EXHIBIT J-3
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
For purposes of this Revised DDA Schedule of Performance, the following definitions shall apply. Many terms used herein but not separately defined herein shall have the meanings of those terms as set forth in the DDA.
• CD Director – Community Development Director of the City of San Leandro • Certificate of Occupancy –means a final certificate of occupancy issued by the City. A Certificate of Occupancy (C of O) is a document issued by Building & Safety which certifies that a commercial space or newly constructed residential building, has been inspected for compliance with the California Building Standards Code and local ordinances which govern construction and occupancy.
• Commence Construction – means building or other permit has been issued for the applicable work of improvement and substantial work under the permit has begun. • Developer Project Elements – means the Single Family Element, Golf Course Element, Developer Hotel Element, Multifamily Element, Developer Restaurant Element, Market Element, Monarch Bay Drive Element, and Infrastructure Element (as those terms are defined in the DDA).
• Developer Western Elements – means the Developer Project Elements to be located to the west of Monarch Bay Drive, including Developer Hotel Element, Multifamily Element, Developer Restaurant Element, Market Element, and Park Promenades. • ET Director – Director of Engineering and Transportation of the City of San Leandro • Horizontal Improvements – means improvements to the underlying land and infrastructure before the Vertical Improvements can be realized. This includes installation of onsite and offsite utilities and upgrades to existing utility facilities as required, including, but not limited to sanitary sewer, storm drain, water, natural gas, electricity and fiber optic internet service. • Permit Issuance – means the time in which the city and/or other applicable jurisdiction has approved and issued the Building, Grading or other required permit for the Developer, including payment of all fees and compliance with all applicable requirements and conditions, and the Developer is approved to begin work. If multiple permits are to be issued for phases of work within the same stage of construction (Site Preparation, Horizontal Improvements or Vertical Improvements). Permit Issuance shall mean the date on which the first permit is issued to allow for commencement of such stage. • Post Closing PSA Requirements – means Seller’s Conditions Precedent to Closing in the Single Family Purchase and Sale Agreement (‘PSA’), which may be satisfied after the date of the Closing in lieu of being satisfied before the Closing, within the times set forth in the Schedule of Performance, as described in the Second and Third Amendments to the Purchase and Sale Agreement and Disposition and Development Agreement between the City and the Developer.
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
• Post Commencement Ground Lease Requirements – means City’s Ground Lease Commencement Conditions Precedent, as set forth in the DDA, which may be satisfied after the Effective Date of the applicable Ground Lease in lieu of being satisfied before Ground Lease Commencement, within the times set forth in the Schedule of Performance, as described in the Second and Third Amendments to the Purchase and Sale Agreement and Disposition and Development Agreement between the City and the Developer. • Site Preparation – means all site preparation required for development of each of the Developer Project Elements, as well as the Park Promenades and boat launch. Site Preparation shall include tree removal, demolition of existing buildings and hardscape improvements, including but not limited to asphalt pavement, concrete sidewalk, curb and gutter, and other improvements, floodplain and sea level rise mitigation, surcharging, geotechnical mitigation, and rough grading in accordance with the Scope of Development, this Schedule of Performance, and Shoreline Responsibility Map (Exhibit R) of the DDA. • Substantial Completion – means the stage in the progress of the work where the work or designated portion is sufficiently complete in accordance with the Contract Documents so that the Developer can occupy or utilize the work for its intended use. The City or its designated representative shall determine in its sole discretion when Substantial Completion is achieved and will issue a list of remaining items of work (Punch List) in the issuance of the Notice of Substantial Completion that must be completed and accepted before Final Completion.
• Vertical Improvements – means construction and/or installation of buildings, structures (including foundations), landscaping, lighting, streets, sidewalks, curb and gutter, parking areas, stormwater bioretention treatment areas, and other improvements to be constructed or installed on or in connection with the development of the Project.
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Task Time for Performance
1. Entire Project
Agreement Date Executed July 22, 2020
Developer submits Initial Application for
Governmental Entitlements to City
Completed by May 31, 2021
City holds public hearing on Complete
Application for Governmental Entitlements
By July 31, 2022
Development Agreement for the Project is
approved by both Parties
By August 31, 2022
2. MappingRequirements
Site visibility analysis for all public/private
streets and private street/drive alleyway
intersection within the Single Family Element is
approved by the ET Director.
Prior to approval of Final Map for any
future subdivision for Single Family
Element
Plan for sea level rise mitigation for the Single
Family Element is approved by ET Director
Prior to approval of Final Map for any
future subdivision for Single Family
Element
Waste management plan for the Single Family
Element is approved by the hauler and the City
Prior to approval of Final Map for any
future subdivision for Single Family
Element
3. Site Preparation
Developer Hotel, Developer Restaurant, Market, and Multifamily Elements, and Park Promenade (‘Developer Western Elements’)
Developer and City enter Public Improvement
Agreement for Developer Western Elements and
other Public Improvements
Prior to Permit Issuance for Site
Preparation for Single Family Element or
approval of final map for any future
subdivision for Single Family Element
Developer completes Post-Commencement
Ground Lease Requirements for General
Contractor, Construction Contract, and Bonds
and Security
Prior to issuance of Permits for Site
Preparation for each Developer Western
Elements
Developer obtains all necessary City and other
public agency permits for Site Preparation for
Prior to the first to occur: 1) Permit
Issuance for Vertical Improvements for any
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Developer Western Elements and commences
construction
one of Developer Project Elements,
including the first single family or
townhome, or 2) 24 months following
Effective Date of Ground Leases for
Developer Hotel, Developer Restaurant,
Market and Multifamily Elements
Developer substantially completes Site
Preparation for Developer Western Elements
Within 24 months following
commencement of construction of Site
Preparation for Developer Western
Elements
4. Monarch Bay Drive Element
Developer commences construction of Monarch
Bay Drive Element
Prior to the first to occur: 1) Permit
Issuance for Vertical Improvements for any
one of Developer Project elements,
including the first single family or
townhome or 2) as otherwise approved in
the applicable Public Improvement
Agreement
Developer substantially completes Monarch Bay
Drive Element
Prior to the first to occur: 1) Issuance of a
Certificate of Occupancy for any one of
Developer’s Project Elements, including
the first single family or townhome or 2)
24 months following the commencement of
construction of the Monarch Bay Drive
Element, with final timing as to be
approved by City in the applicable Public
Improvement Agreement
5. Infrastructure Element
In accordance with the Development Agreement, City and Developer shall use good faith efforts to coordinate and make compatible the construction schedules for the City’s construction of the Park Element with Developer’s construction of Project Elements adjacent to the Park Element.
Developer substantially completes Park Element
Parking Lot and improvements to Mulford Point
Drive
Prior to the first to occur: 1) Issuance of a
Certificate of Occupancy for the Developer
Hotel Element or Developer Restaurant
Element or 2) Substantial Completion of
the Park Element
Developer substantially completes improvements
to Pescador Point Drive
Prior to the first to occur: 1) Issuance of a
Certificate of Occupancy for the
Multifamily Element or 2) Substantial
Completion of the Park Element
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Developer substantially completes Hotel
Promenade
Prior to the first to occur: 1) Issuance of
Certificate of Occupancy for the Developer
Hotel or 2) Issuance of Certificate of
Occupancy for the Developer Restaurant
Developer substantially completes the
Multifamily Promenade
Prior to issuance of Certificate of
Occupancy for the Multifamily Element
Developer substantially completes boat launch
relocation
Prior to Substantial Completion of the Park
Element
6. Single Family Element
Effective Date Executed July 22, 2020
Opening of Escrow Completed August 13, 2020
Initial Deposit due Completed August 21, 2020
Second Deposit due Completed April 1, 2021
Escrow Holder delivers a Preliminary Title
Report for the Property
Delivered August 24, 2020
Due Diligence Contingency Date March 31, 2021
Developer submits Initial Application for
Governmental Entitlements to City
Completed June 1, 2021
City holds public hearing on Application for
Governmental Entitlements
By July 31, 2022
Developer and City enter into Public
Improvement Agreement for Single Family
Element, and Developer submits required security
to City
Prior to the first to occur of: 1) Approval of
final map for any future residential
subdivision for the Single Family Element
or 2) Permit Issuance of Grading Permits
for Site Preparation for Single Family
Element
Close of Escrow for Single Family parcel occurs By December 31, 2022 Developer Completion of all of the Post-Closing
PSA Requirements
Prior to the first to occur of 1) Permit
Issuance for Site Preparation for Single
Family Element, or 2) 24 months after
Close of Escrow for the Single Family
Element.
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Developer commences construction of Site
Preparation for Single-Family Element
Within the first to occur of: 1) 90 days after
Permit Issuance for Site Preparation for the
Single Family Element or 2) 24 months
following Close of Escrow for the Single
Family Element
Developer substantially completes Horizontal
Improvements for Single Family Element
Within 36 months of Commencement of
Construction of Site Preparation for the
Single Family Element
7. Golf Course Element
Submit Golf Course Implementation Plan to City November 19, 2021 (completed) Developer and City enter Public Improvement
Agreement for Golf Course Element, and
Developer submits required security to City
Prior to Permit Issuance for Site
Preparation for Single Family Element
Developer commences construction of Golf
Course Element
Within 90 days after Permit Issuance for
Site Preparation for Golf Course Element
Developer substantially completes construction of
Golf Course Element and all major construction
is complete and only minor work and/or
maturation of landscaping remains, as accepted
by the Directors of Engineering and
Transportation and Public Works.
Within 36 months of Commencement of
Construction of Golf Course Element and
prior to sale of 133rd residential unit within
the Single-Family Element
8. Developer Hotel Element
All conditions precedent to commencement of
Developer Hotel Ground Lease (except for the
Post-Commencement Conditions) are satisfied or
waived by the parties.
By December 31, 2022
Effective Date - Execution and commencement of
Developer Hotel Ground Lease occurs.
By December 31, 2022
Developer obtains Permit Issuance for Horizontal
Improvements for the Developer Hotel Element
Within 48 months following Effective Date
of Developer Hotel Ground Lease
Developer commences construction of Horizontal
Improvements for the Developer Hotel Element
Within the first to occur of 1) 90 days after
Permit Issuance for Horizontal
Improvements, or 2) 51 months following
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Effective Date of Developer Hotel Ground
Lease
Developer substantially completes Horizontal
Improvements for Developer Hotel Element
Within 24 months of commencement of
construction of Horizontal Improvements
for Developer Hotel
Developer completion all of the remaining PostCommencement Ground Lease Requirements for Hotel Element
Prior to the first to occur of 1) Permit
Issuance for Vertical Improvements for
Developer Hotel Element, or 2) 75 months
following Effective Date of Developer
Hotel Lease
Developer commences construction of Vertical
Improvements for Developer Hotel Element
Within the first to occur of 1) 90 days of
Permit Issuance for Vertical Improvements
for Developer Hotel, or 2) 78 months
following Effective Date of Developer
Hotel Ground Lease
Developer completion of Construction of Vertical
Improvements and receives Temporary
Certificate of Occupancy (TCO) for the
Developer Hotel.
Within 42 months after Permit Issuance for
Vertical Improvements for Developer
Hotel
Developer Hotel opens for business to the public Within 90 days after receipt of Temporary Certificate of Occupancy (TCO) for
Developer Hotel
Rent Commencement Date occurs The earliest to occur of: 1) 90 days after receipt of TCO, 2) 46 months after Permit
Issuance for Vertical Improvements for
Developer Hotel, or 3) 60 months
following Effective Date of Developer
Hotel Ground Lease
9. Multifamily Element
All conditions precedent to commencement of
Multifamily Ground Lease (except for the PostCommencement Conditions) are satisfied or waived by the parties.
By December 31, 2022
Effective Date - Execution and commencement of
Multifamily Ground Lease occurs.
By December 31, 2022.
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Developer obtains Permit Issuance for Horizontal
Improvements for the Multifamily Element
Within 48 months following Effective Date
of Multifamily Ground Lease
Developer commences construction of Horizontal
Improvements for the Multifamily Element
Within first to occur of 1) 90 days of
Permit Issuance for Horizontal
Improvements, or 2) 51 months following
Effective Date of Multifamily Ground
Lease
Developer substantially completes Horizontal
Improvements for Multifamily Element
Within 24 months of Commencement of
Construction of Horizontal Improvements
for Multifamily Element
Developer completes all remaining PostCommencement Ground Lease Requirements for Multifamily Element
Prior to first to occur: 1) Permit Issuance
for Vertical Improvements for Multifamily
Element or 2) 75 months following
Effective Date of Multifamily Ground
Lease
Developer commences construction of Vertical
Improvements for Multifamily Element
Within first to occur of 1) 90 days of
Permit Issuance for Vertical Improvements
for Multifamily Element, or 2) 78 months
following Effective Date of Multifamily
Ground Lease
Developer substantially completes Vertical
Improvements and obtains Temporary Certificate
of Occupancy (TCO) for Multifamily Element
Within 46 months after Permit Issuance for
Vertical Improvements for Multifamily
Element
Rent Commencement Date occurs The earliest to occur of: 1) 90 days after receipt of TCO, 2) 46 months after Permit
Issuance for Vertical Improvements for
Multifamily Element, or 3) 60 months
following Effective Date of Multifamily
Ground Lease
10. Developer Restaurant Element
All conditions precedent to commencement of
Developer Restaurant Ground Lease (except for
the Post-Commencement Conditions) are
satisfied or waived by the parties
By December 31, 2022
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Effective Date - Execution and commencement of
Developer Restaurant Ground Lease occurs
By December 31, 2022
Developer obtains Permit Issuance for Horizontal
Improvements for the Developer Restaurant
Element
Within first to occur of 1) 60 months
following Effective Date of Developer
Restaurant Ground Lease or 2) 12 months
prior to substantial completion of
Developer Hotel
Developer commences construction of Horizontal
Improvements for the Developer Restaurant
Element
Within first to occur of 1) 90 days of
Permit Issuance for Horizontal
Improvements, or 2) 63 months following
Effective Date of Developer Restaurant
Ground Lease
Developer substantially completes Horizontal
Improvements for Developer Restaurant Element
Within 18 months of Commencement of
Construction of Horizontal Improvements
for Developer Restaurant Element
Developer completion of all of the remaining
Post-Commencement Ground Lease
Requirements for Developer Restaurant Element
Prior to first to occur of 1) Permit Issuance
for Vertical Improvements for Developer
Restaurant Element, or 2) 81 months
following Effective Date of Developer
Restaurant Ground Lease
Developer commences construction of Vertical
Improvements for Developer Restaurant Element
Within first to occur of 1) 90 days of
Permit Issuance for Vertical Improvements
for Developer Restaurant Element, or 2) 84
months following Effective Date of
Developer Restaurant Ground Lease
Developer substantially completes Vertical
Improvements and receives Temporary
Certificate of Occupancy (TCO) for Developer
Restaurant Element
Within 24 months after Permit Issuance for
Vertical Improvements for Developer
Restaurant Element.
Rent Commencement Date occurs The earliest to occur of: 1) 90 days after receipt of TCO, 2) 24 months after Permit
Issuance for Vertical Improvements for
Developer Restaurant Element, or 3) 72
months following Effective Date of
Developer Restaurant Ground Lease
11. Market Element
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
All conditions precedent to commencement of
Market Ground Lease (except for the PostCommencement Conditions) are satisfied or waived by the parties.
By December 31, 2022
Effective Date - Execution and commencement of
Market Ground Lease occurs.
By December 31, 2022.
Developer obtains Permit Issuance for Horizontal
Improvements for the Market Element
Within 60 months following Effective Date
of Market Ground Lease
Developer commences construction of Horizontal
Improvements for the Market Element
Within first to occur of 1) 90 days of
Permit Issuance for Horizontal
Improvements, or 2) 63 months following
Effective Date of Market Ground Lease
Developer substantially completes Horizontal
Improvements for Market Element
Within 24 months of Commencing
Construction of Horizontal Improvements
for Market Element
Developer completion of all remaining PostCommencement Ground Lease Requirements for Market Element
Prior to first to occur of 1) Permit Issuance
for Vertical Improvements for Market
Element, or 2) 87 months following
Effective Date of Market Ground Lease
Developer commences construction of Vertical
Improvements for Market Element
Within first to occur of 1) 90 days of
Permit Issuance for Vertical Improvements
for Market Element, or 2) 90 months
following Effective Date of Market Ground
Lease
Developer substantially Completes Vertical
Improvements and receives Temporary
Certificate of Occupancy (TCO) for Market
Element
Within 18 months after Permit Issuance for
Vertical Improvements for Market Element
Rent Commencement Date occurs The earliest to occur of: 1) 90 days after receipt of TCO, 2) 36 months after Permit
Issuance for Vertical Improvements for
Market Element, or 3) 72 months following
Effective Date of Market Ground Lease
It is expressly understood and agreed by the Parties that the foregoing schedule of performance is subject to all of the terms and conditions set forth in the text of the Disposition and
REVISED DDA SCHEDULE OF PERFORMANCE
(December 2022 Revision)
Development Agreement including, without limitation, extension due to Force Majeure. Times of performance under the Disposition and Development Agreement may be extended by request of any Party memorialized by a mutual written agreement between the Parties, which agreement may not be unreasonably denied or delayed by the non-requesting Party (subject to events of force majeure set forth in the Disposition and Development Agreement). 5119244.1