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TWELFTH AMENDMENT
to
DISPOSITION AND DEVELOPMENT AGREEMENT
by and among the
CITY OF RICHMOND, IN ITS CAPACITY AS SUCCESSOR AGENCY TO
THE RICHMOND REDEVELOPMENT AGENCY,
CITY OF RICHMOND, A MUNICIPAL CORPORATION,
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT,
and
PACIFIC WEST COMMUNITIES, INC.
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THIS TWELFTH AMENDMENT TO DISPOSITION AND DEVELOPMENT
AGREEMENT (the “Twelfth Amendment”) is entered into this _____ day of ___________ , 2023 by and among the City of Richmond, in its capacity as successor to the Richmond Redevelopment Agency (“Successor Agency”), the City of Richmond, a municipal corporation (“City”), the San Francisco Bay Area Rapid Transit District, a rapid transit district (“BART”), and Pacific West Communities, Inc., an Idaho corporation (the “Phase Two Developer”, as assignee of Richmond Transit, LLC and Pacific West Builders, Inc.). The Successor Agency, the City, BART, and the Phase Two Developer are collectively referred to herein as the “Parties.”
RECITALS
A. The Richmond Redevelopment Agency (the “Former Agency”), BART and Richmond Transit LLC (the “Original Developer”) entered into that certain Disposition and Development Agreement (as subsequently amended, the “DDA”) dated as of April 11, 2002, for the development of Phase One and Phase Two of the Transit Village commonly referred to as MetroWalk.
B. As of February 1, 2012, the Former Agency was dissolved pursuant to California Health & Safety Code Section 34172. In accordance with California Health & Safety Code Section 34173(d)(3), the City agreed to serve as the successor agency to the Former Agency. In accordance with California Health & Safety Code Section 34175(b) all property and assets of the Former Agency were transferred to the City in its capacity as successor agency to the Former Agency.
C. Phase One of the Transit Village and portions of Phase Two have been completed.
D. The DDA has been extended by those certain extension letters by and among the Parties with the latest extension dated as of May 30, 2023, extending the Outside Date for Phase Two to October 31, 2023.
E. The rights and obligations of the Original Developer pertaining to Phase Two of the Transit Village were previously assigned to the Phase Two Developer.
F. The Parties wish to amend the DDA to, among other things, revise the Scope of Development for Phase Two to provide for the construction of a total of approximately 520 units of market-rate and affordable housing on the Phase Two Residential/Retail Property, as more particularly described in the Scope of Development (the “Phase Two Project”), and to revise the Schedule of Performance for the development of Phase Two to provide for construction in three subphases with approximately 150 residential units in the first subphase, approximately 150 residential units in the second subphase, and approximately 220 residential units in the third subphase.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Parties. With respect to actions and obligations related to the Phase Two Project, references in the DDA to the “Agency” shall mean the Successor Agency, and references to the “Developer” shall mean the Phase Two Developer. The City of Richmond, a municipal
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corporation (acting in such municipal capacity as distinguished from its capacity as the Successor Agency) is hereby added as a party to the DDA,
2. Definitions. Unless otherwise defined herein, capitalized terms used in this Twelfth Amendment shall have the meaning ascribed to such terms in Section 100 Article 1 of the DDA. The following definitions are added or amended as follows:
a. “Actual Household Size” shall mean the actual number of persons in the applicable household.
b. “Adjusted Income” shall mean the total anticipated annual income of all persons in a household, as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjusted income. In the event that no such program exists, the City shall provide the Developer with a reasonably similar method of calculation of adjusted income as provided in said Section 6914.
c. “Affordability Period” means for each Subarea Project, a period of fifty- five (55) years commencing on the date a certificate of occupancy is issued for that Subarea Project.
d. “Affordable Units” means the Residential Units in the Phase Two Project designated as affordable for Very-Low Income, Low-Income and Extremely Low-Income Households.
e. “Assumed Household Size” shall mean for any development that is financed with federal low-income housing tax credits, the assumed household size used by the California Tax Credit Allocation Committee for each applicable unit size, and for any development that is not so financed, shall be determined in accordance with Health and Safety Code Section 50052.5(h).
f. “City” means the City of Richmond, a municipal corporation. g. “Closing” means the close of escrow for Conveyance of the Subarea 1 Parcel, the Subarea 2 Parcel, and the Subarea 3 Parcel, as applicable. h. “Conveyance” means the disposition by sale or Ground Lease, as applicable, of the Subarea 1 Parcel, the Subarea 2 Parcel, or the Subarea 3 Parcel by the City to the applicable developer.
i. “Ground Lease” means the ground lease to be executed by City as lessor and the applicable developer as lessee for development of the Subarea 1 Parcel, the Subarea 2 Parcel, and/or the Subarea 3 Parcel, as applicable.
j. “Low-Income Household” shall mean a household with an Adjusted Income that does not exceed the qualifying limits for lower income households, adjusted for Actual Household Size, as established and amended from time to time pursuant to Section 8 of
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the United States Housing Act of 1937, and as published by the State of California Department of Housing and Community Development (“HCD”).
k. “Low-Income Rent” means that the Rent charged to tenants of the residential units restricted for occupancy by Low-Income Households shall not exceed one- twelfth (1/12th) of thirty percent (30%) of sixty percent (60%) of Median Income, adjusted for Assumed Household Size.
l. “Median Income” shall mean the median gross yearly income adjusted for Actual Household Size in the County of Contra Costa, California, as annually estimated by the United States Department of Housing and Urban Development pursuant to Section 8 of the United States Housing Act of 1937 and published by U.S. Department of Housing and Urban Development (“HUD”) and HCD. In the event that such income determinations are no longer published or are not updated for a period of at least eighteen (18) months, the City shall provide the Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD and HCD. m. “Parties” means the Successor Agency, the City, BART, and the Phase Two Developer.
n. “Phase Two Developer” means Pacific West Communities, Inc. o. “Phase Two Project” means the approximately five hundred twenty (520) units of market-rate and affordable multi-family housing to be developed in three phases on the Subarea 1 Parcel, the Subarea 2 Parcel, and the Subarea 3 Parcel. p. “Subarea 1 Parcel” means the approximately one and two tenths (1.2) acre portion of the Phase Two Residential/Retail Property currently owned by the City, and generally located along 19th Street to Macdonald Avenue, as more particularly depicted in the Site Plan attached as Attachment C.
q. “Subarea 2 Parcel” means the approximately two (2.0) acre portion of the Phase Two Residential/Retail Property currently owned by BART, and generally located along Nevin Avenue and 19th Street, as more particularly depicted in the Site Plan attached as Attachment C.
r. “Subarea 3 Parcel” means the approximately two (2.0) acre portion of the Phase Two Residential/Retail Property currently owned by BART, and generally located along Barrett Avenue and 18th Street, as more particularly depicted in the Site Plan attached as Attachment C.
s. “Subarea 1 Project” means the multifamily residential development containing approximately one hundred fifty (150) units affordable to Low-Income Households, composed of studios, one-bedroom, two-bedroom and three-bedroom units, to be developed on the Subarea 1 Parcel in the first phase, as more particularly described in the Scope of Development.
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t. “Subarea 2 Project” means the residential development containing approximately one hundred fifty (150) units to be developed on the Subarea 2 Parcel in the second subphase.
u. “Subarea 3 Project” means the residential development containing approximately two hundred twenty (220) units to be developed on the Subarea 3 Parcel in the third subphase.
v. “Rent” means the total monthly payments by the tenant of an Affordable Unit for the following: use and occupancy of the unit and land and associated facilities; any separately charged fees or service charges which are customarily charged in rental housing and required of all tenants, other than security deposits; an allowance for the cost of an adequate level of service for utilities paid by the tenant, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service or cable TV; and any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity, and paid by the tenant. w. “Very Low-Income Rent” means that the Rent charged to tenants of the residential units restricted for occupancy by Very Low-Income households shall not exceed one- twelfth (1/12th) of thirty percent (30%) of fifty percent (50%) of Median Income, adjusted for Assumed Household Size.
3. Scope of Development - Phase Two Residential/Retail Property. Section 201.4 (Phase Two Residential/Retail Property) is hereby amended in its entirety to read as follows:
A. SUBAREA 1
(a) The City shall ground lease the City-owned parcel identified as “Subarea 1” to Phase 2 Developer or an affiliated entity controlled by Phase 2 Developer for development of the Subarea 1 Project pursuant to a Ground Lease in form approved by City and Phase 2 Developer and that includes without limitation, the following terms:
(i) The term of the Ground Lease shall be 99 years.
(ii) Commencement of the Ground Lease will be
contingent upon satisfaction of specified conditions precedent, including without limitation, City Building Department approval of construction plans for the Subarea 1 Project, the issuance of permits or a permit -ready letter for the Subarea 1 Project, and the close of construction financing for the Subarea 1 Project. Additional conditions shall be set forth in the Ground Lease.
(iii) The annual base rent payable shall be $1.00 per year. At such time that the Successor Agency Development Loan (defined below) is fully paid off, annual base rent shall increase to be the amount equal to 50% of surplus cash generated by the Subarea 1 Project. As more particularly described in the Ground Lease “ Surplus Cash ” shall mean Subarea 1
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Project cash flow remaining after payment of operating expenses and required debt service, and the funding of required reserves. The aggregate amount of base rent payable over the life of the Ground L ease shall be capped at the current appraised fair market value of the land increasing over the life of the Ground Lease at a rate equal to the Applicable Federal Rate in effect at commencement of the term of the Ground Lease. (iv) The Subarea 1 Parcel shall be developed as a 150 -unit multi-family residential rental project that will include at least 75 apartments restricted for occupancy by households whose income is not greater than 60% of Median Income (“Low-Income Units”), an additional 36 apartments restricted for occupancy by households whose income is not greater than 50% of Median Income (“Very Low-Income Units”), and an additional 38 apartments restricted for occupancy by households whose income is not greater than 30% o f Median Income (“Extremely Low - Income Units”).
(v) Rent payable by tenants for the Low -Income Units
shall not exceed one-twelfth times 30% times 60% of Median Income; Rent payable by tenants for the Very Low -Income Units shall not exceed one - twelfth times 30% times 50% of Median Income; and Rent payable by tenants for the Extremely Low -Income Units shall not exceed one -twelfth times 30% time 30% of Median Income.
(vi) Supportive social services, including educational, health and wellness, skill -building and other services as more particularly described in the Ground Lease shall be made available to residents of the Subarea 1 Project.
(b) City and Phase Two Developer shall cooperate in good faith to seek funding to (i) subsidize rents for the Extre mely Low -Income Units, (ii) support the provision of social services for the residents, and (iii) collaborate with the County of Contra Costa’s Coordinated Entry Program to obtain referrals of unhoused persons for occupancy of the Extremely Low-Income Units. In addition, the Successor Agency shall provide a grant in the amount of up to $1,674,000 (“Successor Agency Grant”) using funds approved as an enforceable obligation on the Successor Agency’s Recognized Obligation Payment Schedule (“ ROPS”). The Succe ssor Agency Grant will be used to fund a reserve to provide social services to formerly unhoused residents and rent subsidies for the Extremely Low - Income Units. The Parties acknowledge that in the aggregate, the sum of the Successor Agency Grant and the Successor Agency Development Loan (defined below) does not exceed the amount of funding approved to be provided pursuant to the original DDA and previously confirmed as an enforceable obligation on the Successor Agency’s ROPS.
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(c) Notwithstanding any cont rary provision hereof, to the extent permitted by applicable law, maximum rent and maximum household income limits for Extremely Low -Income Units and Low -Income Units (each as defined in Section 3(A)(iv) above), may be determined using California Tax Credit Allocation Committee rules and regulations. (d) The Successor Agency shall provide a loan to support construction of the Subarea 1 Project in the amount of $2,187,000 (“Successor Agency Development Loan”) using funds approved as an enforceable obligati on on the Successor Agency’s ROPS. The obligation to repay the Successor Agency Development Loan shall be evidenced by a promissory note secured by a deed of trust recorded against the Phase 2 Developer’s leasehold interest in the Subarea 1 Parcel. The no te shall bear 3% simple annual interest, shall be payable from 50% of Surplus Cash, and shall have a 55 year term. The Parties acknowledge that the original DDA provided that the former Redevelopment Agency would provide development financing in the form of a no -interest, forgivable loan. In contrast, the Parties acknowledge that payments the Successor Agency receives under the Successor Agency Development Loan shall be used to pay Successor Agency enforceable obligations approved on the ROPS or shall be passed through to the affected taxing entities pro rata in accordance with their respective shares of the property tax base.
(e) Phase Two Developer shall be permitted to apply for an allocation of low income housing tax credits for the Subarea 1 Project in up to six (6) consecutive California Tax Credit Allocation Committee (CTCAC) funding application cycles, and shall be permitted to apply for funding from the Affordable Housing and Sustainable Communities (AHSC) program in up to two (2) consecutive AHSC funding application cycles. If Phase Two Developer is unable to obtain financing commitments sufficient to finance the Subarea 1 Project by June 30, 2026, Phase Two Developer’s rights under the DDA shall terminate, and City shall be entitled to seek ano ther developer for Subarea 1 who shall succeed to Phase Two Developer’s rights under the DDA with respect to the development of Subarea 1.
B. SUBAREA 2 AND SUBAREA 3
(a) BART agrees to convey Subarea 2 and Subarea 3 to City by Grant Deed substantially in the form attached hereto as Attachment E within 30 days following the full execution of the Twelfth Amendment to the DDA following approval of such amendment by the governing boards of each of the Parties, the Contra Costa County Oversight Board, and the California Department of Finance. Immediately s ubsequent to such conveyance, the City shall convey an access easement to BART as described in Attachment F.
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(b) City shall conduct a competitive process to select one or more developers for Subarea 2 and Subarea 3. Phase 2 Developer shall be permitted to participate as an applicant in such process. (c) If Phase 2 Developer is not selected to develop Subarea 2 or Subarea 3, City shall require the selected developer(s) to reimburse costs incurred as of February 28, 2023 by Phase 2 Developer for due diligence, DDA drafting, engineering, and architectural work benefitting Subarea 2 and Subarea 3 in the amount not to exceed $140,000 as documented in an accounting and supporting documentation submitted by Phase 2 Developer and approved by City . The selected Subarea 2 and Subarea 3 developers shall be required to pay their allocated share of such reimbursement on the date they enter into a disposition or ground lease agreement(s) with the City and/or Successor Agency.
(d) In the aggregate Subarea 2 and Subarea 3 shall be developed with 370 residential units that may include a combination of multifamily rental units and ownership units. At a minimum, Subarea 2 and Subarea 3 shall in the aggregate provide a minimum of 59 un its that will be provided at affordable rent or affordable sales prices to households whose income does not exceed 60% of Median Income , and one -half of such units shall be provided at affordable rent or affordable sales prices to households whose income does not exceed 50% of Median Income.
(e) The description of the scope of development for Subarea 2 and Subarea 3 set forth in this Section shall supersede any contrary description of such scope of development set forth elsewhere in the DDA.
Notwithstanding anything to contrary set forth herein, the City shall retain discretion to include additional elements in the scope of development for Subarea 2 and Subarea 3.
C. BART Approval.
BART’S w ritten approval will be required if there is a reduction in the number of residential units of more than fifteen percent (15%) for either the Subarea 2 Project or the Subarea 3 Project or more than ten percent (10%) for the overall Phase Two Project.
3.1 Acknowledgement of Completion. The Parties each hereby ack nowledge that development of the Phase One improvements, including without limitation, the construction and installation of the Platform, the Parking Structure, and the Western Nevin Avenue Improvements, has been completed.
4. Schedule of Performance. The definition of Schedule of Performance is deleted in its entirety and replaced with the following:
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a. “Schedule of Performance ” means as the context requires (i) the Schedule of Performance for Phase One attached hereto as Attachment No. 5 and incorporate d herein, and (ii) the Schedule of Performance for the Subarea 1 Project attached to the Twelfth Amendment as Attachment A-1 and the Schedule of Performance for the Subarea 2 Project and the Subarea 3 Project attached to the Twelfth Amendment as Attachment A-2, each incorporated herein, and which shall supersede all references to Phase Two that appear in the Schedule of Performance for Phase One. The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing among the Developer and the City.
5. Scope of Development. The definition of Scope of Development is deleted in its entirety and replaced with the following:
a. “Scope of Development” means the Scope of Development for Phase One attached hereto as Attachment No. 6, and the Scope of Development for Phase Two described in Section s 201.4 (A)(iv) and 201.4(B)(d). Any reference to the Phase Two Residential/Retail Property site or Phase Two Developer Improvements contained in the Scope of Development for Phase One are superseded by the terms of the Scope of Development for Phase Two.
6. Section 200. (CONVEYANCE OF THE SITE) of the DDA is hereby amended to add the following new subsection:
201.7. Pursuant to the BART Act, California Public Utilities Code Section 29031, BART will continue to have use of the area identified in Attachment G where BART intends to replace portions of the existing six -foot wrought iron fence with an eight -foot cinder b lock concrete masonry unit wall for added security to the adjacent BART electrical substation.
7. Conditions Precedent to Closing for Phase Two Residential/Retail Property Conveyance. Section 205.3 is replaced in its entirety by the following:
The obligation of the City to proceed with the Closing of the Conveyance of the Subarea 1 Parcel is subject to the Phase Two Developer’s satisfaction or the City’s written waiver of all of the following conditions precedent to closing: (i) no uncured default on the part of Phase Two Developer under the DDA or any related document pertaining to the Subarea 1 Project shall have occurred and be continuing; (ii) all representations and warranties of Phase Two Developer set forth in the DDA or related documents shall be true and correct; (iii) Phase Two Developer shall have executed all documents pertaining to development of the Subarea 1 Project, including without limitation, the Ground Lease, the Regulatory Agreement, and all applicable City or Successor Agency loan and grant documents; (iv) all documents the City or Successor Agency require to be recorded against the Subarea 1 Parcel, including without limitation, a Memorandum of the Ground Lease,
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the Regulatory Agreement, and a leasehold deed of trust, shall have been executed and acknowledged by Phase Two Developer and deposited into escrow; (v) Phase Two Developer shall have obtained all land use approvals and entitlements required for development of the Subarea 1 Project, (vi) Phase Two Developer shall have provided to City proof of insurance consistent with City requirements; (vii) Phase Two Developer shall have provided and City shall have approved a financing plan for the Subarea 1 Project, including development and operating proformas showing all sources and uses; (viii) Phase Two Developer shall have obtained and City shall have approved all sources for construction and permanent financin g for the Subarea 1 Project, and such construction financing shall be ready to close and fund concurrently with commencement of the Ground Lease; ( ix) the City Building Department shall have approved the construction plans for development of the Subarea 1 Project; (x) Phase Two Developer shall have provided, and City shall have approved all due diligence items reasonably required by City, including without limitation, corporate and partnership documents and agreements, good standing certificates, and enviro nmental reports; (xi) Phase Two Developer shall have obtained all permits required for construction of the Subarea 1 Project or a permit -ready letter; (xii) City shall have obtained commitments for owner’s and lender’s policies of title insurance in such form as City may reasonably require.
8. Cultural Arts Facility. Section 301.6 Cultural Arts Facility is deleted in its entirety and is replaced with “Reserved”.
9. Phase Two Improvements. Section 301.8 East Side Residential Units and Retail Space (Phase Two Improvements) shall be deleted in its entirety and replaced with the following:
301.8. Phase Two Improvements . The Phase Two Improvements will consist of approximately 520 units of market -rate and affordable housing to be developed in three phases on the Subar ea 1 Parcel, the Subarea 2 Parcel and the Subarea 3 Parcel in accordance with approved plans, the Scope of Development as described in Section 201.4 (A)(iv) and Section 201.4(B)(d), and the Schedule of Performance.
10. Assessment District. Section 303.4 Assessment District is deleted in its entirety.
11. Approval of Financing. Section 311.1 Approval of Financing is amended to provide that each reference to “Agency and BART” shall mean a reference to “Agency and City.”
12. Phase Two Development Loan. The first paragraph of Section 311.6 (Phase Two Development Loan) is deleted in its entirety and replaced with the following:
Section 311.6. Successor Agency Development Loan and Grant. The Successor Agency agrees to provide financing in the amount of Three Million Eight H undred Sixty -One Thousand Dollars ($3,861,000) as follows: (i) $2,187,000 shall be provided as the Successor Agency Development Loan to
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support construction of the Subarea 1 Project in accordance with Section 201.4(A)(d) above, and (ii) $1,674,000 shall be provided as the Successor Agency Grant to fund a reserve to subsidize rents and social services for the Subarea 1 Project in accordance with Section 201.4(A)(b) above. The Parties acknowledge that (i) in the aggregate, the sum of the Successor Agency Grant and the Successor Agency Development Loan does not exceed the amount of funding approved to be provided pursuant to the original DDA and previously confirmed as an enforceable obligation on the Successor Agency’s ROPS, and (ii) the Successor Agency Development Loan will be repayable from surplus cash generated by the Subarea 1 Project and therefore will generate revenue for the Successor Agency and the taxing entities in contrast to the original DDA which provided that the loans to be provided b y the former Redevelopment Agency would be structured as no-interest forgivable loans.
13. Section 403. The title of Section 403 shall be renamed “Provision of Affordable Housing.”
14. Number of Affordable Units. Section 403.1 shall be deleted and replaced with the following:
403.1 Affordable Units. The Affordable Units in the Phase Two Project shall be as follows:
(a) The Subarea 1 Project shall provide affordable rental units as described in Section 201.4(A)(a)(iv) above.
(b) The Subarea 2 and Subarea 3 Projects will provide affordable residential units in accordance with Section 201.4(B)(d) above. (c) Recorded Restrictions. The rent and occupancy restrictions applicable to the Subarea I Project, the Subarea 2 Project and the Subarea 3 Project shall be set forth in one or more Affordable Housing Regulatory Agreements with Declaration of Restrictive Covenants ( “Regulatory Agreements”) executed by and between City and the applicable developer and recorded against the applicable parcels senior to all deeds of trust or similar liens. The Regulatory Agreements shall not be subordinated to any deed of trust or similar lien recorde d against the applicable parcels. The Regulatory Agreements shall set forth the affordability restrictions that apply to each parcel pursuant to the California Surplus Land Act (Government Code Section 54220 et seq.), SB 35 (Government Code Section 65913.4), and State Density Bonus Law (Government Code Section 65915 et seq.), as applicable. (d) Tenant Services. The City will require s ocial services to be made available to residents of the Subarea 1 Project as described in the Ground Lease and the Suba rea 1 Regulatory Agreement. Resident social services required to be provided for the Subarea 2 Project and the Subarea 3
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Project will be described in the Regulatory Agreement applicable to the Subarea 2 Parcel and the Subarea 3 Parcel.
15. Selection of Tenants. Section 403.3 shall be deleted in its entirety and placed with the following:
Section 403.3. Selection of Tenants. The developer of Subarea 1, Subarea 2, and Subarea 3 shall each be responsible for the selection of the tenants in compliance with t he criteria set forth in Section 403.4 of this Agreement.
Each developer shall develop a procedure for selection of tenants, which, upon approval by Agency, shall be implemented by the developer.
16. Income of Tenants. Section 403.4 shall be deleted in its entirety and placed with the following:
Section 403.4. Income of Tenants. Prior to the leasing or any Affordable Unit, the developer of the applicable Subarea shall submit to City a completed income computation and certification form, in such form as may b e provided by City. Gross income shall be determined in accordance with Health and Safety Code for the appropriate household income level targeted for the Affordable Unit. The developer shall obtain a certification from each tenant leasing an Affordable Unit demonstrating that such tenant meets the eligibility requirements established for the Affordable Unit. The developer shall verify the income certification of the proposed tenant as set forth below.
The developer of each Subarea shall verify the income of each proposed tenant of the Affordable Units by at least one of the following methods as appropriate to the proposed tenant:
(1) obtain two (2) paycheck stubs from the person's two (2) most recent pay periods.
(2) obtain a true copy of an income tax re turn from the person for the most recent tax year in which a return was filed.
(3) obtain an income verification certification from the employer of the person.
(4) obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the person receives assistance from such agencies.
(5) obtain an alternate form of income verification reasonably requested by Agency, if none of the above forms of verification is available to the Phase Two Developer.
17. Deletion of Sections; Additional Modifications.
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17.1 Section 404 and Section 405 are deleted in their entirety. The Parties acknowledge that the deletion of Section 404 will result in a reduction in the Successor Agency’s financing obligation in the amount of Two Million Five Hundred Thousand Dollars ($2,500,000).
17.2 The Parties agree that the following additional modifications are hereby made to the DDA:
(a) The Grant Deed attached as Attachment 3 to the DDA is hereby deleted.
Conveyance of Subarea Parcel 1 shall be accomplished pursuant to a Ground Lease consistent with the terms described above, and conveyance of Subarea Parcel 2 and Subarea Parcel 3 shall be accomplished by either ground leases executed by the City and the applicable developer or by grant deeds executed by the City, as applicable. (b) The Certificate of Completion attached as Attachment 7 to the DDA is hereby deleted and shall be replaced by a certificate of completion to be executed by the City.
(c) The Promissory Notes attached as Attachments 9 and 11 to the DDA are hereby deleted and shall be replaced by a promissory note payable by Phase Two Developer to the City consistent with the terms described in Section 3.A(d) above. (d) Notwithstanding any contrary provision of the DDA, Phase Two Developer shall be responsible for payment of all closing costs related to the conveyance of any parcel conveyed or leased to Phase Two Developer, including without limitation, premiums for all title insurance policies required by Phase Two Developer or City, all escrow charges, and all applicable transfer taxes. In addition, by not later than closing for commencement of the Subarea 1 Ground Lease, Phase Two Developer shall reimburse City for its attorneys’ fees and costs incurred in connection with the amendment of the DDA, the preparation of all documents relating to the conveyance or financing of the Subarea 1 Project, including without limitation, the Ground Lease and loan and grant documents, the review of corporate and partnership documents, the review of due diligence items, and the closing for the conveyance of the Subarea 1 Parcel. (e) Section 208.6 of the DDA is hereby modified to provide that each reference to “Agency and BART” shall mean a reference to “City, Agency, and BART” and each reference to “Agency or BART” shall mean a reference to “Agency, BART or City.”
(f) Section 505 of the DDA is hereby modified to provide that each reference to “Agency” shall mean a reference to “City.”
(g) Section 512 of the DDA is hereby modified to provide that each reference to “Agency” shall mean a reference to “City.”
(h) Section 603.5 of the DDA is hereby modified to provide that each reference to “Agency” shall mean a reference to “Agency and City.”
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(i) Section 603.6 of the DDA is hereby modified to provide that each reference to “Agency” shall mean a reference to “Agency and City.” (j) Section 604 of the DDA is hereby modified to provide that each reference to “Agency, BART and the Developer” shall mean a reference to “City, Agency, BART, and Developer.”
18. Notices. Section 601. Notices, Demands and Communications Between the Parties is amended to revise the notice information with the following:
To City: City of Richmond
450 Civic Center Plaza
Richmond, California 94804
Attention: City Manager
To Successor Agency:
Successor Agency to the former Richmond Redevelopment Agency c/o City of Richmond
450 Civic Center Plaza
Richmond, California 94804
Attention: City Manager
To Developer: Pacific West Communities, Inc. 430 E. State Street, Suite 100 Eagle, ID 83616
Attention: Caleb Roope
To BART: San Francisco Bay Area Rapid Transit District
2150 Webster Street, 9th Floor
Oakland, CA 94612
Attention: Director of Real Estate & Property Development
19. Prohibited Transfers. Section 603.1 (Prohibition) shall be deleted in its entity and replaced with the following:
Section 603.1. Prohibition. The qualifications and identity of the Developer and Phase Two Developer are of particular concern to the City, Agency and BART. It is because of those qualifications and identity that the Parties have entered into this Agreement with the Developer and Pha se Two Developer.
Accordingly, for the period commencing upon the date of this Agreement and until the issuance of the Certificate of Completion for the Subarea 1 Project (a) no voluntary or involuntary successor in interest of the Developer or Phase Two Developer shall acquire any rights or powers under this Agreement, (b) nor shall the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Phase One Residential/Retail Property, (c) nor shall the Phase Two Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Phase Two
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Residential/Retail Property or part thereof, or the Improvements t hereon, (d) nor shall there be a change in the managing member of the Phase Two Developer from Pacific West Communities, Inc. (collectively referred to herein as a “Transfer”), without the prior written approval of the City, except as expressly set forth herein.
20. Indemnity. In addition to the indemnity provisions set forth in the DDA, Phase Two Developer shall indemnify, defend, and hold the City, the Agency, and BART, and their respective representatives, directors, officers, officials, employees and agents harmless from and against any and all claims, demands, damages, defense costs, expenses (including without limitation, attorneys’ fees) or liability of any kind or nature arising from any violation of applicable local, State, or federal law relating to the development, operation, or management of the Subarea 1 Project by Phase Two Developer, its employees, agents, contractors, and affiliated entities.
21. No Other Changes. Except as provided in this Twelfth Amendment, all terms and conditions of the DDA, as previously amended, shall continue in full force and effect. Only those provisions of the DDA specifically amended herein shall be affected by this Twelfth Amendment.
22. Further Assurances. The Parties each agree to execute such additional documents as may be necessary to implement the intent of this Twelfth Amendment.
23. Counterparts. This Twelfth Amendment may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement.
24. Exhibits. The following exhibits are attached hereto and incorporated herein:
Attachment A-1 Schedule of Performance – Subarea 1
Attachment A-2 Schedule of Performance - Subareas 2 and 3 Attachment C Site Plan
Attachment E Grant Deed [BART to City]
Attachment F Easement Deed [City to BART]\
Attachment G BART Act Use Area
[SIGNATURES ON THE FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the Parties have executed this Twelfth Amendment as of the date first written above.
ATTESTED:
By:
City Clerk
CITY:
CITY OF RICHMOND, a municipal
corporation
By:
Its:
APPROVED AS TO FORM:
By:
SUCCESSOR AGENCY:
By:
Its:
DEVELOPER:
PACIFIC WEST COMMUNITIES, INC.
By:
Its:
APPROVED AS TO FORM:
By:
Office of the General Counsel
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT, a rapid transit district
Office of the General Counsel
By:
Its:
4856-4266-4296 v7 A-1-1
Attachment A-1
SCHEDULE OF PERFORMANCE
SUBAREA 1 PROJECT
Project Milestones Anticipated Date
Phase 1 report 2/9/2021
Phase 2 report N/A
Soils Report 6/24/2021
NOI for Tribes Completed 2/15/2022
AHSC Conditional Award Date 9/1/2023
DDA Amendment submitted to
Oversight Board and DOF 9/30/2023
SB 35/City Entitlement Application 10/15/2023
Construction Drawings Submittal 4/15/2024
CDLAC/TCAC application Q2-2024
CDLAC award
Q3-2024
TCAC Allocation Award Q3-2024
Equity Commitment Q3-2024
Construction and Permanent
Financing Commitments Q3-2024
Building Permits Q1-2025
Construction loan closing Q1-2025
Construction Start Q1-2025
Construction Complete Q1-2027
Stabilized Occupancy Q2-2027
Conversion to Permanent Loan Q3-2027
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Attachment A-2
SCHEDULE OF PERFORMANCE
SUBAREA 2 PROJECT AND SUBAREA 3 PROJECT
Milestone Anticipated Date (subject to modification) Subarea 2 Parcel and Subarea 3 Parcel Q4 2023
conveyed to City
City issues RFQ for Subarea 2 Q2 2024
Developer selected for Subarea 2 Q4 2024
Subarea 2 Project construction commences Q2 2026
Subarea 2 Project completed Q4 2028
City issues RFQ for Subarea 3 Q2 2024
Developer selected for Subarea 3 Q4 2024
Subarea 3 Project construction commences Q2 2026
Subarea 3 Project completed Q2 2028
4856-4266-4296 v7 C-1
Attachment C
SITE PLAN
[Attach site plan for Subareas 1, 2, and 3]
4856-4266-4296 v7 E-1
Attachment E
GRANT DEED WITH LEGAL DESCRIPTION AND PLAT MAP – PHASE 2 PROPERTY TO BE CONVEYED BY BART TO CITY’
(To be recorded within thirty (30) days after full execution of Twelfth Amendment to DDA.)
4856-4266-4296 v7 E-2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL DOCUMENT
AND TAX STATEMENTS TO:
CITY OF RICHMOND
450 Civic Center Plaza, 2nd Floor
Richmond, CA 94804
Attn: Lena Velasco, Community
Development Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
The undersigned grantee hereby declares: This instrument is exempt from Recording Fees (Govt. Code §27383) and from Documentary Transfer Tax (Rev. and Taxation Code §11922).
GOVERNMENT AGENCY ACQUIRING TITLE
APNs: portion 514-151-005,
514-140-012 through 018, & 514-140-027
O-R901-X1 (BART Parcel Nos.
O-RE41X - O-RE44X, O-R863X - O-R868X,
O-R875X - O-R900X, & portion of O-R901X)
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district ("Grantor') does hereby grant to the CITY OF RICHMOND, a municipal corporation ("Grantee"), the following real property in the City of Richmond, County of Contra Costa, and State of California:
Fee title absolute for the real property described on Exhibit "A" and as shown on Exhibit "B" attached hereto and made a part hereof.
IN WITNESS WHEREOF, the hand of
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT President of the Board,
and District Secretary and its seal,
this ________________ day of
___________________, 2023.
GRANTOR:
SAN FRANCISCO BAY AREA RAPID
TRANSIT DISTRICT (BART)
By:
Name: Janice Li
Title: President of the Board
By:
Name: April B. A. Quintanilla
Title: Acting District Secretary
BART, Grantor Grant Deed
Richmond Transit Village/Metro Walk II Page 1
APNs: 514-140-012 through 018, 514-140-027, & portion of 514-151-005
4856-4266-4296 v7 E-3
ACKNOWLEDGMENT
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
4856-4266-4296 v7 E-4
ACKNOWLEDGMENT
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they execut ed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the la ws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
4856-4266-4296 v7 E-5
4856-4266-4296 v7 E-6
4856-4266-4296 v7 E-7
4856-4266-4296 v7 E-8
4856-4266-4296 v7 E-9
Exhibit B to Grant Deed
4856-4266-4296 v7 E-10
4856-4266-4296 v7 E-11
4856-4266-4296 v7 E-12
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed dated _____________, 20__, from San Francisco Bay Area Rapid Transit District, a rapid transit district to the City of Richmond, a municipal corporation (“City”), is hereby accepted by the undersigned officer or agent on behalf of the City pursuant to authority conferred by Resolution No. ______________, dated ________________, 20____, and the City consents to recordation thereof by its duly authorized officer.
Date: ____________________, 20__ “City”
CITY OF Richmond, a municipal
corporation
_
Kinshasa Curl, City Manager
State of California )
) ss
County of _________ )
On , 20__, before me, __________________________________________, (Name of Notary)
notary public, personally appeared ______________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
4856-4266-4296 v7 F-1
Attachment F
EASEMENT DEED, LEGAL DESCRIPTION AND PLAT MAP OF BART ACCESS
EASEMENT WITHIN AREA DESCRIBED IN ATTACHMENT E
(to be recorded immediately after recordation of deed described in Attachment E)
4856-4266-4296 v7 F-2
RECORDING REQUESTED BY
AND
WHEN RECORDED RETURN TO:
San Francisco Bay Area
Rapid Transit District
2150 Webster Street, 9th Floor
Oakland, CA 94612
Attention: Director of Real Estate
SPACE ABOVE THIS LINE FOR RECORDER’S USE
The undersigned grantee hereby declares this to be exempt from Recording Fees (Govt. Code §27383) instrument and Documentary Transfer Tax (Revenue and Taxation Code §11922).
For valuable consideration, the CITY OF RICHMOND, a municipal corporation (“Grantor”), does hereby grant to the SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, a rapid transit district (“Grantee”), a permanent non-exclusive access easement (the “Access Easement”) and incidents thereto, for the purpose of ingress and egress on, over, across, and through the real property in the City of Richmond, County of Contra Costa, State of California, more particularly described on Exhibit “A”, attached hereto.
Nothing contained in this Agreement shall, or shall be deemed to, constitute a gift or dedication of any land to the general public or for the benefit of the general public or for any public purpose whatsoever, it being the intention that this deed will be strictly limited to and for the purposes expressed herein.
Grantor shall have the right, at Grantor’s sole cost and expense, to relocate the Access Easement, provided that (i) Grantor provides Grantee with at least One Hundred Twenty (120) days written notice of any such relocation, (ii) Grantee approves of the relocation of the Access Easement, which shall not be unreasonably withheld, and (iii) the relocation shall not interfere with or prohibit in any way Grantee’s access to the electrical substation on Grantee’s property.
The location of such Access Easement is described on Exhibit “B” attached hereto and made a part hereof.
CITY OF RICHMOND
By:
Kinshasa Curl, City Manager
Dated this _______day of ___________, 20____
APN No. 514-151-005 O-R901-2E
ACCESS EASEMENT
DEED
4856-4266-4296 v7 F-3
State of California )
) ss
County of _________ )
On , 20__, before me, __________________________________________, (Name of Notary)
notary public, personally appeared ______________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
F-4
F-5
F-6
F-7
4856-4266-4296 v7 F-8
CERTIFICATE OF ACCEPTANCE, GOVERNMENT CODE, SEC. 27281
This is to certify that the interest in real property conveyed by the foregoing deed or grant to the San Francisco Bay Area Rapid Transit District is hereby accepted by the undersigned on behalf of the San Francisco Bay Area Rapid Transit District pursuant to authority conferred by resolution of the Board of Directors of the San Francisco Bay Area Rapid Transit District entitled “In The Matter of Authorizing Acceptance of Deeds and Grants,” bearing No. 291, adopted on October 24, 1963, and the grantee consents to recordation thereof.
Dated this ____ day of _____________________, 20__
Recommended for Acceptance:
By:
Name:
Accepted:
San Francisco Bay Area Rapid Transit District
By:
Abigail Thorne-Lyman, Director
Real Estate and Property Development
Department
4856-4266-4296 v7 G-1
ATTACHMENT G
BART ACT USE AREA
4856-4266-4296 v7 G-2