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PART 56 - PRODUCTS
1.1 GENERAL
A. Referenced pipe sizes are nominal pipe diameters.
B. All materials delivered to the job site shall be new, free from defects, and marked to identify manufacturer, material, class, and other appropriate information.
C. Acceptance of materials will be subject to strength and quality testing, in addition to inspection of the completed product. Acceptance of installed piping system will be based on inspection and leakage tests.
1.2 PIPING MATERIALS
A. Pipe shall be high density, high molecular weight polyethylene. The material shall be listed by the Plastic Pipe Institute (PPI) with a designation of PE 4710 and have a minimum cell classification of 445474C or higher as described in ASTM D3350. The pipe shall contain no recycled compound except that generated in the manufacturer's own plant from resin of the same specification from the same raw material pipe.
B. Pipe shall be homogeneous throughout and shall be free of visible cracks, holes, foreign material, blisters, or other deleterious faults. It shall be uniform in density and other physical properties. Any pipe not meeting these criteria shall be rejected.
C. Pipe shall be made in conformance with ASTM F714 and ASTM D3261 as modified for the specified material. Pipe shall be minimum DR 17 with a minimum pressure rating of 125 psi at 73 degrees Fahrenheit.
D. The physical properties of the pipe and fittings material shall be as follows:
PROPERTY TEST METHOD VALUE
Density ASTM D 1505 >0.947-0.955 gm/cm3
Melt Index ASTM D 1238 <0.15
Tensile Strength, Yield ASTM D 638 3,000 - <3,500 psi
Flexural Modulus ASTM D 790 110,000-160,000 psi
E. The pipe and fittings shall have a white or light gray coloring on the interior. The exterior shall have a green stripe for in-ground identification as sewer pipe.
F. The high-density polyethylene pipe shall be provided by the following, or approved equal:
1. Performance Pipe, Division of Chevron Phillips Chemical Co., LP, Houston, Texas
2. Isco Industries, Louisville, Kentucky
1.3 JOINTS
A. Joints in HDPE pipe shall be made using the thermal butt-fusion method confirming to ASTM D2657 and shall be performed in strict accordance with the pipe manufacturer’s
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recommendations. Welding equipment shall be designed for the specific purpose of permanently connecting HDPE pipes. This equipment shall be capable of squarely facing the pipe ends to be joined, properly heating each pipe end to the temperature range specified by the pipe manufacturer, and applying and sustaining the appropriate pressure, as recommended by the pipe manufacturer.
B. The butt-fusion welding machine shall be outfitted with a measuring and recording unit that documents the conditions existing during the fusion of each individual weld. A printout that includes the date and time each joint was made, the joint number, the initials of the machine operator, the plate temperature at the time of mating, the pressure during the heating cycle, the time period for the heating cycle, the pressure during the soak cycle, and the time period of the soak cycle shall be machine-generated and delivered to the ENGINEER at the end of each work shift. The recording unit shall be a DataLogger, as manufactured by McElroy Manufacturing, Inc., or approved equal.
C. Fusion equipment shall be operated by technicians who have been certified by a major gas public utility such as Pacific Gas and Electric or Southern California-Edison for operation of such equipment. Furthermore, all technicians performing butt-fusion welding on this project shall have a minimum of two (2) years experience operating the same equipment used hereon.
D. Butt-fusion welding equipment shall be as follows, or approved equal:
1. McElroy No. 412 Hydraulic Fusion Machine, McElroy Manufacturing, Tulsa, Oklahoma
2. Proweld Field 12 (315)-R, Asahi/America, Malden, Massachusetts
1.4 FITTINGS
A. The CONTRACTOR shall provide fabricated fittings where required. Fabricated fittings shall be of the same material as, and shall have a minimum pressure rating equal to, and shall be from the same manufacturer as the pipe material. If the fitting is in-line with the pipeline (i.e., a flange adapter), then the I.D. of the fitting shall be the same as the pipe. If the fitting is off-line (i.e., a tee), then the fitting shall have an I.D. in accordance with the Contract Documents. Unless otherwise required, all fittings shall be butt-fusion welded.
B. Terminations to pipe or fittings made of other pipe materials shall be made by using couplings.
1.5 FLEXIBLE COUPLINGS
A. Flexible couplings shall be rubber, full-circle, clamp-on type conforming to ASTM C 425 and provided with two stainless-steel band, screw clamps to secure the coupling tightly to entering and exiting pipes. All screw-clamp hardware shall be Type 316 stainless steel.
Rubber material shall be suitable for sewage service.
1.6 WARNING TAPE
A. Install warning tape in accordance with Section 17, General Piping.
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PART 57 - EXECUTION
1.1 HANDLING AND STORAGE
A. All pipe, fittings, etc., shall be carefully handled and protected against damage, impact shock, free fall, and scoring. All pipe handling equipment shall be acceptable to the ENGINEER. Pipe shall be stored in a manner that protects the pipe against injury or damage. Stacking of polyethylene pipe will not be allowed. All plastic materials should be stored out of direct sunlight.
B. The CONTRACTOR shall inspect each pipe and fitting prior to butt-fusion welding and again prior to installation. Any damaged pipe or fittings shall be repaired or replaced by the CONTRACTOR, at no additional expense to the CITY and to the satisfaction of the ENGINEER. Damage shall include, but not be limited to, gouges, cuts, or scratches of a depth greater than five percent (5%) of the pipe wall.
C. Prior to butt-fusion welding or installation, each pipe or fitting shall be thoroughly cleaned of any foreign substance that may have collected thereon and shall be kept clean at all times thereafter. The material used to clean the pipe and fittings shall be as recommended by the pipe manufacturer.
1.2 BUTT-FUSION WELDING
A. Only technicians who have been certified in accordance with the requirements of paragraph 1.4.E shall be allowed to operate the butt-fusion welding equipment.
B. Butt-fusion welds shall be performed in accordance with manufacturer’s instructions. The butt-fusion welding procedures are summarized below:
1. Clean each pipe end with a clean cotton cloth to remove dirt, oil, grease, and other foreign materials.
2. Square (face) the mating surfaces of each of the pipes to be fused.
3. Bring the two (2) pipe ends together and adjust the pipe locations to ensure proper alignment.
4. Verify that the surface temperature of the heater plate is between 375-400 degrees Fahrenheit and then clean the heater surface with a clean cotton cloth.
5. Insert the heater plate between the pipe ends, bring the ends into firm contact with the heater plate without applying pressure, and achieve a proper melt pattern.
6. After achieving the proper melt bead, remove the heater plate and quickly examine the pipe ends for complete melt.
7. Once complete melt has been accomplished, rapidly bring the pipe ends together and apply pressure as recommended by the pipe manufacturer.
8. Hold the pressure constant and at the proper level throughout the cooling period, for the minimum time period recommended by the pipe manufacturer or as necessary to achieve proper cooling.
9. Do not backfill or expose pipe to water or any medium that may accelerate cooling of the pipe until fused joints have reached ambient temperature. Joints shall not be loaded until they have properly cooled.
C. The CONTRACTOR shall mark each joint with the individual joint number, corresponding to the joint identification number appearing on the printout of the data logger attached to
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the butt-fusion welding machine. The printout shall be attached to the pipe near the joint for collection by the ENGINEER.
D. The CONTRACTOR shall remove both the internal and external melt bead from the welded joint. Bead removal shall be accomplished in a manner that does not score or gouge the pipe.
1.3 INSTALLATION
A. HDPE pipe shall be used for pipe bursting applications only, unless indicated otherwise in the Contract Documents or approved by the ENGINEER. The CONTRACTOR shall insert the pipe into the horizontal boring through properly prepared insertion and receiving pits, in accordance with the requirements of ASTM F 585.
B. The maximum pulling force that may be applied to any pipe shall be calculated as follows:
F = SA
where F = maximum pulling force on pipe (lb.)
S = maximum allowable stress (1000 psi)
A = cross-sectional area of pipe wall (square inches)
The cross-sectional area of the pipe wall shall be calculated as follows:
A = (D-t)t
where D = outside diameter (in)
t = minimum wall thickness (in)
C. The CONTRACTOR shall take care not to drag the pipe over rocks or rough surfaces that may damage the pipe. An appropriate pulling head shall be attached to the end of the pipe and shall be used for pulling the pipe at all times.
D. Manhole connections shall be made by attaching a collar to the end of the pipe and encasing the collar in the manhole wall using grout, in accordance with the Contract Documents. The collar shall not be used for pulling the pipe into the horizontal boring.
E. Following installation, the insertion and receiving pits, and any other excavations used, shall be backfilled in accordance with the requirements of Section 4, Earthwork.
1.4 TESTING
HDPE pipeline testing shall be performed in accordance with Section 12, Sanitary Sewer System Testing.
END OF SECTION
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APPENDIX A
DAILY WORK REPORT FORM
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DAILY WORK REPORT
Project Name: File No.: Date:
Contractor: Foreman: Weather:
Item # Description Unit New and Unforeseen Work [ ] None [ ] Yes, describe:
Equip. # Description Hours Hourly Rate Ext. Amount Emp. # Employee Name Hours Hourly Rate Ext. Amount
SUBTOTAL COST OF EQUIPMENT
Inv. # Description Unit Unit Cost Ext. Amount
SUBTOTAL COST OF MATERIALS SUBTOTAL COST OF LABOR
Inv. # Description Amount Subsistence
Travel Expense
Other
TOTAL COST OF LABOR
SUBTOTAL COST OF WORK DONE BY SPECIALISTS
+ 3% on labor
TOTAL COST OF EQUIPMENT, MATERIALS AND WORK
+ 15% on equipment and material
+ 5% on work done by specialists
Contractor Foreman Date CS & Reviewed By Date TOTAL COST
MATERIAL
WORK done by specialists
LABOR
CONTRACT WORK PERFORMED
Survey Station
DIARY AND REMARKS
EQUIPMENT
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APPENDIX B
CITY STANDARD DETAILS
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CITY OF SAN CARLOS, CALIFORNIA STANDARD DETAIL
The City of GoodLiving MANHOLE WALLS13STANDARD CONNECTION TO
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CITY OF SAN CARLOS, CALIFORNIA STANDARD DETAIL
The City of GoodLiving COVER AND FRAME14STANDARD MANHOLE
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CITY COUNCIL
STAFF REPORT
MEETING DATE: February 27, 2023
ITEM TITLE: Adopt a Resolution Accepting the Wheeler Plaza Painting Project C1904 and Authorizing the Public Works Director to Issue and Record a Notice of Completion.
RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution accepting the Wheeler Plaza Painting Project C1904 (“Project”) and authorizing the Public Works Director to issue and record a notice of completion.
FISCAL IMPLICATIONS:
There is no fiscal impact, and no additional appropriation is needed at this time.
The Project is funded by C1904 which has a Project budget of $253,900 for Fiscal Year 2022-23.
The City Council awarded the Project to JPB Designs, Inc. (Resolution 2022-061) in the amount of $211,380, with a 20% contingency up to $42,276.
The total cost to complete the Project is $237,838. There is sufficient budget to close out the Project.
BACKGROUND:
The purpose of this Project is to apply anti-graffiti coating on the walls and columns of the first and second floors of the Wheeler Plaza Garage, which will reduce staff time required to clean and remove graffiti. The City assumed ongoing maintenance of the garage floors after it was constructed two years ago.
The anti-graffiti coating, which has a reflective tint, has the added benefit of directing more light toward the center of the garage to brighten the darker interior areas of the garage.
In addition, the Project includes painting all parking stops. The traffic paint will help guide drivers into the parking spots and make the parking stops more visible.
Staff initially advertised the Project on October 12, 2021, held a bid opening on December 20, 2021, and received four bids. After review, the bid proposals were found to be inconsistent in their total bid amount. Therefore, staff recommended at the January 24, 2022 City Council meeting to reject all bids and re-bid the Project.
Staff revised the Project specifications, and the City Engineer signed the final bid set of the Project specifications on May 12, 2022.
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The Project was re-advertised on May 16, 2022 and bids were opened on June 7, 2022. JPB Designs, Inc. was awarded the Project at the June 27, 2022 City Council meeting.
ANALYSIS:
The Project began on August 29, 2022 and was completed in December 2022 in accordance with the approved Project specifications.
Therefore, staff recommends that the City Council accept the Project and authorize the Public Works Director to issue and record a notice of completion.
ALTERNATIVES:
The alternatives available to the City Council include:
1. Adopt a Resolution accepting the Wheeler Plaza Painting Project C1904 and authorizing the Public Works Director to issue and record a notice of completion; or
2. Do not adopt the Resolution; or
3. Provide staff with alternative direction.
Respectfully submitted by:
Steven Machida, Public Works Director
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENT(S):
1. Resolution
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RESOLUTION NO. 2023– ____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS ACCEPTING THE WHEELER PLAZA PAINTING PROJECT C1904 AND AUTHORIZING THE PUBLIC WORKS DIRECTOR TO ISSUE AND RECORD A NOTICE OF COMPLETION.
WHEREAS, the purpose of this Wheeler Plaza Painting Project C1904 (“Project”) is to apply anti-graffiti coating on the walls and columns of the first and second floors of the Wheeler Plaza Garage, which will reduce staff time required to clean and remove graffiti; and WHEREAS, staff initially advertised the Project on October 12, 2021, held a bid opening on December 20, 2021, and received four bids; and
WHEREAS, after review, the bid proposals were found to be inconsistent in their total bid amount and staff recommended at the January 24, 2022 City Council meeting to reject all bids and re- bid the Project; and
WHEREAS, staff revised the Project specifications and the City Engineer signed the final bid set of the Project specifications on May 12, 2022; and WHEREAS, the Project was re-advertised on May 16, 2022 and bids were opened on June 7, 2022. JPB Designs, Inc. was awarded the Project at the June 27, 2022 City Council meeting; and
WHEREAS, the Project began on August 29, 2022 and was completed in December 2022 in accordance with the approved Project specifications; and WHEREAS, staff recommends that the City Council accept the Project and authorize the Public Works Director to issue and record a notice of completion.
NOW, THEREFORE BE IT RESOLVED, that the San Carlos City Council accepts the Wheeler Plaza Painting Project C1904 and authorizes the Public Works Director to issue and record a notice of completion.
* * * * *
I, City Clerk Crystal Mui, hereby certify that the foregoing Resolution was duly and regularly passed and adopted by the City Council of the City of San Carlos at a scheduled meeting thereof held on the 27th day of February 2023, by the following vote:
AYES, COUNCILMEMBERS:___________________________________________ NOES, COUNCILMEMBERS:___________________________________________ ABSENT, COUNCILMEMBERS:___________________________________________ ________________________________
CITY CLERK of the City of San Carlos
APPROVED:
___________________________
MAYOR of the City of San Carlos
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CITY COUNCIL
STAFF REPORT
MEETING DATE: February 27, 2023
ITEM TITLE: Consideration of Adopting a Resolution Declaring Property to be Exempt Surplus Land and Authorizing the City Manager to Execute a Disposition, Development, and Loan Agreement for the Cherry Street Commons Project with Cherry Street Commons, L.P. for 33 New Affordable Housing Units at 1232 and 1244 Cherry Street (Assessor’s Parcel Numbers (APNs) 050-132-110, 050-132-100, and 050-680-040).
RECOMMENDATION:
Staff recommends that the City Council adopt the attached Resolution declaring property to be exempt surplus land and authorizing the execution of a disposition, development, and loan agreement with Cherry Street Commons, L.P., to construct an affordable housing project at 1232- 1244 Cherry Street (“Project”).
FISCAL IMPLICATIONS:
There are no fiscal implications at this time. The attached resolution approves the form and terms of the Disposition, Development, and Loan Agreement (“DDLA”) with Cherry Street Commons.
Once the design and associated costs for the project have been finalized, staff will return to the Council for approval to amend the existing Predevelopment Loan Agreement with Cherry Street Commons, converting it into permanent financing and determining a finalized loan amount.
ENVIRONMENTAL REVIEW:
The preliminary nature of this agreement does not commit the City to approve the proposed Project. Also, because the specific parameters of the Project are unknown at this stage, it is not yet possible to conduct a meaningful analysis and environmental review of the Project under the California Environmental Quality Act (“CEQA”). The City’s obligation to transfer the property is contingent on future CEQA compliance, and until such time as the City has completed environmental review sufficient to comply with CEQA, the City shall retain full discretion to modify, deny, or condition the Project.
BACKGROUND:
The Project is composed of 1232 and 1244 Cherry Street, as well as a portion of the City-owned property identified in Attachment 1 of the DDLA. 1244 Cherry Street is a 100% affordable housing project owned and operated by the non-profit affordable housing developer Human Investment
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Project (“HIP Housing”). The existing affordable housing restrictive covenant on the HIP Housing property expired in 2020, however HIP Housing is committed to maintaining the facility as an affordable housing site and is interested in redeveloping this aging, six-unit structure through a joint venture with the City of San Carlos. HIP Housing has since entered into a partnership with Eden Housing Inc., a fellow affordable housing developer, to form the Cherry Street Commons limited partnership (“Developer”) responsible for development and management of the Project.
On June 24, 2019, the City of San Carlos Housing Authority adopted Resolution HA-010 which determined the necessity of acquiring the property located at 1232 Cherry Street by eminent domain for affordable housing serving the City of San Carlos. The City has since completed condemnation proceedings for, and is now the owner of, the property located at 1232 Cherry Street. The final purchase price as determined by the Superior Court of California was $3,075,000.
On January 26, 2021, Cherry Street Commons and the City negotiated and executed a letter of intent (LOI), which defined the framework under which the Parties are negotiating the terms for the potential transfer of the City property to Cherry Street Commons and enable the development of the Project, subject to the terms and conditions of a DDLA and the outcome of the City’s land use entitlement process.
On June 28, 2021, the City Council adopted Resolution No. 2021-060 approving a Predevelopment Loan Agreement with Cherry Street Commons. This Predevelopment Loan Agreement was made available in the form of a loan and counts towards the first $1,000,000 of the City’s financial contribution to the Project. These funds have been used by Cherry Street Commons to cover a portion of the costs associated with further assessment of the Project’s feasibility, advancement of the Project’s design, and applications towards the governmental approvals necessary to construct the Project. It is anticipated that the Predevelopment Loan will be converted to long term permanent financing if the Project and DDLA are approved, with an interest rate of 3% per year.
As the Project is now approaching the entitlement phase, staff is bringing forward a draft DDLA for the Council’s consideration. Broadly, the DDLA outlines the loan terms with regards to the Project’s permanent financing, conditions for disbursement of further loan funds, a deed of trust, and a regulatory agreement outlining affordability and other requirements for the Project. The DDLA defines conditions that must be satisfied prior to the City’s transfer of the property, and it defines the Developer’s obligations to obtain Project financing, secure Project approvals, construct the Project, and operate the Project as affordable housing. Approval of a specific loan amount is not being requested at this time and will come before the Council at a later date.
Until the borrower has submitted a formal application for entitlements and received City approval for those entitlements, as well as the associated environmental review as required by CEQA, the City will not have committed to approving the Project or disposing of the City property.
ANALYSIS:
Project Description
The Project site is located at 1232-1244 Cherry Street. It consists of three separate property parcels. The first parcel (APN: 050-132-110) is approximately 7,000 square feet (“SF”) and
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currently owned by HIP Housing. It consists of an aging six-unit affordable housing structure. The second parcel (APN: 050-132-100) is approximately 4,000 SF and was acquired by the San Carlos Housing Authority via eminent domain proceedings. It currently contains a vacant office building. The third and final parcel (APN: 050-680-040) consists of the southeastern most portion of a property that is owned by the City of San Carlos. It currently consists of an alleyway and three parking spaces totaling approximately 6,000 SF.
Preliminary plans for the project include demolition of the existing six-unit affordable housing structure and the vacant office building. The alleyway would then be relocated to the northeast boundary of the project site to allow for a straight path of travel all the way from San Carlos Avenue to Cherry Street. On the rest of the Project site would be constructed a five-story 100% affordable housing project made up of approximately 33 units (but in no event fewer than 30 units) ranging from one to three bedrooms to be rented at affordable rents to moderate and lower income households and one manager’s unit. The project would also include parking on the ground floor, a lobby, bike storage, communal laundry facilities, and gathering spaces including a community room, kitchen for events, and a courtyard with a playground.
Current tenants of the existing six-unit structure will be provided relocation assistance by Cherry Street Commons. Prior to receiving approval of project entitlements, a relocation plan must be submitted to the City for its review and approval. This plan will identify the relocation assistance benefits that will be paid to the current tenants and outlines their rights to return to the property upon completion of the new building, consistent with California Relocation Law and the Housing Crisis Act.
Affordable Housing
The City has been working to develop affordable housing in this area for close to 15 years. The property at 1232 Cherry Street was acquired by the City in 2021 via eminent domain proceedings for the purposes of providing housing affordable to moderate and lower income households following extensive negotiations to acquire the site.
The project was initially conceived when the City partnered with HIP Housing, the owners of the neighboring property at 1244 Cherry Street, to explore merging the properties in order to expand the supply of affordable housing in San Carlos. Eden Housing has since partnered with HIP Housing to form the Cherry Street Commons limited partnership and assist with development and management of the project. HIP Housing and Eden Housing are both Bay Area based non-profit housing developers that focus on providing housing at the lowest income brackets.
The City’s established Below Market Rate (“BMR”) Affordable Housing Ordinance requires the inclusion of affordable units for market-rate rental developments of seven or more units. While the Ordinance requires units to be to be set-aside for very low and low-income households in rental projects, a significant shortfall of affordable housing still exists in San Carlos, particularly at the lowest income levels. One strategy the City uses to address this shortfall is by partnering with non-profit developers to build 100% affordable projects at these lowest income levels.
The proposed new affordable units at Cherry Street Commons will serve low, very low, and extremely low-income households earning less than 60% of the area median income (“AMI”).
Currently, the project is expected to include 32 affordable units allocated to the following income categories: seven extremely low-income units at 30% AMI; fourteen very low-income units at 50% AMI; and eleven low-income units at 60% AMI.
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The City property will be transferred for the production of affordable housing pursuant to Government Code section 37364. To memorialize this obligation, the City will record a regulatory agreement restricting seven units to households earning up to 50% of area median income, seven units to households earning up to 60% of area median income, and eighteen units to households earning up to 120% of area median income for 55 years. After this initial affordability period, 32 units will be restricted to be affordable to moderate income households in perpetuity. Note that because the City is transferring the property for the production of affordable housing pursuant to Government Code section 37364, the property is “exempt surplus land” as that term is defined in Government Code section 54221(f)(1). This means that although the property is no longer necessary for the City’s use and that it will be transferred to the Developer, the Surplus Land Act’s procedural requirements are not applicable to the transfer.
The anticipated unit breakdown of seven extremely low-income units, fourteen very low-income units, and eleven low-income units is consistent with the requirements set forth by the California Tax Credit Allocation Committee (TCAC). This breakdown differs from that required by the City’s anticipated regulatory agreement in order to provide greater flexibility should the project not be awarded tax credits. While staff and the Developer believe the project will score well and receive tax credits the possibility of no award still exists. Should this happen, the City and the Developer will have the ability to consider other income breakdowns in order to ensure that an affordable project remains feasible and capable of pursuing other funding sources.
Disposition, Development and Loan Agreement
Pursuant to the earlier executed LOI, the City and the Developer have agreed to prepare a DDLA with the City agreeing to convey its property to Cherry Street Commons in exchange for the development of affordable housing at the site. The key terms of the DDLA are as follows:
City Property Conveyance Terms:
oUpon conveyance of the City parcels a deed of trust (Attachment 6 of the DDLA) and a regulatory agreement (Attachment 5 of the DDLA) shall be recorded against both parcels as well as the property owned by HIP Housing; oSubsequently a lot merger will occur combining all three parcels and separating the portions to remain as City property for the relocated alley; oAn appraisal will occur to determine the fair market value of the newly formed property, the amount of which will be added to the yet to be finalized value of the City loan to the project;
oPrior to conveyance the City shall have reviewed and approved a relocation plan from the developer for the existing tenants of the HIP Property who will be given first right to return to the property upon completion;
oThe affordability period for the property will last in perpetuity; oThe tenant selection process will give priority to current residents and workers in San Carlos;
oThe Developer shall maintain the premises, including landscaping, building interior and exteriors, in good condition;
oThe property shall be managed at all times by an experienced property management agent located on-site; and,
oUnits will include full size ovens and ranges with four burners.
Following approval of the DDLA, City staff and the Developer will continue moving forward with
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the predevelopment phase of the Project. Once the Project design proposal is finalized, staff will return to the Planning and Transportation Commission and the City Council with an entitlements package for its review. Concurrently, staff will also bring to the Council for its review and approval the proposed amount of the City’s financing contribution to the project, to be made in the form of a loan to Cherry Street Commons.
ALTERNATIVES:
The alternatives available to the City Council include:
1. Adopt a Resolution declaring property to be exempt surplus land and authorizing the City Manager to execute a Disposition, Development, and Loan Agreement for the Cherry Street Commons Project with Cherry Street Commons, L.P. for 33 new affordable housing units at 1232 and 1244 Cherry Street (Assessor’s Parcel Numbers (APNs) 050-132-110, 050-132-100, and 050-680-040); or
2. Do not approve the Resolution; or
3. Provide staff with alternative direction.
Respectfully submitted by:
Al Savay, Community Development Director
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENTS:
1. Resolution
2. Cherry Street Disposition, Development, and Loan Agreement
3. Letter of Intent
4. Predevelopment Loan Agreement
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RESOLUTION NO. 2023 – ____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS
DECLARING PROPERTY TO BE EXEMPT SURPLUS LAND AND AUTHORIZING THE CITY
MANAGER TO EXECUTE A DISPOSITION, DEVELOPMENT, AND LOAN AGREEMENT
FOR THE CHERRY STREET COMMONS PROJECT WITH CHERRY STREET COMMONS, L.P. FOR 33 NEW AFFORDABLE HOUSING UNITS AT 1232 AND 1244 CHERRY STREET (ASSESSOR’S PARCEL NUMBERS (APNS) 050-132-110, 050-132-100, AND 050-680-040).
WHEREAS, on June 24, 2019, the City of San Carlos Housing Authority adopted Resolution HA-010 which determined the necessity of acquiring the property located at 1232 Cherry Street by eminent domain for affordable housing serving the City of San Carlos; and WHEREAS, the City of San Carlos (“City”) is the owner of real property located at 1232 Cherry Street and real property northwest of 1244 Cherry Street (the “City Property”); and WHEREAS, the City Council has determined that the City Property is not necessary for the City’s use and that it should be disposed of to advance City's purposes and goals in facilitating the development of housing affordable to persons and families of low or moderate income by disposing of real property to provide that affordable housing consistent with the terms and conditions of Government Code section 37364; and
WHEREAS, Human Investment Project (“HIP Housing”) is the owner of real property located at 1244 Cherry Street (the “HIP Property”) that includes existing affordable housing and that is adjacent to the City Property; and
WHEREAS, HIP Housing and Eden Housing have joined to form Cherry Street Commons, a California limited partnership (the "Partnership"), to redevelop the HIP Property in conjunction with the City Property to increase the supply of affordable housing available in the City (the “Project”); and
WHEREAS, on January 26, 2021, Cherry Street Commons and the City negotiated and executed a Letter of Intent (“LOI”), which defined the framework for the City and the Partnership to negotiate the terms for the potential transfer of the City Property to Cherry Street Commons; and
WHEREAS, on June 28, 2021, the City Council adopted Resolution No. 2021-060 approving a Predevelopment Loan Agreement with the Partnership to cover a portion of the costs associated with further assessment of the Project’s feasibility, advancement of the Project’s design, and applications towards the governmental approvals necessary to construct the Project; and
WHEREAS, pursuant to the terms set for in the LOI, the City and the Partnership have negotiated a Disposition, Development, and Loan Agreement (“DDLA”) under which the City could agree to transfer the City Property to the Partnership for the Partnership to develop the Project; and
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WHEREAS, the City has not yet approved land use entitlements for the Project, and final details regarding the Project’s design and physical characteristics remain under development.
Accordingly, the DDLA reserves the City’s discretion to approve, deny, or modify the Project until such time as the City and the Partnership have fully complied with the California Environmental Quality Act (“CEQA”), and the City’s obligation to transfer the City Property is contingent on the Partnership receiving land use approval for the Project from the City and future CEQA compliance; and
WHEREAS, the City property will be transferred for the production of affordable housing pursuant to Government Code section 37364. To memorialize this obligation, DDLA includes an obligation to record a regulatory agreement restricting seven units to households earning up to 50% of area median income, seven units to households earning up to 60% of area median income, and eighteen units to households earning up to 120% of area median income for 55 years. After this initial affordability period, 32 units will be restricted to be affordable to moderate income households in perpetuity; and
WHEREAS, because the City is transferring the property for the production of affordable housing pursuant to Government Code section 37364, the property is “exempt surplus land” as that term is defined in Government Code section 54221(f)(1); and WHEREAS, the City Council held a duly noticed public hearing at its regular meeting on February 27, 2023 on the decision to declare the City Property exempt surplus land and on the terms of the proposed DDLA; and
WHEREAS, the City Council has reviewed the DDLA and considered all evidence in the record, including testimony during the February 27, 2023 Council meeting from all interested parties.
NOW THEREFORE BE IT RESOLVED that the City Council hereby finds and determines that the foregoing Recitals are true and correct and by this reference are incorporated into this Resolution; and
BE IT FURTHER RESOLVED that the City Council hereby finds that the City Property will be transferred for the production of affordable housing pursuant to Government Code section 37364, and as such, the City Council declares that the City Property is “exempt surplus land” as that term is defined in Government Code section 54221(f)(1); and BE IT FURTHER RESOLVED that the City Council hereby approves the Disposition, Development, and Loan Agreement substantially in the form attached as Exhibit 1 to this Resolution; and
BE IT FURTHER RESOLVED that the City Council hereby authorizes the City Manager or designee to execute the DDLA and make any minor, clarifying and/or conforming changes approved by the City Attorney; and
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take all actions necessary to complete the transaction contemplated in this Resolution and the DDLA,
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including execution of any other necessary documents and the transmittal of this Resolution declaring the City Property to be exempt surplus land to the California Department of Housing and Community Development at least thirty days prior to the disposition of the City Property. *****
I, Crystal Mui, hereby certify that the foregoing Resolution was duly and regularly passed and adopted by the City Council of the City of San Carlos at a regular meeting thereof held on the 27th day of February, 2023, by the following vote:
AYES, COUNCILMEMBERS:___________________________________________ NOES, COUNCILMEMBERS:___________________________________________ ABSENT, COUNCILMEMBERS:___________________________________________ ________________________________
CITY CLERK of the City of San Carlos
APPROVED:
___________________________
MAYOR of the City of San Carlos
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DISPOSITION, DEVELOPMENT, AND LOAN AGREEMENT
(Cherry Street Affordable Housing Project)
by and between
CITY OF SAN CARLOS
and
CHERRY STREET COMMONS, L.P.
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Table of Contents
1. Definitions. ............................................................................................................................. 2
2. Term and Financing. ............................................................................................................ 4
2.1 Term. ................................................................................................................................ 4
2.2 Tax Credit Financing and Other Financing. ..................................................................... 4
2.3 City Financing. ................................................................................................................. 5
3. City Property Conveyance. .................................................................................................. 6
3.1 City Property Conveyance; Purchase Price. ..................................................................... 6
3.2 Escrow. ............................................................................................................................. 6
3.3 Costs of Escrow and Title Policy. .................................................................................... 6
3.4 Escrow Instructions. ......................................................................................................... 6
3.5 Authority of Escrow Agent. ............................................................................................. 7
3.6 Closing. ............................................................................................................................ 7
3.7 Termination Prior to Close of Escrow. ............................................................................ 7
3.8 Closing Procedures. .......................................................................................................... 8
3.9 Title Insurance. ................................................................................................................. 8
3.10 Conditions of Closing. .................................................................................................. 9
3.11 Representations and Warranties. ................................................................................ 11
3.12 City Property Inspections. .......................................................................................... 12
3.13 Right of Entry. ............................................................................................................ 14
3.14 City Property Condition.............................................................................................. 15
4. Project Financing. ............................................................................................................... 17
4.1 Project Construction Financing; Holders of Deeds of Trust. ......................................... 17
4.2 Rights of Holders. .......................................................................................................... 17
5. Development of the City Property. .................................................................................... 18
5.1 Scope of Development. .................................................................................................. 18
5.2 Cost of Construction....................................................................................................... 19
5.3 Insurance Requirements. ................................................................................................ 19
5.4 Certificate of Completion. .............................................................................................. 20
5.5 Compliance With Laws. ................................................................................................. 20
6. Covenants and Restrictions. ............................................................................................... 20
6.1 Use of City Property. ...................................................................................................... 20
6.2 Maintenance. .................................................................................................................. 20
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6.3 Nondiscrimination. ......................................................................................................... 20
7. Default and Remedies. ........................................................................................................ 21
7.1 Default Remedies. .......................................................................................................... 21
7.2 Termination by Any Party. ............................................................................................. 21
7.3 Termination by Developer. ............................................................................................ 21
7.4 Termination by City. ...................................................................................................... 21
7.5 City Power of Termination and Right of Reverter. ........................................................ 22
7.6 Acceptance of Service of Process. ................................................................................. 23
7.7 Rights and Remedies Are Cumulative. .......................................................................... 23
7.8 Inaction Not a Waiver of Default. .................................................................................. 23
8. General Provisions. ............................................................................................................. 24
8.1 Notices, Demands and Communications Between the Parties. ...................................... 24
8.2 Force Majeure Delays; Extension of Times for Performance. ....................................... 24
8.3 Transfers of Interest in Site or Agreement. .................................................................... 25
8.4 Non-Liability of Officials and Employees. .................................................................... 26
8.5 Relationship Between Parties. ........................................................................................ 26
8.6 Approvals, Actions and Authority of the City Manager. ............................................... 26
8.7 Counterparts. .................................................................................................................. 26
8.8 Integration. ..................................................................................................................... 26
8.9 No Real Estate Brokerage Commissions. ...................................................................... 26
8.10 Attorneys' Fees. .......................................................................................................... 26
8.11 Titles and Captions. .................................................................................................... 27
8.12 Interpretation and Applicable Law. ............................................................................ 27
8.13 No Waiver. .................................................................................................................. 27
8.14 Modifications. ............................................................................................................. 27
8.15 Severability. ................................................................................................................ 27
8.16 Legal Advice. .............................................................................................................. 27
8.17 Time of Essence. ......................................................................................................... 27
8.18 Cooperation. ............................................................................................................... 27
8.19 Conflicts of Interest. ................................................................................................... 28
Attachments
Attachment 1 Legal Description of City Property
Attachment 2 Legal Description of HIP Property
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Attachment 3 Scope of Project
Attachment 4 Schedule of Performance
Attachment 5 Form of City Regulatory Agreement
Attachment 6 Form of City Deed of Trust
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DISPOSITION, DEVELOPMENT, AND LOAN AGREEMENT
(Cherry Street Affordable Housing Project)
This DISPOSITION, DEVELOPMENT AND LOAN AGREEMENT (“Agreement”) is dated as of ________________, ____ 2023 (the “Effective Date”), by and between the CITY OF SAN CARLOS, a municipal corporation (the “City”) and CHERRY STREET COMMONS, L.P., a California limited partnership (“Developer”). The City and Developer may be referred to individually as a “Party” or together as the “Parties.”
RECITALS
A. Capitalized terms used but not defined in these Recitals shall have the meaning set forth in Section 1.0 below.
B. The purpose of this Agreement is to advance City's purposes and goals in facilitating the development of housing affordable to persons and families of low or moderate income by disposing of real property to provide that affordable housing consistent with the terms and conditions of Government Code section 37364.
C. The City is the owner of the real property located at 1232 Cherry Street in San Carlos, San Mateo County, California and real property northwest of 1244 Cherry Street, which is more particularly described in Attachment 1 to this Agreement (collectively, the “City Property”).
D. HIP Housing Development Corporation, Inc., a California nonprofit public benefit corporation (“HIP”), a co-general partner of the Developer, is the owner of, the real property located at 1244 Cherry Street in San Carlos, San Mateo County, California, which is more particularly described in Attachment 2 to this Agreement (the “HIP Property”). Collectively, the City Property and the HIP Property may be referred to as the “Site.” E. The City selected the Developer to construct a residential project on the Site together with parking and related improvements, in a structure or structures that are no more than five (5) stories in height (collectively, the “Project”).
F. Prior to reaching this Agreement, the Parties negotiated and executed a Letter of Intent dated January 26, 2021 (as may be amended from time to time, the “LOI”) and a Predevelopment Loan Agreement, under which the City agreed to loan Developer up to One Million Dollars ($1,000,000.00) to conduct predevelopment due diligence and design work for the Project (“Predevelopment Loan”). In connection with the Predevelopment Loan Agreement, Borrower provided the City with an Assignment Agreement as security.
G. The Project will consist of no fewer than thirty three (33) rental units, including one (1) manager’s unit and thirty two (32) affordable rental units subject to a City Regulatory Agreement substantially in the form attached to this Agreement as Attachment 5 (the "City Regulatory Agreement"). The Regulatory Agreement will restrict seven units (7) to households earning up to 50% of area median income, seven (7) units to households earning up to 60% of area median income, and eighteen (18) units to households earning up to 120% of area median
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income. The Project is more particularly described, including the anticipated affordability level distribution, in the Scope of Development attached to this Agreement as Attachment 3.
H. The Parties wish to enter into this Agreement to set forth the terms and conditions relating to City's disposition of the City Property to the Developer, the City’s loan of funds to support the Project’s development, and the Developer’s obligation to construct and operate the Project consistent with the terms of this Agreement.
I. Prior to entering into this Agreement, at a regular meeting of the City Council on February 27, 2023, the City Council adopted a resolution that included a declaration that the City Property is “exempt surplus land” as that term is defined in Government Code section 54221(f)(1) because the City Property will be transferred for the production of affordable housing pursuant to Government Code section 37364.
J. The City’s obligation to transfer the City Property is contingent on future compliance with the California Environmental Quality Act (Public Resources Code §§ 21000 et seq. (“CEQA”). Until such time as the City has completed environmental review sufficient to comply with CEQA, the City shall retain full discretion to modify, deny, or condition the Project.
NOW, THEREFORE, in reliance on the Recitals above, which are incorporated by reference herein with the same force and effect as any other term and condition of this Agreement, and in consideration of the mutual covenants, agreements and conditions set forth herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the Parties, the Parties hereby agree as follows:
AGREEMENT
1. Definitions.
As used in this Agreement, including the Recitals above, the following capitalized terms shall have the following meanings.
"Actual Knowledge" in the case of Developer shall mean the actual knowledge of Kate Comfort Harr and in the case of City shall mean the actual knowledge of the City Manager (not inclusive of any designee), and in each instance shall not impose a duty of investigation by City or Developer.
"Agreement" shall mean this Disposition, Development, and Loan Agreement between the City and Developer.
"City" shall mean the City of San Carlos, California, a California municipal corporation. "City Regulatory Agreement" is defined in Recital G.
"City Manager" shall mean the City Manager of City or his or her designee. "Close of Escrow" shall mean the date that a grant deed for the City Property in favor of the Developer is recorded in the Official Records of the County Recorder's Office.
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"Closing Date" shall mean that date ending no later than thirty (30) days after Developer’s Conditions Precedent and City’s Conditions Precedent have been satisfied or waived, unless mutually extended by the Parties.
"County" shall mean the County of San Mateo, California. "Default" shall mean the failure of a Party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and opportunity to cure. "Developer" shall mean Cherry Street Commons, L.P., a California limited partnership, the co- general partners of which are HIP and Eden Cherry Street LLC (of which Eden Housing, which is defined below, is sole member/manager).
“Eden Housing” shall mean Eden Investments, Inc., a California nonprofit public benefit corporation.
"Effective Date" shall be the first date mentioned above in this Agreement. "Governmental Requirements" shall mean all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the County, City, or any other political subdivision in which the Site is located, and of any other political subdivision, which are applicable to City, Developer or the Site.
"Grant Deed" shall mean the grant deed for the conveyance of the City Property from City to Developer.
"Hazardous Materials" shall mean any chemical, substance, object, condition, material or waste that is or may be hazardous to human health or safety or to the environment, due to its radioactivity, ignitability, corrosivity, flammability, reproductive toxicity, infectiousness or other harmful properties or effects, including all chemicals, substances, materials and wastes that are now or hereafter may be regulated in any manner, classified as dangerous, hazardous or toxic, or as pollutants or contaminants, or to which exposure is prohibited or restricted by any federal, state or local government or public agency, board, body or authority or by any Hazardous Material Law. "Hazardous Materials" include flammable explosives, radioactive materials, polychlorinated biphenyls, asbestos, hazardous waste, radon, toxic substances or other related materials whether in the form of a chemical, element, compound, solution, mixture or otherwise, including those materials defined as "hazardous substances", "hazardous materials", "toxic substances", "air pollutants", "toxic pollutants", "hazardous wastes", "extremely hazardous waste" or "restricted hazardous waste" by any Hazardous Materials Law. Notwithstanding the foregoing, “Hazardous Materials” shall not include substances typically used in the ordinary course of developing, operating and maintaining apartment complexes provided that such substances are used in accordance with all applicable laws. “Hazardous Materials Law” means, without implied limitation, substances defined as "hazardous substances," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminate" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the Toxic Substances Control Act ("TSCA") [15 U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49 U.S.C. Sections
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1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the EPA, or any successor authority, as hazardous substances [40 CFR Part 302]; and those substances defined as "hazardous waste" in Section 25117 of the California Health and Safety Code or, as "hazardous substances" in Section 25316 of the California Health and Safety Code; other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, and shall also include manure, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317.
“HIP” is defined in Recital D of this Agreement.
"Opening of Escrow" shall mean the date a copy of this fully executed Agreement is deposited with the Title Company and a request on Escrow Holder is made to open escrow. "Project" is defined in Recital E above and is described in the Scope of Development. "Schedule of Performance" attached hereto as Attachment 4 summarizes and describes the tasks and assigns responsibility and the timing of accomplishing the proposed steps leading to the successful completion of the Project pursuant to the terms and conditions of this Agreement. The Schedule of Performance is subject to administrative amendment, by the City Manager, for minor revisions in tasks and scheduling. Developer's covenant below to strictly adhere to the Schedule of Performance is a material inducement to City to enter this Agreement. "Scope of Development" attached hereto and made a part hereof as Attachment 2 describes the amount and quality of development of the Project to be constructed by Developer pursuant to the terms and conditions of this Agreement. The Scope of Development is subject to administrative amendment, by the City Manager, for minor revisions in location, size, and design. "Site" shall mean the land described on Attachment 1 and Attachment 2. "State" shall mean the State of California.
"Title Company" shall mean Old Republic Title Company in Oakland, California, or another escrow title company satisfactory to Developer and to the City.
2. Term and Financing.
2.1 Term. The term of this Agreement will commence on the Effective Date and will end on the earlier of: (a) the date the Project receives a Certificate of Completion, as defined in Section 5.4, or (b) December 31, 2028, unless extended by mutual agreement of the Parties (“Outside Date”).
2.2 Tax Credit Financing and Other Financing. Development of the Project is contingent upon (a) Developer receiving a sufficient allocation ("Tax Credit Allocation") of 9% low-income housing tax credits ("Tax Credits") from the California Tax Credit Allocation
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Committee ("CTCAC"); and (b) Developer obtaining all other financial commitments in addition to the City’s participation to enable the Developer to finance the Project. This Agreement assumes that the Project will be financed with 9% Tax Credits. However, Developer shall have the right to apply for additional or different sources of financing as Developer determines is necessary to ensure the feasibility of the Project, and the City Manager, in his or her reasonable discretion, shall have the authority to make all necessary amendments and/or modifications to the Agreement, including its attachments, to reflect the ultimate financing structure.
2.3 City Financing.
(a) The City Predevelopment Loan, which is evidenced by the Predevelopment Note between Developer and City dated June 13, 2021 and a Predevelopment Security Agreement.
(b) City has agreed to provide and Developer has agreed to accept an additional loan from the City (the "City Loan") to be used by Developer to undertake predevelopment, development, acquisition, construction and operation of the Project. The City Loan shall initially include the Predevelopment Loan as well as an acquisition loan to the Developer in the amount of the Purchase Price of the City Property and may be increased for additional predevelopment, development, construction and operational activities as provided in paragraph (f) of this section.
(c) Prior to or concurrent with the transfer of the City Property, the City and the Developer shall: (i) amend the Predevelopment Loan Term set forth in the Predevelopment Note to 55 years after the Developer’s receipt of a Certificate of Completion for the Project, to evidence the full amount of the City Loan, and to incorporate relevant terms from this Agreement (as amended, the “City Note”); (ii) secure the City Loan with a deed of trust against the Site substantially in the form attached to this Agreement as Attachment 6 (“City Deed of Trust”); (iii) modify the loan repayment terms to include annual residual receipt payments; and (iv) to combine the Predevelopment Loan amounts already disbursed with the total amount of the new City Loan.
(d) If: (i) Developer determines, at any time prior to the date acquisition of the City Property that the Project is not feasible for any reason despite its good faith efforts; or (ii) if this Agreement is otherwise terminated without an uncured Developer default prior to the date acquisition of the City Property, City shall forgive the balance of the Predevelopment Loan, and Developer shall not be obligated to repay the Predevelopment Loan funds disbursed; provided however, City shall be entitled to exercise its rights under the Assignment Agreement given as security for the Predevelopment Loan.
(e) The City Loan, including the unpaid principal balance on the Predevelopment Loan, shall be evidenced and secured by the City Note and City Deed of Trust recorded against the Site. The City Loan shall bear interest at 3% annual simple interest. Annual payments on the City Note shall be due and payable on a pro-rata residual receipts basis in accordance with the formula set forth in the City Note. The annual loan payments shall commence upon conversion of the Project to permanent financing and continue for fifty-five
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years after Developer’s receipt of a Certificate of Completion for the Project. The entire outstanding principal balance of the City Loan, together with interest accrued thereon and all other sums accrued, shall be payable in full on the date that is fifty five years after Developer’s receipt of a Certificate of Completion for the Project. (f) Subject to approval of a final finance plan, the City may, but is not obligated to, make an additional future development loan and/or other financial contribution to be disbursed to pay for development and/or operations costs in connection with the Project. Any future contributions in addition to the amount identified in this Agreement as the City Loan shall be contingent on Developer and City mutually agreeing to a financing plan, a subsequent loan agreement (or amendment to this Agreement), and corresponding amendments to the City Note and City Deed of Trust.
3. City Property Conveyance.
3.1 City Property Conveyance; Purchase Price. City agrees to convey the City Property to Developer and Developer agrees to acquire the City Property from City in accordance with and subject to all of the terms, covenants, and conditions of this Agreement. (a) The purchase price for the City Property shall be paid by Developer to City as part of the City Loan, based on the fair market value of the City Property as supported by a third-party appraisal (the "Purchase Price").
(b) The Developer shall cause the preparation of a third party appraisal of the City Property within 120 days following the Effective Date and provide a copy of the same to the City for the City’s review and approval. If the City objects to the Purchase Price as defined in the appraisal, the City shall provide Developer with written notice of its objections within ten (10) days after receiving the appraisal. If the City fails to object within such period, the City shall be deemed to have accepted the appraisal and the results will be the Purchase Price. If the City does provide timely notice of its objection, then the Parties shall meet and confer in good faith to revise the appraisal so that it is mutually satisfactory to the Parties.
3.2 Escrow. The Parties to this Agreement shall take all necessary steps to ensure the Opening of Escrow with the Title Company, which is to occur no later than fourteen (14) days after the Effective Date.
3.3 Costs of Escrow and Title Policy. Developer shall pay for the premium for a CLTA owner's policy of title insurance in favor of Developer and CLTA lender's title policies in favor of City ("Title Policy"). Developer shall pay the additional premium for an ALTA Owner's Title Policy and any endorsements if Developer desires an ALTA Owner's Title Policy.
City shall pay the additional premium for an ALTA Lender's Title Policy and any endorsements if City desires an ALTA Lender's Title Policy. Escrow fees and charges shall be equally divided between the Parties. City shall pay documentary transfer taxes, if any.
3.4 Escrow Instructions. This Agreement constitutes the joint escrow instructions of the Parties for the conveyance of the City Property and of the recording of the City Deed of Trust securing the City Loan and the City Regulatory Agreement against the City Property and the HIP Property, and the Escrow Agent to which these instructions are delivered is hereby empowered
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to act under this Agreement. Any insurance policies for fire or casualty are not to be transferred, and City will cancel any of its own policies concurrent, with the Close of Escrow. All funds received into Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check or wire transfer from such account. If in the opinion of either Party or Escrow Agent it is necessary or convenient in order to accomplish the Close of Escrow, the Parties shall sign supplemental escrow instructions; provided, however, that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control unless both Parties expressly agree, in writing, to the superseding nature of supplemental escrow instructions. The Parties agree to execute such other and further documents as may be reasonably necessary to effectuate the provisions of this Agreement.
3.5 Authority of Escrow Agent. Escrow Agent is authorized to, and subject to the satisfaction (or written waiver) of Developer’s Conditions Precedent and City's Conditions Precedent, shall:
(a) Confirm that the Title Company has committed to provide Developer with a CLTA Owner's Policy of Title Insurance and to provide City with CLTA lender's title policies insuring its City Deed of Trust.
(b) Pay and charge City and/or Developer for the cost(s) of any escrow fees, charges, and costs payable under Section 3.3 of this Agreement. (c) Record the Grant Deed for the City Property, then the City Regulatory Agreement, and then the City Deed of Trust against the Site in favor of the City. (d) Direct City and Developer to execute and to deliver any instrument, affidavit, and statement, and to perform any act reasonably necessary to transfer the City Property in compliance with State and federal laws and regulations, including execution by City and Developer of forms to comply with Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) and any similar California law to ensure no withholding is required. (e) Take such other actions as Escrow Agent is expressly or implicitly authorized to take by this Agreement.
3.6 Closing. The Close of Escrow shall occur no later than thirty (30) days following the satisfaction or waiver of each of Developer’s Conditions Precedent and the City’s Conditions Precedent, unless mutually extended by the Parties.
3.7 Termination Prior to Close of Escrow. In the event Close of Escrow has not occurred by the Outside Date, either City or Developer shall be entitled to terminate this Agreement, without cause or justification, by written notice, both to the other Parties and to Escrow Agent, so long as the terminating Party is not in Default of this Agreement. Within five (5) business days after written notice of termination, Escrow Agent shall terminate the Escrow and return any money, documents, or other property held in Escrow to the Party who deposited the items, unless a written objection is received by Escrow Agent within this five (5) day period.
If any written objections are received by the Escrow Agent within the five (5) day period,
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Escrow Agent is authorized to hold all money, documents, or other property until instructed to the contrary by a court of competent jurisdiction, or by mutual written instructions of the Parties.
3.8 Closing Procedures. Escrow Agent shall effect the Close of Escrow for the City Property as follows:
(a) Record the Grant Deed;
(b) Record the City Regulatory Agreement and City Deed of Trust against the City Property and the HIP Property;
(c) Cause the Title Company to deliver the Title Policy to Developer; (d) Deliver the City Note to City;
(e) Disburse a portion of City Loan proceeds as mutually agreed upon by the Parties in writing to the Developer; and
(f) Forward to Developer and to City a final settlement statement covering all funds received and disbursed for the benefit of or to each Party.
3.9 Title Insurance. Concurrently with recordation of the Grant Deed conveying title to the City Property to Developer, Title Company shall issue to Developer the Title Policy, together with such endorsements as are required by Developer, insuring that the title to the City Property is vested in Developer subject to the Exceptions (except for any Exceptions that City has agreed to remove). The Exceptions shall be those disclosed by the preliminary title report provided under the Title Policy, to be approved by Buyer. (a) Title Status. Developer shall cause the preparation of a Preliminary Title Report for the City Property within 120 days following the Effective Date. Within sixty days following receipt of the Preliminary Title Report, Developer shall provide written notice to the City identifying any exceptions from coverage to which Developer objects (“Title Objections”).
Matters shown on the Preliminary Site Title Report to which Developer does not provide timely written notice of its objection shall be included within the term “Permitted Exceptions.” (b) Failure to Remove Title Objections. If the City is unable to cause the removal of the Title Objections within 180 days after receiving notice of the same from Developer, then the Developer may either (1) refuse to accept the title to and conveyance of the City Property, in which case the Developer shall have the right to cancel the Escrow and terminate this Agreement without liability to City or any other person, by delivery of a written notice of termination to the Escrow Holder, (2) waive its objection to any items set forth in the Title Objections by delivering a Title Objection Waiver to the City and to proceed with Close of Escrow, or (3) agree to extend the time period for the City to remove the Title Objections from the Preliminary Title Report to a date agreed upon by the Parties in writing. Developer’s power to terminate this Agreement shall be its sole remedy if the City is unable to remove the Title Objections, and Developer agrees not to hold City in default of this Agreement or liable for any cost, damages, claims or liability based upon the City’s inability to remove the Title Objections
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or from any challenges by any person or entity, now or in the future, to the title held by City or the effect such challenges may have to the Project that is the subject of this Agreement. (c) City’s Title Covenant. Following the Effective Date and prior to the Close of Escrow, the City agrees that it shall not voluntarily permit or cause to be created any exceptions to title other than the Permitted Exceptions without Developer’s prior written consent, which shall not be unreasonably withheld (the “City's Title Covenant”). A breach of the City’s Title Covenant shall be a Default. If, following the Effective Date and prior to the Close of Escrow, any new exceptions to title arise without Developer’s prior written consent, then Developer may object to such new exception by notice to City given within ten (10) days after Developer receives written notice of the new exception. If Developer fails to object within such period, then the new exception will be deemed to be a Permitted Exception. If the Developer does object, then City may elect in City’s sole and absolute discretion, at its cost, to remove any new exceptions that are not Permitted Exceptions prior to the Close of Escrow. If City does so elect, it will notify Developer within ten (10) days after receipt of Developer’s objection. If City elects not to remove or cause to be eliminated the exception, or fails to respond within the ten (10) day period, then Developer shall have the right to: (i) terminate this Agreement by notice to City delivered within ten (10) days after Developer receives City's notice that it has elected not to remove or cause to be eliminated the exception or expiration of the ten (10) day period, whichever occurs earlier; (ii) upon written notice provided to City within ten (10) days of City's election not to remove or cause to be eliminated the exception or failure to respond, diligently proceed to take such actions necessary to remove the exception, which may include obtaining an endorsement insuring over such exception subject to such conditions and requirements imposed by Escrow Holder; or (iii) proceed with the Close of Escrow subject to such exception. If Developer elects clause (ii) and fails to so terminate or elect to cure within the ten (10) day period, then it shall be deemed to have elected clause (iii) above. Exceptions that City elects not to remove or cause to be eliminated, or is deemed to have elected not to remove or cause to be eliminated, and that Developer elects to accept, or is deemed to have accepted, are also Permitted Exceptions.
3.10 Conditions of Closing. The Close of Escrow is expressly conditioned upon satisfaction of the following terms and conditions within the times designated below:
(a) City's Conditions Precedent. City's obligation to proceed with the Close of Escrow is subject to the fulfillment by Developer, or written waiver by City, of each and every one of the conditions precedent described below ("City's Conditions Precedent"), which are solely for the benefit of City, and which shall be fulfilled or waived by the time periods provided for herein. If the City's Conditions Precedent set forth in this Section are neither satisfied nor waived by the Outside Date, and provided that City is not then in default under this Agreement, City may terminate escrow and this Agreement by giving written notice of termination to the Developer and to Title Company, in which case the respective rights, duties and obligations of the Parties under this Agreement shall terminate without further liability, except for obligations that expressly survive termination of this Agreement. Notwithstanding anything to the contrary contained herein, Developer's inability to satisfy the City's Conditions Precedent set forth in this Section shall not be considered a breach of this Agreement. The Close of Escrow under this Agreement constitutes satisfaction of the conditions precedent set forth below:
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(i) Developer shall have applied for and obtained all discretionary project approvals necessary to merge the City Property and the HIP Property into one parcel on the Site and to construct the Project. Prior to taking action on the entitlement application, the City shall have conducted sufficient environmental review to comply with CEQA, and to the extent applicable, NEPA. The City retains full discretion as to what actions may be necessary to comply with CEQA and/or NEPA, including modifications to the Project or actions to deny or conditionally approve the Project to reduce the severity of potential environmental effects, and this condition shall not be waivable.
(ii) Developer’s delivery of originals of the executed City Note, City Regulatory Agreement, and City Deed of Trust in a form approved by the Parties. (iii) Developer shall have delivered a Due Diligence Investigation Conclusion Notice to City as required by Section 3.12 of this Agreement. (iv) Developer’s deposit into Escrow, of all sums to be deposited, or paid by Developer into Escrow in accordance with this Agreement. (v) The Title Company shall have committed to provide the Title Policy for the City Property upon the Close of Escrow subject only to payment for it in accordance with Section 3.3 above.
(vi) An approved financing plan for all debt and equity necessary to purchase the City Property and construct the Project.
(vii) The Developer shall not be in Default of any of its obligations under the terms of this Agreement and all representations and warranties of Developer contained in Section 3.11.b herein shall be true and correct in all material respects. (b) Developer’s Conditions Precedent. Developer’s obligation to proceed with the Close of Escrow is subject to the fulfillment by City, or written waiver by Developer, of each and all of the conditions precedent described below ("Developer’s Conditions Precedent"), which are solely for the benefit of Developer, and which shall be fulfilled or waived by the time periods provided for herein. If the Developer’s Conditions Precedent set forth in this Section are neither satisfied nor waived by the Outside Date, and provided that Developer is not then in default under this Agreement, Developer may terminate escrow and this Agreement by giving written notice of termination to City and Title Company, in which case the respective rights, duties and obligations of the Parties under this Agreement shall terminate without further liability, except for obligations that expressly survive termination of this Agreement.
Notwithstanding anything to the contrary contained herein, City's inability to satisfy the Developer’s Conditions Precedent, except for the Developer’s Condition Precedent identified in subsection (i), shall not be considered a breach of this Agreement. The Close of Escrow under this Agreement constitutes satisfaction of the conditions precedent set forth below:
(i) City shall have executed and acknowledged the Grant Deed granting a fee simple interest to the City Property and any other documents required of it hereunder, and delivered them to Escrow.
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(ii) City shall have deposited any required City Loan funds into Escrow for disbursement to Developer.
(iii) City shall have demolished all existing structures from the City Property.
(iv) Prior to the Close of Escrow, City shall not be in Default in any of its obligations under the terms of this Agreement and all representations and warranties of City contained in Section 3.11.a herein shall be true and correct in all material respects. (v) The Title Company shall have committed to issue the Title Policy. (vi) Developer shall have obtained all City requisite approvals of the Project.
3.11 Representations and Warranties.
(a) City Representations. City represents and warrants to Developer as follows:
(i) Subject to the satisfaction of the conditions precedent in the Recitals of this Agreement and Sections 3.10.a and 3.10.b, above, City has full right, power and lawful authority to grant and to convey the City Property, subject to the Exceptions included on the Preliminary Title Report, and the execution, performance and delivery of this Agreement and the instruments referenced herein by City has been duly authorized by all requisite actions on the part of City.
(ii) Subject to the understanding of the Parties in Section 3.9 and the representations in this Section 3.11, City’s execution, delivery, and performance of its obligations under this Agreement and the instruments referenced herein will not constitute a default or a breach under any contract, agreement or order to which City is a Party or by which it is bound.
(iii) To City's Actual Knowledge, there are no pending actions, suits, arbitrations, claims or proceedings, at law, in equity or otherwise, affecting, or which may affect, all or any portion of the City Property.
(iv) Except as otherwise disclosed in Section 3.9 and the representation in this Section 3.11, to City's Actual Knowledge, there are no agreements (whether oral or written), affecting or relating to the right of any Party with respect to the possession of the City Property, or any portion thereof, which are obligations that will affect the City Property or any portion thereof following the Close of Escrow.
Until the Close of Escrow, City shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section not to be true as of Close of Escrow, immediately give written notice of such fact or condition to Developer. Such exception(s) to a representation shall not be deemed a breach by City hereunder, but shall constitute a matter that Developer shall have a right to approve or disapprove if such matter
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would have a material adverse effect on the value and/or operation of the Project. If Developer elects to proceed with the Close of Escrow following disclosure of such information, City's representations and warranties contained herein shall be deemed to have been made as of the Close of Escrow, subject to such additional matters. If, following the disclosure of such information, Developer elects to not close Escrow, then this Agreement and Escrow shall automatically terminate, and neither Party shall have any further rights, obligations or liabilities hereunder.
The representations and warranties set forth in this Section shall survive the Close of Escrow.
(b) Developer’s Representations. Developer represents and warrants to City as follows:
(i) Developer is a California limited partnership, which has full right, power and lawful authority to accept the conveyance of the City Property, develop the Project on the Site, and undertake all obligations as provided herein. (ii) The execution, performance and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of its general partners. (iii) To Developer’s Actual Knowledge, there are no pending actions, suits, arbitrations, claims or proceedings, at law, in equity or otherwise, affecting, or which may affect Developer’s performance of this Agreement.
(iv) Developer has the skill, knowledge and expertise to finance, construct and operate the Project contemplated by this Agreement.
Until the Close of Escrow, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section not to be true as of Close of Escrow, immediately give written notice of such fact or condition to City. Such exception(s) to a representation shall not be deemed a breach by Developer hereunder, but shall constitute a matter that City shall have a right to approve or disapprove if such matter would have a material adverse effect on the development and/or operation of the Project. If City elects to proceed with the Close of Escrow following disclosure of such information, Developer's representations and warranties contained herein shall be deemed to have been made as of the Close of Escrow, subject to such exception(s). If, following the disclosure of such information, City elects to not close Escrow, then this Agreement and Escrow shall automatically terminate, and neither Party shall have any further rights, obligations or liabilities hereunder.
The representations and warranties set forth in this Sections shall survive the Close of Escrow.
3.12 City Property Inspections.
(a) Developer shall be permitted to inspect the City Property from the Effective Date of this Agreement until the date that is three (3) months after the City completes its demolition of the existing structures on the City Property for the purpose of obtaining data
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and making surveys and tests necessary to complete its due diligence, of the City Property, including the investigation of the environmental condition of the City Property (collectively, the "Studies"). Any preliminary work or Studies undertaken on the City Property by Developer shall be done at the sole expense and risk of Developer and Developer shall provide to City a copy of all Studies. Any preliminary work or Studies shall be undertaken only after securing any necessary authorization and/or permits from the appropriate governmental agencies. Any Studies of the City Property by the Developer shall not unreasonably disrupt any then-existing use or occupancy of the City Property or the operations of the City. The Developer shall be liable for any damage or injury to any person or property arising from the acts of the Developer, its employees, agents or representatives during the course of any Studies on the City Property and the Developer shall indemnify, defend with counsel reasonably acceptable to the City and hold harmless the City and its elected officials, officers, directors, attorneys, contractors, agents and employees from any and all actual or alleged liens, claims, demands or liability arising from Developer or its agents' presence on the property or any Studies by the Developer on the City Property.
(b) Upon completion of the Studies and following the City’s completion of the demolition of the existing structures on the City Property, Developer shall deliver a Due Diligence Investigation Conclusion Notice indicating Developer’s determinations concerning the suitability of the physical condition of the City Property for development and intended use. If, in the Developer’s sole and absolute discretion, the physical condition of the City Property is unsuitable for the use or uses to which the City Property will be put, then Developer shall have the option to (i) take any action necessary to place the City Property in a condition suitable for development, at no cost to City; or (ii) terminate this Agreement pursuant to the provisions in Section 3.7. If, however, Developer elects to not avail itself of either option, then Developer shall give its unconditional acceptance of the condition of the City Property and shall evidence the acceptance of the condition of the City Property by Developer in its existing "AS IS," "WHERE IS" and "SUBJECT TO ALL FAULTS" condition. Developer's unconditional and irrevocable acceptance of the City Property in the City Property’s AS IS, WHERE IS, SUBJECT
TO ALL FAULTS CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION, including any warranty as to title, physical condition, soil conditions, the presence or absence of fill, subsurface support, zoning, land use restrictions, the availability or location of utilities or services, the location of any public infrastructure on or off of the City Property (active, inactive or abandoned), the suitability of the Site for the Project or other use or the existence or absence of Hazardous Substances and with full knowledge of the physical condition of the City Property, the nature of Developer’s interest in and use of the City Property, all Laws applicable to the City Property, the Permitted Exceptions and any and all conditions, covenants, restrictions, encumbrances and all matters of record relating to the Site. Developer represents and warrants to City that: (a) Developer has had ample opportunity to inspect and evaluate the City Property and the feasibility of the uses and activities Developer is entitled to conduct on the City Property in accordance with this Agreement; (b) Developer is experienced in real estate development; (c) Developer is relying entirely on Developer's experience, expertise and its own inspection of the City Property in its current state in proceeding with acquisition of the City Property; (d) Developer accepts the City Property in its present condition including all environmental and hazardous material conditions on the property; and (e) to the extent that Developer's own expertise with respect to any matter regarding the City Property is insufficient to enable Developer to reach an informed conclusion
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regarding such matter, Developer has engaged the services of Persons qualified to advise Developer with respect to such matters. The Close of Escrow shall constitute Developer's representation and warranty to City that Developer has received assurances acceptable to Developer by means independent of the City of the truth of all facts material to Developer's acquisition of the City Property pursuant to this Agreement and that the City Property is being acquired by Developer as a result of its own knowledge, inspection and investigation of the City Property and not as a result of any representation made by the City relating to the condition of the Site, unless such statement or representation is expressly and specifically set forth in this Agreement. Except to the extent of any express representations and warranties of City specifically set forth in this Agreement (if any), City hereby expressly and specifically disclaims any express or implied warranties regarding the City Property.
3.13 Right of Entry.
(a) Right of Entry. City hereby grants to Developer and its authorized agents and contractors the nonexclusive right to enter upon the City Property (the "Right of Entry") to undertake the Approved Uses, defined below, only, and expressly for no other purposes without the prior written approval of the City Manager, which approval the City Manager may grant or deny in good faith to meet the objectives of this Agreement. "Approved Uses" shall mean that Developer and its contractors, employees, agents, assigns, experts and vendors have the right to enter onto the City Property for the purposes of (i) inspecting the City Property, (ii) performing initial civil engineering studies including performing topographical and boundary surveys, (iii) obtaining soil samples, and (iv) performing environmental studies. (b) Term of Right of Entry. This Right of Entry shall automatically terminate and expire on the first to occur of the following: (i) upon the execution and delivery of title and possession of the City Property by City to Developer or (ii) upon the termination of the Agreement.
(i) It is expressly understood this Right of Entry does not in any way whatsoever grant or convey any rights of possession, easement or other interest in the City Property to Developer, at this point in time, or through this Right of Entry. (ii) Under the terms of this Right of Entry, in no event shall Developer use the City Property in any manner beyond the scope of the Approved Uses. In the event Developer undertakes any other use at the City Property outside the scope of the described Approved Uses, this Right of Entry shall automatically terminate and Developer shall immediately vacate the City Property, shall have no further rights to enter the City Property for the Approved Uses and shall be liable and responsible to City for any and all damages, claims, and mechanics liens, if any, relating to the City Property. (iii) All acts and things done by Developer on the City Property will be done in a careful and reasonable manner, in accordance with all applicable Federal, state and local laws.
(iv) Developer enters the City Property entirely at its own cost, risk and expense, and Developer acknowledges that City and its officers, employees, agents or
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contractors, have made no warranty or representation to Developer that the City Property, or any part thereof is safe or suitable for the intended purposes of the Approved Uses. (v) Before Developer's entry upon the City Property and during the period of this Right of Entry, there shall be in effect policies of insurance in the amount set forth as required under Section 3.13.c herein.
(vi) Developer shall not permit any mechanics', materialmen's or other liens of any kind or nature to be filed or enforced against the City Property. If any such lien is filed against the City Property, Developer, within thirty (30) days after such filing, will either cause such lien to be lifted or will provide a bond in favor of City for the amount of the claim pursuant to which the lien is filed.
(vii) During the term of this Right of Entry, Developer shall maintain the City Property in a safe and good condition resulting from the entry and work thereon by Developer and Developer's contractors and agents. Developer will not be responsible for any conditions, damage, or injuries caused by a third party exercising the Right of Entry. (c) Insurance Requirements. In connection with the right of entry granted to Developer under this Agreement, Developer shall present City with evidence of a general liability insurance policy with limits consistent with Section 5.3, below. (d) Indemnification Requirements. If Developer exercises its rights under this Section 3.13, Developer agrees to indemnify, defend and hold the City and its respective officers, employees, agents, representatives and volunteers harmless from and against any claim, action, suit, proceeding, damage, liability, deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the City Property occurring in connection with Developer’s use of the City Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the City Property occurring in connection with Developer’s use of the City Property.
3.14 City Property Condition.
(a) Disclosure Regarding Condition of City Property. City hereby represents and warrants to Developer that it has no Actual Knowledge of the presence of surface or subsurface Hazardous Materials in, on or under the City Property or any portion thereof except as may have been previously disclosed to Developer. The City has commissioned a Pre- Demolition Asbestos Survey and Lead-Based Paint Screening Report from AEI Consultants dated April 13, 2022, a Soil Vapor Investigation Report by Green Environment dated November 11, 2021, and a Phase I Environmental Site Assessment by Smith-Emery GeoServices dated April 11, 2003 (collectively, the “Environmental Studies”). The City has provided the Environmental Studies to the Developer, and all information in the Environmental Studies is deemed disclosed for purposes of this Section.
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(b) Investigation. Developer, before the Close of Escrow and at its own sole expense, shall be responsible for obtaining an environmental investigation of the City Property performed by an environmental consultant within the period described in Section 3.12 above, and shall promptly provide City with a copy of all reports and test results provided by its environmental consultant.
(c) Precautions Before Closing. Before the Close of Escrow, City and Developer shall use commercially reasonable efforts to prevent the release into the environment of any Hazardous Materials that may be located in, on or under the City Property. Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. City shall promptly notify Developer if any Hazardous Materials are released in, on, or under the City Property prior to Close of Escrow. (d) Required Disclosures After Closing. After the Close of Escrow, Developer shall notify City, and provide to City a copy or copies, of all environmental permits, disclosures, applications, entitlements or inquiries relating to the City Property, including notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, and all reports prepared concerning the condition of the City Property, and reports filed or applications made pursuant to any Governmental Requirement relating to Hazardous Materials.
(e) Hazardous Materials Indemnification by the Parties. City agrees to indemnify, defend and hold the Developer and its respective officers, employees, agents, representatives and volunteers harmless from and against any claim, action, suit, proceeding, damage, liability, deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the City Property occurring prior to the Close of Escrow, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the City Property occurring prior to the Close of Escrow unless the same is caused by Developer through the exercise of its Right of Entry pursuant to Section 3.13 of this Agreement. City shall be responsible for third parties dumping waste, including Hazardous Materials, on or about the City Property before the Close of Escrow. Developer agrees to indemnify, defend and hold the City and its respective officers, employees, agents, representatives and volunteers harmless from and against any claim, action, suit, proceeding, damage, liability, deficiency, fine, penalty, or punitive damage (including, without limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the City Property occurring after the Close of Escrow, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the City Property occurring after the Close of Escrow.
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(f) Waiver and Release. Effective as of the Close of Escrow, Developer hereby waives, releases and discharges forever the City and its respective officers, employees, agents, representatives and volunteers from any and all present and future claims, actions, suits, proceedings, damages, liability, deficiency, fine, penalty, or punitive damages arising out of or in any way connected with the condition of the City Property or applicable portion thereof, any Hazardous Materials on, under or about the City Property or applicable portion thereof however they came to be placed there, or the release of Hazardous Materials from the City Property or applicable portion thereof. The Developer is aware of and familiar with the provisions of California Civil Code section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY."
As it relates to this Section, Developer hereby waives and relinquishes all rights and benefits that it may have under California Civil Code section 1542.
Developer Initials _______ City Initials ______
4. Project Financing.
4.1 Project Construction Financing; Holders of Deeds of Trust. Developer shall have the right to hypothecate its interest in the Project pursuant to deeds of trust from lenders approved by the City Manager (which approval shall not be unreasonably conditioned or withheld) for the purpose of securing a loan or loans of funds to be used for financing the costs of the Project. Any lender of record, other than City, holding a deed of trust security such as those whose name and address shall have been provided by Developer to City shall be referred to herein as a "Holder" and collectively as "Holders."
4.2 Rights of Holders. City shall deliver a copy of any notice or demand to Developer concerning any alleged breach or Default by Developer under this Agreement to each Holder. Such Holder shall have the right at its option to cure or remedy any such breach or default and to add the cost thereof to the secured debt and the lien of its security interest. If such breach or default can only be remedied or cured by such Holder upon obtaining possession, such Holder may remedy or cure such breach or default within a reasonable period of time after obtaining possession, provided such Holder seeks possession with diligence through a receiver or, if not possible, then by nonjudicial foreclosure or deed in lieu of foreclosure. The Holder shall not be obligated by the provisions of this Agreement to construct or complete the Project or any portion thereof or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement be construed so to obligate such Holder; provided, however, that (i) nothing in this Agreement shall be deemed to permit or to authorize such Holder to devote the Project or any portion thereof to any uses or to construct any improvements thereon other than those uses and improvements provided for or authorized in this Agreement and (ii) such Holder shall not undertake or continue the construction or completion of the
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improvements comprising the Project beyond the extent necessary to conserve or to complete the same without assuming Developer's obligations hereunder. Any Holder completing the Project shall have and be subject to all of the rights and obligations of Developer set forth in this Agreement, including the right to City's issuance of a Certificate of Completion for the Project, and provided, further, any Holder that acquires the Property through a foreclosure action or deed in lieu of foreclosure shall take the Property subject to the City Regulatory Agreement and this Section 4.2, which City Regulatory Agreement shall require that the Property shall be used for affordable housing purposes in perpetuity.
5. Development of the City Property.
5.1 Scope of Development.
(a) The Project. Developer shall use the City Property to develop the Project on the Site in substantial compliance with the Scope of Development attached hereto as Attachment 3.
(b) Schedule of Performance. The Project shall be developed in accordance with this Section as set forth in the Schedule of Performance attached as Attachment 4, subject to Section 8.2 (Force Majeure Delays).
(c) Entitlement Approvals. Developer shall be responsible for submitting to the City applications necessary to develop and operate the Project. In conjunction with the entitlement approvals, Developer shall provide the City, for the City’s review and approval, with its proposed relocation plan for existing tenants of the HIP Property that identifies the relocation assistance benefits such tenants will be paid.
(d) Compliance with Environmental Laws; City Discretion Reserved. This Agreement is subject to completion and approval or certification, as applicable, of environmental review in accordance with CEQA and its implementing regulations (the CEQA Guidelines, 14 CCR § 1500 et seq.). This Agreement shall be conditioned upon the City’s determination to proceed with, modify or cancel its participation in the Project as may be necessary to mitigate or avoid environmental effects as defined by CEQA. This condition shall be deemed to have been satisfied upon the City’s adoption of a resolution finding the Project exempt from CEQA, adoption of a Mitigated Negative Declaration, or the certification of an Environmental Impact Report. Nothing in this Agreement shall obligate the City to approve the Project, nor does it foreclose the City from using its discretion to modify the Project as may be needed to avoid or mitigate environmental effects to comply with CEQA.
(e) Post-Close of Escrow Obligations. Following the Close of Escrow and prior to the City’s issuance of a Certificate of Completion, Developer shall complete the following tasks as set forth in the Schedule of Performance:
(i) The Developer shall provide the City Manager a comprehensive development and construction cost budget for the Project for the City Manager’s review and approval, which shall not be unreasonably withheld or conditioned.
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(ii) The Developer shall record any lot merger documents necessary to create the Site as one parcel from the City Property and the HIP Property within 90 days following acquisition of the City Property.
(iii) The Developer shall provide the City Manager a copy of a fully executed construction contract, between Developer and General Contractor, for the construction of the Project, which shows an amount due to the General Contractor that is not greater than the development and construction cost budget and the amount of debt and equity funds committed for the Project. "General Contractor" means the person or entity that Developer hires to construct the Project.
(iv) Developer shall obtain all permits and governmental approvals required for the construction of the Project and pay all fees therefor when due and owing. (v) Developer shall relocate existing tenants from the HIP Property and provided relocation assistance in accordance with the HIP Property Relocation Plan in advance of commencing demolition or construction on the HIP Property.
5.2 Cost of Construction. Unless otherwise expressly stated herein, all of the costs of planning, designing, developing and constructing the Project and all applicable improvements on the Site, and any improvements required by City conditions of approval, shall be borne solely by Developer. Notwithstanding the foregoing, City agrees that Developer will receive disbursements of the City Loan.
5.3 Insurance Requirements. Developer shall obtain and maintain or shall cause its contractor to obtain and maintain, until the issuance of the final Certificate of Completion by City, a commercial general liability policy in the amount of Two Million Dollars ($2,000,000) per occurrence, and a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000) per occurrence, or such other policy limits as City may reasonably approve, including contractual liability, as shall protect Developer and City from claims for such damages, and which policy shall be issued by an "A" rated insurance carrier. Such policy or policies shall be written on an occurrence form. Developer shall also furnish or cause to be furnished to City evidence reasonably satisfactory to City that Developer and any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. Developer shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form approved by City setting forth the general provisions of the insurance coverage. This countersigned certificate shall include City and its officers, employees, agents, representatives and volunteers as additionally insured Parties under the policy, and the certificate shall be accompanied by a duly executed endorsement evidencing such additional insured status. The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination.
Coverage provided hereunder by Developer shall be primary insurance and not be contributing with any insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City.
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5.4 Certificate of Completion. Promptly after completion of all construction and development required by this Agreement to be completed by Developer upon the Site (the "Improvements") in conformity with this Agreement, City shall furnish Developer with the "Certificate of Completion" upon written request by Developer. City shall not unreasonably withhold any such Certificate of Completion. The Certificate of Completion shall be a conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site and the Certificate of Completion shall so state. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of the County. If City refuses or fails to immediately furnish a Certificate of Completion after a written request by Developer, City shall, within ten (10) days of a written request provide Developer with a detailed written analysis, which identifies each and every reason why the City refused or failed to furnish a Certificate of Completion. The statement shall also contain City's opinion of all the actions that Developer must undertake to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate availability of specific items of materials for landscaping, or other minor items relating to the completion of construction that are unrelated to public health and safety issues which will be determined at the sole discretion of the City, City will issue its Certificate of Completion upon the posting of a bond or other security acceptable to City in City's reasonable discretion, in an amount representing a fair value of the work not yet completed. A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, or any part thereof, nor is it evidence of compliance with laws or permits. A Certificate of Completion as set forth herein is not a notice of completion as referred to in the California Civil Code Section 3093.
5.5 Compliance With Laws. Developer shall carry out the design and construction of the Project in conformity with all applicable laws, including all applicable state labor standards and development standards.
6. Covenants and Restrictions.
6.1 Use of City Property. Developer agrees to devote, use, operate, and maintain the Project in accordance with this Agreement. City's willingness and lawful authority to enter into this Agreement arises from Developer's agreed use of the Site (i.e., Developer's agreement to construct and to implement the Project).
6.2 Maintenance. Following issuance of the Certificate of Completion, Developer shall maintain or cause to be maintained the interiors and exteriors of the Project as required by the City Regulatory Agreement.
6.3 Nondiscrimination. Developer herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall Developer itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Project.
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7. Default and Remedies.
7.1 Default Remedies. Subject to the extensions of time set forth in Section 8.2 of this Agreement, failure by either Party to perform any action, condition, or covenant required by this Agreement within the time periods provided herein, including the events and timeframes contained in Attachment 4, Schedule of Performances, following written notice and failure to cure as described herein, constitutes a "Default" under this Agreement unless defined otherwise within this Agreement. A Party claiming a default shall give written Default Notice (the "Default Notice") to the other Party specifying and detailing the particular default. The claimant shall not institute any proceeding against any other Party, and the other Party shall not be in default if a Party, within thirty (30) days from receipt of a Default Notice, cures such default, or if the nature of such default is that it cannot reasonably be expected to be cured within such thirty (30) day period, then the claimant shall not institute any proceeding against any other Party and the other Party shall not be in default if the Party receiving the Default Notice promptly commences to cure the default and thereafter completes such cure, correction or remedy with reasonable diligence. City hereby agrees that any cure of any default that is made or tendered by the investor limited partners or lenders of Developer shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. Upon expiration of an applicable Default Notice cure period, the non-defaulting Party may terminate this Agreement and pursue any and all remedies at law or in equity.
7.2 Termination by Any Party. Prior to the Close of Escrow, any Party shall have the right to terminate this Agreement, by providing written notice to the other Parties, in the event of a failure of any Condition Precedent to the Close of Escrow as set forth in Section 3.10 of this Agreement, provided that such condition is for the benefit of and such failure is outside the control of the Party seeking to terminate this Agreement. Upon such termination, neither the City nor Developer shall have any further rights against or liability to the other under this Agreement, except for indemnification rights that survive termination of this Agreement.
7.3 Termination by Developer. In the event Developer is not in Default under this Agreement, Developer may terminate this Agreement by written notice to City (and pursue its remedies for Default, if applicable) if any of the following events occur:
(a) City does not tender title to the City Property pursuant to the Grant Deed in the manner and condition and by the date provided in this Agreement, or (b) Developer's Conditions Precedent are not satisfied on or before the time required by this Agreement; or
(c) Default of City before the Outside Date that is not cured within the time set forth herein after written demand by Developer.
7.4 Termination by City.
(a) In the event City is not in Default under this Agreement, City may terminate this Agreement (subject to the notice and cure provisions set forth in Section 7.1) by written notice to Developer (and pursue its remedies for Default, if applicable, including pursuing any and all other legal remedies it may have and/or its power of termination as set forth
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in Section 7.5 below) in the event of a default by a Developer or failure of any Condition Precedent, including but not limited to the following:
(i) Developer fails to satisfy any Condition Precedent to the Close of Escrow within the time established therefore in this Agreement; or (ii) Developer (or any approved successor in interest) assigns or attempts to assign any of Developer’s rights in and to the City Property or any portion thereof or interest therein, or this Agreement or any portion hereof, except as permitted by this Agreement; or
(iii) there is substantial change in the ownership of Developer, or with respect to the identity of the parties in control of a Developer, or the degree thereof contrary to the provisions of Section 8.3(a) of this Agreement; or
(iv) there is any other material default by Developer under the terms of this Agreement which is not cured within the time provided herein. (b) After the Close of Construction Financing but before the issuance of the Certificate of Completion, the City shall have the right to terminate this Agreement, in the event any of the following defaults shall occur:
(i) Developer fails to commence construction of the Project as required by this Agreement and such breach is not cured within the time provided in Section 7.1 of this Agreement, provided that such Developer shall not have obtained an extension or postponement to which such Developer may be entitled pursuant to Sections 8.2 and 8.6 herein; or
(ii) Developer abandons or substantially suspends construction of the improvements and such breach is not cured within the time provided in Section 7.1 of this Agreement, provided Developer has not obtained an extension or postponement to which such Developer may be entitled to pursuant to Sections 8.2 and 8.6 herein; or (iii) Developer assigns or attempts to assign this Agreement, or any rights herein, or transfer, or suffer any involuntary transfer of their portion of the City Property, or any part thereof, in violation of this Agreement, and such breach is not cured within the time provided in Section 8.3(a) of this Agreement; or
(iv) Developer otherwise materially breaches this Agreement, and such breach is not cured within the time provided in Section 7.1 of this Agreement.
7.5 City Power of Termination and Right of Reverter. The Parties agree that the development of the Site for the provision of affordable housing, as provided in this Agreement and the City Regulatory Agreement, is a condition subsequent, to which the fee simple estate in the City Property granted to the Developer by the City is subject. If the Developer violates this Agreement prior to the City’s issuance of the Certificate of Completion, subject to applicable notice and cure periods, the City shall have the right, in its sole and absolute discretion, in addition to any other rights and remedies granted in this Agreement or the City Regulatory
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Agreement, to exercise a power of termination as described in California Civil Code Section 885.010 or in accordance to any pertinent provision within Chapter 5, Title 5, Part 2, Division 2 of the California Civil Code, to terminate and revest in the City the estate in the City Property previously conveyed to Developer pursuant to this Agreement and to re-enter and take possession of the City Property with any improvements thereon. Notwithstanding anything to the contrary contained herein, Developer’s investor limited partner shall have an additional one hundred eighty days to cure any violation that triggers the City’s rights under this Section 7.5 before City shall exercise such rights.
(a) Upon the City's exercise of its power of termination, the Developer or its successors or assigns shall convey by grant deed to the City title to the City Property, as specified in the City's notice pursuant to Section 7.4(a), and all improvements thereon, in accordance with Civil Code Section 1109, as such code section may hereafter be amended, renumbered, replaced or substituted. Such conveyance shall be duly acknowledged by the property owner and a notary in a manner suitable for recordation. The City may enforce its rights and remedies pursuant to Section 7.5 by any lawful means, including but not limited to breach of contract, injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.
(b) The City shall agree to subordinate its power of termination and right of reverter to any Holder’s security interest in the Site; provided, however, that the City Regulatory Agreement’s affordability requirements shall not be subject to such subordination agreement. (c) The City’s right of reverter shall terminate upon the City’s issuance of the Certificate of Completion, The Parties agree to execute reasonable documentation as may be appropriate to evidence such termination; provided, however, that the termination of the right of reverter shall be self-executing upon issuance not be contingent on the execution of further documentation.
7.6 Acceptance of Service of Process. In the event that any legal action is commenced by Developer against City or City under this Agreement, service of process on City or City shall be made by personal service upon the City Clerk in such other manner as may be provided by law. In the event that any legal action is commenced by City against Developer under this Agreement, service of process on Developer shall be made by personal service upon the President of Eden Housing, or in such other manner as may be provided by law.
7.7 Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party.
7.8 Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either 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.
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8. General Provisions.
8.1 Notices, Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ("Notice"), which either Party may desire to give to the other Party under this Agreement must be in writing and may be given by the means described below to the Party to whom the Notice is directed at the address of the Party as set forth below, or at any other address as that Party may later designate by Notice.
City: City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attention: City Manager
Developer: Cherry Street Commons L.P.
c/o Eden Housing Inc.
22645 Grand Street
Hayward, California 94541
Copy to: HIP Housing Development Corporation, Inc.
800 South Claremont Street, Suite 210
San Mateo, California 94402
Any written notice, demand or communication sent to the address set forth above or as later provided by a Party shall be deemed effective and received as of the date of delivery, the date delivery was refused, or the date returned as undeliverable if sent by one of the following methods: (1) personal delivery with a written receipt therefore; (2) certified mail, return receipt requested; or (3) nationally recognized overnight delivery service (i.e., FedEx, UPS, or DHL) with a delivery receipt.
Copies of all notices delivered by City to Developer after the Close of Escrow shall be delivered to Developer's investor limited partner at a notice address to be provided to City in writing.
8.2 Force Majeure Delays; Extension of Times for Performance. All performance deadlines in this Agreement shall be extended to the extent of delays caused beyond the control or without the fault of the Party claiming an extension of time to perform, including, without limitation, the following: war; acts of terrorism; insurrection; strikes; lockouts; labor troubles; inability to procure materials; power failures; riots; floods; earthquakes; fires; other natural disasters; casualties; acts of God; epidemics; pandemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; governmental moratoria; initiation of condemnation proceedings by any governmental agency; and unreasonable acts or unreasonable failures to act of City or any other public or governmental Agency or entity (determined considering the normal processes and response times of City and such governmental entities, which shall be deemed reasonable and not force majeure delays). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay only and shall commence to run from the time of the
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commencement of the cause, and only if notice by the Party claiming such extension is sent to the other Party within thirty (30) days after the commencement of the cause.
8.3 Transfers of Interest in Site or Agreement.
(a) Prohibition. The qualifications and identity of Developer are very important and of particular concern to City. Because of those qualifications and identity, City has entered into this Agreement with Developer. Except as provided in Section 8.3.b, below, no voluntary or involuntary successor in interest of Developer shall, before the issuance of the Certificate of Completion, (i) acquire any rights or powers under this Agreement, (ii) make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the City Property or Project without the prior written approval of the City Manager, in its reasonable discretion. The Developer’s limited partnership agreement will later be amended and restated to admit an investor entity as the limited partner of the Developer, and entities affiliated with Developer and the limited partner may be additional general or limited partners of the Developer. The amendment and restatement of the limited partnership agreement of the Developer and the admission of the investor limited partner will not require approval by City so long as: (a) there is not a technical termination of the Developer’s limited partnership, (b) an affiliate of Eden Housing and/or HIP remains as the managing general partner of the Developer, and (c) the Developer remains bound by this Agreement. (b) Permitted Transfers. Notwithstanding any other provision of this Agreement to the contrary, City approval of an assignment of this Agreement or conveyance of the City Property or Project, or any part thereof, shall not be required in connection with any of the following:
(i) The granting of reasonable easements or permits to facilitate construction of the Project.
(ii) The granting of security interests in the Project and this Agreement to a Holder for a loan permitted by this Agreement, and the transfer of title by foreclosure, deed or other conveyance in lieu of foreclosure in connection with such security interest. (iii) The conveyance of any interest in the Project after the issuance of a Certificate of Completion by City.
(iv) The admission of an affiliate of Eden Housing and/or HIP to the Developer’s limited partnership as managing general partner. (v) The admission of limited partners to the Developer’s limited partnership in connection with tax credit financing, and any subsequent transfer of such limited partnership interests, including any transfer of stock or equity in the limited partners that does not change management or operational control of the Project, with no material change in beneficial ownership (with the exception of any conveyance to member(s) of the immediate family(ies) of the transferor(s) or trusts for their benefit) and which constitutes a tax-free transaction under Federal income tax law and California real estate transfer tax.
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(vi) The removal for cause of any general partner in the Developer by a limited partner of the Developer, and the replacement thereof. (vii) The lease for occupancy of all or any part of the Project in accordance with this Agreement and the City Regulatory Agreement.
8.4 Non-Liability of Officials and Employees. No officer, attorney, or employee of City shall be personally liable to the Developer or any successor-in-interest in the event of any default or breach by City or for any amount which may become due to the Developer or to its successor or for breach of any obligation of the terms of this Agreement. No officer or employee of Developer shall be personally liable to the City in the event of any default or breach by Developer for any amount which may become due to the City, or for breach of any obligation of the terms of this Agreement.
8.5 Relationship Between Parties. It is hereby acknowledged that the relationship between City on the one hand and Developer on the other hand is not that of a partnership or joint venture and that City and Developer shall not be deemed or construed for any purpose to be the agent of the other.
8.6 Approvals, Actions and Authority of the City Manager. The City Manager shall have the authority to make approvals, issue interpretations, waive minor provisions, enter into minor amendments of this Agreement, and sign and approve escrow documents and additional documents, on behalf of City, respectively, so long as such actions do not materially or substantially change the uses or development permitted on the Site, or materially or substantially add to the costs incurred or to be incurred by City as specified herein. Such actions which may be approved include extensions of time to perform as specified in the Schedule of Performance, extensions of the Outside Date, and waiver of City’s conditions to close.
8.7 Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all Parties, shall constitute a binding agreement.
8.8 Integration. This Agreement contains the entire understanding between the Parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. This Agreement supersedes the LOI, and such LOI shall have no further force or effect. Each Party is entering this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such Party deems material. This Agreement includes all Attachments, which are incorporated herein and together with the Agreement constitute the entire understanding and agreement of the Parties.
8.9 No Real Estate Brokerage Commissions. City and Developer each represent and warrant to the other that no broker or finder is entitled to any commission or finder's fee in connection with this transaction, and Developer and City agree to defend and hold each other harmless from any claim to any such commission or fee resulting from any action on its part.
8.10 Attorneys' Fees. In any action between the Parties to interpret, enforce, reform, modify, rescind or that otherwise relates to any of the terms or provisions of this Agreement, the
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prevailing Party in the action shall be entitled, in addition to damages, injunctive relief or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, expert fees, litigation costs and reasonable attorneys' fees.
8.11 Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
References to section numbers are to sections in this Agreement, unless expressly stated otherwise.
8.12 Interpretation and Applicable Law. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. This Agreement shall be interpreted as though prepared jointly by all Parties. The laws of the State of California shall govern the interpretation and enforcement of this Agreement.
8.13 No Waiver. A waiver by a Party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other Parties shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement.
8.14 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party.
8.15 Severability. If any term, provision, condition or covenant of this Agreement or its application to any Party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
8.16 Legal Advice. Each Party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other Party, or their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
8.17 Time of Essence. Time is of the essence with respect to the performance by City and Developer of each and every obligation and condition of this Agreement in which time is a factor.
8.18 Cooperation. Each Party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful or
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appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements.
8.19 Conflicts of Interest. Developer acknowledges that no officer or employee of City has or shall have any direct or indirect financial interest in this Agreement nor shall Developer enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Developer warrants that Developer has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
[Signature Page Follows.]
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DDA Signature Page
SF #4860-7211-7805 v1
IN WITNESS WHEREOF, Developers and City have executed this Agreement as of the Effective Date.
CITY:
CITY OF SAN CARLOS,
a California municipal corporation
By: _______________________________
Jeff Maltbie,
City Manager
Attest: _______________________________
Crystal Mui,
City Clerk
Approved as to Form: _______________________________
Greg Rubens,
City Attorney
BORROWER:
Cherry Street Commons, L.P.
a California limited partnership
By: Eden Cherry Street LLC
a California limited liability company,
its co-general partner
By: Eden Investments, Inc.
a California nonprofit public benefit corporation, its
sole member/manager
By: ____________________________
Andrea Osgood,
VP of Real Estate Development
By: HIP Housing Development Corporation, Inc.,
a California nonprofit public benefit corporation,
its co-general partner
By: ____________________________
Name: Kate Comfort Harr
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DDA Signature Page
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Its: Executive Director
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ATTACHMENT 1
City Property Legal Description
Portion of Lot 6, Block 17, as delineated upon that certain Map entitled "SAN CARLOS, SAN MATEO CO., CAL.", filed for record in the Office of the Recorder of the County of San M ateo, State of California, on September 4th, 1888 in Book "E" of Maps, at Page 19 and copied into Book 1 of Maps at Page 76, more particularly described as follows:
Commencing at the most Southerly corner of said Lot 6, as same appears on the Map above mentioned; thence Northwesterly on and along the Southwesterly line of said Lot, 100 feet to the most Westerly corner thereof; thence Northeasterly on and along the Northwesterly line of said Lot, 50 feet; thence at a right angle Southeasterly 100 feet to the Northwesterly line of Cherry Street; thence Southwesterly on and along the Northwesterly line of Cherry Street, 50 feet to the point of commencement.
Excepting therefrom a 10 foot strip of land described as follows:
Commencing at the most Southerly corner of said Lot 6, as said appears on the Map above mentioned; thence Northwesterly on and along the Southwesterly line of said Lot, 100 feet to the most Westerly corner thereof; thence Northeasterly on and along the Northwesterly line of said Lot, 10 feet; t hence at a right angle Southeasterly 100 feet to the Northwesterly line of Cherry Street; thence Southwesterly on and along the Northwesterly line of Cherry Street, 10 feet to the point of commencement.
A.P.N. 050-132-100
AND
All that real property situated in the City of San Carlos, County of San Mateo, State of California, being a portion of LOT 4 as shown on that certain Map entitled “FINAL MAP NO. 2016-01”, filed June 23, 2016 in Book 140 of Maps, at Pages 87 to 93 inclusi ve, in the Office of the County Recorder of San Mateo County, more particularly described as follows:
COMMENCING at the most Southerly corner of that parcel of land as described in that certain Grant Deed recorded November 13, 2002 as Document Number 2002 -233661, Official Records of San Mateo County; thence along the Northwesterly line of Cherry Street as shown on said Map, North 47°27’14” East, 106.99 feet; thence parallel with the Northeasterly line of that parcel of land as described in that certain Grant Deed recorded September 3, 1993 as Document Number 93149944, Official Records of San Mateo County, North 42°32’54” West, 100.02 feet to a point on the Northwesterly line of said parcel of land (Document Number 93149944), said point being the POINT OF BEGINNING; thence continuing North 42°32’54” West, 44.59 feet to the exterior boundary of said LOT 4; thence along said exterior boundary the following three (3) courses: 1) South 47°26’56” West, 72.00 feet, 2) South 42°33’00” East, 44.59 feet, and 3) North 47°27’06” East, 35.00 feet to the most Northerly corner of said parcel of land (Document Number 2002 - 233661); thence continuing North 47°26’56” East, 19.99 feet to the most Westerly corner of said
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parcel of land (Document Nu mber 93149944); thence along the Northwesterly line of last said parcel of land, continuing North 47°26’56” East, 17.01 feet to the POINT OF BEGINNING.
A.P.N. 050-680-040
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ATTACHMENT 2
HIP Property Legal Description
The land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:
The Southwesterly 40 feet, front and rear measurements of LOT 7 -A, and the Northeasterly 30 feet, front and rear measurements of LOT 7 -B, BLOCK 17, as delineated upon that certain M ap entitled "AMENDED MAP OF THE TOWN OF SAN CARLOS, SAN MATEO COUNTY, CAL.", filed for record in the Office of the Recorder of the County of San Mateo, State of California, on October 7th, 1912 in Book 8 of Maps, at Pages 25 and 26.
APN: 050-132-110
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ATTACHMENT 3
Scope of Development
Preliminary plans for the project include demolition of the existing six -unit affordable housing structure on the HIP Property and the vacant office building on the City Property. The alleyway would then be relocated to the northeast boundary of the project site to allow for a straight path of travel all the way from San Carlos Avenue to Cherry Street. On the rest of the project site would be constructed a five -story 100% affordable housing project made up of approximately 33 units (but in no event fewer th an at least 30 units) ranging from one to three bedrooms to be rented at affordable rents to moderate and lower income households and one manager’s unit. The project would also include parking on the ground floor, a lobby, bike storage, communal laundry facilities, and gathering spaces including a community room, kitchen for events, and a courtyard with a playground. Units will include full size ovens and ranges with four burners.
Current tenants of the existing six-unit structure will be provided relocation assistance by Cherry Street Commons. Prior to receiving approval of project entitlements, a Relocation Plan must be submitted to the City for its review and approval. This plan will identify the relocation assistance benefits that will be paid to the current tenants and outlines their rights to return to the property upon completion of the new building, consistent with California Relocation Law and the Housing Crisis Act.
Upon final City approval of the Project entitlements, the Project plans and conditions of approval, if any, shall be incorporated into this scope of development by this reference.
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ATTACHMENT 4
Schedule of Performance
MILESTONES OUTSIDE DEADLINE
1. Open Escrow (Escrow Period) April 1, 2023
1. Entitlements Approved with CEQA
Compliance
January 1, 2024
2. Close of Escrow April 1, 2024
3. Obtain Building Permits January 1, 2026
4. Close Construction Financing January 1, 2026
5. Construction Commencement April 1, 2026
6. Completion of Project and Issuance
of Certificate of Completion
January 1, 2028
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ATTACHMENT 5
Form of City Regulatory Agreement
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1 RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.
APN: [TBD]
BELOW MARKET RATE HOUSING AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(Cherry Street Affordable Housing Project)
This BELOW MARKET RATE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is entered into as of , 20 __ (“Effective Date”), by and between the CITY OF SAN CARLOS, a municipal corporation (the “City”) and CHERRY STREET COMMONS, L.P., a California limited partnership (“ Owner”).
The City and Developer may be referred to individually as a “Party” or together as the “Parties.”
RECITALS
A. Owner is the owner of that certain real property located at 1232 and 1244 Cherry Street, San Carlos, California (“Property”) as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference.
B. Owner applied to redevelop the Property with a new multifamily residential project with thirty three (33) rental units and associated open space, circulation, parking and infrastructure improvements (collectively, the “Project”).
C. On _________ __ , 202 3, after a duly noticed public hearing, the City Council approved that certain Disposition, Development, and Loan Agreement by and between the City and the Owner (the “DDLA”).
D. The DDLA requires the Owner to develop the Project and to make thirty two (32) of the Project’s units affordable to below market rate (“BMR”) households earning up to 120% of area median income (the “BMR Rental Units”). The BMR Rental Units consist of seven units affordable to households earning up to 50% of area median income (“Very Low Income Units”), seven units (7) to households earning up to 60% of area median income (“Low Income Units”), and eighteen (18) units to households earning up to 120% of area median income (“Moderate Income Units”).
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2 NOW, THEREFORE, the Parties hereto agree as follows. The recitals are incorporated into this Agreement by this reference.
1. CONSTRUCTION OF THE PROJECT.
1.1 Construction of the Project. Owner agrees to construct the Project in accordance with the DDLA, the San Carlos Municipal Code and all other applicable state and local building codes, development standards, ordinances and zoning ordinances.
1.2 City and Other G overnmental Permits. Before commencement of the Project, Owner shall secure or cause its contractor to secure any and all permits which may be required by the City or any other governmental agency affected by such construction, including without limitation building permits. Owner shall pay all necessary fees and timely submit to the City final drawings with final corrections to obtain such permits; City staff will, without incurring liability or expense therefore, process applications in the ordinary course of business for the issuance of building permits and certificates of occupancy for construction that meets the requirements of the San Carlos Municipal Code, and all other applicable laws and regulations.
1.3 Compliance with Laws . Owner shall carry out the de sign, construction and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the San Carlos Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
2. OPERATION OF THE BMR UNITS
2.1 Affordability Period. The Property shall be subject to the requirements of this Agreement from the Effective Date in perpetuity. The duration of this requirement shall be known as the “Affordability Period.”
2.2 Maintenance. Owner shall comply wi th every condition of the DDLA applicable to the Project and shall, at all times, maintain the Project and the Property in good repair and working order, reasonable wear and tear excepted, and in a safe and sanitary condition, and from time to time shall make all necessary and proper repairs, renewals, and repl acements to keep the Project and the Property in a good, clean, safe, and sanitary condition.
2.3 Monitoring and Recordkeeping. Throughout the Affordability Period, Owner shall maintain sufficient records to demonstrate compliance with this Agreement and the DDLA .
City shall have the right to inspect the books and records of Owner and its rental ag ent or bookkeeper upon reasonable notice during normal business hours. Representatives of the City shall be entitled to enter the Property, upon at least 48-hour prior written notice, which can be provided via email, to monitor compliance with this Agreeme nt, to inspect the records of the Project with respect to the BMR Rental Units, and to conduct, or cause to be conducted, an independent audit or inspection of such records. Owner agrees to cooperate with the City in making the Property available for such inspection or audit. Owner agrees to maintain records in businesslike manner, and to maintain such records for Affordability Period.
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3 2.4 Non-Discrimination Covenants. Owner covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, familial status, disability, national origin, or ancestry in the sale, lease, sublease , transfer, use, occupancy, tenure, or enjoyment o f the Property, nor establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, s ublessees, or vendees in the Property.
Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. a. In deeds, the following language shall appear:
(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lea se, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with r eference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to famili al status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
b. In leases, the following language shall appear:
(1) The lessee herein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of
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4 discrimination of segregation with ref erence to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating t o housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
c. In contracts pertaining to managemen t of the Project , the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, tra nsfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections
51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
2.5 Subordination. This Agreement shall be recorded in the Official Records of the County of San Mateo and shall run with the land. The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement for the benefit of lenders providing financing for the Project, provided that the instruments effecting such subordina tion include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.
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5 3. AFFORDABILITY REQUIREMENTS.
3.1 BMR Rental Units. Owner agrees to make available, restrict occupancy to, and lease not less than thirty two (32) BMR Rental Units to Qualifying Households, as hereinafter defined, at an affordable rent, pursuant to the terms set forth below. a. Until the 55th anniversary of the Owner’s receipt of a Certificate of Completion (as defined in the DDLA) for the Project , the Project shall include no fewer than seven Very Low Income Units, seven Low Income Units, and eighteen Moderate Income Units.
b. After the 55th anniversary of the Owner’s receipt of a Certificate of Completion (as defined in the DDLA) for the Project , the Project shall include no fewer than thirty two Moderate Income Units.
3.2 Qualifying Households . For purposes of this Agreement, “ Qualifying Households” shall mean those households with incomes as follows:
a. “Very Low Income Unit ”: means units restricted to households with incomes of not more than fifty percent (50%) of AMI. “ AMI” means the median income for San Mateo County, California, adjusted for actual household size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision.
Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Very Low Income eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Very Low Income Unit, and Owner shall either (1) make the next available unit, which is comparable in terms of size, features and number of bedrooms, a Ve ry Low Income Unit, or take other actions as may be necessary to ensure that the total required number of Very Low Income Units are rented to Qualifying Households , or (2) if the tenant’s income does not exceed the maximum income that would qualify the tenant as a Low Income Household or Moderate Income Household, the tenant shall be allowed to remain in the unit at a Low Income or Moderate Income rent, as applicable. If the tenant originally qualified as a Very Low Income Household, then the tenant’s rent will be increased as applicable upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to a Very Low Income Household. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Very Low Income Units pursuant to this paragraph.
b. “Low Income Unit”: means units restricted to households with incomes of not more than fifty percent ( 60%) of AMI. Qualifying Households shall continue to qualify unle ss at the time of recertification, the household’s
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6 income exceeds the Low Income eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Low Income Unit, and Owner shall either (1) make the next available unit, which is comparable in terms of size, features and number of bedrooms, a Low Income Unit, or take other actions as may be necessary to ensure that the total required number of Low Income Units are rented to Qualifying Households, or (2) if the tenant’s income does not exceed the maximum income that would qualify the tenant as a Moderate Income Household, the tenant shall be allowed to remain in the unit at a Moderate Income rent, as applicable. If the tenant originally qualified as a Low Income Household, then the tenant’s rent will be increased to Moderate Income rent upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to a Low Income Household.
Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Low Income Units pursuant to this paragraph. c. “Moderate Income Unit ”: means units restricted to households with incomes of not more than one hundred twenty percent ( 120%) of AMI.
Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Qualifying Household eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the Tenant shall be notified they are no longer eligible for the Moderate Income Unit and upon the later of sixty (60) days’ notice or the end of the Tenant’s lease term, the Tenant shall be required to vacate the Moderate Income Unit.
3.3 Income Verification and Annual Report. On or before July 1 of each year, commencing with the calendar year that the first residential unit in the Project is rented to a tenant, and annually thereafter, Owner shall obtain from each household occupying a BMR Rental Unit and submit to the City an income computation and certification form, completed by a tenant of such unit, which shall certify that the income of each Qualifying Household is truthfully set forth in the income certification form, in the form proposed by the Owner and approved by the Deputy Director (“Annual Report”). Owner shall make a good faith effort to verify that ea ch household leasing a BMR Rental Unit meets the income and eligibility restrictions for the BMR Rental Unit by taking by taking the following steps as a part of the verification process: (a) obtain a minimum of the three (3) most current pay stubs for all adults age eighteen (18) or older; (b) obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain the three (3) most current savings and checking account bank statements; (e) obtain an income verification form from the applicant's current employer; (f) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (g) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications shall be available to the City upon request. The Annual Report shall, at a minimum, include the following information for each BMR Rental Unit: unit number, number of bedrooms, current rent and other charges, dates of any vacancies during the reporting period, number of people residing in the unit, total household Gross Income, and lease commencement
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7 and termin ation dates. The Report shall also provide a statement of the owner’s management policies, communications with the tenants and maintenance of the BMR Rental Unit, including a statement of planned repairs to be made and the dates for the repairs.
3.4 Affordable Rent. The maximum Monthly Rent, defined below, chargeable for the BMR Rental Units and paid shall be as follows:
a. “Very Low Income Household ”: shall be 1/12 th of 30 percent of not to exceed 50 percent of the AMI. The Monthly Rent for a Very Low Income Unit rented to a Very Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 1.5 pe rsons for a one - bedroom unit, 3 persons for a two - bedroom unit and 4.5 persons for a three - bedroom unit. If the Project receives an allocation of state or federal low -income housing tax credits from the California Tax Credit Allocation Committee (“TCAC”), affordable rent shall mean a rent that is consistent with the maximum TCAC rent levels for Very Low Income Households.
b. “Low Income Household”: shall be 1/12 th of 30 percent of not to exceed 60 percent of the AMI. The Monthly Rent for a Low Income Unit rented to a Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 1.5 persons for a one- bedroom unit, 3 persons for a two-bedroom unit and 4.5 persons for a three - bedroom unit. If the Project receives an allocation of state or federal low-income housing tax credits from TCAC, affordable rent shall mean a rent that is consistent with the maximum TCAC rent levels for Low Income Households.
c. “Moderate Income Household ”: shall be 1/12th of 30 percent of not to exceed 110 percent of the AMI. The Monthly Rent for a Very Low Income Unit rented to a Very Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 1.5 persons for a one - bedroom unit, 3 persons for a two - bedroom unit and 4.5 persons for a three- bedroom unit.
For purposes of this Agreement, “ Monthly Rent” means the total of monthly payments actually made by the household for (a) use and occupancy of each BMR Rental Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Owner which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, and which are not paid directly by Owner, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or internet service, which reasonable allowance for utilities is set forth in the County of San Mateo’s Utility Allowance Schedule for detached homes, apartments, condominiums and duplexes, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or p rivate entity other than Owner.
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8 3.5 Agreement to Limitation on Rents. Owner has received direct financial contributions from the City pursuant to the DDLA . Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where a property owner has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a property owner has so agreed by contract.
Owner hereby agrees to limit Monthly Rent as provided in this Agreement in consideration of Owner’s receipt of the assistance and further agrees that any limitations on Monthly Rents imposed on the BMR Rental Units are in conformance with the Costa- Hawkins Act. Owner further warrants and covenants that the terms of this Agreement are fully enforceable.
3.6 Lease Requirements. No later than 180 days prior to the initial lease up of the BMR Rental Units, Owner shall submit a standard lease form to the City for approval by the City Manager or his/her designee. The City shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement and contains all of the provisions required pursuant to the DDLA. The City's failure to respond to Owner's request for approval of the standard lease form within thirty (30) business days of City's receipt of such lease, shall be deemed City's approval of such lease form. Owner shall enter into a written lease, in the form approved by the City, with each new tenant of a BMR Rental Unit prior to a tenant or tenant household’s occupancy of a BMR Rental Unit. Each lease shall be for an initial term of not less than one year which may be renewed pursuant to applicable local and State laws, and shall not contain any of the provisions which are prohibited pursuant to the Guidelines, local, state and Federal laws.
4. DEFAULT AND REMEDIES
4.1 Events of Default. The following shall constitute an “Event of Default” by Owner under this Agreement: there shall be a material breach of any condition, covenant, warranty, promise or representation contained in this Agreement and such breach shall continue for a period of thirty (30) days after written notice thereof to the defaulting party without the defaulting party curing such breach, or if such breach cannot reasonably be cured within such 30 day period, commencing the cure of such breach within such 30 day period and thereafter diligently proceeding to cure such breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of Sec tion 4 of this Agreement, the specific provision shall control.
4.2 Remedies. The occurrence of any Event of Default under Section 4.1 shall give the non-defaulting party the right to proceed with an action in equity to require the defaulting party to specifically perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions of this Agreement, and the right to terminate this Agreement.
4.3 Obligations Personal to Owner. The liability of Owner under this Agreement to any person or entity is limited to Owner’s interest in the Project, and the City and any other such persons and entities shall look exclusively thereto for the satisfaction of obligations arising out of this Agreement or any other agreement securing the obligations of Owner under this Agreement.
From and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement, any agreeme nt pertaining to any Project or any other agreement securing Owner’s obligations under this Agreement), shall be rendered against Owner, the assets of Owner (other than Owner’s interest in
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9 the Project), its partners, members, successors, transferees or ass igns and each of their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Agreement or any agreement securing the obligations of Owner under t his Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding. No subsequent Owner of the Project shall be liable or obligated for the breach or default of any obligations of Owner under this Agreement on the part of any prior Owner. Such obligations are personal to the person who was the Owner at the time the default or breach was alleged to have occurred and such person shall remain liable for any and all damages occasioned thereby even after such person ceases to be the Owner. Each Owner shall comply with and be fully liabl e for all obligations the Owner hereunder during its period of ownership of the Project.
4.4 Force Majeure. Subject to the party’s compliance with the notice requirements as set forth below, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control and without the fault of the party claiming an extension of time to perform, which may include, without limitation, the following: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embarg oes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, acts or omissions of the other party, or acts or failures to act of any public or governmenta l entity (except that the City’s acts or failure to act shall not excuse performance of the City hereunder). An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commenceme nt of the cause, if notice by the party claiming such extension is sent to the other party within 30 days of the commencement of the cause.
4.5 Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover from the other party its costs of suit and reasonable attorneys' fees . This Section shall be interpreted in acc ordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.
4.6 Remedies Cumulative . No right, power, or remedy given by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and eac h and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given by the terms of any such instrument, or by any statute or otherwise.
4.7 Waiver of Terms and Conditions . The City may, in its sole discret ion, waive in writing any of the terms and conditions of this Agreement. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition.
4.8 Non-Liability of City Officials and Employees . No member, official, employee or agent of the City shall be personally liable to Owner or any occupant of any BMR Unit, or any successor in interest, in the event of any default or breach by the City or for any amount wh ich
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10 may become due to the Owner or its successors, or on any obligations under the terms of this Agreement.
4.9 Cure Rights . Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by Owner’s mortgage lender, shall be deemed to be a cure by Owner and shall be accepted or rejected on the same basis as if made or tendered by Owner.
5. GENERAL PROVISIONS
5.1 Time. Time is of the essence in this Agreement.
5.2 Notices. Unless otherwise indicated in this Agreement, any notice requirement set forth herein shall be deemed to be satisfied three days after mailing of the notice first-class United States certified mail, postage prepaid, or by personal delivery, addressed to the appropriate party as follows:
Owner: Cherry Street Commons L.P.
c/o Eden Housing Inc.
22645 Grand Street
Hayward, California 94541
Copy to: HIP Housing Development Corporation, Inc.
800 South Claremont Street, Suite 210
San Mateo, California 94402
City: City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attention: City Manager
Such addresses may be changed by notice to the other party given in the same manner as provided above.
5.3 Successors and Assigns . This Agreement constitutes a covenant and legal restriction on the Property and shall run with the land, provided the Project remains on the Property, and all of the terms, cov enants and conditions of this Agreement shall be binding upon Owner and the permitted successors and assigns of Owner.
5.4 Intended Beneficiaries. The City is the intended beneficiary of this Agreement and shall have the sole and exclusive power to enforce this Agreement. It is intended that the City may enforce this Agreement in order to, satisfy its obligations to improve, increase and preserve affordable housing within the City, as required by the DDLA, and to provide that a certain percentage of new housing is made avail able at affordable housing cost . No other person or persons, other than the City and Owner and their assigns and successors, shall have any right of action hereon.
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11 5.5 Partial Invalidity. If any provision of this Agreement shall be declared inval id, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
5.6 Governing Law . This Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto. The venue for any action shall be the County of San Mateo.
5.7 Amendment. This Agreement may not be changed orally, but only by agreement in writing signed by Owner and the City.
5.8 Approvals. Where an approval or submission is required under this Agreement, such approval or submission shall be valid for purposes of this Agreement only if made in writing.
Where this Agreement requires an approval or consent of the City, such approval shall not be unreasonably withheld may be given on behalf of the City by the City Manager or his or her designee. The City M anager or his or her designee is hereby authorized to take such actions as may be necessary or appropriate to implement this Agreement, including without limitation the execution of such documents or agreements as may be contemplated by this Agreement, and amendments which do not substantially change the uses or restrictions hereunder, or substantially add to the costs of the City hereunder.
5.9 Indemnification. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel reasonably appr oved by City) and hold the City, its heirs, successors and assigns (the “Indemnitees”) harmless from and against any and all demands. losses, claims, costs and expenses, and any other liability whatsoever, including without limitation, reasonable accountants’ and attorneys’ fees, charges and expense (collectively, “Claims”) arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s construction, management, or operation of the Property and the Project or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section
5.9 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 5.9 shall survive the expiration or earlier termination of this Agreement , but only as to claims arising from events occurring during the Affordability Period.
5.10 Transfer and Encumbrance.
5.12.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (other than a lease of a BMR Rental unit on an approved form under Section 3.6 hereof to a qualified tenant as described in Section 3.7 hereof) (collectively, “Transfer”) of the whole or any part of any BMR Rental Unit, without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City, which shall not be unreasonably withheld. For purposes of this
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12 Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by the investor limited partner to subsequent limited partners shall be restricted by this provision.
5.12.2 Permitted Transfers. The prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of easements or permits to facilitate development of the Property; (ii) assignments creating security interests for the purpose of financing the acquisition, construction, or permanent financing of the Project or the Property, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; or (iii) transfers between entities owned or controlled by HIP Houisng or Eden Housing (as defined in the DDLA).
5.12.3 Requirements for Proposed Transfers. The City may, in the exercise of its discretion, not to be unreasonably withheld, consent to a proposed Transfer of this Agreement and/or a BMR Rental Unit if all of the following requirements are met (provided however, the requirements of this Section 5.12.3 shall not apply to Transfers described in clauses (i), (ii), or (iii) of Section 5.12.2.
(i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete and manage the Project and to otherwise fulfill the obligations undertaken by the Owner under this Agreement. (ii) The Owner and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the BMR Rental Unit or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Owner under this Agreement arising after the effective date of the Transfer and all obligations of Owner arising prior to the effective date of the Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Owner’s obligations pursuant to conditions, and restrictions set forth in this Agreement. (iv) The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records.
If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.
5.13 Effect of Transfer without City Consent. In the absence of specific written agreement by the City, no Transfer of any BMR Rental Unit shall be deemed to relieve the Owner or any other party from any obligation under this Agreement. This Section 5.12 shall not apply to Transfers described in clauses (i) and (ii) of Section 5.12.2.
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13 5.14 Recovery of City Costs. Owner shall reimburse City for all reasonable City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten (10) days following City’s delivery to Owner of an invoice detailing such costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year set forth above.
SIGNATURES ON FOLLOWING PAGE(S).
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14 IN WITNESS WHEREOF, Owner and City have executed this Agreement as of the Effective Date.
CITY:
CITY OF SAN CARLOS,
a California municipal corporation
By: _______________________________
Jeff Maltbie,
City Manager
Attest: _______________________________
Crystal Mui,
City Clerk
Approved as to Form: _______________________________
Greg Rubens,
City Attorney
OWNER:
Cherry Street Commons, L.P.
a California limited partnership
By: Eden Cherry Street LLC
a California limited liability company,
its co-general partner
By: Eden Investments, Inc.
a California nonprofit public benefit corporation, its
sole member/manager
By: ____________________________
Andrea Osgood,
VP of Real Estate Development
By: HIP Housing Development Corporation, Inc.,
a California nonprofit public benefit corporation,
its co-general partner
By: ____________________________
Name: Kate Comfort Harr
Its: Executive Director
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15 Exhibit A
Property Description
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SF #4860-7211-7805 v1
ATTACHMENT 6
Form of City Deed of Trust
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1 RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.
APN: [TBD]
CONSTRUCTION DEED OF TRUST, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
(Cherry Street Affordable Housing Project)
This CONSTRUCTION DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (“ Deed of Trust ”) is made as of ________________, 20__, by CHERRY STREET COMMONS, L.P., a California limited partnership (“Trustor”) to Old Republic Title Company (“Trustee”) as Trustee, for the benefit of the CITY OF SAN CARLOS, a municipal corporation (the “City”) as Beneficiary.
The Trustor, in consideration of the indebtedness and promises herein recited, and the trust herein created, irrevocably and unconditionally grants, transfers, conveys and assign s to Trustee, in trust for the benefit of City, with power of sale and right of entry and possession, all of Trustor’s right, title and interest now held or hereafter acquired in and to the property located in the City of San Carlos, County of San Mateo, State of California, described in the attached Exhibit A and more commonly known as: 1232 and 1244 Cherry Street, San Carlos, California (the “Property”);
TOGETHER with the rents, issues, and profits of such Property, subject however, to the right, power, and authority granted and conferred on City in this Deed of Trust to collect and apply the rents, issues, and profits; and
TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights of way, and appurtenances thereto, and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Deed of Trust;
All of the foregoing, together with the Property, is herein collectively referred to as the “Security.”
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2 TO HAVE AND TO HOLD the Security, together with acquittances, to the Trustee, its successors and assigns forever;
TO SECURE to the City the payment of the sums, and the performance of the covenants and agreements of the Trustor evidenced by (i) that certain unrecorded Disposition, Development, and Loan Agreement executed by and between Trustor and City, dated [INSERT] (the “Loan Agreement”) pursuant to which City agreed to provide funds to Trustor in the amount of [INSERT] (the “Loan”), (ii) that certain unrecorded promissory note dated as of the date hereof (the “Note”); and (iii) that certain Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants ( “Regulatory Agreement”) dated as of the date hereof , executed by and between Trustor and City, and recorded substantially concurrently herewit h, pursuant to which Developer agreed to construct no fewer than thirty three (33) rental units, including one (1) manager’s unit and thirty two (32) affordable rental units and restrict thirty two (32) of the units to households earning up to 120% of area median in come to be rented at an affordable rent (as defined in the Regulatory Agreement) . The Loan Agreement, the Note, and the Regulatory Agreement are incorporated herein by this reference; and
TO SECURE the payment of all other sums, with interest thereon, including, without limitation, repayment of the Loan balance advanced in accordance herewith to protect the security of this Deed of Trust and the performance of the covenants and agreements of Trustor herein contained.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:
1. Trustor’s Estate. Trustor represents and warrants that Trustor is lawfully seized of the estate hereby conveyed, has the right to grant and convey the Security, and that other than this Deed of Trust, the Security is encumbered only by such prior liens and encumbrances as approved by City. Trustor agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring the City’s interest in the Security, and Trustor shall pay all costs and expenses, including cost of evidence of title and attorneys’ fees in a reasonable sum, in any such action or proceeding in which City or Trustee may appear, and in any suit brought by City to foreclose this Deed of Trust.
2. Loan Agreement, Note, and Regulatory Agreement. Trustor will perform all of Trustor’s covenants and obligations under the Loan Agreement, the Note, t he Regulatory Agreement, and this Deed of Trust.
3. Charges and Liens. Trustor will promptly pay when due, the interest, principal, and all other charges accruing under any deed of trust, mortgage, or other instrument encumbering the Property, and will pay when due directly to the payee thereof all taxes, assessments and other charges, fines and impositions affecting the Property. Upon request by the City , Trustor will promptly furnish to the City copies of all notices of amounts due described in this Section and evidence of payment of such amounts. Trustor shall pay when due each obligation secured by or reducible to a lien, charge or encumbrance which n ow does or later may encumber or appear to
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3 encumber all or part of the Property or any interest therein, whether or not such lien, charge or encumbrance is or would be senior or subordinate to this Deed of Trust; provided however, Trustor will not be required to pay any tax, charge, lien or assessment described in this Section so long as Trustor is actively contesting its validity in good faith and by appropriate legal proceedings that will operate to prevent the enforcement of the lien or forfeiture of the Property or any part thereof.
Trustor shall post security for the payment of such contested claims as may be requested by the City.
4. Protection of Security. If Trustor fails to perform any of the covenants and agreements set forth in this Deed of Trust, or if any action or proceeding is commenced that materially affects City’s interest in the Property, including, but not limited to, default under any senior lienholder document, eminent domain, insolvency, code enforcement, arrangements or proceedings inv olving a bankrupt or decedent, foreclosure of any mortgage secured by the Property or sale of the Property under a power of sale of any instrument secured by the Property, City, at its option, without releasing Trustor from any obligation hereunder, may up on notice to Trustor, make such appearance, disburse such sums and take such action as is necessary to protect City’s interest, including, but not limited to, the purchase of insurance, disbursement of reasonable attorneys’ fees and entry upon the Property to make repairs. Any amounts disbursed by City pursuant to this Section, with interest thereon, shall become additional indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and City agree to other terms of payment, such amounts shall be payable upon notice from City to Trustor requesting payment thereof, and shall bear interest from the date of disbursement at the highest rate permissible under applicable law.
Nothing contained in this Section shall require City to incur any expense or take any action hereunder.
5. Inspection. The City may make, or cause to be made, reasonable entries upon the Property and inspections of the Security; provided that the City will give Trustor reasonable notice of inspection.
6. Hazard Insurance. Trustor shall keep the Property insured by a standard all -risk property insurance policy with endorsements for vandalism, malicious mischief, and special extended perils, in the full replacement value of the improvements, and with endorsements for increases in costs due to changes in code and inflation, with loss payable to City and any superior trust deed holder, as their interests may appear, and any other insurance required by the City.
The insurance carrier providing such insurance shall be licensed to do business in the State of California and may be chosen by Trustor, subject to approval by City. All insurance policies and renewals thereof shall be in a form acceptable to the City, and shall include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lien and the City as their interests may appear and in a form acceptable to the City. Trustor shall provide City with copies of all policies and renewals thereof, certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Trustor shall give prompt notice to the insurance carrier and the City or its designated agent. The City, or its designated agent, may make proof of loss if not made promptly by Trustor. The policies shall include an endorsement providing that City shall receive thirty (30) days’ advance written notice of the cancellation, expiration or
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4 termination or any material change in the coverage afforded by any of the insurance policies required under this Section.
If the Property is acquired by the City, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Property prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition, subject to the rights of the holder of any senior lien.
Renewal policies and any replacement policies, together with premium receipts satisfactory to the City, shall be delivered to the City at least thirty (30) days prior to the expiration of existing policies. Neither Trustee nor the City shall by reason of accepting, rejecting, approving or obtaining insurance incur any liability for the existence, nonexistence, form or legal sufficiency of such insurance, or solvency of any insurer for payment of losses. The application of proceeds pursuant to this Section shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
7. Awards and Damages. Subject to the rights of senior lienholders, all judgments, awards of damages, settlements and compensation made in connection with or in lieu of (a) taking of all or any part of or any interest in the Property b y or under assertion of the power of eminent domain, (b) any damage to or destruction of the Property or any part thereof by insured casualty, and (c) any other injury or damage to all or any part of the Property, are hereby assigned to and shall be applied to the restoration or repair of the Property (if applicable) or paid to the City. The City is authorized and empowered (but not required) to collect and receive any such sums and is authorized to apply them in whole or in part upon any indebtedness or obligation secured hereby, in such order and manner as the City shall determine at its option. Subject to the rights of senior lienholders, t he City shall be entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds of such insurance the amount of all expenses incurred by it in connection with any such settlement or adjustment.
All or any part of the amounts so collected and recovered by the City may be released to Trusto r upon such conditions as the City may impose for its disposition. Application of all or any part of the amounts collected and received by the City or the release thereof shall not cure or waive any default under this Deed of Trust. If the Property is ab andoned by Trustor, or if, after notice by City or its designated agent to Trustor that the condemnor or insurer offers to make an award or settle a claim for damages, Trustor fails to respond to City within thirty (30) days after the date such notice is mailed, City or its designated agent is authorized to collect and apply the proceeds, at City’s option, either to restoration or repair of the Property or to the sums secured by this Deed of Trust.
8. Maintenance. Trustor shall maintain the Property and all structures and landscaping thereon in good condition and repair. Trustor agrees to complete installation of landscaping as approved by the City, and to diligently maintain and care for installed landscaping, using generally accepted methods of cultivation and watering. Trustor shall not remove or demolish any building located on the Property, and agrees to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon to the extent that insurance proceeds are available for such restoration, and to pay when due all claims for labor performed and materials furnished therefor, and to comply with all laws
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5 affecting the Property or requiring any alterations or improvements to be made thereon. Trustor shall not commit or permit waste thereof, and shall not commit or permit any act upon the Property in violation of applicable laws. Trustor will comply with all applicable laws, ordinances and governmental regulations affecting the Property or re quiring any alteration or improvement thereof, and will not suffer or permit any violations of any such law, ordinance or governmental regulation, nor of any covenant, condition or restriction affecting the Property . If there arises a condition in contravention of this Section, and if the Trustor has not cured such condition within thirty (30) days after receiving a notice from City of such a condition, then in addition to any other rights available to City, City shall have the right (but not the obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property to recover its cost of cure.
9. Transfer. Trustor shall not transfer, lease, sell, assign, refinance, encumber or convey any interest in the Property without complying with all requirements of the Regulatory Agreement. The residential units constructed on the Property may only be rented in accordance with the Regulatory Agreement.
10. Assignment of Rents. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to City the rents, issues, revenue and profits of the Property. This is an absolute assignment and not an assignment for security only. Subject to the limitati ons on lease or rental of the Property as set forth herein and in the Regulatory Agreement, City hereby confers upon Trustor a license to collect and retain such rents, issues, revenue and profits, as they become due and payable prior to any Default hereun der. Upon the occurrence of any such Default, City may terminate such license without notice to or demand upon Trustor and without regard to the adequacy of any security for the indebtedness hereby secured, and may either in person, by agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property or any part thereof, and sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys’ fees, to any indebtedness secured hereby, and in such order as City may determine. City’s right to the rents, issues, revenue and profits of the Property does not depend upon whether or not City takes p ossession of the Property. The entering upon and taking possession of the Property, the collection of such rents, issues, revenue and profits, and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. If a Default occurs while City is in possession of all or part of the Property and/or is collecting and applying rents as permitted under this Deed of Trust, City, Trustee and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this Deed of Trust and at law or in equity, including the right to exercise the power of sale granted hereunder. Regardless of whether or not City, in person or by agent , takes actual possession of the Property, City shall not be deemed to be a “mortgagee in possession,” shall not be responsible for performing any obligation of the lessor under any lease, shall not be liable in any manner for the Property, or the use, occ upancy, enjoyment or operation of any part of it , and unless due solely to the willful misconduct or gross negligence of City, shall not be responsible for any dangerous or defective condition of the Property or any negligence in the management, repair or control of the Property.
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6 11. Default. An event of default (“Default”) shall arise hereunder upon the occurrence of any one or more of the following and the expiration of any applicable cure period:
(a) Trustor fails to complete construction of the Project as d efined in, and in accordance with the Loan Agreement;
(b) The sale, conveyance, encumbrance, refinance, assignment or other transfer of the Property or part thereof, including without limitation, the sale, lease, or rental of the Property or part thereof in violation of the Regulatory Agreement;
(c) An event of default arises under the Loan Agreement, the Note, or the Regulatory Ag reement and such default remains uncured following the expiration of any applicable cure period;
(d) Trustor fails to pay when due any sum payable pursuant to the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust;
(e) The Property is refinanced or encumbered in violation of the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust;
(f) Trustor fails to maintain insurance on the Property as required by the Loan Agreement, the Note, the Regulatory Agreement, and this Deed of Trust,
(g) Subject to Trustor’s right to contest the following charges, Trustor fails to pay prior to delinquency taxes or assessments due on the Property or fails to pay when due any other charge that may result in a lien on the Property, and Trustor fails to cure s uch default within twenty (20) days of date of delinquency, but in all events upon the imposition of any such tax or other lien;
(h) Trustor declares bankruptcy or makes an assignment of assets for the benefit of creditors, or an order for relief is entered under federal bankruptcy laws as to Trustor, or Trustor is adjudicated as insolvent or bankrupt pursuant to the provisions of any s tate or federal insolvency or bankruptcy, or Trustor consents to, acquiesces in, or attempts to secure the appointment of, any receiver for all or any substantial part of the Property;
(i) The occurrence of an event of default under any loan secured by th e Property and the continuance of such default beyond the expiration of all applicable cure periods such that the holder of such loan has the right to accelerate such loan.
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7 (j) Trustor fails to observe or perform any other covenant, condition, or agreement to be observed or performed by Trustor pursuant to the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust.
12. Remedies. Upon the occurrence of a Default, the giving of notice thereof and the expiration of any applicable cure period, City may, at its option, exercise any one or more of the following remedies:
a. Declare all of the sums payable under the Loan Agreement, the Note, and the Regulatory Agreement to be immediately due and payable without further demand.
b. Pursue the exercise of the power of sale provided under this Deed of Trust.
c. Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, enter upon, take possession thereof (or any part thereof) and of any o f the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom, or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the City shall be entitled to exercise every right and remedy provided under the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust, or by law upon the occurrence of any uncured breach.
d. Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof.
e. Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby.
f. Exercise any other remedy provided by law or in equity.
13. Acceleration and Sale.
(a) Notice of Default. Upon Trustor’s breach of any covenant or agreement of Trustor under the Loan Agreement, the Note, the Regulatory Agr eement or this Deed of Trust, City shall mail notice to Trustor as provided in Section 22 hereof specifying: (i) the nature of the breach; (ii) the action required to cure such breach; (iii) a date no less than thirty (30) days from the date the notice is mailed to Trustor by which such breach must be cured or such shorter cure period as may b e provided in the Loan Agreement, the Note, the Regulatory Agreement, or this Deed of Trust; and (iv) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the Loan and the sale of the Property. The notice shall further inform Trustor of Trustor’s right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Trustor to acceleration and sale. If the breach is not cured on or before the date specified in the notice, City at City’s option may declare all of
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8 the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and/or pursue any other remedy provided herei n or available under law. City shall be entitled to collect from the Trustor, or from the proceeds of the sale of the Property, all reasonable costs and expenses incurred in pursuing the remedies provided hereunder, including, but not limited to, reasonable attorneys’ fees.
If a non-monetary default is not reasonably capable of being cured within thirty (30) days, the City, in its sole and absolute discretion, may grant the Trustor such additional time as is reasonably necessary to cure the default provid ed that the Trustor (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible.
Notwithstanding the cure periods established in this Section, in no event shall the Cit y be precluded from sooner exercising any remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the first notice of default or delinquency is given.
(b) Trustor’s Right to Reinstate. Notwithstanding City’s acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of the judgment enforcing this Deed of Trust if: (a) Trustor pays City all sums which would be then due under this Deed of Trust, the Loan Agreement, the Note, and the Regulatory Agreement had no acceleration occurred; (b) Trustor pays all reasonable expenses incurred by City and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, incl uding, but not limited to, reasonable attorneys’ fees; (c) Trustor cures all breaches of any other covenants or agreements of Trustor set forth in the Loan Agreement, the Note, the Regulatory Agreement, and this Deed of Trust; and (d) Trustor takes such action as City may reasonably require to assure that the lien of this Deed of Trust, City’s interest in the Property and Trustor’s obligation to pay the sums and perform the obligations secured by this Deed of Trust shall continue unimpaired.
Upon such paym ent and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred.
(c) Sale. After delivery to Trustee of a Notice of Default and Demand for Sale and after the expiration of such time and the giving of such notice of default and sale as may then be required by law, and without demand on Trustor, Trustee shall sell the Property at the time and place of sale fixed by it in said notice of sale, at public auction to the highest bidder for cash in lawful money of the United States of America, payable at time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement. Any person, including Trustor, Trustee or the City, may purchase a t such sale. Upon such sale by Trustee it shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty expressed or implied. The recitals in such deed of any matters or facts shall be conclusive proof of t heir truthfulness. Upon sale by Trustee and after deducting all costs, expenses and fees of Trustee, Trustee shall apply the proceeds of sale to the payment of the indebtedness hereby secured, any advances made or costs
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9 or expenses paid or incurred by City under this Deed of Trust, any indebtedness evidenced by any other instrument hereby secured, and all other sums then secured hereby, including without limitation, interest as provided in the Loan Agreement, the Note, and the Regulatory Agreement, in such order as the City shall direct; and then the remainder, if any, shall be paid to the person or persons legally entitled thereto.
14. Remedies Cumulative; No Waiver . No exercise of any right or remedy by the City or Trustee hereunder shall constitute a waive r of any other right or remedy herein contained or provided by law, and no delay or forbearance by the City or Trustee in exercising any such right or remedy hereunder shall operate as a waiver thereof or preclude the exercise thereof in any continued or s ubsequent default hereunder. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independent ly or successively. No sale of the Property, forbearance on the part of City, or extension of the time for payment of the indebtedness hereby secured shall operate to release, discharge, waive, modify, change or affect the liability of Trustor either in whole or in part.
15. Indemnity. Trustor agrees to defend, indemnify, and hold the City and its elected and appointed, officers, officials, employees, agents, contractors and consultants harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys’ fees that they may incur as a direct or indirect consequence of: (i) Trustor’s failure to perform any obligations as and when required by the Loan Agreement, the Note, the Regulatory Agreement, and this Deed of Trust; or (ii) the failure at any time of any of Trustor’s representations or warranties herein or in the Loan Agreement, the Note, or the Regulatory Agreement to be true and correct.
16. Due on Transfer of the Property. If the Trustor sells, conveys, assigns, transfers, alienates, or otherwise disposes of its interest in the Property, either voluntarily or involuntarily or by operation of law, in part or in full, in violation of the Loan Agreement, the Note, or the Regulatory Agreement, the City may, at its option, require immediate payment in full of all sums due under the Loan Agreement and the Note.
17. Reconveyance. Upon the termination or expiration of the Regulatory Agreement and repayment of all sums due and owing under the Note , and in accordance with the terms therein, City shall record a release and reconveyance of this Deed of Trust.
18. Trustee Substitution. The City, at its option and without prior notice, may from time to time, by written instrument, remove the Trustee and appoint a successor trustee pursuant to a written instrument executed by City and duly acknowledged and recorded in the Official Records of San Mateo County. Such instrument shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the predecessor Trustee, succeed to all the title, estate, power and duties conferred upon the Trustee herein and by applicable law. Such instrument shall set forth the name of the Trustor, the original Trustee and the Beneficiary hereunder, the book and page where this Deed of Trust is recorded, and the name and address of the new Trustee.
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10 19. City’s Rights to Release. Without affecting the liability of any person for payment of any indebtedness hereby secured (other than any person released pursuant hereto), including without limitation any one or more endorsers or guarantors, and without affecting the lien hereof upon any of the Property not released pursuant hereto, at any ti me and from time to time without notice: (a) City may in its sole discretion: (i) release any person now or hereafter liable for payment of any or all such indebtedness, (ii) extend the time for or agree to alter the terms of payment of any or all of such indebtedness, and (iii) release or accept additional security for such indebtedness, or subordinate the lien or charge hereof; and (b) Trustee, acting pursuant to the written request of the City, may reconvey all or any part of the Property, consent to the making of any map or plot of the Land, join in granting any easement thereon, or join in any extension agreement of any agreement subordinating the lien or charge hereof.
20. Subordination. The City agrees that it will not withhold consent to reasonable requests for subordination of this Deed of Trust to deeds of trust provided for the benefit of third- party lenders providing construction and/or permanent financing for the Project approved by City in accordance with the Loan Agreement, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.
21. Request for Notice. City requests that copies of any notice of default and notice of sale affecting the Property be sent to City at its address set forth herein. City shall record a Request for Notice of Default and Sale.
22. Notices. All notices, requests, demands, reports or other communications regarding this Deed of Trust shall be in writing and delivered: (i) personally; or (ii) by independent, reputable, overnight commercial courier; or (iii) by deposit in the United States mail, postage and fees fully prepaid, registered or certified mail, with return receipt reque sted, and addressed as follows, or to such other address as specified in written notice delivered to the parties pursuant to this Section:
To Trustor: Cherry Street Commons L.P.
c/o Eden Housing Inc.
22645 Grand Street
Hayward, California 94541
Copy to: HIP Housing Development Corporation, Inc.
800 South Claremont Street, Suite 210
San Mateo, California 94402
To City: City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attention: City Manager
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11 Any notice that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of delivery thereof.
23. Successors Bound . The terms of this Deed of Trust shall be binding upon the Trustor and the Trustor’s heirs, legatees, devisees, administrators, executors, successors and assigns.
24. Attorneys’ Fees and Costs. If any legal action is filed to enforce or interpret this Deed of Trust, or the interpretation or enforcement thereof, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees, costs and expenses incurred therein.
25. No Waiver. Any waiver of any term or provision of this Deed of Trust must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Deed of Trust or applicable law.
No failure or delay by City at any time to require strict performance of any provision of this Deed of Trust or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.
26. No Third -Party Beneficiaries. This Deed of Trust shall not benefit or be enforceable by any person or entity except the City, the Trustee, and the Trustor and their respective successors and assigns.
27. Entire Agreement. This Deed of Trust, together with the Loan Agreement, the Note, and the Regulatory Agreement, sets forth the entire understanding between Trustor and the City with respect to the subject matter hereof.
28. Amendments. This Deed o f Trust shall not be amended except by a written instrument duly executed by Trustor and Beneficiary and recorded in the Official Records of San Mateo County.
29. Severability. If any provision of this Deed of Trust shall be held by a court of competent juri sdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Deed of Trust shall not be affected or impaired thereby.
30. Controlling Law and Venue. The terms of this Deed of Trust shall be interpreted under the laws of the State of California without regard to principles of conflicts of law. This Deed of Trust was entered into and is to be performed in the County of San Mateo, which is the exclusive venue for any action or dispute arising out of this Deed of Trust.
31. Captions and Gender. All captions and headings in this Deed of Trust are for the purposes of reference and convenience and shall be disregarded for all other purposes, including the construction or enforcement of any of provisions thereof. Whenever the context so requires,
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12 the masculine gender includes the feminine and/or neuter, and the singular number includes the plural.
32. Joint and Several. The obligations of each signatory to this Deed of Trust shall be joint and several.
33. Time of the Essence. Time is of the essence with regard to all matters contained in this Deed of Trust.
SIGNATURES ON FOLLOWING PAGE.
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13 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above.
TRUSTOR:
Cherry Street Commons, L.P.
a California limited partnership
By: Eden Cherry Street LLC
a California limited liability company,
its co-general partner
By: Eden Investments, Inc.
a California nonprofit public benefit corporation, its
sole member/manager
By: ____________________________
Andrea Osgood,
VP of Real Estate Development
By: HIP Housing Development Corporation, Inc.,
a California nonprofit public benefit corporation,
its co-general partner
By: ____________________________
Name: Kate Comfort Harr
Its: Executive Director
SIGNATURES MUST BE NOTARIZED.
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14 ACKNOWLEDGMENT
State of California )
County of San Mateo )
On , 20__, before me, ___________________________________, (Name of 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 Ca lifornia that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
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15 ACKNOWLEDGMENT
State of California )
County of San Mateo )
On , 20__, before me, ___________________________________, (Name of Notary Public)
personally appeared ___________________________________, who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
A notary public or other officer completing this
certificate verifies only the iden tity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
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16 Exhibit A
PROPERTY DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SAN
CARLOS, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
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FINAL
January ___, 2021
VIA E-MAIL
Kate Comfort Harr
Executive Director
HIP Housing
800 South Claremont Street, #210
San Mateo, CA 94402
Re: Cherry Street Housing Development Letter of Intent
Dear Ms. Harr:
The purpose of this Letter of Intent (“LOI”) is to provide the framework in which HIP Housing, its selected development partner Eden Housing, and the City of San Carlos (individually, a “Party” and collectively, the “Parties”) intend to work together in connection with the development of an affordable housing development at 1232-1244 Cherry Street. Ultimately, the Parties intend for the terms of this LOI to be incorporated into a Development and Disposition Agreement (“DDA”) to provide the specific terms and conditions for disposition of certain City-owned real property, the development of the Project, and financial contributions from the City for hard and soft construction costs or other legally-permitted uses as the Parties may agree.
1. Parties Developer means HIP Housing and Eden Housing, along with wholly-controlled affiliates of either Party or a newly formed entity organized for the purposes of developing the Project.
City means the City of San Carlos.
2. Property City Property means the approximately 12,500 square foot City-owned property at 1232 Cherry Street.
HIP Property means the HIP Housing-owned property at
1244 Cherry Street.
3. Project The Project shall consist of at least 25 dwelling units developed on the Property. The Project shall be no more than five stories tall.
4. Affordability
Requirements
All units, except for one manager’s unit, will be required to be restricted for rents that are affordable up to moderate income households earning up to 120% of the Area
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Median Income. A monthly affordable rent shall not
exceed 1/3 of 1/12 of 110% the Area Median Income.
Nothing in this Section precludes deeper affordability as may be required by different funding sources, the City’s Affordable Housing Programs (Chapter 18.16 of the
Municipal Code), or as the Parties may otherwise agree.
5. DDA Disposition of the City Property will occur pursuant to the terms of a DDA that defines preconditions for land transfer and the Parties’ obligations with respect to the financing and development of the Project.
The City shall provide a draft DDA for the Developer’s
review.
6. Property
Disposition
The HIP Property will be contributed to the Developer
under a combination of seller carryback loan plus
reasonable consideration equal to the HIP Property’s fair market value.
The City Property will be contributed to the Developer as a transfer of fee simple ownership pursuant to the terms and conditions of the DDA, subject to a use restriction that requires the property be used as affordable housing in
perpetuity. The use restriction shall also include a remedy that would revert the City Property to the Housing Authority if the use condition is violated following an appropriate notice and cure period; provided, however, that this
remedy (though not the use restriction itself) may be
subject to subordination to the Project’s senior lender and/or tax credit investor’s interest in the City Property in connection with closing on the Project’s construction
financing.
The contribution of City Property shall be recognized as part of the City’s financial contribution to the Project to be documented as a loan equal to the appraised value of the City Property.
7. Other City
Contributions
In addition to the City Property, the City may provide
predevelopment loans and/or loans for the construction of the Project. Subject to mutual agreement, City
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contributions may also take the form of waivers or
reductions in project fees.
Final contribution amounts, if any, will be determined in connection with the DDA. The City may, at its discretion, approve and provide predevelopment funding prior to a
DDA.
8. Entitlements Developer shall be responsible for obtaining all governmental approvals necessary for the Project.
City shall, at no cost or expense to City, reasonably
cooperate with the submittal of entitlement applications in its role as owner of the City Property.
9. Inspection Prior to the effective date of the DDA, each Party will have had the opportunity to enter onto the other Party’s property to conduct such inspections and testing thereon as are, in that party’s sole discretion, necessary to reasonably
determine the condition of the properties.
Any invasive testing or borings that Developer may desire to undertake on the City Property shall be performed only after execution of the DDA or subject to a written
agreement with the City documenting compliance with City insurance requirements and indemnifying City from losses caused by such testing.
Each Party is responsible for their own costs relating to studies and other due diligence requirements.
10. Title The Parties shall obtain updated preliminary title reports, including copies of all title exceptions and complete their respective reviews of title to the HIP Property and City Property prior to entering into the DDA.
The DDA shall identify the approved condition of title to each of the HIP Property and City Property.
11. Project
Schedule
Subject to refinement in the DDA, Developer shall submit its entitlement application within three (3) months after City approval and disbursement of predevelopment funds
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preparation and approval of any adjustments or additions to City property to be contributed.
The City shall endeavor to schedule hearings to take final action on the entitlements and the DDA within three
months after the entitlement application is deemed
complete.
Developer shall apply for tax credits in the first feasible application round once sufficient soft financing is
committed to fill the projected financing gap between
estimated project costs and anticipated tax credit
financing, and condemnation proceedings for the City
Property are complete.
Construction loan closing and commencement will be the
later of approximately six (6) months from the date of tax credit allocation award and the completion of the City’s condemnation proceedings for the City Property.
12. Relocation Occupants of the HIP Property are expected to be relocated in advance of Project construction start.
Developer shall provide notice to incoming tenants so that relocation benefits do not accrue to new tenants of the HIP Property.
Developer shall, at its sole cost and expense, prepare a relocation plan for existing tenants of the HIP Property.
Developer shall provide City with access to its relocation consultant and shall provide the City with the opportunity to review and approve or disapprove of the relocation study prior to any agreement with current tenants of the HIP
Property.
13. Other
Developer
Responsibilities
Developer shall be solely responsible for designing the Project, pursuing and obtaining all necessary
governmental approvals for the construction and operation of the Project, applying for and obtaining financing for the Project, constructing the Project, and operating the Project after completion of construction.
14. Brokers There are no brokers involved in this transaction and no commission shall be due.
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15. Reservation of
Discretion
The City is entering into this Letter of Intent and
negotiating the DDA in its capacity as the owner of the City Property, and it reserves full discretion for its review of the Project under its regulatory authority, including the option to approve, deny, or conditionally approve the Project.
This discretion includes the requirements for compliance with CEQA and, to the extent applicable, NEPA. The City will take no action to approve the Project or the DDA
without first making a determination that it has fully
complied with CEQA and, if applicable, NEPA.
16. Good Faith
Negotiations
The Parties agree to negotiate the DDA terms in good faith while this Letter of Intent is in effect.
17. Term This Letter of Intent’s terms shall become effective as of January __, 2021.
This Letter of Intent shall automatically terminate on the earlier of the execution of the DDA or November 30, 2021 unless the Parties otherwise agree in writing.
The Parties acknowledge that apart from the agreement to negotiate in good faith throughout the term of this Letter of Intent, this Letter does not and is not intended to contractually bind the Parties, and is only an expression of the basic conditions to be incorporated into a binding DDA. This Letter does not require either Party to proceed to the completion of a binding DDA. The Parties shall not be contractually bound unless and until they enter into a formal, written DDA, which must be in form and content satisfactory to each Party and to each Party’s legal counsel, in their sole discretion and approved by the City Council. No Party may rely on this Letter as creating any legal obligation of any kind.
If you are in agreement with these general terms, please sign and return a copy of this Letter to the undersigned at your earliest convenience.
Sincerely,
Martin Romo
Economic Development & Housing Manager
City of San Carlos
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The above Letter reflects our mutual understanding and sets forth the basis for proceedings to negotiate a DDA as outlined above.
CITY
City of San Carlos
By:
Name:
Its:
____________________, 2021
DEVELOPER
HIP Housing Development Corporation,
a California nonprofit public benefit
corporation
By:
Name: Ka te Comfort Harr
Its: Exe cutive Director
____________________________, 2021
Eden Housing, Inc.,
a California nonprofit public benefit
corporation
By:
Name: Andrea Osgood
Its: Vice President
____________________________, 2021
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January 26, 2021
January 26, 2021
January 26, 2021
Al Savay
Community Development Director
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SF #4822-8008-3923 v3
P
REDEVELOPMENT LOAN AGREEMENT
THIS PREDEVELOPMENT LOAN AGREEMENT (this “Agreement” or “Predevelopment Loan Agreement”) is entered into effective as of ______________, 2021 (“Effective Date”) by and between the City of San Carlos, a California municipal corporation (“City”) and Cherry Street Commons, L.P., a California limited partnership (“Borrower”). The City and the Borrower are collectively referred to herein as the “Parties.”
RECITALS
A. The City has initiated condemnation proceedings for, and will be the owner of, the real property located at 1232 Cherry Street in San Carlos, San Mateo County, California, which is more particularly described in Exhibit A-1 to this Agreement; the City also owns real property northwest of 1244 Cherry Street, which is more particularly described in Exhibit A-2 to this Agreement (collectively, the “City Property”).
B. HIP Housing Development Corporation, a California nonprofit public benefit corporation (“HIP”), a co-general partner of the Borrower, is the owner of, the real property located at 1244 Cherry Street in San Carlos, San Mateo County, California, which is more particularly described in Exhibit B to this Agreement (the “HIP Property”).
C. The City selected the Borrower to construct a residential project on the Property that will consist of at least 25 dwelling units together with parking and related improvements (collectively, the “Project”).
D. The Parties negotiated and executed a Letter of Intent dated January 26, 2021 (as may be amended from time to time, the “LOI”). The LOI defines the framework under which the Parties will negotiate the terms for the potential transfer of the City Property to the Borrower to enable development of the Project, subject to the terms and conditions of a Development and Disposition Agreement (“DDA”) and the outcome of the City’s land use entitlement process.
E. Until such time at the Borrower has submitted a formal application for entitlements and received City approval for such entitlements and associated environmental review as required by the California Environmental Quality Act (“CEQA”), which approvals may be granted or denied in the City’s sole discretion, the City will not have committed to approving the Project or disposing of the City Property.
F. The Borrower will incur a number of predevelopment expenses (“Predevelopment Costs”) in connection with assessing the Project’s feasibility, designing the Project, and applying for governmental approvals necessary to construct the Project.
G. Borrower has requested funding from the City to pay for a portion of the Predevelopment Costs, and upon satisfaction of the conditions precedent set forth in this Agreement and evidenced by a Note and an Assignment Agreement (as each are defined below), the City has agreed to provide a loan to Borrower with a total principal amount not to exceed One Million Dollars ($1,000,000.00) (the “Predevelopment Loan”).
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H. City and Borrower acknowledge that this Agreement addresses funding for predevelopment due diligence, architectural and design services, and related work, and is one of the types of early-stage agreements often entered into before a lead agency decides on the specifics of a project. The Parties further acknowledge that: (1) viewed in light of all the surrounding circumstances, the preliminary nature of this Agreement does not commit City as a practical matter to approve the proposed Project; and (2) the specific parameters of the Project are unknown at this stage, and therefore, it is premature to conduct a meaningful analysis and environmental review of the Project under CEQA. The Parties agree that once Borrower submits the proposed Project to City with a formal application, the CEQA environmental review will be performed.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
ARTICLE 1
LOAN PROVISIONS.
1.1 Incorporation of Recitals. The Parties acknowledge the truth of the foregoing recitals which are hereby incorporated into this Agreement by this reference.
1.2 Predevelopment Loan. The City agrees to loan Borrower, and Borrower agrees to borrow from and repay to the City, funds in the maximum principal amount of One Million Dollars ($1,000,000.00), according to the terms and conditions set forth in this Agreement:
1.2.1 Loan Proceeds. The proceeds of the Predevelopment Loan (the “Loan Proceeds”) shall not be disbursed unless and until Borrower has supplied the City with such documentation as the City deems necessary to substa ntiate the payment of some or all of the Predevelopment Loan for eligible uses, as set forth in Section 1.2.2, below.
1.2.2 Funding Disbursement. After Borrower's satisfaction of the conditions set forth in Section 3.4 below, the Predevelopment Loan shall be f unded in accordance with the following requirements:
(a) Following satisfaction of the conditions set forth herein, the City shall disburse funds to Borrower up to the loan amount, for the sole purpose of paying for those Predevelopment Costs set forth in Exhibit C.
(b) The funds will be disbursed to Borrower only upon a request for disbursement by Borrower and upon the City's approval of invoices submitted by Borrower delineating work satisfactorily performed. Borrower shall submit to the City a written request for disbursement of a specific dollar amount. The City shall review such request and the supporting documentation and, within ten (10) business days from receipt thereof, shall either (i) approve such request and make the requested disbursement, or (ii) disapprove all or a portion of such request, and notify Borrower in writing of the reason for such disapproval, in which case Borrower shall modify its request to correct the stated deficiency and repeat the process outlined above.
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(c) Borrower's request(s) for disbursement under this Predevelopment Loan Agreement and actual disbursement by the City shall be completed no later than the expiration or termination of this Agreement.
(d) Nothing herein shall be deemed to require disbursement of the full amount of the Predevelopment Loan if the requirements above are not satisfied.
1.3 Term and Termination; Loan Forgiveness.
1.3.1 Term. The term of this Agreement shall begin on the Effective Date, and shall expire on the earlier of (i) March 31, 2022; and (ii) the date upon which the City and the Borrower execute a DDA that incorporates the obligation to repay the Predevelopment Loan subject to Section 1.3.3 hereunder. In accordance with Section 1.5 herein, it is contemplated that the Predevelopment Loan will be converted to long term permanent financing if the Project and DDA are approved, and that in accordance therewith, the term of the Predevelopment Loan would be extended to 55 years from Project permanent financing conversion.
1.3.2 Termination. City shall have the right to terminate this Agreement upon Borrower’s default under this Agreement and failure to cure within the applicable cure period specified in Section 5.1. If City terminates this Agreement pursuant to this Section, or if this Agreement expires without the Parties having executed a DDA, City shall be entitled to exercise its rights under the Assignment Agreement, and Borrower shall promptly convey to City all agreements, plans, specifications, reports and studies financed by the Loan Proceeds pursuant to this Agreement.
1.3.3 No Fault Termination. If: (i) the City Council does not approve the DDA or the Project for any reason, (ii) Borrower determines, at any time prior to the date acquisition of the Property and/or the date Project construction financing is required to close under the DDA, that the Project is not feasible for any reason despite its good faith efforts; or (iii) if this Agreement or, if applicable, the DDA is otherwise terminated without an uncured Borrower default, City shall forgive the balance of the Predevelopment Loan, and Borrower shall not be obligated to repay the funds disbursed pursuant to this Agreement; provided however, City shall be entitled to exercise its rights under the Assignment Agreement.
1.4 Interest. From the date of initial disbursement of the Predevelopment Loan proceeds to Borrower, the unpaid principal balance on the Predevelopment Loan shall accrue simple interest at the rate of three percent (3%) per annum. Principal and accrued interest, if any, shall be due and payable following termination of this Agreement unless forgiven in accordance with Section 1.3.3 or rolled over and assumed in accordance with Section 1.5. Principal and interest may be prepaid in whole or in part at any time, and from time to time, without notice or penalty.
1.5 Amended and Restated Loan Agreement. If, at the conclusion of the development and design review process, the City Council approves a DDA and the Project, then in connection with the DDA the City and Borrower will enter into loan and regulatory agreements addressing disbursement and use of the balance of City funds reserved for the construction phase of the Project. The Borrower will execute an Amended and Restated Loan Agreement in form DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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approved by City pursuant to which the amounts disbursed under this Agreement will be included as components of the total amount of the construction/permanent loan for the Project.
If the Project and DDA are approved, the terms for repayment of the funds disbursed pursuant to this Agreement and the balance of the construction/permanent loan will be determined during the development and design review process and will be stated in the loan documents to be executed in connection with City’s construction/permanent loan for the Project.
ARTICLE 2
LOAN SECURITY.
2.1 Promissory Note. The Predevelopment Loan shall be evidenced by a promissory note (the "Note") executed by Borrower, in favor of the City in the form attached as Exhibit D, which Note shall be executed and delivered by Borrower to the City concurrently herewith. The Note shall evidence the repayment obligations by Borrower of the Predevelopment Loan.
2.2 Assignment Agreement. The Predevelopment Note shall be secured by the assignment to City of Borrower’s interests in and rights to any and all architectural agreements, contracts, plans, specifications, reports, and studies relating to the Property or the Project that will be financed with Loan Proceeds pursuant to an assignment agreement substantially in the form attached to this Agreement as Exhibit E that Borrower shall execute and deliver to City concurrently with the execution of this Agreement. In accordance with Section 1.5 herein, it is contemplated that the Predevelopment Loan will be converted to long term permanent financing if the Project and DDA are approved, and that in accordance therewith, upon acquisition of the Property, the Predevelopment Loan will be secured by a deed of trust against the Property.
2.3 Non-Recourse Provisions. The City agrees that it will not seek to obtain payment from or a personal judgment against Borrower for the payment of any amounts due under the Predevelopment Note or under this Agreement following uncured Borrower default or Borrower’s inability to develop the Project. The City’s sole recourse for payment of any amounts due under the Note or this Agreement will be limited to the exercise of the City’s rights under the Assignment Agreement, regardless of the then-current value of such rights; provided, however, that this Section does not limit in any way the City’s right to recover losses incurred by the City as a result of Borrower’s fraud, willful misrepresentation or misapplication of funds.
ARTICLE 3
USE AND DISBURSEMENT OF LOAN PROCEEDS.
3.1 Use Requirements. The Loan Proceeds shall be used solely and exclusively for predevelopment costs for the Project as set forth in Exhibit C and such other costs related to the Project as the City may approve in writing in its sole discretion. As more particularly described in Exhibit C, Borrower's predevelopment activities shall include the preparation of environmental studies, engineering reports, architectural plans, and financial analyses necessary to apply for construction and permanent financing for the Project.
3.2 Change in Predevelopment Costs. Borrower shall notify the City in a timely manner of any changes to the Predevelopment Costs to be performed under this Predevelopment Loan Agreement. A written authorization by the City Manager must be DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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obtained to make any changes to the Predevelopment Costs to be reimbursed under this Predevelopment Loan Agreement.
3.3 Schedule. Borrower agrees to work diligently and provide services, material, and information as needed to keep the Project on schedule in accordance with the Project Schedule attached as Exhibit C, as such may be periodically updated by City in consultation with Borrower. Borrower agrees to abide by the Project Schedule as such may be revised, subject to force majeure delays. Notwithstanding the foregoing, and for the avoidance of doubt, if Borrower is unable to comply with the Project Schedule despite its good faith best efforts, such failure shall not be a default hereunder.
3.4 Conditions Precedent to Disbursement of Funds. City’s obligation to disburse the Loan Proceeds is conditioned upon satisfaction of all of the following conditions:
3.4.1 Borrower’s execution and delivery to the City of this Agreement, the Note and the Assignment Agreement;
3.4.2 Borrower’s delivery to the City of consents to the assignment of agreements, plans, specifications, studies, reports and other work product prepared for the Project, executed by the Project architect and the other parties preparing such plans, specifications, studies, reports and other work product in the form attached as an exhibit to the Assignment Agreement;
3.4.3 Borrower’s delivery to the City of evidence of insurance coverage in the form and in such amounts as set forth in Article 4; and
3.4.4 Borrower’s delivery to the City of certified copies of Borrower’s articles of incorporation and bylaws.
3.5 No Obligation to Disburse Proceeds Upon Default. Notwithstanding any other provision of this Agreement, the City shall have no obligation to disburse any portion of the Loan Proceeds to Borrower following:
3.5.1 the failure of any of Borrower’s representations and warranties set forth in this Agreement to be true and correct in all material respects;
3.5.2 termination of this Agreement by mutual agreement of the Parties; or
3.5.3 the uncured occurrence of an Event of Default under this Agreement, the Predevelopment Note, or the Assignment Agreement.
3.6 Borrower's Representations and Warranties. Borrower represents and warrants to the City that:
3.6.1 All approvals have been obtained in connection with Borrower's execution of this Agreement, and the Note, and, all related agreements and documents, to the effect that no breach of or acceleration of performance under any agreement or document to which Borrower is a party will result from such execution;
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3.6.2 Funds advanced by the City pursuant to this Predevelopment Loan Agreement are advanced wholly for the benefit of Borrower;
3.6.3 Borrower is a duly organized limited partnership, validly existing and in good standing under the laws of the State of California. Borrower has all requisite power and authority to acquire the Property, to develop, own and operate the Project, to carry on its business as now conducted, and to execute, deliver and perform its obligations under this Agreement, the Note, and the Assignment Agreement;
3.6.4 The execution, delivery and performance of this Agreement, the Note, and the Assignment Agreement have been duly authorized by Borrower, and this Agreement, the Note, and the Assignment Agreement, when duly executed and delivered, will constitute the valid and binding obligations of Borrower enforceable in accordance with their respective terms.
Borrower’s execution of this Agreement, the Note, and the Assignment Agreement and performance thereunder will not result in a breach of or constitute a default under any agreement, indenture or other instrument to which Borrower is a party or by which Borrower may be bound.
The persons executing the Note, this Agreement, and the Assignment Agreement on behalf of Borrower have been duly authorized to do so;
3.6.5 There are no pending or, to the best of Borrower’s knowledge, threatened actions or proceedings before any court or administrative agency which may adversely affect the financial condition or operation of Borrower or any of its members or managers or Borrower’s ability to carry out the obligations of Borrower under this Agreement. Borrower is not the subject of any action under federal or state Bankruptcy Law;
3.6.6 Borrower agrees to use said funds solely to pay for the Predevelopment Costs; and
3.6.7 Borrower is responsible for all obligations created by this Agreement and the Predevelopment Loan, including, without limitation, the repayment of all principal and interest, if any, which may become due and payable under this Agreement, the Note, and any other instruments provided for herein. No creditor or other person shall have any right or action against City on account of any debts, obligations, or liabilities of Borrower.
3.7 No Partnership or Joint Venture. The relationship between the City and Borrower created by this Predevelopment Loan Agreement shall not be one of partnership or joint venture, but rather shall be one of lender and borrower.
3.8 Usury. If a court of competent jurisdiction determines, by way of final, unappealable order or judgment, that the interest rate charged under the Note is usurious, then such rate shall automatically and retroactively be reduced to the maximum rate allowed under applicable law.
3.9 Conflict of Interest Prohibited. Neither Borrower nor an employee, officer, director, partner or member of Borrower, or immediate family member of any preceding, shall have served as an elected officer, an employee, or a City or City board, committee or commission member, who has directly or indirectly influenced the making of this Agreement.
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In accordance with Government Code Section 1090 and the Political Reform Act, Government Code section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of the Borrower, or immediate family member of any of the preceding, shall make or participate in a decision, made by the City, the City or a City or City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Borrower.
Interpretation of this section shall be governed by the definitions and provisions used in the Political Reform Act, Government Code section 87100 et seq., its implementing regulations manual and codes.
3.10 Audit. The City may conduct an audit of Borrower's financial, performance and compliance records maintained in connection with Borrower's obligations under this Agreement and the Note. In the event of such audit, Borrower's employees shall make all such financial, performance and compliance records available to the City. City agrees to provide Borrower an opportunity to discuss and respond to any findings before a final audit report is filed.
3.11 Non-Discrimination. Borrower hereby agrees to take steps to ensure that the Borrower, as well as any person who contracts with the Borrower, shall not, on the basis of race, color, religion, ancestry, national origin, age, sex, pregnancy, marital status, disability, sexual orientation, or AIDS be excluded from participation in the development, leasing and/or sale of the Property or the Project.
ARTICLE 4
INSURANCE PROVISIONS.
4.1 Insurance Coverage. The Borrower shall maintain the following insurance coverage throughout the Term and provide evidence satisfactory to the City of such coverage:
4.1.1 Worker's Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident.
4.1.2 Comprehensive General Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverage for Contractual Liability, Person Injury, Broad form Property Damage, Products and Completed Operations to cover any claims arising out of Borrower's performance under this Agreement.
4.1.3 Comprehensive Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combines single limit for Bodily Injury and Property Damage, including coverage for owned, non-owned and hired vehicles, as applicable.
4.1.4 If in connection with the use of the Predevelopment Loan funds, death, serious personal injury, or substantial property damage occurs, Borrower shall immediately notify the City. Borrower shall promptly submit to the City a written report, in such form as may DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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be required by the City, of all accidents which occur in connection with this Agreement. This report shall include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of Borrower's contractor or subcontractor, if any; (3) name and address of Borrower's liability insurance carrier; and (4) a detailed description of the accident and whether any of the City's equipment, tools or material were involved.
4.1.5 All insurance policies shall name the City as an additional insured and loss payee, and shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said policy except upon thirty (30) days prior written notice to the City. All insurance shall be evidenced by a Certificate of Insurance and shall be approved by the City Manager or appropriate designee. If Borrower employs any person, it shall carry workers compensation insurance and shall provide a certificate of insurance to the City. Said insurance shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance except upon thirty (30) days prior written notice to the City.
Borrower shall forward acceptable Certificates of Insurance to the City Manager, or appropriate designee, prior to the first disbursement of Predevelopment Loan proceeds.
ARTICLE 5
DEFAULT AND REMEDIES.
5.1 Borrower Default. The occurrence of one or more of the following events shall constitute a default under this Agreement, and City shall thereupon be entitled, at its option, to declare all indebtedness referred to in this Agreement immediately due and payable and City shall be entitled to all legal recourse against Borrower and to pursue and enforce, either successively or concurrently, all rights and remedies set forth in this Agreement or any collateral instrument held by City or accruing to City by law, and such other rights and remedies as a lender may have, default being:
5.1.1 Failure of Borrower to perform any of the covenants or agreements on its part contained in this Agreement or in any collateral instrument made by Borrower in favor of City with respect to the loan evidenced by this Agreement; or the intentional or unintentional misrepresentation of any statement or warranty made by this Predevelopment Loan Agreement; or
5.1.2 The filing of a complaint for receivership against Borrower, or the filing of a voluntary or involuntary petition for bankruptcy or for re-organization by the Borrower (unless such complaint or petition be released, discharged or stayed within forty five (45) days of such filing); or if Borrower shall become insolvent or make a general assignment for the benefit of creditors or consent to the appointment of a receiver of all or any of its assets, or voluntarily suspends its usual business.
City shall advise Borrower in writing of any default under this Section and may deliver notices of default to Borrower personally, by certified mail or by registered mail. Borrower shall have thirty (30) days from the date of the receipt of the notice to cure such default, except in a case where a default is not susceptible to cure within thirty (30) days, and the Borrower initiates cure within the thirty (30) day period and diligently pursues the cure proceedings. In this event, DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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Borrower shall have such additional time as the City determines is reasonably necessary to complete cure of the default.
5.2 Default by City.
5.2.1 The failure of City to perform any of its obligations under this Agreement shall entitle Borrower to all legal recourse against the City and to pursue and enforce either successively or concurrently, all rights and remedies to which it may have.
5.2.2 Borrower shall advise the City in writing of any default under this Section and the Borrower may deliver notices of default to the City personally or by certified or registered mail. The City shall have thirty (30) days from the date of receipt of the notice to cure the default, except in a case where a default is not susceptible to cure within thirty (30) days, and the City initiates cure within the thirty (30) day period and diligently pursues the cure proceedings. In this event, the City shall have such additional time as Borrower determines is reasonably necessary to complete cure of the default.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Conformity with Law and Safety.
6.1.1 Borrower shall comply with applicable laws, ordinances, codes and regulations of governmental agencies, including federal, state, municipal and local governing bodies, having jurisdiction over this Agreement or any part hereof, and all applicable federal, state, municipal and local safety regulations.
6.1.2 Borrower agrees to indemnify and save City harmless from any and all liability, fines, penalties and consequences arising out of any non-compliance with, or violations of, such laws, ordinances, codes, and regulations by Borrower.
6.2 Assignment. Borrower shall not assign its rights nor delegate its duties under this Agreement without the prior written consent of the City. Any attempt at assignment or delegation in violation of this Section shall be void. The City shall have the full right and authority to assign all or part of its rights and delegate all or part of its duties under this Agreement.
6.3 Prevailing Wage Requirements. If required by applicable federal or state law, Borrower and its contractors, subcontractors and agents shall comply with California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto (and if required by applicable federal law, the Davis Bacon Act and implementing regulations) (all of the foregoing, “Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. If applicable, Borrower shall submit to City a plan for monitoring payment of prevailing wages and at Borrower’s expense shall implement such plan and comply with all applicable reporting and recordkeeping requirements.
6.4 Indemnity. To the greatest extent allowed by law, Borrower shall indemnify, defend (with counsel approved by City) and hold the City and its elected and appointed officers, DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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officials, employees, agents, consultants, and contractors (all of the foregoing, collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation reasonable attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781) or the requirement of competitive bidding in connection with the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Borrower related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. Borrower’s indemnification obligations set forth in this Section shall not apply to Claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees.
6.5 Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Parties in accordance with this Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service.
CITY: City of San Carlos
600 Elm Street
San Carlos, CA 94070
Attention: City Manager
BORROWER: Cherry Street Commons L.P.
c/o Eden Housing Inc.
22645 Grand Street
Hayward, California 94541
With a copy to: HIP Housing Development Corporation, Inc. 800 South Claremont Street, Suite 210
San Mateo, California 94402
6.6 Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties.
6.7 Survival. All representations made by Borrower hereunder and Borrower’s obligations specifically identified to survive shall survive the expiration or termination of this Agreement.
6.8 Headings; Interpretation; Statutory References. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement.
The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
6.9 Action or Approval. Whenever action and/or approval by City is required under this Agreement, the City’s Authorized Representative or his or her designee may act on and/or approve such matter unless specifically provided otherwise, or unless the City’s Authorized Representative determines in his or her discretion that such action or approval requires referral to City Council for consideration.
6.10 Entire Agreement. This Agreement, including Exhibits A through D attached hereto and incorporated herein by this reference, together with the Note contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter hereof. If the Exhibits to this Agreement are inconsistent with this Agreement, the more restrictive requirements shall control, as determined by the City Manager.
In the event of a conflict between this Agreement and the Note, the more restrictive requirements shall control, as determined by the City Manager.
6.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto having additional signature pages executed by the other Party. Any executed counterpart of this Agreement may be delivered to the other Party by facsimile and shall be deemed as binding as if an originally signed counterpart was delivered.
6.12 Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability.
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6.13 No Third Party Beneficiaries. Except as expressly set forth herein, nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder.
6.14 Time of the Essence; Calculation of Time Periods. Time is of the essence for each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the next business day. The final day of any such period shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a “business day” means a day that is not a Saturday, Sunday, a federal holiday or a state holiday under the laws of the State of California.
6.15 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of San Mateo County, California or in the Federal District Court for the Northern District of California.
6.16 Exhibits. The following Exhibits are attached to this Agreement and incorporated by this reference:
A Legal Description of the City Property
B Legal Description of the HIP Property
C Approved Predevelopment Activities, Budget and Schedule D Form of Promissory Note
E Form of Assignment Agreement
SIGNATURES ON FOLLOWING PAGE(S).
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I
N WITNESS WHEREOF, the Parties have entered into this
Predevelopment Loan Agreement effective as of the date first written above.
CI
TY:
C
ITY OF SAN CARLOS,
a California municipal corporation
B
y: _______________________________
Jeff Maltbie,
City Manager
A
ttest: _______________________________
Crystal Mui,
City Clerk
A
pproved as to Form: _______________________________
Greg Rubens,
City Attorney
BORROWER:
C
herry Street Commons, L.P.
a California limited partnership
B
y: Eden Cherry S treet LLC
a California limited liability company,
its co-general partner
B
y: Eden Investments, Inc.
a California nonprofit public benefit corporation, its
sole member/manager
B
y: ____________________________
Andrea Osgood
VP of Real Estate Development
By: H
IP Housing Development Corporation, Inc.,
a California nonprofit public benefit corporation,
its co-general partner
By: ____________________________
Kate Comfort Harr
Executive Director
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Exhibit A
LEGAL DESCRIPTION OF THE CITY PROPERTY
The land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:
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ORDER NO. : 1117022123
EXHIBIT A-1
The land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:
Portion of Lot 6, Block 17, as delineated upon that certain Map entitled "SAN CARLOS, SAN MATEO CO., CAL.", filed for record in the Office of the Recorder of the County of San Mateo, State of California, on September 4th, 1888 in Book "E" of Maps, at Page 19 and copied into Book 1 of Maps at Page 76, more particularly described as follows:
Commencing at the most Southerly corner of said Lot 6, as same appears on the Map above mentioned; thence Northwesterly on and along the Southwesterly line of said Lot, 100 feet to the most Westerly corner thereof; thence Northeasterly on and along the Northwesterly line of said Lot, 50 feet; thence at a right angle Southeasterly 100 feet to the Northwesterly line of Cherry Street; thence Southwesterly on and along the Northwesterly line of Cherry Street, 50 feet to the point of commencement.
Excepting therefrom a 10 foot strip of land described as follows:
Commencing at the most Southerly corner of said Lot 6, as said appears on the Map above mentioned; thence Northwesterly on and along the Southwesterly line of said Lot, 100 feet to the most Westerly corner thereof; thence Northeasterly on and along the Northwesterly line of said Lot, 10 feet; thence at a right angle Southeasterly 100 feet to the Northwesterly line of Cherry Street; thence Southwesterly on and along the Northwesterly line of Cherry Street, 10 feet to the point of commencement.
A.P.N. 050-132-100
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EXHIBIT “A-2”
All that real property situated in the City of San Carlos, County of San Mateo, State of California, being a portion of LOT 4 as shown on that certain Map entitled “FINAL MAP NO. 2016-01”, filed June 23, 2016 in Book 140 of Maps, at Pages 87 to 93 inclusive, in the Office of the County Recorder of San Mateo County, more particularly described as follows:
COMMENCING at the most Southerly corner of that parcel of land as described in that certain Grant Deed recorded November 13, 2002 as Do cument Number 2002-233661, Official Records of San Mateo County; thence along the Northwesterly line of Cherry Street as shown on said Map, North 47°27’14” East, 106.99 feet; thence parallel with the Northeasterly line of that parcel of land as described in that certain Grant Deed recorded September 3, 1993 as Document Number 93149944, Official Records of San Mateo County,
North 42°32’54” West, 100.02 feet to a point on the Northwesterly line of sa id parcel of land (Document Number 93149944), said point being the POINT OF BEGINNING; thence continuing North 42°32’54” West, 44.59 feet to the exterior boundary of said LOT 4; thence along said exterior boundary the following three (3) courses: 1) South 47°26’56” West,
72.00 feet, 2) South
42°33’00” East, 44.59 feet, and 3) North 47°27’06” East, 35.00 feet to the most Northerly corner of said parcel of land (Document Number 2002-233661); thence continuing North 47°26’56” East,
19.99 feet to the most Westerly corner of said parcel of land (Document Number 93149944); thence along the Northwesterly line of last said parcel of land, continuing North 47°26’56” East,
17.01 feet to the POINT OF BEGINNING.
CONTAINING 3,211 square feet, more or less.
This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act.
Prepared by Luk and Associates
Jacqueline Luk, PLS 8934
Date: June 11, 2021
This real property description has been prepared by me or under my direction in conformance with the Professional Land Surveyors Act.
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Exhibit B
LEGAL DESCRIPTION OF THE HIP PROPERTY
The land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:
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Cherry St Predevelopment Loan Agreement
EXHIBIT B
The land referred to is situated in the County of San Mateo, City of San Carlos, State of California, and is described as follows:
The Southwesterly 40 feet, front and rear measurements of LOT 7-A, and the Northeasterly 30 feet, front and rear measurements of LOT 7-B, BLOCK 17, as delineated upon that certain Map entitled "AMENDED MAP OF THE TOWN OF SAN CARLOS, SAN MATEO COUNTY, CAL.", filed for record in the Office of the Recorder of the County of San Mateo, State of California, on October 7th, 1912 in Book 8 of Maps, at Pages 25 and 26.
APN: 050-132-110
JPN: 050-013-132-11
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Exhibit C
Approved Predevelopment Activities, Budget, and Schedule
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San Carlos Cherry Street Affordable Housing
Predevelopment Estimated Costs
6/15/2021
Phase 1 Phase 2 Phase 3
Building Design Total
Entitlement &
Feasibility
Permit & Finance
Applications
Finance Closing &
Building Permit
Architect 598,000 $ 218,000$ 150,000$ 230,000$ Civil/Survey 84,000 $ 50,000$ 20,000$ 14,000$ Soils Report 10,000 $ 10,000$ ‐ $ ‐ $ Architect Sub Contracts 392,800 $ 184,450$ 139,100$ 69,250$ Joint Trench & Utilites relocation 87,050 $ 53,000$ 28,050$ 6,000$ Permit Fees 530,000 $ ‐ $ 430,000$ 100,000$ Other Reports, Noise, Parking, etc. 25,000$ 20,000$ ‐ $ 5,000$ Contingency 30,000 $ 10,000$ 10,000$ 10,000$ Sub Total $1,756,850 $545,450 $777,150 $434,250
Financing & Due Diligence
Phase I 3,000 $ 3,000$ ‐ $ ‐ $ Appraisal 8,000 $ 8,000$ ‐ $ ‐ $ Legal: Goldfarb & Lipman 25,000 $ 10,000$ 10,000$ 5,000$ Energy Modeling and Compliance 15,000 $ 5,000$ 10,000$ ‐ $ Market Study 7,000 $ 7,000$ ‐ $ ‐ $ Performance Deposit to CDLAC 100,000 $ ‐ $ ‐ $ 100,000$ TCAC/CDLAC/CMFA Fees 4,700 $ ‐ $ 4,700$ ‐ $ Construction Lender Costs 18,000 $ ‐ $ ‐ $ 18,000$ Permanent Lender Fees 15,000 $ ‐ $ ‐ $ 15,000$ GC Preconstruction 25,000 $ 10,000$ 10,000$ 5,000$ Relocation Consulting 50,000 $ 10,000$ 30,000$ 10,000$ Relocation Expenses 550,000 $ ‐ $ ‐ $ 550,000$ Project Management 140,000$ 50,000$ 50,000$ 40,000$ Construction Management 35,000$ 10,000$ 10,000$ 15,000$ Contingency 60,000 $ 20,000$ 20,000$ 20,000$ Sub Total 1,055,700 $ 133,000$ 144,700$ 778,000$ Totals $2,812,550 $678,450 $921,850 $1,212,250
Development Stage
*
*City Fees to be waived
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Exhibit D
FORM OF PROMISSORY NOTE
$1,000,000.00 San Carlos, California
[insert execution date]
FOR VALUE RECEIVED, the undersigned Cherry Street Commons, L.P., a California limited partnership (“Borrower”) hereby promises to pay to the order of the City of San Carlos, a California municipal corporation (the "City") One Million Dollars ($1,000,000.00) (or so much as has been advanced), plus interest thereon as set forth below.
1. Borrower's Obligation. This promissory note (the "Note") evidences Borrower's obligation to pay City the principal sum of One Million Dollars ($1,000,000.00) plus interest thereon for the funds loaned to Borrower by City to finance certain predevelopment costs associated with the development of the Project pursuant to the Predevelopment Loan Agreement between Borrower and City of approximately even date herewith (the "Predevelopment Loan Agreement"). All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Predevelopment Loan Agreement.
2. Interest. The Predevelopment Loan shall bear simple interest at the rate of three percent (3%) simple interest per annum from the date of initial disbursement.
3. Term and Repayment Requirements. The term of this Note (the "Term"), shall commence with the date of this Note and shall expire as set forth in the Predevelopment Loan Agreement. This Note may be prepaid in whole or in part at any time, and from time to time, without notice or penalty. This Note shall be due and payable as set forth in the Predevelopment Loan Agreement.
4. No Assumption. This Note shall not be assumable by the successors and assigns of Borrower without the prior written consent of City.
5. Terms of Payment.
(a) All payments due under this Note shall be paid in currency of the United States of America, which at the time of payment is lawful for the payment of public and private debts.
(b) All payments on this Note shall be paid to City at 600 Elm Street, San Carlos, CA 94070 or to such other place as City of this Note may from time to time designate.
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(c) All payments on this Note shall be without expense to City, and Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of City, incurred in connection with the payment of this Note and the release of any security hereof.
(d) Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest which would exceed the amount that City may legally charge under the laws of the State of California, then the amount by which payments exceeds the lawful interest rate shall automatically be deducted from the principal balance owing on this Note, so that in no event shall Borrower be obligated under the terms of this Note to pay any interest which would exceed the lawful rate.
(e) This Note shall be nonrecourse against Borrower, as further set forth in Section 2.3 of the Predevelopment Loan Agreement.
6. Default.
(a) Any of the following shall constitute an event of default under this Note:
(i) Any failure to pay, in full, any payment required under this Note within ten (10) calendar days of written notice that such payment is due;
(ii) Any failure in the performance by Borrower of any term, condition, provision or covenant set forth in this Note subject to the notice and cure period set forth in the Predevelopment Loan Agreement;
(iii) The occurrence of any event of default under the Predevelopment Loan Agreement or any other instrument securing the obligations of Borrower under this Note or under any other promissory notes hereafter issued by Borrower to City pursuant to the Predevelopment Loan Agreement, subject to notice and cure periods, if any, set forth therein.
(b) Upon the occurrence of such an event of default, the entire unpaid principal balance, together with all interest thereon, and together with all other sums then payable under this Note shall at the option of City become immediately due and payable upon written notice by City to Borrower without further demand.
(c) The failure to exercise the remedy set forth in Subsection 6(b) above or any other remedy provided by law upon the occurrence of one or more of the foregoing events of default shall not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other default. The acceptance by City hereof of any payment which is less than the total of all amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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exercise of any such remedy or option, without the express consent of City, except as and to the extent otherwise provided by law.
7. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note. Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that City may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower.
(b) No extension of time for payment of this Note or any installment hereof made by agreement by City with any person now or hereafter liable for payment of this note shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part.
(c) The obligations of Borrower under this Note shall be absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.
8. Miscellaneous Provisions.
(a) All notices to City or Borrower shall be given in the manner and at the addresses set forth in the Predevelopment Loan Agreement, or to such addresses as City and Borrower may hereinafter designate.
(b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by City in the enforcement of the provision of this Note, regardless of whether suit is filed to seek enforcement.
(c) This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
(d) This Note shall be governed by and construed in accordance with the laws of the State of California.
(e) The times for the performance of any obligations hereunder shall be strictly construed, time being of the essence.
SIGNATURES ON FOLLOWING PAGE(S).
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This document, together with the Predevelopment Loan Agreement, contains the entire agreement between the parties as to the Predevelopment Loan. It may not be modified except upon written consent of the parties.
BORROWER:
Cherry Street Commons, L.P.
a California limited partnership
By: Eden Cherry Street LLC
a California limited liability company,
its co-general partner
By: Eden Investments, Inc.
a California nonprofit public benefit corporation, its
sole member/manager
By: ____________________________
Tatiana Blank,
Chief Financial Officer
By: HIP Housing Development Corporation, Inc.,
a California nonprofit public benefit corporation,
its co-general partner
By: ____________________________
Name: __________________________
Its: ____________________________
DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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Exhibit E
Form of Assignment Agreement
ASSIGNMENT OF WORK PRODUCT
This ASSIGNMENT OF WORK PRODUCT (the "Assignment") is entered into as of ___________, 2021 (the "Effective Date") by and between the City of San Carlos, a California municipal corporation (“City”) and Cherry Street Commons, L.P., a California limited partnership (“Assignor”). The City and the Assignor are collectively referred to herein as the “Parties.”
RECITALS
A. Pursuant to the terms of that certain Predevelopment Loan Agreement dated the same date as the Effective Date of this Assignment, by and between the Assignor and the City (the "Loan Agreement"), the Assignor desires to assign to the City, and the City desires to accept from the Assignor, the assignment of the Assignor's right, title, and interest in and under those agreements, contracts and other work product described below and incurred by the Assignor in connection with the Project, as defined in the Loan Agreement.
B. The consent to such assignments by various third parties may be required substantially in the form shown in Schedule 1 or otherwise reasonably approved by the City (the "Consent").
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises of the Parties and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties mutually agree as follows:
TERMS
1. Assignment by Assignor. The Assignor assigns and delegates to the City, and the City accepts from the Assignor, all of the Assignor's right, title, and interest in and obligations under the following:
(a) all architectural designs, construction, engineering and consulting contracts, including any and all amendments, modifications, supplements, addenda and general conditions (collectively, the "Project Agreements") previously or later entered into by the Assignor and any Contractor (as defined below) pertaining to the development of the Project;
(b) all plans and specifications, shop drawings, working drawings, reports, studies, amendments, modifications, changes, supplements, general conditions, addenda and work product (collectively, the "Reports. Plans and Specifications") previously or later prepared by the Assignor or any Contractor pertaining to the development of the Project;
(c) all land use approvals, conditional use permits, building permits and other governmental entitlements and approvals of any nature obtained for the Project (collectively, the "Government Approvals"); and
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(d) all financing or other applications and all other tangible documents, except those of a proprietary or confidential nature pertaining to the development of the Project ("General Documents").
For purposes of this Assignment, the term "Contractor" means any architect, contractor, engineer, consultant or other person or entity entering into Project Agreements with the Assignor (other than attorney agreements for the provision of legal services) and/or preparing Reports, Plans and Specifications or other documents for the Assignor with respect to the Project. Such Project Agreements, Reports, Plans and Specifications, Government Approvals, and General Documents, will be collectively referred to in this Assignment as the "Collateral Documents". It is intended that all Collateral Documents, whenever produced, be assigned through this Assignment to the City as security for the Predevelopment Loan, and the applicable Consent executed. The Assignor will periodically provide the City a list of all Collateral Documents.
2. Consent. The Assignor agrees to obtain and deliver to the City, such consents to the assignment of Collateral Documents as may be required by the terms of the Collateral Documents or as otherwise requested by the City substantially in the form shown in Schedule 1 or otherwise reasonably approved by the City. This Assignment and any consents to this Assignment will not relieve the Assignor of the Assignor's obligations under the Collateral Documents.
3. Purpose. This Assignment is made to secure: (i) payment to the City of all sums owing under the Predevelopment Note, dated the same date as the Effective Date of this Assignment and made by the Assignor to the order of the City, and any and all additional advances, modifications, extensions, renewals, and amendments of the Predevelopment Note; and (ii) payment and performance by the Assignor of all the Assignor's obligations under the Predevelopment Loan Agreement.
4. No Assumption of Obligations. The Assignor agrees that the City does not assume any of the Assignor's obligations or duties under any Collateral Documents, including, but not limited to, the obligation to pay for the preparation of any Collateral Documents. The City will not be responsible for any default, liability or obligation of the Assignor under the Collateral Document occurring prior to the time the City exercises the City's rights under this Assignment. For purposes of clarity, Assignor shall at all times remain liable for the payment of the preparation of any Collateral Documents assigned to City hereunder. Notwithstanding the foregoing, if, following assignment of the Collateral Documents to the City, City requires or request additional scope of work, studies or actions by the Contractors on the Collateral Documents, the costs of said additional scope of work shall be a City obligation.
5. Attorney-In-Fact. The Assignor irrevocably appoints the City as the Assignor's attorney-in- fact, which power is coupled with an interest, so that the City will have the right to demand, receive, and enforce any and all of the Assignor's rights with respect to the Collateral Documents, and to perform any and all acts in the name of the Assignor or in the name of the City with the same force and effect as if performed by the Assignor in the absence of this Assignment, upon the occurrence of: (i) an Event of Default under the Loan Agreement by the DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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Assignor (after notice and opportunity to cure) or an event which, with notice or the passage of time or both, would constitute an Event of Default under the Loan Agreement, or (ii) any termination of the Loan Agreement. Until such occurrences, the Assignor will be entitled to exercise all rights pertaining to the Collateral Documents.
6. Representations and Warranties. The Assignor represents and warrants to the City that: (i) no previous assignment(s) of the Assignor's right or interest in or to the Collateral Documents has or have been made; (ii) the Assignor has done no act nor omitted to do any act that might prevent the City from exercising any of the rights, powers and privileges conferred by the Collateral Documents; and (iii) the copy of each Collateral Document provided by the Assignor to the City is the complete and entire agreement between the parties to those Collateral Documents in all material respects.
7. Governing Law. This Assignment is governed by the laws of the State of California, except to the extent that federal law preempts the laws of the State of California. The Assignor consents to the jurisdiction of any federal or state court within the State of California having proper venue for the filing and maintenance of any action arising under this Assignment and agrees that the prevailing party in any such action will be entitled, in addition to any other recovery, to reasonable attorneys' fees and costs.
8. Binding Upon Successors and Assigns. This Assignment is binding upon and will inure to the benefit of the heirs, legal representatives, successors-in-interest, and assigns of the Assignor and the City; provided, however, this Section 8 may not be construed and is not intended to waive the restrictions on assignment, sale, transfer, mortgage, pledge, hypothecation, or encumbrance by the Assignor contained in the Predevelopment Loan Agreement.
9. Remedies. In the event of the Assignor's default under this Assignment, the City may exercise all or any one or more of the City's rights and remedies available under this Assignment, at law or in equity. Such rights and remedies will be cumulative and concurrent, and may be enforced separately, successively or together, and the exercise of any particular right or remedy will not in any way prevent the City from exercising any other right or remedy available to the City.
10. Capitalized Terms. Capitalized terms used but not defined in this Assignment have the meanings set forth in the Predevelopment Loan Agreement.
11. Headings. Section headings contained in this Assignment are inserted as a matter of convenience and for ease of reference only and will be disregarded for all other purposes, including the construction or enforcement of this Assignment or any of the provisions of this Assignment.
12. No Agency or Partnership. Nothing contained in this Assignment will constitute the City as a joint venturer, partner or agent of the Assignor, or render the City liable for any debts, obligations, acts, omissions, representations or contracts of the Assignor.
13. Further Assurances. The Assignor will at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further action that may be DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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reasonably necessary or desirable, or that the City may reasonably request, in order to protect any right or interest granted by this Assignment or to enable the City to exercise and enforce the City's rights and remedies under this Assignment.
14. Termination. This Assignment will terminate, and the security of the City under this Assignment will be released upon the earlier of the Assignor's repayment in full of the Predevelopment Loan or after termination of the Predevelopment Loan Agreement.
15. Counterparts. This Assignment may be executed in counterparts by the Parties, each of which will be deemed to be an original, and all such counterparts will constitute one and the same instrument.
SIGNATURES ON FOLLOWING PAGE(S).
DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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IN WITNESS WHEREOF, the Parties have entered into this
Assignment Agreement effective as of the date first written above.
CITY:
CITY OF SAN CARLOS,
a California municipal corporation
By: _[FORM – DO NOT SIGN]_________________________________ [name and tite]
BORROWER:
Cherry Street Commons, L.P.
a California limited partnership
By: Eden Cherry Street LLC
a California limited liability company,
its co-general partner
By: Eden Investments, Inc.
a California nonprofit public benefit corporation, its
sole member/manager
By: ____________________________
Tatiana Blank,
Chief Financial Officer
By: HIP Housing Development Corporation, Inc.,
a California nonprofit public benefit corporation,
its co-general partner
By: ____________________________
Name: __________________________
Its: ____________________________
DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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Schedule 1 [to Exhibit E]
FORM OF CONSENT
_____________________, a _________________ (the "Contractor") consents to the foregoing Assignment, of which this Consent is a part, and acknowledges that at present there exist no unpaid claims presently due to the Contractor, except as disclosed to the City, arising out of the preparation and delivery to the Assignor of the Collateral Documents for which the Contractor is responsible and/or the performance of the Contractor's obligations under any Project Agreement.
The Contractor agrees that if, at any time, the City, pursuant to the City's rights under the Predevelopment Loan Agreement, elects to undertake or cause the completion of any of the Predevelopment activities for the Project, and gives the Contractor written notice of such election; then, so long as the Contractor has received, receives, or continues to receive the compensation called for under the applicable Project Agreement, the City may, at the City's option, use and rely on the Collateral Documents for the purposes for which the Collateral Documents were prepared, and the Contractor will continue to perform the Contractor's obligations under the applicable Project Agreement for the benefit and account of the City in the same manner as if performed for the benefit or account of the Assignor in the absence of this Assignment.
The Contractor further agrees that, in the event of a breach by the Assignor of the applicable Project Agreement, or any agreement entered into with the Contractor in connection with the Collateral Documents, so long as the Assignor's interest in the applicable Project Agreement and Collateral Documents is assigned to the City, the Contractor will give written notice to the City. The City will have thirty (30) days from the receipt of such written notice of default to remedy or cure said default; provided, however, nothing in this Consent will require the City to cure said default or to undertake completion of the Predevelopment activities.
The Contractor warrants and represents that the Contractor has no knowledge of any prior assignment(s) of any interest in either the applicable Project Agreement or the Collateral Documents. Except as otherwise defined in this Consent, the terms used in this Consent will have the meanings given them in the foregoing Assignment or the Loan Agreement, as applicable.
Execution Date: ______________________ By: ______________________ Name: ______________________
Title: ______________________
Title of Contract: ______________________
Date of Contract: ______________________
DocuSign Envelope ID: BC1A941F-3C5C-4AA2-ACCB-05E8C7395CF4
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CITY COUNCIL
STAFF REPORT
MEETING DATE: February 27, 2023
ITEM TITLE: Consideration of Adopting a Resolution Approving the Safe Routes to School Improvement Recommendations and Maps.
RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution approving the Safe Routes to School improvement recommendations and maps.
FISCAL IMPLICATIONS:
No funding appropriation is requested at this time.
The high-level planning cost estimate for the recommended Safe Routes to School improvements total $5.5 million for the City and $1.7 million for the San Carlos School District. $500,000 has already been appropriated to the Safe Routes to School Improvements Project C2214 in Fiscal Year (FY) 2023-24, with additional $500,000 recommended each year for the next two years (FY 2024-25 and FY 2025-26). Additional funding will be requested at the time each improvement is ready for design and implementation.
BACKGROUND:
The Bicycle and Pedestrian Master Plan (“Master Plan”) was approved by the City Council on June 9, 2020. As part of the Master Plan process, school walk audits were scheduled in the spring of 2020 for all six school sites. However, the audits were delayed due to the transition to remote learning caused by the COVID-19 pandemic. Therefore, the Master Plan was approved before the walk audits were performed, with the intention of adopting the Safe Routes to School improvements stemming from the audits as a future amendment to the Master Plan.
The school walk audits were conducted from November 2021 to January 2022. The resulting recommendations were sent to the San Carlos School District for review and comment from April to May 2022. In June 2022, the community was invited to comment on the recommendations and maps posted on the City’s website. Over one hundred comments were posted. The comment period was extended twice, in response to requests from the community, to September 2022.
On January 17, 2023, the recommendations and maps were presented to the Planning and Transportation Commission. The commissioners emphasized the importance of better crosswalks and the continued need to prioritize funding for crossing guards.
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ANALYSIS:
Each walk audit provided an opportunity for stakeholders including parents, School District staff, and City staff to observe behavior and circulation in and around the school site, assess infrastructure, and discuss barriers and opportunities for improving student safety during the commute period. The qualitative and quantitative data collected at the walk audits were compiled and analyzed. Improvement recommendations were developed for both the City and the School District that highlighted infrastructure and circulation improvements and identified potential park and walk sites. Suggested routes to school maps were also developed. These maps show the preferred streets for walking and biking, which will help parents decide the best routes for their children to walk and bike to school.
ALTERNATIVES:
Options available to the City Council include:
1. Adopt a Resolution approving the Safe Routes to School improvement recommendations and maps; or
2. Do not adopt the Resolution; or
3. Provide staff with alternative direction.
Respectfully submitted by:
Steven Machida, Public Works Director
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENT(S):
1. Resolution
2. Safe Routes to School Improvement Plans and Maps
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RESOLUTION NO. 2023 – ____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS APPROVING THE SAFE ROUTES TO SCHOOL RECOMMENDATIONS AND MAPS.
WHEREAS, the Bicycle and Pedestrian Master Plan (“Master Plan”) was approved by City Council on June 9, 2020; and
WHEREAS, as part of the Master Plan process, school walk audits were scheduled in the spring of 2020 for six school sites. However, the audits were delayed due to the transition to remote learning necessitated by the COVID-19 pandemic; and WHEREAS, therefore, the Master Plan was approved before the walk audits were performed with the intention of adopting the Safe Routes to School improvements stemming from the audits as a future amendment to the Master Plan; and WHEREAS, the school walk audits were conducted in November 2021 to January 2022; and WHEREAS, the resulting recommendations were sent to the San Carlos School District for review and comment from April to May 2022; and
WHEREAS, public comments on the recommendations and maps were received from June to September 2022; and
WHEREAS, on January 17, 2023 the recommendations and maps were presented to the Planning and Transportation Commission.
NOW, THEREFORE BE IT RESOLVED, that the San Carlos City Council hereby approves the Safe Routes to School improvement recommendations and maps. * * * * *
I, City Clerk Crystal Mui, hereby certify that the foregoing Resolution was duly and regularly passed and adopted by the City Council of the City of San Carlos at a scheduled meeting thereof held on the 27th day of February 2023, by the following vote:
AYES, COUNCILMEMBERS:___________________________________________ NOES, COUNCILMEMBERS:___________________________________________ ABSENT, COUNCILMEMBERS:___________________________________________ ________________________________
CITY CLERK of the City of San Carlos
APPROVED:
___________________________
MAYOR of the City of San Carlos
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Cedar Street at Central Middle School Northern Driveway 1a. Install “No-Le�” turn signage during weekdays from 7 am-9 am and 2 pm-4 pm at the drop-off loop exit
1b. Install an RRFB at the exis�ng mid-block crosswalk
Arroyo Elementary Campus near Drop-off loop
2a. Install pedestrian scale ligh�ng in the Arroyo Elementary parking lot area
Chestnut Street at Arroyo Avenue
3a. Construct curb ramps for the recently re-installed crosswalk at the northern approach
3b. Construct curb extensions or median refuge island for the crossing of Arroyo Avenue. Construct drainage improvements where necessary
3c. Consider installing a RRFB for the Arroyo Avenue crosswalk 3d. Reposi�on the sharrow markings to encourage people biking to ride away from the curb extensions. When sharrows are
reposi�oned, consider adding green backing for addi�onal visibility
3e. During pick-up and drop-off �mes, encourage families to park at the Young Kid’s Playground near Burton Park or along Cedar Avenue near Arroyo Avenue as park and walk loca�ons
Elm Street at Arroyo Avenue
4a. Upgrade the exis�ng crosswalks to high visibility
Cherry Street at Cedar Street
5a. Consider to install a RRFB to cross Cedar Street and to install curb extensions
5 4
3 City of San Carlos
Safe Routes to School Improvement Plan
ARROYO ELEMENTARY/CENTRAL MIDDLE
SCHOOL
Walk Audit held January 2022
0 2
1 3
4 5
Existing Conditions
Recommendations
City of San Carlos#
San Carlos
School District#
Implementing Agency
Existing Drop-off
Loop Circulation
Existing Crossing
Guard Location
Existing STOP Sign
STUDY
Recommended Traffic Control
Study
STUDY
Recommended
High-Visibility Crosswalk
Recommended R33
“No Left Turn” Sign
Recommended Pedestrian
Scale Lighting
Park & Walk Location
Existing Bike Parking
2 Existing School
Access Point
Recommended Sharrow
Repositioning
Existing Class III Bicycle Route
Recommended Class IIIB Bicycle
Boulevard (from Bike Plan)
1 Recommended Rectangular
Rapid Flash Beacon (RRFB)
Arroyo Avenue
Cedar Street
Hemlock Street
Orange Avenue
School Street
Elm Street
Chestnut Street
Olive Street
Walnut Street
CENTRAL MIDDLE
SCHOOL
ARROYO
ELEMENTARY
SCHOOL
1 Woodland Avenue
1 Improvements not to scale
200 ft
*The above items are recommendations only and based on Safe Routes to Schools site assessment best practices. Feasibility determination, final design, accessibility, funding, and implementation of any recommended improvements is the responsibility of the appropriate governing agency. **Red curb and/or parking restriction signage should be provided between advance stop/yield markings and the crosswalk. Exact red curb distance should be determined in accordance with the CA-MUTCD and City policies/standards. Red curb not symbolized on map.
This figure is intended only for reference, conceptual planning, and informational purposes. This figure should not be used to establish boundaries, property lines, location of objects, or to provide any other information typically needed for final design, construction or any other purpose when engineering plans are required.
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10 MIN W
ALK / 4 MIN BIKE
20 MIN W
ALK / 8 MIN BIKE
£101
Ã82
E R Burton
Park
Laureola
Park
Highlands
Park
Eaton Park
Bus h St
Tankl
age
Rd
Or
ange
Ave
Oliv
e St
Torino
Dr
Taylor
Way
Comm
ercial
St
OakhurstAve
EdgehillDr
Cherry
St
E San
Carlo
s Ave
Bransten Rd
Walnut
St
Oak
view Dr
Walnut
St
Chestnut St
Coronado Ave
WhiteOakWay
Arroyo Ave
Greenwood Ave
Holly StChestnut
St
SaintFrancis Way
CordillerasAve
Ba
yshor
e F
wy
Laurel St Industrial Rd
Howard Ave
Britt
an Ave Cedar
St
El
Cam
ino R
ea
l
Cedar
St
Alma St
Birch
Ave
Old County Rd
Belle Ave
Woodl
SAN CARLOS
STUDENT SERVICES
PRESCHOOL
ARUNDEL
ELEMENTARY
BRITTAN
ACRES
ELEMENTARY
HEATHER
ELEMENTARY
WHITE
OAKS
ELEMENTARY
0 0.25 0.5
MILES
EXISTING BIKEWAYS
Off-Street Path
On-Street Bikeway
Bicycle Boulevard
DESTINATIONS + BOUNDARIES
Caltrain Station
Park
City Boundary
Crossing Guard
Biking Route
RECOMMENDED ROUTES TO SCHOOL
FEATURES ALONG THE ROUTE
School Access Point
Walking Route
Marked Crosswalk
All Way Stop
Signalized Crossing
Rectangular Rapid
Flashing Beacons (RRFB)
RECOMMENDED ROUTES FOR WALKING AND BIKING TO SCHOOL
This recommended routes to school
map is intended to encourage
adults and students to consider
walking or bicycling to school. Adults
are responsible for choosing the
most appropriate option based on
their knowledge of different routes
and the skill level of their student.
ARROYO UPPER /CENTRAL MIDDLE SCHOOLS
ARROYO
CENTRAL
MIDDLE
and Ave
Map created December 2022
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Existing Conditions
Recommendations
City of San Carlos#
San Carlos
School District#
Implementing Agency
Existing Bike Parking
Existing Drop-off
Loop Circulation
Existing School
Access Point
Park & Walk Location
Recommended
Path Improvements
Alternative Drop-off Location
Recommended Gate
Recommended Striped
Pedestrian Path
Recommended Loading Area
Recommended
Sidewalk
Recommended Leading
Pedestrian Interval
Recommended
High-Visibility Crosswalk
Existing Class II Bicycle Lane
Recommended Class IIB Buffered
Bicycle Lane (from Bike Plan)
Existing Crossing Guard Location
Arundel
Elementary
Arundel Road
Clifton Avenue
Wellington Drive
Phelps Road
DevonshireBoulevard
San Carlos Avenue
Phelps Road
Palm Avenue
San Carlos Avenue
Arguello
Park
Arguello Park
1a. Designate Arguello Park as a park-and-walk loca�on 1b. Long Term: Construct a pedestrian path connec�ng the entrance point to Arguello Park. Con�nue the path along the parking lot to the school access road (alignment shown on map is for display purposes only; future analysis should determine the best alignment)
1c. Long Term: (synchronized with 1b) Study the best place to mark new/upgrade the exis�ng crosswalk at the Wellington
Drive/Shelford Avenue/Sheldon Avenue intersec�on to improve pedestrian access to the park. Consider installing RRFB(s) where appropriate
Phelps Road
2a. Improve the connec�on between the campus access point and the asphalt pedestrian path
Phelps Road/San Carlos Avenue
3a. Implement leading pedestrian intervals for both marked crossings at Phelps Road/San Carlos Avenue
3b. Long Term: Complete sidewalk along Phelps Road between Palm Avenue and San Carlos Avenue (will likely require right-of-way acquisi�on, grading, and further study to determine feasibility and placement) [Alignment on map is for illustra�on only]
Upper Drop-off
This area currently func�ons as both a drop off and pick up area and a park and walk area. The following recommenda�ons will help delineate those uses
4a. Consider removing or limi�ng the parking spaces in loca�on “A” (see inset) to staff only (or vehicles that won’t move during pick up and drop off)
4b. Add a pedestrian-only gate connec�ng to the sidewalk on Phelps Road. Delineate a pedestrian path between the new gate to Phelps Road and to the playground area
4c. Provide a specific loca�on for parents who prefer to park to enter the playground (loca�on “B”)
4d. Remove the crosswalk at loca�on “C”
4e. Use the indicated loading space for vehicle pick up and drop off only (do not allow parents and students to walk across this area) 4f. Restripe the parking lot to accommodate new procedures and refresh parking stall and entrance/exit striping
On-Campus
5a. Formalize the “social trail” between Phelps Road and Arundel Road
5b. When school staffing allows, consider designa�ng the west Arundel Road entrance as a pedestrian only entrance for students using San Carlos Avenue
4 1
City of San Carlos
Safe Routes to School Improvement Plan
ARUNDEL ELEMENTARY SCHOOL
Walk Audit held December 2021
0 4
5 2
1 2
5 3
3 Improvements not to scale
200 ft
*The above items are recommendations only and based on Safe Routes to Schools site assessment best practices. Feasibility determination, final design, accessibility, funding, and implementation of any recommended improvements is the responsibility of the appropriate governing agency. **Red curb and/or parking restriction signage should be provided between advance stop/yield markings and the crosswalk. Exact red curb distance should be determined in accordance with the CA-MUTCD and City policies/standards. Red curb not symbolized on map.
This figure is intended only for reference, conceptual planning, and informational purposes. This figure should not be used to establish boundaries, property lines, location of objects, or to provide any other information typically needed for final design, construction or any other purpose when engineering plans are required.
Existing Class III Bicycle Route
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10 MIN WALK / 4 MIN BIKE
20 MIN WALK / 8 MIN BIKE
Laureola
Park
Highlands
Park
McDougal
Park
Arguello
Park
Palm Ave
Aberdeen
Dr
Ches
tnut St
Torino
Dr
Belle
Ave
Magnolia
Ave
Cherry St
E San
Carlo
s Ave
Indus
trial
Rd
Laurel St
Arundel
Shoreway Rd
Walnut
St
Coronado Ave
Dr
Hol
ly St
Arroyo Ave
Devonshire Blvd
ChestnutSt
Britt
an Ave
Las
Elm St
OldCountyRd
El Camino Real
CedarSt
Phelps RdClifton Ave
Hull Dr
San Carlos Ave
ARROYO
ARUNDEL
ELEMENTARY
CENTRAL
MIDDLE
HEATHER
ELEMENTARY
SAN CARLOS
CHARTER
LEARNING
CENTER
CARLMONT
HIGH
MARIPOSA UPPER/
TIERRA LINDA
MIDDLE
Alameda
£101
ARUNDEL ELEMENTARY SCHOOL
RECOMMENDED ROUTES FOR WALKING AND BIKING TO SCHOOL
0 0.25 0.5
MILES
This recommended routes to school
map is intended to encourage
adults and students to consider
walking or bicycling to school. Adults
are responsible for choosing the
most appropriate option based on
their knowledge of different routes
and the skill level of their student.
DESTINATIONS + BOUNDARIES
School Access Point
Crossing Guard
All Way Stop
Signalized Crossing
Biking Route
Walking Route
Bicycle Boulevard
Off-Street Path
On-Street Bikeway
RECOMMENDED ROUTES TO SCHOOL
FEATURES ALONG THE ROUTE
Caltrain Station
Park
City Boundary
EXISTING BIKEWAYS
Marked Crosswalk
Rectangular Rapid
Flashing Beacons (RRFB)
Map created December 2022
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Existing Conditions
Recommendations
City of San Carlos#
Implementing Agency
San Carlos School District
Recommended Gate
Recommended Bicycle
Parking
Recommended
Transverse Crosswalk
Brittan Acres
Elementary School
Alameda de las Pulgas
Belle Avenue
Tamarack Avenue
Rutherdale Avenue
Elizabeth Street
Lower Lupin Way
Cordilleras Avenue
Arroyo Avenue
Birch Avenue
Orange Avenue
Cedar Street
Bauer Drive
Rockridge Road
Melendy Drive
AHEAD
XING
PED
Recommended PED XING
AHEAD Pavement Markings
St. Charles
Church School
St. Charles
Catholic
Church
Tamarack Avenue
1a. Install high visibility crosswalks at northeast, southeast, and southwest approaches of Tamarack Avenue at Belle Avenue 1b. Construct curb extensions at each corner of Tamarack Avenue at Belle Avenue
1c. Reinstall stop bar and “Stop” pavement marking at northeast, southeast, and southwest approaches of Tamarack Avenue at Belle Avenue
1d. Install high visibility crosswalks along Tamarack Avenue at Elizabeth Street and Arroyo Avenue
Cordilleras Avenue
2a. Install curb extensions at each corner of Belle Avenue at Cordilleras Avenue
2b. Reinstall stop bar and “Stop” pavement marking at each approach of Belle Avenue at Cordilleras Avenue
2c. Refresh the exis�ng high visibility crosswalks at the intersec�on with Belle Avenue
2c. Install speed feedback signs at southeast and northwest approaches of Cordilleras Avenue at Belle Avenue
2d. Extend sidewalk along Belle Avenue east of intersec�on with Cordilleras Avenue
2e. Install high visibility crosswalks across Cordilleras Avenue at intersec�on with Elizabeth Street
2f. Refresh the exis�ng high visibility and transverse crosswalks at the intersec�on with Arroyo Avenue. Add a high visibility crosswalk across Cordilleras at the north leg of the intersec�on with Arroyo Avenue
Bri�an Acres Elementary School Zone
3a. Install school zone speed limit signs within school zone Lower Lupin Way
4a. Long-term: Consider formalizing exis�ng unpaved path connec�ng Lower Lupin Way to Alameda de las Pulgas
4b. Long-term: If pathway is constructed, replace/upgrade the sidewalks on Alameda de las Pulgas to current standard between Melendy Dr/Rockridge Rd and Castor Rd
4c. Consider restric�ng parking and on the north side of Belle Avenue, on both sides of the church driveway
Rutherdale Avenue
5a. Consider building a pedestrian gate on Rutherdale Avenue to the BUGS Garden to provide an alterna�ve school access point 5b. Consider installing paint and low barriers to reduce the turning radius, and a median diverter island to slow traffic and vehicle turns at the intersec�on with Elizabeth Street
4 5
1 City of San Carlos
Safe Routes to School Improvement Plan
BRITTAN ACRES ELEMENTARY SCHOOL
Walk Audit held December 2021
0 5
5 2
1 2
3 3
4 4
#
5 Recommended Paint &
Post Curb Extension
STOP
STOP
STOP STOP
STOP
STOP
Recommended Bulbout
Recommended
High-Visibility Crosswalk
Recommended
Curb Extension
Recommended Advanced
Stop Pavement MarkingSTOP
Recommended Speed
Feedback Sign
Existing Crossing
Guard Location
Recommended
Sidewalk
Rolling Drop-off/Student Valet7am-4pmSchool Days
Existing School
Access Point
Existing Drop-off
Loop Circulation
Existing Drop-off Loop
Circulation - St. Charles
Improvements not to scale
200 ft
*The above items are recommendations only and based on Safe Routes to Schools site assessment best practices. Feasibility determination, final design, accessibility, funding, and implementation of any recommended improvements is the responsibility of the appropriate governing agency. **Red curb and/or parking restriction signage should be provided between advance stop/yield markings and the crosswalk. Exact red curb distance should be determined in accordance with the CA-MUTCD and City policies/standards. Red curb not symbolized on map.
This figure is intended only for reference, conceptual planning, and informational purposes. This figure should not be used to establish boundaries, property lines, location of objects, or to provide any other information typically needed for final design, construction or any other purpose when engineering plans are required.
Recommended Class III
Bike Route (from Bike Plan)
NO
8 AM - 9AM
PARKING Recommended R26A “No
Parking 8 AM - 9 AM” Sign
NO
8 AM - 9AMPARKING
9.b
February 27, 2023
Packet Pg. 806
10 M
IN W
ALK / 4 MIN BIKE
20 MIN W
ALK / 8 MIN BIKE
£101
Ã82
E R Burton
Park
Laureola
Park
Highlands
Park
McDougal Park
Eaton Park
Big Canyon
Park
Oak St
Center S
t
Tankl
age
Rd
Olive St
Torino
Dr Belv
eder
e Ave
CliftonAve
Montgomery St
Comm
ercial
St
Hall St
Cherry
St
Belle
Ave
Northam
Ave
RubyAve
Fairmont Ave
Magnolia
Ave
Cherry St
Gracela
nd
Ave
E San
Carlo
s Ave
Bransten Rd
W
oodlandAve Walnut
St
Emerald
Ave
Oak
view Dr
Holly St
Chestnut St
Sunset Dr
Bayshore Fwy
WhiteOakWay
Arroyo Ave
Greenwood Ave
ChestnutSt
IndustrialRd
Alameda de las Pulgas
Laurel S
t
Howard Ave
el Cam
ino R
ea
l
El
Cam
ino R
ea
l
San CarlosAve
Elm S
t
Britt
an Ave
Cedar St
e
Co
Birch
Ave
ARROYO
ARUNDEL
ELEMENTARY
BRITTAN
ACRES
ELEMENTARY
CENTRAL
MIDDLE
HEATHER
ELEMENTARY
WHITE OAKS
ELEMENTARY
School Access Point
0 0.25 0.5
MILES
EXISTING BIKEWAYS
Off-Street Path
On-Street Bikeway
Bicycle Boulevard
DESTINATIONS + BOUNDARIES
Caltrain Station
Park
City Boundary
Marked Crosswalk
Crossing Guard
All Way Stop
Signalized Crossing
RECOMMENDED ROUTES TO SCHOOL
FEATURES ALONG THE ROUTE
Biking Route
Walking Route
Rectangular Rapid
Flashing Beacons (RRFB)
RECOMMENDED ROUTES FOR WALKING AND BIKING TO SCHOOL
This recommended routes to school
map is intended to encourage
adults and students to consider
walking or bicycling to school. Adults
are responsible for choosing the
most appropriate option based on
their knowledge of different routes
and the skill level of their student.
BRITTAN ACRES ELEMENTARY SCHOOL
Old C
ount
y Rd
Map created December 2022
9.b
February 27, 2023
Packet Pg. 807
Highlands Park Field Parking Lot
1a. Encourage use of this space as a park and walk loca�on for families. Use recommended routes to access school
Melendy Drive
2a. Install speed feedback sign near exis�ng “STOP AHEAD” sign School Entrance
3a. Extend red curb on each side to 50’ at each approach 3b. Install a raised crosswalk
3c. Install an RRFB
3d. Install pedestrian crossing ahead signs at each approach to crosswalk
3e. Refresh “SLOW SCHOOL XING” pavement markings at each approach to crosswalk
Torino Drive
4a. Install high-visibility crosswalks across Melendy Dr at Torino Dr 4b. Install curb extensions at each crosswalk at Melendy Dr and Torino Dr
Hewi� Drive
5a. Install high-visibility crosswalks at each approach of Hewi� Dr at Melendy Dr
5b. Install curb extensions at each corner of Hewi� Dr at Melendy Dr 5c. Install “STOP AHEAD” pavement marking at east and west approaches of Hewi� Dr at Melendy Dr
Nane�e Drive
6a. Upgrade the crosswalk across Nane�e Dr at Hewi� Dr to high-visibility, including curb ramps and drainage improvements Porto Rosa Way
7a. Consider adding Porto Rosa Way as a park and walk and addi�onal drop off loca�on
7b. Refresh the transverse crosswalk across Porto Rosa Way at Hewi� Dr, including curb ramps and drainage improvements, and refresh the high-visibility crosswalk across Hewi� Dr
School Parking Lot
8a. Extend southern crosswalk through lot and install curb ramp where exis�ng southern crosswalk leads to the grassy area 8b. Install curb extensions at school side crosswalk entrances 8c. Consider adding speed bumps and other traffic calming measures in the parking lot
Pedestrian Path
9a. Conduct maintenance on the paved path (Note: path is too steep to meet ADA standards)
9b. Build a fence to separate the dog park from the path Non-Infrastructure
NI 1. Distribute educa�onal materials on parking lot e�que�e and movement
NI 2. Distribute park and walk educa�onal materials
1 City of San Carlos
Safe Routes to School Improvement Plan
HEATHER ELEMENTARY SCHOOL
Walk Audit held December 2021
0 2
4 5
1 8
3 2
3 4
5 8
8 2
6 6
7 7
NI
9 9
Existing Conditions
Recommendations
City of San Carlos#
San Carlos
School District#
Implementing Agency
Inset
Recommended Bicycle
Parking
Existing School
Access Point
Recommended White High-
Visibility Crosswalk (see inset)
Park & Walk Location
AHEAD
AHEAD
Existing Crossing
Guard Location
Recommended School
Assembly B or D
B D
AHEAD
Recommended Speed
Feedback Sign
Recommended Red Curb
Recommended
Curb Extension
Recommended Bulbout
Recommended
High-Visibility Crosswalk
Recommended
Curb Ramp (see inset)
Recommended
Pedestrian Route
Existing Drop-off
Loop Circulation
Recommended Class III
Bike Route (from Bike Plan)
Recommended Rectangular
Rapid Flashing Beacon (RRFB)
Recommended Raised
Intersection
Recommended
Transverse Crosswalk
Improvements not to scale
200 ft
*The above items are recommendations only and based on Safe Routes to Schools site assessment best practices. Feasibility determination, final design, accessibility, funding, and implementation of any recommended improvements is the responsibility of the appropriate governing agency. **Red curb and/or parking restriction signage should be provided between advance stop/yield markings and the crosswalk. Exact red curb distance should be determined in accordance with the CA-MUTCD and City policies/standards. Red curb not symbolized on map.
This figure is intended only for reference, conceptual planning, and informational purposes. This figure should not be used to establish boundaries, property lines, location of objects, or to provide any other information typically needed for final design, construction or any other purpose when engineering plans are required.
Recommended R25D
“School Loading” Signage
Heather Elementary
School
Melendy Drive
Hewitt Drive
Nanette Drive
Heather Drive
Torino Drive
Porto Rosa Way
San Simeon Way
XINGSCHOOL
SLOW
XINGSCHOOL
SLOW
XING
SCHOOL
SLOW
Recommended SLOW SCHOOL
XING Pavement Markings
AHEAD
STOP
Recommended STOP AHEAD
Pavement Markings
(See Inset)
Aberdeen Drive
Glasgow Lane
AHEADSTOP
AHEADSTOP
Dog Park
Map created December 2022
9.b
February 27, 2023
Packet Pg. 808
Map created December 2022
Ã82
Highlands
Park
Crestview
Park
Eaton Park
Big Canyon
Park
Cherry St
Aberdeen
Dr
Vista A
ve
Torino
Dr
PhelpsRd
PortoMarino
Dr
Belle
Ave
Saint
Francis
Way
Portofino
Dr
Gracela
nd
Ave
W
oodlandAve
Emerald
Ave
HewittDr
Old C
ount
y Rd
Oak
view Dr
El Camino Real
Or
ange
Ave
ChestnutSt
Coronado Ave
Laurel St
Arroyo Ave
Elm St
Howard Ave
Ceda
r S
tBritt
an Ave
Crestview Dr
Alameda de las Pulgas
MelendyDr
SanCarlosAve
Ave
Tamarack
ARROYO
ARUNDEL
ELEMENTARY
BRITTAN
ACRES
ELE
MENT
ARY
CENTRAL
MIDDLE
HEATHER
ELEMENTARY
CARLMONT HIGH
20 MIN W
ALK / 8 MIN BIKE
10 MIN WALK / 4 MIN BIKE
RECOMMENDED ROUTES FOR WALKING AND BIKING TO SCHOOL
This recommended routes to school
map is intended to encourage
adults and students to consider
walking or bicycling to school. Adults
are responsible for choosing the
most appropriate option based on
their knowledge of different routes
and the skill level of their student.
HEATHER ELEMENTARY SCHOOL
EXISTING BIKEWAYS
Off-Street Path
On-Street Bikeway
Bicycle Boulevard
DESTINATIONS + BOUNDARIES
Caltrain Station
Park
City Boundary
RECOMMENDED ROUTES TO SCHOOL
FEATURES ALONG THE ROUTE
Biking Route
Walking Route
School Access Point
Marked Crosswalk
Crossing Guard
All Way Stop
Signalized Crossing
Rectangular Rapid
Flashing Beacons (RRFB)
0 0.25 0.5
MILES
9.b
February 27, 2023
Packet Pg. 809
0 15 0
T IE R R A L IN DA
MID D L E /
MA R IP O S A
E L E ME N TA R Y
S C HO O L
E x i s t i ng B i k e w a y s
C las s II B ike L ane
C las s III B ike R oute
P e d e s t r i a n C o lli s io ns
S eve re Injury
Mino r Injury
B i c y c le C o lli s io ns
Mino r Injury
Existing School
Access Point
Existing Conditions
Recommendations
San Carlos School District#City of San Carlos#
Implementing Agency
Existing Bike Parking
Park & Walk Location
Recommended
Roundabout
Recommended Leading
Pedestrian Interval
Existing Drop-off
Loop Circulation
Recommended
High-Visibility Crosswalk
Existing Crossing
Guard Location
Recommended Red Curb
Recommended Advanced
Stop Pavement Marking
Recommended
Sidewalk
Recommended Class II
Bike Lane (from Bike
Plan)
Recommended Class II B
Buffered Bike Lane (from
Bike Plan)
San Carlos Charter
Learning Center
Alameda de la Pulgas
Tierra Linda Middle/
Mariposa Upper
Elementary
Chula Vista Drive
Verano Way
Cranfield Avenue
Club Drive
Dartmouth Avenue
Wellington Drive
Bayview Drive
San Carlos Avenue
Carlmont
High
School Entrance/ Pedestrian Access
1a. Reoriente and expand the crosswalk to improve the route for pedestrians. Upgrade the crosswalk to to a high-visibility crosswalk (con�nental).
1b. Widen the sidewalk (west side) and add a handrail for pedestrian safety.
1c. Move the bicycle parking next to the fence at the south of the student entrance.
School Entrance/ School Loading Zone
2a. Consider adding a second lane to enter the loading zone (by removing parking spaces or improving parking delinea�on to allow enough space for a second lane).
2b. Consider adding a physical separa�on between the parking spaces or new lane and the walking path. Remove the chain link fence next to the sidewalk.
2c. Refresh the paint of the traffic lanes.
School Entrance/ Median Island
3a. Close the crosswalk and consider reshaping the median island to improve the car flow. Remove the crosswalks on both sides of the median island.
Club Drive/San Carlos Avenue
4a. Upgrade the tranverse crosswalk across the western approach to a high-visibility crosswalk (con�nental).
4b. Add advanced stop bars to Dartmouth Avenue and San Carlos Avenue.
4c. Traffic signal: Turn on pedestrian recall during school hours and add a Leading Pedestrian Interval.
4d. Consider changing the travel lanes to improve car traffic flow and paint a red curb at the bus stop corner.
Long term: Consider conduc�ng a traffic study for a pedestrian scramble at this intersec�on.
Club Drive
5a. Consider the implementa�on of traffic calming measures such as speed bumps, chicanes, etc.
5b. Consider adding parking restric�on during school hours to facilitate right turns on San Carlos Avenue from Club Drive.
Wellington Drive
6a. Consider the implementa�on of traffic calming measures such as speed bumps, chicanes, etc.
6b. Apply red paint at all corners of the intersec�on of Wellington Drive and Dartmouth Avenue.
6c. Consider conduc�ng a traffic study at the intersec�on of Wellington Drive and Cli�on Avenue.
Alameda de las Pulgas
7a. Con�nue the partnership with the City of Belmont to implement the street improvements planned in the Four
Corners Project.
7b. Consider adding a new entrance and loading zone to the school on Alameda de las Pulgas.
7c. Consider adding a designated park & walk loca�on in the church parking lot.
Methodist Church Parking Lot and Bayview Drive
8a. Start the discussion with the church to make a formal park & walk loca�on in their parking lot.
8b. Consider Bayview Drive as an addi�onal
park & walk loca�on.
6 7
City of San Carlos
Safe Routes to School Improvement Plan
TIERRA LINDA MIDDLE/
MARIPOSA UPPER ELEMENTARY/
SAN CARLOS CHARTER LEARNING CENTER
Walk Audit held in DECEMBER 2021
6 0
1 DRAFT
3 2
1 2
3 7
4 5
8 8
8 5
47 7
7 Improvements not to scale
200 ft
*The above items are recommendations only and based on Safe Routes to Schools site assessment best practices. Feasibility determination, final design, accessibility, funding, and implementation of any recommended improvements is the responsibility of the appropriate governing agency. **Red curb and/or parking restriction signage should be provided between advance stop/yield markings and the crosswalk. Exact red curb distance should be determined in accordance with the CA-MUTCD and City policies/standards. Red curb not symbolized on map.
This figure is intended only for reference, conceptual planning, and informational purposes. This figure should not be used to establish boundaries, property lines, location of objects, or to provide any other information typically needed for final design, construction or any other purpose when engineered plans are required.
9.b
February 27, 2023
Packet Pg. 810
£101
Ã82
E R Burton
Park
Laureola
Park
Highlands
Park
McDougal
Park
Olive St
Walnut
St
Laurel S
t
on
r
El Camino Real
Club Dr
ARROYO
ARUNDEL
ELEMENTARY
BRITTAN
ACRES
ELEMENTARY
CENTRAL MIDDLE
HEATHER
ELEMENTARY
MARIPOSA
UPPER
ELMENTARY
CARLMONT
HIGH
TIERRA LINDA
MIDDLE
SAN CARLOS CHARTER
LEARNING CENTER
Cedart St
Arroyo Ave
Alameda de la Pulgas
Brittan Ave
Alameda de la Pulgas
Old County Rd
Industrial Rd
Arguello
Park
Devonshire Blvd
20 M
IN W
ALK / 8 M
IN BIKE
10 MIN WALK / 4 MIN BIKE
Clifton Ave
xet
RECOMMENDED ROUTES FOR WALKING AND BIKING TO SCHOOL
This recommended routes to school
map is intended to encourage
adults and students to consider
walking or bicycling to school. Adults
are responsible for choosing the
most appropriate option based on
their knowledge of different routes
and the skill level of their student.
MARIPOSA UPPER+TIERRA LINDA MIDDLE SCHOOLS
Map created December 2022
EXISTING BIKEWAYS
On-Street Bikeway
DESTINATIONS + BOUNDARIES
Caltrain Station
Park
City Boundary
Marked Crosswalk
Crossing Guard
Bike Parking
All Way Stop
Signalized Crossing
RECOMMENDED ROUTES TO SCHOOL
FEATURES ALONG THE ROUTE
School Access Point
Biking Route
Walking Route
Bicycle Boulevard
Rectangular Rapid
Flashing Beacons (RRFB)
0 0.25 0.5
MILES
0 0.25 0.5
MILES
AveerE
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Packet Pg. 811
Existing Conditions
Recommendations
City of San Carlos#
Implementing Agency
Existing Bike Parking
Existing Drop-off
Loop Circulation
Existing School
Access Point
Recommended
High-Visibility Crosswalk
Recommended Advanced
Stop Pavement MarkingSTOP
STOP STOP
STOPSTOP
Recommended
Sidewalk Improvements
Existing Class III Bicycle Route
White Oaks
Elementary
Park Avenue
White Oaks Way
Fairmont Avenue
Belmont Avenue
Chestnut Street
Cedar Street
Orange Avenue
Alberta Avenue
Near School Entrance/Drop-off Loop at White Oaks Way
1a. Repair por�on of the sidewalk damaged by tree roots to improve accessibility
Cedar Street
2a. Recommended upgrade to a Class III Bicycle Boulevard 2b. Consider installing traffic calming techniques consistent with bicycle boulevard best prac�ces
Belmont Avenue at Cedar Street
3a. Install high-visibility crosswalks at all stops
3b. Install advanced stop pavement markings at all stops St. Francis Way at Cedar Street
4a. Upgrade crosswalks at St. Francis Way to high-visibility crosswalks and straighten the southern crosswalk. Consider adding green infrastructure treatments where possible
1 City of San Carlos
Safe Routes to School Improvement Plan
WHITE OAKS ELEMENTARY SCHOOL
Walk Audit held December 2021
0 2
1 2
3 3
4 4
Recommended Class III
Bicycle Boulevard (from Bike Plan)
Improvements not to scale
200 ft
*The above items are recommendations only and based on Safe Routes to Schools site assessment best practices. Feasibility determination, final design, accessibility, funding, and implementation of any recommended improvements is the responsibility of the appropriate governing agency. **Red curb and/or parking restriction signage should be provided between advance stop/yield markings and the crosswalk. Exact red curb distance should be determined in accordance with the CA-MUTCD and City policies/standards. Red curb not symbolized on map.
This figure is intended only for reference, conceptual planning, and informational purposes. This figure should not be used to establish boundaries, property lines, location of objects, or to provide any other information typically needed for final design, construction or any other purpose when engineering plans are required.
Map created December 2022
9.b
February 27, 2023
Packet Pg. 812
£101
Ã82
Highlands
Park
Eaton Park
Centr
al Ave
Oliv
e St
Clinton St
Comm
ercial
St
Belle
Ave
Skyway Rd
Cherry St
Gracela
nd
Ave
Elwood
St
W
oodlandAve
Oakview Dr
Walnut
St
Alameda de La
s Pulgas
Hudson St
Chestnut St
WhiteOakWayArroyo Ave
Greenwood Ave
Hop
kins
Ave
Edge
Old C
ount
y Rd
Cedar St
Britt
an Ave
El
Cam
ino R
ea
l
Fairmont Ave
Eaton Ave
Warwick St
wood
Rd
SAN
CARLOS STUDENT
SERVICES PRESCHOOL
ARROYO
ARUNDEL
ELEMENTARY
BRITTAN
ACRES
ELE
MENT
ARY
CENTRAL
MIDDLE
HEATHER
ELEMENTARY WHITE OAKS
ELEMENTARY
20 M
IN W
ALK / 8 MIN BIKE
10 MIN WALK / 4 MIN BIKE
EXISTING BIKEWAYS
Off-Street Path
On-Street Bikeway
Bicycle Boulevard
DESTINATIONS + BOUNDARIES
Caltrain Station
Park
City Boundary
Marked Crosswalk
Signalized Crossing
RECOMMENDED ROUTES TO SCHOOL
FEATURES ALONG THE ROUTE
All Way Stop
School Access Point
Biking Route
Walking Route
Crossing Guard
Bike Parking
Rectangular Rapid
Flashing Beacons (RRFB)
0 0.25 0.5
MILES
WHITE OAKS ELEMENTARY SCHOOL
RECOMMENDED ROUTES FOR WALKING AND BIKING TO SCHOOL
This recommended routes to school
map is intended to encourage
adults and students to consider
walking or bicycling to school. Adults
are responsible for choosing the
most appropriate option based on
their knowledge of different routes
and the skill level of their student.
Map created December 2022
9.b
February 27, 2023
Packet Pg. 813
CITY COUNCIL
STAFF REPORT
MEETING DATE: February 27, 2023
ITEM TITLE: Consideration of Appointing Representatives to the Airport Land Use Committee.
RECOMMENDATION:
Appoint a primary and alternate representative to the City/County Association of Governments’ Airport Land Use Committee.
FISCAL IMPLICATIONS:
There are no fiscal implications associated with the recommendation.
BACKGROUND:
On January 9, 2023, the City Council approved updates to the City Council Subcommittees and Ad Hoc Committees for 2023. Since that time, the South Bayside Waste Management Authority (SBWMA) has updated its meeting schedule, which now conflicts with the City/County Association of Governments’ Airport Land Use Committee (ALUC) meetings. Mayor Rak serves as the primary representative on both the SBWMA and ALUC and therefore has elected to step down from the ALUC. Vice Mayor Ron Collins has been serving as the alternate member on ALUC in Mayor Rak‘s absence.
ANALYSIS:
The ALUC’s meetings are held on the fourth Thursday of every month at 4:00 p.m. This subcommittee of the City/County Association of Governments (C/CAG) was formed to advise and recommend actions related to Airport Land Use Plan updates and compatibility issues affecting the airports in San Mateo County. The ALUC currently meets remotely. However, beginning in March, it will resume in-person meetings.
At its February 23 meeting, the ALUC will determine whether to move meetings from 4:00 pm to 4:30 pm and whether its meeting location will be at the Burlingame Community Center or San Carlos Airport.
ALTERNATIVES:
The alternatives available to the City Council include:
1. Move Vice Mayor Collins from the ALUC alternate representative to the primary representative and appoint an alternate; or
9.c
February 27, 2023
Packet Pg. 814
2. Keep Vice Mayor Collins as the ALUC alternate representative and appoint a primary representative; or
3. Provide staff with alternative direction
Respectfully submitted by:
Nil Blackburn, Assistant City Manager
Approved for submission by:
_______________________
Jeff Maltbie, City Manager
ATTACHMENT(S):
1. City Council Subcommittees and Ad Hoc Committees for 2023 (Approved 1.9.23)
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Packet Pg. 815
Updated: 1/9/23 Page 1/3
CITY COUNCIL REGIONAL JPAs, BOARDS, AND COMMITTEE ASSIGNMENTS 2023
Primary/Alternate
Advance Life Support (ALS) (3rd Wed of Jan/May/Sept, 6:30 p.m.) Venkatesh/Dugan San Mateo County Pre-Hospital Emergency Medical Services Group. JPA for emergency ambulance services in San Mateo County.
Airport Roundtable (1st Wednesday of Feb/April/June/Aug/Oct/Dec, 7:00 p.m.) Venkatesh/Dugan A voluntary public forum established in 1981 for the discussion and implementation of noise mitigation strategies at San Francisco International Airport (SFO). www.sforoundtable.org/
Association of Bay Area Governments (ABAG) General Assembly (Annual meeting) Dugan/Rak Determine policy matters for the Association, including adopting annual general budget, and review recommendations of the Executive Board. http://abag.ca.gov/overview/ga.html
Belmont-San Carlos Fire Department (Meetings as needed) Collins & Dugan/McDowell Former fire protection services provider for San Carlos, Belmont, and the Harbor Industrial Area (HIA).
Caltrain Modernization Local Policy Maker Working Group (4th Thursday, 5:30 p.m.) Collins/Venkatesh Regional committee of Council Members and County Supervisors along the Caltrain corridor in San Francisco, San Mateo, and Santa Clara counties. The group receives updates and provides comments on the Caltrain Modernization program which includes Caltrain Electrification, Blended Operations and Caltrain/California High Speed Rail operations. www.caltrain.com/projectsplans/CaltrainModernization.html
City/County Association of Governments (C/CAG) (2nd Thursday, 6:30 p.m.) Rak/Venkatesh Association of cities + County on issues affecting San Mateo County. http://ccag.ca.gov/
Airport Land Use Committee (ALUC) (4th Thursday, 4:00 p.m.) Rak/Collins Subcommittee of the City/County Association of Governments formed to advise and recommend actions regarding the updating of Airport Land Use Plan land use compatibility issues affecting the airports in San Mateo County. http://ccag.ca.gov/committees/airport-land-use-committee/
Emergency Services Council (Quarterly on 3rd Thursday, 5:30 p.m.) Dugan/McDowell Countywide Board that prepares for mutual aid response in the event of a natural disaster or act of terrorism. Staffed through the County Sheriff’s office, this Council is funded by a 21 member -agency JPA, and funds activities including HAZMAT, mutual aid communications, and OES response staffing. https://bnc.smcgov.org/emergency-services-council
Grand Boulevard Initiative (Quarterly) Collins/Rak
A regional collaboration dedicated to the revitalization of the El Camino Real corridor, as it runs through San Mateo and Santa Clara counties in the California Bay Area. www.grandboulevard.net
Home for All (Meetings as needed) Venkatesh/Dugan Public, private and nonprofit agencies collaborative to address the job/housing gap and determine solutions that can be implemented County-wide. https://homeforallsmc.org/
League of California Cities, Peninsula Division (Meets Quarterly) All Represents all cities in California on legislative matters in Sacramento. The Peninsula Division runs from San Francisco to Gilroy and meets quarterly on the peninsula plus an annual breakfast to elect officers of the division during the League of California Cities Annual Conference. www.cacities.org/Member-Engagement/Regional-Divisions/Peninsula I. APPOINTMENTS TO OTHER AGENCIES – CITY OF SAN CARLOS REPRESENTATIVE(S)
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II. APPOINTMENTS TO OTHER AGENCIES – AGENCY, NOT CITY APPOINTED (Requires Application by an Interested Council Member, When Positions Are Available) III. APPOINTMENTS TO CITY COUNCIL COMMITTEES & COUNCIL AD-HOC COMMITTEES Library Governing Board JPA (Meets five times a year on Mondays, 8:15 a.m.) McDowell/Dugan JPA for county library services. www.smcl.org
Peninsula Clean Energy JPA Board (4th Thursday, 6:30pm) Dugan/Venkatesh San Mateo County’s official electricity provider. http://www.peninsulacleanenergy.com/
Peninsula Congestion Relief Alliance McDowell/Venkatesh (3rd Thursday in Feb/Apr/June/Sept/Nov, 8:00 a.m.)
Transportation systems management: shuttles/carpooling/Spare the Air information. www.commute.org
San Mateo County Council of Cities (Last Friday of Month) All Mayors and Councilmembers from San Mateo County’s 20 cities meet monthly to discuss issues/receive presentations on issues of mutual concerns. www.councilofcities.org
City Selection Committee (Meets prior to Council of Cities). Mayor/designee votes on appointments Subcommittee of Council of Cities. Business meeting starts at 6:15 p.m. in order to vote on appointments to regional boards. Location changes monthly.
San Mateo County Convention and Visitors Bureau (Monthly) All Funded by contributions of local hotels, motels, restaurants, museums, and tourist attractions in the County.
Publishes monthly guides of events in the County hosted by member businesses. www.smccvb.com/
San Mateo County Mosquito and Vector Control District Board of Trustee Collins (term ends 12/31/24) Trustees are responsible for the development and approval of policies and for approving financial transactions, expenditures, the operational budget, and yearly audit for the District.
Silicon Valley Clean Water (2nd Monday, 8:00 a.m.)
JPA for sewage/wastewater treatment services. www.svcw.org Collins/Dugan
South Bayside Waste Management Authority (4th Thursday, 2:00 p.m.) Rak/Venkatesh JPA for solid waste and recycling services. www.rethinkwaste.org
Housing and Community Development Committee (HCDC) Collins HCDC makes recommendations to the Board of Supervisors related to the expenditure of all housing and community development funds to review and provide a forum for public comment on affordable housing and community development needs. www.housing.smcgov.org/hcdc
Housing Endowment and Regional Trust (HEART) Board (4th Wednesday monthly, 3:00 p.m.) McDowell HEART is a Joint Powers Authority nonprofit organization, whose board consists of 10 elected officials and 10 members of the private sector who work to create more affordable housing throughout the County.
Appointed by the City Selection Committee. www.heartofsmc.org
2+2 – City/School District (as needed) McDowell and Rak Informal liaison committee between school district and City on areas of mutual concern.
Age-Friendly Initiative Subcommittee McDowell and Venkatesh
Childcare Subcommittee McDowell and Venkatesh
Code of Conduct and Ethics Policy Subcommittee Collins and Venkatesh
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IV. COUNCIL LIAISONS TO OTHER ASSOCIATIONS & NON-PROFIT ORGANIZATIONS Communication Subcommittee Dugan and Venkatesh
Downtown Subcommittee Collins and Venkatesh
Economic Development Subcommittee McDowell and Rak
Employee Recruitment and Retention Subcommittee Dugan and McDowell Four Corners Working Group (Belmont-San Carlos Cranfield Carlmont Traffic) Collins and McDowell Housing Subcommittee Collins and Dugan
Industrial Arts Subcommittee McDowell and Rak
Legislative Subcommittee McDowell and Rak
Parks and Recreation Public Art Task Force Dugan
Trails and Open Space Subcommittee Dugan and Rak
Transportation & Circulation Subcommittee Collins and Dugan
Harbor Industrial Association (1st Thursday, noon, lunch at Van’s in Belmont) All San Carlos Educational Foundation Dugan
Chamber San Mateo County McDowell
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