4896
-
5219
-
6391 v15
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Napa
City Hall, 955 School Street, South Wing
Napa, CA 94559
Attention:
City
Clerk
Record
Without Fee
Pursuant to Government Code
Section
27383
Space Above
Reserved for Recorder
’
s Use Only
D
EVELOPMENT
A
GREEMENT
B
Y AND
B
ETWEEN
C
ITY OF
N
APA
AND
C
OOMBS
S
TREET
LLC
Effective Date
:
____________,
2025
ATTACHMENT 5
TABLE OF CONTENTS
Page
-
i
-
4896
-
5219
-
6391 v15
ARTICLE I DEFINITIONS
................................
................................
................................
............
2 1.1.
Definitions
................................
................................
................................
................
2 ARTICLE II GENERAL PROVISIONS
................................
................................
.........................
6 2.1.
Ownership of Property
................................
................................
.............................
6 2.2.
City Representations and Warranties
................................
................................
.......
6 2.3.
Developer Representations and Warranties
................................
.............................
7 ARTICLE III EFFECTIVE DATE AND TERM
................................
................................
............
7 3.1.
Effective Date
................................
................................
................................
..........
7 3.2.
Term of Agreement
................................
................................
................................
..
8 3.2.1
Term
8 3.2.2
Effect of Termination
................................
................................
...................
8 3.2.3
Force Majeure Delay; Extension of Times of Performance
........................
8 ARTICLE IV DEVELOPMENT OF THE PROPERTY
................................
................................
.
9 4.1.
Vested Rights
................................
................................
................................
...........
9 4.2.
Applicable City Regulations
................................
................................
....................
9 4.3.
Hierarchy of Applicable Laws
................................
................................
...............
10 4.4.
Conflicting Actions
................................
................................
................................
10 4.5.
Intentionally omitted
................................
................................
..............................
10 4.6.
Intentionally omitted
................................
................................
..............................
10 4.7.
Development Timing and
Construction Schedule.
................................
................
10 4.7.1
Development Milestones
................................
................................
...........
11 4.7.2
Construction Schedule
................................
................................
...............
11 4.8.
Regulation by Other Public Agencies
................................
................................
....
12 4.9.
Life of Project Approvals
................................
................................
.......................
12 4.10.
Developer’s Right to Rebuild
................................
................................
................
12 4.11.
State and Federal Law
................................
................................
............................
12 4.12.
Compliance with Laws
................................
................................
..........................
13 4.13.
Moratoria
................................
................................
................................
................
13 4.14.
Project Approvals and Applicable City Regulations
................................
.............
13 ARTICLE V FEES AND EXACTIONS
................................
................................
.......................
13 5.1.
Impact Fees
................................
................................
................................
............
13 ATTACHMENT 5
TABLE OF CONTENTS
(continued)
Page
-
ii
-
4896
-
5219
-
6391 v15
5.1.1 Fee Credit, Existing Development
................................
.............................
14 5.1.2
Fee Credit, Improvements
................................
................................
..........
14 5.2.
Processing Fees
................................
................................
................................
......
14 5.3.
Other Agency Fees
................................
................................
................................
.
14 5.4.
Exactions
................................
................................
................................
................
15 5.5.
Connection Fees and Water Service
................................
................................
......
15 ARTICLE VI PUBLIC BENEFITS
\
PUBLIC BENEFITS OBLIGATIONS
................................
15 6.1.
Public Benefit Obligations
................................
................................
.....................
15 6.1.1
Project Public Improvements
................................
................................
.....
15 6.1.2
Housing
................................
................................
................................
......
17 6.1.3
Parking
................................
................................
................................
.......
18 6.1.4
Traffic Operations
................................
................................
......................
18 6.1.5
Hotel Amenities
................................
................................
.........................
18 6.1.6
City of Napa Business License
................................
................................
..
18 6.1.7
Sales Tax Point of Sale Designation
................................
..........................
18 6.1.8
Public Art
................................
................................
................................
...
19 6.2.
Sharing of Transient Occupancy Revenue for Construction or Financing of Public Improvements
................................
................................
.............................
19 ARTICLE VII ANNUAL REVIEW
................................
................................
..............................
20 7.1.
Annual Review
................................
................................
................................
.......
20 7.1.1
Purpose
................................
................................
................................
.......
20 7.1.2
Conduct of Annual Review
................................
................................
........
20 7.1.3
Failure to Conduct Annual Review
................................
............................
21 ARTICLE VIII COOPERATION AND IMPLEMENTATION
................................
...................
21 8.1.
Subsequent Approvals, Design Review
................................
................................
.
21 8.2.
Processing Applications for Subsequent Approvals
................................
..............
22 8.2.1
Timely Submittals by Developer
................................
...............................
22 8.2.2
Timely Processing by City
................................
................................
.........
22 8.2.3
No Change in Standards
................................
................................
.............
22 8.2.4
Decision Making Authority on Design Review and Other
Discretionary Permits
................................
................................
.................
23 ATTACHMENT 5
TABLE OF CONTENTS
(continued)
Page
-
iii
-
4896
-
5219
-
6391 v15
8.2.5 Demolition
................................
................................
................................
.
23 8.2.6
Subdivision of Property
................................
................................
.............
23 8.2.7
CEQA
24 8.2.8
Substantial Conformance
................................
................................
...........
24 8.2.9
Vesting of Subsequent Approvals
................................
..............................
25 8.2.10
Transfer of City Property for Construction Purposes
................................
25 ARTICLE IX AMENDMENT OF AGREEMENT AND PROJECT APPROVALS
...................
25 9.1.
Amendment by Written Consent
................................
................................
...........
25 9.2.
Major Amendments to Agreement
................................
................................
.........
25 9.3.
Minor Amendment
................................
................................
................................
.
25 9.4.
Requirement for Writing
................................
................................
........................
26 9.5.
CEQA/Mitigation Measures
................................
................................
..................
26 ARTICLE X INSURANCE, INDEMNITY AND COOPERATION IN THE EVENT OF
LEGAL CHALLENGE
................................
................................
.........................
26 10.1.
Insurance Requirements
................................
................................
.........................
26 10.2.
Indemnity and Hold Harmless
................................
................................
...............
27 10.3.
Defense and Cooperation in the Event of a Litigation Challenge
.........................
27 ARTICLE XI ASSIGNMENT AND
TRANSFER
................................
................................
.......
28 11.1.
Assignment
................................
................................
................................
............
28 11.2.
Successive Assignment
................................
................................
..........................
28 ARTICLE XII MORTGAGEE PROTECTION
................................
................................
............
28 12.1.
Mortgagee Protection
................................
................................
.............................
28 12.2.
Mortgagee Not Obligated
................................
................................
......................
29 12.3.
Notice of Breach to Mortgagee
................................
................................
..............
29 12.4.
No Supersedure
................................
................................
................................
......
29 ARTICLE XIII DEFAULT; REMEDIES; TERMINATION
................................
.......................
29 13.1.
Breach and Default
................................
................................
................................
29 13.2.
Failure to Cure Default Procedure
................................
................................
.........
30 13.3.
Termination or Modification
................................
................................
..................
30 13.4.
Specific Performance for Violation of a Condition
................................
...............
30 ATTACHMENT 5
TABLE OF CONTENTS
(continued)
Page
-
iv
-
4896
-
5219
-
6391 v15
13.5. Legal Actions
................................
................................
................................
.........
30 13.5.1
Institution of Legal Actions
................................
................................
.......
30 13.5.2
Acceptance of Service of Process
................................
..............................
30 13.6.
Rights and Remedies Are Cumulative
................................
................................
...
31 13.7.
No Damages
................................
................................
................................
...........
31 13.8.
Resolution of Disputes
................................
................................
...........................
31 13.9.
Remedies Upon Transfer or Assignment
................................
...............................
31 13.10.
Appeals to City Council
................................
................................
.........................
31 13.11.
Surviving Provisions
................................
................................
..............................
31 ARTICLE XIV GENERAL PROVISIONS
................................
................................
..................
32 14.1.
Covenants Binding on Successors and Assigns and Run
with Land
.....................
32 14.2.
Notice
32 14.3.
Reserved
................................
................................
................................
.................
32 14.4.
Counterparts
................................
................................
................................
...........
33 14.5.
Waivers
................................
................................
................................
..................
33 14.6.
Construction of Agreement
................................
................................
....................
33 14.7.
Headings
................................
................................
................................
................
33 14.8.
Severability
................................
................................
................................
............
33 14.9.
Time is of the Essence
................................
................................
...........................
33 14.10.
Signatures
................................
................................
................................
...............
33 14.11.
Entire Agreement
................................
................................
................................
...
33 14.12.
Estoppel Certificate
................................
................................
................................
34 14.13.
Recordation of Termination
................................
................................
...................
34 14.14.
City Approvals and Actions
................................
................................
...................
34 14.15.
Negation of Partnership
................................
................................
.........................
34 14.16.
No Third Party Beneficiaries
................................
................................
.................
34 14.17.
Joint and Several
................................
................................
................................
....
34 14.18.
Governing State Law
................................
................................
.............................
34 14.19.
Recordation
................................
................................
................................
............
34 14.20.
Exhibits
................................
................................
................................
..................
35 ATTACHMENT 5
1 4896
-
5219
-
6391 v15
DEVELOPMENT AGREEMENT
This Development Agreement (
“
Agreement
”
), dated as of
the
______________, 20
2 5
(the
“
Effective Date
”)
, is entered into by and between the City of
Napa
, a California
charter city
(
“
City
”
) and
Coombs Street
LLC, a California limited liability company, (“
CS
”
or
the
“
Developer
”)
.
Developer
and City
may be
referred to individually in this Agreement as a
“
Party
”
and collectively as the
“
Parties
.
”
R
E
C
I
T
A
L
S
This Agreement is entered into on the basis of
the following facts, understandings and
intentions of the Parties.
The following recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Article I
of this Agreement.
A.
In order to strengthen the public planning process, encourage private participation in comprehensive planning
,
and reduce the economic costs and risks of development, the Legislature of the State of California enacted
Section
65864
et seq.
of the Government Code
(
“
Development Agreement Statute
”
) which authorizes a city and a developer having a legal or equitable interest in real property to enter into a binding, long -
term development agreement
establishing certain development rights in the property .
B.
In accordance with the Development Agreement Statute, the City Council of the City of
Napa
enacted
Municipal Code
Section
17.52.15 0 and has adopted City of Napa Resolution
No.
93 -
267 (which amended City of Napa Resolution
No
s
.
83 -
176
and R2018
-
136
)
(“
Development Agreement Regulations
”), which authorize the execution of development
agreements and set forth the required contents and form of those agreements. The provisions of the Development Agreement Statute and the City’s Development Agreement Regulations are collectively referred to
herein as the “
Development Agreement Law
.”
C.
Developer
is the
fee
owner
of
th
ose
certain
approximately
1. 94
-
acre
propert
ies
that
includes the
former
Kohl’s Department Store
and
other users
located at
1106,
1116
and 1118
First
S
treet
, Napa, California, designated as Assessor’s Parcel No
s.
003
-
1 66
-
010
,
003
-
166
-
013,
003
-
116
-
015,
003
-
166
-
016,
as
more particularly described and depicted in
Exhibit A
attached hereto
(“
CS
Parcel
”)
.
D.
Under the Amended and Restated
Agreement of Purchase and Sale and Joint
Escrow Instructions
dated August 9, 2024 (City of Napa Agreement No. C2024
-
160)
(“
Parking
Lot PSA
”)
,
the Developer
has an equitable interest in that certain approximately
0. 7
5 -
acre
property and the surface parking lot thereon currently ow n
ed by the City of Napa
located at
1151
-
1199
Pearl Street
in Napa, California, designated as Assessor’s Parcel No s
.
003
-
166
-
008 & 003
-
166
-
011
, as more particularly described on
Exhibit B
attached hereto (“
Parking Lot Parcel
”)
.
E.
Under the
Agreement For Exchange Of Real Property And Joint Escrow Instructions
dated August 9, 2024 (City of Napa Agreement No. C2024
-
1 59
)
(“
DMP EA
”)
,
the
Developer
has an equitable interest in
,
that certain approximately 0.
1 8
acre property
located
on
First Street adjacent to the
CS
Parcel known as the Dwight Murray Plaza
currently ow
n
ed by the
City of Napa
located a
djacent to
1118
First Street
in Napa, California,
designated as Assessor’s
Parcel No
s
003
-
1 66
-
01 7
, as more particularly described on
Exhibit C
attached hereto (“
Dwight
ATTACHMENT 5
2 4896
-
5219
-
6391 v15
Murray Parcel
”
)
. Under the DMP EA the Developer will obtain fee title to the Dwight Murray Parcel
in exchange for
Developer granting the City
certain
real property
rights
to
the property
depicted in
Exhibit D
labelled “Public Access Easement”
for use by the public
as described herein
.
T
he
Dwight Murray Parcel, the
Parking Lot
Parce
l
(collectively described as the “
City Property
”)
and the
CS
Parcel
all
together
comprise
approximatel
y
2. 8
7 acres
of land and are referred to herein
collectively as the “
Property
”
.
F.
The c
urrent
use of the
CS
Parcel includes
approximately 76,000
square feet of
commercial development, which includes retail, restaurant ,
and
related accessory uses
.
A
s
provided in that certain License Agreement dated February 1, 2000, City Agreement 7583 (“
License Agreement
”)
,
t
he City provide
d
419
non
-
exclusive parking spaces for
the
retail uses
conducted on the Kohl’s Parcel
in nearby City parking lots and structures.
G.
Developer intends to
develop
the
Property
with
a mi
x
ed
-
use project consist
ing
of
:
(i)
up to a maximum of
78 units of
for sale market rate branded residential
multifamily housing
units
(“
Market Rate Housing
”); (ii)
a
6 -
story, Upper Upscale hotel with a maximum of
161
room
s
with
accessory
retail and related amenities
(“
Hotel
”)
;
and
(i
ii
)
up to
30,000
s
quare
f
eet
of
ground
floor and second floor
retail
(“
Retail
”)
; but in no case will
the development
exceed a total of
500,000 sf
of conditioned space (excluding parking)
.
The
Market Rate Housing
, Hotel
,
and Retail
uses are intended to be consiste
nt
with the uses permitted in
the Planned Development Overlay,
as
defined hereinafter
.
Developer also desires to
continue to utilize
certain
off
-
site parking
as part of
the redevelopment project
in the Pearl Street Garage
an
d
develop
certain
parking on site
to serve
the
developmen
t
.
Collectively, the project described in this
Recital
G
is hereafter referred to as
the
“
Project
”
.
The Project is further described in
Exhibit E
.
H.
Developer intends to provide the City and its citizens and the surrounding region with the primary benefits set forth in
Article VI
of this Agreement (collectively, the “
Public
Benefits
”).
I.
In connection with the Project,
Developer has applied to City for
the following
entitlements:
1. A
Planned Development
(
“
PD
”
)
Overlay zoning district
with
use
provisions
,
processing procedures and
development standards
;
2. A
related Downtown Napa Specific Plan
Map
Amendment to
redesignate
and
rezone the
CS
Parcel
and Dwight Murray Parcel
from DCC to DCC:PD
,
to rezone the Parking Lot Parcel from DMU to D
MU
:PD
,
and to amend the
Downtown Napa Specific Plan entertainment zone designation to include the entirety of the Property (collectively, “
Rezon
ing
”);
3. P
roject specific “
Design Guidelines
”
,
generally consistent with the
Downtown I Building Forms Standards;
4. A Tentative Parcel Map
to r
econfigure 7 existing fee parcels into 3 fee
parcels, 1 condominium parcel and 1 airspace parcel for a total of 5 parcels for financing, ownership and condominium property division purposes
(t
he
ATTACHMENT 5
3 4896
-
5219
-
6391 v15
condominium parcel will contain 78 residential units and 32 commercial units
)
;
5. An Affordable Housing Alternative Equivalent; and
6. Concurrently with
the
se
applications
, Developer
submitted to the City
a
D
evelopment
A
greement
application for approval of
this
Agreement
.
J.
The Project is
within the scope of
the
development program described and
evaluated
by
the
City of Napa
in
the
Environmental Impact Report
for the Downtown Napa
Specific Plan
(“
EIR
”)
prepared pursuant to the California Environmental Quality Act ( “
CEQA
”
)
(Public Resources Code
Section
21000
et
seq
.) and certified
by Resolution No.
2012
-
54 adopted
by the City Council on
May 1,
20 12
(
State Clearinghouse No.
2010042043
)
,
as described in
the
__________________
Addendum
to
th
e
EIR
dated
____________
prepared pursuant to CEQA
Guidelines Sections 15164 and 15168 and considered by the City Council on _________________
(
“
EIR Addendum
”)
.
K.
On ________, 202
5 , the Planning Commission held a public hearing on this Agreement and the Project, duly noticed and conducted under the Development Agreement Law
.
Following the public hearing, the Planning Commission recommended adoption of the EIR
Addendum,
approval of this Agreement and made a final recommendation to the City Council, which included findings that the Project and this Agreement, as a whole and taken in their entirety, will be consistent with the objectives, policies, general land uses and
programs specified in the
General Plan
and the DTSP
, as proposed to be amended prior to or concurrently with approval of this Agreement.
L.
Prior to or concurrently with approval of this Agreement, the City has or
will take
several actions to review and plan for the future development and use of the Project ( collectively,
the
“
Existing Approvals
”
). These include
:
1. Adopted Resolution No. ________ approving the DTSP EIR Addendum;
2. Adopted
Ordinance No. __________ adopting
a Planned Development
Overlay District establishing use
provisions and development standards for
the Property (“
PD
”)
including the adoption of site
-
specific
Design
Guidelines as reviewed and recommended by the Planning Commission ,
and approving the Affordable Housing Alternative Equivalent proposal ;
3. Adopted
Ordinance No.
_________
amending the Zoning District Map in
Napa Municipal Code
Section
17.04.050 to
rezone the
Property
with a PD
-
__ Overlay designation
;
4. Ordinance No.
_____________ a
pproving
this Agreement
; and
5. Adopted
Resolution No. ___________ approving a Tentative Parcel Map for the Project.
ATTACHMENT 5
4 4896
-
5219
-
6391 v15
M.
It is the intent of City and Developer to establish certain conditions and requirements related to review and development of the Project, including, among other matters
,
the followin
g:
(a) use, intensity and density, maximum floor area, and maximum height of development on the Property, including requirements for timing of construction; (b) public benefits, including
(i)
the quantities of affordable and for rent market rate housing, and
(ii) the use
of space on the Project site to be available for public u se
, (iii) public art, (iv) public pickup and
drop off zone
; (c) requirements for timing of construction of the Project; (d) the amount of retail frontage required by the Downtown Napa Specific Plan Guidelines; (e) a plan for Developer’s participation in the improvement
of the Brown Street Corridor and development of the
New Plaza
;
(f) parking quantities sufficient to serve the Project’s H
otel and
R
etail components; (g) vesting
periods and impact fees; (h) CEQA compliance;
(i) the scope of City’s reserved di
scretion with
respect to review and consideration of S
ubsequent
Approvals;
and such other matters related to
the Property
and the Project
.
N.
City
finds that
t
h
is
Agreement
will promote orderly growth and quality
development in accordance with the goals and policies set forth in the City of Napa
2040
General
Plan
and Downtown Napa Specific Plan
;
is compatible with the uses authorized in, and the
regulations prescribed for, the district in which the Property is located; will promote the public convenience, general welfare, and good land use practice; will not be detrimental to the health, safety an
d general welfare; will not adversely affect the orderly development of property or the
preservation of property value;
and
will promote and encourage the development of the Project by providing a greater degree of requisite certainty
.
O.
City and Developer have reached mutual agreement and desire to voluntarily enter into this Agreement to facilitate development of the Project and Public Benefits
subject to the
conditions and requirements set forth herein
.
P.
City has given the required notice of its intention to adopt this Agreement and has conducted public hearings thereon pursuant to Government Code Section
65867
and
Napa
Municipal Code
S
ection
s 1.12.010 and
17.68.070
.
The City
has reviewed and evaluated this
Agreement in accordance with
the Development Agreement Law
and
found that the provisions of
this Agreement and its purposes are consistent with the Development Agreement Law and the
goals, policies, standards and land use designations specified in the G eneral Plan.
Q.
On
______________
,
the City Council introduced Ordinance No.
________________
(“
Enacting Ordinance
”)
approving this
Agreement and authorizing
its
execution, and adopted the Enacting
Ordinance on
________________
. That Ordinance became
effective on
__________________
.
A
G
R
E
E
M
E
N
T
NOW, THEREFORE
, in consideration of the mutual covenants and promises contained herein and other valuable consideration, the Parties hereby agree as follows:
ATTACHMENT 5
2 4896
-
5219
-
6391 v15
ARTICLE I
DEFINITIONS
1.1. Definitions
.
“
9/11
Memorial Garden Improvements
” is defined in
Section
6.1.1 .
“
Affiliated Party
”
is defined in
Section
11.1 .
“
Affordable Housing Agreement
”
means the agreement required pursuant to Napa
Municipal Code Section 15.94.070 B
subject to the approval of the City Attorney
.
“
Affordable Housing Parcel
”
means that certain real property owned by First United
Methodist Church located at
629 & 641 Randolph St. & 1301 Fourth Streets Napa, CA 94559 .
Assessor’s Parcel Nos.
003
-
262
-
006 and 003
-
262
-
007
, as more particularly described on
Exhibit
H
-
1 .
“
Affordable Housing Obligation
”
is defined in
Section
6.1.2 .
“
Agreement
”
mean
s
this Development Agreement between City and Developer, including all Exhibits hereto.
“
Applicable City Regulations
”
is defined in
Section
4.2 .
“
Applicable Law
”
means the Applicable City Regulations and all State and Federal laws and regulations applicable to the Property and the Project as enacted, adopted ,
and amended from
time to time.
“
Assignee
”
is defined in
Section
11.1 .
“
Assignment
”
is defined in
Section
11.1 .
“
Brown Street Corridor
” is defined in
Section
6.1.1 .
“
Brown Street Corridor Improvements
” is defined in
Section
6.1.1 .
“
Building
Permit
”, when capitalized in this Agreement, means a City
-
issued building
permit for construction; permits for demolition or grading shall not constitute a Building Permit.
“
CEQA
”
means the California Environmental Quality Act
(
California Public Resources
Code
Section
21000,
et
seq
.
)
, as amended from time to time.
“
CEQA Guidelines
”
means the State CEQA Guidelines (California Code of Regulations, Title
14,
Section
15000,
et seq.
), as amended from time to time.
“
Changes in the Law
”
is defined in
Section
4.11 .
“
City
”
means the City of
Napa
, a
California charter city
and municipal corporation
.
ATTACHMENT 5
3 4896
-
5219
-
6391 v15
“
City Attorney
” means the City’s City Attorney or their designee.
“
City
Council
”
means the City Council of the City of
Napa
.
“
City Manager
”
means City’s City Manager or
their
designee.
“
City Parties
”
means and includes City and its elected and appointed officials, officers, employees,
attorneys,
contractors and representatives.
“
City Property
” is defined in
Recital
E
.
“
Claims
” means liabilities, obligations, orders, claims, damages, fines, penalties and expenses, including attorneys’ fees and costs.
“
Community Development Director
”
means City’s Community Development Direct
or or
other designee
of either the Community Development Director or City Manager .
“
Connection Fees
”
means those fees charged by a utility provider to utility users as a cost for connecting water, sanitary sewer, and other utilities. “Connection Fees” do not include Impact Fees.
“
CS
”
means Coombs Street LLC, a California limited liability company.
“
CS Parcel
”
is defined in
Recital
C
.
“
Default
”
is defined in
Section
13.1 .
“
Design Guidelines
”
is defined in
Recital
I
.
“
Design Review Permit
”
is defined in
Section
8.1 .
“
Developer
”
means
, collectively,
CS
,
and
its
permitted successor
s
and assigns.
“
Development Agreement Law
”
is defined in
Recital
B
.
“
Development Agreement Regulations
”
is defined in
Recital
B
.
“
Development Agreement Statute
”
is defined in
Recital
A
.
“
Development Milestone
” is defined in
Section
4.7.1 .
“
Discretionary Action
”
or
“Discretionary Approval
”
means an action which requires the
exercise of judgment, deliberation or a decision on the part of the City, including any board
or
commission or any officer or employee of the City, in the process of approving or disapproving a particular activity, as distinguished from an activity which requires the City, including any board, commission or department or any officer or employee of th e City, to determine whether there has
been compliance with statutes, ordinances or regulations.
“
DMP EA
”
is defined
in
Recital
E
.
ATTACHMENT 5
4 4896
-
5219
-
6391 v15
“
Dwight Murray Parcel
”
is
defined in
Recital
E
.
“
Effective Date
”
means the date that this Agreement becomes effective as determined under
Section
3.1 .
“
EIR
”
is defined in
Recital
J
.
“
EIR
Addendum
”
is defined in
Recital
J
.
“
Enacting Ordinance
”
refers to the Ordinance identified in
Recital
Q
.
“
Exactions
”
means exactions that may be imposed by the City as a condition of developing the Project, including requirements for acquisition, dedication or reservation of land; and obligations to construct on
-
site or off
-
site public and private infrastructure improve
ments such
as roadways, utilities or other improvements necessary to support the Project, whether such exactions constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, or impositions made
under Applicable
Law
. For purposes of
this Agreement, Exactions do not include Impact Fees.
“
Existing Approvals
”
is defined in
Recital
L
.
“
Exten
ded
Term
”
is defined in
in
Section
3.2.1 .
“
Force Majeure Delay
”
is defined in
Section
3.2.3 .
“
General Plan
”
means the City of
Napa
’s General Plan
,
as amended
from time to time
.
“
Hotel
”
is defined in
Recital
G
.
“
Impact Fees
”
means the monetary amount charged by City
to Developer
in connection
with
approval of
a
development project
for the purpose of defraying all or a portion of the cost of mitigating the impacts of the
development project
on
of the public facilities related to the
development project
, including
:
(a)
any “fee” as that term is defined by Government Code
Section
66000(b)
;
(b) any “capacity” fee as th
at
terms are defined by Government Code
S
ection
66013;
and
(c) any parkland dedication fee as defined by Government Code S
ection 66477
.
TOT
is not an Impact Fee.
“
Impact Fee Lock Period
”
is defined in
Section
5.1 .
“
Initial
Term
”
is defined in
Section
3.2.1 .
“
Litigation Challenge
”
is defined in
Section
10.3 .
“
Main Street Connection Improvements
” is defined in
Section
6.1.1 .
“
Main Street Drop
-
Off Improvements
” is defined in
Section
6.1.1 .
“
Major Amendment
”
is
defined
in
Section
9.2 .
ATTACHMENT 5
5 4896
-
5219
-
6391 v15
“
Market Rate Housing
”
is defined in
Recital
G
.
“
Minor Amendment
”
is
defined
in
Section
9.3 .
“
MMRP
”
means the Mitigation Monitoring and Reporting Plan adopted in connection with the EIR.
“
Mortgage
”
means any mortgage, deed of trust, security agreement, and
other like security
instrument
encumbering all or any portion of the Property or any of the Developer’s rights under this Agreement
.
“
Mortgagee
”
means the holder of any Mortgage, and any successor, assignee or transferee of any such Mortgage holder
.
“
Municipal Code
”
means and refers to the City of
Napa
’s Municipal Code
, as amended
from time to time
.
“
New City Laws
”
means and includes any ordinances, resolutions, orders, rules, official policies, standards,
specifications
, guidelines or other regulations, which are promulgated or adopted by the City (including but not limited to any City agency, body, officer or employee) or its electorate (through their power of initiative or otherwise) after the Effective Date.
“
New Plaza
” is defined in
Section
6.1.1 .
“
New Plaza Improvements
” is defined in
Section
6.1.1 .
“
Notice of Breach
”
is defined in
Section
13.1 .
“
Other Agency Fees
”
is defined in
Section
5.3 .
“
Parking Agreement
” is defined in
Section
6.1.3 .
“
Parking Lot PSA
”
is
defined in
Recital
D
“
Parking Lot Parcel
”
is defined in
Recital
D
.
“
PD
”
is defined in
Recital
I
.
“
Planning Commission
”
means the
City of
Napa
Planning Commission
.
“
Processing Fees
”
means all fees for processing development project applications, including any required supplemental or other further environmental review, plan checking and inspection and monitoring for land use approvals, design review, grading and building permits, Gen
eral Plan maintenance fees, and other permits and entitlements required to implement the Project, which are in effect at the time those permits, approvals or entitlements are applied for, and which are intended to cover the actual costs of processing the f oregoing.
“
Project Approvals
”
means
the Existing Approvals and all Subsequent Approvals.
ATTACHMENT 5
6 4896
-
5219
-
6391 v15
“
Project
”
is defined in
Recital
G
“
Project Public Improvements
”
are the improvement descried in
Article VI
.
“
Property
”
is defined in
Recital
E
.
“
Public Works
Director
”
means City’s
Public Works
Director or other designee of either
the
Public Works
Director or City Manager
.
“
Reimbursable Project Public Improvements
” are only those Project Public
Improvements described in
Section
6.1.1 .
“
Rezon
ing
”
is defined in
Recital
I.2
.
“
Specific Plan
”
means the Downtown Napa Specific Plan,
adopted by the City Council
pursuant to Resolution No. ___ on ________, 2012
as amended from time to time.
“
Subsequent Approvals
”
is defined in
Section
8.1 .
“
Term
”
means the Initial Term plus the Extended Term.
“
TOT
” means the City’s Transient Occupancy Tax
means the tax imposed by the City in
accordance with
Napa Municipal Code Chapter 3.20.
“
TOT Sharing Agreement
” means the agreement between the City and the Developer setting forth the Parties obligations regarding
potential reimbursement of Developer of certain pre
-
approved aspects of the Project Public Improvements.
“
Upper Upscale
” means a hotel chain that is equal to or better than the hotels listed in the Upper Upscale category of the STR Chain Scales
–
North America and Caribbean
(
http://hotelnewsnow.com/Media/Default/Images/chainscales.pdf ), as amended from time to time.
ARTICLE II
GENERAL PROVISIONS
2.1. Ownership of Property
.
The Parties hereby acknowledge that, as of the Effective Date, Developer has either a fee interest or an equitable interest in all of the parcels comprising the Property by virtue of Developer’s fee ownership of the
CS
Parcel and Developer’s contractual
rights to
acquire
the
Parking Lot Parcel pursuant to the Parking Lot PSA and the Dwight Murray Parcel pursuant to the DMP EA
.
2.2. City Representations and Warranties
. City represents and warrants to Developer that, as
of the Effective Date:
2.2.1 City is a municipal corporation,
and a California charter city,
and has all necessary
powers under the laws of the State of California to enter into and perform the undertakings and obligations of City under this Agreement.
ATTACHMENT 5
7 4896
-
5219
-
6391 v15
2.2.2 T
he execution and delivery of this Agreement and the performance of the obligations of the City hereunder have been duly authorized by all necessary City Council action and all necessary approvals have been obtained.
2.2.3 This Agreement is a valid obligation of City and is enforceable in accordance with its terms.
2.2.4 During the Term, City shall, upon learning of any fact or condition which would cause of any of the warranties and representations in this Section
2.2 not to be true, immediately
give written notice of such fact or condition to Developer.
2.3. Developer Representations and Warranties
. Developer represents and warrants to City
that, as of the Effective Date:
2.3.1 Developer
is the sole fee
owner
of the
CS
Parcel.
Developer has contractual rights
to
acquire
the
City Property
pursuant to the Parking Lot
P
SA
and
the DMP EA
with City, the
fee
owner of the parcel
s
,
described in
Recital
E
and therefore has equitable interest
s
in the
City
Property
.
2.3.2 Developer
is
a
duly organized and validly existing
limited liability company
under
the laws of
its state of incorporation or
organization
and
is in good standing and has all necessary
powers under the laws of the State of California to own property interests and in all other respects enter into and perform the undertakings and obligations of Developer under this Agreement.
2.3.3 T
h
e execution and delivery of this Agreement and the necessary performance of the obligations of Developer hereunder have been duly authorized by all necessary partnership,
company
or corporate
action and all necessary
partner,
member
or shareholder
approvals have
been obtained.
2.3.4 This Agreement is a valid obligation of Developer and is enforceable in accordance with its terms.
2.3.5 Developer has not
:
(a) made a general assignment for the benefit of creditors; (b) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Developer’s creditors; (c) suffered the appointment of a receiver to take possession of all, o r
substantially all, of Developer’s assets; (d) suffered the attachment or other judicial seizure of all, or substantially all, of Developer’s assets;
or
(e) admitted in writing its inability to pay i
t
s debts as
they come due.
2.3.6 During the Term of this Agreement, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section
2.3 not to
be true, immediately give written notice of such fact or condition to City.
ARTICLE III
EFFECTIVE DATE AND TERM
3.1. Effective Date
. The Effective Date of this Agreement shall be the later of ( a
) the date that
is thirty (30) days after the date that the Enacting Ordinance is adopted ,
or
(
b
) the date this
ATTACHMENT 5
8 4896
-
5219
-
6391 v15
Agreement is executed by
City
.
The Effective Date is inserted at the beginning of this Agreement.
The Parties acknowledge that
Section
65868.5 of the Development Agreement Statute requires
that this Agreement be recorded with the County Recorder no later than ten (10) days after the City enters into this Agreement, and that the burdens of this Agreement shall be binding upon, and the bene
fits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement .
3.2. Term of Agreement
.
3.2.1 Term
. The
“
Initial
Term
”
of this Agreement shall commence on the Effective
Date and shall expire
10 years and one day after the
Effective Date
unless earlier terminated
.
The
Term shall automatically extend
from the date of expiration of the Initial Term until the date which is
five
(
5 ) years following the expiration of the Initial Term (“ Extended Term
”)
provided that
:
(i)
Developer shall have obtained Building Permit
(
s
)
for the Market Rate Housing
by
the expiration
of the Initial Term
and such permits are valid and have not expired
; (ii) Developer shall have met
all of the Development Milestones
, including any extended Development Milestone timeframes ;
and
(iii) the Affordable Housing Agreement shall have been recorded against the Affordable Housing Parcel in accordance with
Section
6.1.2 .
3.2.2 Effect of Termination
. Upon the expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, subject, however, to the provisions set forth in
Section
13.11 below.
3.2.3 Force Majeure Delay; Extension of Times of Performance . Subject to the
limitations set forth below, the
Term
and the time within which either Party shall be required to perform any act under this Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably and beyond the reasonable control
of the Party seeking the delay by strikes, lock outs, and other labor difficulties; Acts of God; unusually severe weather, but only to the extent that such weather or its effects (including, without limitation, dry out time) result in delays that cumulati vely exceed twenty (20) days for any
winter season occurring after commencement of construction of the Project; failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body;
any development moratorium or any action of other public agencies that regulate land use, development, or the provision of services that prevents, prohibits, or delays construction of the Project; enemy action; civil disturbances; wars; terrorist acts; fir e;
excessive
smoke; pandemics,
water shortage,
unavoidable casualties;
and
litigation or other administrative
or judicial proceeding involving the Project Approvals or this Agreement, including any extension authorized by Government Code
Section
66463.5(e)
(each a “
Force Majeure Delay
”). An
extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the
commencement of the cause, if
written
n
otice in
accordance
with
Section
14.2 is sent
by the Party claiming such extension to the other Party within sixty (60) days of the
commencement of the cause. If n
otice is sent after such sixty (60) day period, then the extension shall commence to run no sooner than sixty (60) da ys prior to the giving of such n
otice.
Times of performance under this Agreement may also be extended in writing by the mutual agreement of the City Manager and Developer.
Downturns in the economy
or
Developer’s
inability or failure to obtain financing
for the Project
shall not be deemed to be cause
s
outside the
reasonable control of Developer and shall not b
e the basis for
a Force Majeure De
lay
.
ATTACHMENT 5
9 4896
-
5219
-
6391 v15
ARTICLE IV
DEVELOPMENT OF THE
PROPERTY
4.1. Vested Rights
. The Property is hereby made subject to the provisions of this Agreement.
Developer shall have the vested right to develop the Property and the Project in accordance with and subject to the Existing Approvals, the Subsequent Approvals, Applicable Law and this Agreement, which shall
, among other things,
control the permitted uses, density and intensity of
use of the Property
, requirements for on
-
and off
-
site infrastructure and public improvements,
the
applicable
Exactions,
and the maximum height and
maxi
mum
size of buildings on the Property.
4.2. Applicable
City Regulations
. City and Developer acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions contained in this Agreement are intended to reserve to City all of its police power that cannot be so limited. Notwithstanding the fore
going reservation of City, it is the intent of City
and Developer that this Agreement be construed to provide Developer with rights afforded by law, including but not limited to, the Development Agre
ement Statute. Therefore, the laws, rules,
regulations, official policies, standards and specifications of City applicable to the development of the Proper
ty and/or the Project shall be
the following (
collectively,
the
“
Applicable
City
Regulations
”
):
4.2.1 Those rules, regulations, official policies, standards and specifications of the City set forth in the Project Approvals
,
and this Agreement
;
4.2.2 With respect to matters not addressed by and not otherwise inconsistent with the
Project Approvals and this Agreement, those laws, rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) in force and effect on the Effective
Date, including those
governing permitted uses, building locations, timing and manner of construction, densities, intensities of uses, heights and sizes, subdivisions,
and
requirements for
on
-
and off
-
site infrastructure and public
improvements;
4.2.3 New City
Laws that relate to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure imposed at any time, provided such New City Laws are uniformly applied on a City -
wide bas
is to
all substantially similar types of development projects and properties ;
4.2.4 New City Laws that revise City’s uniform construction codes, including City’s building code, plumbing code, mechanical code, electrical code, fire code, grading code and other uniform construction codes, as of the date of permit issuance, provided, that su ch New City Laws
are uniformly applied on a City
-
wide basis to all substantially similar types of development projects and properties;
provided that for
the period commencing on the
date the City issues the
Design Review Permit for the Project
(“
Design Rev
iew Approval Date
)”
and continuing until the
end of the
one
year plus one day after the
Design Review Approval Date
,
the City shall apply to
the Project the construction codes, including City’s building code, plumbing code, mechanical code, electrical code, fire code, grading code and other uniform construction codes
in existence
on
the Design Review Approval Date
;
ATTACHMENT 5
10 4896
-
5219
-
6391 v15
4.2.5 New City Laws that are necessary to protect physical health and safety of the public
; provided, that such New City Laws are uniformly applied on a City -
wide basis to all
substantially similar types of development projects and properties;
4.2.6 New City Laws that do not conflict with this Agreement or the Project Approvals, provided such new City Laws are uniformly applied on a City -
wide basis to all substantially similar
types of development projects and properties;
4.2.7 New City Laws mandated by Changes in the Law as provided in Section
4.11 below; and
4.2.8 New City Laws that do not apply to the Property and/or the Project due to the limitations set forth above, but only to the extent that such New City Laws are accepted in writing
by Developer in its sole discretion
.
4.3. Hierarchy of Applicable Laws
. In the event of any conflict between
Subsections
4.2.1 through
4.2.8 , the hierarchical order of authority shall be
Subsection
4.2.5 first, then
Subsection
4.2.1 ,
Subsection
4.2.2 , then
Subsection
4.2.3 , then
Subsection
4.2.4 , then
Subsection
4.2.6 , then
Subsection
4.2.7 , and then
Subsection
4.2.8 .
Conflicting Actions
.
Without limiting the generality
of
Sections
4.2.1 through
4.2.8 above, any action or proceeding of the City (whether enacted administratively, or by a commission, a board, the legislative body, or the electorate) undertaken without the consent of Developer that has any of the following effects on the Project shall be i n
conflict with the Vested Rights, this Agreement, and Applicable Law:
i.
limiting, reducing or modifying the uses, height, bulk, density or intensity of permitted uses of all or any part of the Project, or otherwise requiring any reduction in the square footage or total number or location of or other improvements;
ii.
limiting the location or sites, grading, roadways or other improvements or facilities on the Property in a manner that conflicts with, or is more restrictive than the limitations included in this Agreement or the Project Approvals;
iii.
limiting, reducing, or
substantially
modifying vehicular access or parking
availability
and facilities
from that described in
the Project Approvals
or otherwise
contemplated in the Project Approvals
;
iv.
limiting or controlling the rate, timing, phasing, or sequencing of the approval, development, or construction of all or any part of a Project, including the demolition or removal of existing buildings, facilities, or other infrastructure;
and
v.
limiting
the processing or procuring of applications and approvals for any Subsequent Approvals that are required to implement the Project .
4.5. Intentionally omitted
.
4.6. Intentionally omitted
.
4.7. Development Timing
and
Construction Schedule
.
.
ATTACHMENT 5
11 4896
-
5219
-
6391 v15
4.7.1 Development Milestones
.
To
ensure proper that the Project is developed in a timely manner,
Developer shall meet each of the following milestones (each, a “ Development
Milestone
”):
a) Submit to City complete applications
(with completeness determined by City in its
reasonable discretion)
for
necessary
Subsequent Approvals, including the Design Review Permit, required to develop the Project by no later than the date that is twenty -
four (24) months following
the Effective Date; and
b) Submit to City a signed commitment letter from an Upper Upscale hotel development partner by no later than the date that is twenty
-
four (24) months following the Effective Date;
c) If building permits for the Project have not been issued by the date which is thirty (30) months from the Effective Date, submit to City a financing plan reasonably acceptable to the City Manager demonstrating how Developer plans to fund construction of
the Project;
and
c
) Reach agreement with City on the
Agreement to
Share Transient Occupancy Tax
Revenue
,
the Maintenance
and Use
Agreement
, and the Parking Agreement
by no later than the
date
s established by
Section
6.2 of
this Agreement
.
During the Initial Term,
Developer may submit a written request, prior to the expiration of such Development Milestone
date, for City to extend the outside date(s) (each, a “ Development
Milestone Outside Date
”) by which one or more of the Development Milestones must be achieved. Developer’s extension request shall be accompanied by evidence to support a determination that
Developer has used
commercially reasonable
efforts to satisfy the applicable
Development Milestone in a timely manner
. Following review
of the request,
the
City
Manager
may
approve a Minor Amendment
to extend the applicable Development Milestone Outside Date for a period of time mutually agreeable to the Developer and City.
4.7.2 Construction Schedule
.
Developer
anticipates building the Project in a single
phase, provided that
Developer
shall have the Vested Right to develop the Project in phases and in the order, at the rate and at the time as
determined by the Developer
, subject to the terms and
conditions of this Development
Agreement.
Parties acknowledge that Developer cannot at this
time predict when or the rate at which the phases of the Project will be developed or the order in which each phase will be developed. Such decisions depend upon numerous factors, such as
market orientation and demand, construction financing, interest rates, absorption, completion and other factors which may not be within the control of Developer.
S
ince the California Supreme
Court held in
Pardee Construction Co. v. The City of Camarillo
, 37 Cal.3d
465 (1984), that the
failure of the parties therein to consider and expressly provide for the timing of development resulted in a later
-
adopted initiative restricting the timing of development prevailing over such parties’ agreeme
nt, it is the
Parties’
desire to avoid that result by acknowledging that
Developer
shall have the vested right to develop the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its business judgment, subject to the terms, requirements and conditions of
the Project Approvals and this Agreement
that
set forth the
requirements for timing of development of the Project
.
Consistent with the forgoing,
Developer
will use
commercially reasonable
efforts, in acc
ordance with its own business judgment and taking
into consideration market conditions and other economic factors influencing Developer’s business ATTACHMENT 5
12 4896
-
5219
-
6391 v15
decision, to commence or to continue development, and to develop the Project in a regular, progressive and timely manner in accordance with the provisions and conditions of this Agreement and the Project Approvals. Notwithstanding the foregoing, the Developer must satisfy its
Affordable Housing
Obligation
as defined in and
in accordance with the requirements of
Section
6.1.2 of this agreement and in no event shall
the
City issue a certificate of occupancy for
the
H
otel
prior to satisfaction of its
Affordable Housing
Obligation
.
4.8. Regulation by Other Public Agencies
. City and Developer acknowledge and agree that
other governmental or quasi
-
governmental entities not within the control of City
, including
the
Napa Sanitation District
and
the Napa County Health Department
,
possess authority to regulate
aspects of the development of the Property and the Project and that this Agreement does not limit the authori
ty of such other public agencies.
City shall
reasonably
cooperate with Developer in
Developer’s effort to obtain such permits and approvals as may be required by other governmental or quasi
-
governmental entities in connection with the development of, or the provision of services to, the Property and/or the Proj
ect; provided, however,
City shall have no obligation to incur any
costs, without compensation or reimbursement, or to amend any City policy, regulation or ordinance in connection therewith.
4.9. Life of Project Approvals
.
If, upon expiration of the Term of this
Agreement
,
Developer
has redeveloped
the entirety of the
Property consistent with the
Project Approvals
, the
Project
Approvals
shall continue to control until such time as the City Council changes the underlying land use designations or entitlements applicable to the Property consistent with all Applicable Law
and procedure.
If, upon expiration or earlier termination of this
Agreement, Developer has not
redeveloped
the entirety of the
Property consistent with
this
Agreement and the
Project
Approvals
,
then
the City Council, in its discretion at any time may
change the underlying land use designations
or entitlements applicable to
the parcels comprising
such Property consistent with all
Applicable
Law
and procedure.
Upon expiration of the Term of this Agreement, the City may continue to process applications for permits for development or remodeling on or of the Property consistent with the PD adopted in conjunction with this Agreement unless the City takes separate le gislative
action to terminate the PD.
4.10. Developer’s Right to Rebuild
. City agrees that Developer may renovate or rebuild portions of the Project at any time within the Term should it become necessary due to any casualty, including natural disaster or changes in seismic requirements. Such renovations or reconstruction shall be processed as a
Subsequent Approval
consistent with all prior Project Approvals and
Applicable Law. Any such renovation or rebuilding shall be subject to all design, density and other limitations and requirements imposed by this
Agreement and
shall c
o
mply with the Project
Approvals and
Applicable Law,
including the requirements of CEQA.
4.11. State and Federal Law
.
As provided in
Section
65869.5 of the Development Agreement
Statute, this Agreement shall not preclude the applicability to the Project of changes in laws,
regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in State or Federal laws or by changes in laws, regulations, plans or policies of special districts or other gover
nmental entities, other than City, created or operating pursuant to the laws of the State of California (“
Changes in the Law
”). In the event Changes in the Law
prevent or preclude, or render substantially more expensive or time consuming, compliance with one
or more provisions of this Agreement, the City and Developer shall meet and confer in good ATTACHMENT 5
13 4896
-
5219
-
6391 v15
faith in order to determine whether such provisions shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law. Nothing in this Agreement shall preclude City or Developer from contesting by any av ailable means (including
administrative or judicial proceedings) the applicability to the Project of
any such Changes in the
Law. If Changes in the Law preclude or substantially prevent or preclude, or render substantially more expensive or time consuming
, performance of this Agreement in a manner that makes the Project economically infeasible, Developer, in its sole and absolute discretion, may terminate this Agreement by providing written notice thereof to City.
4.12. Compliance with Laws
.
Developer, at its sole cost and expense, shall comply with the requirements of, and obtain all permits and approvals required by local, State and Federal agencies having jurisdiction over the Property or Project. Furthermore, Developer shall carry out the Project work in conformity with all Applicable Law, including
applicable state labor laws and standards;
Applicable City Regulations; and all applicable disabled and handicapped access requirements, including the Americans With Disabilities Act, 42 U.S
.C.
Section
12101,
et seq
., Government
Code
Section
4450,
et seq
., Government Code
Section
11135,
et seq
., and the Unruh Civil Rights
Act, Civil Code
Section
51,
et seq
.
4.13. Moratoria
. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise after the Effective Date, which relates to the rate, timing, or sequencing of the development or construction on all or any part of the Property
,
including, without limitation, any ordinance, resolution or other measure restricting or precluding the issuance of building permits
(“
Moratoria
”)
, the City agrees that the ordinance, resolution or
other measure shall not apply to the
Property or this Agreement, unless the changes are both (a) found by the City to be necessary to protect the health and safety of the residents of the City, and (b) generally applicable on a Citywide basis
, provided further that
in
no event shall a
New City
Law adopting any
Moratoria affecting the development of hotels
be considered
Applicable City
Regulations
during the Term of this Agreement
.
4.14. Project Approvals and Applicable City Regulations . Prior to the Effective Date, the Parties
shall prepare two (2) sets of the Existing Approvals and Applicable City Regulations, one (1) set for City and one (1) set for Developer, to which shall be added from time to time, Subsequent Approvals
and, to the extent permitted by
Section
4.2 above, New City Laws
, so that if it becomes
necessary in the future to refer to any of the Project Approvals or Applicable City Regulations, there will be a common set available to the Parties.
ARTICLE V
FEES
AND EXACTIONS
5.1. Impact Fees
.
For the period commencing on the Effective Date and continuing until the
end of the
tenth
year plus one day after the Effective Date
(the
“
Impact Fee Lock Period
”)
,
except
as provided herein,
Developer shall pay when due all existing Impact Fees applicable to the Project in effect as of the Effective Date at the rates in effect as of the Effective Date
subject to any rate
escalators in effect on the Effective Date
.
During the Impact Fee Lock Period, Developer shall
not be required to pay any escalations in such Impact Fees in excess of the fee escalation in effect on the Effective Date or any new Impact Fees enacted or established after the Effective Date .
The
I
mpact
Fees
and development schedule contained in
Exhibit F
represent the Parties’ good faith
ATTACHMENT 5
14 4896
-
5219
-
6391 v15
effort to identify the Impact Fees applicable to the Project based on estimated construction
during
the Impact Fee Lock Period and the rate escalators in effect on the Effective Date. City and Developer agree to amend and restate
Exhibit F
by operating memoranda
no later than upon the
issuance of the Design Review Permit
, as necessary, in the event one or more Impact Fees have been inadvertently omitted or if any escalation provisions have been inadvertently miscalculated .
The operating memorandum to amend and restate
Exhibit F
issued with the Design Review Permit
shall establish all Impact Fees
applicable to
the Project
during the Impact Fee Lock Period
provided in no event shall
Exhibit F
be amended and restated in excess of twenty percent (20%)
above the
Exhibit F
incorporated herein on the Effective Date.
During the Impact Fee Lock Period,
Developer shall not be required to pay any escalations in such Impact Fees in excess of the fee escalation in effect on the Effective Date or any new Impact Fees enacted or established after the Effective Date.
During
the Impact Fee Lock Period D
eveloper shall be all
owed to prepay Impact
Fees at any time following City approval of
the
D
esign
R
eview
P
ermit
(as defined in
Section
8.1 )
.
Following expiration of the Impact Fee Lock Period,
City may charge and, subject to Developer’s
statutory
right to protest and/or pursue a challenge in law or equity to
any
new or increased
Impact
Fees
(e.g., Government Code Section 66020)
, Developer shall pay any and all Impact Fees
imposed by City
, including new Impact Fees adopted after the Effective Date; provided, however, City shall only require Developer to pay new Impact Fees (including increases in Impact Fees) that are uniformly applied by City to all substantially similar types of d
evelopment
p
rojects and
properties
.
5.1.1 Fee Credit
, Existing Development
. All Impact Fees and Connection Fees applicable
to the development of the Project shall be offset and credited to Developer for the existing development on the Property.
5.1.2 Fee Credit
, Improvements
.
In no case shall the City impose any Impact Fee
or
Connection Fee
that lacks a proportional relationship or nexus from the impacts of the Development.
Developer agrees that
because the City is agreeing to reimburse Developer for a portion of the cost of the Reimbursable Project Public Improvements as set forth in Section
6.2 below,
other tha
n
fee credits for existing development described in
Section
5.1.1 Developer
is not
entitled to and will not seek any potentially applicable offsets or credits to c
ertain Impact Fees
or
Connection Fees applicable to the development of the Project ,
includ
ing
any
Street Improvement
Fees
,
Park and Recreation Acquisition and Development Fees
,
Water Connection Fees
,
Undergrounding Fess
,
or
Utility Fees
.
5.2. Processing Fees
.
Subject to Developer’s right to protest and/or pursue a challenge in law or equity to any new or increased Processing Fee, City may charge and Developer agrees to pay
any and all Processing Fees which are in effect on a City -
wide basis at the time those permits,
approvals or entitlements are applied for, and which are intended to cover the actual costs of processing the foregoing.
5.3. Other Agency Fees
. Nothing in this Agreement shall preclude City from collecting fees from Developer that are lawfully imposed on the Project by another agency having jurisdiction over the Project, which the City is required to collect pursuant to Applicable Law (“
Other Agency
Fees
”).
ATTACHMENT 5
15 4896
-
5219
-
6391 v15
5.4. Exactions
.
City may impose and Developer shall comply with those Exactions required by this Agreem
ent and
the Existing Approvals.
In addition,
City
may
impose Exactions in connection
with the
Subsequent
Approvals
(as defined in
Section
8.1 )
that
are necessary or appropriate to
comply with Applicable
Law
.
Except as otherwise specifically provided in this
Section
5.4 and in
Sections
4.2.5 ,
4.2.7 and
9.5 hereof, the City shall not impose any additional Exactions in connection with the development of the Project.
5.5. Connection Fees and Water Service
.
Developer shall
pay all
Connection
Fees in
the
amount in existence at the time the Connection fee is imposed , subject to
Section
5.1.1 .
ARTICLE VI
PUBLIC BENEFITS
\
PUBLIC BENEFITS OBLIGATIONS
6.1. Public Benefit Obligations
.
In consideration of the rights and benefits conferred by City to Developer under this Agreement, Developer shall perform the public benefit obligations and pay to City the
c
ontribu
tions set forth in this
Section
6.1 wit
hin the times set forth herein
.
6.1.1 Project Public Improvements
:
(i)
Plaza Concept
.
Developer shall construct
a
nd maintain a
new public plaza
(the “
New Plaza
”) of a size equal to or greater than the
Dwight Murray
Parcel
(
approximately 0.18
acres
) in a location
depicted at page
14 of the
Design
Guidelines
that is
roughly aligned with the
former Clay Street right
-
of
-
way
consistent with the Project Approvals. The New Plaza
shall be
consistent with the Public Realm component of the Guidelines and is intended to facilitate the
revitalization of downtown Napa by
restoring the historical grid and creating visual connections for pedestrians from Coombs Street to the 9/11 Memorial Garden and the Opera House. The “
New
Plaza
Improvements
”
will
be as set forth in the Project Approvals and will
consist of
a pedestrian
-
oriented ADA
-
compliant space with design elements for retail acti
vation
consistent with the Public
Realm component of the Guidelines connecting
to First Street and
containing
public gathering
opportunities that will include a public concourse running between the hotel and residential buildings that will lead from the First Street Napa
M
all to the re
-
activated Brown Street
c
orridor
adjacent to the Property (“
Brown Street Corridor
”)
. The
New Plaza
will bisect the interior part
of the project site and provide multiple access points to buildings, a direct pedestrian walkway
from the First Street Napa Mall, and more general pedestrian connection route through downtown ,
and shall feature
hardscape and landscape design, seating areas
.
The
New Plaza design shall be
included in the Design Review submittal for the Project.
Developer shall
design and construct
the
New Plaza
Improvements
in accordance with the Project Approvals
.
Subject to terms of
the
Maintenance and Use Agreement
defining terms for the maintenance, use and operation of the New Plaza,
Developer
may
retain
limited
r
ights to exclusively occupy the New Plaza at certain
times related to Project
u
se consistent with the
DMP E
A
.
Prior
to any Certificate of Occupancy
for
any portion of the
Project
Developer and City shall execute an agreement for the maintenance, use and operation of the New Plaza
in accordance with the terms set forth in
Exhibit G
prior to the
City’s acceptance of the
Irrevocable Offer of Easement as defined in the
Agreement For Exchange
Of Real Property And Joint Escrow Instructions for
the
Dwight Murray Parcel.
(ii)
Brown Street Corridor
.
The former Brown Street
C
orridor will be
improved
and is intended to be designed to meaningfully engage the adjacent public rights -
of
-
way between
ATTACHMENT 5
16 4896
-
5219
-
6391 v15
the site, the 9/11 memorial, Main Street, Napa Creek and the surrounding downtown areas and Oxbow district
as
depicted at page
15 of the
Design
Guidelines
(the “
Brown Street Corridor
Improvements
”)
.
This will transform the currently underutilized spaces adjacent to the Creek into an extension of the
P
roject’s
spaces for public and private use
.
Th
e
Brown Street Corridor
Improvements
shall be consistent with the Public Realm component of the Design
Guidelines and
will feature hardscape and landscape design, seating areas, and may include
vendor areas
integrated into the Brown Street Corridor
.
Developer shall
include
conceptual
design of the
Brown
Street
C
orridor
connection south of the Project
from the Project site to the
Third
Street
interface
with the Brown Street right
-
of
-
way
, provided that the Developer shall not be required to construct any of the designed
Brown Street Corridor Imp
rovements
south of First Street.
Design, p
ermitting,
approval
,
construction
and use
of
Brown Street Corridor
Improvements
south of First Street
shall
not be considered a component of the Project
.
The City shall be entitled to utilize the plans for the Brown Street Corridor Improvements from First Street to Third Street at no cost to the City.
Developer shall
design and construct
the
public improvements on
the Brown Street
Corridor
Improvements
in accordance with the Project Approvals
.
(iii)
Main Street
Drop
-
Off
.
Prior to issuance of the first Certificate of Occupancy for any portion of the Project and i
n connection with the
Brown Street Corridor
I
mprovements, t
he
Developer
shall
construct
a
vehicular/ride
-
share
drop
-
off area
within the existing
C
ity
p
arking
l
ot
adjacent to the Brown Street Corridor and
the
9/11 Memorial Garden
which shall be designed to
allow for access by emergency vehicles including
f
ire
truck
s.
(“
Main Street Drop
-
Off
Improvements
”)
.
Th
e
Main Street Drop
-
Off Improvements
shall be consistent wit
h the Public
Realm component of the
Design
Guidelines
and as
depicted at page
17 of the Design Guidelines,
and
Developer
shall
design and construct
the
Main Street Drop
-
Off Improvements
in accordance
with the Project Approvals
.
Prior to demolition of the existing City
-
owned enclosure, Developer and City shall
analyze and incorporate into the plans for the Main Street Drop -
Off Improvements or Project
improvement plans
s
olid
w
aste,
r
ecycling,
and
c
ompostables areas and services during
construction and permanently thereafter that shall include either :
(a) area(s) and fully compliant structures for one or more s
olid
w
aste
and
r
ecycling
e
nclosure(s) that meet City standards for
all
the
commercial
uses
adjacent to the Main Street Drop
-
Off
area
that are
in existence as of the Effective date
. The
enclosure(s)
must be
accessible by the
City’s authorized collection vehicle and at a location agreeable to the businesses in existence as of the Effective Date; collection vehicle accessibility and turning routes are to be coordinated with the City’s vendor (as of
the Effective Date Napa Recycling Waste Service (NRWS)) to facilitate standard servicing of all solid waste, separated bottles/glass, recyclable materials, and compostable materials generated at the site, and the size of the solid waste receptacle(s) for t he existing facilities
adjacent to the existing properties subject to this Agreement shall be equal to or greater than what existed prior to construction of the Project, unless directed otherwise by the City of Napa Utilities Department; or
(b) alternative solid waste, recycling,
and
compostable materials collection plan
serving the Main Street Drop
-
Off area and
all
existing facilities adjacent to the
Main Street Drop
-
Off area
acceptable to the City
Manager
.
ATTACHMENT 5
17 4896
-
5219
-
6391 v15
Project will ensure compliance with the Municipal Code for storage and collection and
m
unicipal Solid Waste, Recyclables and Compostables as described in Chapters 5.60 and 5.61 or other applicable sections of the Municipal Code
.
(iv)
9/11 Memorial Garden
.
Prior to issuance of the first Certificate of
Occupancy for any portion of the Project
t
he
9/11 Memorial Garden will be i
mproved as depicted
at page
15 of the Design Guidelines
and approved in Design Review.
(the “
9/11 Memorial Garden
Improvements
”).
(v)
Main Street Connection
.
Prior to issuance of the first Certificate of
Occupancy for any portion of the Project,
Developer shall design
and
construct
public
improvements to
create a mid
-
block crossing on Main Street
in the Public Realm as defined by the
Guidelines (“
Main Street
Connection
Improvements
”)
as further described herein as
depicted
at page
15 of the
Design
Guidelines
. The
Main Street
Improvements design
may
include
but are
not limited to: Rectangular Rapid Flashing Beacon, Street lighting, accessible curb ramps
and
side
walk, signage and striping in accordance with the adopted Manual of Uniform Traffic Control Devices, minor pavement restoration, wayfinding signs, and traffic calming measures such as raised crosswalk with curb extensions to accommodate the features listed
here
.
A concept
design
shall be provided to the City of Napa for its review, comment and submittal to other agencies with jurisdiction prior to the issuance of a Design Review Permit for the Project.
Upon City concept
design approval
and
issuance of
all
required permits
, the
Developer shall construct
the
Main Street
Connection
Improvements in accordance with the Project Approvals
.
(vi)
Intentionally Omitted
.
(vii)
Developer’s Maintenance Obligations
.
Developer shall be obligated to
maintain, repair and replace the New Plaza Improvements, the Brown Street Corridor Improvements,
the 9/11 Memorial Garden Improvements,
and the Main Street
Drop Off
Improvements, at a level at our above industry standards for such improvements at no cost to the City. The Developer’s maintenance obligations shall be set forth in a separate, recordable agreement consistent with terms included in
Exhibit G
which shall be recorded prior to the issuance
of the first Certificate of Occupancy for the Project.
6.1.2 Housing
.
To satisfy
Developer’s entire
A
ffordable
H
ousing
requirements
,
Developer
shall
: (i)
fund
its
“
Affordable Housing Obligation
”
in the amount of approximately
Two Million Thirty Seven Thousand Dollars ($2,037,000.00) as
described
and in accordance with
the Alternative Equivalent Proposal, attached as
Exhibit H
; and (ii) enter into the Affordable
Housing Agreement with the City
and the owner of the Affordable Housing Parcel
.
In the event
the Developer modifies the Project that is deemed a Major Modification, the Affordable Housing Obligation may be proportionally modified by the City.
In addition, Developer shall cause the
Affordable Housing Agreement to be recorded against the Affordable Housing Parcel by no later
than
twenty four (24) months following the Effective Date
.
Except as set forth herein, t
he Project
shall not be subject to any other Affordable Housing Impact Fees o
th
er affordable housing
obligations beyond the Affordable Housing Obligation
and recordation of the Affordable Housing
Agreement against the Affordable Housing Parcel
.
In the event that Developer fails to: (i) pay the
Affordable Housing Obligation in accordance with
Exhibit H
; or (ii) enter into and cause the
Affordable Housing Agreement to be recorded as required by this Section
6.1.2 Developer shall
ATTACHMENT 5
18 4896
-
5219
-
6391 v15
pay
the City the Affordable Housing Impact Fee in
accordance with Chapter 15.94 of the
Municipal Code.
6.1.3 Parking
.
P
arking for the Project shall be provided as described in Exhibit I
(
“
Parking Requirements and Supply
”
).
The City shall not require any parking quantities above the Parking Requirements and Supply and as contained in the PD.
No later than 12 months
following the issuance of
the first
vertical
B
uilding
P
ermit for any component of the Project,
the
Developer and City Manager shall
execute a new parking agreement
consistent with t
h
e
Parking
Requirements and Supply
that
include
s
either a
greed upon
lump sum payment or annual payments
to the City for the use of
public
parking
stalls
(the “
Parking Agreement
”)
.
6.1.4 Traffic Operations
.
In conjunction with the Design Review of the Project Developer shall prepare a traffic operation report following the City’s Traffic Impact Analysis Guidelines.
The purpose of this is to affirm that intersections in the vicinity of the Project meet the General Plan’s Intersection Level of Service (LOS) requirements.
If the Public Works Director determines
base on the traffic operations report that improvements are needed to maintain the Level of Service (LOS) requirements, the Developer shall fund “Traf
fic Operations Improvements” at those
intersections/and or driveway connections that do not meet the LOS requirements
provided that
such
Traffic Operations Improvements
are consistent with the
Downtown Napa Specific
P
lan and
have
a
nexus and
proportional relationship
to traffic impacts
of the Development
. These may
include but are not limited to channelization, signal timing changes, adding signal phases, striping, and signing.
6.1.5 Hotel Amenities
.
The
Project
shall meet the quality standards for
Upper Upscale
hotel
s
with a level of services, amenities, furnishings
, finishes and fixtures
equal to or better than
the
Upper Upscale
hotels listed in
the
Upper Upscale category of the
STR
Chain Scale
Rating
–
North America and Caribbean
, as amended from time to time
.
If
STR
ceas
es
publishing
the
Upper
Upscale
category of the STR
Chain Scales Rating
, the City shall select a new rating standard that,
in the City's reasonable judgment, most closely approximates the Upper Upscale
category of the
STR
Chain Scales
R
ating
in existence as of the Effective Date
.
6.1.6 City of
Napa
Business License
.
Developer, at its expense, shall obtain and maintain
a City of
Napa
business license at all times during the Term, shall include a provision in all general contractor agreements for the Project requiring each such general contractor to obtain and maintain a City of
Napa
business license during performance of the work of construction , and shall
otherwise comply with all requirements imposed under Title 5 of the City of Napa Municipal Code .
6.1.7 Sales Tax Point of Sale Designation
. Developer shall use good faith, diligent efforts
to the extent allowed by law
and provided that it does not add material costs to the cost of construction
to require all persons and entities providing bulk lumber, concrete, structural steel and pre
-
fabricated building components, such as roof trusses, to be used in connection with the construction and development of, or incorporated into, the Project, to (a ) obtain a use tax direct
payment permit; (b) elect to obtain a subcontractor permit for the job si te of a contract valued at
Five Million Dollars ($5,000,000) or more; or (c) otherwise designate the Property as the place of use of material used in the construction of the Project in order to have the local portion of the sales and use tax distributed di
rectly to City instead of through the county
-
wide pool. Developer shall
instruct
and cause
its general contractor(s) for the Project to instruct its/their subcontractors to ATTACHMENT 5
19 4896
-
5219
-
6391 v15
cooperate with City to ensure the local sales/use tax derived from construction of the Project is allocated to City to the fullest extent possible
, provided that it does not add material costs to the
cost of construction
. To assist City in its efforts to ensure that such local sales/use tax is so allocated to City, Developer shall on an annual basis provide City with such information as shall be reasonably requested by City regarding subcontractors working on the Project
with contracts in
excess of the amo
unt set forth above, including a description of all applicable work and the dollar value of such subcontracts. City may use such information to contact each subcontractor who may qualify for local allocation of use taxes to City
.
6.1.8 Public Art
.
To satisfy Developer’s entire public art contribution for the Project, i n
addition to the improvements described in
Section
6.1.1 , Developer
shall
install
on the Property or
within the adjacent areas of improvement described in
Section
6.1.1 public
art
or enhance
public
art
valued at $500,000.00
, or greater at the discretion of the Developer
(“
Public
Art
”)
,
at a time
no later than
the
issuance of
first
occupancy
permit
for
any component of
the Project
.
The Public
Art shall be installed in a
public place
,
as approved by the reviewing body with final design review authority for the
P
roject
.
The creator of
the P
ublic
A
rt shall be a
qualified
artist
selected by the
Developer
. Public
A
rt shall be displayed in a manner that will enhance its enjoyment by the general public
.
Except a
s provided in the foregoing sentence, Developer shall have no further public art obligations with respect to the Project
.
6.2. Sharing of Transient Occupancy Revenue for
Construction or
Financing of Public
Improvements
.
Prior to issuance of the first Certificate of Occupancy for any portion of the Project developer is required to
construct
the
Project Public Improvements
.
City
and Developer shall enter
into a TOT Sharing Agreement in accordance with the terms set forth in Exhibit J
whereby the
City wi
ll
make periodic payments to
Developer
in an amount equal to
a
portion of the
TOT
generated by the Project to
reimburse Developer for certain aspects of one or more
Reimbursable
Public Project Improvements that the City has agreed upon in advance and that exceed the City’s
authority to impose the obligation on the Developer as a condition of property development under Sheetz v. County of El Dorado
(2024) 601 U.S. 267)
(“
Reimbursement
Payments
”)
.
The City’s
obligation shall be
for a period of time not to e
xceed
1 0
-
years
from the first date the City issues a
final Certificate of Occupancy for the Project
(the “
Reimbursement Period
”)
and in no event
shall the City’s obligation to provide any Reimbursement Payments exceed
Thirty
-
three
Million
Dollars ($
33 ,000,000.00)
(the “
Reimbursement Cap
”)
.
Developer shall pay TOT at the rate and
in the amount applicable at the time the obligation to pay TOT is incurred. That is, the TOT rate will not be locked and can increase from the amount in effect as of the Effective Date.
6.2.1 Developer and City
(through the City
Manager
)
shall execute and record a TOT
Sharing Agreement
consistent with
the
Term Sheet For The
Agreement To Share Transient
Occupancy Tax Revenue
contained at
Exhibit J
prior issuance of a building permit
for any
vertical
portion of the
Project
.
6.2.2 The TOT Sharing Agreement shall (
a
) describe the Project Public Improvements
and improvement costs
incurred and paid
by Developer that
the City agrees in advance are eligible
to
be offset by
Reimbursement
Payments, (
b
) require Developer to operate and maintain the Project in conformance with this Agreement, (
c
) provide for City to make
Reimbursement
Payments to
Developer
in amounts
based on the TOT generated by Developer's operation of the Project
during
the Reimbursement Period not to exceed the Reimbursement Cap ,
and
(
d
) provide for the s
chedule
ATTACHMENT 5
20 4896
-
5219
-
6391 v15
of the
Reimbursement
Payments and the amount of payments in terms of percentages of
Transient
Occupancy Tax generated by Developer's operation of the Project. The costs associated with Project Public Improvements subject to
Reimbursement
Payments shall be determined from actual
hard and soft costs for design, permitting, construction, construction management and related costs of the Project Public Improvements and costs included shall
include
, without limitation:
(i) PG&E
(and other utility or Agency Fees
, defined below) permitting fees; (ii)
any
Performance and
Payment bonds; (i
ii
)
City required l
egal documentation fees; (iv)
Engineering and Design costs,
construction surveying, material testing, permitting, and inspection, (v) construction management overhead in the amount of 10% of the
Project Public
Improvement construction costs
incurred
from commencement of construction to final inspection
(
for
items (i) through (v)), and (vi)
Developer’s financing costs
associated with the Reimbursable Project Publi
c Improvements during
the 10
-
year payback period
(“
Public Improvement Final Costs
”).
All Public Improvement Final
Costs shall be subject to Developer providing documentation to the satisfaction of the City
Manager
in accordance with this
Section
6.2 which shall include without limitation, a copy of the agreements with design professionals, construction contracts, and proof of payment .
ARTICLE VII
ANNUAL REVIEW
7.1. Annual Review
.
7.1.1 Purpose
.
As required by California Government Code
Section
65865.1
,
Municipal
Code
Section
17.52.150
and
Section
E of the City’s “Procedures and Requirements for
Consideration of Development Agreements,” as established under City Resolution number R2018
-
136
, City and Developer shall review this Agreement and all actions taken pursuant to the terms of this Agreement with respect to the development of the Project every twelve (12) months to determine good faith compliance with this Agreement. Specifically, Ci ty
’
s
annual review shall be
conducted for the purposes of determining compliance by Developer with its obligations under this Agreement. Each annual review shall also document:
(
a
)
the status of the Project
development, and
(
b
) any extension of the Term of thi
s Agreement pursuant to
Section
3.2 .
7.1.2 Conduct of Annual Review
. The annual review shall be conducted as provided in
this
Section
7.1.2 . By December 1st of each year, Developer shall provide documentation of its good faith compliance with this Agreement during the calendar year, and such other information as may reasonably be requested by the City Manager.
Within ninety (90) days after receipt of
Developer’s
documentation
of good faith compliance with this Agreement, the City Manager shall
make a determination regarding whether or not Developer has complied in good faith with the provisions and conditions of this Agreement. This determination shall be made in writing with reasonable specificity, and a copy of the determination shall b e provided to Developer in the
manner prescribed in
Section
14.2 .
If the City Manager finds good faith compliance by Developer with the terms of this Agreement, Developer shall be notified in writing and the review for that period shall be concluded. If the City Manager is not satisfied that Developer is performing in a
ccordance with the terms and conditions of this Agreement, the City Manager shall prepare a written report specifying why the Developer may not be in good faith compliance with this Agreement, refer the matter to the City Council, and notify Developer in w riting at least
fifteen
(
15 )
business days in advance of the time at which the matter will be considered by the City Council. This notice shall include the time and place of the City Council’s public hearing to ATTACHMENT 5
21 4896
-
5219
-
6391 v15
evaluate good faith compliance with this Agreement, a copy of the City Manager’s report and recommendations, if any, and any other information reasonably necessary to inform Developer of the nature of the proceeding. The City Council shall conduct a publi c hearing at which Developer
must submit evidence that it has complied in good faith with the terms and conditions of this Agreement. Developer shall be given an opportunity to be heard at the hearing. The findings of the City Council on whether Develope
r has complied with this Agreement for the period under review shall be based upon substantial evidence in the record. If the City Council determines, based upon substantial evidence, that Developer has complied in good faith with the terms and conditions
of this Agreement, the review for that period shall be concluded. If the City Council determines, based upon substantial evidence in the record, that Developer has not complied in good faith with the terms and conditions of this Agreement, or there are s ignificant questions as to
whether Developer has complied with the terms and conditions of this Agreement, the City Council, at its option, may continue the hearing and may notify Developer of the City’s intent to meet and confer with Developer within
thirty (
30 )
days of such determination, prior to taking
further action. Following such meeting, the City Council shall resume the hearing in order to further consider the matter and to make a determination regarding Developer’s good faith compliance with the
terms and conditions of this Agreement. In the event City determines Developer is not in good faith compliance with the terms and conditions of this Agreement, City may give the Developer a written Notice of Breach, in which case the provisions of Article XII
,
below, shall apply
.
The City Manager
’s
conduct of the annual review in accordance with the
provisions of this
Section
7.1.2 shall be in lieu of the Planning Commission review identified in City of Napa Resolution 93
-
267
.
7.1.3 Failure to Conduct Annual Review
.
Failure of City to conduct an annual review
shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual review.
ARTICLE VIII
COOPERATION AND IMPLEMENTATION
8.1. Subsequent Approval
s
, Design Review
. Certain subsequent land use approvals,
entitlements, and permits other than the Existing Approvals, will be necessary or desirable for implementation of the Project (
“
Subsequent Approvals
”
). The
Subsequent
Approvals
may
include, without limitation, the following: amendments of the Existing Approvals, grading permits, building permits,
Design Review Permit (defined below)
,
sewer and water connection
permits, certificates of occupancy, lot line adjustments, parcel maps and/or subdivision maps, and any amendments to, or repealing of, any of the foregoing.
Subject to
Section
8.2.4 ,
Developer
must
apply for and
obtain
a Design Review P
ermit (“
Design Review
Permit
”)
, which is a
Discretionary Approval,
before development of
any portion of
the
Project may
proceed
other than
demolition
, grading and/or foundation
.
Developer’s application for a Design Review Permit shall be limited to and include the application components listed in Exhibit K
.
In connection with its
review of Developer’s Design Review Permit application
(s)
, City shall exercise its discretion in a
manner consistent with
(a)
the
design
-
related
criteria, guidelines and standards set forth in
the PD
including the Design Guidelines
;
and
(b)
Developer’s vested rights under this Agreement and the
Existing Approvals with respect to
permitted uses of the Property,
the number of
permitted
hotel
rooms,
the density and intensity of use of the Property
and
the maximum height of the
Project
.
ATTACHMENT 5
22 4896
-
5219
-
6391 v15
Notwithstanding the foregoing, Developer acknowledges that through
proper exercise of City
D
esign
R
eview related discretion
City may require
certain
building features which limit usable
interior building space and that
in order
for Developer
to achieve
its
desired
number of hotel rooms,
residential density or commercial spaces,
Developer
may need
to design
and build
hotel rooms
or
residential units
that are substantially smaller than industry standard.
Subject to
Section
4.8 of this
Agreement, n
othing herein shall prohibit Developer from reducing the number of H
otel
rooms (i.e.
161)
,
Market Rate Housing
(i.e. 78)
u
nits
or Retail (i.e. 30,000 square feet)
if Developer
determines
, in its sole discretion,
that the size
of: (i) the Hotel rooms required to achieve the 161
room maximum, (ii) the Market Rate Housing units required to achieve the 78 unit maximum, or (iii) the Retail square footage
is impracticable or financially infeasible.
An
y
s
ubsequent
Discretionary Action or Discretionary Approval ini
tiated by Developer that is not otherwise
permitted by or contemplated in the
Existing
Approvals
or
which changes the uses, intensity,
density, building height or timing of the Project, or decreases the lot area, setbacks, parking or other entitlements permitted on the Property shall be subject to the rules, regulations, ordinances and official policies
of the City then in effect
and City reserves full and complete discretion with
respect to any findings to be made in connection therewith .
8.2. Processing Applications for Subsequent Approvals
.
8.2.1 Timely Submittals by Developer
.
Developer acknowledges that City cannot begin
processing applications for
the Design Review Permit or other
Subsequent Approvals until
Developer submits complete applications on a timely basis
and pays applicable Processing Fees
.
Developer shall use diligent good faith efforts to (
a
)
provide to City in a timely manner any and
all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (
b
)
cause Developer
’
s planners, engineers, and all other co
nsultants to
provide to City in a timely manner all such documents, applications, plans and other materials required under Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent App
rovals.
Developer shall submit to the City its
Sequencing of Subsequent Approvals
and related approvals
by another agency having jurisdiction
over the Project
as depicted in
Exhibit L
upon submission of its application for a Design Review
Permit, which such Sequencing of Subsequent Approvals may be modified by developer from time to time to ensure the timely development and completion of the Project.
8.2.2 Timely Processing by City
.
Upon submission by Developer of all appropriate
and
complete
applications and Processing Fees for any pending Subsequent Approval, City shall, to the full extent allowed by Applicable Law, promptly and diligently, subject to City ordinances, policies and procedures regarding hiring and contracting, commence and comp lete all steps
necessary to act on Developer
’
s currently pending Subsequent Approval applications including:
(
a
)
providing at Developer
’
s expense and subject to Developer
’
s request and
prior
app
roval
by the
Community Development Director
, reasonable additional staff and/or staff consultants
or legal
counsel
for concurrent, expedited planning and processing of each pending Subsequent Approval application
(
Developer shall pay
such
costs at cost
, plus 10% for administrative costs incurred
)
;
(
b
)
if legally required, providing notice and holding public hearings; and ( c
)
acting on any such
pending Subsequent Approval application
.
8.2.3 No Change in Standards
. In the course of such review, City shall not apply criteria or standards that would conflict with Applicable Law, the Project Approvals, or previously ATTACHMENT 5
23 4896
-
5219
-
6391 v15
approved Subsequent Approvals. Consequently, City shall not use its authority to change the policy decisions reflected by the Project Approvals, expressly or otherwise, or to prevent, delay or modify development of the Project as contemplated by the Projec t Approvals, except in the case
of a violation or other enforcement action.
The City shall
process and approve Subsequent
Approvals in accordance with the final Sequencing of Subsequent Approvals, as may be amended from time to time.
8.2.4 Decision Making Authority on
Design Review
and Other Discretionary Permits
.
The
City Manager
shall make the final determinations on any Use Permit applications subject to Ch. 17.60, all Design Review applications for the Project subject to Ch. 17.62 of the Napa Municipal Code, all Certificate of Appropriateness applications subject to Ch. 15.52 of
the Napa
Municipal Code or any other discretionary permit that is not a Major Modification that also conforms to the Project approvals, provided that such applications are filed and processed in accordance with this Agreement within
18 months of the Effective Date. For applications filed more the
18 months after the Effective Date, all determinations shall be made in accordance with the decision
-
making authority as provided in the applicable provisions of the Napa Municipal Code, consistent with Article 4 of the Agreement. The decision of the City Manager
may be
appealed to the City Council within ten (10) days of the Director's decision.
8.2.5 Demolition
.
Developer may
apply for and the City shall process any permits to
allow Developer
commence
demolition activities on the Property prior to the approval of any Subsequent Approvals other than the demolition permit provided that the demolition permit contains demolition features that substantially conform to the demolition features on page ___ of
the Design Guidelines
.
Prior to the transfer of the City Property to Developer, Developer shall be required to obtain an
approved by the City Manager
prior to ente
ring the City Property and/or
conducting any demolition on City Property.
8.2.6 Sub
division
of Property
.
The
Existing
Approvals include a
Tentative
Parcel
Map
for the purpose of (a) reconfiguring current parcel boundaries on the Property
to
create the
dedication of the New Plaza and (b) allow for the creation of a condominium plan necessary to
develop, sell, lease or finance
the
Market Rate Housing units
. The City shall defer all design
related components of the
Tentative
Parcel
Map
application and approvals other
than
parcel
configuration to the Design Review Permit and the Final Map.
Provided it does not
reduce
the
siz
e or
location
of the New Plaza,
Developer shall have the right, from time to time or at any time, to apply for one or more subdivision maps applications, subdividing the Property into smaller developable parcels, as may be necessary in order to develop, sell, lease or finance any portion
of
the Property in connection with development of the Project consistent with the Project Approvals (“Subdivision Maps”).
All other
Subdivision Maps shall be processed in accordance with Project Approvals and the California
Subdivision Map Act and Title 16 (Subdivisions) of the Napa Municipal Code . Except to the extent provided in this Agreement and Project Approvals, all provisions of the City Subdivision Code and Regulations shall apply to the Project.
(i)
Tentative
Parcel
Map
Amendment
Approval
. The Community
Development Director
in consultation with the City Engineer
shall make findings and approve,
conditionally approve or deny any
Subsequent
Approval
tentative map or tentative parcel map
amendment
that conforms to the Project
A
pprovals without a public hearing. The Director may
ATTACHMENT 5
24 4896
-
5219
-
6391 v15
impose reasonable conditions
of
approval
for amendments to
the tentative map and may in
their
discretion
, deny approval of the map
amendments
if such conditions cannot be met.
(ii)
Final Map
Approval
.
Subsequent Approval
Final Maps shall be processed
in accordance with Project Approvals and the California Subdivision Map Act and Title 16 (Subdivisions) of the Napa Municipal Code
.
8.2.7 CEQA
. The Parties acknowledge that certain Subsequent Approvals may legally require additional analysis under CEQA.
Subject to
Section
9.5 , i
n the event supplemental or
additional environmental review is required for a Subsequent Approval, City shall limit such supplemental or additional environmental review to the scope of analysis mandated by CEQA and in consideration of the City’s discretion
to be exercised in connection with the Subsequent
Approval. Consistent with the City’s determination that the Project is
not subject to further
environmental documentation
under
CEQA pursuant to the City’s adopted findings related thereto, the City shall utilize, to the greatest extent legally possible, any applicable statutory or categorical exemptions from CEQA for any Subsequent Approval that is determined to be a discretionary
approval.
8.2.8 Substantial Conformance
. The
Community Development
Director shall review all
applications for Subsequent Approvals
for
substantial
conformity with the Project Approvals, and
substantial
conformity with any prior (or concurrent) Subsequent Approvals. The C ity
shall not
disapprove, require changes from or impose conditions inconsistent with the Project Approvals, or Subsequent Approvals it has previously approved, provided that the current submittal is consistent with any matter pr
e
viously approved
.
Applications for a Subsequent Ap
proval shall be submitted
to the Director.
(i)
The Director shall review the application as expeditiously as practicable and advise the applicant in writing that the application is complete or that additional materials or information are required within thirty (30) calendar days of submittal. If the Director determines that the application is not complete and add itional materials or information is required,
then upon resubmittal of the additional materials and information, the Director shall make a good faith effort to advise the applicant in writing within fourteen (14) calendar days that the submittal is complet
e or whether and what specific additional materials or information is still required. Upon the Director’s determination that the application is complete, the C ity
shall make a good faith effort
to expeditiously process and take an action on the complete application .
(ii)
Applications for Subsequent Approvals, that substantially conform to the Agreement and Project Approvals shall be reviewed and, if deemed complete and require no further CEQA review consistent with the applicable laws, shall be approved ministerially by th e
Community Development Director consistent with the intent and regulations adopted with this Agreement.
(iii)
Applications for Subsequent Approvals that do not substantially conform with the Agreement and Project Approvals or that require exceptions or exemptions to any applicable standards shall be processed as a Minor Amendment consistent with Section
9.3 of this
Agreement, unless said permits require a Major Amendment as determined in the Director’s sole discretion, which shall be processed consistent with
Section
9.2 to
this Agreement.
ATTACHMENT 5
25 4896
-
5219
-
6391 v15
(iv)
All Subsequent Approvals that qualify to be processed as a Minor Amendment, including any non
-
administrative exceptions or exemptions to any standards under City Laws shall be processed pursuant to the procedures contained in Chapter 17.56 –
Administrative
Exceptions, of the Napa Municipal Code.
8.2.9 Vesting of Subsequent Approvals
.
As Subsequent Approvals are adopted and
therefore become part of the Applicable Law to the Project, those Subsequent Approvals may refine the permitted uses, density, maximum height and size of buildings and other structures, provisions for reservation or dedication of land, and other terms and conditions applicable to the
Project. Once approved Subsequent Approvals are vested under the Agreement during the Term thereof. The C
i
ty shall not use the Subsequent Approval process to reduce the height, density,
types of permitted
and accessory uses, number of units, area of the buildings and development area, alter setbacks, parking requirements or other development standards within the Project or other program elements
.
8.2.10 Transfer of City Property
for Construction Purposes
.
The Parking Lot PSA and the
DMP EA set forth the Parties’
intent
regarding the
transfer
of
the City Parcels from the City to
Developer.
Subject to compliance with the Parking Lot PSA and the DMP EA
, t
he City shall
cooperate and
use good faith efforts to
execute any further documentation required to allow
construction to commence
at the
time of the first
B
uilding
P
ermit is ready to issue, notwithstanding
the completion of Project parcel configuration or Final Map approval.
ARTICLE IX
AMENDMENT
OF AGREEMENT AND
PROJECT
APPROVALS
9.1. Amendment
b
y Written Consent
. Except as otherwise expressly provided herein
(including
Section
7.1 relating to City
’
s annual review and
Section
13.3 relating to termination
or
modification
in the event of a breach), this Agreement may be terminated, modified or amended only by mutual written consent of the
P
ar
ties hereto or their successors in
interest or assignees and
in accordance with the provisions of Government Code
S
ections 65
8 67, 65867.5 and 65868.
9.2. Major Amendments to Agreement
. Any amendment to this Agreement which
materially
affects
:
(a) the
Term
; (b) permitted uses of the Property; (c)
the density or intensity of the use of
the Property or the maximum height or size of proposed buildings ; (d) conditions, terms
,
restrictions or requirements for subsequent
D
iscretionary
A
ctions; (e)
provisions for the
reservation or dedication of land
;
(f) public parking obligations
;
or (
g
) monetary contributions by
Developer, shall be deemed a
“
Major Amendment
”
and shall require giving of notice and a public
hearing before the Planning Commission
(and Cultural Heritage Commission, if applicable)
and
City Council. Any amendment which is not a Major Amendment shall be deemed a “
Minor
A
mendment
”
and shall not, except to the extent otherwise required by Applicable Law, require notice of public hearing b
efore the
P
arties may execute an amendment hereto. The City Manager or
their
designee shall have the authority to determine if an amendment is a Major Amendment or a Minor Amendment
.
9.3. Minor Amendment
. The City Manager shall have the authority to review and approve amendments to this Agreement provided that such amendments are not Major Amendm ents.
ATTACHMENT 5
26 4896
-
5219
-
6391 v15
9.4. Requirement for Writing
. No modification, amendment or other change to this Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing which refers expressly to this Agreement and is signed by duly authorized representatives of Developer
or
its
successor
in interest
and City
.
9.5. CEQA/Mitigation Measures
.
The City has prepared and certified the EIR and adopted the EIR Addendum, which evaluates the environmental effects of full development, operation and use of the Project, and has imposed all feasible mitigation measures to reduce the significant environmental effects of the Project. The Parties understand that the
EIR is intended to be used
not only in connection with the Existing Approvals, but also, to the extent legally permitted, in connection with necessary Subsequent Approvals. However, the Parti es acknowledge that certain
Subsequent Approvals may legally require additional analysis under CEQA. For example, a change in the Project could require additional analysis under CEQA if the triggering conditions identified in CEQA Guidelines
Section
15162 are met. In the event supplemental or additional CEQA review is required for a Subsequent Approval, City shall limit such supplemental or additional CEQA review to the scope of analysis mandated by CEQA in light of the scope of City’s discretion to
be ex
ercised in connection with the Subsequent Approval. Developer acknowledges that, if the City determines based upon supplemental or additional CEQA review that the Project will result in new significant effects or substantially increase the severity of eff ects that were
identified in the EIR, City may require additional feasible mitigation measures necessary to mitigate such impacts, provided however (except as otherwise expressly provided herein) such additional mitigation measures shall not prevent develo pment of the Project for the uses set forth
in the Existing Approvals. Developer shall comply with the mitigation measures in the MMRP, which reflect the mutually agreed
-
upon timing of specified improvements and Developer’s pro rata share of funding, wher
e applicable. In the event further mitigation measures are identified by such additional environmental review, City may require, and Developer shall comply at its expense with, all feasible mitigation measures necessary to substantially lessen new or subs tantially more
severe significant environmental impacts of the Project, which were not foreseen at the time of execution of this Agreement.
ARTICLE X
INSURANCE,
INDEMNITY AND COOPERATION IN THE EVENT OF
LEGAL CHALLENGE
10.1. Insurance Requirements
. Prior to commencement of construction of the Project, Developer shall procure and maintain, or cause its contractor(s) to procure and maintain, until the earlier of (a) the expiration of the Term; or (b) the completion of the Project, a commercial general liability policy in an amount not less than five million ($5,000
,000) combined single limit, including
contractual liability together with a comprehensive automobile liability policy in the amount of one million ($1,000,000), combined single limit. Suc
h policy or policies shall be written on an
occurrence form, so long as such form of policy is then commonly available in the commercial insurance marketplace and shall be placed with insurers with a current A.M. Best’s rating of no less than A
-
:VII or a r
ating otherwise approved by the City in its sole discretion. If Developer desires to satisfy the foregoing insurance requirements through its contractor, then Developer shall require in its construction contract with the general contractor that said gener al contractor comply
with all of the requirements of this
Section
10.1 . Developer or its contractor shall furnish at City’s request appropriate certificate(s) of insurance evidencing the insurance coverage required ATTACHMENT 5
27 4896
-
5219
-
6391 v15
hereunder, and City Parties shall be named as additional insured parties in such policies. The certificate of insurance shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination o f the coverage at least thirty (30) days in
advance of the effective date of any such material change, cancellation or termination (ten (10) days advance notice in the case of cancellation for nonpayment of premiums) where the insurance carrier provides su
ch notice to the Developer. Coverage provided hereunder by Developer or its contractor shall be primary insurance and shall not be contributing with any insurance, self -
insurance or joint self
-
insurance maintained by City, and the policy shall contain suc h an
endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City.
10.2. Indemnity
and Hold Harmless
.
To the fullest extent permitted by law,
Developer shall
indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City Parties from and against any and all Claims, including Claims for any bodily injury, death, or property damage, resulting directly or indirectly from the development or c onstruction of the Project by or
on behalf of Develo
per, and/or from any other acts, omissions, negligence or willful misconduct of Developer under this Agreement, whether such acts
,
omissions
, neg
ligence or willful
misconduct
are by Developer or any of Developer’s contractors, subcontractors, agents or employees, except to the extent such Claims arise from the sole active negligence or willful misconduct of City or City Parties.
Developer’s obligations under this
Section
10.2 shall survive
the expiration or termination of this Agreement.
10.3. Defense
and Cooperation in the Event of a
Litigation
Challenge
. City and Developer shall
cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement or the Project Approvals (
“
Litigation Challenge
”
), and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. To the extent Developer desires to contest or defe
nd such Litigation Challenge, (
a
) Developer shall take the lead role defending such Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice; (
b
)
City may, in its sole discretion, elect to be separately represented by the legal counsel of its choice in any such action or proceeding with the reasonable costs of such representation to be paid by Developer; (
c
)
Developer shall reimburse City, within ten (10) business days following City ’
s
written demand t
herefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the Litigation Challenge, including City ’
s
administrative, legal, and court costs and City Attorney oversight expenses; and ( d
)
Developer
shall indemnify, defend, and hold harmless City Parties from and against any damages, attorneys ’
fees or cost awards, including attorneys
’
fees awarded under Code of Civil Procedure
Section
1021.5, assessed or awarded against City by
way of judgment, settlement, or stipulation.
Any proposed settlement of a Litigation Challenge shall be subject to City ’
s approval not to be
unreasonably withheld, conditioned or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement or any Project Approvals, the settlement shall not become effective unless such ame
ndment or modification is approved by City
in accordance with Applicable Law, and City reserves its full legislative discretion with re spect
thereto. If Developer opts not to contest or defend such Litigation Challenge, City shall have no obligation to do so.
Developer’s obligations under this
Section
10.3 shall survive the expiration
or termination of this Agreement.
ATTACHMENT 5
28 4896
-
5219
-
6391 v15
ARTICLE XI
ASSIGNMENT
AND
TRANSFER
11.1. Assignment
.
Because of the necessity to coordinate development of the entirety of the Property pursuant to plans for the Project, particularly with respect to the provision of replacement public parking, certain restrictions on the right of Developer to assign or transfer its rights and
obligations
under this Agreement with respect to the Property, or any portion thereof, are necessary in order to assure the achievement of the goals, objectives and public benefits of the Project and this Agreement. Developer agrees
to and accepts the restrictions set forth in this
Section
11.1 as
reasonable and as a material inducement to City to enter into this Agreement. Developer shall have the right to sell or transfer its
rights and obligations under this Agreement
, in whole but not
in part, to any person, partnership, joint venture, firm, company, corporation or other entity (any of the foregoing, an “
Assignee
”) subject to the written consent of City;
provided that the City shall
not unreasonably withhold approval of an assignment to a proposed Assignee who
in the
reasonable opinion of the City Manager
can perform the duties and obligations of Developer
hereunder by demonstrating that assignee
has
similar or improved
(i)
ve
rifiable
source of
funds/financing for the entirety of the P
roject
;
(ii) e
xperience developing
Upper Upscale
hotel
projects
including the Market Rate Housing units
internationally or
in the United States
,
and
(iii)
e
xperience operating
Upper Upscale
hotel brands
; further
provided that Developer may assign its
rights
and obligations
under this Agreement without the consent of City to any corporation, limited liability company, pa
rtnership or other entity acquiring all of Developer’s fee interest in the Property whic
h
is controlled by
CS
, and “control,” for purposes of this definition, means effective management and control of the other entity, subject only to major events requiring the consent or approval of the other owners of such entity (“
Affiliated Party
”). Developer shall provide the City
with written notice of any proposed transfer or ass
ignment of Developer’s rights and
obligations
hereunder (each, an “
Assignment
”) at least thirty (30) days prior to such Assignment. Each such notice of proposed Assignment sha
ll be accompanied by evidence of Assignee’s agreement
to
assume
all of
Developer’s
rights and
obligations hereunder. Developer shall pay the actual costs borne by City in connection with its review of the proposed Assignment, including the costs incurred by the City Attorney’s Office.
A
written assignment and assumption agreement, in a form
approved by
the
City
Attorney
,
shall be required for any Assignment, including a permitted Assignment to an Affiliated Party, and
shall be recorded in the Official Rec
ords of Napa County
.
Any approved
Assignee
shall succeed to all
rights, duties and obligations of Developer
accruing
after the date of the Assignment
.
11.2. Successive Assignment
. In the event there is more than one Assignment under the provisions of this
Article XI
, the provisions of this
Article XI
shall apply to each successive
Assignment and Assignee.
ARTICLE XII
MORTGAGEE PROTECTION
12.1. Mortgagee Protection
.
Neither entering into this Agreement nor a breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value. Nothing in this Agreement shall prevent or limit Developer, at its sole discretion, from granting one or more Mortgages encumbering all or a portion of D eveloper
’
s interest in the
Property or portion thereof or improvement thereon as security for one or more loans or other ATTACHMENT 5
29 4896
-
5219
-
6391 v15
financing, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of Mortgagee who acquires title or possession to the Property, or any portion thereof, by foreclosure, trust ee
’
s sale, deed in lieu of foreclosure or
otherwise. Developer shall provide the City with a copy of the deed of trust or mortgage within ten (
10 )
days after its recording in the official records of
Napa
County; provided, however, that
Developer
’
s failure
to provide such document shall not affect any Mortgage, including without limitation, the validity, priority or enforceability of such Mortgage.
12.2. Mortgagee Not Obligated
. No Mortgagee (including one who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee ’
s sale, deed in lieu of foreclosure or
otherwise) shall have any obligation to construct or complete construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Prop
erty to any use except in full compliance with this Agreement and the other Project Approvals nor to construct any improvements
thereon or institute any uses other than
those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals. Except as otherwise provided in this Section
12.2 , all of the terms and
conditions contained in this Agreement and the other Project Approvals shall be binding upon and effective against and shall run to the benefit of any person or entity, including any Mortgagee, who acquires title or possession to the
Property, or any portion thereof.
12.3. Notice of
Breach
to Mortgagee
. If City receives a notice from a Mortgagee requesting a copy of any
Notice of Breach
given Developer hereunder and specifying the address for service thereof, then City agrees to use its diligent, good faith efforts to deliver to such Mortgagee, concurrently with service thereon to Developer, any
Notice of Breach
given to Developer. Each
Mortgagee shall have the right, but not the obligation, during the same period available to
Developer to cure or remedy, or to commence to cure or remedy, the event of Default claimed or
the areas of noncompliance set forth in City
’
s
Notice of Breach
. If a Mortgagee is required to
obtain possession in order to cure any Default, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure
,
but in no event may this period exceed
180
days from the
date the City delivers the
Notice of Breach
to Developer
.
12.4. No Supersedure
. Nothing in this
Article XII
shall be deemed to supersede or release a
Mortgagee or modify a Mortgagee
’
s obligations under any subdivision or public improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this
Article XII
constitute an obligation of City to such Mortgagee, except as to the notice requirements of
Section
12.3 .
ARTICLE XIII
DEFAULT
; REMEDIES; TERMINATION
13.1. Breach and Default
.
Subject to
Force Majeure
D
elays
or by mutual consent in writing,
and
except as otherwise provided by this Agreement, breach of, failure, or delay by either Party to perform any term or condition of this Agreement shall constitute a “ Default
.” In the event of any
alleged Default of any term, condition, or obligation of this Agreement, the Party alleging such Default shall give the defaulting Party notice in writing specifying the nature of the alleged Default and the manner in which
the
Default may be satisfactorily cured (“
Notice of Brea
ch
”).
The
ATTACHMENT 5
30 4896
-
5219
-
6391 v15
defaulting Party shall cure the Default within
thirty
(
30 ) days following receipt of the Notice of
Breach, provided, however, if the nature of the alleged Default is non -
monetary and such that it
cannot reasonably be cured within such
thirty
(
30 ) day period, then the commencement of the cure
within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure, provided that if the cure is not diligently prosecuted to completion, then no addition
al cure per
iod shall be provided. If the alleged failure is cured within the time provided above, then no Default shall exist and the noticing Party shall take no further action to exercise any remedies available hereunder. If the alleged failure is not cured, then
a Default shall exist
under this Agreement and the non
-
defaulting Party may exercise any of the remedies available under
this Agreement
.
13.2. Failure to Cure Default Procedure
. If after Notice of Breach
and expiration of the
applicable cure period
, the
Community Development
Director finds and determines that Developer
remains in
D
efault and that the City intends to terminate or modify this Agreement, the Director shall make a report to the Planning Commission and then set a public hearing before the Planning
Commission. If
,
after public hearing, the Planning Commission finds and determines, on the basis of substantial evidence, that Developer, has not cured
the D
efault pursuan
t to this Section, and that
the City
therefore may
terminate or modify this Agreement, Developer shall be entitled to appeal that finding and determination to the City Council in accordance with Section
13.10 below
.
13.3. Termination
or Modification
.
The City may terminate or modify this Agreement after the final determination of the City Council or, where no appeal is taken, after the expiration of the appeal perio
d
described in
Section
13.10 .
13.4. Specific Performance for Violation of a Condition . If City issues a Project Approval
pursuant to this Agreement in reliance upon a specified condition being satisfied by Developer in the future, and if Developer then fails to satisfy such condition, City shall be entitled to specific performance for the purpose of causing Developer to sati sfy such condition
.
13.5. Legal Actions
.
13.5.1 Institution of Legal Actions
.
In addition to any other rights or remedies
and subject
to the limitation of damages in
Section
13.7 , a Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any other remedies consistent with the purpose of this Agreeme
nt. Any such legal action shall be brought in the Superior Court for Napa
County,
California, except for actions that include claims in which the Federal District Court for the Northern District of the State of California has original jurisdiction, in which case the Northern District of the State of Calif
ornia shall be the proper venue.
13.5.2 Acceptance of Service of Process
. In the event that any legal action is commenced
by Developer against City, service of process on City shall be made by personal service upon the City Clerk of City or in such other manner as may be provided by law. In the event that any legal action is commenced by City against Developer, service of pr ocess on Developer shall be made
by personal service upon
Developer
, or in such other manner as may be provided by law.
ATTACHMENT 5
31 4896
-
5219
-
6391 v15
13.6. Rights and Remedies Are Cumulative
. The rights and remedies of the Parties are
cumulative, and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same D
efault or any other
D
efault by
the other
Party, except as otherwise expressly provided herein.
13.7. No Damages
. In no event shall a
Party, or its boards, commissions, officers, agents or
employees, be liable in damages
,
including without limitation, actual, consequential or punitive damages,
for any
D
efault under this Agreement
. It is
expressly understood and agreed that the
sole legal remedy available to a Party for a breach or violation of this Agreement by the other
Party
shall be an action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party, or to terminate or modify
this
Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of money from the other Party under the terms of this Agreement including, but not lim ited to
,
obligations to pay attorneys
’
fees
and obligations to a
dvance monies or reimburse monies. In connection with the foregoing provisions, each Party acknowledges, warrants and represents that it has been fully informed with respect to, and represented by counsel of such Party
’
s choice in connection with, the rights and
remedies of such Party hereunder and the waivers herein contained, and after such advice and consultation has presently and actually intended, with full knowledge of such Party ’
s rights and
remedies otherwise available at law or in equity, to waive
and relinquish such rights and remedies
to the extent specified herein, and to rely to the extent herein specified solely on the remedies provided for herein with respect to any breach of this Agreement by the other
Party
.
13.8. Resolution of Disputes
. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable Law, a Party shall, at the request of another Party, meet with designated representatives of the requesting Party promptly following its request. The parties to any such meetings shall attempt in g ood faith to resolve any such dispute.
Nothing in this
Section
13.8 shall
in any way be interpreted as requiring that Developer, City and/or City
’
s designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to in writing by the parties to such meetings
.
13.9. Remedies
U
pon Transfer or Assignment
.
Notwithstanding anything to the contr
ary
contained in this
Article XIII
, if Developer has transferred all of its interest in the Property pursuant to
Section
11.1 above, then the City may only exercise it
s remedies under this
Article XIII
against
the defaulting Developer or Assignee and such party’s
interest in
the Property.
13.10. Appeals to City Council
. Developer
may
appeal
a finding and/or determination of the
City
Manager or the
Planning Commission
to the City Council
,
provided
that appeal shall be
made by
Developer (including payment of applicable fees)
, if at
all, within twenty (20) days after the
mailing of the finding and/or determination to Developer. The City Council shall act upon the
appeal
within
the time period provided in Applicable City Regulations
or within
such
additional
period as may be agreed upon by Developer and the Ci
ty
.
13.11. Surviving Provisions
. In the event this Agreement is terminated,
neither
Party shall have
any further rights or obligations hereunder, except for those obligations of Developer set forth in Sections
10.2 and
10.3 .
ATTACHMENT 5
32 4896
-
5219
-
6391 v15
ARTICLE XIV
GENERAL PROVISIONS
14.1. Covenants Binding on Successors and Assigns and Run with Land . Except as otherwise
more specifically provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards, terms, covenants and obligations, shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons
or entities acquiring the Property, or any interest therein, and shall inure to the benefit of the Parties and their respective successors and assigns, as provided in Government Code Section
65868.5
.
14.2. Notice
. Any notice, demand or request which may be permitted, required or desired to be given in connection herewith shall be given in writing and directed to the City and Developer as follows:
If to the City:
City
Clerk
City of
Napa
City Hall, 955 School Street
Napa
, CA
94559
Telephone:
(
707
)
257
-
9503
with a copy to:
City Attorney
City of Napa
City Hall, 955 School Street
Napa, CA 94559
Telephone:
(
707
)
257
-
9516
If to Developer:
Coombs Street LLC
Christopher M. George
c/o CMG Mortgage
3160 Crow Canyon Road, Suite 400 San Ramon,
California 94583 E
-
mail: [email protected]
with a copy to:
Jerry Hunt
300 Venture Group
321 Hartz Avenue, Suite 200 Danville, California
94526 Email:
with a copy to:
Kevin Teague
Holman Teague Roche Anglin, LLP
1455 First Street, Suite 217
Napa, CA 94559
Telephone:
(707
) 927
-
4280
Notices
are
deemed effective if delivered by certified mail, return receipt requested, or commercial courier, with
delivery to be effective upon verification of receipt. Any Party may change its respective address for notices by providing written notice of such change to the other Part y
.
14.3. Reserved
.
ATTACHMENT 5
33 4896
-
5219
-
6391 v15
14.4. Counterparts
. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
14.5. Waivers
. Notwithstanding any other provision in this Agreement, any failures or delays by any Party in asserting any of its rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies, or deprive any such Party of its right to institute and maintain any actions or proceedings which it may deem necess ary to protect, assert or enforce any
such rights or remedies. A Party may specifically and expressly waive in writing any condition or breach of this Agreement by the other
Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision.
Consent by one Party to any act by
the other
Party shall not be deemed to imply consent or waiver
of the necessity of obtaining such consent for the same or similar acts in the future.
14.6. Construction of Agreement
. All Parties have been represented by counsel in the
preparation an
d negotiation of this Agreement
and this Agreement shall be construed according to
the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. Unless the c
ontext clearly requires otherwise, (a)
the plural and singular numbers shall each be deemed to include the other; (b)
the masculine, feminine, and neuter ge
nders shall each be deemed to include
the others; (c)
“
shall,
”
“
will,
”
or
“
agrees
”
are mandatory, and
“
may
”
is permissive; (d)
“
or
”
is not
exclusive; (e)
“
includes
”
and
“
including
”
are not limiting; and (f)
“
days
”
means calendar days
unless specifically provided otherwise
.
14.7. Headings
.
Section
headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Agreement
.
14.8. Severability
. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a specific situation, is found to be invalid, or unenforceable, in whole or in part for any reason, the remaining terms and provisions of this Agreement shall continue in full force and effect unless an essential purpose of t his Agreement would be defeated
by loss of the invalid or unenforceable provisions, in which case any Party may terminate this Agreement by providing written notice thereof to
the other Party.
14.9. Time
is of the Essence
. Time is of the essence of this Agreement. All references to time in this Agreement shall refer to the time in effect in the State of California.
14.10. Signatures
. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of
Developer and the City.
14.11. Entire Agreement
. This Agreement (including all exhibits attached hereto, each of which is fully incorporated herein by reference), integrates all of the terms and conditions mentioned herein or incidental hereto, and constitutes the entire understanding of the Parties with respect to the subject matter hereof, and all prior or contemporaneou s oral agreements, understandings,
representations and statements, and all prior written agreements, understandings, representations, and statements are terminated and superseded by t
his Agreement.
ATTACHMENT 5
34 4896
-
5219
-
6391 v15
14.12. Estoppel Certificate
. Developer or its lender may, at any time, and from time to time, deliver written notice to the City requesting the City to certify in writing that: ( a
)
this Agreement
is in full force and effect
;
(
b
)
this Agreement has not been amended or modified or, if so amended or modified, identifying the amendments or modifications ;
and (
c
)
Developer is not in Default of
the performance of its obligations, or if in Default, to describe therein the nature and extent of any such
D
efaults. Developer shall pay, within
thirty (
30 )
days following receipt of City
’
s invoice, the
actual costs borne by City in connection with its review of the proposed estoppel certificate, including the costs expended by the City Attorney
’
s
o
ffice in connection therewith. The
Community Development Director
shall be authorized to execute any certificate requested by
Developer hereunder. The form of estoppel certificate shall be in a form reasonably acceptable to the City Attorney. The
Community Development Director
shall execute and return such certificate
within
thirty (
30 )
days following Developer
’
s request therefor. Developer and City acknowledge
that a certificate hereunder may be relied upon by tenants, transferees, investors, partners, and Mortgagees. The request shall clearly indicate that failure of the City to respond within the thirty
-
day period will lea
d to a second and final request. Failure to respond to the second and final request within
fifteen (
15 )
days of receipt thereof shall be deemed approval of the estoppel certificate.
14.13. Recordation of Termination
. Upon completion of performance of the
P
arties or termination
of this Agreement, a written statement acknowledging such completion or termination shall be recorded by City in the Official Records of
Napa
County
.
14.14. City Approvals and Actions
. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise.
14.15. Negation of Partnership
. The Parties specifically acknowledge that the Project is a private development, that no Party to this Agreement is acting as the agent of any other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of th e terms or provisions of this
Agreement shall be deemed to create a partnership between or among the Parties in the businesses of Developer, the affairs of the City, or otherwise, or ca u
se them to be considered joint
venturers
or
members of any joint enterprise.
14.16. No Third Party Beneficiaries
. This Agreement is made and entered into for the sole protection and benefit of the signatory Parties and their successors and assigns, including Mortgagees. No other person shall have any right of action based upon any provision in this Agreement.
14.17. Joint and
Several
. If Developer is comprised of more than one person or entity, the obligations hereunder imposed upon Developer shall be joint and several.
14.18. Governing State Law
. This Agreement shall be construed in accordance with the laws of the
S
tate of California
, without reference to its choice of law provisions
.
14.19. Recordation
. As provided in Government Code
Section
65868.5, the City Clerk of
the City
of
Napa shall record a copy of this
Agreement with the Registrar
-
Recorder of the County of Napa
ATTACHMENT 5
35 4896
-
5219
-
6391 v15
within ten (10) days following its execution by both Parties. Developer shall provide the City Clerk with the fees for recording prior to or at the time of recording. ’
14.20. Exhibits
. The following exhibits are attached to this Agreement and are hereby incorporated herein by this reference for all purposes as if set forth herein in full .
Exhibit A
:
Legal Description CS Parcels
Exhibit B
:
Legal Description Parking Lot Parcels
Exhibit C
:
Legal Description Dwight Murray Parcel
Exhibit D
:
New Plaza Easement Area
Exhibit E
:
Project Description
Exhibit F
:
Impact Fee
List
Exhibit G
:
Term Sheet for Maintenance and Use Agreement
Exhibit H
:
Alternative Equivalent
Exhibit H
-
1 : Affordable Housing Parcel Legal Description
Exhibit I
: Parking Requirements and Supply
Exhibit J
: Term Sheet
for
Agreement to Share Transient Occupancy Tax Revenue
Exhibit K
:
Design Review Application Submittal List
Exhibit L
:
Sequencing of Subsequent Approvals
[Signatures on Next Page]
ATTACHMENT 5
36 4896
-
5219
-
6391 v15
IN WITNESS WHEREOF
, the City and Developer have executed this Agreement as of the Effective Date.
CITY:
CITY OF
NAPA
, a
California charter city
By:
Steve Potter
, City Manager
[Signature must be notarized]
ATTEST:
By:
Tiffany Carranza
, City Clerk
COUNTERSIGNED:
By: _______________________________
,
City Auditor
APPROVED AS TO FORM:
By:
____________
,
City Attorney
DEVELOPER:
COOMBS STREET
LLC, a California limited
liability company
By:
______________________________________
Name:
___________________________________
Title:
____________________________________
ATTACHMENT 5
Acknowledgment
4896
-
5219
-
6391 v15
NOTARY
ACKNOWLEDGEMENT
S
TO BE ATTACHED
ATTACHMENT 5