THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT AGjiEEMENT This THIRD AMENDMENT TO DISPOSITION AN]) DEVELOPMENT AGREEMENT ("Zl@&d..!41aeed!!!Cef") is made and entered into effective as of August .39., 2022(".Zl&&id ,4mepzdmemf Z)a/e"), by and between the CITY OF SAN PABLO, a Califomia municipal corporation ("glZli"), and DANCO COMMUNITIES, a California corporation ("Z)eve/oder").
Recitals
A. The City and the Developer entered into that certain Disposition and Development Agreement dated February 1, 2021 ("£Q4") providing for the sale and development of a portion ("f&g") of that certain real property more commonly known as the former San Pablo City Hall located at 1 383 1 San Pablo Avenue, San Pablo, California. The City and the Developer amended the DDA by that certain First Amendment to Disposition and Development Agreement (".lqrsf ,4mezzdme/zf") entered into as of June 7, 202 I ("/'frfr .4memdhem/ I)a/e") and that certain Second Amendment to Disposition and Development Agreement ("Secozzd.4memdmemf") entered into as ofAugust 12, 2021 ("Seed d.4memdmeHr I)afe"). The term DDA, as used hereinafter, means and refers to the DDA as modified by the First Amendment and the Second Amendment.
B. Pursuant to the DDA, on February 8, 2021, the Developer deposited the sum of $75,000.00 ("Z)Coos/f") with the Escrow Agent as security for the performance of its obligations.
C. Under the DDA, no later than the earlier to occur of (a) ten days from receipt by the Developer of notice of an award of tax credits from the California Tax Credit Allocation Committee or (b) August 3 1, 2022, the Developer is required to increase the Deposit to a sum that equals ten percent (1 0%) of the Purchase Price 6or the Site. Further, under the DDA, the Developer is required to close escrow for the purchase of the Site no later than September 30, 2022.
D. The Developer has submitted multiple applications for tax credits, but has so far been unsuccessful due to the substantial competition for this funding source. The Developer has requested an extension of the deadline for increasing the Deposit to ten percent (10%) of the Purchase Price, together with an extension of the time to close escrow, and the City desires to agree to the extensions as set forth herein.
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as follows:
1 .
reference
Recitals The Recitals are true and correct and incorporated herein by this SPB/3rdAmDDACityHallProject l 080922
2. Terms. All undefined terms when used herein shall have the same respective meanings as are given such terms in the DDA unless expressly provided otherwise in this Third Amendment.
3. Extension to Timing . The first paragraph of Section 1 .4 of the DDA is hereby amended to read as follows:
"Immediately upon the opening of the escrow for conveyance of the Site from the City to the Developer, the [)eveloper sha]] deliver to the Escrow Agent a deposit in the amount of SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00) (the "Deposit") as security for the performance of the obligations of the Developer to be performed prior to the retum of the Deposit to the Developer or its retention by the City as liquidated damages. A TEN THOUSAND DOLLAR ($10,000.00) portion of the Deposit shall be immediately nonrefundable, except in the event ofa default by the City under this Agreement, or, if applicable, the failure to negotiate a resolution of environmental matters as provided in Section 2.1.2. An additional TEN THOUSAND DOLLAR ($10,000.00) portion of the Deposit shall be nonrefundable effective June 8, 2021 , except in the event of a default by the City under this Agreement. No later than the earlier to occur of (a) ten (lO) days from receipt by the Developer of notice of an award of tax credits from the California Tax Credit Allocation Committee or (b) March 22, 2023, the Developer shall increase the amount of the Deposit to a sum that equals ten percent (10%) of the Purchase Price, and thereaRer the entire amount of the Deposit shall be nonrefundable, provided, however, that if this Agreement is terTninatcd by the Developer due to the Developer's inability to obtain Hlnancing for the development of the Site as contemplated therein, after and despite the Developer's good faith efforts to obtain such financing, the nonrefundable portion of the Deposit shall be limited to either (1) the sum of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) if the termination occurs within sixty (60) days from the date set for the close ofescrow in the notice to vacate from the Developer, if the City has begun to relocate the remaining employees from the Site or (2) the sum of TWENTY THOUSAND DOLLARS($20,000.00)."
4. :An€pd gilt !Q Ti jpg !b! QIQ$$ QI $;$£;rgW. The date to complete paragraph number 13, titled "Close of Escrow" set forth in the Schedule of Performance, Attachment No. 3 of the DDA, is hereby amended to read as follows:
"As soon as practicable after the satisfaction of all conditions precedent to close of escrow, but in no event later than April 22, 2023, except that if tax credits are awarded, the close of escrow shall be no later than 1 80 days from the tax credit reservation date provided by TCAC."
5. Amended Schedule of Performance. The "Schedule of Performance" attached to the DDA as "Attachment No. 3" is hereby deleted in its entirety and replaced by the "Third SPB/3rdAmDDACityHallPrqect 2 080922
Amendment, Schedule of Performance" attached to this Third Amendment as "Third Amendment, Attachment No. 3" and incorporated herein by this reference.
6. NQ QtbQ! )llQdifications. Except as otherwise provided herein, all other terms and provisions of the DDA shall remain in full force and effect, unmodified by this Third Amendment.
To the extent of any inconsistency with the terms and conditions of the DDA, the terms and conditions of this Third Amendment shall govem. Nothing in this Third Amendment shall be deemed to reduce the rights and remedies under the DDA.
7. jill!!deg..E!@f!. The provisions of this Third Amendment shall be binding upon and inure to the benefit of the heirs, representatives, successors and permitted assigns of the City and the Developer.
8. Governing Law. The provisions of this Third Amendment shall be construed and enforced in accordance with the laws of the State of California.
9. Authoritv. The City and the Developer represent and warrant that they have the requisite authority to bind the entity on whose behalf they are signing.
10. Counterparts. This Third Amendment may be executed in any number of counterparts. Any such counterpart, when executed, shall constitute an original of this Third Amendment, and all such counterparts when appropriately delivered between the City and the Developer shall constitute one and the same final Third Amendment. ]N WITNESS WHEREOF, the City and the Developer have executed this Third Amendment as of the Third Amendment Date first set forth above. "ciV"
CITY OF Califomia municipal
"Developer"
SPB/3rdAmDDACityHallProject 3 080922
THIRDAMENDMENT,ATTACHMENTN0.3
Action Date
l E gQyljQn of Agre91tlQtlt. The City Council shall
consider this Agreement and, if authorized, shall
execute and deliver this Agreement to the Developer.
Within 30 days acer this Agreement is
executed by the Developer and delivered
to the City. COMPLETED.
2. 3
4 QpQDing of EsclQW. The City shall open an escrow for
conveyance of the Site. (Section 2.3)
Within 5 days of the Effective Date of
this Agreement. COMPLETED.
Subm psion -- Deposit. The Developer shall deliver the
Deposit to the Escrow Agent. (Section 1 .4)
Concurrently with the opening of the
escrow by the City. COMPLETED.
Preliminary Documents. The City shall deliver or cause
to be delivered the Preliminary Documents to the
Developer. (Section 2.2)
Within 5 days aren the opening of
escrow. COMPLETED.
5 Submission -- Preliminary Evidence Qf:Einanfing. The
Developer shall submit to the City for review and
approval the Developer's preliminary evidence of
financing necessary for development of the Site,
provided such required evidence shall not include the
anticipated tax credits or purchase of such tax credits as part or all of Developer's equity requirement. (Section
2.15)
Within 60 days after the Effective Date
ofthis Agreement. COMPLETED.
6 Approval -- PreliminarLEvidence of Financing. The
City shall approve or disapprove Developer's
preliminary evidence of financing. (Section 2. 1 5)
Within 30 days after receipt thereof by
the City and prior to the close of escrow
for conveyance of the Site to the
Developer. COMPLETED.
7. Feasibility Period. The Developer shall evaluate the condition of the Site and notify the City whether the
Developer approves or disapproves the condition of the
Site. (Section 2.2)
Within 1 20 days from the Effective Date
of this Agreement. COMPLETED.
Third Amendment, Attachment No. 3
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Action Date
7A Dep(!$il !11frga$f. The Developer shall increase the amount of the Deposit to a sum that equals 10% of the
Purchase Price of the Site. (Section 1 .4)
No later than the earlier to occur of (a)
ten (lO) days from receipt by the
Developer of notice of an award of tax
credits aom the Califomia Tax Credit
Allocation Committee or (b) March 22,
2023.
8 Submission -- Foal ElidfnfS..!!!jE!!!a!!f!!!g. Developer shall submit to the City for review and approval the
Developer's amal evidence of financing necessary for
development of the Site, including any applicable tax
credits or other governmental funding. (Section 2.15)
Not later than 30 days prior to the
estimated date for the close of escrow.
9 Anoroval -- Final Evidf11fg..ef.!!j!!a!!fang. City shall approve or disapprove Developer's final evidence of
nmancing. (Section 2.15)
Within 30 days after receipt thereof by
the City and prior to the close of escrow
for conveyance of the Site to the
Developer.
10 Submission -- Certificates of InsuranQQ. Developer
shall fumish to the City duplicate originals or
appropriate certificates of bodily injury and property
damage insurance policies. (Section 3.1 .8)
Prior to the close of escrow for
conveyance of the Site to the Developer.
1 1 City DeliyQlgg113111.D£9d:.l!!!g.E$££gW. City shallhave executed and delivered the grant deed for the Site into escrow. (Section 2.9)
Prior to the close of escrow for
conveyance of the Site to the Developer.
12 Developer D
Housing RQ
Developer shall have delivered the Purchase Price into
escrow and City and Developer shall have executed and
delivered the Affordable Housing Regulatory
Agreement into escrow. (Section 2. 10)
Prior to the close of escrow for
conveyance of the Site to the Developer.
13 Close of Escrow. The City shall convey or cause
conveyance of title to the Site to the Developer, and the Developer shall accept such conveyance. (Section 2.7)
As soon as practicable after the
satisfaction of all conditions precedent to
close of escrow, but in no event later than
April 22, 2023, except that if tax credits
are awarded, the close of escrow shall be
no later than 1 80 days h'om the tax credit
reservation date provided by TCAC.
Third Amendment, Attachment No. 3
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Action Date
14 CoinmencemQ
improvements Q11 !b9..Silk. Developer shall commence
construction of the improvements on the Site. (Section
3.1.7)
Within 30 days acer the close of escrow
for conveyance of the Site to the
Developer.
15 Comoletion of fp!!iD.!!f!!pn. Developer shall complete construction of the improvements on the Site. (Section
3. 1 .7) Developer shall provide evidence of compliance with the Local Employment and Contracting
requirements of Section Vlll of Attachment No. 4.
Within 24 months
commencement thereof.
after the
16 Issuance -- Cei!!jl£@!9..g£.£9111121gligD. The City shall fumish Developer with a Certificate of Completion.
(Section 3.6)
Af:ter completion of all construction
required for the improvements on the
Site.
Third Amendment, Attachment No. 3
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