Final Financing Plan, a "Senior Lien"), will be subject to the satisfaction of each of the following conditions, as reasonably determined by the City:
(a) All of the proceeds of the proposed Senior Lien, less any transaction costs, must be used to provide construction and/or permanent financing for the Development. (b) The proposed lender (each, a "Senior Lender") must be a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with the Developer or any of the Developer's affiliates, other than as a depositor or a lender. (c) The Developer must demonstrate to the City's reasonable satisfaction that subordination of the HOME Deed of Trust is necessary to secure adequate construction and/or permanent financing to ensure the viability of the Development, including the operation of the Development as affordable housing, as required by the HOME Loan Documents. To satisfy this requirement, the Developer must provide to the City, in addition to any other information reasonably required by the City, evidence demonstrating that the proposed amount of the Senior Lien is necessary to provide adequate construction and/or permanent financing to ensure the viability of the Development, and adequate financing for the Development would not be available without the proposed subordination.
(d) The subordination agreements must provide the City with adequate rights to cure any defaults by the Developer, including: (1) providing the City or its successor with copies of any notices of default at substantially the same time and in the same manner as provided to the Developer; and (2) providing the City with a cure period of at least sixty (60) days to cure any default.
(e) The subordination(s) described in this Section may be effective only during the original term of the Senior Lien and any extension of its term that is approved in writing by the City, which approval shall not unreasonably be withheld. (f) No subordination may limit the effect of the HOME Deed of Trust before a foreclosure, nor require consent of the holder of the Senior Lien to exercise any remedies by the City under the HOME Loan Documents.
(g) Upon a determination by the City Manager that the conditions in this Section have been satisfied, the City Manager will be authorized to execute the approved subordination agreement without the necessity of any further action or approval. (h) In the event there is a foreclosure of the Property, the HOME Regulatory Agreement shall be revived according to its original terms if, during the original HOME Regulatory Agreement term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former owner or those with whom the former owner has or had family or business ties, obtains an ownership interest in the Development or the Property.
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Section 2.6 Conditions Precedent to Disbursement of the HOME Loan. (a) The HOME Loan shall be disbursed in accordance with the following provisions. The City shall not be obligated to make any disbursements of the HOME Loan unless the following conditions precedent are satisfied:
(1) There exists no Default by Developer nor any act, failure, omission or condition that would constitute an event of Default by Developer under this Agreement or any other project financing agreements or contracts;
(2) The Developer has delivered to the City a copy of an authorizing resolution authorizing execution of the HOME Loan Documents and the transactions contemplated by this Agreement;
(3) The Developer has executed and delivered to the City the Note evidencing the Developer's obligations under this Agreement, the HOME Deed of Trust, and the HOME Regulatory Agreement;
(4) The HOME Regulatory Agreement and the HOME Deed of Trust, have been, or concurrently with the Close of Escrow will be, recorded against the Property in a lien position approved by the City, and subject only to those liens approved by the City; (5) The City has received and approved the Plans and Specifications; (6) The Developer has received all Governmental Approvals and all building permits necessary to perform the Construction Work pursuant to the terms of this Agreement;
(7) The undisbursed proceeds of the HOME Loan, together with other funds that the Developer has obtained in connection with the Development, are not less than the amount provided in the Final Financing Plan;
(8) The City has received and approved a construction contract that the Developer has entered or proposed to enter for construction of the Development as required under the terms of this Agreement;
(9) A title insurer reasonably acceptable to the City is unconditionally and irrevocably committed to issuing an LP-10 2006 ALTA Lender's Policy of insurance insuring the priority of the HOME Regulatory Agreement and HOME Deed of Trust in the amount of the HOME Loan subject only to such exceptions and exclusions as may be reasonably acceptable to the City, and containing such endorsements as the City may reasonably require; (10) All applicable federal (including all applicable requirements under the National Environmental Protection Act) and state environmental review has been completed for the Development;
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(11) The Developer has furnished the City with evidence of insurance coverage meeting the requirements of this Agreement; The City has received copies of labor and material payment and performance bonds as required pursuant to the terms of this Agreement; (12) The City has received and approved the Management Plan required pursuant to the terms of this Agreement;
(13) The Developer has obtained all permits and approvals necessary for the construction of the Development, as required under Section 3.5, and the City has received copies of the building permits required to construct the Development. (14) The City has completed as approved all environmental reviews under NEPA, and the Developer has provided the City evidence of compliance with all approved NEPA requirements and mitigation measures;
(15) The City has received reasonable evidence that the local match requirements set forth in 24. C.F.R. Section 92.218 et seq., have been satisfied pursuant to Section 5.1 of this Agreement; and
(16) The City has received a written draw request from the Developer, including certification that the condition set forth in subsection (a)(1) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Final Financing Plan previously approved by the City, the amount of funds needed, and, a copy of the bill or invoice covering a cost incurred. When a disbursement is requested to pay any contractor in connection with improvements on the Property, the written request must be accompanied by: (i) certification by the Developer's architect reasonably acceptable to the City that the work for which disbursement is requested has been completed (although the City reserves the right to inspect the Property and make an independent evaluation); and (ii) conditional lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City. (b) Upon satisfaction of the conditions in Section 2.6(a) above, the City shall disburse the HOME Loan (or so much thereof as is required) for approved cost items as further described in the Final Financing Plan, on a monthly basis. (c) Notwithstanding any other provisions of this Agreement, the City shall have no obligation to disburse any portion of the HOME Loan to the Developer following notification by the City to the Developer of a Default by Developer under the terms of this Agreement.
Section 2.7 Repayment of the HOME Loan.
(a) Annual Payments. Commencing on the later of: (i) April 1 following the Completion Date, or (ii) April 1, 2026, and on April 1 of each year thereafter, through the end of the HOME Term, the Developer shall make repayments of the HOME Loan in the amount of the City's Share of Residual Receipts. Payment of the City's Share of Residual Receipts shall be credited first against accrued interest and then against outstanding principal, and shall be accompanied by the Developer's report of Residual Receipts (including an independent auditor's report regarding the auditor's review of Annual Operating Expenses). The Developer shall #21..
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provide the City with any documentation reasonably requested by the City to substantiate the Developer's determination of Residual Receipts.
(b) Due in Full. All principal and accrued interest on the HOME Loan shall be due in full on the earliest to occur of the following: (1) the date of any Transfer not authorized by the City; (2) the date of any Default (subject to applicable notice and cure periods set forth in Section 7.1); or (3) the expiration of the HOME Term.
(c) Right to Prepay. The Developer shall have the right to prepay the HOME Loan at any time without premium or penalty. However, this Agreement and the HOME Regulatory Agreement shall remain in effect for the entire Term regardless of any prepayment. (d) Special Repayment For Un-leased Units. As required under 24 C.F.R.
92.252, if Developer fails to lease any one of the HOME Units within eighteen (18) months of the Completion of Construction of the Development subject to any force majeure extensions resulting from the application of Section 8.15(a) of this Agreement, the Developer shall pay to the City a proportionate share of the indebtedness of Developer to the City under this Agreement and the Note attributable to each of the HOME Units that has remained un-leased, together with any accrued interest thereon calculated pursuant to Section 2.2, which amount shall be immediately due and payable. Notwithstanding anything to the contrary, the requirements here under shall not apply if: (1) there exists an exigent health and safety system deficiency that threatens the life, health or safety of residents; (2) the exigent health and safety system deficiency was not caused by the Developer; (3) the exigent health and safety system deficiency prevents the Developer from being able to rent the HOME Unit; and (4) the Developer shows good faith efforts to correct or abate the exigent health and safety system deficiency.
Section 2.8 Reports and Accounting of Residual Receipts. (a) Audited Financial Statement. In connection with the annual payments required pursuant to Section 2.8, within one hundred eighty (180) days of the end of the Developer's fiscal year, the Developer shall furnish to the City an audited statement duly certified by an independent firm of certified public accountants approved by the City, setting forth in reasonable detail the computation and amount of Residual Receipts during the preceding calendar year.
(b) Books and Records. The Developer shall keep and maintain on the Property, or at its principal place of business, or elsewhere with the City's written consent, full, complete and appropriate books, records and accounts relating to the Development, including all such books, records and accounts necessary or prudent to evidence and substantiate in full detail the Developer's calculation of Residual Receipts. Books, records and accounts relating to the Developer's compliance with the terms, provisions, covenants and conditions of this Agreement shall be kept and maintained in accordance with generally accepted accounting principles consistently applied, and shall be consistent with requirements of this Agreement which provide for the calculation of Residual Receipts on a cash basis. All such books, records, and accounts shall be open to and available for inspection by the City, its auditors or other City authorized representatives or HUD at reasonable intervals during normal business hours. Copies of all tax returns and other reports that the Developer may be required to furnish any governmental agency #21..
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shall at all reasonable times, and upon twenty-four (24) hours' notice, be open for inspection by the City at the place that the books, records and accounts of the Developer are kept. The Developer shall preserve records on which any statement of Residual Receipts is based for a period of not less than five (5) years after such statement is rendered, and for any period during which there is an audit undertaken pursuant to subsection (c) below then pending. (c) Audits. The receipt by the City of any statement pursuant to this section or any payment by the Developer or acceptance by the City of any loan repayment for any period shall not bind the City as to the correctness of such statement or such payment. Within three (3) years after the receipt of any such statement, the City or any designated agent or employee of the City at any time shall be entitled to audit the Residual Receipts and all books, records, and accounts pertaining thereto. Such audit shall be conducted during normal business hours at the principal place of business of the Developer and other places where records are kept.
Immediately after the completion of an audit, the City shall deliver a copy of the results of such audit to the Developer. If it shall be determined as a result of such audit that there has been a deficiency in a loan repayment to the City, then such deficiency shall become immediately due and payable with interest at the default rate set forth in this Agreement, as applicable, determined as of and accruing from the date that said payment should have been made. In addition, if the Developer's auditor's statement for any Development fiscal year shall be found to have understated Residual Receipts by more than five percent (5%) and at least Five Thousand Dollars ($5,000), and the City is entitled to any additional HOME Loan repayment as a result of said understatement, then the Developer shall pay, in addition to the interest charges referenced hereinabove, all of the City's reasonable costs and expenses connected with any audit or review of the Developer's accounts and records.
Section 2.9 Nonrecourse.
(a) Except as provided below, upon recordation of the HOME Deed of Trust against the Property, the Developer shall have no direct or indirect personal liability for payment of the principal of, or interest on, the HOME Loan. Following recordation of the HOME Deed of Trust against the Property, the sole recourse of the City with respect to the principal of, and interest on, the Note shall be to the Property described in the HOME Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability shall:
(i) limit or impair the enforcement against all such security for the Note of all the rights and remedies of the City thereunder; (ii) be deemed in any way to impair the right of the City to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; or (iii) be deemed in any way to limit the rights of the City to obtain specific performance by the Developer of its covenants under the HOME Loan Documents, other than the covenants to pay the City principal and interest due under the Note. (b) The foregoing limitation of liability is intended to apply only to the obligation for the repayment of the principal of, and payment of interest on the Note; nothing contained herein is intended to relieve the Developer of its obligation to indemnify the City under this Agreement, or liability for: (i) fraud or willful misrepresentation by the Developer; (ii) the failure to pay taxes, assessments or other charges which may create liens on the Property that are payable or applicable prior to any foreclosure under the HOME Deed of Trust (to the full #21..
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extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by the Developer other than in accordance with the HOME Deed of Trust; and/or (iv) the misappropriation of any proceeds by the Developer under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Development.
ARTICLE 3
PREDEVELOPMENT REQUIREMENTS
Section 3.1 Predevelopment Requirements.
The tasks described below shall be completed by the Developer no later than the dates set forth in this Article 3, subject to force majeure. The dates set forth herein may be modified by Operating Memoranda executed by the Developer and by the City Manager on behalf of the City without formal amendment of this Agreement.
Section 3.2 Final Financing Plan.
(a) As set forth in the attached Exhibit B, Developer has provided City with a preliminary financing plan for the Project (“Final Financing Plan”) which describes (i) the estimated costs of Project Development, including acquisition costs, and hard and soft construction costs, (ii) an operating pro forma which describes projected revenue and expenses for the Project, and (iii) identification of sources of construction and permanent financing. As a condition precedent to the first draw, the Developer shall have submitted and received approval from the City for any updates to the Final Financing Plan as well as:
(1) Copies of all required funding commitments for performing the Construction Work consistent with the Final Financing Plan, including approval of the Bond Loan lender, and a preliminary tax credit reservation and an executed commitment letter from a tax credit equity investor acceptable to the City; and
(2) Any other information that is reasonably necessary to the City in determining that the Developer has the financial capability to pay all costs of completing the Construction Work in accordance with the requirements of this Agreement.
Section 3.3 Relocation Plan.
(a) If and to the extent that construction of the Development results in the permanent or temporary displacement of residential tenants, homeowners, or businesses, then the Developer shall comply with all applicable local, state, and federal statutes and regulations, (including without limitation California Government Code Section 7260 et seq., and accompanying regulations) with respect to relocation planning, advisory assistance, and payment of monetary benefits. The Developer shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with such relocation laws.
Section 3.4 Plans and Specifications.
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(a) No later than six (6) months from the Effective Date of this Agreement, the Developer shall submit to the City the plans and specifications for the construction of the Development, including all construction documentation upon which the Developer and the Developer's contractor shall rely in performing the Construction Work, including, but not necessarily limited to, final architectural drawings, landscaping plans and specifications, final elevations, building plans and specifications (also known as "working drawings") (collectively after approval by the City, the "Approved Plans and Specifications"). (b) The Developer acknowledges that the execution of this Agreement by the City does not constitute approval by the City of the Plans and Specifications and in no way limits the discretion of the City in reviewing and making decisions regarding any discretionary or other permits required for the Development. Once approved by the City, Section 3.5 Applicable Governmental Approvals.
(a) Promptly following the City approval of the Approved Plans and Specifications, the Developer shall apply for the Applicable Governmental Approvals necessary for performance of the Construction Work in accordance with the Approved Plans and Specifications and in the manner contemplated by the HOME Loan Documents. (b) The Developer acknowledges that execution of this Agreement by the City does not constitute approval by the City of any required Applicable Governmental Approvals and in no way limits the discretion of the City in the permit, allocation and approval process.
Section 3.6 Other Financing. All other financing necessary to construct the Development, as required and approved by the City in the Final Financing Plan, shall be closed by the Developer prior to, or simultaneously with the funding of the HOME Loan. The Developer shall also submit to the City evidence reasonably satisfactory to the City that any conditions to the release or expenditure of funds described in the Final Financing Plan as the sources of funds to pay the costs of constructing the Development have been met or will be met subject to the Developer's satisfaction of standard disbursement preconditions required to be satisfied on a periodic basis, for construction of the Development. Submission by the Developer, and approval by the City, of such evidence of funds availability shall be a condition precedent to the City's obligation to disburse the HOME Loan.
Section 3.7 Management Plan.
(a) As a condition precedent to the first draw request under the HOME Loan, the Developer shall submit to the City for review, a proposed management plan (the "Management Plan") for the leasing and operation of the Development. (b) The City shall review the Management Plan and either reasonably approve or disapprove the Management Plan within fifteen (15) days after receipt. Any disapproval shall state in writing the specific reasons for the disapproval and specify in reasonable detail all of the changes the City requests be made in order to obtain approval. The Developer shall thereafter submit the revised Management Plan within fifteen (15) days of notification of disapproval. The #21..
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City shall either approve or disapprove the submitted revised Management Plan within fifteen (15) days of the date such revised Management Plan is received by the City, and shall approve the revised Management Plan if the requested changes have been made.
Section 3.8 Construction Contract.
(a) As a condition precedent to the first draw request under the HOME Loan the Developer shall submit to the City for its approval the proposed construction contract for the Development. All construction work and professional services shall be performed by persons or entities licensed or otherwise authorized to perform the applicable construction work or service in the State of California. Each contract that the Developer enters, with a licensed General Contractor, for construction of the Development shall provide that at least ten percent (10%) of the costs incurred shall be payable only upon completion of construction, subject to early release of retention for specified subcontractors upon approval by the City. The City's approval of the construction contract shall in no way be deemed to constitute approval of or concurrence with any term or condition of the construction contract except as such term or condition may be required by this Agreement.
(b) The Developer shall submit the proposed construction contract with sufficient time for the City to review and approve such contracts. Upon receipt by the City of the proposed construction contract, the City shall promptly review same and approve or disapprove it within ten (10) working days. If the construction contract is not approved by the City, the City shall set forth in writing and notify the Developer of the City's reasons for withholding such approval. The Developer shall thereafter submit a revised construction contract for City approval, which approval shall be granted or denied in ten (10) working days in accordance with the procedures set forth above. Any construction contract executed by the Developer for the Development shall be in the form approved by the City (the “Construction Contract”).
Section 3.9 Building Permit Issued.
Not less than forty-five (45) days prior to the Commencement of Construction and as a condition precedent to the first Construction Component draw request under the HOME Loan, the Developer shall exercise diligent good faith efforts to obtain the building permit for the Construction Work. Upon delivery of evidence of receipt of such permit to the City this condition shall be considered satisfied.
Section 3.10 Insurance.
As a condition precedent to the initial draw request under the HOME Loan, the Developer shall submit to the City "Evidence of Insurance Coverage" meeting the general requirements set forth in Section 5.14 below. The City shall review and reasonably approve or disapprove of the Evidence of Insurance Coverage not less than ten (10) days after submission of complete information in the form required by the City. If the City disapproves the Evidence of Insurance coverage, it shall specify in writing the reasons for such disapproval. The Developer shall resubmit the information required within ten (10) days of the notification of disapproval. The City shall either approve or disapprove the submitted revised evidence of insurance within ten (10) days of #21..
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the date such revised information is received by the City. No work shall be initiated on the Development prior to receipt of City's approval.
Section 3.11 Performance and Payment Bonds.
(a) As a condition precedent to the first Construction Component draw request under the HOME Loan, the Developer shall deliver to the City copies the Construction Bonds, which shall: (i) be in a form reasonably acceptable to the City; (ii) be issued by a surety licensed to do business in California and reasonably acceptable to the City; and (iii) name the City as a co-obligee.
(b) The City shall either reasonably approve or disapprove the submitted proposed Construction Bonds within fifteen (15) days from the date the City receives the Construction Bonds. If the proposed Construction Bonds are not approved by the City, then the City shall notify the Developer in writing of the reasons for disapproval and the required revisions to the previously submitted Construction Bonds. The Developer shall thereafter submit revised proposed Construction Bonds within fifteen (15) days of the notification of disapproval.
The City shall either approve or disapprove the submitted revised Construction Bonds within fifteen (15) days of the date such revised Construction Bonds are received by the City. The City shall approve the initial or revised Construction Bonds if they meet the standards set forth in Subsection (a) above.
(c) Notwithstanding the foregoing, the City shall consider other reasonable forms of security for the completion of the construction of the Project, from either the Developer or the Developer's general contractor, in lieu of such construction bonds described in this Section provided that: (1) all lenders set forth on the Financing Plan have agreed to such other security, and (ii) the City has the same enforcement rights under such security as the lenders set forth on the Financing Plan.
Section 3.12 Evidence of Availability of Funds.
As a condition precedent to the first draw request under the HOME Loan, the Developer shall submit to the City evidence reasonably satisfactory to the City that any conditions to release or expend funds described in the approved Final Financing Plan for the purpose of paying the costs of the Construction Work have been satisfied or will be satisfied at the time of Commencement of Construction Work. The City shall either reasonably approve or disapprove the submitted information within fifteen (15) days from the date the City receives the information.
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ARTICLE 4
CONSTRUCTION OF THE AFFORDABLE DEVELOPMENT
Section 4.1 Commencement of Construction Work.
The Developer shall commence construction of the Development in a manner consistent with the Approved Plans and Specifications and all applicable Governmental Approvals no later than twelve (12) months from the effective date of this Agreement, subject to extensions pursuant to Section 8.15 below ( the “Commencement of Construction”).
Section 4.2 Completion of Construction Work.
The Developer shall diligently complete the construction of the Development in a manner consistent with the Approved Plans and Specifications, as evidenced by issuance of a certificate of occupancy, to occur no later than Three (3) years from the commencement of construction pursuant to Section 4.1, subject to extensions pursuant to Section 8.15 below (the “Completion of Construction”).
Section 4.3 Performance of Work Pursuant to Plans and Laws; Prevailing Wages. (a) Changes. The Developer shall complete the Construction Work in substantial conformance with the Approved Plans and Specifications. If the Developer desires to make any material change in the Development which are not substantially consistent with the Approved Plans and Specifications, the Developer shall submit the proposed change to the City for its approval. No change which is required for compliance with building codes or other government health and safety regulations shall be deemed material. If the Development, as modified by any such proposed change, will conform to the requirements of this Agreement, and the Approved Plans and Specifications, the City shall approve the change by notifying the Developer in writing. For purposes of this Section, a material change shall mean any change which is expected to substantially alter the external appearance of the Development (including any color change) or which is expected to result in an individual change of One Hundred Fifty Thousand Dollars ($150,000) or a cumulative change of Five Hundred Thousand Dollars ($500,000), or more, in the cost of construction of the Development.
(1) Unless a proposed change is rejected by the City within ten (10) working days, it shall be deemed approved. If rejected within such time period, the previously Approved Plans and Specifications shall continue to remain in full force and effect. If the City rejects a proposed change, it shall provide the Developer with the specific reasons therefore.
(2) The approval of changes in the Approved Plans and Specifications by the City pursuant to this Section shall be in addition to any approvals required to be obtained from the City pursuant to building permit requirements. (b) Compliance with Laws. The Developer shall cause all Construction Work performed in connection with the Development to be performed in compliance with: (1) all applicable laws, ordinances, rules and regulations of federal, state, or municipal governments or #21..
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agencies now in force or that may be enacted hereafter; (2) the property standards set out in 24 C.F.R. Section 5.701 et. seq., and 24 C.F.R. Section 92.251; and (3) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and the Developer shall be responsible to the agency for the procurement and maintenance thereof, as may be required of the Developer and all entities engaged in work on the Development.
(c) Davis Bacon. To the extent required by law, the Developer shall cause construction of the Development to be in compliance with the prevailing wage requirements of the federal Davis-Bacon Act (40 U.S.C. Sections 3141-3148). The Developer shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City, its councilmembers, officers, employees, agents, successors and assigns, against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including the Developer, its contractor and subcontractors) to pay prevailing wages as determined pursuant to the prevailing wage provisions of the federal DavisBacon Act and implementing rules and regulations in connection with the rehabilitation of the Development or any other work undertaken or in connection with the Property. The requirements in this subsection shall survive termination of this Agreement, repayment of the Loan and the reconveyance of the HOME Deed of Trust
(d) State Prevailing Wages. Developer’s receipt of the HOME Loan does not require Developer to pay State Prevailing Wages for the construction of the Development pursuant to Labor Code section 1720(c)(5)(E). However, to the extent required by law, the Developer shall pay and shall cause the contractor and subcontractors to pay prevailing wages in connection with the Construction Work, as those wages are determined pursuant to Labor Code Sections 1720 et seq., to employ apprentices as required by Labor Code Sections 1777.5 et seq., and the implementing regulations of the Department of Industrial Relations (the "DIR"). In addition, as applicable, the Developer shall cause its respective contractors and subcontractors to do all the following: (i) all calls for bids, bidding materials and the construction contract documents for the Development must specify that (A) no contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for the Development unless registered with the DIR pursuant to Labor Code Section 1725.5 , and (B) the Development is subject to compliance monitoring and enforcement by the California Department of Industrial Relations ("DIR"); (ii) the Developer is required to provide the City all information required by Labor Code Section 1773.3 as set forth in the DIR's online form PWC-100 within 2 days of the award of the contract (https://www.dir.ca.gov/pwc100ext/); (iii) the Developer shall cause its respective contractors to post job site notices, as prescribed by regulation by the DIR; (iv) the Developer shall cause its respective contractors to furnish payroll records required by Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the electronic format prescribed by the Labor Commissioner. The Developer shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City its councilmembers, officers, employees, agents, successors and assigns, against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including the Developer, its contractor and subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq., to employ apprentices pursuant to Labor Code Sections #21..
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1777.5 et seq., and implementing regulations of the DIR or to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1777.5 et seq., and the implementing regulations of the DIR in connection with the Construction Work or any other work undertaken or in connection with the Development. The requirements in this subsection shall survive the repayment of the HOME Loan, and the reconveyance of the HOME Deed of Trust. (e) Accessibility Requirements. The Developer shall construct the Development to comply with all applicable federal and state disabled persons accessibility requirements including but not limited to the Federal Fair Housing Act, Section 504 of the Construction Act of 1973, Title II and/or Title III of the Americans with Disabilities Act of 1990, Title 24 of the California Code of Regulations and the Uniform Federal Accessibility Standards (UFAS). In compliance with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794, et seq.), a minimum of ten percent (10%) of all Units shall be constructed to be fully accessible to households with a mobility impaired member and an additional four percent (4%) of all Units shall be readily accessible to hearing and/or visually impaired persons. All Units in the Development shall also be built to comply with the Uniform Federal Accessibility Standards under 49 C.F.R. 31528.
Section 4.4 Equal Opportunity.
During the performance of the Construction Work there shall be no discrimination on the basis of race, color, creed, religion, age, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, military and veteran status, or disability in the hiring, firing, promoting, or demoting of any person engaged in the Construction Work .
Section 4.5 Minority and Women-Owned Contractors.
Developer shall use its best efforts to afford minority-owned and women-owned business enterprises the maximum practicable opportunity to participate in the construction of the Development. Developer shall, at a minimum, notify applicable minority-owned and womenowned business firms located in Stanislaus County of bid opportunities for the construction of the Development. Documentation of such notifications must be maintained by Developer and available to the County as requested.
Section 4.6 Progress Reports; Amended Final Financing Plan.
From the date of execution of this Agreement and continuing until Completion of Construction, the Developer shall provide the City with quarterly progress reports regarding the status of the Construction Work, including a certification that the actual construction costs to date conform to the Final Financing Plan. The Developer shall submit any required amendments to the Final Financing Plan to the City for approval within fifteen (15) days of the date the Developer receives information indicating that actual costs of the Development vary or will vary from the costs shown on the Final Financing Plan. Written consent of the City shall be required to amend the Final Financing Plan.
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Section 4.7 Construction Responsibilities.
(a) It shall be the responsibility of the Developer to coordinate and schedule the work to be performed so that Commencement of Construction and Completion of Construction will take place in accordance with this Agreement. (b) The Developer shall be solely responsible for all aspects of the Developer's conduct in connection with the Development, including (but not limited to) the quality and suitability of the Construction Work, the supervision of Construction Work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the City with reference to the Development is solely for the purpose of determining whether the Developer is properly discharging its obligations to the City, and should not be relied upon by the Developer or by any third parties as a warranty or representation by the City as to the quality of the design or construction of the Development and does not relieve the Developer, or its consultants, from any applicable requirement to obtain City approval and/or inspections.
Section 4.8 Mechanics Liens, Stop Notices, and Notices of Completion. (a) If any claim of lien is filed against the Property or the Development or a stop notice affecting the HOME Loan is served on the City or any other lender or other third party in connection with the Construction Work, then the Developer shall, within fifteen (15) days after such filing or service give notice to the City of the claim of lien, and within thirty (30) days either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the City a surety bond from a surety acceptable to the City in sufficient form and amount, or provide the City with other assurance satisfactory to the City that the claim of lien or stop notice will be paid or discharged.
(b) If the Developer fails to discharge any lien, encumbrance, charge, or claim in the manner required in this Section, then in addition to any other right or remedy, the City may (but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at the Developer's expense. Alternately, the City may require the Developer to immediately deposit with the City the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely determined against the Developer.
(c) The Developer shall file a valid notice of cessation or notice of completion upon cessation of construction of the Development for a continuous period of thirty (30) days or more, and take all other reasonable steps to forestall the assertion of claims of lien against the Property and/or Development. The Developer authorizes the City, but without any obligation to the City, to record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Development. The Developer agrees and acknowledges that the City must conduct on-site inspections, consistent with the requirements of 24 C.F.R. 92.504(d), to determine compliance with the property standards set forth in 24 C.F.R. 92.251, at least once every three (3) years after the completion of construction of the Development.
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Section 4.9 Inspections.
(a) The Developer shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Development by the City and by public authorities during reasonable business hours for the purposes of determining compliance with this Agreement. Developer agrees and acknowledges that the City must conduct or cause to be conducted on-site inspections, consistent with the requirements of 24 C.F.R. 92.504(d), to determine compliance with the property standards set forth in 24 C.F.R. 92.251, at least once every three (3) years after the completion of the Development. Such inspections do not relieve the Developer, or its contractors, from any applicable requirement to obtain City inspections in connection with the construction of the Development.
(b) After the completion of an inspection the City shall deliver a copy of the inspection report to the Developer. If the City determines as a result of such inspection that there are any life-threatening health and safety related deficiencies, Developer has the obligation to correct such deficiencies immediately, in accordance with 24 C.F.R 92.251. If the City determines as a result of the inspection that there are any deficiencies for any of the inspectable items in the Development, the Developer shall correct such deficiencies within fifteen (15) days from the delivery of the inspection report or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Developer must begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible. In addition, the Developer acknowledges that the City may re-inspect the Development to verify all deficiencies have been corrected or rely on third party documentation submitted by the Developer for non-hazardous deficiencies in conformance with 24 C.F.R. 92.504(d) Section 4.10 Developer Fee.
In no event shall developer fees paid to any entity for development services rendered, including administrative fees and costs in connection with the Development and deferred developer fees exceed the amount approved in the Final Financing Plan.
Section 4.11 Marketing Plan.
(a) No later than six (6) months prior to the projected date of the completion of the Development, the Developer shall submit to the City for approval its plan for marketing the Development to income-eligible households as required pursuant to the HOME Regulatory Agreement, including information on affirmative marketing efforts and compliance with fair housing laws, including but not limited to the information required under 24 C.F.R. Section
92.351(a) (the "Marketing Plan").
(b) Upon receipt of the Marketing Plan, the City shall promptly review the Marketing Plan and shall approve or disapprove the Marketing Plan within fifteen (15) days after submission. If the Marketing Plan is not approved, the Developer shall submit a revised Marketing Plan within fifteen (15) days. If the City does not approve the revised Marketing Plan, the Developer shall be in default hereunder.
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(c) If after five (5) months after the Completion of Construction any HOME Unit remains unoccupied, the Developer shall submit a detail report of the ongoing marketing efforts, and if deemed appropriate by the City, any necessary amendments or updates to the Marketing Plan aimed at ensuring any unoccupied HOME Unit is promptly leased. If any of the HOME Units remain unoccupied eleven (11) months after the Completion of Construction, the Developer shall submit a detailed report of the ongoing marketing efforts and submit to the City an update to the Marketing Plan. Failure to lease all of the HOME Units to an eligible tenant within eighteen (18) months of Completion of Construction shall trigger the special repayment pursuant to Section 2.8(e).
ARTICLE 5
LOAN REQUIREMENTS
Section 5.1 Match Requirement.
Pursuant to Section III of HUD Notice: CPD-21-10, there is no match requirement for this Loan.
Section 5.2 Financial Accountings and Post-Completion Audits.
The Developer shall provide to City a financial accounting of all sources and uses of funds for the Construction Work. No later than one hundred fifty (150) calendar days following completion of Construction Work, the Developer shall submit a cost certification prepared by the Developer's accountants showing the sources and uses of all funds utilized for the Development, as well as a copy of all documents that the Developer is required to submit to TCAC as part of the final feasibility and cost reasonableness analysis, as applicable. This requirement may be satisfied by providing the Final Cost Certification to the City. "Final Cost Certification" means the Final Cost Certification Sources and Uses of Funds prepared by Developer for the Development that: (1) Developer submits to TCAC; and (2) has been prepared using generally accepted accounting procedures in effect in the United States from time to time, consistently applied
Section 5.3 Annual Operating Budget.
At the beginning of each fiscal year of the Term, the Developer shall provide to the City an annual budget for the operation of the Development. Unless rejected by the City in writing within fifteen (15) days after receipt of the budget, said budget shall be deemed accepted. If rejected by the City in whole or in part, the Developer shall submit a new or corrected budget within thirty (30) calendar days of notification of the City's rejection and the reasons therefore.
The provisions of this Section relating to time periods for resubmission of new or corrected budgets shall continue to apply until such budget has been approved by the City.
Section 5.4 Information.
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limited to any information required by HUD in connection with the Developer's use of the HOME Loan funds.
Section 5.5 Records.
(a) The Developer shall keep and maintain at the Development, or elsewhere with the City's written consent, full, complete and appropriate books, records and accounts relating to the Development, including all such books, records and accounts necessary or prudent to evidence and substantiate in full detail Developer's compliance with the terms and provisions of this Agreement. Books, records and accounts relating to Developer's compliance with the terms, provisions, covenants and conditions of this Agreement shall be kept and maintained in accordance with generally accepted accounting principles consistently applied, and shall be consistent with requirements of this Agreement. All such books, records, and accounts shall be open to and available for inspection and copying by HUD, the City, its auditors or other authorized representatives at reasonable intervals during normal business hours. Copies of all tax returns and other reports that Developer may be required to furnish to any governmental agency shall at all reasonable times be open for inspection by the City at the place that the books, records and accounts of the Developer are kept. The Developer shall preserve such records for a period of not fewer than five (5) years after the creation of such records in compliance with all HUD records and accounting requirements. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Loan is pending at the end of the record retention period stated herein, then the Developer shall retain such records until such action and all related issues are resolved. Such records shall include all invoices, receipts, and other documents related to expenditures from the Loan funds. Records must be kept accurate and current and in such a form as to allow the City to comply with the applicable recordkeeping requirements contained in 24 C.F.R. Section 92.508. Such records shall include but not be limited to:
(1) Records providing a full description of the activities undertaken with the use of the Loan funds;
(2) Records demonstrating compliance with the City and HUD property standards and lead-based paint requirements, including, as applicable, the Uniform Physical Conditions Standards established by HUD pursuant to 24 C.F.R. 5.703; (3) Records demonstrating compliance with the Tenant Selection Plan requirements pursuant to 24 C.F.R. 92.253(d);
(4) Records demonstrating compliance with the affordability and income requirements for tenants and HOME affordability and income requirements; (5) Records documenting compliance with the fair housing, equal opportunity, and affirmative fair marketing;
(6) Financial records as required by 24 C.F.R. 92.505, and 2 C.F.R.
Part 200);
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(7) Records demonstrating compliance with 24 C.F.R. Part 135 which implements Section 3 of the Housing Development Act of 1968; (8) Records demonstrating compliance with applicable relocation requirements which must be retained for at least five (5) years after the date by which persons displaced from the property have received final payments; (9) Records demonstrating compliance with MBE/WBE requirements; (10) Records demonstrating that tenant leases comply with the HOME Requirements;
(11) Records demonstrating compliance with Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u, and labor requirements, including certified payrolls from the Developer's general contractor (and any subcontractor) evidencing that applicable prevailing wages have been paid; (12) Financial records as required by 24 C.F.R. Section 92.505, and 2 C.F.R. Part 200; and
(13) Records demonstrating compliance with 24 C.F.R. 8.20. (b) The City shall notify Developer of any records it deems insufficient.
Developer shall have fifteen (15) calendar days after the receipt of such a notice to correct any deficiency in the records specified by the City in such notice, or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Developer shall begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible.
Section 5.6 Audits.
(a) Each year, the Developer shall provide the City with a copy of the Developer's annual audit, which shall include information on all of the Developer's activities and not just those pertaining to the Development, and shall submit all other financial information reasonably requested by the City determined by the City as necessary for compliance with the requirements of 24 C.F.R 504(d). Developer shall also follow audit requirements of the Single Audit Act and 2 C.F.R. Part 200.
(b) In addition, the City or any designated agent or employee of the City at any time shall be entitled to audit all of Developer's books, records, and accounts pertaining thereto. Such audit shall be conducted during normal business hours at the principal place of business of Developer and other places where records are kept. Immediately after the completion of an audit, the City shall deliver a copy of the results of such audit to Developer.
The City shall deliver a copy of the results of the audit to Developer. If it is determined as a result of such audit that there has been a deficiency in a loan repayment to the County, then such deficiency will become immediately due and payable with interest at the Default Rate from the date the deficient amount should have been paid. In addition, if any audit conducted pursuant to this Section 2.9(c) determines that Residual Receipts have been understated for any fiscal year by more than five percent (5%) and at least $5,000.00, then the Developer shall pay, in addition #21..
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to the amounts set forth above, all of the costs and expenses incurred by the County in connection with the audit and review of Developer's accounts or records.
Section 5.7 HOME Requirements.
(a) The Developer shall comply with all applicable laws and regulations governing the use of the HOME funds as set forth in 24 C.F.R. Part 92 and Section VI.B of HUD Notice: CPD-21-10, including but not limited to the requirements of the HOME Regulatory Agreement. In the event of any conflict between this Agreement and applicable laws and regulations governing the use of the HOME Loan funds, the applicable laws and regulations shall govern. During the HOME Term, these requirements shall be federal requirements, implemented by the City; thereafter, these requirements shall be deemed local City requirements. (b) The laws and regulations governing the use of the HOME Loan funds include (but are not limited to) the following:
(1) Eligible Project Costs. Restrictions on funding only eligible project costs as defined under 24 C.F.R. 92.206.
(2) Environmental and Historic Preservation. 24 C.F.R. Part 50 and 24 C.F.R. Part 58, which prescribes procedures for compliance with the National Environmental Policy Act of 1969 (42 U.S.C. Sections 4321-4361), and the additional laws and authorities listed at 24 C.F.R. Section 58.5.
(3) Applicability of 2 C.F.R. Part 200. The applicable policies, guidelines, and requirements of 2 C.F.R. Part 200.
(4) Debarred, Suspended or Ineligible Contractors. The prohibition on the use of debarred, suspended, or ineligible contractors and subcontractors set forth in 24 C.F.R.
Part 24, including maintenance of all appropriate records for compliance thereof. (5) Civil Rights, Housing and Community Development, and Age Discrimination Acts. The Fair Housing Act (42 U.S.C. Section 3601 et seq.) and implementing regulations at 24 C.F.R. Part 100; Title VI of the Civil Rights Act of 1964 as amended; Title VIII of the Civil Rights Act of 1968 as amended; Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended; Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Section 794, et seq.); the Age Discrimination Act of 1975 (42 U.S.C. Section 6101, et seq.); Executive Order 11063 as amended by Executive Order 12259 and implementing regulations at 24 C.F.R. Part 107; Executive Order 11246 as amended by Executive Orders 11375, 12086, 11478, 12107; Executive Order 11625 as amended by Executive Order 12007; Executive Order 12432; Executive Order 12138 as amended by Executive Order 12608, Executive Order 13672, concerning Gender Identity. (6) Lead-Based Paint. The requirement of the Lead-Based Paint Poisoning Prevention Act, as amended (42 U.S.C. Section 4821 et seq.), the Residential LeadBased Paint Hazard Reduction Act (42 U.S.C. Section 4851 et seq.), and implementing regulations at 24 C.F.R. Part 35.
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(7) Relocation. The requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. Section 4601, et seq.) and implementing regulations at 49 C.F.R. Part 24; 24 C.F.R. 570.606, Section 104(d) of the Housing and Community Development Act of 1974 and implementing regulations at 24 C.F.R.
Part 42; 24 C.F.R. Section 92.353; and California Government Code Section 7260 et seq. and implementing regulations at 25 California Code of Regulations Section 6000 et seq. If and to the extent that construction of the Development results in the permanent or temporary displacement of residential tenants, homeowners, or businesses, then the Developer shall comply with all applicable local, state, and federal statutes and regulations with respect to relocation planning, advisory assistance, and payment of monetary benefits. The Developer shall prepare and submit a relocation plan to the City for approval. The Developer shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with such relocation laws. The Developer shall indemnify, defend (with counsel reasonably chosen by the City), and hold harmless the City, its councilmembers, officers, employees, agents, successors and assigns, against all claims which arise out of relocation obligations to residential tenants, homeowners, or businesses permanently or temporarily displaced by the Development.
(8) Discrimination against the Disabled. The requirements of the Fair Housing Act (42 U.S.C. 3601 et seq.) and implementing regulations at 24 C.F.R. Part 100, the requirements of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Section 794), the Uniform Federal Accessibility Standards (24 C.F.R. 8.20, et seq. 8.51), and federal regulations issued pursuant thereto, which prohibit discrimination against the disabled in any federally assisted program, the requirements of the Architectural Barriers Act of 1968 (42 U.S.C. Sections 4151-4157) and the applicable requirements of Title II and/or Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12131 et seq.), and federal regulations issued pursuant thereto.
(9) Clean Air and Water Acts. The Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C.
Section 1251 et seq., and the regulations of the Environmental Protection Agency with respect thereto, at 40 C.F.R. Part 1500, as amended from time to time. (10) Uniform Administrative Requirements. The requirements of 24 C.F.R. Section 92.505 regarding cost and auditing requirements. (11) Training Opportunities. The requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u ("Section 3") and implementing regulations 24 C.F.R. 135 et seq., requiring that to the greatest extent feasible opportunities for training and employment be given to lower income residents of the project area and agreements for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in, the areas of the project. The Developer agrees to include the following language in all subcontracts executed under this Agreement:
(i) The work to be performed under this contract is subject to the requirements of Section 3. The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by #21..
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Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (ii) The parties to this contract agree to comply with HUD's regulations in 24 C.F.R. Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the 24 C.F.R. Part 135 regulations. (iii) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause; and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference; shall set forth minimum number and job titles subject to hire; availability of apprenticeship and training positions; the qualifications for each; the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (iv) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 C.F.R. Part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. Part 135.
(v) The contractor will certify that any vacant employment positions, including training positions, that are filled: (1) after the contractor is selected but before the contract is executed; and (2) with persons other than those to whom the regulations of 24 C.F.R. Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 C.F.R. Part 135. (vi) Noncompliance with HUD's regulations in 24 C.F.R. Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts.
(vii) With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. Section 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible: (1) preference and opportunities for training and employment shall be given to Indians, and (2) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 7(b).
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(12) Labor Standards. The Developer shall comply with applicable labor requirements set forth in 24 C.F.R. Section 92.354: the prevailing wage requirements of the Davis-Bacon Act and implementing rules and regulations (40 U.S.C. Sections 3141-3148); the Copeland "Anti-Kickback" Act (40 U.S.C. Section 276(c)) which requires that workers be paid at least once a week without any deductions or rebates except permissible deductions; the Contract Work Hours and Safety Standards Act – CWHSSA (40 U.S.C. Sections 3701-3708) which requires that workers receive "overtime" compensation at a rate of 1-1/2 times their regular hourly wage after they have worked forty (40) hours in one (1) week; and Title 29, Code of Federal Regulations, Subtitle A, Parts 1, 3 and 5 are the regulations and procedures issued by the Secretary of Labor for the administration and enforcement of the Davis-Bacon Act, as amended. Because, as provided in the HOME Regulatory Agreement, eight (8) units in the Development are HOME Units, it is the understanding of the City and the Developer that the construction of the Development is exempt from the prevailing wage requirements of the DavisBacon Act, pursuant to 24 CFR 92.354(a)(2). (13) Drug Free Workplace. The requirements of the Drug Free Workplace Act of 1988 (P.L. 100-690) and implementing regulations at 24 C.F.R. Part 24. (14) Anti-Lobbying; Disclosure Requirements. The disclosure requirements and prohibitions of 31 U.S.C. Section 1352 and implementing regulations at 24 C.F.R. Part 87.
(15) Historic Preservation. The historic preservation requirements set forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. Section 470) and the procedures set forth in 36 C.F.R. Part 800. If archeological, cultural, or historic period resources are discovered during rehabilitation, all rehabilitation work must come to a halt and the Developer shall immediately notify the City. The Developer shall not alter or move the discovered material(s) until all appropriate procedures for "post-review discoveries" set forth in Section 106 of the National Historic Preservation Act have taken place, which include, but are not limited to, consultation with the California State Historic Preservation Officer and evaluation of the discovered material(s) by a qualified professional archeologist. (16) Flood Disaster Protection. The requirements of the Flood Disaster Protection Act of 1973 (P.L. 93-234) (the "Flood Act"). No portion of the assistance provided under this Agreement is approved for acquisition or construction purposes as defined under Section 3(a) of the Flood Act, for use in an area identified by HUD as having special flood hazards which is not then in compliance with the requirements for participation in the national flood insurance program pursuant to Section 201(d) of the Flood Act. The use of any assistance provided under this Agreement for such acquisition or construction in such identified areas in communities then participating in the National Flood Insurance Program is subject to the mandatory purchase of flood insurance requirements of Section 102(a) of the Flood Act. If the Property is located in an area identified by HUD as having special flood hazards and in which the sale of flood insurance has been made available under the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq., the property owner and its successors or assigns must obtain and maintain, during the ownership of the Property, such flood insurance as required with respect to financial assistance for acquisition or construction purposes under -Section 102(s) of the Flood Act. Such provisions are required notwithstanding the fact that the construction on the Property is not itself funded with assistance provided under this Agreement. #21..
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(17) Faith Based Activities. If the Developer is a religious organization, as defined by the HOME requirements, the Developer shall comply with all conditions prescribed by HUD for the use of HOME Funds by religious organizations, including the First Amendment of the United States Constitution regarding church/state principles and the applicable constitutional prohibitions set forth in 24 C.F.R. 92.257. (18) Physical Needs Assessment. The Developer shall conduct, or caused to be conducted, a physical needs assessment on the Development once every five (5) years from the date that construction of the Development is completed. The Developer shall comply with all HUD requirements for conducting and documenting the physical needs assessment and shall provide the City with a copy of all documentation related to each physical needs assessment conducted, or caused to be conducted, by the Developer. (19) Violence Against Women Act. Recipient and its officers, employees, and agents shall not penalize any tenant, resident, occupant, or guest at the Project based on their requests for law enforcement or emergency assistance, or based on criminal activity of which they are a victim or otherwise not at fault under applicable federal, state, and local laws, statues, ordinances, and policies. Prohibited penalties include those specified in 34 USC § 12495.
(20) HUD Regulations. Any other HUD regulations present or as may be amended, added, or waived in the future pertaining to the Loan funds, including but not limited to HUD regulations as may be promulgated regarding subrecipients.
Section 5.8 Hazardous Materials.
(a) The Developer shall keep and maintain the Development in compliance with, and shall not cause or permit the Development to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under, or about the Development including, but not limited to, soil and ground water conditions. The Developer shall not use, generate, manufacture, store or dispose of, on, under, or about the Development or transport to or from the Development any Hazardous Materials except those materials as may be used in the construction and operation of the Development, or customarily kept and used in and about residential property of this type. (b) The Developer shall immediately advise the City in writing: (1) any time the Developer receives written notice of any Hazardous Materials Claims, and (2) if the Developer discovers of any occurrence or condition on any real property adjoining or in the vicinity of the Development that could cause the Development or any part thereof to be classified as "border-zone property" under the provision of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Development under any Hazardous Materials Law.
(c) The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys' fees in connection therewith paid by the Developer.
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officers, employees, agents, successors and assigns, from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Development (including asbestos) including without limitation: (1) all foreseeable consequential damages; (2) the costs of any required or necessary repair, cleanup or detoxification of the Development and the preparation and implementation of any closure, remedial or other required plans; and (3) all reasonable costs and expenses incurred by the City in connection with clauses (1) and (2), including but not limited to reasonable attorneys' fees.
This indemnification applies whether or not any government agency has issued a cleanup order.
Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses attributable to diminution in the value of the Property, (2) loss or restriction of use of rentable space on the Property, (3) adverse effect on the marketing of any rental space on the Property, and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties). This obligation to indemnify shall survive termination of this Agreement.
(d) Without the City's prior written consent, which shall not be unreasonably withheld, the Developer shall not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Development, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in the City's reasonable judgment, impair the value of the City's security hereunder; provided, however, that the City's prior consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Development either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain the City's consent before taking such action, provided that in such event the Developer shall notify the City as soon as practicable of any action so taken. The City agrees not to withhold its consent, where such consent is required hereunder, if either: (1) a particular remedial action is ordered by a court of competent jurisdiction; (2) the Developer will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (3) the Developer establishes to the reasonable satisfaction of the City that there is no reasonable alternative to such remedial action which would result in less impairment of the City's security hereunder; or (4) the action has been agreed to by the City. (e) The Developer hereby acknowledges and agrees that: (1) this Section is intended as the City's written request for information (and the Developer's response) concerning the environmental condition of the Development as required by California Code of Civil Procedure Section 726.5; and (2) each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Development is intended by the Parties to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736. (f) In the event that any portion of the Development is determined to be "environmentally impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of #21..
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Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the City's or the trustee's rights and remedies under the HOME Deed of Trust, the City may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to: (1) waive its lien on such environmentally impaired or affected portion of the Development; and (2) exercise: (i) the rights and remedies of an unsecured creditor, including reduction of its claim against the Developer to judgment; and (ii) any other rights and remedies permitted by law. For purposes of determining the City right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Developer shall be deemed to have willfully permitted or acquiesced in a release or threatened release of hazardous materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of Hazardous Materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Development and the Developer knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the City in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Development is environmentally impaired, plus interest thereon at the lesser of ten percent (10%) or the maximum rate permitted by law, until paid, shall be added to the indebtedness secured by the HOME Deed of Trust and shall be due and payable to the City upon its demand made at any time following the conclusion of such action. (g) The Developer hereby indemnifies the City and its council members, directors, officers, employees, agents, successors and assigns for any and all liability resulting from or related to the presence of any Hazardous Materials on the Property.
Section 5.9 Maintenance and Damage.
(a) During the course of operation of the Development, the Developer shall maintain the Development in good repair and in a neat, clean and orderly condition. If there arises a condition in contravention of this requirement, and if the Developer has not cured such condition within thirty (30) days after receiving a notice from the City of such a condition, then in addition to any other rights available to the City, the City shall have the right to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property.
(b) Subject to the requirements of senior lenders, and if economically feasible in the City's reasonable judgment after consultation with the Developer, if any improvement now or in the future on the Property is damaged or destroyed, then the Developer shall, at its cost and expense, diligently undertake to repair or restore such improvement consistent with the plans and specifications approved by the City with such changes as have been approved by the City. Such work or repair shall be commenced no later than the later of one hundred twenty (120) days, or such longer period approved by the City in writing, after the damage or loss occurs or thirty (30) days following receipt of the insurance proceeds, and shall be complete within one (1) year thereafter. Any insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, then the Developer shall make up the deficiency. If the Developer does not make #21..
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repairs, then any insurance proceeds collected for such damage or destruction shall be distributed as if such proceeds were Residual Receipts, subject to the rights of the Senior Lenders.
Section 5.10 Fees and Taxes.
(a) The Developer shall be solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Development to the extent owed by the Developer, and shall pay such charges prior to delinquency. However, the Developer shall not be required to pay and discharge any such charge so long as: (1) the legality thereof is being contested diligently and in good faith and by appropriate proceedings; and (2) if requested by the City, the Developer deposits with the City any funds or other forms of assurance that the City in good faith from time to time determines appropriate to protect the City from the consequences of the contest being unsuccessful.
(b) The City acknowledges that the Developer intends to apply to the State Board of Equalization for a welfare exemption from property taxes under California Revenue and Taxation Code Section 214 for the Development. Nothing in this Agreement shall prohibit the Developer from applying for and obtaining a welfare exemption for the Development.
Section 5.11 Notice of Litigation.
The Developer shall promptly notify the City in writing of any litigation related to the Development, and any litigation related to the Developer for which the amount claimed or at issue is in excess of Fifty Thousand Dollars ($50,000) and is not fully covered by insurance, and of any claims or disputes related to the Development that involve a material risk of litigation.
Section 5.12 Operation of Development as Affordable Housing. (a) Promptly after Completion of Construction of the Development, the Developer shall operate the Development as an affordable housing development for homeless individuals and individuals at risk of homelessness consistent with: (1) HUD's requirements for use of the HOME Loan Funds for the HOME Term; and (2) the Regulatory Agreement for the length of the HOME Term.
(b) Before leasing any Unit in the Development, the Developer shall submit its proposed form of lease agreement for the City's review and approval. The term of the form of lease agreement shall be for no less than one (1) year, except by mutual agreement between the Developer and the tenant and shall not contain any provision which is prohibited by 24 C.F.R.
Section 92.253(d) and any modifications thereto. Any Developer termination of a lease agreement or refusal to renew must be in conformance with 24 C.F.R. Section 92.253(c) and must be preceded by not fewer than sixty (60) days written notice to the tenant by the Developer specifying the grounds for the action.
(c) Before leasing any HOME Unit in the Development, the Developer must provide the City, for its review and approval, with the Developer's written tenant selection plan.
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selection set out in 24 C.F.R. Section 92.253(d) and Sections IV.C and VI.B.20 of HUD Notice:
CPD-21-10 , and any modifications thereto. The written tenant selection plan shall require Developer to use the coordinated entry process of the Stanislaus County Continue of Care for tenant selection. The selection plan shall comply with all applicable fair housing, civil rights, and non-discrimination requirements, including but not limited to those requirements listed in 24 CFR 5.105(a).
(d) The Developer must determine the eligibility of each tenant household in a HOME Unit pursuant to the HOME Regulations, and any applicable Tenant Selection Plan the City's approved tenant certification procedures within sixty (60) days before the household's expected occupancy of one of the Development's HOME Units. The Developer shall certify each tenant household's income and eligibility on an annual basis. (e) The maximum household income of a household occupying a HOME Unit in the Development, and the total charges for rent, utilities, and related services to each household occupying a HOME Unit, shall be maintained as provided in the HOME Regulatory Agreement.
(f) At initial occupancy, all Tenants of HOME Units must be Homeless or At Risk of Homelessness. Tenants whose annual income at the time of income re-certification is above specified levels continue to qualify to occupy the HOME Units as specified in the Regulatory Agreement and pursuant to the requirements of Section of VI.B.15 of HUD Notice:
CPD-21-10.
Section 5.13 Non-Discrimination.
Developer covenants by and for itself and its successors and assigns that there will be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age (except for lawful senior housing in accordance with state and federal law), familial status, disability, sex, gender, gender identity, gender expression, sexual orientation, marital status, ancestry, military and veteran status or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor may Developer or any person claiming under or through Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property.
Developer shall comply with Executive Orders 11246, 11375, 11625, 12138, 12431, 12250, 13672, Title VII of the Civil Rights Act of 1964, the California Fair Housing and Employment Act and other applicable Federal, State and local laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted. The foregoing covenant will run with the land.
Section 5.14 Insurance Requirements.
(a) Required Coverage. The Developer shall maintain and keep in force, at the Developer's sole cost and expense, the following insurance coverage, applicable to the Development, throughout the Term of this Agreement:
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(1) Workers' Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident;
(2) Commercial General Liability insurance with limits not less than Two Million Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform Property Damage, Products and Completed Operations. Products and Completed Operations coverage shall be obtained no later than completion of construction of the Development; (3) Comprehensive Commercial Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverage for owned, non-owned and hired vehicles, as applicable; provided, however, that if the Developer does not own or lease vehicles for purposes of this Agreement, then no automobile insurance shall be required and both parties to this Agreement shall initial this provision signifying the same; and (4) Builders' risk insurance during the course of construction (and upon completion of construction, property insurance) covering the Development and covering all risks of loss, excluding earthquake, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee, as its interest may appear. Flood insurance shall be obtained if required by applicable federal regulations. (5) Commercial crime insurance covering all officers and employees, for loss of Loan proceeds caused by dishonesty, in an amount approved by the City, naming the City as a Loss Payee, as its interest may appear.
(b) Contractor's Insurance. The Developer shall cause any general contractor, demolition contractor, or agent working on the Development under direct contract with the Developer to maintain insurance of the types and in at least the minimum amounts described in subsections (a) above, and shall require that such insurance shall meet all of the general requirements of subsections (c) below. Subcontractors working on the Development under indirect contract with the Developer shall be required to maintain the insurance described in subsections (a)(1) through (a)(3) above, except that the limit for the insurance described in subsection (a)(2) may be One Million Dollars ($1,000,000). Liability and Comprehensive Automobile Liability insurance to be maintained by such contractors and agents pursuant to this subsection shall name as additional insureds the City, its council members, officers, agents, and employees.
(c) General Requirements. The required insurance shall be provided under an occurrence form, and the Developer shall maintain such coverage continuously throughout the Term. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be three (3) times the occurrence limits specified above.
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Comprehensive General Liability, Comprehensive Automobile Liability and Property insurance policies (including builders' risk) shall be endorsed to name as an additional insured the City, and its officers, council members, agents, and employees.
All policies and bonds shall contain: (1) the agreement of the insurer to give the City at least thirty (30) days' notice prior to cancellation (including, without limitation, for nonpayment of premium) or any material change in said policies; (2) an agreement that such policies are primary and noncontributing with any insurance that may be carried by the City; (3) a provision that no act or omission of the Developer shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained; and (4) a waiver by the insurer of all rights of subrogation against the City and its authorized parties in connection with any loss or damage thereby insured against.
(d) Certificate of Insurance. Upon the City's request at any time during the term of this Agreement, the Developer shall provide certificates of insurance, in form and with insurers reasonable acceptable to the City, evidencing compliance with the requirements of this Section, and shall provide complete copies of such insurance policies, including a separate endorsement naming the City, and its council members, officers agents and employees as additional insured.
Section 5.15 Anti-Lobbying Certification.
The Developer certifies, to the best of the Developer's knowledge or belief, that:
(a) No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement;
(b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, Disclosure Form to Report Lobbying, in accordance with its instructions.
(c) This certification is a material representation of fact upon which reliance was placed when this Agreement was made or entered into. Submission of this certification is a prerequisite for making or entering into this Agreement imposed by Section 1352, Title 31, and U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than Ten Thousand Dollars ($10,000) and no more than One Hundred Thousand Dollars ($100,000) for such failure.
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Section 5.16 Purpose of Restriction on Transfer.
This Agreement is entered into solely for the purpose of the Developer's construction and operation of the Development in accordance with the terms of this Agreement and the HOME Regulatory Agreement. The qualifications and identity of the Developer are of particular concern to the City, in view of:
(a) The importance of the construction of the Development to the general welfare of the community;
(b) The public aids that have been made available by law and by the government for the purpose of making such development possible; (c) The reliance by the City upon the unique qualifications and ability of the Developer to serve as the catalyst for construction of the Development and upon the continuing interest which the Developer will have in the Development to assure the quality of the use, operation, and maintenance deemed critical by the City in the construction of the Development; (d) The fact that a change in ownership or control of the owner of the Development, or of a substantial part thereof, or any other act or transaction involving or resulting in a significant change in ownership or with respect to the identity of the parties in control of the Developer or the degree thereof, is for practical purposes a transfer or disposition of the Development; and
(e) The importance to the City of the standards of use, operation, and maintenance of the Development.
It is because of the qualifications and identity of the Developer that the City is entering into this Agreement and that Transfers are permitted only as provided in this Agreement.
Section 5.17 Prohibited Transfers.
(a) The limitations on Transfers set forth in this Article shall apply throughout the Term of this Agreement. Except as expressly permitted in this Agreement, the Developer represents that it has not made or created, and agrees that it will not make or create or suffer to be made or created, any Transfer (as defined in Section 1.1 hereof), either voluntarily or by operation of law, without the prior written approval of the City, which consent the City may withhold at its sole discretion.
(b) Any Transfer made in contravention of this Section shall, at the City's discretion, be void and shall be deemed to be a default under this Agreement, whether or not the Developer knew of or participated in such Transfer. The HOME Loan shall automatically accelerate and be due in full upon any unauthorized Transfer. #21..
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Section 5.18 Permitted Transfers Without Prior City Approval.
Notwithstanding the provisions of Section 7.3, the following Transfers shall be permitted and are hereby approved by the City.
(a) Any Transfer creating a Security Financing Interest permitted pursuant to the approved Financing Plan.
(b) Any Transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest or as otherwise permitted under Article 7.
(c) The leasing of residential units within the Development in accordance with the Regulatory Agreement.
(d) The granting of easements or permits to facilitate the development of the Property.
(f) a transfer to a limited partnership in which Developer or an entity which is under the direct control or under common control with Developer or in which Developer is the sole member or the general partner, is the general partner. (g) Following completion of construction of the Development, the City shall not unreasonably withhold its consent to a proposed Transfer, provided that the City Manager reasonably determines that the proposed transferee is qualified to operate the Development in compliance with the HOME Regulatory Agreement including meeting the following requirements:
(1) The proposed transferee has at least five (5) years' experience operating multifamily rental housing developments comparable to the Development; (2) The proposed transferee has no record of loan defaults, maintenance problems, housing or building code violations, or substantiated fair housing complaints at properties it has owned or operated; and
(3) The proposed transferee has satisfactory credit.
Section 5.19 Effectuation of Certain Permitted Transfers. (a) No Transfer of this Agreement permitted pursuant to Section 5.18 shall be effective unless, at the time of the Transfer, the person or entity to which such Transfer is made, by an instrument in writing prepared by the City and in form recordable among the land records, shall expressly assume the obligations of the Developer under this Agreement and agree to be subject to the conditions and restrictions to which the Developer is subject arising during this Agreement, to the fullest extent that such obligations are applicable to the particular portion of or interest in the Development conveyed in such Transfer.
Section 5.20 Affordability and Project Monitoring.
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(a) Throughout the HOME Term, the Developer shall comply with all applicable record keeping and monitoring requirements set forth in (24 CFR Section 92.508) of the HOME Regulations and shall annually complete and submit to City a certification of continuing program compliance.
(b) Representatives of the City shall be entitled to enter the Property upon at least twenty-four (24) hour's notice at reasonable times to monitor compliance with this Agreement, to inspect the records of the Development with respect to the Units, and to conduct an independent audit of such records. The Developer agrees to cooperate with the City in making the Property available for such inspection. If for any reason the City is unable to obtain the Developer's consent to such an inspection, the Developer understands and agrees that the City may obtain, at the Developer's expense, an administrative inspection warrant or other appropriate legal order to obtain access to and search the Property. The Developer agrees to maintain records in a business-like manner and to make such records available to the City upon twentyfour (24) hour's notice at reasonable times. Unless the City otherwise approves, such records shall be maintained for the most recent five years until five years after the HOME Term. (c) Throughout the Term, the Developer grants the City inspection rights as set forth in Section 4.9 above, and Developer shall make best efforts to allow the City to comply with all applicable physical monitoring requirements set forth in (24 CFR Section 92.504(d) and 24 C.F.R. 92.251) of the HOME Regulations.
(d) The City will enforce a per-unit monitoring charge on all HOME assisted developments. HOME assisted developments will be charged as follows:
1-20 assisted units = $35.00 per unit/ annually
20+ assisted units = $25.00 per unit/ annually
(e) The City will enforce a physical inspection charge on all HOME assisted developments. The inspection charge for HOME assisted development will be the lesser of: (1) Five Thousand Dollars ($5,000) per inspection which may not occur more than once annually; or (2) the actual costs incurred by the City to secure a qualified third party, independent of the Developer, to conduct the physical inspections in accordance with the requirements set forth in this Agreement, and any related staffing costs incurred by the City in association therewith. (f) The Developer shall pay such charge within Thirty (30) days of receipt of an invoice from the City.
(g) The City reserves the right to waive or defer a portion of the monitoring charge if a development is unable to pay these costs. All waivers must be submitted in writing, with adequate supporting financial documentation, for review by the City Manager. #21..
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER
Section 6.1 Representations and Warranties.
The Developer hereby represents and warrants to the City as follows:
(a) Good Standing. The Developer is a duly organized California limited partnership and politic validly existing and in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted.
(b) Corporate Authority. The Developer has full power, and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the HOME Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above. (c) Authority of Persons Executing Documents. This Agreement and the HOME Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of the Developer, and all actions required under the Developer's organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the HOME Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken. (d) Valid Binding Agreements. This Agreement and the HOME Loan Documents and all other documents or instruments which have been executed and delivered pursuant to, or in connection with, this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of the Developer, enforceable against the Developer in accordance with their respective terms. (e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement and the HOME Loan Documents or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever binding on the Developer, or any provision of the organizational documents of the Developer, or will conflict with or constitute a breach of or a default under any agreement to which the Developer is a party, or will result in the creation or imposition of any lien upon any assets or property of the Developer, other than liens established pursuant hereto.
(f) Compliance With Laws; Consents and Approvals. The Developer represents and warrants that the construction of the Development will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and #21..
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with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency. (g) Pending Proceedings. The Developer is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of the Developer, and its general partner respectively, threatened against or affecting the Developer, respectively, or the Property, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to the Developer, materially affect the Developer's ability to repay the HOME Loan or impair the security to be given to the City pursuant hereto. (h) Title to Land. At the time of recordation of the HOME Deed of Trust, the Developer will have good and marketable fee title to the Property and there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than liens for current real property taxes and assessments not yet due and payable, the liens in favor of the City or approved in writing by the City. (i) Financial Statements. The financial statements of the Developer and other financial data and information furnished by the Developer to the City fairly present the information contained therein. As of the date of this Agreement, there has not been any adverse, material change in the financial condition of the Developer from that shown by such financial statements and other data and information.
(j) Sufficient Funds. The Developer holds sufficient funds and/or binding commitments for sufficient funds to complete the acquisition and construction of the Development.
(k) Taxes. The Developer has filed all federal and other material tax returns and reports required to be filed, and has paid all federal and other material taxes, assessments, fees and other governmental charges levied or imposed upon it or its income or the Property otherwise due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with generally accepted accounting principles. There is no proposed tax assessment against the Developer that could, if made, be reasonably expected to have a material adverse effect upon the Property, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Developer and its subsidiaries, taken as a whole, which would be expected to result in a material impairment of the ability of the Developer to perform under any HOME Loan Document to which it is a party, or a material adverse effect upon the legality, validity, binding effect or enforceability against the Developer of any HOME Loan Document. #21..
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ARTICLE 7
TERMINATION, DEFAULT AND REMEDIES
Section 7.1 Events of Default.
Each of the following shall constitute a "Default" under this Agreement:
(a) Failure to Satisfy Predevelopment Requirements. Failure of the Developer to satisfy any of the requirements set forth in Article 3 subject to notice and cure pursuant to Section
7.1(f) below;
(b) Failure to Make Payment. Failure of the Developer to repay the principal and any interest on the HOME Loan that is due and payable to the City pursuant to this Agreement following written notice by the City of such failure and fifteen (15) days opportunity to cure;
(c) Failure to Commence or Complete Construction Work. Failure of the Developer to commence and prosecute to completion, the Construction Work within the time frames set forth in this Agreement and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the City to the Developer, which notice provides reasonable detail of the default and the required cure for such default; (d) Failure to Comply with the Management Plan. Failure to comply with the Management Plan approved by the City and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the City to the Developer, which notice provides reasonable detail of the default and the required cure for such default; (e) Failure to Comply with the Marketing Plan. Failure to comply with the Marketing Plan approved by the City and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the City to the Developer, which notice provides reasonable detail of the default and the required cure for such default; (f) Breach of Covenants. Failure of the Developer to duly perform, comply with, or observe any of the conditions, terms, or covenants of any of the HOME Loan Documents, and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the City to the Developer (which notice shall provide reasonable detail of the default and required cure) or, if the breach cannot be cured within thirty (30) days, the Developer shall not be in breach so long as the Developer is diligently undertaking to cure such breach and such breach is cured within sixty (60) days; provided, however, that if a different period or notice requirement is specified under any other section of this Article 7, the specific provisions shall control;
(g) Default Under Other Loans. A default is declared under any Approved Financing by the lender of such Approved Financing (subject to applicable notice and cure); (h) Insolvency. A court having jurisdiction shall have made or entered any decree or order: (1) adjudging the Developer to be bankrupt or insolvent; (2) approving as #21..
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properly filed a petition seeking reorganization of the Developer or seeking any arrangement for the Developer under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of the Developer in bankruptcy or insolvency or for any of their properties; (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days; or (5) the Developer shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive. The occurrence of any of the events of Default in this paragraph shall act to accelerate automatically, without the need for any action by the City, the indebtedness evidenced by the Note;
(i) Assignment; Attachment. The Developer shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) days after such event or, if sooner, prior to sale pursuant to such sequestration, attachment, or execution. The occurrence of any of the events of default in this paragraph shall act to accelerate automatically, without the need for any action by the City, the indebtedness evidenced by the HOME Loan Documents; (j) Suspension; Dissolution. The Developer shall have: (1) the operation of their business voluntarily or involuntarily suspended by the State of California, (2) voluntarily stop or terminate the operation of its business; (3) if the Developer is a partnership, the partnership shall have the operation of the partnership voluntarily or involuntarily dissolved, suspended or terminated by the State of California;
(k) Liens on Property and the Development. There shall be filed any claim of lien (other than liens approved in writing by the City) against the Development, the Property, or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the HOME Loan and the continued maintenance of said claim of lien or notice to withhold for a period of thirty (30) days without discharge or satisfaction thereof or provision therefore (including, without limitation, the posting of bonds) satisfactory to the City; (l) Condemnation. The condemnation, seizure, or appropriation by any public agency of all or the substantial part of the Property and the Development, except condemnation by the City, shall cause the HOME Loan to accelerate but shall not be a Default; (m) Unauthorized Transfer. Any Transfer other than as permitted by Sections 5.18 and 5.19; and/or
(n) Representation or Warranty Incorrect. Any representation or warranty of the Developer, respectively, contained in this Agreement, or in any application, financial statement, certificate, or report submitted to the City in connection with any of the HOME Loan Documents, proves to have been incorrect in any material and adverse respect when made and which default cannot be cured within thirty (30) days after receipt of written notice thereof from the City to the Developers.
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Section 7.2 RESERVED.
Section 7.3 Remedies. The occurrence of any Default hereunder following the expiration of all applicable notice and cure periods will either at the option of the City or automatically where so specified, relieve the City of any obligation to make or continue the HOME Loan and shall give the City the right to proceed with any and all remedies set forth in this Agreement and the HOME Loan Documents, including but not limited to the following:
(a) Accelerate and declare the balance of the Note and interest accrued thereon immediately due and payable;
(b) Seek specific performance to enforce the terms of this Agreement or any of the nonmonetary terms of the HOME Loan Documents;
(c) Foreclose on the Property pursuant to the Deed of Trust (d) The City shall have the right (but not the obligation) to cure any monetary default by the Developer under a loan other than the HOME Loan. The Developer agrees to reimburse the City for any funds advanced by the City to cure a monetary default by the Developer upon demand therefore, together with interest thereon at the lesser of the maximum rate permitted by law or ten percent (10%) per annum from the date of expenditure until the date of reimbursement;
Section 7.4 Right of Contest.
The Developer shall have the right to contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute a Default hereunder. Any such contest shall be prosecuted diligently and in a manner unprejudicial to the City or the rights of the City hereunder.
Section 7.5 Remedies Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same or any other default by the other Party. Notwithstanding anything to the contrary set forth herein, a party’s right to recover damages in the event of a default shall be limited to actual damages and shall exclude consequential damages.
Section 7.6 Survival.
Upon termination or expiration of this Agreement, those provisions of this Agreement that recite that they survive termination of this Agreement shall remain in effect and be binding upon the parties notwithstanding such termination.
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ARTICLE 8
GENERAL PROVISIONS
Section 8.1 Relationship of Parties.
Nothing contained in this Agreement shall be interpreted as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the City, the Developer or the Developer's agents, employees or contractors, and the Developer shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. The Developer agrees to be solely responsible for its own acts and those of its agents and employees.
Section 8.2 No Claims.
Nothing contained in this Agreement shall create or justify any claim against the City, by any person that the Developer or its general partners may have employed or with whom the Developer may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the construction or operation of the Development, and the Developer shall include similar requirements in any contracts entered into for the construction or operation of the Development.
Section 8.3 Amendments.
Subject to Sections 8.19 and 8.20, no alteration or variation of the terms of this Agreement shall be valid unless made in writing by the Parties and approved by the City Council.
Section 8.4 Entire Understanding of the Parties.
This Agreement constitutes the entire understanding and agreement of the Parties with respect to the City.
Section 8.5 Indemnification.
Except as directly caused by the City's gross negligence or willful misconduct, the Developer agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the City) the City and its council members, officers, employees, representatives, agents, successors and assigns, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of: (1) the Developer's performance or non-performance of its obligations under this Agreement; (2) the Developer's ownership of the Property and Development; (3) the marketing, rental and operation of the Development; or (4), or any documents executed by the Developer in connection with the Property or Development. The provisions of this Section shall survive termination of this Agreement.
Section 8.6 Non-Liability of City Officials, Employees and Agents. #21..
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No council member, official, employee or agent of the City shall be personally liable to the Developer, 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 Developer or its successor or on any obligation under the terms of this Agreement. No director, officer, employee or agent of the Developer shall be personally liable to the City, or any successor in interest, in the event of any Default or breach by the Developer, or for any amount which may become due to the City or its successor or on any obligation under the terms of this Agreement.
Section 8.7 No Third Party Beneficiaries.
There shall be no third party beneficiaries to this Agreement.
Section 8.8 Action by the City.
Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent, request, extension of time, waiver of condition, termination, or other action by the City is required or permitted under this Agreement, such action may be given, made, or taken by the City Manager without further approval by the City Council, and any such action shall be in writing. The amount of the HOME Loan may not be increased without approval of the City Council.Any consents or approvals required under this Agreement shall not be unreasonably withheld or made, except where it is specifically provided that a sole discretion standard applies.
The City Manager is also hereby authorized to approve, on behalf of the City, requests by the Developer for reasonable extensions of time deadlines set forth in this Agreement. The City Manager shall not unreasonably delay in reviewing and approving or disapproving any proposal by the Developer made in connection with this Agreement.
Section 8.9 Waivers.
Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of the Developer or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to the Developer to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by the Developer shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City's written consent to future waivers.
Section 8.10 Notices, Demands and Communications.
Formal notices, demands, and communications between the City and the Developer shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the City and the Developer as follows:
City: City of Modesto
1010 Tenth Street, Suite 4400
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Modesto, CA 95354
Attn: Community Development Manager
Developer: Modesto Homekey LP
c/o UP Holdings California, LLC
6083 N. Figarden Drive, #656
Fresno, CA 93722
Attention: Cullen J. Davis
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section. Receipt shall be deemed to have occurred on the date shown on a written receipt for delivery or refusal of delivery. Copies of notices sent to the Developer shall also be sent to any limited partner of the Developer who requests such notices in writing and provides its address to the City.
Section 8.11 Applicable Law and Venue.
This Agreement shall be governed by and construed in accordance with California law.
Any action brought claiming a breach of this Agreement or interpreting this Agreement shall be brought and venued in Stanislaus County, California.
Section 8.12 Parties Bound.
Except as otherwise limited herein, the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, legal representatives, successors and assigns. This Agreement is intended to run with the land and shall bind the Developer and its successors and assigns in the Property and the Development for the entire Term, and the benefit hereof shall inure to the benefit of the City and its successors and assigns.
Section 8.13 Attorneys' Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing Party will have the right to recover its reasonable attorney's fees and costs of suit from the other Party.
Section 8.14 Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability.
Section 8.15 Extensions.
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(a) Force Majeure. In addition to specific provisions of this Agreement, performance by any Party shall not be deemed to be in default where delays or defaults are due to to war, insurrection, strikes, lock-outs or other labor disturbances, one or more acts of a public enemy, war, riot, sabotage, blockade, embargo, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of transportation, court order, delays or failures of performance by any governmental authority or utility company (other than the acts or failure to act of the City and so long as the Party seeking the extension has adequately complied with the applicable processing requirements of such governmental authority or utility company), delays resulting from changes in any applicable laws, rules, regulations, ordinances or codes, or a change in the interpretation thereof by any governing body with jurisdiction, or any other cause (other than lack of funds of the Developer or the Developer's inability to finance the construction of the Development) beyond the reasonable control or without the fault of the Party claiming an extension of time to perform or an inability of performance. An extension of time for any cause will be deemed granted if notice by the Party claiming such extension is sent to the other within ten (10) days from the commencement of the cause and the Party granting the extension agrees to the extension in writing. In no event shall the City be required to agree to cumulative delays in excess of one hundred eighty (180) days.
Section 8.16 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person described in subsection (b) below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during, or at any time after, such person's tenure. Developer shall exercise due diligence to ensure that the prohibition in this Section is followed.
(b) The conflict of interest provisions of subsection (a) above apply to any person who is an employee, agent, consultant, officer, or any immediate family member of such person, or any elected or appointed official of the City, or any person related within the third (3rd) degree of such person.
(c) In accordance with California Government Code Section 1090 and the Political Reform Act, California Government Code section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of the Developer, or immediate family member of any of the preceding, shall make or participate in a decision, made by the City or a City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Developer. Interpretation of this section shall be governed by the definitions and provisions used in the Political Reform Act, California Government Code Section 87100 et seq., its implementing regulations manual and codes, and California Government Code Section 1090. (d) The Developer shall comply with the conflict of interest provisions set forth in 24 C.F.R. Section 92.356.
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Section 8.17 Title of Parts and Sections.
Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions.
Section 8.18 Multiple Originals; Counterpart.
This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.
Section 8.19 Operating Memoranda.
(a) The Parties acknowledge that the provisions of this Agreement require a close degree of cooperation, and that new information and future events may demonstrate that changes are appropriate with respect to the details of performance of the parties under this Agreement. The parties desire, therefore, to retain a certain degree of flexibility with respect to the details of performance of those items covered in general terms under this Agreement. If and when, from time to time during the term of this Agreement, the parties find that refinements or adjustments regarding details of performance are necessary or appropriate, they may effectuate such refinements or adjustments through a memorandum (individually, an "Operating Memorandum", and collectively, "Operating Memoranda") approved by the parties which, after execution by both parties, shall be attached to this Agreement as addenda and become a part hereof.
(b) Operating Memoranda may be executed on the City's behalf by its City Manager, or the City Manager's designee. Operating Memoranda shall not require prior notice or hearing, and shall not constitute an amendment to this Agreement. Any substantive or significant modifications to the terms and conditions of performance under this Agreement shall be processed as an amendment of this Agreement in accordance with Section 8.3 hereof, and must be approved by the City Council.
Section 8.20 Assignment by City.
The City may assign its rights and obligations under the HOME Loan Documents to any other public entity without the consent of the Developer. [Remainder of Page Left Intentionally Blank]
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HOME Loan Agreement
Signature Page
3524731.1
WHEREFORE, this HOME Loan Agreement is executed by the Developer and City, and is effective as of the date first above written.
CITY:
CITY OF MODESTO,
a California charter city
By:_________________________________
Joseph Lopez, City Manager
ATTEST:
________________________________
Diane Nayares-Perez, City Clerk
APPROVED AS TO FORM:
By:___________________________
Jose M. Sanchez, City Attorney
APPROVED AS TO RISK
MANAGEMENT:
By: _______________________________
Risk Manager
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HOME Loan Agreement
Signature Page
3524731.1
BORROWER
MODESTO HOMEKEY LP,
a California limited partnership
By: UP MODESTO LLC,
a California limited liability company,
its General Partner
By: UP Holdings California, LLC,
an Illinois limited liability company registered
to do business in the State of California,
its Sole Member
By: ___________________________
Cullen J. Davis,
Manager
By: RHCB MODESTO LLC,
a California limited liability company,
its General Partner
By: RHCB Development LP,
a California limited partnership,
its Sole Member
By: WRBH LLC,
a California limited liability company,
its General Partner
By: _________________________
Wayne Rutledge,
Manager
By: HOM XXX LLC,
a Delaware limited liability company,
its Managing General Partner
By: Housing on Merit,
a California nonprofit public benefit corporation,
its Manager
By: _____________________________
Jennifer Litwak,
Executive Director
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3524731.1 A-1
EXHIBIT A
LEGAL DESCRIPTION
The land is situated in the State of California, Stanislaus County, City of Modesto, and is described as follows:
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B-1
EXHIBIT B
FINAL FINANCING PLAN
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B-2
EXHIBIT C
FEDERAL AWARD IDENTIFICATION INFORMATION
i) Participant’s name:
ii) Participant’s DUNS:
iii) Federal Award Identification Number (FAIN):
iv) Federal Award Date:
v) Subaward Period of Performance Start and End Date:
vi) Amount of Federal Funds Obligated by this action by the CITY entity to the Participant:
vii) Total Amount of Federal Funds Obligated to the Participant by the CITY including the current obligation:
viii) Total Amount of the Federal Award committed to the Participant by the CITY:
ix) Federal award project description, as required to be responsive to the Federal Funding Accountability and Transparency Act (FFATA):
x) Name of Federal awarding agency:
xi) Contact information for CITY official responsible for awarding funding:
xii) CFDA Number and Name:
xiii) Identification of whether the award is R&D:
xiv) Indirect cost rate for the Federal award (including if the de minimis rate is charged per 24 CFR 200.414 Indirect (F&A) costs):
5569905.1
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5570215.1 1
Recording requested by and when recorded
mail to:
City of Modesto
1010 10th Street
P. O. Box 642
Modesto, CA 95353
Attention: Community Development Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
APN:________ Space above this line for Recorder’s use.
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(HOME ARP Loan – Traveler’s Motel – 701 North 9th Street)
THIS HOME ARP DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “HOME Deed of Trust”) is entered into as of ______________, 2024, by Modesto Homekey LP, A California Limited Partnership (“Trustor”) to _________________ (“Trustee”), for the benefit of the City of Modesto, a California charter city (“Beneficiary”).
RECITALS
A. Trustor owns fee simple title to certain real property located at 710 North 9 th Street, Modesto, California, also known as Stanislaus county Assessor’s Parcel Number ______________, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Land”). Trustor intends to rehabilitate a former motel located on the Land, commonly known as Travelers Motel, to serve as permanent supportive housing development consisting of fifty-six (56) (the “Project”).
B. Beneficiary and Trustor have entered into that certain HOME ARP Loan Agreement dated as of ____________, 2024 (the “Home Loan Agreement”) pursuant to which Beneficiary will provide a loan to Trustor in the amount of up to Two Million Eight Hundred Thousand Dollars ($2,800,000) (“Loan”) for the purpose of partially financing the construction of the Project. Trustor has issued to Beneficiary a secured promissory note dated as of the date hereof (the “Note”) to evidence Trustor’s obligation to repay the Loan.
C. This Home Deed of Trust, the Home Loan Agreement, the Note, and the Home Regulatory Agreement (defined below) are collectively referred to herein as the “HOME Loan Documents.”
D. As a condition precedent to the making of the HOME Loan, Beneficiary has required that Trustor enter into this HOME Deed of Trust and grant to Trustee for the benefit of #21..
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Beneficiary, a lien and security interest in the Project and in Trustor’s fee simple interest in the Land to secure repayment of the Note and performance of Trustor’s obligations under the Loan Agreement and the other HOME Loan Documents.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows.
1. Grant in Trust. In consideration of the foregoing and for the purpose of securing payment and performance of the Secured Obligations defined and described in Section 2, Trustor hereby irrevocably and unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry and possession, all estate, right, title and interest which Trustor now has or may later acquire in and to the Land, and all of the following, whether presently owned or hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or constructed on the Land (“Improvements”);
b. All appurtenances, easements, rights of way, pipes, transmission lines or wires and other rights used in connection with the Land or the Improvements or as a means of access thereto, whether now or hereafter owned or constructed or placed upon or in the Land or Improvements and all existing and future privileges, rights, franchises and tenements of the Land, including all minerals, oils, gas and other commercially valuable substances which may be in, under or produced from any part of the Land, and all water rights, rights of way, gores or strips of land, and any land lying in the streets, ways, and alleys, open or proposed, in front of or adjoining the Land and Improvements (collectively, “Appurtenances”); c. All machinery, equipment, fixtures, goods and other personal property of the Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor and now or hereafter located at or used in connection with the Land, the Improvements or Appurtenances, and all improvements, restorations, replacements, repairs, additions or substitutions thereto (collectively, “Equipment”);
d. All existing and future leases, subleases, licenses, and other agreements relating to the use or occupancy of all or any portion of the Land or Improvements (collectively, “Leases”), all amendments, extensions, renewals or modifications thereof, and all rent, royalties, or other payments which may now or hereafter accrue or otherwise become payable thereunder to or for the benefit of Trustor, including but not limited to security deposits (collectively, “Rents”); e. All insurance proceeds and any other proceeds from the Land, Improvements, Appurtenances, Equipment, Leases, and Rents, including without limitation, all deposits made with or other security deposits given to utility companies, all claims or demands relating to insurance awards which the Trustor now has or may hereafter acquire, including all advance payments of insurance premiums made by Trustor, and all condemnation awards or payments now or later made in connection with any condemnation or eminent domain proceeding (“Proceeds”);
f. All revenues, income, rents, royalties, payments and profits produced by the Land, Improvements, Appurtenances and Equipment, whether now owned or hereafter acquired #21..
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by Trustor (“Gross Revenues”);
g. All architectural, structural and mechanical plans, specifications, design documents and studies produced in connection with development of the Land and construction of the Improvements (collectively, “Plans”); and
h. All interests and rights in any private or governmental grants, subsidies, loans or other financing provided in connection with development of the Land and construction of the Improvements (collectively, “Financing”).
All of the above-referenced interests of Trustor in the Land, Improvements, Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and Financing as hereby conveyed to Trustee or made subject to the security interest herein described are collectively referred to herein as the “Property.”
2. Obligations Secured. This HOME Deed of Trust is given for the purpose of securing payment and performance of the following (collectively, the “Secured Obligations”): (i) all present and future indebtedness evidenced by the Note and any amendment thereof, including principal, interest and all other amounts payable under the terms of the Note; (ii) all present and future obligations of Trustor to Beneficiary under the Loan Agreement, the HOME Regulatory and Declaration of Restrictive Covenants dated as of the date hereof, executed by and between City and Trustor and recorded substantially concurrently herewith (the “HOME Regulatory Agreement”) or the other HOME Loan Documents; (iii) all additional present and future obligations of Trustor to Beneficiary under any other agreement or instrument acknowledged by Trustor (whether existing now or in the future) which states that it is or such obligations are, secured by this HOME Deed of Trust; (iv) all obligations of Trustor to Beneficiary under all modifications, supplements, amendments, renewals, or extensions of any of the foregoing, whether evidenced by new or additional documents; and (v) reimbursement of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary’s interests under this HOME Deed of Trust or any other City Document as such may be modified, supplemented, amended, renewed or extended.
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits, revenue, income and proceeds of the Property. Upon the occurrence of any such Event of Default, Beneficiary may terminate such license without notice to or demand upon Trustor and without regard to the adequacy of any security for the indebtedness hereby secured, and may either in person, by agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property or any part thereof, and sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys’ fees, to any indebtedness secured hereby, and in such order as Beneficiary may determine. Beneficiary’s right to the rents, royalties, issues, profits, revenue, income and proceeds of the Property does not depend upon whether or not Beneficiary takes possession of the Property. The entering upon and taking possession of the Property, the collection of such rents, issues, and profits, and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. If an Event of Default occurs while Beneficiary is in possession of all or #21..
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part of the Property and/or is collecting and applying Rents as permitted under this HOME Deed of Trust, Beneficiary, Trustee and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this HOME Deed of Trust and at law or in equity, including the right to exercise the power of sale granted hereunder. Regardless of whether or not Beneficiary, in person or by agent, takes actual possession of the Land or the Improvements, Beneficiary shall not be deemed to be a “mortgagee in possession,” shall not be responsible for performing any obligation of Trustor under any Lease, shall not be liable in any manner for the Property, or the use, occupancy, enjoyment or operation of any part of it, and shall not be responsible for any waste committed by Trustor, lessees or any third parties, or for dangerous or defective condition of the Property or any negligence in the management, repair or control of the Property. Absent Beneficiary’s written consent, Trustor shall not accept prepayment of Rents for any rental period exceeding one month.
4. Security Agreement. The parties intend for this HOME Deed of Trust to create a lien on the Property, and an assignment of the Rents and Leases, all in favor of Beneficiary, subject to the rights of any beneficiaries under deeds of trust senior in priority to this HOME Deed of Trust (“Senior Deeds of Trust”). The parties acknowledge that some of the Property may be determined under applicable law to be personal property or fixtures. To the extent that any Property may be or be determined to be personal property, Trustor as debtor hereby grants to Beneficiary as secured party a security interest in all such Property to secure payment and performance of the Secured Obligations. This HOME Deed of Trust constitutes a security agreement under the California Uniform Commercial Code, as amended or recodified from time to time (the “UCC”), covering all such Property. To the extent such Property is not real property encumbered by the lien granted above, and is not absolutely assigned by the assignment set forth above, it is the intention of the parties that such Property shall constitute "proceeds, products, offspring, rents, or profits" (as defined in and for the purposes of Section 552(b) of the United States Bankruptcy Code, as such section may be modified or supplemented) of the Land and Improvements.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby authorizes Beneficiary, as secured party, to file such financing statements and amendments thereof and such continuation statements with respect thereto as Beneficiary may deem appropriate to perfect and preserve Beneficiary's security interest in the Property and Rents, without requiring any signature or further authorization by Trustor. If requested by Beneficiary, Trustor shall pay all fees and costs that Beneficiary may incur in filing such documents in public offices and in obtaining such record searches as Beneficiary may reasonably require. If any financing statement or other document is filed in the records normally pertaining to personal property, that filing shall not be construed as in any way derogating from or impairing this HOME Deed of Trust or the rights or obligations of the parties under it.
Everything used in connection with the Property and/or adapted for use therein and/or which is described or reflected in this HOME Deed of Trust is, and at all times and for all purposes and in all proceedings both legal or equitable shall be regarded as part of the estate encumbered by this HOME Deed of Trust irrespective of whether (i) any such item is physically attached to the Improvements, (ii) serial numbers are used for the better identification of certain equipment items capable of being thus identified in a recital contained herein or in any list filed with Beneficiary, or (iii) any such item is referred to or reflected in any such financing statement so #21..
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filed at any time. Similarly, the mention in any such financing statement of (1) rights in or to the proceeds of any fire and/or hazard insurance policy, or (2) any award in eminent domain proceedings for a taking or for lessening of value, or (3) Trustor's interest as lessor in any present or future lease or rights to income growing out of the use and/or occupancy of the property conveyed hereby, whether pursuant to lease or otherwise, shall not be construed as in any way altering any of the rights of Beneficiary as determined by this instrument or impugning the priority of Beneficiary’s lien granted hereby or by any other recorded document. Such mention in any financing statement is declared to be solely for the protection of Beneficiary in the event any court or judge shall at any time hold, with respect to the matters set forth in the foregoing clauses (1), (2), and (3), that notice of Beneficiary's priority of interest is required in order to be effective against a particular class of persons, including but not limited to the federal government and any subdivisions or entity of the federal government.
6. Fixture Filing. Subject to the rights of beneficiaries under Senior Deeds of Trust, this HOME Deed of Trust is intended to be and constitutes a fixture filing pursuant to the provisions of the UCC with respect to all of the Property constituting fixtures, is being recorded as a fixture financing statement and filing under the UCC, and covers property, goods and equipment which are or are to become fixtures related to the Land and the Improvements. Trustor covenants and agrees that this HOME Deed of Trust is to be filed in the real estate records of Stanislaus County and shall also operate from the date of such filing as a fixture filing in accordance with Section 9502 and other applicable provisions of the UCC. This HOME Deed of Trust shall also be effective as a financing statement covering minerals or the like (including oil and gas) and accounts subject to the UCC, as amended. Trustor shall be deemed to be the "debtor" and Beneficiary shall be deemed to be the "secured party" for all purposes under the UCC.
7. Trustor’s Representations, Warranties and Covenants; Rights and Duties of the Parties.
7.1 Representations and Warranties. Trustor represents and warrants that: (i) Trustor lawfully possesses and holds a fee simple interest in the Land and the Improvements, (ii) Trustor has good and marketable title to all of the Property; (iii) Trustor has the full and unlimited power, right and authority to encumber the Property and assign the Rents; (iv) subject only to encumbrances of record and senior liens permitted pursuant to the HOME Loan Documents or otherwise approved in writing by Beneficiary (“Permitted Encumbrances”), this HOME Deed of Trust creates a valid first lien on Trustor’s entire interest in the Property; (v) except with respect to Permitted Encumbrances, Trustor owns the Property free and clear of any deeds of trust, mortgages, security agreements, reservations of title or conditional sales contracts, (vi) there is no financing statement affecting the Property on file in any public office other than as disclosed in writing to Beneficiary; and (vii) the correct address of Trustor’s chief executive office is specified in Section 10.2.
Trustor further represents and warrants that this HOME Deed of Trust and all other documents delivered or to be delivered by Trustor in connection herewith: (a) have been duly authorized, executed, and delivered by Trustor; (b) are binding obligations of Trustor; and (c) do not violate the provisions of any agreement to which Trustor is a party or which affects the Property. Trustor further represents and warrants that there are no pending, or to Trustor’s knowledge, threatened actions or proceedings before any court or administrative agency which may adversely affect Trustor’s ownership of the Property. #21..
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7.2 Payment and Performance of Secured Obligations. Trustor shall promptly pay when due the principal and any interest due on the indebtedness evidenced by the Note, and shall promptly pay and perform all other obligations of Trustor arising in connection with the Secured Obligations or the HOME Loan Documents in accordance with the respective terms thereof.
7.3 Use of Loan Proceeds; Preservation and Maintenance of Property; Compliance with Laws. Trustor covenants that it shall use the proceeds of the Loan (the “Loan Proceeds”) solely for purposes authorized by the HOME Loan Documents. Trustor shall keep the Land and Improvements in good repair and condition, and from time to time shall make necessary repairs, renewals and replacements thereto so that the Property shall be preserved and maintained.
Trustor covenants to comply with all federal, state and local laws, regulations, ordinances and rules applicable to the Property and the Project, including without limitation all applicable requirements of state and local building codes and regulations, and all applicable statutes and regulations relating to accessibility for the disabled. Trustor shall not remove, demolish or materially alter any Improvement without Beneficiary’s consent, shall complete or restore promptly and in good and workmanlike manner any building, fixture or other improvement which may be constructed, damaged, or destroyed thereon, and shall pay when due all claims for labor performed and materials furnished therefor. Trustor shall use the Land and Improvements solely for purposes authorized by the HOME Loan Documents, shall not commit or allow waste of the Property, and shall not commit or allow any act upon or use of the Property which would violate any applicable law or order of any governmental authority, nor shall Trustor bring on or keep any article on the Property or cause or allow any condition to exist thereon which could invalidate or which would be prohibited by any insurance coverage required to be maintained on the Property pursuant to the HOME Loan Documents.
7.4 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be an Event of Default hereunder if any Transfer (as defined in the Loan Agreement) of the Property, any part thereof or any interest therein occurs in violation of the requirements of the HOME Loan Documents. If any such Transfer occurs in violation of such requirements, without limiting the provisions of Section 8 hereof, all obligations secured by this HOME Deed of Trust, irrespective of the maturity dates of such obligations, shall at the option of Beneficiary, and without demand, immediately become due and payable, subject to any applicable cure period.
7.5 Inspections; Books and Records. Beneficiary and its agents and representatives shall have the right at any reasonable time upon reasonable notice to enter upon the Land and inspect the Property to ensure compliance with the HOME Loan Documents. Trustor shall maintain complete and accurate books of account and other records (including copies of supporting bills and invoices) adequate to document the use of the Loan Proceeds and the operation of the Property, together with copies of all written contracts, Leases and other instruments which affect the Property. The books, records, contracts, Leases and other instruments shall be subject to examination and inspection at any reasonable time by Beneficiary following two business days prior notice.
7.6 Charges, Liens, Taxes and Assessments. Trustor shall pay before delinquency all taxes, levies, assessments and other charges affecting the Property that are (or if not paid may become) a lien on all or part of the Property. Trustor may, at Trustor’s expense, contest the validity or application of any tax, levy, assessment or charge affecting the Property by #21..
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appropriate legal proceedings promptly initiated and conducted in good faith and with due diligence, provided that (i) Beneficiary is reasonably satisfied that neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor shall have posted a bond or furnished other security as may reasonably be required from time to time by Beneficiary; and provided further that Trustor shall timely make any payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.
7.7 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances, whether released of record or not, which are discharged in whole or in part by Beneficiary in accordance with this HOME Deed of Trust.
7.8 Hazard, Liability and Workers’ Compensation Insurance. At all times during the term hereof, Trustor shall at Trustor’s expense, maintain insurance policies in accordance with the requirements set forth in the HOME Loan Documents. Trustor shall file with Beneficiary prior to the commencement of the term hereof, certificates (or such other proof as Beneficiary may reasonably require, including without limitation copies of the required insurance policies) evidencing each of the insurance policies and endorsements thereto as required pursuant to the HOME Loan Documents, and such certificates (or policies) shall provide that at least thirty (30) days’ prior written notice shall be provided to Beneficiary prior to the expiration, cancellation or change in coverage under each such policy. If any insurance policy required pursuant to the HOME Loan Documents is canceled or the coverage provided thereunder is reduced, Trustor shall, within ten (10) days after receipt of written notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with Beneficiary 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, Beneficiary may, without further notice and at its option, procure such insurance coverage at Trustor’s expense, and Trustor shall promptly reimburse Beneficiary for such expense upon receipt of billing from Beneficiary.
7.9 Condition of Property. Trustor represents and warrants that except as disclosed to Beneficiary in writing, as of the date hereof: (i) Trustor has not received any notice from any governmental authority of any threatened or pending zoning, building, fire, or health code violation or violation of other governmental regulations concerning the Land that has not previously been corrected, and no condition on the Land violates any health, safety, fire, environmental, sewage, building, or other federal, state or local law, ordinance or regulation; (ii) no contracts, licenses, leases or commitments regarding the maintenance or use of the Property or allowing any third party rights to use the Property are in force; (iii) there are no, to Trustor’s best knowledge, threatened or pending actions, suits, or administrative proceedings against or affecting the Property or any portion thereof or the interest of Trustor in the Property; (iv) there are no threatened or pending condemnation, eminent domain, or similar proceedings affecting the Land or any portion thereof; (v) Trustor has not received any notice from any insurer of defects of the Property which have not been corrected; (vi) there are no natural or artificial conditions upon the Land or any part thereof that could result in a material and adverse change in the condition of the Land; (vii) all information that Trustor has delivered to Beneficiary, either directly or through Trustor's agents, is accurate and complete; and (viii) Trustor or Trustor’s agents have disclosed to Beneficiary all material facts concerning the Property. #21..
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7.10 Hazardous Materials.
(a) Trustor shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and ground water conditions. Trustor shall not use, generate, manufacture, store or dispose of on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of "hazardous substances," hazardous wastes," "hazardous materials," or "toxic substances" under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials") except such of the foregoing as are used in construction of projects of the improvements on the Property or as may be customarily kept and used in and about residential property.
(b) Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Trustor or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, ("Hazardous Materials Law"); (2) all claims made or threatened by any third party against Trustor or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (1) and (2) above are hereinafter referred to as "Hazardous Materials Claims"); and (3) Trustor's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" (as defined in California Health and Safety Code Section 25117.4) under the provision of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. (c) Beneficiary has the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys' fees in connection therewith paid by Trustor. Trustor shall indemnify and hold harmless Beneficiary and its boardmembers, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Property including without limitation: (1) all foreseeable consequential damages; (2) the costs of any required or necessary repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (3) all reasonable costs and expenses incurred by Beneficiary in connection with clauses (1) and (2), including but not limited to reasonable attorneys' fees and consultant's fees. This indemnification applies whether or not any government agency has issued a cleanup order.
Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (i) losses attributable to diminution in the value of the Property; (ii) loss or restrictions or use of rentable space on the Property; (iii) adverse effect on the marketing of any rental space on the Property; and (iv) penalties and fines levied by, and #21..
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remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the property and surrounding properties). (d) Without Beneficiary's prior written consent, which may not be unreasonably withheld, Trustor may not take any remedial action in response to the presence of any Hazardous Materials on, under, or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in Beneficiary's reasonable judgment, impairs the value of the Beneficiary's security hereunder; provided, however, that Beneficiary's prior consent is not necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain Beneficiary's consent before taking such action, provided that in such event Trustor notifies Beneficiary as soon as practicable of any action so taken. Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if either: (1) a particular remedial action is ordered by a court of competent jurisdiction; (2) Trustor will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (3) Trustor establishes to the reasonable satisfaction of Beneficiary that there is no reasonable alternative to such remedial action which would result in less impairment of Beneficiary's security hereunder; or (4) the action has been agreed to by Beneficiary. (e) The Trustor hereby acknowledges and agrees that: (1) this Article is intended as the Beneficiary's written request for information (and the Trustor's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5; and (2) each representation and warranty in this Deed of Trust or any of the other Loan Documents (together with any indemnity applicable to a breach of any such representation and warranty) with respect to the environmental condition of the property is intended by the Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736.
(f) In the event that any portion of the Property is determined to be "environmentally impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the Beneficiary's or the Trustee's rights and remedies under this Deed of Trust, the Beneficiary may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to: (1) waive its lien on such environmentally impaired or affected portion of the Property; and (2) exercise (i) the rights and remedies of an unsecured creditor, including reduction of its claim against the Trustor to judgment, and (ii) any other rights and remedies permitted by law. For purposes of determining the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Trustor will be deemed to have willfully permitted or acquiesced in a release or threatened release of hazardous materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of hazardous materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and the Trustor knew or in the exercise of reasonable diligence should have known of the activity by such lessee, occupant, or user which caused or contributed to the #21..
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release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the Beneficiary in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the lesser of ten percent (10%) or the maximum rate permitted by law, until paid, will be added to the indebtedness secured by this Deed of Trust and will be due and payable to the Beneficiary upon its demand made at any time following the conclusion of such action.
7.11 Notice of Claims; Defense of Security; Reimbursement of Costs. a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within five (5) business days of the occurrence of such loss. Trustor shall ensure that Beneficiary shall receive timely notice of, and shall have a right to cure, any default under any other financing document or other lien affecting the Property and shall use best efforts to ensure that provisions mandating such notice and allowing such right to cure shall be included in all such documents. Within three business days of Trustor’s receipt thereof, Trustor shall provide Beneficiary with a copy of any notice of default Trustor receives in connection with any financing document secured by the Property or any part thereof.
b. Defense of Security. At Trustor's sole expense, Trustor shall protect, preserve and defend the Property and title to and right of possession of the Property, the security of this HOME Deed of Trust and the rights and powers of Beneficiary and Trustee created under it, against all adverse claims.
c. Compensation; Reimbursement of Costs. Trustor agrees to pay all reasonable fees, costs and expenses charged by Beneficiary or Trustee for any service that Beneficiary or Trustee may render in connection with this HOME Deed of Trust, including without limitation, fees and expenses related to provision of a statement of obligations or related to a reconveyance.
Trustor further agrees to pay or reimburse Beneficiary for all costs, expenses and other advances which may be incurred or made by Beneficiary or Trustee in any efforts to enforce any terms of this HOME Deed of Trust, including without limitation any rights or remedies afforded to Beneficiary or Trustee or both of them under Sections 7.17 and 8.2, whether or not any lawsuit is filed, or in defending any action or proceeding arising under or relating to this HOME Deed of Trust, including reasonable attorneys’ fees and other legal costs, costs of any disposition of the Property under the power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of title.
d. Notice of Changes. Trustor shall give Beneficiary prior written notice of any change in the address of Trustor and the location of any Property, including books and records pertaining to the Property.
7.12 Indemnification. Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and hold harmless the Indemnitees (as defined in Section 7.10) from and against all Claims arising directly or indirectly in any manner in connection with or as a #21..
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result of (a) any breach of Trustor’s covenants under any City Document, (b) any representation by Trustor in any City Document which proves to be false or misleading in any material respect when made, (c) injury or death to persons or damage to property or other loss occurring on the Land or in any improvement located thereon, whether caused by the negligence or any other act or omission of Trustor or any other person or by negligent, faulty, inadequate or defective design, building, construction or maintenance or any other condition or otherwise, (d) any claim, demand or cause of action, or any action or other proceeding, whether meritorious or not, brought or asserted against any Indemnitee which relates to or arises out of the Property, or any City Document or any transaction contemplated thereby, or any failure of Trustor to comply with all applicable state, federal and local laws and regulations applicable to the Property, provided that no Indemnitee shall be entitled to indemnification under this Section for matters caused by such Indemnitee's gross negligence or willful misconduct. The obligations of Trustor under this Section shall survive the repayment of the Loan and shall be secured by this HOME Deed of Trust. Notwithstanding any contrary provision contained herein, the obligations of Trustor under this Section shall survive any foreclosure proceeding, any foreclosure sale, any delivery of a deed in lieu of foreclosure, and any release or reconveyance of this HOME Deed of Trust.
7.13. Limitation of Liability. Beneficiary shall not be directly or indirectly liable to Trustor or any other person as a consequence of any of the following: (i) Beneficiary's exercise of or failure to exercise any rights, remedies or powers granted to Beneficiary in this HOME Deed of Trust; (ii) Beneficiary's failure or refusal to perform or discharge any obligation or liability of Trustor under any agreement related to the Property or under this HOME Deed of Trust; (iii) any waste committed by Trustor, the lessees of the Property or any third parties, or any dangerous or defective condition of the Property; or (iv) any loss sustained by Trustor or any third party resulting from any act or omission of Beneficiary in managing the Property after an Event of Default, unless the loss is caused by the willful misconduct, gross negligence, or bad faith of Beneficiary. Trustor hereby expressly waives and releases all liability of the types described in this Section 7.13, and agrees that Trustor shall assert no claim related to any of the foregoing against Beneficiary.
7.14 Insurance and Condemnation Proceeds. Subject to the rights of any senior lienholders, and notwithstanding anything contained in any of the HOME Loan Documents, unless Beneficiary and Trustor otherwise agree in writing, any award of damages in connection with any condemnation for public use of, or injury to the Property or any part thereof shall be applied to restoration or repair of the Property, provided Trustor determines that such restoration or repair is economically feasible and there is no default under any City Document that is continuing beyond the expiration of all applicable cure periods. If Trustor determines that such restoration or repair is not economically feasible or if a default exists after expiration of all applicable cure periods, the insurance proceeds shall be applied to the sums secured by this HOME Deed of Trust, with the excess, if any, paid to Trustor. In the event funds for such work are insufficient, Beneficiary may, in its sole discretion and subject to the approval of Beneficiary’s governing board, advance such additional funds as may be necessary to allow the Property to be repaired or restored, and may add the amount thereof to the principal balance of the Note. If the Property is abandoned by Trustor, or if Trustor fails to respond to Beneficiary within 30 days from the date notice is mailed by Beneficiary to Trustor that the insurance carrier offers to settle a claim for insurance benefits, Beneficiary is authorized to collect and apply the insurance proceeds at Beneficiary's option either to restoration or repair of the Property or to the #21..
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sums secured by this HOME Deed of Trust
7.15 Release, Extension, Modification. At any time and from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this HOME Deed of Trust and the Note for endorsement, Trustee may release or reconvey all or any part of the Property, consent to the making of any map or plat of the Land or part thereof, join in granting any easement or creating any restriction affecting the Property, or join in any extension agreement or other agreement affecting the lien or charge hereof. At any time and from time to time, without liability therefor and without notice, Beneficiary may (i) release any person liable for payment of any Secured Obligation, (ii) extend the time for payment or otherwise alter the terms of payment of any Secured Obligation; (iii) accept additional real or personal property of any kind as security for any Secured Obligation, or (iv) substitute or release any property securing the Secured Obligations.
7.16 Reconveyance. Upon written request of Beneficiary stating that all of the Secured Obligations have been satisfied in full, and upon surrender of this HOME Deed of Trust, and the Note, Trustee shall reconvey, without warranty, the Property or so much of it as is then held under this HOME Deed of Trust. The recitals in any reconveyance executed under this HOME Deed of Trust of any matters or facts shall be conclusive proof of the truthfulness thereof.
Trustor shall pay all fees of Trustee and all recordation fees related to such reconveyance.
7.17 Cure; Protection of Security. Beneficiary may cure any breach or default of Trustor, and if it chooses to do so in connection with any such cure, Beneficiary may also enter the Property and/or do any and all other things which it may in its reasonable discretion consider necessary and appropriate to protect the security of this HOME Deed of Trust. Such other things may include: appearing in and/or defending any action or proceeding which purports to affect the security of, or the rights or powers of Beneficiary or Trustee under, this HOME Deed of Trust; paying, purchasing, contesting or compromising any encumbrance, charge, lien or claim of lien which in Beneficiary’s sole judgment is or may be senior in priority to this HOME Deed of Trust, such judgment of Beneficiary to be conclusive as among Beneficiary, Trustee and Trustor; obtaining insurance and/or paying any premiums or charges for insurance required to be carried hereunder; otherwise caring for and protecting any and all of the Property; and/or employing counsel, accountants, contractors and other appropriate persons to assist Beneficiary.
Beneficiary may take any of the actions permitted under this Section 7.17 either with or without giving notice, except for notices required under applicable law. Any amounts disbursed by Beneficiary pursuant to this paragraph shall become additional indebtedness secured by this HOME Deed of Trust.
8. Default and Remedies.
8.1 Events of Default. Trustor acknowledges and agrees that an Event of Default shall occur under this HOME Deed of Trust upon the occurrence of any one or more of the following events:
a. Beneficiary’s declaration of an Event of Default under any City Document, subject to the expiration of any applicable cure period set forth in such document; #21..
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b. Trustor fails to perform any monetary obligation which arises under this HOME Deed of Trust, and does not cure that failure within ten (10) days following written notice from Beneficiary or Trustee;
c. If Trustor’s interest in the Property or any part thereof is voluntarily or involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in violation of Section 7.4 hereof or if any other Transfer occurs in violation of the Loan Agreement; d. Trustor fails to maintain the insurance coverage required under the HOME Loan Documents or otherwise fails to comply with the requirements of Section 7.8 hereof and Trustor fails to cure such default within the time specified in Section 7.8; e. Subject to Trustor’s right to contest such charges as provided herein, Trustor fails to pay taxes or assessments due on the Land or the Improvements or fails to pay any other charge that may result in a lien on the Land or the Improvements, and Trustor fails to cure such default within ten (10) days.
f. Any representation or warranty of Trustor contained in or made in connection with the execution and delivery of this HOME Deed of Trust or in any certificate or statement furnished pursuant hereto or in any other City Document proves to have been false or misleading in any material adverse respect when made;
g. If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Trustor or any general partner thereof (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Trustor or any general partner thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Trustor or any general partner thereof; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due. h. If a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against Trustor or any general partner thereof in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Trustor or any general partner thereof or substantially all of such entity’s assets, (iii) orders the liquidation of Trustor or any general partner thereof, or (iv) issues or levies a judgment, writ, warrant of attachment or similar process against the Property or the Project, and in each case the order or decree is not released, vacated, dismissed or fully bonded within 60 days after its issuance.
i. The holder of any other debt instrument secured by a mortgage or Deed of Trust on the Property or part thereof declares an event of default thereunder and exercises a right to declare all amounts due under that debt instrument immediately due and payable, subject to the expiration of any applicable cure period set forth in such holder’s documents; or j. Trustor fails to perform any obligation arising under this HOME Deed of Trust other than one enumerated in this Section 8.1, and does not cure that failure either within ten (10) days after written notice from Beneficiary or Trustee in the event of a monetary default, or within thirty (30) days after such written notice in the event of a nonmonetary default, #21..
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provided that in the case of a nonmonetary default that in Beneficiary’s reasonable judgment cannot reasonably be cured within thirty (30) days, an Event of Default shall not arise hereunder if Trustor commences to cure such default within thirty (30) days and thereafter prosecutes such cure to completion with due diligence and in good faith and in no event later than ninety (90) days, or such longer period as the City may approve, following receipt of notice of default.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth herein, at any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all of the rights and remedies described below, and may exercise any one or more or all, of the remedies set forth in any City Document, and any other remedy existing at law or in equity or by statute, subject to the nonrecourse provisions set forth in the Note. All of Beneficiary’s rights and remedies shall be cumulative, and the exercise of any one or more of them shall not constitute an election of remedies. Beneficiary shall be entitled to collect all expenses incurred in pursuing the remedies provided hereunder, including without limitation reasonable attorneys’ fees and costs.
a. Acceleration. Beneficiary may declare any or all of the Secured Obligations, including without limitation all sums payable under the Note and this HOME Deed of Trust, to be due and payable immediately.
b. Receiver. Beneficiary may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property. c. Entry. Beneficiary, in person, by agent or by court-appointed receiver, may enter, take possession of, manage and operate all or any part of the Property, and may also do any and all other things in connection with those actions that Beneficiary may in its sole discretion consider necessary and appropriate to protect the security of this HOME Deed of Trust. Such other things may include: taking and possessing copies of all of Trustor’s or the then owner's books and records concerning the Property; entering into, enforcing, modifying, or canceling Leases on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying Rents; collecting and receiving any payment of money owing to Trustor; completing any unfinished construction; and/or contracting for and making repairs and alterations. If Beneficiary so requests, Trustor shall assemble all of the Property that has been removed from the Land and make all of it available to Beneficiary at the site of the Land. Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney-infact to perform such acts and execute such documents as Beneficiary in its sole discretion may consider to be appropriate in connection with taking these measures, including endorsement of Trustor's name on any instruments.
d. UCC Remedies. Beneficiary may exercise any or all of the remedies granted to a secured party under the UCC.
e. Judicial Action. Beneficiary may bring an action in any court of competent jurisdiction to foreclose this HOME Deed of Trust in the manner provided by law for foreclosure of mortgages on real property and/or to obtain specific enforcement of any of the covenants or agreements of this HOME Deed of Trust.
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f. Power of Sale. Under the power of sale hereby granted, Beneficiary shall have the discretionary right to cause some or all of the Property, including any Property which constitutes personal property, to be sold or otherwise disposed of in any combination and in any manner permitted by applicable law.
Trustor’s limited partners (the “Limited Partners”) shall have the right to cure any default of Trustor hereunder upon the same terms and conditions afforded to Trustor. Provided that Beneficiary has been given written notice of the address for delivery of notices to the Limited Partners, Beneficiary shall provide any notice of default hereunder to the Limited Partners concurrently with the provision of such notice to Trustor, and as to the Limited Partners, the cure periods specified herein shall commence upon the date of delivery of such notice in accordance with Section 10.2.
8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby granted, Beneficiary shall execute or cause the Trustee to execute a written notice of such default and of its election to cause the Property to be sold to satisfy the obligations hereof, and shall cause such notice to be recorded in the office of the Recorder of each County wherein the Property or some part thereof is situated as required by law and this HOME Deed of Trust.
Prior to publication of the notice of sale, Beneficiary shall deliver to Trustee this HOME Deed of Trust and the Note or other evidence of indebtedness which is secured hereby, together with a written request for the Trustee to proceed with a sale of the Property, pursuant to the provisions of law and this HOME Deed of Trust.
Notice of sale having been given as then required by law, and not less than the time then required by law having elapsed after recordation of such notice of default, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in the notice of sale, either as a whole or in separate parcels and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may, and at Beneficiary’s request shall, postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement. Trustee shall deliver to the purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and of the trust hereby created, including reasonable attorneys’ fees in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums advanced or expended by Beneficiary or Trustee under the terms hereof and all outstanding sums then secured hereby, and the remainder, if any, to the person or persons legally entitled thereto.
Without limiting the generality of the foregoing, Trustor acknowledges and agrees that regardless of whether or not a default has occurred hereunder, if an Event of Default has occurred under the HOME Loan Documents, and if in connection with such Event of Default Beneficiary exercises its right to foreclose on the Property, then: (i) Beneficiary shall be entitled #21..
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to declare all amounts due under the Note immediately due and payable, and (ii) the proceeds of any sale of the Property in connection with such foreclosure shall be used to pay all Secured Obligations, including without limitation, the outstanding principal balance and all other amounts due under the Note.
At any foreclosure sale, any person, including Trustor, Trustee or Beneficiary, may bid for and acquire the Property or any part of it to the extent permitted by then applicable law.
Instead of paying cash for such property, Beneficiary may settle for the purchase price by crediting the sales price of the property against the following obligations:
a. First, the portion of the Secured Obligations attributable to the expenses of sale, costs of any action and any other sums for which Trustor is obligated to pay or reimburse Beneficiary or Trustee under Section 7.11(c); and
b. Second, the remaining balance of all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose.
8.4 Trustor’s Right to Reinstate. Notwithstanding Beneficiary’s acceleration of the sums secured by this HOME Deed of Trust, Trustor shall have the right to have any proceedings begun by Beneficiary to enforce this HOME Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this HOME Deed of Trust or at any time prior to entry of a judgment enforcing this HOME Deed of Trust if: (a) Trustor pays Beneficiary all sums which would be then due under the Loan Documents if the Secured Obligations had no acceleration provision; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this HOME Deed of Trust; (c) Trustor pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Trustor contained in this HOME Deed of Trust, and in enforcing Beneficiary’s and Trustee’s remedies as provided herein, including, but not limited to, reasonable attorney’s fees; and (d) Trustor takes such action as Beneficiary may reasonably require to assure that the lien of this HOME Deed of Trust, Beneficiary’s interest in the Property and Trustor’s obligation to pay the sums secured by this HOME Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this HOME Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred.
Nothing contained in Sections 8.3 and 8.4 is intended to expand upon or limit the rights of Trustor and Beneficiary under California law regarding Beneficiary’s exercise of the power of sale or Trustor’s reinstatement rights.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all statutes of limitations as a defense to any action or proceeding brought against Trustor by Beneficiary; (b) the benefit of all laws now existing or which may hereafter be enacted providing for any appraisement, valuation, stay, extension, redemption or moratorium; (c) all rights of marshalling in the event of foreclosure; and (d) all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this HOME Deed of Trust and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind.
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10. Miscellaneous Provisions.
10.1 Additional Provisions. The HOME Loan Documents grant further rights to Beneficiary and contain further agreements and affirmative and negative covenants by Trustor which apply to this HOME Deed of Trust and the Property.
10.2 Notices. Trustor requests that a copy of notice of default and notice of sale be mailed to Trustor at the address set forth below. That address is also the mailing address of Trustor as debtor under the UCC. Beneficiary’s address set forth below is the address for Beneficiary as secured party under the UCC. Except for any notice required under applicable law to be given in another manner, all notices to be sent pursuant to this HOME Deed of Trust shall be made in writing, and sent to the parties at their respective addresses specified below or to such other address as a party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
a. personal delivery, in which case notice shall be deemed delivered upon receipt;
b. certified or registered mail, return receipt requested, in which case notice shall be deemed delivered two (2) business days after deposit, postage prepaid in the United States mail;
c. nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) day after deposit with such courier; or d. facsimile transmission, in which case notice shall be deemed delivered on transmittal, provided that a transmission report is generated reflecting the accurate transmission thereof.
Beneficiary: City of Modesto
Community & Economic Development Department
1010 Tenth Street, Suite 4400
P O Box 642
Modesto, CA 95353
Attn: Community Development Manager
Trustor: Modesto Homekey LP
c/o UP Holdings California, LLC
6083 N. Figarden Drive, #656
Fresno, CA 93722
Attention: Cullen J. Davis.
Trustee: ____________
____________
____________
10.3 Binding on Successors. The terms, covenants and conditions of this HOME Deed #21..
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of Trust shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of the Trustor, Beneficiary and Trustee; provided however this Section 10.3 does not waive the provisions of Section 7.4.
10.4 Substitution of Trustee. Beneficiary may from time to time or at any time substitute a trustee or trustees to execute the trust hereby created, and when any such substitution has been filed for record in the office of the Recorder of Stanislaus County, it shall be conclusive evidence of the appointment of such trustee or trustees, and such new trustee or trustees shall succeed to all of the powers and duties of the Trustee named herein.
10.5 Attorneys’ Fees and Costs. In any action or proceeding to foreclose this HOME Deed of Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to Beneficiary and Trustee all costs of such action or proceeding, including reasonable attorneys’ fees.
10.6 Governing Law; Severability; Interpretation. This HOME Deed of Trust shall be governed by the laws of the State of California without regard to principles of conflicts of laws.
Trustor agrees that any controversy arising under or in relation to this HOME Deed of Trust shall be litigated exclusively in the jurisdiction where the Land is located (the “Property Jurisdiction”). The state and federal courts and authorities with jurisdiction in the Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in relation to the HOME Loan Documents. Trustor irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation, and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise. If any provision of this HOME Deed of Trust is held unenforceable or void, that provision shall be deemed severable from the remaining provisions, and shall in no way affect the validity of this HOME Deed of Trust. The captions used in this HOME Deed of Trust are for convenience only and are not intended to affect the interpretation or construction of the provisions herein contained. In this HOME Deed of Trust, whenever the context so requires, the singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any obligation of Trustor hereunder must be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or Trustee to take action on account of any default of Trustor. Consent by Beneficiary or Trustee to any act or omission by Trustor shall not be construed as a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary’s or Trustee’s consent to be obtained in any future or other instance. No amendment to or modification of this Deed of Trust shall be effective unless and until such amendment or modification is in writing, executed by Trustor and Beneficiary. Without limiting the generality of the foregoing, Beneficiary’s acceptance of payment of any sum secured hereby after its due date shall not constitute a waiver by Beneficiary of its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
10.8 Action By Beneficiary. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, or consent by the Beneficiary is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by Beneficiary’s Executive Director or by any person who shall have been designated by #21..
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Beneficiary’s Executive Director, without further approval by the governing board of Beneficiary. Beneficiary shall use reasonable best efforts to respond to requests for any such approval, notice, direction, or consent in a timely manner. In any approval, consent, or other determination by Beneficiary required hereunder, Beneficiary shall act reasonably and in good faith.
10.9 Joint and Several Liability. If Trustor consists of more than one person or entity, each shall be jointly and severally liable for the faithful performance of all of Trustor’s obligations under this Deed of Trust.
10.10 Time is of the Essence. Time is of the essence for each provision of this Deed of Trust.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above.
DEVELOPER:
MODESTO HOMEKEY LP,
a California limited partnership
By: UP MODESTO LLC,
a California limited liability company,
its General Partner
By: UP Holdings California, LLC,
an Illinois limited liability company registered
to do business in the State of California,
its Sole Member
By: ___________________________
Cullen J. Davis,
Manager
By: RHCB MODESTO LLC,
a California limited liability company,
its General Partner
By: RHCB Development LP,
a California limited partnership,
its Sole Member
By: WRBH LLC,
a California limited liability company,
its General Partner
By: _________________________
Wayne Rutledge,
Manager
By: HOM XXX LLC,
a Delaware limited liability company,
its Managing General Partner
By: Housing on Merit,
a California nonprofit public benefit corporation,
its Manager
By: _____________________________
Jennifer Litwak,
Executive Director
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Exhibit A
LAND
(Attach legal description.)
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ACKNOWLEDGMENT
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 )
County of Stanislaus )
On_____________ before me, _____________________________, Notary Public, , personally appeared, ___________________________________, who proved to me 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_____________________________
5570215.1
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5570191.1 1
SECURED PROMISSORY NOTE
(HOME ARP Loan – Traveler’s Motel – 701 North 9th Street) $2,800,000 Modesto, California
_________,2024
FOR VALUE RECEIVED, the undersigned Modesto Homekey LP, a California Limited Partnership ("Borrower"), hereby promises to pay to the order of the City of Modesto, a municipal corporation (“City” or "Holder"), the principal amount of up to Two Million Eight Hundred Thousand Dollars ($2,800,000), in lawful money of the United States of America, as may be advanced by City pursuant to the Loan Agreement referred to below, together with interest on the outstanding principal balance in accordance with the terms and conditions described herein.
1. Borrower's Obligation. This Secured Promissory Note (the "Note") evidences Borrower's obligation to repay City the principal amount of Two Million Eight Hundred Thousand Dollars ($2,800,000) or such other amount as may be advanced by the City pursuant to the HOME ARP Loan Agreement between Borrower and City dated as of ___________,2024, as such may be amended from time to time (the "Loan Agreement"), together with all interest on the outstanding principal balance in accordance with the terms and conditions described herein.
Borrower’s obligation under this Note are secured by that certain HOME Deed of Trust dated as of the date hereof executed by Borrower for the benefit of City and encumbering the property described therein. All capitalized terms used but not defined in this Note have the meanings set forth in the Loan Agreement.
2. Interest.
(a) Subject to the provisions of subsection (b) below, outstanding principle balance of the Loan shall bear interest at a simple rate of three percent (3%) per year. (b) In the event of a Default, interest on the HOME Loan shall begin to accrue, as of the date of Default, and continuing until such time as HOME Loan funds are repaid in full or the Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.
3. Term and Repayment Requirements. Borrower shall repay the amount due hereunder as follows:
(a) Annual Payments. Commencing on the later of: (i) April 1 following the Completion Date, or (ii) April 1, 2026, and on April 1 of each year thereafter, through the end of the HOME Term, the Developer shall make repayments of the HOME Loan in the amount of the City's Share of Residual Receipts. Payment of the City's Share of Residual Receipts shall be credited first against accrued interest and then against outstanding principal, and shall be accompanied by the Developer's report of Residual Receipts (including an independent auditor's report regarding the auditor's review of Annual Operating Expenses). The Developer shall #21..
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provide the City with any documentation reasonably requested by the City to substantiate the Developer's determination of Residual Receipts.
(b) Due in Full. Except as otherwise provided for in the Loan Agreement, the unpaid principal balance hereunder, together with accrued interest thereon, is due and payable no later than the date that is the fifteenth (15th) anniversary of the Completion Date (as defined in the Loan Agreement), but in no event later than December 31, 2041. (c) Right to Prepay. The Developer shall have the right to prepay the HOME Loan at any time without premium or penalty.
(d) Compliance with Loan Agreement. Except as otherwise provided herein, this Note is due and payable as set forth in Section 2.7 of the Loan Agreement.
4. No Assumption. This Note is not assumable by the successors and assigns of Borrower without the prior written consent of City, except as provided in the Loan Agreement.
5. Security. This Note, with interest, is secured by the HOME Deed of Trust. Upon execution, the HOME Deed of Trust will be recorded in the official records of Stanislaus County, California. Upon recordation of the HOME Deed of Trust, this Note will become nonrecourse to Borrower, pursuant to and except as provided in Section 2.9 of the Loan Agreement which section is hereby incorporated into this Note. The terms of the HOME Deed of Trust are hereby incorporated into this Note and made a part hereof.
6. Terms of Payment.
(a) Borrower shall make all payments due under this Note in currency of the United States of America to Holder at City of Modesto, 1010 Tenth Street, Suite 4400, Attn:
Community Development Manager, or to such other place as Holder may from time to time designate.
(b) All payments on this Note shall be without expense to City, and Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of City, incurred in connection with the payment of this Note and the release of any security hereof.
(c) Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest that exceeds the amount that City may legally charge under the laws of the State of California, then the amount by which payments exceed the lawful interest rate will automatically be deducted from the principal balance owing on this Note, so that in no event is Borrower obligated under the terms of this Note to pay any interest that would exceed the lawful rate. (d) The obligations of Borrower under this Note are absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.
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(e) Borrower may prepay the amounts due under this Note at any time without premium or penalty.
7. Event of Default; Acceleration.
(a) Upon the occurrence of an event of Default, the entire unpaid principal balance, together with all interest thereon, and together with all other sums then payable under this Note and the Deed of Trust will, at the option of City, become immediately due and payable without further demand.
(b) City's failure to exercise the remedy set forth in subsection 7(a) above or any other remedy provided by law upon the occurrence of an Event of Default does not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other Event of Default. The acceptance by City of any payment that is less than the total of all amounts due and payable at the time of such payment does not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior exercise of any such remedy or option, without the express consent of City, except as and to the extent otherwise provided by law.
8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.
Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that City may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower.
(b) Any extension of time for payment of this Note or any installment hereof made by agreement of City with any person now or hereafter liable for payment of this Note must not operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part.
(c) The obligations of the Borrower under this Note shall be absolute and the Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.
9. Miscellaneous Provisions.
(a) All notices to City or Borrower shall be given in the manner and at the addresses set forth in the Loan Agreement, or to such addresses as City and Borrower may therein designate.
(b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by City in the enforcement of the provisions of this Note, regardless of whether suit is filed to seek enforcement.
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(c) This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
This Note shall be governed by and construed in accordance with the laws of the State of California. If any provision of this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Time is of the essence with respect to every provision of this Note. (d) The times for the performance of any obligations hereunder are to be strictly construed, time being of the essence.
(e) The HOME Loan Documents, of which this Note is a part, contain the entire agreement between the parties as to the Loan. This Note may not be modified except upon the written consent of the parties.
[Signature Page Follows]
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Signature page
IN WITNESS WHEREOF, Borrower has executed this Promissory Note as of the day and year first above written.
BORROWER:
MODESTO HOMEKEY LP,
a California limited partnership
By: UP MODESTO LLC,
a California limited liability company,
its General Partner
By: UP Holdings California, LLC,
an Illinois limited liability company registered
to do business in the State of California,
its Sole Member
By: ___________________________
Cullen J. Davis,
Manager
By: RHCB MODESTO LLC,
a California limited liability company,
its General Partner
By: RHCB Development LP,
a California limited partnership,
its Sole Member
By: WRBH LLC,
a California limited liability company,
its General Partner
By: _________________________
Wayne Rutledge,
Manager
By: HOM XXX LLC,
a Delaware limited liability company,
its Managing General Partner
By: Housing on Merit,
a California nonprofit public benefit corporation,
its Manager
By: _____________________________
Jennifer Litwak,
Executive Director
5570191.1
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1 5570237.1
Recording requested by and when recorded
mail to:
City of Modesto
1010 10th Street
P. O. Box 642
Modesto, CA 95353
Attention: Community Development Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
APN:__________ Space above this line for Recorder’s use.
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(HOME ARP Loan – Traveler’s Motel – 701 North 9th Street) This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") is dated as of ________, 2024, and is between the City of Modesto, a California charter city (the "City"), and Modesto Homekey LP, A California Limited Partnership ("Developer").
RECITALS
A. Defined Terms used but not defined in these recitals are as defined in Article 1 of this Agreement.
B. Developer owns fee simple title to the land located at 710 North 9th Street, Modesto, California, also known as Stanislaus County Assessor’s Parcel Number _________________, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”). The Developer intends to rehabilitate a former motel located on the Property, commonly known as Travelers Motel, to serve as permanent supportive housing development consisting of fifty-six (56) units (the “Development”). All units in the Development will be studio apartment units, with sanitary and kitchen facilities.
C. Pursuant to that certain HOME ARP Loan Agreement by and between the City and Developer, dated as of ______________, as such may be amended from time to time (the "Loan Agreement"), the City has made a loan Two Million Eight Hundred Thousand Dollars ($2,800,000) of HOME Investment Partnerships Act funds pursuant to Section 3205 of the American Rescue Plan Act of 2021 (P.L. 117-2) ("HOME Funds") to fund costs associated with the construction and operation of the Development (the "Loan"). The City has the authority to loan the HOME Funds pursuant to 24 C.F.R. 92.205 and HUD Notice: CPD-21-10. #21..
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D. The HOME Loan is being made to increase the supply of affordable rental housing in the City of Modesto for persons who are Homeless or At Risk of Homelessness. Due to the assistance provided Developer pursuant to this Agreement, the City has classified eight (8) units in the Development as HOME-assisted units (each such unit a "HOME Unit"), which eight (8) Home Units are "floating" Units as defined in 24 C.F.R. 92.252(j). The HOME Units are required to be intermingled throughout the Development and of comparable quality to all other Units and must meet the Uniform Federal Accessibility Standards and Section 3.8(g) below. All of the HOME Units shall be occupied by individuals who are either (i) Homeless, or (ii) At Risk of Homelessness, as those terms are defined herein.
E. The City has agreed to make the Loan on the condition that the Property and Development be maintained and operated in accordance with restrictions concerning affordability, operation, and maintenance that are set forth in this Agreement and in the related documents evidencing the Loan.
F. In consideration of receipt of the Loan at an interest rate substantially below the market rate, Developer agrees to observe all the terms and conditions set forth below.
The parties therefore agree as follows.
ARTICLE 1
DEFINITIONS; EXHIBITS
1.1 Definitions. The following terms have the following meanings:
(a) "Actual Household Size" means the actual number of persons in the applicable household.
(b) "Adjusted Income" means the total anticipated annual income of all persons in the Tenant household as calculated pursuant to 24 C.F.R. 92.203(b)(1). Adjusted income includes income from all persons in the household, including nonrelated individuals. (c) "Agreement" has the meaning set forth in the first paragraph of this Agreement.
(d) “At Risk of Homelessness” shall have the same meaning as in 24 CFR
91.5, as amended from time to time.
(e) "City" means the City of Modesto, a California charter city. (f) "Completion Date" means the date that all of the following have occurred:
(1) a final certificate of occupancy, or equivalent document is issued by the City to certify completion of the construction of the Development; (2) the final disbursement of HOME funds for the Development has been made; (3) the City has verified the Development complies with the property standards set forth in 24 C.F.R. 92.251; and (4) all project completion information has been entered by the City into the Integrated Disbursement and Information System (IDIS). #21..
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(g) "Completion of Construction" means the date the construction of the Development is completed as evidenced by the issuance of a certificate of occupancy or equivalent document issued by the City, to certify completion of the construction of the Development.
(h) "Deed of Trust" means the Deed of Trust with Assignment of Rents, Security Agreement and Fixture Filing of even date herewith by and among Developer, as trustor, _______________, as trustee, and the City, as beneficiary, that will encumber the Property to secure repayment of the Loan and Developer's performance of the covenants set forth in the documents evidencing the Loan.
(i) "Development" has the meaning set forth in Paragraph B of the Recitals. (j) "High HOME Rent" means a monthly Rent amount not exceeding the maximum rent published by HUD for a Low Income Household for the applicable bedroom size as set forth in 24 C.F.R. 92.252(a).
(k) "HOME" means Home Investment Partnerships Act Program funded pursuant to the Cranston-Gonzales National Housing Act of 1990. (l) “HOME-assisted Units" means the eight (8) Units within the Development designated as assisted by the City pursuant to this Agreement. (m) "HOME Funds" has the meaning set forth in Paragraph C of the Recitals. (n) "HOME Regulations" means the regulations set forth in 24 C.F.R. Part 92 and HUD Notice: CPD-21-10.
(o) "HOME Term" means the period beginning on the date of this Agreement and ending on the fifteenth (15th) anniversary of the Completion Date. After the expiration of the HOME Term, for the purposes of the HOME Regulations, the Development will no longer be considered an existing HOME assisted rental project.
(p) “Homeless” shall have the same meaning as defined in 24 CFR 91.5, as amended from time to time.
(q) "HUD" means the United States Department of Housing and Urban Development.
(r) "Loan" has the meaning set forth in Paragraph C of the Recitals. (s) "Loan Agreement" has the meaning set forth in Paragraph C of the Recitals.
(t) "Loan Documents" means the documents executed by Developer evidencing the Loan including this Agreement, the Note, Deed of Trust, and the Loan Agreement.
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(u) "Low HOME Rent" means a monthly Rent amount not exceeding the maximum rent published by HUD for a Very Low Income Household for the applicable bedroom size as set forth in 24 C.F.R. 92.252(b).
(v) "Low Income Household" means a Tenant household with an Adjusted Income that does not exceed eighty percent (80%) of Median Income, with adjustments for smaller and larger families, except that HUD may establish income ceilings higher or lower than eighty percent (80%) of Median Income on the basis of HUD findings that such variations are necessary because of prevailing levels of construction costs or fair market rents, or unusually high or low family incomes, as such definition may be amended pursuant to 24 C.F.R. Section
92.2. An individual who is a student that is ineligible to receive Section 8 assistance under 24 C.F.R. 5.612, and thus ineligible to receive any type of HOME assistance, shall not qualify as a Low Income Household.
(w) "Low Income Units" means the Units which, pursuant to Section 2.1(b) below, are required to be occupied by Low Income Households. (x) "Management Agent" has the meaning set forth in Section 5.2. (y) "Median Income" means the median gross yearly income, adjusted for Actual Household Size as specified herein, in the County of Stanislaus, California, as published from time to time by HUD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide Developer with other income determinations that are reasonably similar with respect to methods of calculation to those previously published by HUD.
(z) "Note" means the promissory note, dated as of November __, 2018, that evidences Developer's obligation to repay the Loan, as such may be amended form time to time. (aa) "Property" has the meaning set forth in Paragraph B of the Recitals. (bb) "Rent" means the total monthly payments by the Tenant of a Unit for the following: (1) use and occupancy of the Unit and land and associated facilities, including parking; (2) any reasonable and customary separately charged fees or service charges assessed by Developer which are required of all Tenants which meet the requirements under 24 C.F.R.
92.214(b)(3), other than security deposits; (3) the City-approved utility allowance, calculated pursuant to 24 C.F.R. 92.252(d), for the cost of an adequate level of service for utilities paid by the Tenant, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service or cable TV; and (4) any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than Developer, and paid by the Tenant. In no event shall the Rent of a HOMEAssisted Unit exceed the amount approved by the City pursuant to Section 2.2 hereof. (cc) "Services Provider" has the meaning set forth in Section 5.6. #21..
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(dd) "Tenant" means the tenant household that occupies a Unit in the Development.
(ee) "Tenant Services" has the meaning set forth in Section 5.6. (ff) "Term" means the term of this Agreement which commences as of the date of this Agreement, and unless sooner terminated pursuant to the terms of this Agreement, expires on the date fifty-five (55) years from the Completion Date, but in no event later than December 31, 2078 (subject to extensions agreed upon by the Partners). (gg) "Unit(s)" means one (1) or more of the units in the Development. (hh) "Very Low Income Household" means a household with an Adjusted Income that does not exceed fifty percent (50%) of Median Income, with adjustments for smaller and larger families, except that HUD may establish income ceilings higher or lower than fifty percent (50%) of Median Income on the basis of HUD findings that such variations are necessary because of prevailing levels of construction costs or fair market rents, or unusually high or low family incomes, as set forth in 24 C.F.R. Section 92.2. An individual who is a student that is ineligible to receive Section 8 assistance under 24 C.F.R. 5.612, and thus ineligible to receive any type of HOME assistance, shall not qualify as a Very Low Income Household. (ii) “Very Low Income Units" means the Units which, pursuant to Section
2.1(a) below, are required to be occupied by Very Low Income Households.
1.2 Exhibits. The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A: Legal Description of the Property
Exhibit B: Schedule of HOME Rents
Exhibit C: Certificate of Continuing Program Compliance Exhibit D: Form of Certification of Tenant Eligibility
ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
(a) Home-Assisted Units. During the Term, Developer shall rent eight (8) of the units in the Development to, and ensure that these Units are occupied or, if vacant, available for occupancy, by individuals who are Homeless or At Risk of Homelessness (the “HOMEAssisted Units”). All of the HOME-Assisted Units are studios with sanitary and food preparation facilities.
(b) Floating Units. All of the HOME-Assisted Units are "floating" Units as defined in 24 C.F.R. 92.252(j).
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(c) Intermingling of Units. The HOME-Assisted Units are required to be intermingled throughout the Development and of comparable quality to all other Units. All Tenants must have equal access to and enjoyment of all common facilities in the Development. (d) Disabled Persons Occupancy. Developer shall cause the Development to be operated at all times in compliance with the provisions of: (1) the Unruh Act; (2) the California Fair Employment and Housing Act; (3) Section 504 of the Rehabilitation Act of 1973; (4) the United States Fair Housing Act, as amended; and (5) the Americans With Disabilities Act of 1990, which relate to disabled persons access. Developer shall indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to the City) the City, and its council members, board members, officers agents and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Developer's failure to comply with applicable legal requirements related to housing for persons with disabilities. The provisions of this subsection will survive expiration of the Term or other termination of this Agreement, and remain in full force and effect.
2.2 Allowable Rent.
(a) Home- Assisted Units. Subject to the provisions of Section 2.3 below, and in accordance with the requirements of Section VI.B.13 of HUD Notice: CPD-21-10, the Rent paid by Tenants of the Home Assisted Units may not exceed thirty percent (30%) of the adjusted income of a household whose annual income is equal to or less than fifty percent (50%) of the median income for the area, as determined by HUD, with adjustments for number of bedrooms in the unit. The City will notify the Developer of the rent limits annually. (b) No Additional Fees. Developer may not charge any fee, other than Rent, to any Tenant of the Units for any housing or other services provided by Developer.
2.3 Rent Increases; Increased Income of Tenants.
(a) Rent Increases. The proposed initial Rents and subsequent Rents for all HOME-Assisted Units shall be provided to the Developer by the City prior to initial or subsequent occupancy and prior to a rent increase, and shall be subject to the HOME Regulations. A schedule of current HOME rents is attached as Exhibit B. Developer may not impose any Rent increases on HOME-Assisted Units, without prior submission to the City of any proposed Rent increases and without written approval from the City of the proposed Rent increases. The Rent for such HOME-Assisted Units may be increased to the published HOME rents for the HOME-Assisted Units no more than once annually based upon the annual income certification described in Article 3 and in no event shall any increase exceed three (3%) percent.
Tenants shall be given at least sixty (60) days written notice prior to any Rent increase. The City will provide Developer with a schedule of maximum permissible Rents for the HOME-Assisted Units annually.
(b) Non-Qualifying Household. If, upon the annual certification of the income a Tenant of a HOME-Assisted Unit, Developer determines that the income of the Tenant is above fifty percent (50%) of median income for the area but at or below eighty percent (80%) of the median income for the area, the Tenant may be charged the High Home Rent specified in 24 #21..
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CFR 92.252(a). Such Tenants will still be considered qualified occupants pursuant to Section VI.B.17 of HUD Notice: CPD-21-10. If, upon the annual certification of the income a Tenant of a HOME-Assisted Unit, Developer determines that the income of a Tenant is above eighty percent (80%) of median income for the area, such Tenant shall be permitted to retain the Unit and upon expiration of the Tenant's lease and upon sixty (60) days written notice, the Rent must be increased to the lesser of one-twelfth (1/12th) of thirty percent (30%) of the actual Adjusted Income of the Tenant, or fair market rent (subject to 24 C.F.R. 92.252(i)(2) regarding low income housing tax credit requirements), and Developer shall rent the next available Unit to an individual who is Homeless or At Risk of Homelessness to comply with the requirements of Section 2.1 above, at a Rent not exceeding the maximum Rent specified in Section 2.2. Upon renting the next available Unit in accordance with Section 2.1, the Unit with the over-income Tenant will no longer be considered a HOME-Assisted Unit. (c) Termination of Occupancy. Upon termination of occupancy of a HOMEAssisted Unit by a Tenant, such Unit will be deemed to be continuously occupied by a household of the same income level as the initial income level of the vacating Tenant, until such Unit is reoccupied or another Unit is re-designated as a HOME-Assisted Unit, at which time categorization of the Unit will be established based on the occupancy requirements of Section
2.1. 2.4 Units Available to the Disabled. Developer shall construct the Development in compliance with all applicable federal and state disabled persons accessibility requirements including but not limited to the Federal Fair Housing Act; Section 504 of the Rehabilitation Act of 1973; Title II and/or Title III of the Americans with Disabilities Act; and Title 24 of the California Code of Regulations. In compliance with Section 504 of the Rehabilitation Act, a minimum of four (4) units in the Development shall be constructed to be readily accessible and usable by households with a mobility impaired member, and a minimum of two (2) units in the Development shall be constructed to be readily accessible and usable by households with a hearing or vision impaired member. Not less than thirty (30) days from the Completion Date, the Developer shall deliver to the City the certification required pursuant to Section 4.8(f) of the Loan Agreement
ARTICLE 3
INCOME CERTIFICATION AND REPORTING
3.1 Income Certification. Developer shall obtain, complete, and maintain on file, immediately prior to initial occupancy and annually thereafter, income certifications from each Tenant renting any of the HOME-Assisted Units. Developer shall cause each Tenant in a HOME-Assisted Unit to execute a Certification of Tenant Eligibility in the form attached as Exhibit D. Developer shall fill out the "Development Owner" portion of the Certification of Tenant Eligibility and provide it to the City along with supporting documentation collected by Developer. Developer shall make a good faith effort to verify the accuracy of the income provided by all applicants or all members of the occupying household, as the case may be, in the income certification. To verify the information Developer shall take two or more of the following steps: (a) obtain pay stubs for the most recent two months; (b) obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain an #21..
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income verification form from the applicant's current employer verifying employment for the last two months; (e) 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, verifying assistance for the last two months; or (f) if the applicant is unemployed and does not have a tax return, obtain another form of independent verification.
Copies of the Certifications of Tenant Eligibility and accompanying documentation must be submitted to the City annually for each of the HOME-Assisted Units.
3.2 Reporting Requirements. Developer shall submit to the City: (a) not later than the ninety (90th) day after the close of each calendar year, or such other date as may be requested by the City, a signed copy of the Certification of Program Compliance in the form attached as Exhibit C; and (b) within fifteen (15) days after receipt of a written request, any other information or completed forms requested by the City in order to comply with reporting requirements of HUD, the State of California, and the City; including but not limited to reports, records, surveys evidencing compliance with Section 5.4 of the Loan Agreement.
3.3 Additional Information. Developer shall provide any additional information reasonably requested by the City.
3.4 Records. Developer shall maintain complete, accurate and current records pertaining to the Development, and shall permit any duly authorized representative of the City to inspect records, including records pertaining to income and household size of Tenants and Rent charged to such Tenants. All Tenant lists, applications and waiting lists relating to the Development are to be at all times: (a) separate and identifiable from any other business of Developer; (b) maintained as required by the City, in a reasonable condition for proper audit; and (c) subject to examination during business hours by representatives of the City. Developer shall retain copies of all materials obtained or produced with respect to occupancy of the units for a period of at least five (5) years. The City may audit, examine and make copies of all books, records or other documents of Developer that pertain to the Development.
3.5 HOME Record Requirements. For the period of the HOME Term all records maintained by Developer pursuant to Sections 3.2 and 3.4 above are to be: (a) maintained in compliance with all applicable HUD records and accounting requirements; and (b) open to and available for inspection and copying by HUD and its authorized representatives at reasonable intervals during normal business hours; provided however, records pertaining to Tenant income verifications, Rents, and Development physical inspections must be kept for the most recent five (5) year period and are subject to HUD inspection for five (5) years after expiration of the HOME Term. Developer is subject to the audit requirements set forth in 24 CFR 92.505 during the HOME Term.
3.6 On-Site Inspection.
(a) The City may perform, or cause to be performed, an on-site inspection of the Development (including Units, subject to the rights of Tenants) at least one (1) time per year during all business hours and upon reasonable notice (if such inspection includes entering any occupied Unit, then twenty-four hours' notice shall be considered reasonable) to monitor compliance with this Agreement. Developer shall cooperate in making the Property available for #21..
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such inspection. Developer agrees and acknowledges that during the HOME Term, the City must conduct on-site inspections, consistent with the requirements of 24 C.F.R. 92.504(d), to determine compliance with the property standards set forth in 24 C.F.R. 92.251, at least once every three (3) years after the completion of construction of the Development. (b) After the completion of an inspection the City shall deliver a copy of the inspection report to the Developer. If the City determines as a result of such inspection that there are any life-threatening health and safety related deficiencies, Developer has the obligation to correct such deficiencies immediately, in accordance with 24 C.F.R. 92.251. If the City determines as a result of the inspection that there are any deficiencies for any of the inspectable items in the Development, the Developer shall correct such deficiencies within fifteen (15) days from the delivery of the inspection report or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Developer must begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible. In addition, the Developer acknowledges that the City may re-inspect the Development to verify all deficiencies have been corrected or rely on third party documentation submitted by the Developer for non-hazardous deficiencies in conformance with 24 C.F.R 92.504(d). (c) After expiration of the HOME Term and for the balance of the term of this Agreement, the City may perform on-site inspections as deemed reasonably necessary by the City.
ARTICLE 4
OPERATION OF THE DEVELOPMENT
4.1 Residential Use. Developer shall operate the Development for residential use only, and such ancillary uses permitted at the Development as approved by the City. No part of the Development may be operated as emergency shelters (including shelters for disaster victims) or facilities such as nursing homes, convalescent homes, hospitals, residential treatment facilities, correctional facilities, halfway houses, housing for students, or dormitories (including farmworker dormitories).
4.2 Compliance with Loan Documents and Program Requirements. Developer's actions with respect to the Property shall at all times be in full conformity with: (a) all requirements of the Loan Documents; (b) all requirements imposed on projects assisted with HOME Funds as contained in 42 U.S.C. Section 12701, et seq., 24 C.F.R. Part 92, and other implementing rules and regulations, as such may be amended or supplemented from time to time; and (c) any other regulatory requirements imposed on Developer.
4.3 Taxes and Assessments. Developer shall pay all real and personal property taxes, assessments and charges and all franchise, income, employment, old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that Developer may apply for a property tax exemption for the Property under any provision of law or contest in good faith, any such taxes, assessments, or charges. In the event Developer exercises its right to contest any tax, assessment, or charge against it, Developer, on final determination of the proceeding or contest, will immediately pay or #21..
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discharge any decision or judgment rendered against it, together with all costs, charges and interest.
4.4 Property Tax Exemption. Developer may apply for a property tax exemption for the Property under any provision of law, including but not limited to, California Revenue and Taxation Section 214(g).
ARTICLE 5
PROPERTY MANAGEMENT, MAINTENANCE AND TENANT SERVICES
5.1 Management Responsibilities. Developer is responsible for all management functions with respect to the Development, including without limitation the selection of Tenants in accordance with the requirements of 24 C.F.R. 92.253(d), certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The City has no responsibility for management of the Development. Developer shall retain a professional property management company approved by the City in its reasonable discretion to perform Developer's management duties hereunder.
5.2 Management Agent. Developer shall cause the Development to be managed by an experienced management agent reasonably acceptable to the City, with a demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing (the "Management Agent"). Developer shall also submit such additional information about the background, experience and financial condition of any proposed Management Agent as is reasonably necessary for the City to determine whether the proposed Management Agent meets the standard for a qualified Management Agent set forth above. If the proposed Management Agent meets the standard for a qualified Management Agent set forth above, the City shall approve the proposed Management Agent by notifying Developer in writing. Unless the proposed Management Agent is disapproved by the City within thirty (30) days, which disapproval is to state with reasonable specificity the basis for disapproval, it shall be deemed approved. Pursuant to California Code of Regulations title 25, Section 42 all projects with 16 or more units must have a resident manager living on the Property. The City will not consider maintenance personnel as a substitute or equivalent to a trained, in residence property manager.
5.3 Periodic Performance Review. The City reserves the right to conduct an annual (or more frequently, if deemed necessary by the City) review of the management practices and financial status of the Development. The purpose of each periodic review will be to enable the City to determine if the Development is being operated and managed in accordance with the requirements and standards of this Agreement. Developer shall cooperate with the City in such reviews.
5.4 Replacement of Management Agent.
(a) If, as a result of a periodic review, the City determines in its reasonable judgment that the Development is not being operated and managed in accordance with any of the #21..
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material requirements and standards of this Agreement, the City shall deliver notice to Developer of its intention to cause replacement of the Management Agent, including the reasons therefor.
Within fifteen (15) days after receipt by Developer of such written notice, the City staff and Developer shall meet in good faith to consider methods for improving the financial and operating status of the Development, including, without limitation, replacement of the Management Agent. (b) If, after such meeting, City staff recommends in writing the replacement of the Management Agent, Developer shall promptly dismiss the then current Management Agent, and must take steps to appoint as the Management Agent a person or entity meeting the standards for a management agent set forth in Section 5.2 above and approved by the City pursuant to Section 5.2 above, and shall promptly and as soon as practicable dismiss the thencurrent Management Agent. (c) Any contract for the operation or management of the Development entered into by Developer shall provide that the Management Agent may be dismissed and the contract terminated as set forth above. Failure to remove the Management Agent in accordance with the provisions of this Section constitutes a default under this Agreement, and the City may enforce this provision through legal proceedings as specified in Section 6.7 below.
5.5 Approval of Management Policies. Developer shall submit its written management policies with respect to the Development to the City for its review, and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this Agreement.
5.6 Tenant Services Provider.
(a) The Developer will be providing on-site services which Developer will make available to all tenants in the Development (the "Tenant Services"). The Developer shall submit to the City for approval the name and qualifications of any proposed services provider (the "Services Provider").
(b) The Services Provider shall have demonstrated the ability to provide Tenant Services in residential facilities like the Development in an effective manner. The Developer shall submit such additional information about the background, experience and financial condition of any proposed Services Provider as is reasonably necessary for the City to determine whether the proposed Services Provider meets the standards for a qualified Services Provider of developments of this type.
(c) If the proposed Services Provider meets the standard for a qualified Services Provider set forth above, the City shall approve the proposed Services Provider by notifying Developer in writing. Unless the proposed Services Provider is disapproved by the City within thirty (30) days, which disapproval is to state with reasonable specificity the basis for disapproval, it shall be deemed approved.
5.7 Property Maintenance.
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(a) Developer shall maintain, for the entire Term of this Agreement, all interior and exterior Improvements, including landscaping, on the Property in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials, and in a decent, safe, sanitary condition and in good repair pursuant to the Uniform Physical Conditions Standards established by HUD pursuant to 24 C.F.R. 5.703 and as required under 24 C.F.R. 92.251.
(b) The City places prime importance on quality maintenance to protect its investment and to ensure that all City and City-assisted affordable housing projects within the City are not allowed to deteriorate due to below-average maintenance. Normal wear and tear of the Development will be acceptable to the City assuming Developer agrees to provide all necessary improvements to assure the Development is maintained in good condition. Developer shall make all repairs and replacements necessary to keep the improvements in good condition and repair.
(c) In the event that Developer breaches any of the covenants contained in this section and such default continues for a period of five (5) days after written notice from the City with respect to graffiti, debris, waste material, and general maintenance or thirty (30) days after written notice from the City with respect to landscaping and building improvements, then the City, in addition to whatever other remedy it may have at law or in equity, has the right to enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, the City is permitted (but is not required) to enter upon the Property and to perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, which amount shall be promptly paid by Developer to the City upon demand.
5.8 Crime Prevention Program. During the Term of this Agreement Developer agrees to participate in the City of Modesto Police Department's Crime Free Multi-Housing program or similar program administered by the City (the "Crime Prevention Program"). The City's periodic review of the management of the Development pursuant to Section 5.3 will include an evaluation of Developer's participation in the Crime Prevention Program.
ARTICLE 6
MISCELLANEOUS
6.1 Lease Provisions. In leasing the Units within the Development, Developer shall use a form of written lease approved by the City. The lease must not contain any provision which is prohibited by 24 C.F.R. Section 92.253(b) and any amendments thereto. The form of lease must comply with all requirements of this Agreement, the other Loan Documents and must, among other matters:
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(a) Provide for termination of the lease for failure to: (1) provide any information required under this Agreement or reasonably requested by Developer to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy in the Development in accordance with the standards set forth in this Agreement; or (2) qualify as a Very Low Income Household or Low Income Household as a result of any material misrepresentation made by such Tenant with respect to the income computation. (b) Be for an initial term of not less than one (1) year, unless by mutual agreement between the Tenant and Developer, and provide for no increase in Rent during such year. After the initial year of tenancy, the lease may be month-to-month by mutual agreement of Developer and the Tenant. Notwithstanding the above, any rent increases are subject to the requirements of Section 2.3 (a) above.
(c) Include a provision which requires a Tenant who is residing in a Unit required to be accessible pursuant to Section 2.4 and who is not in need of an accessible Unit to move to a non-accessible Unit when a non-accessible Unit becomes available and another Tenant or prospective Tenant is in need of an accessible Unit.
6.2 Lease Termination. Any termination of a lease or refusal to renew a lease for a HOME-Assisted Unit within the Development must be in conformance with 24 C.F.R.
92.253(c), and any termination of a lease or refusal to renew a lease for any Unit within the Development must be preceded by not less than sixty (60) days written notice to the Tenant by Developer specifying the grounds for the action.
6.3 Nondiscrimination.
(a) All of the Units must be available for occupancy on a continuous basis to members of the general public who are income eligible. Except as provided in subsection (c) below, Developer may not give preference to any particular class or group of persons in renting or selling the Units, except to the extent that the Units are required to be leased to income eligible households pursuant to this Agreement. Developer herein covenants by and for Developer, assigns, and all persons claiming under or through Developer, that there exist no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, source of income (e.g., SSI), ancestry, disability, age, or military and veteran status, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor will Developer or any person claiming under or through Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of any Unit or in connection with the employment of persons for the construction, operation and management of any Unit. Developer shall comply with Executive Orders 11246, 11375, 11625, 12138, 12431, 12250, 13672, Title VII of the Civil Rights Act of 1964, the California Fair Housing and Employment Act and other applicable Federal, State and local laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.
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(b) Developer shall accept as Tenants, on the same basis as all other prospective Tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act, or its successor. Developer may not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective Tenants, nor will Developer apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of units by such prospective Tenants.
6.4 Term. The provisions of this Agreement apply to the Property for the entire Term even if the Loan is paid in full prior to the end of the Term. This Agreement binds any successor, heir or assign of Developer, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by City. City is making the Loan on the condition, and in consideration of, this provision, and would not do so otherwise. For the purposes of the HOME Regulations, the Development shall only be considered a HOME assisted project for the duration of the HOME Term, and nothing in this Agreement may be read to infer otherwise.
6.5 Notice of Expiration of Term.
(a) At least six (6) months prior to the expiration of the Term, Developer shall provide by first-class mail, postage prepaid, a notice to all Tenants containing: (1) the anticipated date of the expiration of the Term; (2) any anticipated increase in Rent upon the expiration of the Term; (3) a statement that a copy of such notice will be sent to the Count; and (4) a statement that a public hearing may be held by the City on the issue and that the Tenant will receive notice of the hearing at least fifteen (15) days in advance of any such hearing. Developer shall also file a copy of the above-described notice with the City Manager, or the Community Development Manager.
(b) In addition to the notice required above, Developer shall comply with the requirements set forth in California Government Code Sections 65863.10 and 65863.11. Such notice requirements include: (1) a twelve (12) month notice to existing tenants, prospective tenants and Affected Public Agencies (as defined in California Government Code Section 65863.10(a)) prior to the expiration of the Term; (2) a six (6) month notice requirement to existing tenants, prospective tenants and Affected Public Agencies prior to the expiration of the Term; (3) a notice of an offer to purchase the Development to "qualified entities" (as defined in California Government Code Section 65863.11(d)), if the Development is to be sold within five (5) years of the end of the Term; and (4) a notice of right of first refusal within the one hundred eighty (180) day period that qualified entities may purchase the Development. Failure to provide such notice shall automatically extend the Term of this Agreement until such notices may be timely provided.
6.6 Covenants to Run With the Land. The City and Developer hereby declare their express intent that the covenants and restrictions set forth in this Agreement run with the land, and bind all successors in title to the Property, provided, however, that on the expiration of the Term of this Agreement said covenants and restrictions expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof, is #21..
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to be held conclusively to have been executed, delivered and accepted subject to the covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the City expressly releases such conveyed portion of the Property from the requirements of this Agreement.
6.7 Enforcement by the City. If Developer fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the City has notified Developer in writing of the default or, if the default cannot be cured within thirty (30) days, fails to commence to cure within thirty (30) days and thereafter diligently pursue such cure and complete such cure within ninety (90) days, the City may enforce this Agreement by any or all of the following actions, or any other remedy provided by law:
(a) Calling the Loan. The City may declare an Event of Default under the Note, accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the Deed of Trust.
(b) Action to Compel Performance or for Damages. The City may bring an action at law or in equity to compel Developer's performance of its obligations under this Agreement, and may seek damages.
(c) Remedies Provided Under Loan Documents. The City may exercise any other remedy provided under the Loan Documents, including the Deed of Trust.
6.8 Attorneys' Fees and Costs. In any action brought to enforce this Agreement, the prevailing party must be entitled to all costs and expenses of suit, including reasonable attorneys' fees. This section must be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.
6.9 Recording and Filing. The City and Developer shall cause this Agreement, and all amendments and supplements to it, to be recorded in the Official Records of Stanislaus County.
6.10 Governing Law. This Agreement is governed by the laws of the State of California.
6.11 Waiver of Requirements. Any of the requirements of this Agreement may be expressly waived by the City in writing, but no waiver by the City of any requirement of this Agreement extends to or affects any other provision of this Agreement, and may not be deemed to do so.
6.12 Amendments. This Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title that is duly recorded in the official records of Stanislaus County.
6.13 Notices. Any notice requirement set forth herein will be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage prepaid, addressed to the appropriate party as follows:
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City: City of Modesto
1010 Tenth Street, Suite 4400
Modesto, CA 95354
Attn: Community Development Manager
Developer: Modesto Homekey LP
c/o UP Holdings California, LLC
6083 N. Figarden Drive, #656
Fresno, CA 93722
Attention: Cullen J. Davis
Such addresses may be changed by notice to the other party given in the same manner as provided above.
6.14 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this Agreement will not in any way be affected or impaired thereby.
6.15 Multiple Originals; Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.
6.16 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the Property, this Agreement will revive according to its original terms if, during the Term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former owner or those with whom the former owner has or had family or business ties, obtains an ownership interest in the Development or Property. [Remainder of Page Left Intentionally Blank]
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HOME Regulatory Agreement
Signature Page
3525800.1
WHEREAS, this Agreement has been entered into by the undersigned as of the date first written above.
CITY:
CITY OF MODESTO,
a California charter city
By:_________________________________
Joseph Lopez, City Manager
ATTEST:
________________________________
Diane Nayares-Perez, City Clerk
APPROVED AS TO FORM:
By:___________________________
Jose M. Sanchez, City Attorney
APPROVED AS TO RISK MANAGEMENT:
By: _______________________________
Risk Manager
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HOME Regulatory Agreement
Signature Page
3525800.1
BORROWER
MODESTO HOMEKEY LP,
a California limited partnership
By: UP MODESTO LLC,
a California limited liability company,
its General Partner
By: UP Holdings California, LLC,
an Illinois limited liability company registered
to do business in the State of California,
its Sole Member
By: ___________________________
Cullen J. Davis,
Manager
By: RHCB MODESTO LLC,
a California limited liability company,
its General Partner
By: RHCB Development LP,
a California limited partnership,
its Sole Member
By: WRBH LLC,
a California limited liability company,
its General Partner
By: _________________________
Wayne Rutledge,
Manager
By: HOM XXX LLC,
a Delaware limited liability company,
its Managing General Partner
By: Housing on Merit,
a California nonprofit public benefit corporation,
its Manager
By: _____________________________
Jennifer Litwak,
Executive Director
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. #21..
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A-1
EXHIBIT A
LEGAL DESCRIPTION
The land is situated in the City of Modesto, Stanislaus County, State of California, and is described as follows:
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B-1
EXHIBIT B
HOME PROGRAM RENTS
The attached HOME Rents reflect the current HOME rents as of the Effective Date. The initial Rents and subsequent Rents for all HOME-Assisted Units must be provided to the Developer by the City prior to occupancy and are subject to the HOME Regulations. The City will provide Developer with a schedule of maximum permissible Rents for the HOME-Assisted Units annually.
Studio (0-Bedroom)
Low HOME Rent Limit $
High HOME Rent Limit $
Fair Market Rent $
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C-1
EXHIBIT C
INITIAL/ANNUAL CERTIFICATE OF
PROGRAM COMPLIANCE
_________________("Owner"), hereby certifies that it will comply with all applicable, ongoing HOME Program requirements for the Property's Affordability Period which has been determined to be fifteen (15) years from the date of issuance of the Certificate of Occupancy for the abovedescribed Project. Affordability shall be maintained as follows:
Eight (8) units are being made available to individuals who are Homeless or At Risk of Homelessness.
Of these 18 units, all shall be studio units with sanitary and food preparation facilities.
During the term of the Regulatory Agreement the Owner will rent eight (8) HOME-Assisted Units, and ensure that these units are occupied or, if vacant, available for occupancy, by qualifying households. During the term of the Regulatory Agreement the Owner will rent all of the HOMEAssisted Units, and ensure that these units are occupied or, if vacant, available for occupancy, individuals who are Homeless or At Risk of Homelessness, subject to the provisions in Section 2.3 of the Regulatory Agreement.
Property owners and managers have participated in the Modesto Police Department's Crime Free Multi-Housing Unit Program, wherein specialized training and other resources are provided to multi-family property owners and managers to reduce the potential for onsite criminal activity.
Completion of the Department's four (4) training phases, a Final Certification has been achieved and will be maintained by the owner/representative and/or regional/onsite property manager.
Owner is maintaining and attaching the following records and reports in order to assist the City in meeting its record keeping and reporting requirements under the HOME Program and City Regulatory Agreement:
1. Files on the annual review and certification of tenant income;
2. All information on the qualification of affordable rents;
3. Terms and conditions of all signed leases between Tenants and Owner;
4. All other reports and records requested by City pursuant to the Loan Documents.
Dated: _______________
OWNER:
By: ________________________________
Title: ________________________________
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C-2
1669\01\2466400.1
CERTIFICATE OF
CONTINUING PROGRAM COMPLIANCE
The following information is being provided by ______________ (the "Owner") to the City of Modesto, (the "City"), pursuant to that certain HOME Loan Agreement dated as of _________, 2021, as such may be amended from time to time, and the Regulatory Agreement dated as of ________. 2021, as such may be amended from time to time, with respect to the Development:
(A) Owner will comply with all applicable, ongoing HOME Program requirements for the HOME Term from the date of issuance of the Certificate of Occupancy for the abovedescribed project, and the ongoing City imposed affordability requirements for balance of the Property's Affordability Period which has been determined to be fifteen (15) years from the date of issuance of the Certificate of Occupancy for the above-described project. (B) The total number of residential units which are completed and available for occupancy is .
The total number of such units occupied is .
(C) The following residential units (identified by unit number) have been designated HOME-Assisted Units, as described in the Regulatory Agreement (for a total of );
(D) The following residential units which are included in (B) above, have been designated as HOME-Assisted Units since , 20____, the date on which the last "Certificate of Continuing Program Compliance" was filed with the City by ; Unit Number Previous Designation of
Unit (if any) Replacing Unit Number
If a floating unit was substituted, please attach any information on unit substitutions and filling of vacancies to evidence maintenance of required unit mix and income targeting.) (E) The following residential units are considered to be occupied by Low or Very Low Income Households and Low Income Households based on the information set forth below:
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C-3
1669\01\2466400.1
Number
of Unit
Date of
Unit
No.
Name of Tenant
Persons
Residing
in Unit
Total
Adjusted
Gross
Income
Initial
Occupancy
Monthly
Rental
Amount
Attach a Separate Sheet if Necessary
(F) In renting the residential units in the Development, Owner has not given preference to any particular group or class of persons not allowed under the Regulatory Agreement (except for persons who qualify as qualified Low or Very Low Income Households and Low Income Households). All of the residential units in the Development have been rented pursuant to a written lease, and the term of each lease is at least twelve months. A copy of the form lease for HOME-Assisted Units is attached. (G) Property owners and managers have participated in the Modesto Police Department's Crime Free Multi-Housing Unit Program, wherein specialized training and other resources are provided to multi-family property owners and managers to reduce the potential for onsite criminal activity. Completion of the Department's three (3) training phases, a Final Certification (Phase V) has been achieved and is being maintained by the owner/representative and/or regional/-onsite property manager. (H) Each building in the Development and all HOME-Assisted Units in the Development are suitable for occupancy and comply with all applicable State and local health, safety and other applicable codes, ordinances, and requirements and the ongoing property standards, as specified in Section of the 5.7 of the Regulatory Agreement. (I) The information provided in this "Certificate of Continuing Program Compliance" is accurate and complete, and no matters have come to the attention of Owner which would indicate that any of the information provided herein, or in any "Certification of Tenant Eligibility" obtained from the tenants named herein, is inaccurate or incomplete in any respect.
[Signature Page Follows.]
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C-4
1669\01\2466400.1
IN WITNESS WHEREOF, I have hereunto affixed my signature, on behalf of Owner, on this day of , 20 .
OWNER:
By: ________________________________
Title: ________________________________
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EXHIBIT D
FORM OF CERTIFICATION OF TENANT ELIGIBILITY
Rental Unit
Street Address Unit No
City Zip Code
I/We, the undersigned, being first duly sworn, state that I/we have read and answered fully and truthfully each of the following questions for all persons who are to occupy the unit in the above Development for which application is made, all of whom are listed below:
1. 2. 3. 4. 5.
Name of Members
in the Household
Relationship to
Head of Household Age Ethnicity Place of Employment
Ethnicity: ❑ White ❑ Black or African American ❑ Asian ❑ Asian & White ❑ American Indian or Alaska Native
❑ Native Hawaiian or Other Pacific Islander ❑ American Indian or Alaska Native & White ❑ Black or African American & White
❑ American Indian or Alaska Native & Black or African American ❑ Other Multi Race ❑ Hispanic
Date of Occupancy of Rental Unit by Tenant:
Date of Lease Signed for Rental Unit by Tenant:
Amount of Rent Paid Per Month:
Certification Date (Earlier of Date of Occupancy or Date Lease signed):
6. Anticipated Annual Income. The anticipated total annual income from all sources of each person listed in Section 1 for the twelve (12) month period beginning on the Certification Date listed above, including income described in (a) below, but excluding all income described in (b) below, is $ .
(a) The amount set forth above includes all of the following income (unless such income is described in (b) below): all wages and salaries, overtime pay, commissions, fees, tips and bonuses before payroll deductions; net income from the operation of a business or profession or from the rental of real or personal property (without deducting expenditures for business expansion or amortization of #21..
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capital indebtedness or any allowance for depreciation of capital assets); interest and dividends (including income from assets as set forth in item 7(b) below); full amount of periodic payments received from Social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts; payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay; the maximum amount of public assistance available to the above persons; periodic and determinable allowances, such as alimony and child support payments and regular contributions and gifts received from persons not residing in the dwelling; all regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is the head of the household or spouse; and any earned income tax credit to the extent it exceeds income tax liability. (b) The following income is excluded from the amount set forth above: casual, sporadic or irregular gifts; amounts that are specifically for or in reimbursement of medical expenses; lump sum additions to family assets, such as inheritances, insurance payment (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; amounts of educational scholarships paid directly to student or educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment, but in either case only to the extent used for such purposes; hazardous duty pay to a member of the household in the armed forces who is away from home and exposed to hostile fire; relocation payments under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; income from employment of children (including foster children) under the age of eighteen (18) years; foster child care payments; the value of coupon allotments under the Food Stamp Act of 1977; payments to volunteers under the Domestic Volunteer Service Act of 1973; payments received under the Alaska Native Claims Settlement Act; income derived from certain submarginal land of the United States that is held in trust for certain Indian tribes; payments on allowances made under the Department of Health and Human Services' Low-Income Home Energy Assistance Program; and payments received from the Job Partnership Training Act.
7. Net Family Assets. If any of the persons described in item 1 above (or any person whose income or contributions were included in item 6) has any savings, stocks, bonds, equity in real property or other form of capital investment (excluding interests in Indian trust lands), provide:
(a) the total value of all such assets owned by all such persons: $ , and
(b) the amount of income expected to be derived from such assets in the twelve (12) month period commencing this date: $ .
8. Students
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(a) Will any of the persons listed in item 1 above be or have they been full-time students during five (5) calendar months of this calendar year at an educational institution (other than a correspondence school) with regular faculty and students? Yes No
(b) (Complete only if the answer to Question 8(a) is "Yes"). Is any such person (other than nonresident aliens) married and eligible to file a joint federal income tax return, a veteran of the U.S. military?
Yes No
The above information is full, true, and complete to the best of my knowledge. I have no objections to inquiries being made for the purpose of verifying the statements made herein.
Signature: Date
(Signature Must be Notarized)
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FOR COMPLETION BY DEVELOPMENT OWNER ONLY:
A. Calculation of eligible income:
(1) Enter amount entered for entire household in 6 above: $ (2) If the amount entered in 7(a) above is greater than $5,000, enter $ (i) the product of the amount entered in 7(a) above multiplied by the current passbook savings rate as determined by HUD: $ (ii) the amount entered in 7(b) above: $
(iii) enter the greater of line (i) or line (ii): $
(3) TOTAL ELIGIBLE INCOME (Line A(1) plus line A(2)(iii)): $ B. Enter number of family members listed in item 1 above:
C. The amount entered in A(3) (Total Eligible Income) is: $ Less than $__________ of median income for the area in which the Development is located, which is the maximum income at which a household may be determined to be a qualifying tenant as that term is defined in the Agreement.
More than the above-mentioned amount.
D. Number of units assigned:
E. Monthly rent: $
F. This unit (was/was not) last occupied for a period of thirty-one (31) consecutive days by a person or persons whose adjusted income, as certified in the above manner, was equal to or less than the amount at which a person would have qualified as a qualifying tenant under the terms of the Agreement.
G. Applicant:
Qualifies as a qualifying tenant.
Does not qualify as a qualifying tenant.
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352473.1
HOME LOAN AGREEMENT
BY AND BETWEEN
THE CITY OF MODESTO,
a California Charter City
AND
Modesto Homekey. LP,
a California limited partnership
(710 N 9th Street)
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- 1675 -
TABLE OF CONTENTS
Page
3524731.1
i
ARTICLE 1 DEFINITIONS AND EXHIBITS 2
Section 1.1 Definitions....................................................................................................2 Section 1.2 Exhibits. .......................................................................................................8 ARTICLE 2 LOAN PROVISIONS 8
Section 2.1 Loan. ............................................................................................................8 Section 2.2 Interest..........................................................................................................9 Section 2.3 Use of HOME Loan Funds. .........................................................................9 Section 2.4 Security. .......................................................................................................9 Section 2.5 Subordination...............................................................................................9 Section 2.6 Conditions Precedent to Disbursement of the Construction Component. ..............................................................................................10 Section 2.7 Conditions Precedent to Disbursement of Retention Component. ............12 Section 2.8 Repayment of the HOME Loan. ................................................................13 Section 2.9 Reports and Accounting of Residual Receipts...........................................15 Section 2.10 Nonrecourse. ..............................................................................................16 ARTICLE 3 PREDEVELOPMENT REQUIREMENTS 17
Section 3.1 Predevelopment Requirements. .................................................................17 Section 3.2 Final Financing Plan. .................................................................................17 Section 3.3 Relocation Plan. .........................................................................................18 Section 3.4 Plans and Specifications. ...........................................................................18 Section 3.5 Applicable Governmental Approvals. .......................................................19 Section 3.6 Other Financing. ........................................................................................19 Section 3.7 Management Plan.......................................................................................19 Section 3.8 Construction Contract. ...............................................................................20 Section 3.9 Building Permit Issued...............................................................................20 Section 3.10 Insurance....................................................................................................20 Section 3.11 Performance and Payment Bonds. .............................................................21 Section 3.12 Evidence of Availability of Funds. ............................................................21 ARTICLE 4 CONSTRUCTION OF THE AFFORDABLE DEVELOPMENT 22 Section 4.1 Commencement of Construction Work. ....................................................22 Section 4.2 Completion of Construction Work.............................................................22 Section 4.3 Performance of Work Pursuant to Plans and Laws; Prevailing Wages. ......................................................................................................22 Section 4.4 Equal Opportunity......................................................................................24 Section 4.5 Minority and Women-Owned Contractors. ...............................................24 Section 4.6 Progress Reports; Amended Final Financing Plan. ...................................24 Section 4.7 Construction Responsibilities. ...................................................................25 Section 4.8 Mechanics Liens, Stop Notices, and Notices of Completion.....................25 Section 4.9 Inspections. ................................................................................................26 Section 4.10 Developer Fee. ...........................................................................................26 #21..
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TABLE OF CONTENTS
(continued)
Page
ii
Section 4.11 Marketing Plan...........................................................................................26 ARTICLE 5 LOAN REQUIREMENTS 27
Section 5.1 Match Requirement....................................................................................27 Section 5.2 Financial Accountings and Post-Completion Audits.................................27 Section 5.3 Annual Operating Budget. .........................................................................27 Section 5.4 Information. ...............................................................................................28 Section 5.5 Records. .....................................................................................................28 Section 5.6 Audits.........................................................................................................29 Section 5.7 HOME Requirements.................................................................................30 Section 5.8 Hazardous Materials. .................................................................................34 Section 5.9 Maintenance and Damage..........................................................................36 Section 5.10 Fees and Taxes...........................................................................................37 Section 5.11 Notice of Litigation....................................................................................37 Section 5.12 Operation of Development as Affordable Housing. ..................................37 Section 5.13 Non-Discrimination. ..................................................................................38 Section 5.14 Insurance Requirements.............................................................................38 Section 5.15 Anti-Lobbying Certification. .....................................................................40 Section 5.16 Purpose of Restriction on Transfer. ...........................................................40 Section 5.17 Prohibited Transfers...................................................................................41 Section 5.18 Permitted Transfers Without Prior City Approval.....................................41 Section 5.19 Permitted Transfers With Prior City Approval..........................................41 Section 5.20 Allowable Preferences. ..............................................................................42 Section 5.21 Affordability and Project Monitoring. .......................................................42 ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE
DEVELOPER 43
Section 6.1 Representations and Warranties.................................................................43 ARTICLE 7 TERMINATION, DEFAULT AND REMEDIES 45
Section 7.1 Events of Default. ......................................................................................45 Section 7.2 Remedies....................................................................................................47 Section 7.3 Right of Contest. ........................................................................................48 Section 7.4 Remedies Cumulative. ...............................................................................48 Section 7.5 Survival......................................................................................................48 ARTICLE 8 GENERAL PROVISIONS 48
Section 8.1 Relationship of Parties................................................................................48 Section 8.2 No Claims. .................................................................................................49 Section 8.3 Amendments. .............................................................................................49 Section 8.4 Entire Understanding of the Parties. ..........................................................49 Section 8.5 Indemnification..........................................................................................49 Section 8.6 Non-Liability of City Officials, Employees and Agents. ..........................49 #21..
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TABLE OF CONTENTS
(continued)
Page
iii
Section 8.7 No Third Party Beneficiaries. ....................................................................50 Section 8.8 Action by the City......................................................................................50 Section 8.9 Waivers. .....................................................................................................50 Section 8.10 Notices, Demands and Communications. ..................................................50 Section 8.11 Applicable Law and Venue........................................................................51 Section 8.12 Parties Bound.............................................................................................51 Section 8.13 Attorneys' Fees...........................................................................................51 Section 8.14 Severability. ...............................................................................................51 Section 8.15 Extensions..................................................................................................51 Section 8.16 Conflict of Interest. ....................................................................................52 Section 8.17 Title of Parts and Sections. ........................................................................52 Section 8.18 Multiple Originals; Counterpart.................................................................53 Section 8.19 City Approval.............................................................................................53 Section 8.20 Operating Memoranda. ..............................................................................53 Section 8.21 Assignment by City. ..................................................................................53
EXHIBITS
Exhibit A: Legal Description
Exhibit B: Final Financing Plan
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3524731.1
1 HOME LOAN AGREEMENT
(HOME Loan- 710 N 9th Street)
This HOME Loan Agreement (the "Agreement"), effective _______________________, 2022 (the "Effective Date"), is entered into by and between the City of Modesto, a California charter city (the "City"), and the Modesto Homekey LP, a California limited partnership (the "Developer"), with reference to the following facts, purposes and intentions.
RECITALS
A. These Recitals refer to and utilize certain capitalized terms which are defined in Article 1 of this Agreement. The Parties intend to refer to those definitions in connection with the use of capitalized terms in these Recitals.
B. The City has received HOME Investment Partnership Act funds from the United States Department of Housing and Urban Development ("HUD") pursuant to the CranstonGonzales National Housing Act of 1990 ("HOME Funds"). The HOME funds must be used by the City in accordance with 24. C.F.R. Part 92.
C. Developer owns that certain real property located on 710 N 9th Street, in the City of Modesto, California, also known as Stanislaus County Assessor Parcel Number 015-002-004, as further described in Exhibit A, attached hereto and incorporated herein (the “Property”).
D. Developer intents to rehabilitate and convert an existing motel into 56 residential units on the Property (the “Project”) to serve as permanent supportive housing for individuals experiencing Homelessness.
E. All units in the Project, except for one manager’s unit are proposed to serve households with incomes that are between fifty percent (30%) and eighty percent (80%) of the Area Median Income for Stanislaus County. four of these units will be designated as HOME funded units.
F. The Developer has requested, and the City has agreed to provide the Developer with a loan of Six Hundred and Seventy-Three Thousand and Seven Hundred and Twelve Dollars ($673,712) in HOME Investment Partnership Funds (the “Loan”). The Loan shall be for a term of fifty-five (55) years, accruing one percent (3%) interest.
C. The HOME Loan is being made to increase the supply of affordable rental housing in the City of Modesto. Due to the assistance provided Developer pursuant to this Agreement, the City has classified four (4) studio units HOME-assisted units (each such unit a "HOME-Assisted Unit"), which Units are "floating" Units as defined in 24 C.F.R. 92.252(j).
The HOME-Assisted Units are required to be intermingled throughout the Development and of comparable quality to all other Units and must meet the Uniform Federal Accessibility Standards and Section 3.8(g) below.
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3524731.1
2 D. As a condition to providing the HOME Loan to the Developer, the City is imposing occupancy and affordability restrictions on the Development, ensuring that specified units therein remain affordable to specified income eligible households for a specified period as set forth in the HOME Regulatory Agreement.
E. In accordance with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) ("NEPA"), the City has completed and approved all applicable environmental review for the activities proposed to be undertaken under this Agreement.
F. In accordance with the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) ("CEQA"), the City has completed and approved all applicable environmental review for the activities proposed to be undertaken under this Agreement.
NOW, THEREFORE, in consideration of the recitals hereof and the mutual promises and covenants set forth in this Agreement, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
The following capitalized terms have the meanings set forth in this Section 1.1 wherever used in this Agreement, unless otherwise provided:
(a) "Agreement" means this HOME Loan Agreement.
(b) "Annual Operating Expenses" with respect to a particular calendar year means the following costs reasonably and actually incurred for operation and maintenance of the Development to the extent that they are consistent with an annual independent audit performed by a certified public accountant using generally accepted accounting principles:
(1) Property taxes and assessments imposed on the Development; (2) Debt service currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the Development) on loans associated with the development of the Development and approved by the City in the Final Financing Plan; (3) Property management fees and reimbursements, not to exceed fees and reimbursements which are standard in the industry, and pursuant to a management contract approved by the City;
(4) Premiums for property damage and liability insurance; utility services not paid for directly by tenants, including water, sewer, and trash collection; maintenance and repair;
(5) Any annual license or certificate of occupancy fees required for operation of the Development;
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3524731.1
3 (6) Security services;
(7) Advertising and marketing costs;
(8) Cash deposited into reserves for capital replacements of the Development in an amount to be approved by the City as part of the Final Financing Plan; (9) Cash deposited into an operating reserve in an amount approved by the City as part of the Final Financing Plan and annual operating budgets, but with the operating reserve capped at six (6) months of gross rent from the Development (as such rent may vary from time to time);
(10) Utility services, maintenance and repair, including pest control, landscaping, grounds maintenance, painting and decorating, cleaning, common systems repair, janitorial supplies and services, advertising and marketing; (11) Deferred developer fee in an amount to be approved by the City as part of the Final Financing Plan;
(12) Extraordinary operating costs specifically approved by the City; (13) Payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves; (14) Reasonable accounting and legal fees;
(15) Other ordinary and reasonable operating expenses approved in writing by the City and not listed above; and
(16) Annual Operating Expenses shall exclude the following:
depreciation, amortization, depletion or other non-cash expenses, or any amount expended from a reserve account.
(c) "Approved Financing" means the loans or grants and equity acquired, or to be acquired, by the Developer and approved by the City in its reasonable discretion for the purpose of financing the Development, in addition to the HOME Loan, which may include a Farmers & Merchants Bank in the approximate amount shown in the approved Financing Proposal (the "F&M Bank Loan") as well as a grant provided to the Developer through the No Place Like Home Program operated by the California Department of Housing and Community Development;
(d) "Approved Plans and Specifications" means the plans and specifications for the Construction Work, approved by the City pursuant to Section 3.4 below. (e) "CEQA" means the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.).
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3524731.1
4 (f) "City" means the City of Modesto, a California charter city. (g) "City Attorney" means the City Attorney of the City of Modesto. (h) "City Council" means the City Council of the City of Modesto. (i) "City Manager" means the City Manager of the City of Modesto. (j) "City's Share of Residual Receipts" means the City's Pro Rata Share (as defined below) of fifty percent (50%) of Residual Receipts (the 50% being the "Lenders' Share of Residual Receipts") which shall be determined at the close of permanent financing, or any time any determination thereof is needed to be made. The Pro Rata Share shall be determined by calculating the percentage resulting from dividing the amount of the HOME Loan funds disbursed to the Developer in accordance with this Agreement by the aggregate sum of the funds disbursed to the Developer under the HOME Loan and the Approved Financing subordinate loans, in accordance with the applicable agreements. The Developer shall be entitled to the other 50% share of the Residual Receipts ("Developer's Share of Residual Receipts"). (k) "Close of Escrow" shall refer to the date of recordation of the HOME Deed of Trust against the Property pursuant to the terms of this Agreement and the date of recordation of the HOME Regulatory Agreement against the Property pursuant to the terms of this Agreement.
(l) "Commencement of Construction" means the date on which construction of the Development commences pursuant to Section 4.1 below. (m) "Completion of Construction" means the date the Developer receives a certificate of occupancy for the Affordable Development pursuant to Section 4.2 below. (n) "Construction Bonds" means copies of labor and material bonds and performance bonds for the Construction Work in an amount equal to one hundred percent (100%) of the scheduled cost of the Construction Work.
(o) "Construction Contract" means the construction contract approved by the City pursuant to the terms of Section 3.8 hereof.
(p) "Completion Date" means the date that all of the following have occurred:
(i) a final certificate of occupancy is issued by the City to certify completion of the construction of the Development; (ii) the final disbursement of HOME funds for the Development has been made; (iii) the City has verified the Development complies with the property standards set forth in 24 CFR 92.251; and (iv) all project completion information has been entered by the City into the Integrated Disbursement and Information System (IDIS). (q) "Construction Work" means the physical Construction Work to construct the Development in accordance with the Approved Plans and Specifications and the Governmental Approvals.
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3524731.1
5 (r) "Default" means an event of default under this Agreement, as more specifically described in Section 7.1 below.
(s) "Developer" means the Modesto Homekey LP, a California limited partnership, corporate and politic, and its approved successors and assigns. (t) "Development" means 55 studio units to be constructed on the Property, including all common areas and related amenities.
(u) "Effective Date" has the meaning set forth in the first paragraph. (v) "Escrow" means the escrow account established by the Developer for the closing of Development financing with _______________, located at _____________, or another escrow company satisfactory to the City.
(w) "Evidence of Insurance Coverage" has the meaning set forth in Section 3.10 below.
(x) "Final Cost Certification" has the meaning set forth in Section 5.2. (y) "Final Financing Plan" means the Developer's final plan for financing the construction of the Development and the operation of the Development. The Final Financing Plan approved by the City as of the date of this Agreement is attached to this Agreement as Exhibit B, incorporated herein by reference, and may be revised from time to time with the approval of the City pursuant to Section 3.2 below.
(z) "Force Majeure" means the occurrence of one or more of those events described in Section 8.15, permitting an extension of time for performance of obligations under this Agreement.
(aa) "Governmental Approvals" means the City and other governmental permits and approvals necessary for the construction and operation of the Development, including but not limited to submissions of a precise plan, detailed exterior plans, overall design and architectural review and any required operating licenses, but excluding a building permit. (bb) "Gross Revenue" with respect to a particular calendar year, means all revenue, income, receipts, and other consideration actually received from operation and leasing of the Development, including, but not be limited to:
(1) All rents, fees and charges paid by tenants, payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements resulting in actual income;
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6 (3) The fair market value of any goods or services provided in consideration for the leasing or other use of any portion of the Development; (4) Subject to the rights of Senior Lenders, the proceeds of casualty insurance to the extent not utilized to repair or rebuild the Development (or applied toward the cost of recovering such proceeds);
(5) Subject to the rights of Senior Lenders, condemnation awards for a taking of part or all of the Development or Property for a temporary period; and (6) Gross Revenue shall exclude tenants' security deposits, loan proceeds, capital contributions or other similar advances. (cc) "Hazardous Materials" means any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," or "toxic substances" under any applicable federal or state laws or regulations.
(dd) "Hazardous Materials Claim" means: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer or the Development pursuant to Hazardous Materials Laws; (2) all claims made or threatened by any third party against the Developer or the Development relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials.
(ee) "Hazardous Materials Law" means any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials. (ff) "HOME" means the HOME Investment Partnership Act Program pursuant to the Cranston-Gonzales National Affordable Housing Act of 1990 (42 U.S.C. Section 12705 et. seq.), as amended.
(gg) "HOME Deed of Trust" means the deed of trust securing repayment of the HOME Loan, which shall be recorded against the Property, in a form to be provided by the City. (hh) “HOME Loan” means a loan in the amount of not to exceed Six Hundred and Seventy-Three Thousand and Seven Hundred and Twelve Dollars ($673,712) loaned to Developer to fund construction costs of the Development. (ii) "HOME Loan Documents" means this Agreement, the Note, the HOME Regulatory Agreement and the HOME Deed of Trust HOME.
(jj) "HOME Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants, between the City and the Developer, associated with the HOME Loan, to be recorded against the Property, in a form to be provided by the City. #21..
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7 (kk) "HOME Term" means the period beginning on the date of this Agreement and ending on the twentieth (55th) anniversary of the Completion Date. (ll) "HOME Units" means the four (4) Units whose occupancy and rental charges are restricted pursuant to the HOME Regulatory Agreement. (mm) "HUD" means the United States Department of Housing and Urban Development.
(nn) "Management Plan" has the meaning set forth in Section 3.7 below. (oo) "Marketing Plan" has the meaning set forth in Section 4.11 below. (pp) "NEPA" means the National Environmental Policy Act of 1969 ("NEPA"), as amended (42 U.S.C. Sections 4321-4347).
(qq) "Note" means the promissory note, in a form to be provided by the City that will evidence the Developer's obligation to repay the HOME Loan. (rr) "Notice of Completion" means the Notice of Completion executed by Developer in the form specified in California Civil Code Section 9204. (ss) "Operating Memoranda" has the meaning given in Section 8.20 below. (tt) "Parties" means the City and the Developer and the term Party shall refer to each of them individually.
(uu) "Property" means that certain real property located in the City of Modesto, County of Stanislaus, State of California, on which the Development will be constructed, as more particularly described in Exhibit B attached hereto and incorporated herein. (vv) "Recorder" means the Office of the Stanislaus County Recorder. (ww) "Residual Receipts" means, in a particular calendar year, the amount by which Gross Revenue (as defined in Section 1.1(bb) exceeds Annual Operating Expenses (as defined in Section 1.1(b)) for that calendar year.
(xx) "Section 3" means Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. Section 1701(u).
(yy) "Senior Lender" has the meaning set forth in Section 2.5 below. (zz) "Senior Lien" has the meaning set forth in Section 2.5 below. (aaa) "Term" means the term of this Agreement, which commences as of the date of this Agreement and, unless terminated earlier pursuant to this Agreement, ends fifty-five #21..
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8 (55) years from the Completion Date, but in no event later than December 31, 2079 (subject to extensions agreed upon by the Parties).
(bbb) "Transfer" means any sale, assignment, or transfer, whether voluntary or involuntary, of: (1) any rights and/or duties under this Agreement, and/or (2) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Development is transferred and the Developer retains title.
(ccc) "Unit" means four (4) of the fifty-six (56) studio units for affordable rental housing units to be constructed as part of the Development.
Section 1.2 Exhibits.
The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A: Legal Description
Exhibit B: Financing Plan
ARTICLE 2
LOAN PROVISIONS
Section 2.1 Loan.
(a) Subject to satisfaction of the conditions set forth in this Article 2, as applicable, the City shall lend to the Developer the HOME Loan for the purposes set forth in Section 2.3 of this Agreement. The obligation to repay the HOME Loan shall be evidenced by the Note, in the form to be provided by the City. For the purposes of this Article 2, the HOME Loan will be disbursed in two (2) components:
(1) The "Construction Component" shall be a portion of the HOME Loan in the approximate amount of Six Hundred and Seventy-Three Thousand and Seven Hundred and Twelve Dollars ($673,712) which shall be disbursed in accordance with the requirements of Section 2.6 below.
(2) The "Retention Component" shall be a portion of the HOME Loan in the approximate amount of Sixty-Seven Thousand and Three Hundred Dollars ($67,372) or the balance of the HOME Loan, which shall be disbursed in accordance with the requirements of Section 2.7 below.
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9 (b) Federal award identification information regarding the funding provided to Developer by this Agreement, as required by 24 CFR 200.331, is included in Exhibit C, attached hereto and incorporated herein.
Section 2.2 Interest.
(a) Subject to the provisions of subsection (b) below, the outstanding principal balance of the HOME Loan shall bear interest at a rate of zero percent (0%) per year. (b) In the event of a Default, interest on the HOME Loan shall begin to accrue, as of the date of Default, and continuing until such time as HOME Loan funds are repaid in full or the Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.
Section 2.3 Use of HOME Loan Funds.
(a) Construction Component. The Developer shall use the Construction Component funds to partially fund the construction of the Development consistent with the Final Financing Plan, and to the extent feasible, to fund the Developer Fee in accordance with the terms of this Agreement.
(b) Retention Component. The Developer shall use the Retention Component of the HOME Loan to reimburse the Developer for any construction costs associated with the construction of the Development, including to fund the Developer Fee in accordance with the terms of this Agreement.
(c) Reimbursements. No portion of the Loan shall be used to fund costs incurred more than twenty-four (24) months prior to the Effective Date or for any costs not allowed under 24 C.F.R. 92.206
(d) No Other Uses. The Developer shall not use any proceeds of the HOME Loan for any other purpose without the prior written consent of the City.
Section 2.4 Security.
The Developer shall secure its obligations to repay the HOME Loan, as evidenced by the Note, by executing the HOME Deed of Trust and recording the HOME Deed of Trust against the Property at the Close of Escrow.
Section 2.5 Subordination.
Any agreement by the City to subordinate the HOME Deed of Trust to an encumbrance securing and/or evidencing Approved Financing (each such approved Final Financing Plan, a "Senior Lien"), will be subject to the satisfaction of each of the following conditions, as reasonably determined by the City:
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10 (a) All of the proceeds of the proposed Senior Lien, less any transaction costs, must be used to provide construction and/or permanent financing for the Development. (b) The proposed lender (each, a "Senior Lender") must be a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with the Developer or any of the Developer's affiliates, other than as a depositor or a lender. (c) The Developer must demonstrate to the City's reasonable satisfaction that subordination of the HOME Deed of Trust is necessary to secure adequate construction and/or permanent financing to ensure the viability of the Development, including the operation of the Development as affordable housing, as required by the HOME Loan Documents. To satisfy this requirement, the Developer must provide to the City, in addition to any other information reasonably required by the City, evidence demonstrating that the proposed amount of the Senior Lien is necessary to provide adequate construction and/or permanent financing to ensure the viability of the Development, and adequate financing for the Development would not be available without the proposed subordination.
(d) The subordination agreements must provide the City with adequate rights to cure any defaults by the Developer, including: (1) providing the City or its successor with copies of any notices of default at substantially the same time and in the same manner as provided to the Developer; and (2) providing the City with a cure period of at least sixty (60) days to cure any default.
(e) The subordination(s) described in this Section may be effective only during the original term of the Senior Lien and any extension of its term that is approved in writing by the City, which approval shall not unreasonably be withheld. (f) No subordination may limit the effect of the HOME Deed of Trust before a foreclosure, nor require consent of the holder of the Senior Lien to exercise any remedies by the City under the HOME Loan Documents.
(g) Upon a determination by the City Manager that the conditions in this Section have been satisfied, the City Manager will be authorized to execute the approved subordination agreement without the necessity of any further action or approval. (h) In the event there is a foreclosure of the Property, the HOME Regulatory Agreement shall be revived according to its original terms if, during the original HOME Regulatory Agreement term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former owner or those with whom the former owner has or had family or business ties, obtains an ownership interest in the Development or the Property.
Section 2.6 Conditions Precedent to Disbursement of the Construction Component. (a) The Construction Component of the HOME Loan shall be disbursed in accordance with the following provisions. The division of the HOME Loan between the Construction Component and the Retention Component may be readjusted by the City Manager #21..
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11 on behalf of the City without the need for formal amendment of this Agreement. The City shall not be obligated to make any disbursements of the Construction Component unless the following conditions precedent are satisfied:
(1) There exists no Default by Developer nor any act, failure, omission or condition that would constitute an event of Default by Developer under this Agreement or any other project financing agreements or contracts;
(2) The Developer has delivered to the City a copy of an authorizing resolution authorizing execution of the HOME Loan Documents and the transactions contemplated by this Agreement;
(3) The Developer has executed and delivered to the City the Note evidencing the Developer's obligations under this Agreement, the HOME Deed of Trust, and the HOME Regulatory Agreement;
(4) The HOME Regulatory Agreement and the HOME Deed of Trust, have been, or concurrently with the Close of Escrow will be, recorded against the Property in a lien position approved by the City, and subject only to those liens approved by the City; (5) The City has received and approved the Plans and Specifications; (6) The Developer has received all Governmental Approvals and all building permits necessary to perform the Construction Work pursuant to the terms of this Agreement;
(7) The undisbursed proceeds of the HOME Loan, together with other funds that the Developer has obtained in connection with the Development, are not less than the amount provided in the Final Financing Plan;
(8) The City has received and approved a construction contract that the Developer has entered or proposed to enter for construction of the Development as required under the terms of this Agreement;
(9) A title insurer reasonably acceptable to the City is unconditionally and irrevocably committed to issuing an LP-10 2006 ALTA Lender's Policy of insurance insuring the priority of the HOME Regulatory Agreement and HOME Deed of Trust in the amount of the HOME Loan subject only to such exceptions and exclusions as may be reasonably acceptable to the City, and containing such endorsements as the City may reasonably require; (10) All applicable federal (including all applicable requirements under the National Environmental Protection Act) and state environmental review has been completed for the Development;
(11) The Developer has furnished the City with evidence of insurance coverage meeting the requirements of this Agreement; The City has received copies of labor and material payment and performance bonds as required pursuant to the terms of this Agreement; #21..
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12 (12) The City has received and approved the Management Plan required pursuant to the terms of this Agreement;
(13) The Developer has obtained all permits and approvals necessary for the construction of the Development, as required under Section 3.5, and the City has received copies of the building permits required to construct the Development. (14) The City has completed as approved all environmental reviews under NEPA, and the Developer has provided the City evidence of compliance with all approved NEPA requirements and mitigation measures;
(15) The City has received reasonable evidence that the local match requirements set forth in 24. C.F.R. Section 92.218 et seq., have been satisfied pursuant to Section 5.1 of this Agreement; and
(16) The City has received a written draw request from the Developer, including certification that the condition set forth in subsection (a)(1) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Final Financing Plan previously approved by the City, the amount of funds needed, and, a copy of the bill or invoice covering a cost incurred. When a disbursement is requested to pay any contractor in connection with improvements on the Property, the written request must be accompanied by: (i) certification by the Developer's architect reasonably acceptable to the City that the work for which disbursement is requested has been completed (although the City reserves the right to inspect the Property and make an independent evaluation); and (ii) conditional lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City. (b) Upon satisfaction of the conditions in Section 2.6(a) above, the City shall disburse the Construction Component of the HOME Loan (or so much thereof as is required) for approved cost items as further described in the Final Financing Plan, on a monthly basis. (c) Notwithstanding any other provisions of this Agreement, the City shall have no obligation to disburse any portion of the HOME Loan to the Developer following notification by the City to the Developer of a Default by Developer under the terms of this Agreement.