Poway City Council
August 16, 2022

PASSED, ADOPTED AND APPROVED at a Regular Meeting of the City Council of the City of Poway, California on the 16th day of August 2022 by the following vote, to wit:

AYES:

NOES:

ABSENT:

DISQUALIFIED:

Steve Vaus, Mayor
ATTEST:

Carrie Gallagher, CMC, City Clerk
10 of 10
August 16, 2022, Item #11
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AG EN DA REPORT City of Poway
August 16, 2022
Honorable Mayor and Members of the City Council
Chris Hazeltine, City Manager@-
Wendy Kaserman, Assistant City Manager 1,JJ<
Wendy Kaserman, Assistant City Manager
(858) 668-4502, [email protected]
Safe Poway Program Introduction and Authorization

CITY COUNCIL
The City of Poway prides itself on being the safest city in San Diego County and one of the safest cities in California. The City and the San Diego County Sheriffs Department work proactively to identify and utilize tools available to law enforcement to enhance the safety of the City. One such tool is a new program being proposed by the Sheriffs Department called Safe Poway. The City of Lemon Grove served as a pilot for this new program and the City of Santee is in the process of implementing the Safe Santee Program. The program includes two primary components. The first component is strategically placed Sheriff's Department cameras located throughout the City to both deter crime, as well as observe crime when it happens. The second component allows businesses and residents to voluntarily share access to both their live video or simply recorded video with the Sheriff's Department. This shared access has many benefits including providing additional existing resources to the Sheriffs Department to better police the City, potentially tracking crime in real time, and can help facilitate timely investigations and be a valuable tool for prosecutions.

Recommended Action:

It is recommended the City Council approve the City's participation in the Sheriffs Safe Poway Program, authorize the City Manager to execute the related Memorandum of Understanding with the Sheriffs Department, and authorize the appropriation of up to $35k tb fund additional cameras/technology .not funded by the Sheriffs Department.

Discussion:

Recently the Mayor, City Manager, and Assistant City Manager had the opportunity to meet with Sheriffs Department staff to learn about the proposed Safe Poway Program. The Captain and Lieutenant shared their experiences and successes in rolling out the program in the City of Lemon Grove. The City of Santee is in the final stages of approval of the program. The concept of this program is unique in that it is both a partnership between the City and the Sheriffs Department, and the 1 of 3
August 16, 2022, Item #11
Sheriffs Department and local businesses and residents. It provides an opportunity to deter crime by strategically placing cameras throughout the city, promoting awareness of the cameras to make potential criminals aware the Sheriffs Department is watching the city and as local businesses and residents opt in, also provides access to a wide network of privately maintained cameras and video.

Access to these private cameras, enhances the camera network established through the Sheriffs Department and can help further deter crime, allow crimes to be tracked in real time, streamline the process of getting the Sheriffs Department access to video that may document crimes and assist in prosecution. Participation in the program by businesses and residents is 100% voluntary and there is the option to allow access to live video or simply allow access to recorded video if the Sheriffs Department requests it.

The proposed Safe Poway Program would be fully managed by the Sheriffs Department. The Sheriffs Department will provide funding for the camera network infrastructure, as well as a specific number of cameras. Should the City wish to have additional cameras, and/or additional technology (such as license plate reading capability), the City would be responsible for funding the difference. In order to leave the City's options open, part of the requested action with this report, is giving the City Manager authorization to spend up to $35k in unassigned General Fund fund balance to pay for additional cameras and technology beyond what the Sheriffs Department is able to fund. Because the program is managed by the Sheriffs Department, should the City Council approve participation in the program, the City would enter into a separate Memorandum of Understanding (MOU) with the Sheriffs Department. The MOU specifies the Sheriffs Department is responsible for administration and operation of the Safe Poway Program and will defend and indemnify the City from any claim or proceeding to the extent it arises out of acts of the Sheriffs Department related to the Safe Poway Program. Part of the requested action from the City Council on this item is not only approval of participation in the program, but also authorizing the City Manager to execute the MOU with the Sheriffs Department in order to implement the program.

Should the City Council approve participation in the program, following execution of the MOU, City Staff and the Sheriffs Department will coordinate on purchasing and placement of the cameras as well as developing promotional material about the program to create awareness. A component of the promotional material will include information about the website where businesses and residents can opt in to share access to their cameras. The website will provide information about which camera systems are and are not compatible with the program infrastructure. Again, businesses and residents can opt to share access to live video feed or simply opt to share recorded information if it is requested by the Sheriffs Department.

Sheriff personnel with experience implementing the Safe Lemon Grove program will be in attendance at the August 16 City Council meeting. They will present an overview of the program and be available to answer questions.

Environmental Review:

This action is not subject to review under the California Environmental Quality Act (CEQA).

Fiscal Impact:

There is no fiscal impact associated with the City of Poway participating in the Safe Poway Program.

However, since the program is being implemented at no additional cost to the City, should the City want more than the minimum number of cameras the Sheriffs Department is able to provide or additional technology such as license plate reading capability, staff is recommending the City Council 2 of3
August 16, 2022, Item #11
authorize
the
City
Manager
to
expend
up
to
$3Sk
from
the
unassigned
General
Fund
fund
balance
on
additional
cameras
and/or
camera
technology
.

Public
Notification:

None. Attachments: None. Reviewed/Approved
By:

W~daserman Assistant
City
Manager
Reviewed
By:

Alan
Fenstermacher
City
Attorney
Ap::::7
,
c~ City
Manager
August 16, 2022, Item #12
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AGENDA REPORT CityofPoway
August 16, 2022
Honorable Chairman and Members of the Housing Authority Robert Manis, Director of Development Services ,/A)..

Marie Sanders, Senior Management Analyst
(858) 668-4637 or [email protected]

CITY COUNCIL
Exclusive Negotiating Rights Agreement and Right of Entry and License Agreement Between the Poway Housing Authority and Wakeland Housing & Development Corporation for the Monte Vista Affordable Housing Development Project (APN 275-460-61)
The Poway Housing Authority (Authority) owns 2.06 acres of real property located at 12674 Monte Vista Road (APN 275-460-61 ). The Housing Authority Board (Board) directed staff to solicit proposals to explore the concept of building an affordable multi-family rental development on the site with a target population mix of developmentally disabled adults and military veterans.

In order to confirm and finalize the project's feasibility and negotiate the terms of a Disposition and Development Agreement (DDA), staff recommends entering into an Exclusive Negotiating Rights Agreement (ENRA) and Right of Entry and License Agreement with Wakeland Housing & Development Corporation (Wakeland).

Recommended Action:

It is recommended the Poway Housing Authority Board: 1) Approve the Exclusive Negotiating Rights Agreement and Right of Entry and License Agreement with Wakeland (Attachments A & B); 2) Authorize the Executive Director to execute all necessary documents; and 3) Authorize the appropriation of $51,500 from the Housing Authority Fund (2900) to the Monte Vista Housing Site Project (MS012).

Discussion:

The Authority owns 2.06 acres of real property located at 12674 Monte Vista Road that was acquired from the former Redevelopment Agency (RDA) on August 31, 2012, as part of the Housing Asset Transfers list approved by the State Department of Finance. A map identifying the location of the site is included as Attachment C. The site is zoned Commercial Office with an Affordable Housing Overlay Zone. The site is currently vacant and is identified in the City's Regional Housing Needs Assessment in the Housing Element of the General Plan.
1 of 47
August 16, 2022, Item #12
On
September
1,
2020,
the
Board
directed
staff
to
explore
the
concept
of
building
an
affordable
multi­
family
rental
development
on
the
site
with
a target
population
mix
of
developmentally
disabled
adults
and
military
veterans.

On
December
15,
2020,
the
Board
authorized
staff
to
issue
a
Request
for
Qualifications
(RFQ)
to
begin
soliciting
proposals
from
qualified
non-profit
housing
developers
.

To
select a
developer,
a two-phase
solicitation
process
was
established,
consisting
of
an
RFQ
followed
by
a
Request
for
Proposal
(RFP)
. An
RFQ
was
issued
January
4,
2021,
and
the
deadline
for
submittals
was
January
27,
2021,
with
four
submittals
received.

Staff
completed
their
reviews
of
the
submittals,
and
three
respondents
were
selected
to
an
invite-only
RFP
requiring
a
substantial
proposal detailing
their
vision
of
the
site.

The
RFP
was
issued
on
April
8,
2021,
and
deadline
for
submittals
was
May
17,
2021.

Two
respondents
were
selected
to
move
forward.

To
assist
staff
in
their
review
of
the
RFP,
an
on-call
consultant,
Keyser
Marston
&
Associates,
was
used
to
provide
financial
feasibility
analysis.

After
careful
review
of
all
submittals,
presentations,
financing
strategies,
and
project
designs,
staffs
recommendation
is
to
enter
into
an
ENRA
with
Wakeland,
as
their
vision
of
the
site
best
aligned
with
the
project
goals
of
the
Board
. Wakeland
is
a non-profit
organization
founded
in
1998
and
has
created
over
7,500
affordable
homes
including
26 communities
in
San
Diego
County.

In
2009,
the
former
RDA
and
Wakeland
previously
entered
into
an
ENRA
on
the
site,
however,
due
to
the
dissolution
of
the
RDA,
the
project
was
terminated.

The
ENRA
will
specify
a
negotiating
period
of
180
days,
with
two
additional
45-day
extensions
to
establish
the
terms
for
a
proposed
DDA.

During
the
negotiating
period,
issues
to
be
addressed
in
the
negotiations
include
the following:
1)
ground
lease
of
the
property;
2)
design
of
units;
3)
physical
and
land
title
conditions;
4)
land
use
approvals;
5)
development
schedule
of
the
proposed
project;
6)
financing
of
the
proposed
project;
7)
marketing
and
management
plan;
and
8)
level
of
housing
affordability. In
addition
to
the
ENRA,
a
Right
of
Entry
and
License
Agreement
will
be
executed
granting
the
Developer
right
of
entry
to
the
site
to
conduct
reasonable
non-invasive
investigations
and
tests
to
determine
site
suitability.

The
proposed
housing
affordability
levels
consist
of
29 one-bedroom
units
(15
at
30%
of
area
median
income
(AMI),
4 at
50%
AMI,
and
10 at
59%
AMI);
15 two-bedroom
units
(1
at
30%
AMI,
7 at
50%
AMI,
and
7 at
59%
AMI);
15 three-bedroom
units
(2
at
30%
AMI,
7 at
50%
AMI,
and
6 at
59%
AMI);
and
one
two-bedroom
manager's
unit.

Additionally,
the
project
will
offer
a
full-time
on-site
resident
coordinator
to
offer
a
supportive
resident
services
program
which
would
be
curated
to
meet
the
needs
of
all
residents.

The
proposed
project
contains
60 units
in
3 buildings
that
are
all
two-story.

There
is
also
a
one-story
community
building.

Parking
for
the
project
will
be
sub-terranean
and
will
provide
for
138
parking
spaces
(2
.30
spaces/unit)
. Because
the
parking
is
sub-terranean,
there
will
be
significant
outdoor
amenities
including
a
tot
lot,
BBQ
area,
plaza,
play
area,
gazebo,
and
court.

A
Development
Review
(DR)
Permit
for
the
project
design
will
be
presented
to
the
City
Council
for
consideration
prior
to
or
concurrent
with
the
DDA.

A
conceptual
site
plan
for
the
proposed
development
is
provided
as
Attachment
D.

A
community
workshop
will
be
offered
to
provide
information
and
solicit
input
regarding
the
proposed
site
plan
and
preliminary
design
of
the
proposed
project.

The
community
workshop
shall
be
noticed
to
all
property
owners
and
occupants
within
a
500-foot
radius
of
the
property;
and
scheduled
prior
to
November
14,
2022
.
2 of
47 August 16, 2022, Item #12
An appropriation of $51,500 from the Housing Fund is necessary to cover the cost of on-call consultant services to review the developer's proforma and financing strategy and the drafting of required legal documents and agreements. Gap financing for the project is not anticipated, therefore, funds from the Housing Fund are not being requested as part of the project financing. If the terms of the DDA are successfully negotiated within the first 180-days, it will be brought to the Board for final consideration within the first quarter of 2023.

Environmental Review:

This item is not subject to review under the California Environmental Quality Act.

Fiscal Impact:

Approval of this item will result in the appropriation of $51,500; ($25,000 for outside legal fees (17011 ), $25,000 for real estate and financial consulting fees (17999), $500 for title reports (17999) and $1,000 for public noticing of community workshops (49320)) from the Poway Housing Authority's Uncommitted Fund Balance (2900) into the Monte Vista Housing Site Project (MS012).

Public Notification:

A copy of this report was provided to Wakeland Housing & Development Corporation.

Attachments:

A. Exclusive Negotiating Rights Agreement
B. Right of Entry and License Agreement
C. Zoning/Location Map
D. Conceptual Project Site Plan
Reviewed/Approved By:

Wendyd<aserman
Assistant City Manager
3 of47
Reviewed By:

Alan Fenstermacher
City Attorney City Manager/
Executive Director
August 16, 2022, Item #12

EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT

BY AND BETWEEN

THE POWAY HOUSING AUTHORITY AND WAKELAND HOUSING AND

DEVELOPMENT CORPORATION

MONTE VISTA HOUSING DEVELOPMENT
12674 Monte Vista Road, Poway CA 92064
This Exclusive Negotiating Rights Agreement ("Agreement") is entered into as of this 17th day of August, 2022 ("Effective Date"), by and between the POWAY HOUSING AUTHORITY, a public body, corporate and politic, acting in its capacity as the designated entity that assumed the housing functions of the former Poway Redevelopment Agency pursuant to California Health and Safety Code Section 34176(b)(3) ("Authority"), and WAKELAND HOUSING AND DEVELOPMENT CORPORATION, a California nonprofit corporation, ("Developer"), each a "Party" and collectively the "Parties", on the basis of the following facts:

RECITALS
A. Pursuant to California's Community Redevelopment Law (Health & Safety Code Section 33000, et seq.) ("Redevelopment Law"), the City Council ("City Council") of the City of Poway ("City") adopted the Redevelopment Plan for the Paguay Redevelopment Project Area ("Project Area") on December 13, 1983 by Ordinance No. 117, as amended by Ordinance No. 415 on June 15, 1993, as further amended by Ordinance No. 439 on December 13, 1994, as further amended by Ordinance No. 593 on December 2, 2003, as further amended by Ordinance No. 605 on August 3, 2004, as further amended by Ordinance No. 611 on October 26, 2004, as further amended by Ordinance No. 641 on July 18, 2006, and as further amended by Ordinance No. 657 on July 12, 2007 (collectively, "Redevelopment Plan"). The Redevelopment Plan affects and controls the development and use of all real property located within the Paguay Redevelopment Project Area within the City, as more particularly described and set forth in the Redevelopment Plan. The goals for the Redevelopment Plan include the alleviation of blighting conditions and the stimulation of economic development and affordable housing activities in the Project Area and the community.

B. By operation of Assembly Bill No. XI 26 (2011-2012 pt Ex. Sess.) ("AB 26"), the Poway Redevelopment Agency ("Redevelopment Agency") was dissolved on February 1, 2012.

C. On January 17, 2012, pursuant to Health and Safety Code Section 34173 of AB 26, the City Council declared that the City would act as the successor agency ("Successor Agency") to the Redevelopment Agency upon the dissolution of the Redevelopment Agency under AB 26. Additionally, on January 17, 2012, pursuant to Health and Safety Code Section 34176(b)(3) of AB 26, the City Council designated the Authority as the entity responsible for performing the housing functions of the Redevelopment Agency upon the dissolution of the Redevelopment Agency under AB 26 and to receive the housing assets of the Redevelopment Agency.

Page I of21
4:!GfJ47wakeland Housing and Development CorporatioA\J!TACHMENT A August 16, 2022, Item #12
D. On February 1, 2012, the Redevelopment Agency was dissolved by operation of law and the Authority acting as the housing successor became effective pursuant to AB 26. AB 26 has since been amended by various assembly and senate bills enacted by the legislature and signed by the Governor. AB 26 as amended is hereinafter referred t? as the "Dissolution Law".

E. By that certain Grant Deed dated March 11, 2011 and recorded in the official records of the office of the San Diego County Recorder on March 11, 2011 as Document No. 2011-0133655, the Redevelopment Agency conveyed to the Authority fee title of certain real property located in the Project Area at 12674 Monte Vista Road in the City of Poway, County of San Diego, State of California, and more specifically identified as Assessor's Parcel No. 275- 460-61-00 ("Site") for the purpose of increasing, improving and preserving affordable housing for persons and families of very low, low and/or moderate income in the City. The Site is approximately 2.06 acres and legally described in the Legal Description attached hereto as Exhibit A and incorporated herein by this reference and shown on the Site Plan attached hereto as Exhibit B and incorporated herein by this reference. The Site is zoned Commercial Office (CO) with an affordable housing overlay zone (AH-OZ).

F. Pursuant to the Dissolution Law, the California Department of Finance, by letter dated August 31, 2012, approved the Site as a "housing asset" of the former Redevelopment Agency, and further the Successor Agency's Oversight Board, by Resolution No. OSB 13-004 dated August 21, 2013, ratified and approved, among other matters, the Redevelopment Agency's transfer of the Site as a housing asset to the Authority in order for the Authority to carry out the housing functions previously performed by the former Redevelopment Agency.

G. The Authority desires to cause the development of the Site with a sixty (60) unit multi-family affordable rental housing development including units restricted for occupancy by very low-and extremely low-income families at affordable rent in accordance with the Redevelopment Law and units targeted to adults with developmental disabilities and military veterans and their families ("Project"). Certain requirements that will be imposed on the proposed Project, including but not limited to the affordability restrictions, are intended to also comply with any applicable requirements of the California Surplus Land Act. The details and scope of the proposed Project, including, but not limited to, the total number of units and the affordability mix of the units, are not yet determined or agreed upon and will continue to be reviewed and analyzed by the Parties during the Term of the Agreement. The proposed Project will be subject to regulatory agreements governing, in part, the affordability levels of the units pursuant to regulations governing federal low income housing tax credits authorized by the Tax Reform Act of 1986 and governed by Section 42 of the Internal Revenue Code and also regulations governing affordable housing pursuant to the Redevelopment Law and, if applicable and required, the California Surplus Land Act.

H. To implement development of the Site in accordance with the Redevelopment Law, on January 4, 2021, the Authority issued a Request for Qualifications for Affordable Housing Development on the Site ("RFQ"). In response to the RFQ, Developer submitted a Statement of Qualifications and Proposal dated January 27, 2021 ("First Proposal") whereby Developer proposes to acquire the Site by ground lease or acquisition from the Authority and to develop the Site in accordance with the RFQ. Thereafter, on April 8, 2021, the Authority issued a Request for Proposals for Affordable Housing Development on the Site ("RFP"). In response

~pl47 Wakeland Housing and Development Corporation v3
August 16, 2022, Item #12
to the RFP, Developer submitted a Proposal for the development of an affordable housing community in the City dated May 17, 2021 ("Second Proposal") whereby Developer proposes to acquire the Site by ground lease or acquisition from the Authority and to develop the Site in accordance with the RFP.

I. Developer's anticipated financing for the proposed Project includes a combination of federal and state low income housing tax credit ("LIHTC") equity investment, construction and permanent loans, deferred developer fee, funding from the California Department of Developmental Services, Section 8 project-based vouchers from the County of San Diego's Housing and Community Development division, and funding from the Affordable Housing Program.

J. After careful review of all submittals, the Authority selected Developer for negotiations, on an exclusive basis, for the potential development of the Site with the proposed Project.

K. The Authority and Developer wish to negotiate to reach agreement on the terms and conditions of a Disposition and Development Agreement ("DDA") for the proposed Project.

The DDA would provide the terms and conditions for the Authority's ground lease of the Site to Developer, if specified preconditions are satisfied, and for Developer's design, financing, construction and operation of the proposed Project.

L. The purpose of this Agreement is to establish procedures and standards for the negotiation by the Authority and Developer of a DDA. As more fully set forth in Section 3 .1 of this Agreement, Developer acknowledges and agrees that this Agreement in itself does not obligate, and shall not be construed to obligate, any party to acquire or convey any interest in real property, does not grant Developer the right to develop the Site or the proposed Project, and does not obligate the Authority or Developer to any activities or costs to develop the proposed Project except for Developer to engage in the preliminary analysis and negotiations contemplated by this Agreement.

M. Developer may form a special purpose entity that will be controlled by Developer or an affiliate of Developer, both of which is subject to the Authority's approval. As used in this Agreement, the term "Developer" includes both Wakeland Housing and Development Corporation and such special purpose entity.

N. This Agreement is in furtherance of the public purposes set forth in the Redevelopment Law. Completion of the proposed Project will provide needed affordable housing and will assist in ameliorating blighting influences in the Project Area. As part of a DDA and a ground lease, the Authority will be imposing occupancy and affordability restrictions on the proposed Project in order to obtain affordable housing production credits for the Authority pursuant to applicable law as housing units located in the Project Area and available at affordable rent to very low-and extremely low-income households.

IS:Nllfl47Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12

AGREEMENT
NOW,

THEREFORE,
in
consideration
of
the
foregoing
Recitals
and
the
mutual
covenants
and
promises
contained
herein
and
for
other
valuable
consideration,
the
receipt
and
sufficiency
of
which
is
hereby
acknowledged,
the
Authority
and
Developer
mutually
agree
as
follows:

ARTICLE

1. EXCLUSIVE

NEGOTIATIONS
RIGHT
Section
I.I
Good
Faith
Negotiations.

A.

The
Authority
and
Developer
shall
negotiate
diligently
and
in
good
faith,
during
the
Negotiating
Period
described
in
Section

1.2,
below,
the
terms
of
a DDA
providing
for
the
terms and
conditions
for
the
Authority's
ground
lease
of
the
Site
to
Developer,
if
specified
preconditions
are
satisfied,
and
for
Developer's
design,
financing,
construction
and
operation
of
the
proposed
Project.

The
proposed
Project
will
be
consistent
with
the
description
set
forth
in
the
Recitals
above,
including
the
RFQ,
RFP,
First
Response,
and
Second
Response,
all
of
which,
including
the
Recitals,
are
incorporated
herein
by
this
reference,
subject
to
changes
or
revisions
to
the
proposed
Project
that
are
needed
in
order
to
comply
with
applicable
state
and
federal
law
and
other
changes
or
revisions
that
are
mutually
agreed
to
by
the
Parties.

During
the
Negotiating
Period,
the
Parties
shall
use
good
faith
efforts
to
accomplish
the
respective
tasks
outlined
in
Article
2 to
facilitate
the
negotiation
of
a mutually
satisfactory
DDA.

B.

Among
the
issues
to
be
addressed
in
the
negotiations
for
a DDA
are:
(1)
the
ground
lease
of
the
Site
by
the
Authority
to
Developer;
(2)
the
design
and
type
of
units
to
be
constructed
as
part
of
the
proposed
Project;
(3)
the
physical
and
land
title
conditions
of
the
Site
and
remediation
of
any
adverse
conditions;
( 4)
the
land
use
approvals
necessary
for
the
proposed
Project;
(5)
the
development
schedule
for
the
proposed
Project
(including
timing
of
entitlement
applications
and
governmental
approvals);
(6)
financing
of
the
proposed
Project;
(7)
marketing
and
management
of
the
proposed
Project;
and
(8)
the
level
of
housing
affordability
and
the
nature
of
affordability
controls.

Section

1.2 Negotiating
Period/Term.

A.

The
negotiating
period
under
this
Agreement
and
term
of
this
Agreement
("Negotiating
Period"
or
"Term")
is
a
period
of
one-hundred
eighty
(180)
calendar
days,
commencing
on
the
, Effective
Date
set
forth
above
in
the
Preamble
of
this
Agreement.

The
Negotiating
Period
may
be
extended,
in
each
case,
by
mutual
written
agreement
of
the
Parties,
for
up
to
two
(2)
additional
forty-five
(45)
calendar
day
periods,
and
on
the
Authority's
behalf
by
the
Executive
Director
of
the
Authority
("Executive
Director")
if,
in
the
Executive
Director's
sole
discretion
and
determination,
sufficient
progress
toward
a
mutually
acceptable
DDA
has
been
made
during
the
initial
one
hundred
eighty
(180)
day
negotiating
period
to
merit
such
an
extension.

B.

If
a
DDA
has
not
been
approved
by
the
Authority
Board
of
Commissioners
("Authority
Board")
and
executed
by
the
Authority
and
Developer
by
the
Page
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expiration of the Negotiating Period, including any extension that may be granted by the Executive Director pursuant to the preceding Paragraph A, then this Agreement shall automatically expire and terminate without any action of the Parties, neither Party shall have any further duties, obligations, rights, or liabilities under this Agreement, except for those rights and obligations that expressly survive expiration or termination of this Agreement, and the Developer will have no further rights regarding the subject matter of this Agreement or all or any part of the Site and the Authority will be free to negotiate with other persons or entities with regard to all or any part of the Site. If a DDA is approved by the Authority Board and executed by the Authority and Developer by the expiration of the Negotiating Period, including any extension that may be granted by the Executive Director pursuant to the preceding Paragraph A, then, upon such execution of the DDA by the Parties, this Agreement shall automatically expire and terminate without any action of the Parties, all rights and obligations of the Parties shall be as set forth in the executed DDA, and neither Party shall have any further duties, obligations, rights, or liabilities under this Agreement, except for those rights and obligations that expressly survive expiration or termination of this Agreement.

Section 1.3 Exclusive Negotiations. During the Negotiating Period, including any extension granted pursuant to Section 1.2, Paragraph A, abovd, the Authority shall not negotiate with any entity, other than Developer, regarding development of the Site, or solicit or entertain bids or proposals to do so.

Section 1 .4 Identification of Developer's Representatives. Developer's representatives to negotiate the DDA and Project matters with the Authority are (i) Rebecca Louie, President and CEO of Developer, and (ii) Peter Armstrong, Vice President of Real Estate Development, of Developer. Developer may change the designated Developer's negotiating representatives with prior written notice to the Authority.

Section 1.5 Identification of Authority Representatives. The Authority's representatives to negotiate the DDA and Project matters with Developer are (i) Chris Hazeltine, Executive Director of the Authority, (ii) Bob Manis, Director of Development Services, of the City, and (iii) Marie Sanders, Senior Management Analyst, of the City. Chris Hazeltine, as the Executive Director of the Authority, has ultimate staff authority to make decisions related to this Agreement that can be made at the staff level, and to make staff recommendations to the Authority Board in connection with decisions related to this Agreement to be made at the Authority Board level. The Authority may change the designated Authority's negotiating representatives with prior written notice to Developer.

Section 1.6 Good Faith Deposit Alternative. In lieu of and as an alternate to requiring a good faith deposit from Developer, and as consideration for the Authority's execution of this Agreement, Developer, pursuant to this Agreement, shall provide the Authority with true and correct copies of all reports, studies, analyses, correspondence and similar documents prepared or commissioned by Developer with respect to this Agreement and the proposed Project, all as more fully set forth in Section 2.8, below.

~m.47Wakeland Housing and Development Corporation v3
August 16, 2022, Item #12

ARTICLE

2. NEGOTIATION
TASKS
Section

2.1 Overview.

To
facilitate
negotiation
of
the
DDA,
the
Parties
shall
use
reasonable
good
faith
efforts
to
accomplish
the
tasks
set
forth
in this
Article 2
in
a timeframe
that
will
support
negotiation
and
execution
of
a mutually
acceptable
DDA
prior
to
the
expiration
of
the
Negotiating
Period
.

Section 2.2
Development
Team.

The
Parties'
acknowledge
that
the
identity
and
quality
of
Developer's
team
that
will
oversee,
monitor,
and
manage
the
day-to-day
construction
and
development
of
the
proposed
Project
are
important
to
the
completion
of
the
tasks
set
forth
in
Article 2
below,
and
in
seeking
to
negotiate
a
mutually
acceptable
DDA.

Within
thirty
(30)
calendar
days
after
the
Effective
Date,
Developer
shall
identify
and
seek
Authority
approval
of
an
engineer,
architect,
and
lega'.l
counsel
and
any
additional
members
to
its
proposed
development
team,
which
approval
shall
not
be
unreasonably
withheld.

The
development
team
members
approved
in
accordance
with
this
Section
shall
comprise
the
"Development
Team"
for
the
proposed
Project.

Developer
may
replace
one
or
more
members
of
the
Development
Team
upon
both
prior
written
notice
to
the
Authority
and
receipt
of
Authority
approval,
which
approval
shall
not
be
unreasonably
withheld.

Section

2.3 Planning
Approvals.

Developer
acknowledges
that
the
proposed
Project
may
require
the
City's
approval
of
various
land
use
or
other
discretionary
approvals
and/or
other
entitlements
(collectively,
"Entitlements").

Within
sixty
(60)
calendar
days
after
the
Effective
Date,
Developer
shall,
at
its
sole
cost
and
expense,
submit
completed
conceptual
site
plan(s)
and
preliminary
design(s)
for
the
proposed
Project
to
the
Authority
and
the
appropriate
City
departments
for
their
informal
review.

The
Authority
and
Developer
shall
negotiate
in
good
faith
a deadline
for
the
formal
application
for
the
Entitlements
to
the
City,
which
deadline
will
be
included
in
the
DDA.

Developer,
at
its
sole
cost
and
expense,
will
be
required
to
obtain
all
discretionary
approvals
and
Entitlements
for
the
proposed
Project
prior
to
the
close
of
escrow
for
the
Site.

Nothing
in
this
Agreement
shall
in
any
way
impede
or
restrict
the
City's
authority
to
review
and
render
determinations
on
such
matters
in
its
sole
discretion.

Section 2.4
Financing
and
Costs
of
Project;
DDA
Requirements.

A.

Within
sixty
(60)
calendar
days
after
the
Effective
Date,
Developer
shall,
at
its
sole
cost
and
expense,
provide
the
Authority
with
a
detailed
financial
analysis
for
the
Project
containing,
among
other
matters,
the
acquisition,
development
and
operational
costs
of
the
proposed
Project,
a detailed
acquisition
and
development
budget,
a detailed
operating
income
statement
(including
all
proposed
tenant-based
subsidies)
and
expense
estimate
(including
Developer's
obligation
to
pay
an
annual
compliance
monitoring
fee
to
the
Authority
during
the
term
of
the
Authority's
required
affordability
restrictions
imposed
on
the
Project),
and
proposed
housing
affordability
levels,
including
proposed
income
restrictions
and
applicable
rents
and
utility
allowances,
supported
by
the
budget
("Financing
Proposal").

The
financial
analysis
shall
be
refined
by
the
Parties
during
the
Negotiating
Period,
as
appropriate,
and
will
be
used
to
evaluate the
financial
feasibility
of
the
proposed
Project
and
to
assist
in
the
negotiation
of
terms
regarding
payment
of
acquisition
and
development
costs.

The
Financing
Proposal
shall
also
include
the
terms,
scope
and
schedule
of
financing
for
the
proposed
Project.

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21 !t!OlfA.7Wakeland
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B. Developer shall, at its sole cost and expense, provide proof of financing commitments to the Authority staff within ninety (90) calendar days of submitting the detailed financial analysis to the Authority, or such other later date reasonably determined by the Authority if required by proposed Project financing. It is acknowledged that funding for the proposed Project will largely come from public resources and the timing for receipt of financial commitments will be based on public funding cycles and notification of award of funds.

C. Unless otherwise expressly stated in the DDA, the DDA will provide that Developer will be solely responsible for all acquisition, development and operational costs of the proposed Project. Developer acknowledges that neither the Authority nor the City, nor any of their officers, officials, employees, representatives, or agents has provided any direct or indirect information which in any way would indicate that the proposed Project is or is not subject to the State of California's prevailing wage requirements and/or federal prevailing wage requirements.

D. The negotiations for a DDA will address, among other items, the terms of the ground lease, the form, amount and terms of financing for the proposed Project; the scope and schedule of development; possible mitigation measures during construction; Project management and maintenance requirements; and the income and affordability restrictions to be placed on the Project, which restrictions of the Authority will be senior in priority to the construction and permanent financing.

E. The DDA will include a Scope of Development setting forth, without limitation, the number and size of the housing units, the total square feet of ancillary facilities, if any, the number of required parking spaces and the design parameters for the Site including, but not limited to, building height, acceptable architectural and landscape quality, access and circulation, on-site and off-site improvements, site-perimeter treatment, landscaped buffers, signage, lighting, and easements, if applicable. Use issues involving any proposed non­ residential uses, if any, their financial feasibility and their physical compatibility will also be addressed.

F. The DDA will include a sources and uses budget, which will be based upon a financial pro forma that has been approved by the Authority and a feasible method of financing, reasonably demonstrating the availability of all funds needed to complete the acquisition of the Site and development of the proposed Project. The DDA will require the submittal of documentation of all proposed loans, subsidies, and owner equity needed to carry out the proposed financing. Developer agrees to make continuing full disclosure of its proposed methods of financing the proposed Project, including the financing of any mitigation measures and/or off-site improvements that are required to obtain the necessary entitlements for the proposed Project.

G. The DDA will require Developer to prepare, at its sole cost and expense, a management plan ("Management Plan") that is reasonably acceptable to the Authority as a condition precedent to the close of escrow for the ground lease of the Site, describing the proposed plan for managing and operating the Site and proposed Project, including policies and procedures to assure accessibility to persons with disabilities. In addition, the Management Plan shall include, without limitation, a detailed plan and strategy for long term marketing, operation,

ttlIOf 4Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12
maintenance, repair and security of the proposed Project, inclusive of social services for the residents of the units, and the method of selection of tenants, rules and regulations for tenants, and other rental policies for the proposed Project. The DDA will further require Developer to submit on or before the first day of each fiscal year an estimated annual budget for management of the proposed Project in accordance with the Management Plan.

H. The DDA will require Developer, at its sole cost and expense, to contract for a resident services coordinator and to prepare a resident services plan ("Resident Services Plan") that is reasonably acceptable to the Authority as a condition precedent to the close of escrow for the ground lease of the Site, describing in detail the services to be provided to the residents of the proposed Project and all funding source(s) to be used to fund such services.

Separately, the DDA will require Developer, at its sole cost and expense, to prepare a resident services budget ("Resident Services Budget") that is reasonably acceptable to the Authority as a condition precedent to the close of escrow for the ground lease of the Site, describing in detail the annual sum of resident services to be paid out of operating expenses, including details about the services to be provided utilizing such funds, and the actual amount of funds necessary to fund any additional resident services for the upcoming year to be paid from other funding sources.

I. The DDA will be subject to the Authority's standard insurance requirements and all other applicable and customary Authority and City policies. The DDA will require appropriate performance and payment bonds ( consistent with industry standards involving public-private projects) with regard to the construction of the proposed Project or another form of assurance that is acceptable to the Authority.

J. The Authority will have the right to approve Developer's selection of the general contractor, architect, construction lender, permanent lender, Davis-Bacon Wage Compliance consultant (if applicable), Project manager, and other lenders, consultants and service providers for the proposed Project. The Authority will also have the right to review and approve any and all contracts and agreements with such entities for the proposed Project. Such approval shall not be unreasonably withheld.

K. Developer understands that the design and development objectives of the Authority for the proposed Project will be specified in the DDA and actual development will conform to these standards as well as all conditions imposed by the City in connection with the approvals and entitling of the Project. All drawings, plans and specifications for the proposed Project will be subject to the approval of the Authority and also the City's entitlement bodies, as applicable. The Parties will reasonably cooperate in the review and revision of Developer's documents and plans, and Developer agrees to timely submit all such documents and plans to the Authority and the City for their review.

L. The DDA will contain such other provisions as may be customary in Authority agreements and such other provisions as the Authority and Developer determine to be necessary or appropriate to implement the proposed Project.

Section 2.5 Ground Lease of the Site. Concurrent with Developer's development of the Financing Proposal, the Authority and the Developer shall seek to agree upon the terms and conditions for the ground lease of the Site, and the payment terms, security, nature, timing, cost,

tllnof-41 akeland Housing and Development Corporation v3 August 16, 2022, Item #12
and
priority
in
relation
to
other
Project
financing
of
Authority
assistance
to
the
proposed
Project,
if
any.

The
proposed
ground
lease
of
the
Site
shall
be
subject
to
confirmation
and
refinement
pursuant
to
the
formal
summary
report,
the
noticed
public
hearing
to
be
conducted
by
the
Authority
Board
and
the
City
Council,
and
the
required
findings
to
be
made,
in
accordance
with
California
Health
and
Safety
Code
Section
33433,
as
further
described
in
Section

2.11 below.

Section

2.6 Schedule
of
Performance.

Within
one-hundred
twenty
(120)
calendar
days
after
the
Effective
Date,
Developer
shall,
at
its
sole
cost
and
expense,
provide
the
Authority
with
a proposed
detailed
schedule
of
performance
for
the
proposed
Project
which
shall
be
based
on
the
Preliminary
Schedule
of
Performance
attached
hereto
as
Exhibit
C
and
incorporated
herein
by
this
reference,
and
which
shall
encompass
appropriate
and
necessary
legal,
administrative,
ground
lease,
financing,
construction,
and
lease-up
benchmarks.

Reference
to
document
consideration
in
the
Preliminary
Schedule
of
Performance
attached
hereto
as
Exhibit
C
by
the
Authority
or
the
City
does
not
mean
or
infer,
and
shall
not
be
interpreted
in
any
manner
to
mean
or
infer,
that
the
Authority
or
the
City,
if
applicable,
will
approve
such
documents,
and
that
nothing
herein
shall
in
any
way
impede
or
restrict
the
Authority's
or
the
City's
authority
to
review
and
render
determinations
on
such
matters
in
their
respective
sole
discretion.

The
Authority
will
reasonably
cooperate
with
Developer
in
order
to
enable
Developer
to
meet
its
deadlines;
however,
neither
the
Authority
nor
the
City
is
obligated
to
expedite
any
reviews,
approvals,
notices,
meetings
or
other
matters,
and
nothing
contained
in
this
Agreement
will
be
construed
to
limit
the
Authority's
or
the
City's
discretion
in
its
activities
in
connection
with
the
proposed
Project.

Section

2.7 Due
Diligence.

During
the
Negotiating
Period,
and
subject
to
the
terms
and
conditions
of
that
certain
Right
of
Entry
and
License
Agreement
to
be
entered
into
by
and
between
the
Authority
and
Developer
concurrently
with
this
Agreement,
as
more
thoroughly
discussed
in
Section

3.4,
below,
Developer
shall,
at
its
sole
cost
and
expense,
conduct
due
diligence
activities,
including
but
not
limited
to,
planning,
soils
report,
hazardous
materials
report,
financial
feasibility
and
title
adequacy.

A.

Physical
Adequacy
Determination.
(1)
Developer
shall,
at
its
sole
cost
and
expense,
determine
whether
the
Site
is
suitable
for
development
of
the
proposed
Project,
taking
into
account
the
geotechnical
and
soils
conditions,
the
presence
or
absence
of
toxic
or
other
hazardous
materials,
the
massing
of
the
proposed
Project
improvements
and
the
parking
requirements
imposed
on
projects
of
this
type
and
the
other
environmental
and
regulatory
factors
that
Developer
deems
relevant.

If,
in
Developer's
judgment
based
on
such
investigations
and
analyses,
the
Site
is
not
suitable
for
the
construction
of
the
proposed
Project,
Developer
must
notify
the
Authority
in
writing
no
later
than
one-hundred
eighty
(180)
days
after
the
Effective
Date
of
its
determination
("Unsuitability
Notice").

Upon
the
Authority's
receipt
of
an
Unsuitability
Notice
from
Developer
within
the
foregoing
time
period,
this
Agreement
shall
automatically
terminate
without
penalty
and
without
further
action
of
any
Party,
and
no
Party
shall
thereafter
have
any
further
duties,
obligations,
rights,
or
liabilities
under
this
Agreement,
except
as
set
forth
in
Section

3.8,
below,
or
except
for
those
rights
and
obligations
that
expressly
survive
termination
of
this
Agreement.

If
Developer
does
not
deliver
an
Unsuitability
Notice
during
the
first
one-hundred
eighty
(180)
calendar
days
after
the
Effective
Date,
then
the
Site
shall
be
deemed
physically
suitable
for
development
of
the
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21 1kJ.4Wakeland
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August 16, 2022, Item #12
proposed
Project
and
any
DDA
negotiated
pursuant
to
this
Agreement
shall
not
provide
for
an
additional
opportunity
for
Developer
to
determine
the
physical
suitability
of
the
Site
or
for
Developer
to
terminate
the
DDA
as
a
result
of
the
purported
physical
unsuitability
of
the
Site
(unless
such
unsuitability
arises
solely
from
an
event
occurring
subsequent
to
the
Parties'
execution
of
the
DDA).
(2)
Developer
will
be
solely
responsible
for
all
necessary
testing
of
the
Site
for
hazardous
materials
pursuant
to
all
applicable
laws,
statutes,
rules
and
regulations.

All
studies
and
reports
generated
by
Developer's
testing
for
hazardous
materials
will
be
made
available
to
the
Authority.

For
purposes
of
this
Agreement,
"hazardous
materials"
means
asbestos;
polychlorinated
biphenyls (whether or
not
highly chlorinated);
radon
gas;
radioactive
materials;
explosives;
chemicals
known
to
cause
cancer
or
reproductive
toxicity;
hazardous
waste,
toxic
substances
or
related
materials;
petroleum
and
petroleum
product,
including,
but
not
limited
to,
gasoline
and
diesel
fuel;
those
substances
defined
as
a
"Hazardous
Substance",
as
defined
by
Section
9601
of
the
Comprehensive
Environmental
Response,
Compensation
and
Liability
Act
of
1980,
42 U.S.C.
9601,
et
seq.,
or
as
"Hazardous
Waste"
as
defined
by
Section
6903
of
the
Resource
Conservation
and
Recovery
Act,
42 U.S.C.
6901,
et
seq.;
an
"Extremely
Hazardous
Waste,"
a "Hazardous
Waste"
or
a "Restricted
Hazardous
Waste,"
as
defined
by
The
Hazardous
Waste
Control
Law
under
Section
25115,
25117
or
25122.
7 of
the
California
Health
and
Safety
Code,
or
is
listed
or
identified
pursuant
to
Section
25140
of
the
California
Health
and
Safety
Code;
a
"Hazardous
Material",
"Hazardous
Substance,"
"Hazardous
Waste"
or
"Toxic
Air
Contaminant"
as
defined
by
the
California
Hazardous
Substance
Account
Act,
laws
pertaining
to
the
underground
storage
of
hazardous
substances,
hazardous
materials
release
response
plans,
or
the
California
Clean
Air
Act
under
Sections
25316,
25281,
25501,
25501.1
or
39655
of
the
California
Health
and
Safety
Code;
"Oil"
or
a
"Hazardous
Substance"
listed
or
identified
pursuant
to
311
of
the
Federal
Water
Pollution
Control
Act,
33 U.S.C.
1321;
a
"Hazardous
Waste,"
"Extremely
Hazardous
Waste"
or
an
"Acutely
Hazardous
Waste"
listed
or
defined
pursuant
to
Chapter
11 of
Title
22 of
the
California
Code
of
Regulations
Sections
66261.1
through
66261.126;
chemicals
listed
by
the
State
of
California
under
Proposition
65 Safe
Drinking
Water
and
Toxic
Enforcement
Act
of
1986
as
a chemical
known
by
the
State
to
cause
cancer
or
reproductive
toxicity
pursuant
to
Section
25249.8
of
the
California
Health
and
Safety
Code;
a
material
which
due
to
its
characteristics
or
interaction
with
one
or
more
other
substances,
chemical
compounds,
or
mixtures,
materially
damages
or
threatens
to
materially
damage,
health,
safety,
or
the
environment,
or
is
required
by
any
law
or
public
agency
to
be
remediated,
including
remediation
which
such
law
or
government
agency
requires
in
order
for
the
Site
to
be
put
to
the
purpose
proposed
by
this
Agreement;
any
material
whose
presence
would
require
remediation
pursuant
to
the
guidelines
set
forth
in
the
State
of
California
Leaking
Underground
Fuel
Tank
Field
Manual,
whether
or
not
the
presence
of
such
material
resulted
from
a
leaking
underground
fuel
tank;
pesticides
regulated
under
the
Federal
Insecticide,
Fungicide
and
Rodenticide
Act,
7 U.S.C.
136
et
seq.;
asbestos,
PCBs,
and
other
substances
regulated
under
the Toxic
Substances
Control
Act,
15 U.S.C.
2601
et
seq.;
any
radioactive
material
including,
without
limitation,
any
"source
material,"
"special
nuclear
material,"
"by­
product
material,"
"low-level
wastes,"
"high-level
radioactive
waste,"
"spent
nuclear
fuel"
or
"transuranic
waste"
and
any
other
radioactive
materials
or
radioactive
wastes,
however
produced,
regulated
under
the
Atomic
Energy
Act,
42 U.S.C.
2011
et
seq.,
the
Nuclear
Waste
Policy
Act,
42 U.S.C.
10101
et
seq.,
or
pursuant
to
the
California
Radiation
Control
Law,
California
Health
and
Safety
Code,
Sections
25800
et
seq.;
hazardous
substances
regulated
under
Page
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4Wakeland
Housing
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August 16, 2022, Item #12
the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., or the California Occupational Safety and Health Act, California Labor Code, Sections 6300 et seq.; and/or regulated under the Clean Air Act, 42 U.S.C. 7401 et seq. or pursuant to The California Clean Air Act, Sections 3900 et seq. of the California Health and Safety Code.
(3) Developer will also be responsible for making the Site suitable and usable for the proposed Project as a result of any site conditions including, without limitation, flood zones, Alquist-Priolo Earthquake Fault Zoning Act, and similar matters. Developer shall deliver to the Authority all reports within its possession or under its control regarding hazardous materials relating to the Site.

B. Title Adequacy Determination. Within thirty (30) calendar days following the Effective Date, at the Authority's sole cost and expense, the Authority shall cause a reputable title company to issue an initial Preliminary Title Report ("Report") of the Site to Developer. If Developer objects to any exception appearing on the Report or should any title exception arise after the date of the Report, Developer may object to such exception, provided such objection is made to the Authority in writing on or before 5 o'clock P.M. on the thirtieth (30th) day following the date that Developer receives the Report. If Developer objects in writing to any exception to title appearing on the Report by the foregoing deadline, the Authority, within thirty (30) calendar days of receipt of Developer's objection, shall notify Developer in writing whether the Authority elects to: (1) use reasonable efforts to cause the exception to be removed of record; (2) obtain, at Developer's sole cost and expense, a commitment from the title company for an appropriate endorsement to the policy of title insurance to be issued to Developer, insuring against the objectionable exception; or (3) terminate this Agreement unless Developer elects to take title subject to such exception. If the Authority elects to terminate this Agreement pursuant to this Section 2.7.B., without penalty, or if the Parties otherwise mutually agree to terminate this Agreement due to title issues, no Party shall thereafter have any further duties, obligations, rights, or liabilities under this Agreement, except as set forth in Section 3.8, below, or except for those rights and obligations that expressly survive termination of this Agreement. If Developer does not deliver any objection to the Authority by the deadline stated hereinabove, then the condition of title of the Site based on the Report shall be deemed accepted by Developer, this Agreement shall continue in effect, any DDA negotiated pursuant to this Agreement shall not provide for an additional opportunity for Developer to determine the suitability of condition of title of the Site or for Developer to terminate the DDA as a result of the purported unacceptability of condition of title of the Site ( unless such unacceptable condition of title arises solely from an event occurring subsequent to the Parties' execution of the DDA), and the condition of title at the close of escrow of the Site under any DDA executed by the Parties shall be as set forth in the Report.

Section 2.8 Reports.

A. Developer shall, at its sole cost and expense, provide the Authority with true and correct copies of all reports, studies, analyses, correspondence and similar documents prepared or commissioned by Developer with respect to this Agreement and the proposed Project, promptly upon their completion.

MJJI!,{ 4Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12
B. The Authority will, without any representation or warranty, provide Developer with true and correct copies of all reports, studies, analyses, correspondence and similar documents (collectively, "Documents"), exclusive of detailed property appraisals, prepared or commissioned by the Authority with respect to this Agreement and the proposed Project, promptly following execution of this Agreement and with respect to Documents then in its possession or under its reasonable control, and thereafter, promptly upon their completion with respect to any subsequently prepared Documents.

C. During the negotiations, Developer agrees, at its sole cost and expense, to make full disclosure to the Authority of all pertinent information in its possession or under its control concerning Developer or its affiliates, the Site and/or the proposed Project. Upon the Authority's written request and to the extent in Developer's possession, Developer will cooperate with the Authority by providing preliminary title reports, market studies, soils reports, surveys, phase I environmental report and additional information and data relating to the Site, the proposed Project, the proposed financing, or Developer or its affiliates, as the Authority may reasonably request.

D. The Authority reserves the right, during the Term of this Agreement, to request reasonable additional information and data from Developer that it considers necessary for review and evaluation of the Site and the proposed Project, which Developer will provide in a timely manner.

Section 2.9 Organizational and Related Documents.

A. Developer shall, at its sole cost and expense, provide the Authority with true and copies of its formation and organizational documents, evidencing that Developer (including any special purpose entity established for the proposed Project) lawfully exists and is in good standing to perform its obligations under this Agreement and any mutually negotiated DDA, including, but not limited to, certificate(s) of good standing, and any other information reasonably requested by the Authority relating to the formation, organization, and financial capacity of Developer.

B. All information regarding the Developer's business practice provided to the Authority will remain confidential to the extent permissible by applicable law including, without limitation, as permitted under the California Public Records Act (California Government Code Section 6250 et seq.). The Authority will give notice to Developer of the Authority's receipt of any request made under the California Public Records Act for disclosure of any documents provided by Developer to the Authority or the City and, if permissible within applicable law and regulations and not detrimental to the Authority or the City, provide an opportunity for Developer to seek to prevent the disclosure of such Developer documents. Both Parties recognize and acknowledge that the Authority, the City and their departments are subject to the California Public Records Act and, as such, the Authority and/or the City may be obligated under applicable law or regulations to disclose any such documents or other information of Developer. If the Authority or the City is required to defend an action under the California Public Records Act or similar law or regulation, with regard to a request for disclosure of any of the documents or reports related to Developer or its affiliates, the Site and/or the proposed Project, Developer agrees to indemnify, defend, protect, and hold harmless the Authority, the

Unof 4Wakeland Housing and Development Corporation v3
August 16, 2022, Item #12
City,
and
their
elected
and
appointed
officials,
officers,
employees,
agents,
contractors,
and
volunteers
(collectively,
including
the
Authority
and
the
City,
"Poway
Indemnitees")
from
all
costs
and
expenses
relating
to
such
defense
or
such
action,
including
reasonable
attorneys'
fees
and
costs,
and
all
other
costs
and
expenses
arising
out
of
such
action
including,
without
limitation,
any
settlement
payment
or
judgment.

Developer's
indemnification
obligations
under
this
Paragraph
will
survive
the
expiration
or
termination
of
this
Agreement
and
will
not
be
limited
by
any
insurance
coverage.

Section

2.10 Environmental
Review.

A.

Developer,
at
it
sole
cost
and
expense,
will
be
responsible
for
compliance
with
the
requirements
of
the
California
Environmental
Quality
Act
("CEQA")
pursuant
to
California
Public
Resources
Code
Sections
21000
et
seq.
and
California
Code
of
Regulations
Sections
15000
et
seq,
in
connection
with
the
acquisition
of
the
ground
lease
interest
in
the
Site
and
the
development
of
the
proposed
Project,
including
all
off-Site
improvements.

Developer
will
be
solely
responsible
for
paying
any
and
all
costs
and
expenses
associated
with compliance
with
applicable
CEQA
requirements
(including,
without
limitation,
any
required
Environmental
Impact
Report
and/or
other
required
environmental
documents).

Developer
will
respond
fully
and
in
a timely
manner
to
requests
for
information
from
the
Authority,
the
City
and
any
of
their
agents,
representatives
and
consultants.

Consideration
of
the
DDA
and
ground
lease
of
the
Site
by
the
Authority
are
conditioned
on
the
Authority's
determination
to
proceed
with,
modify
or
cancel
the
Project
based
on
the
results
of
the
subsequent
environmental
review.

Developer
must
not
undertake
or
unconditionally
commit
any
funds
to
physical
or
choice-limiting
actions,
including
property
acquisition,
demolition,
movement,
rehabilitation,
conversion,
repair
or
construction
prior
to
the
environmental
clearance.

Nothing
in
this
Agreement
shall
be
construed
to
compel
the
Authority
or
the
City
to
approve
or
make
any
particular
findings
with
respect
to
such
CEQA
documentation.

Developer
shall
provide
such
information
about
the
proposed
Project
as
may
be
required
to
enable
the
Authority
to
consider
any
CEQA-required
document
and
shall
otherwise generally
cooperate
with
the
Authority
to
complete
this
task.

B.

If
the
Authority,
in
its
sole
discretion,
determines
that
the
approval
of
the
DDA
and
ground
lease
of
the
Site
requires
non-feasible
mitigation
measures,
or
fails
to
yield
benefits
that
outweigh
significant unavoidable
impacts,
or
the
Authority
otherwise
determines,
in
its
sole
discretion,
not
to
make
any
finding
required
by
CEQA
as
a prerequisite
to
approval
of
the
DDA
and/or
ground
lease
of
the
Site,
the
Authority
may
terminate
this
Agreement,
without
penalty.

Upon
such
termination,
neither
Party
shall
have
any
further
duties,
obligations,
rights,
or
liabilities
under
this
Agreement,
except
for
those
rights
and
obligations that
expressly
survive
termination
of
this
Agreement.

C.

The
Parties
intend
this
Agreement
to
reflect
the
basic
understanding
between
them,
but
agree
that
the
transaction
contemplated
herein
shall
be
subject
to,
and
contingent
on,
the
Authority
Board's
approval,
and
the
City
Council's
approval
if
applicable,
in
its
respective
sole
discretion,
of
a
mutually
acceptable,
definitive,
and
final
DDA
as
may
be
negotiated
by
the
Parties,
the
Authority's
and
Developer's
execution
of
such
DDA,
and
final
CEQA
review
and
approval
by
the
Authority
Board
and
City
Council.

This
Agreement
does
not
constitute
a legally
binding
commitment
to
a specific
project,
to
the
proposed
Project,
or
to
the
ground
lease
of
the
Site.

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August 16, 2022, Item #12
Section

2.11 Health
and
Safety
Code
Section
33433
Report.

The
Authority
shall
prepare,
at
Developer's
sole
cost
and
expense,
the
necessary
documentation
pursuant
to
California
Health
and
Safety
Code
Section
33433
to
be
submitted
to
the
Authority
Board
and
the
City
Council
in
conjunction
with
the
Authority's
and
the
City's
consideration
of
any
DDA
that
is
prepared
pursuant
to
the
negotiations
under
this
Agreement.

The
summary
report
required
by
California
Health
and
Safety
Code
Section
33433(a)(2)(B)
will
contain
the
estimated
value
of
the
Site
determined
at
its
highest
and
best
use
under
the
Redevelopment
Plan
and
the
estimated
value
of
the
Site
determined
at
the
use
and
with
the
conditions,
covenants
and
development
costs
required
pursuant
to
the
proposed
DDA.

Section

2.12 Progress
Reports.

From
the
Effective
Date
and
every
fifteen
(15)
calendar
days
thereafter,
Developer
shall,
at
its
sole
cost
and
expense,
make
written
progress
reports
to
the
Authority
advising
the
Authority
representatives
of
the
status
of
Developer's
performance
of
obligations
required
by
this
Agreement,
the
status
of
negotiations
of
matters
stated
in
Article
2 of
this
Agreement,
and
the
status
of
studies
being
made
and
matters
being
evaluated
by
Developer
with
respect
to
this
Agreement and
the
proposed
Project.

Section 2.13
Project
Images.

Developer
hereby
consents
to
the
use
by
the
Authority
of
images
of
the
proposed
Project,
its
models,
plans
and
other
graphical
representations
of
the
proposed
Project
and
its
various
elements
("Project
Images")
in
connection
with
marketing,
public
relations,
and
special
events,
websites,
presentations,
and
other
uses
required
by
the
Authority
in
connection
with
the
proposed
Project.

Such
right
to
use
the
Project
Images
will
not
be
assignable
by
the
Authority
to
any
other
party
(including,
without
limitation,
any
private
party)
without
Developer's
prior
written
consent.

Use
by
the
Authority
of
Project
Images,
Developer's
name
or
the
names
of
its
affiliates
will
be
subject
to
Developer's
prior
approval,
which
will
not
be
unreasonably
withheld,
conditioned,
or
delayed.

For
any
Project
Images
provided
to
the
Authority
by
Developer,
Developer
will
use
reasonable
efforts
to
obtain
any
rights
and/or
consents
from
any
third
parties
necessary
to
provide these
Project
Image
use
rights
to
the
Authority.

In
the
event
that
the
Authority
and
Developer
enter
into
the
DDA,
the
Authority's
right
to
use
the
Project
Images
will
be
as
set
forth
therein.

Section 2.14
Community
Engagement.

The
Authority
and
Developer
shall
confer
and
seek
agreement
on
an
appropriate
strategy
to
obtain
input
from
community
members
regarding
the
proposed
Project.

At
a minimum,
Developer
shall,
at
its
sole
cost
and
expense,
take
the
lead
in
noticing
and
conducting
a
community
workshop
("Community
Workshop")
to
provide
information
and
solicit
input
regarding
the
proposed
site
plan
and
preliminary
design
of
the
proposed
Project
at
least
ninety
(90)
calendar
days
prior
to
consideration
by
the
Authority
Board,
but
not
later
than November
14,
2022.

The
Community
Workshop
shall
be
noticed
to
all
property
owners
and
occupants
within
a 500-foot
radius
of
the
Site.

Section 2.15
California
Surplus
Land
Act.

During
the
Negotiation
Period,
Developer
acknowledges
and
agrees
that
the
Authority
will
seek
informal
preliminary
approval
from
the
Housing
and
Community
Development
Department
of
the
State
of
California
("HCD")
of
the
Authority's
anticipated
disposition
of
the
Site
by
ground
lease
to
Developer
for
the
proposed
Project
pursuant
to
a mutually
negotiated
DDA,
in
conformance
with
applicable
law
set
forth
in
the
California
Surplus
Land
Act
(set
forth
in
California
Government
Code
Section
54220
et
Page
14 of
21 ~Ill.
4'wakeland
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v3
August 16, 2022, Item #12
seq.). Developer shall cooperate with the Authority and provide its reasonable assistance with respect to the Authority's requests to HCD as described in this Section 2.15. If, during the Negotiation Period, HCD does not provide its preliminary approval, or provides its disapproval, of the Authority's anticipated disposition of the Site by ground lease to Developer, under applicable law set forth in the California Surplus Land Act, then the Authority may terminate this Agreement, without penalty. Upon such a termination of this Agreement, neither Party shall have any further duties, obligations, rights, or liabilities under this Agreement, except for those rights and obligations that expressly survive termination of this Agreement. It is understood by Developer that, if HCD provides its preliminary approval as contemplated by this Section 2.15, then, if required by applicable law, the Authority will seek HCD's formal approval and consider actions under the California Surplus Land Act and the final Surplus Land Act Guidelines in conjunction with the Authority's approval of a mutually negotiated DDA.

ARTICLE 3.

GENERAL PROVISIONS
Section 3 .1 Limitation on Effect of Agreement. This Agreement shall not obligate either the Authority or the Developer to enter into a DDA or to enter into any particular DDA.

By execution of this Agreement, the Authority is not committing itself to, or agreeing to, undertake disposition of the Site or any other matter with respect to the Site. Execution of this Agreement by the Authority is merely an agreement to conduct a period of exclusive negotiations in accordance with the terms hereof, reserving for subsequent Authority Board and City Council action the final discretion and approval regarding the execution of a DDA and all proceedings and decisions in connection therewith. Any DDA resulting from negotiations pursuant to this Agreement shall become effective only if and after such DDA has been considered and approved by the Authority Board and, if required by law, the City Council, following conduct of all legally required procedures and processes, and executed by duly authorized representatives of the Authority and the Developer. Until and unless a DDA is signed by the Developer, approved by the Authority Board and City Council, if applicable, and executed by the Authority, no agreement drafts, actions, deliverables or communications arising from the performance of this Agreement shall impose any legally binding obligation on either Party to enter into, or support entering into, a DDA or be used as evidence of any oral or implied agreement by either Party to enter into any other legally binding document. Each Party assumes the risk that, notwithstanding this Agreement and good faith negotiations, the Authority and Developer might not enter into the DDA due to their failure to agree upon essential terms of a transaction or a decision by the Authority Board or, if applicable the City Council, not to authorize entering into and execution of the DDA.

Section 3.2 Notices. Formal notices, demands and communications between the Authority and Developer shall be sufficiently given if, and shall not be deemed given unless, dispatched by certified mail, postage prepaid, return receipt requested, or sent by express delivery or overnight courier service, to the office of the Parties shown as follows, or such other address as the Parties may designate in writing from time to time:

1]8-.JQA41\rakeland Housing and Development Corporation v3 August 16, 2022, Item #12
To Authority:

With a Copy to:

To Developer:

Poway Housing Authority
13325 Civic Center Drive
Poway, CA 92064
Attn: Chris Hazeltine, Executive Director
Kane Ballmer & Berkman
515 S. Figueroa St., Suite 780
Los Angeles, CA 90071
Attn: Kendall D. Levan, Esq.

Wakeland Housing and Development Corporation
1230 Columbia Street, Ste. 950
San Diego, CA 92101
Attn: Peter Armstrong, VP, Real Estate Development
Such written notices, demands and communications shall be effective on the date shown on the delivery receipt as the date delivered or the date on which delivery was refused. For purposes of obligations to be performed by the Authority or of calculation of noticing under this Agreement, a business day on which the Poway City Hall is closed will not constitute a business day under this Agreement.

Section 3.3 Waiver of Lis Pendens. It is expressly understood and agreed by the Parties that no lis pendens shall be filed against any portion of the Site with respect to this Agreement or any dispute or act arising from it.

Section 3 .4 Right of Entry and License Agreement. The Authority and Developer intend on entering into that certain Right of Entry and License Agreement concurrently with this Agreement, in which the Authority will grant Developer a right of entry to enter the Site and license to perform the physical adequacy determination described in Section 2.7.A, above.

Developer shall indemnify, defend (with counsel reasonably acceptable to Authority and the City), protect, and hold harmless the Poway Indemnitees against any claims made against them which arise out of the activities of Developer or its contractors, subcontractors, agents, employees, licensees, invitees or guests on or concerning the Site during the term of this Agreement. The foregoing indemnity shall not extend to any claim arising solely from the Authority's or City's established gross negligence or willful misconduct.

Section 3.5 Insurance. Developer shall at all times during the Term of this Agreement keep in full force and effect all policies of insurance required under that certain Right of Entry and License Agreement described in Section 3.4, above, to protect against liability for bodily injury to or death of any person or property damage arising out of or in any way related to Developer's entry onto the Site or in connection with the proposed Project.

Section 3.6 Indemnification. Developer agrees to indemnify, defend, protect, and hold harmless the Poway lndemnitees against any suit, claim, loss, cost, demand, damage, expense, liability, lien, legal proceeding, enforcement action, administrative action or proceeding, cause of action (whether in tort, contract, under statute, at law, in equity, or otherwise), charge, award, assessment, fine, or penalty of any kind, including, but not limited to, reasonable attorneys' fees

19,/11),( 4Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12
(including the reasonable value of the services of in-house counsel) and costs, any consultant and expert fees and expenses, any investigation costs of whatever kind or nature, and all financial or performance obligations arising from any judgment, decree, order, or other written decision or arising from any settlement, that directly or indirectly pertains or relates to, involves, or arises out of (A) any challenge of the validity, legality, enforceability of, or approvals relating to, (i) this Agreement or any amendment thereto, (ii) the DDA or any amendment thereto, (iii) any action approving a modification or change to the Poway Municipal Code, the Poway Zoning Code, or applicable land use plans or planning documents, (iv) any entitlements, or (v) any other approvals, permits, or actions that directly or indirectly relate to the proposed Project, or any amendment thereto; (B) the negotiation, formation, execution, enforcement, or termination of (i) this Agreement or any amendment thereto, (ii) the DDA or any amendment thereto, (iii) any entitlements, or (iv) other approvals, permits, or actions that directly or indirectly relate to the Project, or any amendment thereto; or (C) the performance of obligations or activities contemplated in this Agreement or any amendment thereto.

Section 3. 7 Costs and Expenses. Except as expressly provided in this Agreement, each Party shall be responsible for its owns costs and expenses in connection with any activities and negotiations undertaken in connection with this Agreement, and the performance of each Party's obligations under this Agreement.

Section 3.8 No Commissions. Except as may otherwise be provided in any DDA hereafter executed by the Authority, the Authority shall not be liable for any real estate commissions or brokerage fees that may arise from this Agreement or any DDA resulting from this Agreement. The Authority represents that it has engaged no broker, agent or finder in connection with this transaction, and Developer shall indemnify, defend, protect, and hold the Authority harmless from any claims by any broker, agent or finder retained by Developer.

Section 3.9 Defaults and Remedies.

A. Default. If a Party defaults with regard to any of the provisions of this Agreement, then the non-defaulting Party shall give written notice of a default to the defaulting Party, specifying the nature of the default and the required action to cure the default. If a default remains uncured thirty (30) calendar days after receipt by the defaulting Party of such notice, the non-defaulting Party may immediately exercise the remedies set forth in Paragraph B, below.

B. Remedies. Except for a default or breach of Developer with respect to Developer's indemnification, defense and hold harmless obligations set forth in this Agreement or any amendment thereto, for which the Authority shall have all remedies available at law or in equity, the non-defaulting Party's sole and exclusive remedy in the event of an uncured default by the Authority or Developer shall be to terminate this Agreement. Following such termination, no Party shall have any further duties, obligations, rights, or liabilities under this Agreement, except that Developer's indemnification, defense and hold harmless obligations set forth in this Agreement shall survive such termination and be enforceable against Developer.

C. No Liability. Except as expressly provided in Paragraphs A and B, above, no Party shall have any liability to any other Party for damages or otherwise for any default or breach, nor shall any Party have any other claims with respect to performance under this

28/IOf 4Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12
Agreement. Each Party specifically waives and releases any such rights or claims it may otherwise have at law or in equity.

Section 3 .10 Time is of Essence. Time 1s of the essence of every portion of this Agreement in which time is a material part.

Section 3.11 Nondiscrimination. Developer covenants and agrees that it will not discriminate against any employees or applicants for employment because of race, color, religion, creed, national origin, ancestry, sex, sexual orientation, age, disability, medical condition, or marital status.

Section 3 .12 Conflicts oflnterest.

A. No member, official, officer or employee of the Authority may have any personal interest, direct or indirect, in this Agreement, nor may any such member, official, officer or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is, directly or indirectly, interested.

B. Developer warrants that it has not paid or given, and will not pay or give, directly or indirectly, any Authority member, official, officer or employee any money or other consideration at all, whether or not connected in any way with the subject matter of this Agreement. Further, Developer warrants that it has no knowledge of any financial interest of any Authority member, official, officer or employee in Developer, directly or indirectly, or in any person or entity affiliated with Developer, or in any transaction in which Developer is or has been involved.

C. Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. The Parties understand and agree that Developer has retained legal counsel and consultants in connection with the creation and implementation of this Agreement, and that such is not a violation of this Paragraph.

Section 3 .13 Heading/Captions. The headings and captions of the various sections and paragraphs of this Agreement have been inserted only for the purpose of convenience and are not a part of this Agreement and will not be deemed in any manner to modify, explain, expand or restrict any of the provisions of this Agreement.

Section 3.14 Severability. Every provision of this Agreement is intended to be severable. If any provision of this Agreement or the application of any provision hereof to any Party or circumstance is declared to be illegal, invalid or unenforceable for any reason whatsoever by statute or a court of competent jurisdiction, such invalidity will not affect the other terms and provisions hereof or the application of the provision in question to any other Party or circumstance, all of which will continue in full force and effect.

Section 3 .15 Attorneys' Fees. If an action or court proceeding is brought by a Party against the other Party under this Agreement, whether for interpretation, enforcement or

k1-!ie,,{ 4Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12
otherwise, the prevailing Party in any such action or proceeding shall be entitled to recover attorneys' fees and costs from the other Party.

Section 3.16 Governing Law. This Agreement and the legal relations between the Parties will be governed by, interpreted under, construed and enforced in accordance with, the internal laws of the State of California without reference to the rules governing the conflict of laws. This Agreement is made and entered into in the County of San Diego, California, and any legal actions or proceedings arising from or related to this Agreement will be brought in the County of San Diego.

Section 3 .17 Jointly Prepared. This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein will not be interpreted against any of them. Except as expressly limited by this Paragraph, all of the applicable rules of interpretation of contracts will govern the interpretation of any uncertainty or ambiguity of this Agreement.

Section 3 .18 Signing Authority. All individuals signing this Agreement for a Party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the Authority that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing.

Section 3 .19 Entire Agreement. This Agreement represents the entire agreement of the Parties hereto and integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements, oral or written, between the Parties with respect to acquisition and development of the Site or the proposed Project.

Section 3.20 Waivers/Amendments. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of the Parties. Except as otherwise expressly provided in this Agreement, any failure or delay by any Party in asserting any of its rights or remedies as to any default will not operate as a waiver of said default or of any rights or remedies in connection therewith or of any subsequent default or any rights or remedies in connection therewith, or deprive such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.

Section 3 .21 Counterparts. This Agreement may be executed in counterparts, each of which when so executed will be deemed an original, and all of which, when taken together, will constitute but one and the same instrument.

Section 3 .22 Assignment/Transfer. Developer understands that the Authority is entering into this Agreement based on the experience and qualifications of Developer and of the key individuals representing or employed by Developer as of the date of this Agreement Therefore, Developer will not assign, sell or otherwise transfer any or all of its rights, benefits, or obligations under this Agreement, or interest herein, without the prior written approval of the

!i!IOf 4Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12
Authority. Further, no voluntary or involuntary successor in interest of Developer will acquire any rights or powers under this Agreement except as expressly set forth herein. For the reasons cited herein, Developer represents and agrees for itself and any successor in interest that prior to the expiration of the Term, and without the prior written approval of the Authority, there will be no significant change in the management or control of Developer or with respect to the identity of the parties in control of Developer, by any method or means. Developer will promptly notify the Authority of all changes whatsoever in the identity of the parties in control of or exercising the management of Developer, or any change in the degree of control or management, of which it or any of its officers have been notified or otherwise have knowledge or information. This Agreement may be terminated by the Authority if there is any significant change (voluntary or involuntary) in membership, management or control, of Developer, or the persons in control of Developer, prior to the expiration of the Term. For purposes of this Paragraph, a significant change will mean any change in the identity of the CEO, the President, or any other person or persons having ultimate control over the day-to-day management of Developer or of the entities comprising Developer, or the appointment of a receiver or trustee to operate or exercise direct or indirect control over any portion of or interest in Developer or of the entities comprising Developer. Periodic, routine changes in board membership that cumulatively affect less than 50% of the membership of the board will not be considered a "significant change" under this Agreement. This Agreement may not be assigned by Developer, and no rights, benefits or obligations set forth in this Agreement may be transferred by Developer, without the express prior written consent of the Authority, which consent may be provided in the Authority's sole and absolute discretion. If, except as provided in this Paragraph, there is an assignment of this Agreement, a transfer of any rights, benefits or obligations set forth in this Agreement, or a change in the management or control of Developer or of the entities comprising Developer, which the Authority does not approve in writing, such assignment or transfer shall be deemed void and the Authority may take such reasonable action as it may deem appropriate including, without limiting the generality of the foregoing, terminating this Agreement and exercising any other of its rights and remedies available at law or in equity.

Section 3.23 No Third-Party Beneficiaries. This Agreement is made and entered into solely for the benefit of the Authority, the City, and Developer and no other person shall have any right or cause of action under or by reason of this Agreement.

Section 3.24 Actions by the Authority. Whenever this Agreement calls for or permits the approval, consent, authorization or waiver of the Authority, the approval, consent, authorization, or waiver of the Authority's Executive Director shall constitute the approval, consent, authorization or waiver of the Authority without further action of the Authority Board, unless such approval, consent, authorization, or waiver is otherwise required by applicable law to be made by the Authority Board.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
[SIGNATURES ON FOLLOWING PAGE]

2EJrolf..4Jlakeland Housing and Development Corporation v3 August 16, 2022, Item #12
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates set forth opposite their signatures below. "AUTHORITY"
POWAY HOUSING AUTHORITY, a public
body, corporate and politic
By: ---------------Chris Hazeltine Dated
Executive Director
ATTEST:

By: ______________ _
Carrie Gallagher, CMC
City Clerk
APPROVED AS TO FORM:

KANE, BALLMER & BERKMAN
By:--------------­
Kendall D. Levan
Authority Special Counsel
"DEVELOPER"

WAKELAND

DEVELOPMENT

HOUSING AND
CORPORATION, a
California nonprofit corporation
*see notes below
By:--------------­
Name: --------------
Title: --------------
Dated: --------
By: ---------------
Name: --------------
Title: --------------
Dated: --------
*Notes: In accordance with California
Corporations Code Section 313, this document
must be executed by the Corporation's Chief
Executive Officer, President or Vice-President,
on the one hand, and the Corporations' Chief
Financial Officer, Treasurer, Assistant
Treasurer or Secretary on the other hand.

li!l!!Of 4Wakeland Housing and Development Corporation v3 August 16, 2022, Item #12

EXHIBIT
A
LEGAL

DESCRIPTION
APN:
275-460-61-00
ALL
THAT

PORTION
OF
THE
WEST
HALF
OF
THE

SOUTHEAST

QUARTER
OF

SECTION
35,

TOWNSHIP
13 SOUTH,
RANGE
2 WEST,
SAN

BERNARDINO

MERIDIAN,
IN
THE
CITY
OF
POWAY,
COUNTY
OF
SAN
DIEGO,
State
of
California,

ACCORDING
TO
THE

OFFICIAL
PLAT

THEREOF
MORE

PARTICULARLY

DESCRIBED
AS
FOLLOWS:

COMMENCING
AT
THE

SOUTHEAST
CORNER
OF
SAID
WEST
HALF
OF
THE

SOUTHEAST

QUARTER
OF

SECTION
35;
THENCE

NORTHERLY
ALONG
THE

EASTERLY
LINE
OF
SAID
WEST
HALF
OF
THE

SOUTHEAST

QUARTER,
NORTH
00°
35'
03 11
EAST,
A

DISTANCE
OF
495.10
FEET;
THENCE

WESTERLY
ALONG
A
LINE
THAT
IS

PARALLEL
WITH
THE

SOUTHERLY
LINE
OF
SAID
WEST
HALF
OF
THE

SOUTHEAST

QUARTER,
NORTH
88°
11'
35"
WEST,
A

DISTANCE
OF
358.31
FEET
TO
A
POINT
THAT
IS
SOUTH
88°
11'
35 11
EAST,
A

DISTANCE
OF
526.78
FEET
FROM
THE

SOUTHEAST
CORNER
OF
LOT
1 OF
POWAY

MEDICAL
UNIT
NO.
1 RECORDED
JULY
2,
1975,
AS
MAP
NO.
8138
IN
THE
OFFICE
OF
THE
COUNTY

RECORDER
OF
SAN
DIEGO

COUNTY,
THENCE
NORTH
02°
06'
35"
EAST,
A

DISTANCE
OF

30.00 FEET
TO
A
POINT
ON
A
LINE
AS

DESCRIBED
WITHIN
AN
OFFER
TO

DEDICATE
(PUBLIC

HIGHWAY)

RECORDED
APRIL
10,
1975
AS
FILE
NO.
75-083154
OF

OFFICIAL

RECORDS,
SAID

DESCRIBED
LINE
BEING
THE

CENTERLINE
OF
SAID

PROPOSED
PUBLIC

HIGHWAY
AND
THE
POINT
BEING
THE
TRUE
POINT
OF
BEGINNING;
THENCE

FOLLOWING
SAID

CENTERLINE
NORTH
88°
11'
35 11
WEST,
A

DISTANCE
OF

17.99 FEET
TO
THE

BEGINNING
OF
A

TANGENT
CURVE

CONCAVE

NORTHEASTERLY
HAVING
A
RADIUS
OF
200.00
FEET;
THENCE

WESTERLY
AND

NORTHWESTERLY
ALONG
THE
ARC
OF
SAID
CURVE

THROUGH
A

CENTRAL
ANGLE
OF
55°
02'
35",
A

DISTANCE
OF
192.14
FEET;
THENCE

TANGENT
TO
SAID
CURVE
NORTH
33°
09'
00"
WEST,
A

DISTANCE
OF
157.47
FEET
TO
THE

BEGINNING
OF
A

TANGENT
CURVE

CONCAVE

SOUTHWESTERLY,
HAVING
A
RADIUS
OF
200.00
FEET;
THENCE
ALONG
THE
ARC
OF
SAID
CURVE

THROUGH
A

CENTRAL
ANGLE
OF
17°
56'
40",
A

DISTANCE
OF

62.64 FEET;
THENCE

LEAVING
SAID

CENTERLINE
NORTH
38°
54'
20 11
EAST,
A

DISTANCE
OF

30.00 FEET
TO
A
POINT
BEING
THE

SOUTHEASTERLY
CORNER
OF
LOT
5 OF
COUNTY
OF
SAN
DIEGO
TRACT
3591-2

RECORDED
AS
MAP
NO.
9871
ON

NOVEMBER
4,
1980,
IN
THE
OFFICE
OF
THE
COUNTY

RECORDER
OF
SAN
DIEGO
COUNTY;
THENCE
ALONG
THE

SOUTHEASTERLY
LINE
OF
SAID
LOT
5 NORTH
48°
55'
27 11
EAST
(NORTH
48°
53'
38"
EAST
PER
MAP
NO.
9871),
A

DISTANCE
OF
134.65
FEET
(134.77
FEET
PER
MAP
NO.
9871);
THENCE
NORTH
00°
39'
42"
EAST
(NORTH
00°
34'
35"
EAST
PER
MAP
NO.
9871),
A

DISTANCE
OF

90.07 FEET
(90.00
FEET
PER
MAP
NO.
9871)
TO
A
POINT
BEING
THE

NORTHEAST
CORNER
OF
SAID
MAP
NO.
9871,
SAID

NORTHEAST
CORNER
ALSO
BEING
NORTH
88°
11'
35"
WEST,
A

DISTANCE
OF
548.05
FEET
(548.20
FEET
PER
MAP
NO.
9871)
FROM
A
POINT
ON
THE

EASTERLY
LINE
OF
SAID
WEST
HALF
OF
THE

SOUTHEAST

QUARTER
OF

SECTION
35;
THENCE
SOUTH
88°
11'
35 11
EAST,
A

DISTANCE
OF
202.92
FEET;
THENCE
SOUTH
02°
06'
35"
WEST,
A

DISTANCE
OF
165.14
FEET
TO
A
POINT
BEING
ON
THE

NORTHWEST
CORNER
OF
PARCEL
1 AS
SHOWN
ON
RECORD
OF
SURVEY
MAP
NO.
8601,

RECORDED

NOVEMBER
26,
1980,
IN
THE
OFFICE
OF
THE
COUNTY

RECORDER
OF
SAN
DIEGO
COUNTY
THENCE
ALONG
THE

WESTERLY
LINE
OF
SAID
PARCEL
1 SOUTH
02°
06'
35"
WEST,
A

DISTANCE
OF
299.88
FEET
TO
THE
TRUE
POINT
OF
BEGINNING.

EXCEPTING

THEREFROM
THAT

PORTION

DESCRIBED
IN

IRREVOCABLE
OFFER
TO

DEDICATE
REAL

PROPERTY

RECORDED
APRIL
10,
1975
AS
FILE
NO.
75-083152
AND
75-083154,
BOTH
OF

OFFICIAL

RECORDS,
AND

ACCEPTED
BY

RESOLUTION
NO.
83-075,

RECORDED

OCTOBER
25,
1983
AS
FILE
NO.
83-384442
OF

OFFICIAL
RECORDS.
25 of
47 EXHIBIT
A
August 16, 2022, Item #12
156
15 Porri'f
•rudo
/-lo
spi!m'

EXHIBITB SITE
PLAN
15611
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lvJ011
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1273
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1270
0 7,7141
2120
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127
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12750

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12.7,17
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'12762
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Via
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rn
bras
I
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,~s~3s~2 ______________________
1 ____
_
26 of
47 EXHIBITB
August 16, 2022, Item #12

EXHIBIT C
ACTION

PRELIMINARY SCHEDULE OF PERFORMANCE

DEADLINE FOR COMPLETION
Approval of ENRA by Authority
Identification of Development Team -Section 2.2
Developer submission of conceptual site plans and
preliminary design for the Development -Section 2.3
Developer submission of financing proposal to Authority -Section 2.4
Physical adequacy determination deadline -Section 2.7
Developer receipt of financing commitments -Section

2.4 Developer submission of detailed Schedule of
Performance for the Project -Section 2.6
Developer must engage the community by holding a
public workshop to solicit input on the site plan and
preliminary design -Section 2.14
Preparation of Health and Safety Code Section 33433
Report
August 16, 2022
30 days from Effective Date or September 15,
2022
60 days from Effective Date or October 15, 2022
60 days from Effective Date or October 15, 2022
60 days from Effective Date or October 15, 2022
90 days after submittal of Financing Proposal or
November 14, 2022
120 days from Effective Date or December 14,
2022
At least ninety (90) days prior to DDA
consideration by Housing Authority and City
Council, by November 14, 2022
Not less than forty-five ( 45) calendar days prior to
Housing Authority and City Council consideration
ofDDA.

Publication of Public Notice of Section 3 34 3 3 Report and Not less than two weeks prior to Housing DD A/Ground Lease Authority and City Council consideration of DDA Authority Board and City Council Consideration of DDA Monday, February 13, 2023, or one-hundred and eighty (180) days from Effective Date, unless the
Negotiating Period is extended pursuant to Section

1.2 Execution of DDA TBD
Developer application for Entitlements TBD
City Council consideration of Entitlements TBD
Close of Escrow/Ground Lease of Site to Developer TBD
Commencement of Construction
27 of 47
TBD

EXHIBIT C
August 16, 2022, Item #12
Completion of Construction
100% Occupancy of Project
28 of 47
TBD
TBD

EXHIBITC
August 16, 2022, Item #12

RIGHT OF ENTRY AND LICENSE AGREEMENT

BY AND BETWEEN

POWAY HOUSING AUTHORITY
AND

WAKELAND HOUSING AND DEVELOPMENT CORPORATION
THIS RIGHT OF ENTRY AND LICENSE AGREEMENT ("Agreement") is entered into as of this __ day of _______ , 2022, ("Effective Date"), by and between the POWAY HOUSING AUTHORITY, a public body, corporate and politic, acting in its capacity as the designated entity that assumed the housing functions of the former Poway Redevelopment Agency pursuant to California Health and Safety Code Section 34176(6 )(3) ("Authority"), and WAKELAND HOUSING AND DEVELOPMENT CORPORATION, a California nonprofit corporation, ("Developer"), each a "Party" and collectively the "Parties", on the basis of the following facts:

RECITALS
A. The Authority, in its capacity as the housing successor to the former Poway Redevelopment Agency, holds fee title to certain real property located at 12674 Monte Vista Road in the City of Poway, County of San Diego, State of California, and more specifically identified as Assessor's Parcel No. 275-460-61-00 ("Site"). Developer desires to potentially lease the Site from the Authority for the construction and operation on the Site of a multi-family affordable rental housing development including units restricted for occupancy by very low-and extremely low­ income families at affordable rent in accordance with the California Community Redevelopment Law and units targeted to adults with developmental disabilities and military veterans and their families ("Proposed Project").

B. The Authority and Developer desire that Developer have an opportunity to conduct due diligence on the Site, which may include performing physical tests on the Site, in accordance with the terms of this Agreement, after the Parties enter into a written agreement to exclusively negotiate the terms and conditions for the Authority's potential ground lease of the Site to Developer and during that certain Negotiating Period defined in that certain Exclusive Negotiating Rights Agreement entered into by the Parties as of the 17th day of August, 2022 ("Exclusive Negotiating Rights Agreement" or "ENRA").

NOW THEREFORE, the Parties agree as follows:

1. Parties to the Agreement.
(a) The Authority is a public body, corporate and politic, acting in its capacity as the designated entity that assumed the housing functions of the former Poway Redevelopment Agency pursuant to California Health and Safety Code Section 34176(6)(3). The Authority's principal office is located at 13325 Civic Center Drive, Poway, California 92064, or such other

RIGHT OF ENTRY AND LICENSE AGREEMENT

MONTE VISTA HOUSING DEVELOPMENT
PAGE 1
Right of Entry and License Agreement-Wakeland Housing and Development Corporation vi 29 of 47 ATTACHMENT B
August 16, 2022, Item #12
location
of
which
notice
is
given
pursuant
to
this
Agreement.
"Authority"
as
used
in
this
Agreement
includes
any
assignee
of,
or
successor
to,
its
rights,
powers
and
responsibilities.
(b)
Developer
is
Wakeland
Housing
and
Development
Corporation,
a
California
nonprofit
corporation.

Developer's
principal
office
is
located
at
1230
Columbia
Street,
Suite
950,
San
Diego,
California
92101,
or
such
other
location
of
which
notice
is
given
pursuant
to
this
Agreement. 2.

Description
of
Site.

The
Authority
is
the
fee
title
owner
of
certain
real
property
located at
12674
Monte
Vista
Road
in
the
City
of
Poway,
County
of
San
Diego,
State
of
California,
more
specifically
identified
as
Assessor's
Parcel
No.
275-460-61-00, and
more
particularly
described
in
Exhibit
"A"
("Legal
Description")
and
illustrated
by
the
site
plan
in
Exhibit
"B"
("Site
Plan"),
which
are
attached
to
this
Agreement
and
hereby
incorporated
by
reference
("Site")
.

The
Site
comprises
approximately

2.06 acres.

3. Grant
of
Right
of
Entry
and
License.
(a)
Subject
to
and
conditioned
upon
the
terms
and
conditions
of
this
Agreement,
the
Authority
grants
to
Developer
and
its
authorized
agents
during
the
License
Term
(defined
below
in
Section
4)
a right
of
entry
onto
the
Site
and
temporary
and
conditional
license
("License")
to
perform
the
following
non-invasive
acts
on
the
Site
using
portable
(not
heavy)
equipment
(1)
obtain
soil
samples
(including
core
samples)
and
make
such
other
surveys,
investigations
and
tests
reasonably
necessary
to
determine
the
suitability
of
the
Site
for
the
development,
financing
and/or
construction
of
the
Proposed
Project;
and
(2)
conduct
reasonable
investigations
on
and
beneath
the
Site
and
all
improvements
thereon
to
determine
the
presence
of
Hazardous
Materials
and/or
other
soil
conditions
.

As
used
herein,
the
phrase
"Hazardous
Materials"
means
asbestos;
polychlorinated
biphenyls
(whether
or
not
highly
chlorinated);
radon
gas;
radioactive
materials;
explosives;
chemicals
known
to
cause
cancer
or
reproductive
toxicity;
hazardous
waste,
toxic
substances
or
related materials;
petroleum
and
petroleum
product,
including,
but
not
limited
to,
gasoline
and
diesel
fuel;
those
substances
defined
as
a "Hazardous
Substance",
as
defined
by
Section
9601
of
the
Comprehensive
Environmental
Response,
Compensation
and
Liability
Act
of
1980,
42 U.S.C.
9601,
et
seq.,
or
as
"Hazardous
Waste"
as
defined
by
Section
6903
of
the
Resource
Conservation
and
Recovery
Act,
42 U.S.C.
6901,
et
seq.;
an
"Extremely
Hazardous
Waste,"
a "Hazardous
Waste"
or
a "Restricted
Hazardous
Waste,"
as
defined
by
The
Hazardous
Waste
Control
Law
under
Section
25115,
25117
or
25122.7
of
the
California
Health
and
Safety
Code,
or
is
listed
or
identified
pursuant
to
Section
25140
of
the
California
Health
and
Safety
Code;
a "Hazardous
Material",
"Hazardous
Substance," "Hazardous
Waste"
or
"Toxic
Air
Contaminant"
as
defined
by
the
California
Hazardous
Substance
Account
Act,
laws
pertaining
to
the
underground
storage
of
hazardous
substances,
hazardous
materials
release
response
plans,
or
the
California
Clean
Air
Act
under
Sections
25316, 25281, 25501,
2550
I. I or
39655
of
the
California
Health
and
Safety
Code;
"Oil"
or
a "Hazardous
Substance"
listed
or
identified
pursuant
to
311
of
the
Federal
Water
Pollution
Control
Act,
33 U.S.C.
1321;
a
RIGHT
OF
ENTRY
AND

LICENSE

AGREEMENT
MONTE
VISTA

HOUSING

DEVELOPMENT
PAGE2
Right
of
Entry
and
License
Agreement-
Wakeland
Housing
and
Development
Corporation
vi
30 of
47 August 16, 2022, Item #12
"Hazardous Waste," "Extremely Hazardous Waste" or an "Acutely Hazardous Waste" listed or defined pursuant to Chapter 11 of Title 22 of the California Code of Regulations Sections 66261.1 through 66261.126; chemicals listed by the State of California under Proposition 65 Safe Drinking Water and Toxic Enforcement Act of 1986 as a chemical known by the State to cause cancer or reproductive toxicity pursuant to Section 25249.8 of the California Health and Safety Code; a material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures, materially damages or threatens to materially damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or government agency requires in order for the Site to be put to the purpose proposed by this Agreement; any material whose presence would require remediation pursuant to the guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such material resulted from a leaking underground fuel tank; pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq.; asbestos, PCBs, and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; any radioactive material including, without limitation, any "source material," "special nuclear material," "by-product material," "low-level wastes," "high-level radioactive waste," "spent nuclear fuel" or "transuranic waste" and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C. 2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. 10101 et seq., or pursuant to the California Radiation Control Law, California Health and Safety Code, Sections 25800 et seq.; hazardous substances regulated under the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., or the California Occupational Safety and Health Act, California Labor Code, Sections 6300 et seq.; and/or regulated under the Clean Air Act, 42 U.S.C. 7401 et seq. or pursuant to The California Clean Air Act, Sections 3900 et seq. of the California Health and Safety Code. (b) Developer may not use the Site for any other purpose without obtaining the Authority's prior written consent, which the Authority may grant, condition, or withhold, in its sole and absolute discretion.
(c) Developer must provide the Authority with five (5) calendar days' prior written notice before each act of entering the Site.
( d) Developer must promptly repair and restore any change to the condition of the Site and any damage caused by its entry onto the Site to the condition that existed immediately prior to such entry.

4. License Term.
(a) The License will not commence until all of the following conditions are met: (i) this Agreement will have been fully executed by the Parties, (ii) the Authority will have approved the evidence of Developer's insurance coverage required by Section 13, below, and (iii) the Authority will have approved a work plan describing the soils, environmental and other testing activities, surveying, and other Site investigations to be performed.

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MONTE VISTA HOUSING DEVELOPMENT
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August 16, 2022, Item #12
(b) The License will commence upon satisfaction of all conditions identified in Paragraph (a), above in this Section and be effective during the term and effectiveness of the ENRA and shall automatically expire, without need for further notice of any kind, upon the earlier to occur of (i) a determination by the Authority Board of Commissioners ("Authority Board") not to enter into a Disposition and Development Agreement ("DDA") with Developer or (ii) expiration or termination of the ENRA ("License Term"), provided that, if a DDA is approved by the Authority Board and is entered into by and between the Parties and remains in effect, then the License Term will continue until the earlier to occur: (i) the close of escrow for the ground lease of the Site by the Authority to Developer or (ii) expiration or termination of the DDA.

5. Compliance With Laws.

Developer, at its expense, will comply in all material respects with all applicable federal, state and local laws, ordinances, regulations, rules and orders with respect to the Site, including all applicable federal and state labor laws. Developer, its agents, contractors, licensees, employees or invitees will not permit to be placed upon the Site any Hazardous Materials, except for de minimis quantities used in compliance with all applicable environmental laws and required in connection with Developer's permitted activities under this Agreement. Developer will conduct all of its operations on the Site at its sole cost and expense.

6. Reports and Studies.

In consideration of the Authority's granting of the License, Developer will promptly provide the Authority with a copy of all reports and test results arising from the License which are not legally privileged.

7. License Nonassignable.

The License is personal to Developer and may not be assigned. Any attempt to assign the License will automatically terminate it, without the need for prior notice of any kind.

No legal title or interest in the Site is created or vested in Developer by this Agreement or the grant of the License.

8. Nonexclusive License.

The License is nonexclusive. Nothing contained herein will be construed to restrict or prevent the entry onto and use of the Site during the License Term of the License by the Authority, or its agents, consultants, assigns and other licensees. Developer must take all reasonable measures to minimize interference with the use of the Site by the Authority and any party permitted by the Authority to use the Site.

9. Relationship Between the Authority and Developer.

The Authority is granting the License to Developer as an accommodation. Nothing contained in this Agreement will be deemed or construed to create the relationship of principal and

RIGHT OF ENTRY AND LICENSE AGREEMENT

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August 16, 2022, Item #12
agent or of owner and contractor or of partnership or of joint venture or of any association between the Authority and Developer other than that of licensor and licensee. No legal title or interest in the Site is created or vested in Developer by the grant of the License.

10. Removal of Liens.

Under no circumstance whatsoever shall any lien, including any design professional's, mechanic's, supplier's, contractor's, or subcontractor's lien, stop notice, or any lien for goods, labor, material, services or work delivered or performed on the Site, attach to or encumber the Site. If any design professional's, mechanic's, supplier's, contractor's, or subcontractor's lien, stop notice, or any other lien is filed for work done or claimed to have been done or for materials or services furnished or claimed to have been furnished, then such lien must be discharged by Developer at its sole cost and expense in a timely manner no later than sixty (60) calendar days thereafter whether by payment, release, or posting of a bond or other similar assurance. The Authority may, in its sole and complete discretion, bond or discharge the same by paying the amount claimed to be due, and Developer promises that it will reimburse the Authority for all sums paid by the Authority described in this Paragraph, together with reasonable attorneys' fees and costs, plus interest on those sums, fees, and costs from the date of payment at the highest rate allowed by law. Developer agrees that it will indemnify, defend, protect, and hold harmless the Authority from all liability for any and all liens, claims and demands, together with costs of defense and reasonable attorneys' fees, arising from any design professional's, mechanic's, supplier's, contractor's, or subcontractor's lien, stop notice, or any lien for goods, labor, material, services or work delivered or performed on the Site or claimed to have been delivered or performed on the Site. This indemnification obligation will survive expiration or termination of this Agreement and will not be limited by insurance coverage.

11. Surrender.

On or before the termination date for the License or expiration or termination of the License Term, Developer will remove all of its personal property from the Site and will ( except as prohibited by any local, state or federal agency) fill any excavations made by Developer to return the Site to its previous condition and will surrender possession of the Site to the Authority in good order and repair to the satisfaction of the Authority, normal wear and tear excepted.

12. Release and Indemnity.

Developer, as a material part of the consideration to be rendered to the Authority for the granting of the License, for itself and its successors and assigns, hereby agrees, to the furthest extent allowed by law, to indemnify, protect, defend, and hold harmless the Authority, the City of Poway ("City"), and each of their elected and appointed officials, officers, employees, agents, contractors, and volunteers (collectively, including the Authority and the City, "lndemnitees") from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by the Authority, the City, Developer or any other

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MONTE VISTA HOUSING DEVELOPMENT
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August 16, 2022, Item #12
person, and from any and all claims, demands and actions in law or equity (including attorney's fees, and litigation expenses), arising or alleged to have arisen directly or indirectly, resulting from, or in connection with the exercise of this Agreement or the performance of any and all work to be done by Developer or its contractors, agents, successors and assigns pursuant to this Agreement, including, but not limited to:
(i) any and all risks of or exposure to any loss or liability arising from activities conducted by Developer on the Site under this Agreement; (ii) any and all claims arising from or relating to the transportation, storage, handling or use of any material taken from the Site pursuant to this Agreement, or from any substance, known or unknown, emanating or derived therefrom; and (iii) any and all claims for damage to the Site, any improvements thereon, or to the property or person of any third party, alleged to have been caused by, or in any way connected with the physical properties of the Site or any material taken from the Site pursuant to this Agreement.

Developer's obligations under this Section shall apply regardless of whether any of the Indemnitees are actively or passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages to the extent arising solely from the Authority's or City's established gross negligence or willful misconduct.

Nothing in this Section will be construed to mean that Developer will hold the Indemnitees harmless and/or defend them to the extent of any claims arising solely from the Authority's or City's established gross negligence or willful misconduct. The Authority agrees that it will fully cooperate with Developer in the defense of any matter in which Developer is defending and/or holding the Indemnitees harmless. The Authority may make all reasonable decisions with respect to its representation in any legal proceeding, including, but not limited to, the selection of attorney(s). The Authority will promptly notify Developer in writing of any such suit or claim. Subject to the above, Developer will have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnitees will be entitled to participate in the defense of such claim and to employ counsel at Developer's expense to assist in handling the claim, and provided further, that Developer will not take any action in defense or settlement of the claim that would negatively impact the Indemnitees. Developer will not settle or compromise the defense of any such suit, claim, action, proceeding, cost, expense, damage, loss or liability on behalf of any of the Indemnitees, or permit a default judgment to be taken against any of the Indemnitees, without the prior written approval of the lndemnitees. Developer will use reasonable efforts to mitigate the damages or losses hereunder. This indemnity obligation will survive the expiration or termination of this Agreement and will not be limited by insurance coverage. Notwithstanding the foregoing, Developer will have no obligation to indemnify an Indemnified Party for loss, liability, claims, damages and expenses arising solely from Developer's discovery of Hazardous Materials already present on the Site prior to the commencement of the

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August 16, 2022, Item #12
License, so
long
as
Developer
has
not
materially
contributed
to
the
placement,
release
or
migration
of
such
pre-existing
Hazardous
Materials.

If
Developer
should
subcontract
all
or
any
portion
of
the
physical
tests
to
be
performed
under
this
Agreement,
Developer
shall
require
each
subcontractor
to
indemnify,
protect,
hold
harmless
and
defend
the
Authority,
the
City
, and
each
of
their
elected
and
appointed
officials,
officers,
employees,
agents,
contractors,
and
volunteers
in
accordance
with
the
terms
of
this
Section.

Developer
further
agrees
that
the
use
for
any
purpose
and
by
any
person
of
any
and
all
public
improvements
required
under
this
Agreement,
shall
be
at
the
sole
and
exclusive
risk
of
Developer,
unless
any
loss,
liability,
fines,
penalties,
forfeitures,
costs
or
damages
arising
from
said
use
were
caused
to
the
extent
arising
solely
from
the
Authority's
or
City's
established
gross
negligence
or
willful
misconduct.

Notwithstanding
the
preceding
paragraph,
to
the
extent
that
the
subcontractor
is
a
"design
professional"
as
defined
in
Section
2782.8
of
the
California
Civil
Code
and
performing
work
hereunder
as
a
"design
professional"
shall,
in
lieu
of
the
preceding
paragraph,
indemnify,
hold
harmless
and
defend
the
Authority,
the
City,
and
each
of
their
elected
and
appointed
officials,
officers,
employees,
agents,
contractors,
and
volunteers
from
any
and
all
loss,
liability,
fines,
penalties,
forfeitures,
costs
and
damages
(whether
in
contract,
tort
or
strict
liability,
including
but
not
limited
to
personal
injury,
death
at
any
time
and
property
damage),
and
from
any and
all
claims,
demands
and
actions
in
law
or
equity
(including
reasonable
attorney's
fees
and
litigation
expenses)
to
the
extent
that
any
loss,
liability,
fines,
penalties,
forfeitures,
costs,
damages,
claims,
demands
or
actions
in
law
or
equity
arise
out
of,
pertain
to,
or
relate
to
the
negligence, recklessness
or
willful
misconduct
of
such
subcontractor,
its
principals,
officers,
employees
or
agents
in
the
performance
of
this
Agreement.

In
no
event
shall
the
cost
to
defend
charged
to
the
design
professional
exceed
the
design
professional's
proportionate
percentage
of
fault.

However,
notwithstanding
the
previous
sentence,
in
the
event
one
or
more
defendants
is
unable
to
pay
its
share
of
defense
costs
due
to
bankruptcy
or
dissolution
of
the
business,
the
design
professional
shall
meet
and
confer
with other
parties
regarding
unpaid
defense
costs.

Developer
agrees
to
fully
and
finally
release
the
Indemnitees
from
any
and
all
claims,
demands,
actions,
or
suits
of
any
kind
or
nature
arising
out
of
any
liability,
known
or
unknown,
present
or
future,
including,
but
not
limited
to,
rights
or
claims
for
implied
contribution
or
indemnity,
or
any
claim
or
liability
based
or
asserted
pursuant
to
any
law
or
ordinance
which
seeks
to
impose
any
liability
or
damage
whatsoever
upon
any
Indemnitee
arising
from
the
execution
and/or
performance
of
this
Agreement,
or
from
any
of
its
terms.

This
Indemnification
Section
shall
survive
termination
or
expiration
of
this
Agreement.

13. Insurance. During
the
effectiveness
of
this
Agreement,
Developer
shall
pay
for
and
maintain
in
full
force
and
effect
all
policies
of
insurance
required
hereunder
with
an
insurance
company(ies)
RIGHT
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AND

LICENSE

AGREEMENT
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HOUSING

DEVELOPMENT
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of
Entry
and
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Agreement-Wakeland
Housing
and
Development
Corporation
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either
(i)
admitted
by
the
California
Insurance
Commissioner
to
do
business
in
the
State
of
California
and
rated
not
less
than
"A-
VII"
in
Best's
Insurance
Rating
Guide,
or
(ii)
as
may
be
authorized
in
writing
by
Authority's
Executive
Director
or
his/her
designee
at
any
time
and
in
his/her
sole
discretion.

The
following
policies
of
insurance
are
required:
a.

COMMERCIAL

GENERAL

LIABILITY
insurance
which
shall
be
at
least
as
broad
as
the
most
current
version
of
Insurance
Services
Office
(ISO)
Commercial
General
Liability Coverage
Form
CG
00 01
and
include
insurance
for
"bodily
injury,"
"property
damage"
and
"personal
and
advertising
injury"
with
coverage
for
premises
and
operations
(including
the
use
of
owned
and
non­
owned
equipment),
products
and
completed
operations,
and
contractual
liability
(including,
without
limitation,
indemnity
obligations
under
this
Agreement)
with
limits
of
liability
of
not
less
than
the
following:
$2,000,000
per
occurrence
for
bodily
injury
and
property
damage
$1,000,000
per
occurrence
for
personal
and
advertising
injury
$4,000,000
aggregate
for
products
and
completed
operations
$4,000,000
general
aggregate
applying
separately
to
the
work
performed
under
this
Agreement
b.

COMMERCIAL

AUTOMOBILE

LIABILITY
insurance
which
shall
be
at
least
as
broad
as
the
most
current
version
of
Insurance
Service
Office
(ISO)
Business
Auto
Coverage
Form
CA
00 01,
and
include
coverage
for
all
owned,
hired,
and
non-owned
automobiles
or
other
licensed
vehicles
(Code
1 Any
Auto)
with
limits
of
liability
of
not
less
than
$2,000,000
per
accident
for
bodily
injury
and
property
damage.
c.

WORKERS'

COMPENSATION
insurance
as
required
under
the
California
Labor
Code.
d.

EMPLOYERS'

LIABILITY
insurance
with
limits
of
liability
of
not
less
than
$1,000,000
each
accident,
$1,000,000
disease
policy
limit
and
$1,000,000
disease
each
employee.
e.

PROFESSIONAL

LIABILITY
(Errors
and
Omissions)
insurance
appropriate
to
subcontractor's
profession,
with
limits
of
liability
of
$2,000,000
per
claim/occurrence
and
$2,000,000
policy
aggregate.

Only
required
if
Developer
contracts
with
a
"design
professional"
as
defined
by
Section
2782.8
of
the
California
Civil
Code,
or
other
entity
to
provide
professional
services.

In
the
event
Developer
purchases
an
Umbrella
or
Excess
insurance
policy(ies)
to
meet
the
minimum
limits
of
insurance
set
forth
above,
this
insurance
policy(ies)
shall
"follow
RIGHT
OF
ENTRY
AND

LICENSE

AGREEMENT
MONTE
VISTA

HOUSING

DEVELOPMENT
PAGES
Right
of
Entry
and
License
Agreement
-
Wakeland
Housing
and
Development
Corporation
v 1
36 of
47 August 16, 2022, Item #12
form" and afford no less coverage than the primary insurance policy(ies).

Developer shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Developer shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to, and approved by, the Authority's Executive Director or his/her designee in his/her sole discretion. At the option of the Authority' Executive Director or his/her designee, either (i) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Indemnitees; or (ii) Developer shall provide a financial guarantee, satisfactory to the Authority's Executive Director or his/her designee in his/her sole discretion, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall the Authority or the City be responsible for the payment of any deductibles or self-insured retentions.

All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar day written notice has been given to the Authority. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Developer shall furnish the Authority with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed, Developer shall provide the Authority with a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.

The General Liability and Automobile Liability insurance policies shall be written on an occurrence form. The General Liability (including ongoing operations and completed operations) and Automobile Liability insurance policies shall name the Authority, the City, and each of their elected and appointed officials, officers, employees, agents, contractors, and volunteers as an additional insured. All such policies of insurance shall be endorsed so Developer's insurance shall be primary and no contribution shall be required of the Authority, the City, or any of their elected and appointed officials, officers, employees, agents, contractors, and volunteers. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to the Authority, the City, and each of their elected and appointed officials, officers, employees, agents, contractors, and volunteers. The coverage(s) shall contain no special limitations on the scope of protection afforded to the Authority, the City, and each of their elected and appointed officials, officers, employees, agents, contractors, and volunteers. Should Developer maintain insurance with broader coverage and/or limits of liability greater than those shown above, the Authority and the City require and shall be entitled to the broader coverage and/or the higher limits of liability maintained by Developer. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Authority and the City.

Claims-Made Policies -If Professional Liability (Errors and Omissions) insurance is written on a claims-made coverage form:

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August 16, 2022, Item #12
(i)
The
retroactive
date
must
be
shown,
and
rrtust
be
before
the
Effective
Date
of
this
Agreement
or
the
commencement
of
work
by
Developer.
(ii)
Insurance
must
be
maintained
and
evidence
of
insurance
must
be
provided
for
at
least
five
(5)
years
after
completion
of
the
work
or
termination
of
this
Agreement,
whichever
first
occurs.
(iii)
If
coverage
is
canceled
or
non-renewed,
and
not
replaced
with
another
claims-made
policy
form
with
a retroactive
date
prior
to
the
Effective
Date
of
this
Agreement,
or
work
commencement
date,
Developer
must
purchase
extended
reporting
period
coverage
for
a
minimum
of
five
(5)
years
after
completion
of
the
work
or
termination
of
this
Agreement,
whichever
first
occurs.
(iv)
A
copy
of
the
claims
reporting
requirements
must
be
submitted
to
the
Authority
for
review.
(v)
These
requirements
shall
survive
expiration
or
termination
of
this
Agreement.

Developer
shall
furnish
the
Authority
with
all
certificate(s)
and
applicable
endorsements
effecting
coverage
required
hereunder.

All
certificates
and
applicable
endorsements
are
to
be
received
and
approved
by
the
Authority's
Risk
Manager
or
his/her
designee
in
his/her
sole
discretion
prior
to
the
Authority's
execution
of
this
Agreement
and
before
work
commences.

Upon
request
of
the
Authority,
Developer
shall
immediately
furnish
the
Authority
with
a
complete
copy
of
any
insurance
policy
required
under
this
Agreement,
including
all
endorsements,
with
said
copy
certified
by
the
underwriter
to
be
a
true
and
correct
copy
of
the
original
policy.

This
requirement
shall
survive
expiration
or
termination
of
this
Agreement.

If
at
any
time
during
the
life
of
this
Agreement
or
any
extension,
Developer
or
any
of
its
contractors
or
subcontractors
fail
to
maintain
any
required
insurance
in
full
force
and
effect,
all
work
under
this
Agreement
shall
be
discontinued
immediately,
and
all
payments
due
or
that
become
due
to
Developer
shall
be
withheld
until
notice
is
received
by
the
Authority
that
the
required
insurance
has
been
restored
to
full
force
and
effect
and
that
the
premiums
therefore
have
been
paid
for
a period
satisfactory
to
the
Authority.

Any
failure
to
maintain
the
required
insurance
shall
be
sufficient
cause
for
the
Authority
to
terminate
this
Agreement.

No
action
taken
by
the
Authority
hereunder
shall
in
any
way
relieve
Developer
of
its
responsibilities
under
this
Agreement.

The
fact
that
insurance
is
obtained
by
Developer
shall
not
be
deemed
to
release
or
diminish
the
liability
of
Developer,
including,
without
limitation,
liability
under
the
indemnity
provisions
of
this
Agreement.

The
duty
to
indemnify
the
Authority
and
the
City
shall
apply
to
all
RIGHT

OF ENTRY AND

LICENSE

AGREEMENT
MONTE
VISTA

HOUSING

DEVELOPMENT
PAGE
10 Right
of
Entry
and
License
Agreement-
Wakeland
Housing
and
Development
Corporation
vi
38 of
47 August 16, 2022, Item #12
claims
and
liability
regardless
of
whether
any
insurance
policies
are
applicable.

The
policy
limits
do
not
act
as
a
limitation
upon
the
amount
of
indemnification
to
be
provided
by
Developer.

Approval
or
purchase
of
any
insurance
contracts
or
policies
shall
in
no
way
relieve
from
liability
nor
limit
the
liability
of
Developer,
its
principals,
officers,
agents,
employees,
persons
under
the
supervision
of
Developer,
vendors,
suppliers,
invitees,
consultants,
sub-consultants,
contractors,
subcontractors,
or
anyone
employed directly
or
indirectly
by
any
of
them.

If
Developer
should
contract
or
subcontract
all
or
any
portion
of
the
services
to
be
performed
under
this
Agreement,
Developer
shall
require
each
contractor
or
subcontractor
to
provide
insurance
protection
in
favor
of
the
Authority,
the
City,
and
each
of
their
elected
and
appointed
officials,
officers,
employees,
agents,
contractors,
and
volunteers
in
accordance
with
the
terms
of
each
of
this
Section,
except
that
the
contractors'
or
subcontractors'
certificates
and
endorsements
shall
be
on
file
with
Developer
and
the
Authority prior
to
the
commencement
of
any
work
by
the
contractor
or
subcontractor.

The
evidence
of
insurance
required
hereunder
is
a
condition
precedent
to
Developer's
right
to
enter
upon
the
Site.

If
Developer
fails
or
refuses
to
procure
or
maintain
the
insurance
required
by
this
Agreement,
the
License
granted
by
this
Agreement
will
automatically
terminate
and
be
of
no
further
force
or
effect.

14. Authority's
Authorized
Representative.

Unless
otherwise
specified
or
the
context
requires
otherwise,
all
references
to
the
Authority
in
this
Agreement
and
its
attachments
will
mean
the
Authority's
Executive
Director
or
any
officer
or
employee
of
the
Authority
to
whom
the
Authority's
Executive
Director
or
the
Authority
Board
delegates
authority
to
perform,
carry
out
and/or
enforce
this
Agreement.

Unless
otherwise
specified
or
the
context
requires
otherwise,
all
references
to
the
Authority's
Executive
Director
will
mean
the
Executive
Director
or
his
or
her
designee.

15. Notices,
Demands
and
Communications
Between
The
Parties.

Formal
notices,
demands
and
communications
between
the
Authority
and
Developer
shall
be
sufficiently
given
if,
and
shall
not
be
deemed
given
unless,
dispatched
by
certified
mail,
postage
prepaid,
return
receipt
requested,
or
sent
by
express
delivery
or
overnight
courier
service,
to
the
office
of
the
Parties
shown
as
follows,
or
such
other
address
as
the
Parties
may
designate
in
writing
from
time
to
time:

To
Authority:

Poway
Housing
Authority
13325
Civic
Center Drive
Poway,
CA
92064
Attn:

Chris
Hazeltine,
Executive
Director
RIGHT
OF
ENTRY
AND

LICENSE

AGREEMENT
MONTE
VISTA

HOUSING

DEVELOPMENT
PAGE
11 Right
of
Entry
and
License
Agreement-
Wakeland
Housing
and
Development
Corporation
vi
39 of
47 August 16, 2022, Item #12
With
a Copy
to:

To
Developer:

Kane
Ballmer
&
Berkman
515
S.

Figueroa
St.,
Suite
780
Los
Angeles,
CA
90071
Attn:

Kendall
D.

Levan,
Esq.

Wakeland
Housing
and
Development
Corporation
1230
Columbia
Street,
Ste.
950
San
Diego,
CA
92101
Attn:

Peter
Armstrong,
VP,
Real
Estate
Development
Such
written
notices,
demands
and
communications
shall
be
effective
on
the
date
shown
on
the
delivery
receipt
as
the
date
delivered
or
the
date
on
which
delivery
was
refused.

For
purposes
of
obligations
to
be
performed
by
the
Authority
or
of
calculation
of
noticing
under
this
Agreement,
a business
day
on
which
the
Poway
City
Hall
is
closed
will
not
constitute
a business
day
under
this
Agreement.

16. Conflict
of
Interest.

No
member,
official
or
employee
of
the
Authority
will
have
any
personal
interest,
direct
or
indirect,
in
this
Agreement
nor
will
any
such
member,
official
or
employee
participate
in
any
decision
relating
to
this
Agreement
which
affects
his
or
her
personal
interests
or
the
interests
of
any
corporation, partnership
or
association
in
which
he
or
she
is
directly
or
indirectly
interested.

Developer
warrants
that
it
has
not
paid
or
given,
and
will
not
pay
or
give,
any
third
party
any
money
or
other
consideration
for
obtaining
this
Agreement.

17. Non-liability
of
Officials
and
Employees.
(a)
No
officer,
official
or
employee
of
the
Authority
or
the
City
will
be
personally
liable
to
Developer,
or
any
successor
in
interest,
in
the
event
of
any
default
or
breach
by
the
Authority
or
for
any
amount
which
may
become
due
to
Developer
or
on
any
obligations
under
the
terms
of
this
Agreement.
(b)
No
member,
official
or
employee
of
Developer
will
be
personally
liable
to
the
Authority,
or
any
successor
in
interest,
in
the
event
of
any
default
or
breach
by
Developer
or
for any
amount
which
may
become
due
to
the
City
or
its
successor
or
on
any
obligations
under
the
terms
of
this
Agreement.

This
release
will
not
apply
in
the
event
of
fraud,
waste
or
intentional
damage
by
Developer
or
any
member,
official,
or
employee
of
Developer.

18. Interpretation
of
Agreement;
Terminology;
Application
of
Law.
(a)
This
Agreement
has
been
negotiated
at
arm's
length
and
between
persons
sophisticated
and
knowledgeable
in
the
matters addressed
herein.

In
addition,
each
Party
has
been
given
the
opportunity
to
consult
with
experienced
and
knowledgeable
legal
counsel.

Accordingly,
any
rule
of
law
(including
Civil
Code
sectiori
1654)
or
legal
decision
that
would
require
RIGHT

OF ENTRY
AND

LICENSE

AGREEMENT
MONTE
VISTA

HOUSING

DEVELOPMENT
PAGE12
Right
of
Entry
and
License
Agreement
-
Wakeland
Housing
and
Development
Corporation
vi
40 of
47 August 16, 2022, Item #12
interpretation
of
any
ambiguities
in
this
Agreement
against
the
Party
that
has
drafted
it
is
not
applicable
and
is
waived.

The
provisions
of
this
Agreement
will
be
interpreted
in
a
reasonable
manner
to
effectuate
the
purpose
and
intent
of
the
Parties
to
this
Agreement.

This
Agreement
will
be
construed
and
enforced
in
accordance
with
the
internal
laws
of
California
and
not
the
law
regarding
conflict
of
laws,
except
to
the
extent
that
federal
law
preempts
state
law.
(b)
When
the
context
so
requires
when
used
in
this
Agreement,
the
masculine
gender
will
be
deemed
to
include
the
feminine
and
neuter
gender
and
the
neuter
gender
will
be
deemed
to
include
the
masculine
and
feminine
gender.

When
the
context
so
requires,
the
singular
will
be
deemed
to
include
the
plural.

The
paragraph
and
section
headings
have
been
used
for
convenience
only,
and
will
not
be
used
in
the
interpretation
hereof.

19. Waivers. A
waiver
by
the
Authority
or
Developer
of
any
term,
covenant,
or
condition
herein
contained
will
not
be
a waiver
of
such
term,
covenant,
or
condition
on
any
subsequent
default
or
breach.

All
waivers
must
be
in
writing
and
signed
by
the
appropriate
representatives
of
the
Authority
or
Developer.

20. Time
of
the
Essence.

Time
is
of
the
essence
in
this
Agreement
and
each
and
all
of
its
provisions
in
which
performance
is
a factor.

21. Attorneys'
Fees
and
Costs.

If
an
action
or
court
proceeding
is
brought
by
a Party
against
the
other
Party
under
this
Agreement,
whether
for
interpretation,
enforcement
or
otherwise,
the
prevailing
Party
in
any
such
action
or
proceeding
shall
be
entitled
to
recover
attorneys'
fees
and
costs
from
the
other
Party.

22. Severability. If
a provision
of
this
Agreement
proves
to
be
invalid,
void,
or
illegal,
it
will
in
no
way
affect,
impair,
or
invalidate
the
other
provisions
hereof
and
such
other
provisions
will
remain
in
full
force
and
effect.