Agenda, regular meeting — St. Helena City Council, October 11, 2022 (part 1 of 3)

City of St. Helena
Regular City Council Meeting
Tuesday, October 11, 2022 @ 6:00 PM
Vintage Hall Board Room - Second Floor
465 Main Street, St. Helena

PLEASE NOTE: Any person who wishes to speak regarding an item on the agenda or make a comment under the "Oral Communication" portion of the agenda may do so, but please observe the time limit of four minutes.

The City Council meeting will be live-streamed on Comcast Channel 28 and on the City’s website. Public comment for City Council meetings will be accepted via email to [email protected]. All public comments must be emailed by two hours prior to the meeting. Emailed public comments will not be read out loud but will be publicly available and attached to the on-line City Council agenda.

The schedule of upcoming meetings and published meeting agendas can be found on the City of St. Helena website at https://sthelena.civicweb.net/portal/.

Simultaneous Spanish interpretation services during meetings can be scheduled upon request.

To ensure interpreters are available, requests must be made at least 72 hours in advance by calling the Office of the City Clerk at (707) 968-2640 or emailing [email protected].

Servicios de interpretación en español durante la reunión pueden ser solicitados por el público.

Para asegurar que los intérpretes estén disponibles, los servicios tienen que ser solicitados al menos 72 horas antes de la reunión llamando a la oficina de la Secretaria de la Ciudad al (707) 968-2640 o por correo electrónico a [email protected] .

El horario de las reuniones publicadas y próximas puede ser localizado en el sitio de web de la Ciudad en https://sthelena.civicweb.net/portal/ .

Page

1. CALL TO ORDER

2. ROLL CALL
Mayor: Geoff Ellsworth, Vice Mayor: Paul Dohring, City Council Members: Anna Chouteau, Eric Hall and Lester Hardy

3. PLEDGE OF ALLEGIANCE

4. ADOPTION OF THE AGENDA

5. PUBLIC FORUM:

Members of the public are entitled to speak on matters of municipal concern not on the agenda during Public Forum. Each person’s comments shall be limited to 4 minutes. Each person is entitled to speak on any non-agendized item only once at any meeting. Brief questions by Council Members for clarifications may be posed and answered, and Council Members may make requests that items be placed on future agendas, but in accordance with state law, no substantive discussion or action may take place unless and until the matter properly appears on the agenda.

5.1. Public Comment.Garry Rose 7

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5.2. Public Comment.Durriya Syed1
Public Comment.Durriya Syed2
Public Comment.Durriya Syed3
Public Comment.Durriya Syed4
Public Comment.Durriya Syed5
9 - 17

6. REPORTS BY STAFF AND CITY COUNCIL, FUTURE AGENDA ITEMS, AND AB 1234 REPORTS:

Reports by staff and/or Council Members on items of general interest. Brief questions for clarification may be posed and answered, and Council Members may request that items be placed on a future agenda. Except under certain circumstances, the Brown Act prohibits any other discussion or action by the City Council.

7. PRESENTATIONS AND PUBLIC RECOGNITIONS

7.1. Oath of Office and Introduction for:

1. Joe Leach, Director of Public Works

2. Jesus Gonzalez, Accounting Technician I

7.2. National Friends of Libraries Week Proclamation 2022 National Friends of Libraries Week Proclamation 2022
19 - 20

7.3. Domestic Violence Awareness Month October 2022 Proclamation NEWS Proclamation
21 8. CONSENT ITEMS
Members of the Council or the public may ask that any items be considered individually for purposes of considering alternative action, for extended discussion, or for public comment. Unless that is done, one motion may be used to adopt all recommended actions. (Roll Call Vote)

8.1. Consideration and proposed approval of Regular Meeting Minutes of September 27, 2022
Prepared By: Cindy Tzafopoulos, City Clerk
Recommendation:

Approve
09-27-2022 Regular City Council - Minutes
23 - 29

8.2. Approval of Project Plans, Authorization to Bid R19-07 Silverado Trail Guardrail Replacement Project.

CEQA Determination: Class I Categorical Exemption under Section 15301 of CEQA
Prepared By: Mario Traverso, Public Works Assistant Engineer Recommendation:

Approval of Plans and Authorize to Bid
Staff Report - Pdf
31 - 39

8.3. Second Reading and Proposed Adoption of an Ordinance of the City Council of the City of St. Helena Amending Section 8.24.010 Of Chapter 24 To Title 8 of The St. Helena Municipal Code Regarding Leaf Blowers CEQA Determination: Exempt from the requirements of CEQA under the “General Rule”, Section 15061 (b)(3), in that it can be seen with 41 - 55

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certainty that the proposed action will have no impact on the environment.

Prepared By: Preya Nixon, Asst. to the City Manager
Recommendation:

Conduct the second reading and adopt theOrdinance of the City Council of the City of St. Helena Amending Section 8.24.010 Of Chapter 24 To Title 8 of The St. Helena Municipal Code Regarding Leaf Blowers Staff Report - Pdf

8.4. Consideration and Proposed Approval of a Resolution Authorizing: (1) Amendment #1 to a Professional Services Agreement with Operational Technical Services STH Contract: FY 2022-011 in the amount of $71,742.30 for a total not-to-exceed amount of $96,742.30 for Temporary Underground Utilities Staffing and (2) a budget increase of $71,743 to 561-5031-2020 and use of fund balance of the same.

CEQA Determination: Exempt
Prepared By: Clayton Church, Public Works Operations Manager Recommendation:

Staff recommends City Council adopt the attached resolution.

Staff Report - Pdf
57 - 78

9. PUBLIC HEARINGS

9.1. Consideration and proposed approval the following actions:

1. Finding that none of the conditions specified in State CEQA Guidelines section 15162 require the preparation of a
subsequent or supplemental EIR or MND and no additional environmental review is required; and

2. Introduce and waive first reading of an Ordinance approving a Development Agreement Amendment between the
applicant and the City of St. Helena for the LMR
Destinations LLC lodging project at 1000 Mills Lane; and

3. Adopt a resolution making specific findings and approve a Use Permit Amendment for the LMR Destinations LLC
lodging project at 1000 Mills Lane.

CEQA Determination: The City has determined that none of the conditions specified in State CEQA Guidelines section 15162 requiring preparation of a subsequent or supplemental EIR or MND would occur.

Prepared By: Maya DeRosa, Community Development Director Recommendation:

For the reasons described above, staff recommends that the City Council:

1. Find that none of the conditions specified in State CEQA Guidelines section 15162 require the preparation of a subsequent or supplemental EIR or MND and no additional environmental review is required; and

2. Introduce and waive first reading of an Ordinance approving a Development Agreement Amendment between the applicant and the City of St. Helena for the LMR Destinations LLC lodging project at 1000 Mills Lane; and
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3. Adopt the attached resolution making specific findings and approve a Use Permit Amendment for the LMR Destinations LLC lodging project at 1000 Mills Lane.

Staff Report - Pdf
Presentation

10. OLD BUSINESS

10.1. Second Reading and Proposed Adoption of an Ordinance adopting St.

Helena Police Department Policy 707 "Military Equipment" as required by AB 481 for the Funding, Acquisition, and Use of Military Equipment CEQA Determination: Not a CEQA project
Prepared By: Chris Hartley, Chief of Police
Recommendation:

Conduct the second reading and adopt the Ordinance Police Department Policy No. 709 (Military Equipment Policy) In Accordance With AB 481.

Staff Report - Pdf
209 - 234

10.2. Water Penalty Update, Discussion and Direction for Water Penalties CEQA Determination: Not a CEQA project
Prepared By: April Mitts, Assistant City Manager
Recommendation:

Receive and file report and provide direction to staff for collection of unpaid penalties and confirmation of staff recommendations for next steps.

Staff Report - Pdf
Powerpoint Water Penalties
235 - 259

11. NEW BUSINESS

11.1. Appointment of a Subcommittee to Review and Make Recommended Changes to the City Council, Committees, Boards and Commission Rules of Procedure for the Conduct of Meetings & Standards of Conduct document.

CEQA Determination: Not a CEQA project
Prepared By: Cindy Tzafopoulos, City Clerk
Recommendation:

Appointment of a subcommittee of the City Council to review and make recommended changes to the City Council, Committees, Boards and Commission Rules of Procedure for the Conduct of Council Meetings & Standards of Conduct document.

Staff Report - Pdf
261 - 302

12. ADJOURNMENT
The next Regular City Council meeting is scheduled for October 25, 2022, at 6:00 p.m.

This agenda was posted at City Hall, 1572 Railroad Avenue, and at Vintage Hall, 465 Main Street, St. Helena, California on October 7, 2022.

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Cindy Tzafopoulos, City Clerk
In Compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please call the City Clerk’s Office (707) 967-2792. Notification 72 hours prior to the meeting as required by Section 202 of the Americans with Disabilities Act will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

CHALLENGING DECISIONS OF CITY ENTITIES
The time limit within which to commence any lawsuit or legal challenge to any quasi-adjudicative decision made by the City of St. Helena is governed by Section 1094.6 of the Code of Civil Procedure, unless a shorter limitation period is specified by any other provision, including without limitation Government Code section 65009 applicable to many land use and zoning decisions, Government Code section 66499.37 applicable to the Subdivision Map Act, and Public Resources Code section 21167 applicable to the California Environmental Quality Act (CEQA). Under Section 1094.6, any lawsuit or legal challenge to any quasi-adjudicative decision made by the City must be filed no later than the 90th day following the date on which such decision becomes final. Any lawsuit or legal challenge, which is not filed within that 90-day period, will be barred.

Government Code section 65009 and 66499.37, and Public Resources Code section 21167, impose shorter limitations periods and requirements, including timely service in addition to filing.

If a person wishes to challenge the above actions in court, they may be limited to raising only those issues they or someone else raised at the meeting described in this notice, or in written correspondence delivered to the City of St.

Helena, at or prior to the meeting. In addition, judicial challenge may be limited or barred where the interested party has not sought and exhausted all available administrative remedies.

SUPPLEMENTAL MATERIAL RECEIVED AFTER THE POSTING OF THE AGENDA
Any supplemental writings or documents distributed to a majority of the City Council regarding any item on this Agenda, after the posting of the Agenda, will be available for public review in the City Clerk’s Office located at 1572 Railroad Avenue, St. Helena, California, during normal business hours and by appointment. In addition, such writings or documents will be made available on the City’s web site at https://sthelena.civicweb.net and will be available for public review at the respective meeting.

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PULIC COMMENT, October 11, 2022 City Council Meeting
Good Evening Mayor Ellsworth, Vice Mayor Dohring, Council members, and welcome to St Helena - Mr. Comelo and Mr. Leach. Good to have you guys here.

I’m here this evening representing a group of residents to advocate for a permanent St. Helena Water and Wastewater Commission.

We would like to request that the city council agendize a presentation by this group and discuss the options for a permanent citizens Commission dealing with matters relating to the Water and Wastewater Enterprises.

The Water and Wastewater Enterprises do not have a dedicated management structure, yet account for 35% of the city budget. If the budget numbers aren’t convincing enough, look at how Water and Wastewater Capital Improvement Projects dominate the CIP list. A permanent Water and Wastewater Commission that enjoys mutual trust and respect between the Commission, City Staff, and City Council would be a huge asset to the city of St. Helena.

We have a new city manager and new director of public works that can benefit greatly from the local knowledge of Commission members and the institutional memory provided by a permanent Commission.

As you know, Measure H needs an oversight committee and the city has a Water Advisory Board tied to Phase II water restrictions. Both of these are technically temporary (ad hoc) committees.

With a permanent Commission, you can eliminate these and assign the duties to a Water and Wastewater Commission.

There’s a lot to discuss regarding a permanent Water and Wastewater Commission.

The idea of such a Commission deserves an agendized presentation and discussion.

The ultimate goal?
• Create and adopt an ordinance under Chapter 2.5 of the St. Helena Municipal Code for a permanent Water and Wastewater Commission
• Revise municipal code chapter 13.04 to replace the Water Advisory Board with the newly minted Water and Wastewater Commission
• Designate the Water and Wastewater Commission as the oversight body for Measure H Again, we would like to request that the city council agendize a presentation and discussion on this matter. With Measure H upon us, it makes sense to do this sooner rather than later.

We can discuss the details during and after the presentation.

Thank all of you for your attention and consideration.

Respectfully submitted,
Garry L. Rose
Agenda Item #5.1.

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1 St. Helena City Council – Public Comments
October 11, 2022
My name is Durriya Syed, I am an Outreach Analyst in the Department of Insurance, also known as CDI. I want to share with you what we have been doing on behalf of your constituents.

Since 2019 we’ve met with more than 25,000 people in 40 counties, and held 60 events to specifically hear concerns around both availability and affordability of homeowners’ insurance.

In January of 2022, Insurance Commissioner Ricardo Lara, and the state’s emergency response and readiness agencies created the Safer From Wildfires framework, a consistent approach to reducing risk with a list of achievable, certifiable and effective actions to help make existing homes and businesses safer from wildfires. The ultimate goal is protecting consumers by reducing risk in their communities.

This “ground up” approach for wildfire resilience has three layers of protection —we call it the 1-2-3 Plan.
#1 - protect the structure,
#2 - protect the immediate surroundings,
#3 - involve your entire community to prevent wildfires from catching and spreading to other homes and businesses in the neighborhood. This includes things like enhanced infrastructure and programs like Firewise.

You can see the entire list of specific actions you can take on our website, Insurance.ca.gov, but I am confident your local fire agencies have apprised you of the actions you can take to harden your homes and community.

By making homes and businesses safer, we can bring risk down and bring costs down as well.

The Commissioner’s actions are focused on safety and transparency. His new regulations do this in three ways:
• He is requiring insurance companies to incorporate the framework into their pricing.

Insurance companies will have to submit new rate filings that recognize safety. • Consumers will receive their property’s wildfire risk score, and the reasons for it. In the past this information was considered proprietary, and CDI will have oversight.

Agenda Item #5.2.

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2 • Consumers will be able to appeal their risk determination when they have done the work.

Public input was critical – to ensure we were on the right track, we held a hearing on April 13th that accepted public comments.

We have evaluated all the input from the public and submitted the new regulations to the Office of Adminstrative Law and we expect to have new rate filings by early 2023.

We are California’s largest consumer protection agency, everything we do at CDI is to protect consumers from fraud and abuse. We also provide a number of free informative presentations and informational guides for homeowners, drivers, and our senior community.

I have included flyers for some of these programs for you to post in your newsletter or website.

I want to remind you that we are here to help your constituents with any of your insurance questions. Please call our hotline 800-927-4357, or go to our website at insurance.ca.gov.

Thank you for your time,
Durriya Syed
Outreach Analyst
Community Relations and Outreach Branch
California Department of Insurance
(916) 492-3418| [email protected]
Agenda Item #5.2.

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California Senior Gateway www.seniors.ca.gov
Empowering seniors with information and resources
The Senior Gateway is a one-stop website intended to provide seniors, their families, and caregivers with the information they need to connect to helpful services and resources, to find answers, and to solve problems.

Visit www.seniors.ca.gov to find information on such topics as:
• Preventing fraud, financial abuse, and common scams.
• Avoiding and reporting abuse and neglect.
• Health care information.
• Your rights.
• Other resources.

Senior Gateway is sponsored by the Elder
Financial Abuse Interagency Roundtable (E-FAIR),
a working group with representatives from many
California State agencies, and is hosted by the
California Department of Insurance.

Agenda Item #5.2.

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CALIFORNIA _ • Commission Public Utilities
Safer from Wildÿres in 1 2 3
Safer from Wildÿres is an interagency partnership between Insurance Commissioner Ricardo Lara and the emergency response and readiness agencies in Governor Gavin Newsom’s administration to protect lives, homes, and businesses by reducing wildÿre risk.

With California experiencing devastating, climate change-intensiÿed wildÿres, homes and businesses need insurance they can rely on.

Commissioner Lara is using every tool available to improve insurance for our communities. Drawing on the direct experience of ÿrst responders and the latest research on wildÿres, the partnership created a consistent approach to reducing risk with a list of achievable and e°ective actions to help make existing homes and businesses safer from wildÿres. The ultimate goal is protecting consumers by reducing wildÿre risk in their communities, making insurance available and a°ordable for all Californians.

This “ground up” approach for wildÿre resilience has three layers of protection — for the structure, the immediate surroundings, and the community — to prevent wildÿres from catching and spreading to other homes and businesses in the neighborhood. • Class-A Fire rated roof
• Maintain a 5 foot ember-resistant zone around a home
(including fencing within 5 feet)
• Noncombustible 6 inches at the bottom of exterior walls • Ember and fire-resistant vents (See Low-Cost Retrofit List, and Chapter 7A)
• Upgraded windows (Double paned or added shutters)
• Enclosed eaves
Protecting the 1 structure Working together as a 3 community • A community should have clearly deÿned boundary and a local risk assessment in consultation with the local ÿre district or state ÿre agency; an identiÿed evacuation route, cleared of vegetative overgrowth, and evacuation plan contingencies; clear funding sources to implement community mitigation activities and meet clear risk reduction goals; and integrated and up-to-date local planning documents pertinent to community wildÿre risk. • Current examples include the Fire Risk Reduction Community designation under development by the Board of Forestry, Firewise USA communities in good standing, and
Shelter-in-Place designations.

Commissioner Lara is working to increase available
incentives for wildÿre safety. To view the list of insurance companies currently offering discounts visit
insurance.ca.gov.
• Cleared vegetation and debris from under decks
• Removal of combustible sheds and other outbuildings
from the immediate surroundings of the home, to at least a distance of 30 feet
• Defensible space compliance (including trimming trees, removal of brush and debris from yard, and compliance
with state law and local ordinances)
Protecting the immediate 2 surroundings
Agenda Item #5.2.

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Agenda Item #5.2.

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California Department of Insurance
Insurance Protection for All Californians
For more information us at
at
www.insurance.ca.gov
or call 1-800-927-4357
visit
us
by:
by:

Protecting Consumers
Overseeing insurer solvency
Licensing agents and brokers
Conducting market conduct reviews
Resolving consumer complaints
Investigating and prosecuting
insurance fraud
Providing Services
One-on-One insurance assistance
Assisting with catastrophes
Providing insurance informational guides
Making in person presentations on
potential scams, understanding insurance
•
•
•
•
•
•
•
•
•
Agenda Item #5.2.

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City of St. Helena

PROCLAMATION
National Friends of Libraries Week
October 16-22, 2022
Whereas, Friends & Foundation, St. Helena Public Library raises money that enables our library to move from good to great -- providing the resources for programming, Chromebooks and WiFi hotspots, additional part-time staffing, support for summer reading for all ages, and special events throughout the year;
Whereas, the work of the Friends & Foundation highlights on an ongoing basis the fact that our library is the cornerstone of the community providing opportunities for all to engage in the joy of lifelong learning and connecting with the thoughts and ideas of others from ages past to the present;
Whereas, the Friends & Foundation understands the critical importance of well-funded libraries and encourages community support for the library along with advocating to ensure that our library gets the resources it needs to provide a wide variety of services to all ages including access to the Internet and online resources, print and electronic materials, along with expert assistance in research, readers’ advisory, and children’s services;
Now, therefore, be it resolved that I, Geoff Ellsworth, Mayor of the City of St. Helena, along with the St. Helena City Council, proclaim October 16-22, 2022, as Friends of Libraries Week in St. Helena and urge everyone to thank the Friends & Foundation for all they do to make our library and community so much better.

Dated: October 11, 2022
______________________________
Geoff Ellsworth, Mayor
City of St. Helena
Agenda Item #7.2.

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Agenda Item #7.2.

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City of St. Helena

PROCLAMATION
Domestic Violence Awareness Month
October 2022
WHEREAS, NEWS, Domestic Violence and Sexual Abuse Services is commemorating 41 years of service to survivors of domestic violence in Napa County, having opened the first confidential safe house on October 5th 1981 and began providing safety to those escaping abuse; and
WHEREAS, every year since 1989, the United States Congress has proclaimed October as Domestic Violence Awareness Month, renewing our Country’s commitment to standing against DV and meeting the needs of survivors; and WHEREAS, domestic violence is a public health concern that impacts the well-being and success of individual community members, as well as the community as a whole. Data from the U.S. Center of Disease Control’s National Intimate Partner and Sexual Violence Survey (NIPSVS) show that nearly 1 in 4 women and 1 in 9 men in the U.S. report experiencing severe physical violence from an intimate partner in their lifetime while nearly half of U.S. adults have experienced psychological aggression such as humiliating or controlling behaviors from their partner. Domestic violence can cause severe physical and emotional distress for survivors who are more likely to become suicidal and lose economic opportunities from the abuse.

Children who witness abuse are likely to experience abuse themselves and are often used to control other family members which can have lifelong impacts on their mental health. Aside from the obvious physical and emotional trauma inflicted, domestic violence contributes to over 10% of all intentional violent deaths (not including suicide) and costs America over 8 billion dollars a year.

WHEREAS, by observing October as Domestic Violence Awareness Month we show that our community is committed to supporting survivors and working toward the prevention of domestic violence among future generations; and WHEREAS, in Fiscal Year 2021/2022 NEWS provided services to over 1,700 of our Napa County community members, including 24-hour response, assistance with protective orders, safety and shelter, permanent housing, financial aid, support groups and children’s services, for issues related to violence in the home; and NOW, THEREFORE LET IT BE RESOLVED THAT I, Geoff Ellsworth, Mayor, on behalf of the City Council of the City of St. Helena, do hereby proclaim October 2022 as “Domestic Violence Awareness Month”, and encourage all residents of St. Helena to honor domestic violence survivors and those who serve them during this month and throughout the year.

Dated: October 11, 2022
______________________________
Geoff Ellsworth, Mayor
City of St. Helena
Agenda Item #7.3.

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MINUTES
City of St. Helena
Regular City Council Meeting
Tuesday, September 27, 2022 @ 6:00 PM
Vintage Hall Board Room - Second Floor
465 Main Street, St. Helena
A complete video recording of this meeting, except for closed session, can be found at https://sthelena.civicweb.net/Portal/ or by calling the City Clerk at (707) 968-2742. The City Council video is the official record of the Council meeting.

Present: Mayor Geoff Ellsworth, Vice Mayor Paul Dohring, Council Member Anna Chouteau, Council Member Lester Hardy, and Council Member Eric Hall

Absent: None

1. CALL TO ORDER

2. ROLL CALL

3. PLEDGE OF ALLEGIANCE

4. ADOPTION OF THE AGENDA
Vice Mayor Paul Dohring moved to approve the agenda as presented. The motion was seconded by Council Member Lester Hardy and on roll call carried by the following vote:

AYES: Mayor Geoff Ellsworth, Vice Mayor Paul Dohring, Council Member Anna Chouteau, Council Member Lester Hardy, and Council Member Eric Hall NOES: None
ABSENT: None
ABSTAIN: None
RECUSE: None

5. REPORTS BY STAFF AND CITY COUNCIL, FUTURE AGENDA ITEMS, and AB 1234 REPORTS:

Reports were made by staff and the City Council.

City Attorney Joanna Gin noted there was no reportable action from the September 13, 2022 special City Council closed session meeting.

Mayor Ellsworth requested to agendize a review of the City Council standards of conduct, Vice Mayor Dohring agreed.

Agenda Item #8.1.

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Regular City Council
September 27, 2022

6. PUBLIC FORUM:

Gary Margadant, citizen, Chris Malen, Terry Perry and Anthony Micheli addressed the City Council.

7. CONSENT ITEMS
Members of the Council or the public may ask that any items be considered individually for purposes of considering alternative action, for extended discussion, or for public comment. Unless that is done, one motion may be used to adopt all recommended actions. (Roll Call Vote)

7.1 Consideration and proposed approval of Regular Meeting Minutes of September 13, 2022.

Prepared By: Cindy Tzafopoulos, City Clerk

7.2 Consideration of Approval of a Resolution Authorizing Temporary Closure of Hunt Avenue from November 21, 2022 until January 3, 2023 for the Wine Barrel Tree Display
CEQA Determination: Not a CEQA project
Prepared By: Dave Jahns, Parks & Recreation Director
Recommendation:

Approve a resolution authorizing temporary closure of Hunt Avenue, between Main Street and Railroad Avenue, from November 21, 2022 - January 3, 2023.

7.3 Quarterly Grant Report for FY 2022 Q4 for the period ending June 30, 2022.

CEQA Determination: Not a CEQA project
Prepared By: Mandy Kellogg, Administrative Services Director Recommendation:

Receive and file report.

7.4 Consideration and Approval of a Resolution for an Employment Agreement with Joseph Leach to serve as the Director of Public Works.

CEQA Determination: Not a CEQA project
Prepared By: Mandy Kellogg, Administrative Services Director Recommendation:

Staff recommends the City Council adopt the attached resolution.

Item 7.5 was removed from consent.

7.5 August 2022 Review and Forecasting of City Water Supply Availability Item 7.6 was removed from consent.

7.6 Consideration and adoption of a Resolution: (1) Awarding the R22-79 Pavement Restoration Improvements Project to Argonaut Constructors in the Agenda Item #8.1.

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Regular City Council
September 27, 2022
amount of $1,157,192.50; (2) Authorizing the City Manager to execute the Construction Contract with Argonaut Constructors; (3) Authorizing the Director of Public Works to approve Change Orders not to exceed 10% of the contract amount; and (4) Determining the project to be exempt from the requirements of the California Environmental Quality Act (CEQA).

7.7 Consideration of approval of a resolution establishing a 401(a) Governmental Money Purchase Plan and authorizing the City Manager to execute all necessary agreements and plan documents.

CEQA Determination: Not a CEQA project
Prepared By: Mandy Kellogg, Administrative Services Director Recommendation:

Approval of a resolution establishing a 401(a) Governmental Money Purchase Plan and authorizing the City Manager to execute all necessary agreements and plan documents.

7.8 Consideration and proposed approval of a resolution amending the City of St.

Helena Conflict of Interest Code pursuant to the Political Reform Act of 1974 CEQA Determination: Not a CEQA project
Prepared By: Cindy Tzafopoulos, City Clerk
Recommendation:

It is recommended that the City Council adopt a Resolution approving and adopting the amended Conflict of Interest Code pursuant to the Political Reform Act of 1974.

7.9 Consideration of Resolution rescinding Resolution 2021-32 and extending a portion of Hunt Avenue to the City's List of Red Zones (parking prohibitions) CEQA Determination: Not a CEQA project
Prepared By: Eric Janzen, Assistant Public Works Director Recommendation:

Approve the attached resolution.

Council Member Anna Chouteau moved to approve Consent items 7.1 through

7.4 and 7.7 through 7.9. The motion was seconded by Council Member Eric Hall and on roll call carried by the following vote:

AYES: Mayor Geoff Ellsworth, Vice Mayor Paul Dohring, Council Member Anna Chouteau, Council Member Lester Hardy, and Council Member Eric Hall NOES: None
ABSENT: None
ABSTAIN: None
RECUSE: None

7.5 Consideration and adoption of a Resolution: (1) Awarding the R22-79 Agenda Item #8.1.

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Regular City Council
September 27, 2022
Pavement Restoration Improvements Project to Argonaut Constructors in the amount of $1,157,192.50; (2) Authorizing the City Manager to execute the Construction Contract with Argonaut Constructors; (3) Authorizing the Director of Public Works to approve Change Orders not to exceed 10% of the contract amount; and (4) Determining the project to be exempt from the requirements of the California Environmental Quality Act (CEQA).

CEQA Determination: Class I Categorical Exemption under Section 15301 of CEQA
Prepared By: Mario Traverso, Public Works Assistant Engineer Recommendation:

Adopt the attached resolution.

Mario Traverso, Public Works Assistant Engineer reported on this item.

A citizen addressed the City Council.

Vice Mayor Paul Dohring moved to approve item 7.5. The motion was seconded by Council Member Anna Chouteau and on roll call carried by the following vote:

AYES: Mayor Geoff Ellsworth, Vice Mayor Paul Dohring, Council Member Anna Chouteau, Council Member Lester Hardy, and Council Member Eric Hall NOES: None
ABSENT: None
ABSTAIN: None
RECUSE: None

7.6 August 2022 Review and Forecasting of City Water Supply Availability CEQA Determination: Exempt
Prepared By: Ian Dale, Environmental Services Tech
Recommendation:

Receive and file.

Eric Janzen, Asst. Public Works Director reported on this item.

No public comment was received.

Vice Mayor Paul Dohring moved to approve item 4.6. The motion was seconded by Council Member Lester Hardy and on roll call carried by the following vote:

AYES: Mayor Geoff Ellsworth, Vice Mayor Paul Dohring, Council Member Anna Chouteau, Council Member Lester Hardy, and Council Member Eric Hall NOES: None
Agenda Item #8.1.

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Regular City Council
September 27, 2022
ABSENT: None
ABSTAIN: None
RECUSE: None

8. PUBLIC HEARINGS

8.1 Introduction and First Reading of an Ordinance of the City Council of the City of St. Helena Amending Section 8.24.010 Of Chapter 24 To Title 8 of The St.

Helena Municipal Code Regarding Leaf Blowers
CEQA Determination: Exempt from the requirements of CEQA under the “General Rule”, Section 15061 (b)(3), in that it can be seen with certainty that the proposed action will have no impact on the environment.

Prepared By: Preya Nixon, Asst. to the City Manager
Recommendation:

Introduce by title only and waive further reading of an Ordinance of the City Council of the City of St. Helena Amending Section 8.24.010 Of Chapter 24 To Title 8 of The St. Helena Municipal Code Regarding Leaf Blowers Preya Nixon, Asst. to the City Manager reported on this item.

Mayor Ellsworth opened the public hearing.

Sally Ferrell and Chris Warner addressed the City Council.

Mayor Ellsworth closed the public hearing.

Vice Mayor Paul Dohring moved approve as amended the introduction by title only and waive further reading of an Ordinance of the City Council of the City of St. Helena Amending Section 8.24.010 Of Chapter 24 To Title 8 of The St.

Helena Municipal Code Regarding Leaf Blowers. The amendment was:

1. Remove section 1.E.C which states: The leaf blower is operated in a manner that does not result in leaves, dirt, debris, or other materials being blown or deposited on any other parcel, land, lot, or public right-ofway/property other than the parcel, land, lot, or public right-ofway/property on which the leaf blower is being used or operated.

Additionally, Council provided direction that enforcement will not take place until April 1, 2023. However, the Ordinance will still go into effect on January 1, 2023 with staff utilizing an education-based outreach/approach to businesses, community members and property owners.

The motion was seconded by Council Member Anna Chouteau and on roll call carried by the following vote:

Agenda Item #8.1.

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Regular City Council
September 27, 2022
AYES: Mayor Geoff Ellsworth, Vice Mayor Paul Dohring, Council Member Anna Chouteau, Council Member Lester Hardy, and Council Member Eric Hall NOES: None
ABSENT: None
ABSTAIN: None
RECUSE: None

8.2 Consideration and Proposed Introduction of an Ordinance adopting St. Helena Police Department Policy 707 "Military Equipment" as required by AB 481 for the Funding, Acquisition, and Use of Military Equipment CEQA Determination: Not a CEQA project
Prepared By: Chris Hartley, Chief of Police
Recommendation:

Recommend that the City Council Introduce and Waive First Reading of the Ordinance Adopting Police Department Policy No. 709 (Military Equipment Policy) In Accordance With AB 481.

Chris Hartley, Police Chief reported on this item.

Mayor Ellsworth opened the public hearing.

No public comment was received.

Mayor Ellsworth closed the public hearing.

Council Member Anna Chouteau moved approve as amended the introduction by title only and waive further reading of an Ordinance adopting St. Helena Police Department Policy 707 "Military Equipment" as required by AB 481 for the Funding, Acquisition, and Use of Military Equipment. The motion was seconded by Council Member Eric Hall and on roll call carried by the following vote:

AYES: Mayor Geoff Ellsworth, Vice Mayor Paul Dohring, Council Member Anna Chouteau, Council Member Lester Hardy, and Council Member Eric Hall NOES: None
ABSENT: None
ABSTAIN: None
RECUSE: None

9. OLD BUSINESS

9.1 Consideration and Proposed approval of a Resolution: (1) approving of a twoyear lease agreement for four Automatic License Plate Readers (ALPR's) from Flock Safety for a total of $26,800 and (2) authorizing a budget increase of $26,800 to COPS grant fund account number 244-4900-2215 for the lease Agenda Item #8.1.

Page 28 of 302 ends

Regular City Council
September 27, 2022
payments.

CEQA Determination: Exempt
Prepared By: Justin Tharp, Lieutenant
Recommendation:

Staff recommends approval of the attached resolution.

Justin Tharp, Lieutenant reported on this item.

No public comment was received.

10. ADJOURNMENT
Mayor Ellsworth adjourned the meeting at 7:56 p.m.

APPROVED:
______________________________
Geoff Ellsworth, Mayor
ATTEST:
_________________________
Cindy Tzafopoulos, City Clerk
Agenda Item #8.1.

Page 29 of 302 ends

Page 30 of 302 ends

Report to the City Council
Regular City Council - 11 Oct 2022
Agenda Section: CONSENT ITEMS
Subject: Approval of Project Plans, Authorization to Bid R19-07 Silverado Trail Guardrail Replacement Project.

CEQA
Determination:

Class I Categorical Exemption under Section 15301 of CEQA Prepared By: Mario Traverso, Public Works Assistant Engineer Reviewed By: April Mitts, Assistant City Manager
Approved By: Anil Comelo, City Manager

BACKGROUND
The Silverado Trail Guardrail Replacement project is a FY22/23 CIP project which scope includes the replacement of damaged guardrail along north bound Silverado Trail within the City limits. In 2019 the City was awarded a federal grant from the Federal Highway Administration's (FHWA) Highway Safety Improvement Program (HSIP) which included full funding for design and construction of the replacement guardrail. Project plans and specifications have been recently completed by staff, and authorization from FHWA has been provided to proceed with construction.

DISCUSSION
The original scope of this project (2018) included replacement of roughly 1500 linear feet of guardrail along Silverado Trail south of Pope Street. A significant portion of this guardrail was replaced by Napa County in response to damage incurred from the Glass Fire in 2020. As a result the scope of this project has been significantly reduced compared to the original scope. Currently, the project includes the replacement of 135 linear feet of guardrail north of Pope Street as well as traffic striping updates in the intersection. Plans and specifications were prepared by Coastland Engineering. City staff will provide construction management and project administration.

Agenda Item #8.2.

Page 31 of 302 ends

FISCAL IMPACT
Funding for this project is provided from the Highway Safety Improvement Program (HSIP). All expenses, including staff time for construction management and administration are approved for 100% reimbursement up to $70,000. The engineer's estimate for this work is $25,000.

RECOMMENDED ACTION
Approval of Plans and Authorize to Bid

ATTACHMENTS
Attachment 1_ Resolution Guardrail
11 - HISP 5051(005) Plans
E76 5051(005) SEQ3
Agenda Item #8.2.

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CITY OF ST. HELENA
RESOLUTION NO. 2022 -
Finding the R19-07 Silverado Trail Guardrail
Replacement Project Exempt from CEQA; Approving
and adopting the project plans; and Authorizing the Bid Request for the R19-07 Silverado Trail Guardrail
Replacement Project

RECITALS
A. The City of St. Helena is responsible for maintenance of public streets within the City limits; and
B. On August 25, 2018, City staff submitted an application to the Federal Highway Administration’s Highway Safety Improvement Program for a project which included the replacement of guardrail along Silverado Trail located within the City limit; and C. On September 9, 2022, City staff received authorization from the Federal Highway Administration to proceed with construction; and
D. The R19-07 Silverado Trail Guardrail Replacement Project is included in approved 5-Year Capital Improvement Program and the FY22/23 budget; and E. The Project Plans for R19-07 have been prepared by Coastland Civil Engineering, reviewed by the City Engineer, and presented for approval and authorization to bid.

RESOLUTION
The City Council of the City of St. Helena hereby resolves as follows:

1. The project is categorically exempt from the California Environmental Quality Act, pursuant to CEQA Guidelines section 15301, Existing Facilities Class 1 which exempts the operation, repair, maintenance, and permitting of existing facilities involving negligible or no expansion of use including publicly owned utilities; and

2. The Project Plans will be available online at the City of St. Helena’s website and for viewing at St. Helena Public Works, 1572 Railroad Avenue, are hereby approved; and

3. The Public Works Director/City Engineer is authorized to solicit bids for the subject project.

Approved at a Regular Meeting of the St. Helena City Council on October 11, 2022, by the following vote:

Agenda Item #8.2.

Page 33 of 302 ends

Mayor Ellsworth: __________
Vice Mayor Dohring: __________
Councilmember Chouteau: __________
Councilmember Hall: __________
Councilmember Hardy: __________
APPROVED: ATTEST:
________________________ ________________________
Geoff Ellsworth, Mayor Cindy Tzafopoulos, City Clerk
Agenda Item #8.2.

Page 34 of 302 ends

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Page 35 of 302 ends

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Page 36 of 302 ends

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Agenda Item #8.2.

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AMENDMENT MODIFICATION SUMMARY - (E-76)
FEDERAL AID PROGRAM CALIFORNIA DEPARTMENT OF TRANSPORTATIONDLA LOCATOR: 04-NAP-0-SHLA PROJECT LOCATION:PREFIX: HSIP ON SILVERADO TRAIL, WITH THE PROJECT LIMITS BORDERING NAPA COUNTY, BEGINNING FROM APPROXIMATELY 175 FEET NORTH OF HOWELLPROJECT NO: 5051(005) TYPE OF WORK:SEQ NO: 3 UPGRADE 136 LINEAR FEET OF GUARDRAIL AND WOOD POSTS WITH NEW PREV AUTH / AGREE DATES:STATE PROJ NO: 0420000045L-N FED RR NO'S: PE:AGENCY: ST HELENA PUC CODES: R/W:

ROUTE:

PROJ OVERSIGHT:ASSUMED/LOCAL ADMIN CON:

DISASTER NO:

ENV STATUS / DT: 09/16/2021 SPR:

TIP DATA
RW STATUS / DT: 1 08/17/2022 MCS:

MPO: MTC
INV RTE: OTH:

FSTIP YR: 21/22
BEG MP:

STIP REF: 206-0000-6070
END MP:

FSTIP ID NO: VAR170002
BRIDGE NO:

PROG CODE LINE NO IMPV TYPE FUNC SYS URBAN AREA URB/RURAL DEMO IDYS30 30 21YS30 31 17ZS30 10 15FUNDING SUMMARY

PHASE PROJECT COST FEDERAL COST AC COST PE
PE PREV. OBLIGATION $70,000.00 $70,000.00 $0.00PE THIS REQUEST $0.00 $0.00 $0.00PE SUBTOTAL $70,000.00 $70,000.00 $0.00 R/W
RW PREV. OBLIGATION $0.00 $0.00 $0.00RW THIS REQUEST $0.00 $0.00 $0.00RW SUBTOTAL $0.00 $0.00 $0.00 CON
CON PREV. OBLIGATION $0.00 $0.00 $0.00CON THIS REQUEST $70,000.00 $70,000.00 $0.00CON SUBTOTAL $70,000.00 $70,000.00 $0.00 OTH
OTH PREV. OBLIGATION $0.00 $0.00 $0.00OTH THIS REQUEST $0.00 $0.00 $0.00OTH SUBTOTAL $0.00 $0.00 $0.00 TOTAL: $140,000.00 $140,000.00 $0.00
PROJECT END DATE (PED): 06/30/2025
ALT. PROJ NO:STATE REMARKS
11/01/2019 * This request is for the initial authorization of the PE phase. * EPSP is being utilized.
11/01/2021 SEQ 2- Request PED extension.11/01/2021 SEQ 2: The PED is being extended from 09/25/2021 to 06/01/2023. The PE phase has been delayed due to COVID-19 resulting in city staff furloughs, multiple disasters that include the LNU Lightning and Glass Fires that impacted the City, and a site survey requirement. Any costs incurred between the existing PED (09/25/2021) and the date of E76 Sequence #2 approval by FHWA will not be eligible for reimbursement. 08/26/2022 SEQ 3 - Request CON/CE fund less than approval per TIP due to scope reduction. Please see reduction of scope memo attached in the RFA(CON) package. Thank you.08/30/2022 SEQ 3: Authorizing federal funds for CON & CENG (Reduced scope approved by HSIP manager). Project is eligible for 100% reimbursement for safety countermeasures.

FEDERAL REMARKS
Agenda Item #8.2.

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AUTHORIZATION
AUTHORIZATION TO PROCEED WITH REQUEST:CON PREPARED IN FADS BY: LE, ROBERT ON 2022-08-26 622-5917 FOR: CON AND CENG REVIEWED IN FADS BY: HOANG, KHA B ON 2022-08-30 653-6460 DOCUMENT TYPE: AMOD SUBMITTED IN FADS BY: WULFF, DARLENE ON 2022-08-30 FOR CALTRANS PROCESSED IN FADS BY: SIGNATURE, NOT_REQUIRED ON 2022-08-30 FOR FHWA E-76 AUTHORIZED DATE IN FMIS BY: GRACE REGIDOR ON 2022-09-09 23:45:43.0 SIGNATURE HISTORY FOR PROJECT NUMBER 5051(005) AS OF 09/12/2022

FHWA FMIS SIGNATURE HISTORY
MOD # SIGNED BY SIGNED ON2 HAYS WAII 09/07/2022
HAYS WAII 09/07/2022GRACE REGIDOR 09/09/2022
1 SHUN HUEY 11/08/2021
SHUN HUEY 11/08/2021TASIA PAPAJOHN 11/10/2021
0 SHUN HUEY 11/27/2019
SHUN HUEY 12/03/2019TASIA PAPAJOHN 12/03/2019
FHWA FMIS 3.0 SIGNATURE HISTORYCALTRANS SIGNATURE HISTORY DOCUMENT TYPE SIGNED BY SIGNED ONAMEND/MOD WULFF, DARLENE 08/30/2022 Agenda Item #8.2.

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Page 40 of 302 ends

Report to the City Council
Regular City Council - 11 Oct 2022
Agenda Section: CONSENT ITEMS
Subject: Second Reading and Proposed Adoption of an Ordinance of the City Council of the City of St. Helena Amending Section

8.24.010 Of Chapter 24 To Title 8 of The St. Helena Municipal Code Regarding Leaf Blowers
CEQA
Determination:

Exempt from the requirements of CEQA under the “General Rule”, Section 15061 (b)(3), in that it can be seen with certainty that the proposed action will have no impact on the environment.

Prepared By: Preya Nixon, Asst. to the City Manager
Reviewed By: April Mitts, Assistant City Manager
Approved By: Anil Comelo, City Manager

BACKGROUND
The City Council has a 3 Year Adopted Workplan. City Council Goal #6 is to “support initiatives that respond to and plan for climate change”. Goal 6F is to consider the ban on gas powered leaf blowers. Restrictions on the use of gas-powered leaf blowers will yield multiple environmental benefits. The primary benefit will be a reduction in greenhouse gas emissions that result from the combustion of fossil fuels, in this case, gasoline and/or diesel.

More recently, California enacted AB 1346 which will require the state to adopt regulations to ban the sale of gas-powered leaf blowers (and other lawn equipment) in 2024. The City's Public Works Department is currently undertaking a pilot project to convert its gaspowered leaf blowing equipment to electric.

This item was heard at the July 6, 2022 Regular Active Transportation and Sustainability Committee meeting, where the Committee heard a presentation on the potential ban on gas powered leaf blowers and provided feedback. The Committee unanimously voted in support of this Ordinance.

Agenda Item #8.3.

Page 41 of 302 ends

The first reading was conducted and approved as amended at the September 27, 2022, regular City Council meeting.

The amendment includes:

1. Remove section 1.E.C which states: The leaf blower is operated in a manner that does not result in leaves, dirt, debris, or other materials being blown or deposited on any other parcel, land, lot, or public right-of-way/property other than the parcel, land, lot, or public right-of-way/property on which the leaf blower is being used or operated.

DISCUSSION
Exhaust emissions are currently emitted by many pieces of equipment including, but not limited to gas powered leaf blowers. Extensive evidence exists on the adverse health effects of exhaust emissions, and other fine particulates, which include cardiovascular disease, stroke, respiratory disease, cancer, neurological conditions, premature death, and effects on prenatal development. A ban on gas powered leaf blowers will help in reducing some of the exhaust emissions. Additionally, electric leaf blowers emit less noise and and generate fewer particulates in the air while in use. Staff recommends that the proposed ordinance keep the decibel limit for electric leaf blowers at 65 dBA or less and staff will develop a list of leaf blowers that are sound rated at 65 dBA or less.

Outreach Strategy:

Staff has met with community members to discuss outreach and education steps following Ordinance approval by the City Council.
• An outdoor demonstration/workshop with electric/battery powered leaf blowers at a City park
• Inserts in utility bills
• Targeted mailing to landscaping businesses with active, inactive, or partially active business licenses, hotels, and HOA’s etc…
• Postcards with information on the City’s rebate program/educational material-to be distributed by City staff to community groups/posted on community boards • Information at community gatherings including the Farmer’s Market and the Hometown Harvest Festival
• City standard communication outreach such as media release and social media • Dedicated City website page with easy to read Frequently Asked Questions Agenda Item #8.3.

Page 42 of 302 ends

Enforcement:

For those using a gas powered leaf blower, the following steps would be taken after April 1, 2023:

1. Verbal warning

2. Notice of Violation Letter

3. First offense: a fine not exceeding one hundred dollars ($100.00)

4. Second offense: a fine not exceeding two hundred dollars ($200.00)

5. Third offense: a fine not exceeding five hundred dollars ($500.00) for each additional violation of the same ordinance within one year.

Effective Date:

Staff recommends Ordinance effect date of January 1, 2023.

Rebate Program:

Staff has learned that the State is developing a voucher program for small businesses for landscaping equipment that would include leaf blowers. This program would be administered through the California Air Resources Board (CARB) under the Clean OffRoad Equipment (CORE) Voucher Incentive Program. This would allow small businesses to directly purchase an electric leaf blower from an authorized seller for up to 70% of the costs including a battery and charger. The State is still finalizing this program.

Staff anticipates the rebate program would be modeled very closely on the program that has successfully been implemented in Yountville and Calistoga. A rebate of $150 would be available to each residential address with proof of the purchase of a battery-electric leaf blower.

Similarly, a rebate of either $300 or $500 (depending on the number of accounts/properties serviced) would be available to licensed commercial leaf blower operators who provide proof of purchase of a commercial battery-electric leaf blower.

Rebate funds would be made available on a first come first serve basis.

Staff anticipates that such a program could be in place by the new year.

FISCAL IMPACT
The overall fiscal impact is unknown at this time. However, at a future meeting, staff will recommend a budget of $25,000 for the following:
• $23,000 for the rebate program
• $2,000 for outreach/education
Code enforcement costs are unknown at this time, but staff is actively engaged with conversations with surrounding agencies regarding shared services. Preliminary outreach will utilize city staff.

Agenda Item #8.3.

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RECOMMENDED ACTION
Conduct the second reading and adopt the Ordinance of the City Council of the City of St. Helena Amending Section 8.24.010 Of Chapter 24 To Title 8 of The St. Helena Municipal Code Regarding Leaf Blowers

ATTACHMENTS
Active Transportation and Sustainability Committee - 06 Jul 2022 - FINAL MINUTES ST HELENA_ Ordinance Regarding Leaf Blowers redlined
ST HELENA_ Ordinance Regarding Leaf Blowers redlined - CLEAN Agenda Item #8.3.

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FINAL MINUTES
City of St. Helena
Active Transportation and Sustainability
Committee
Regular Meeting
Wednesday, July 6, 2022 @ 5:00 PM
Page

1. CALL TO ORDER
Chair Stanton called the meeting to order at 5:01 p.m.

2. ROLL CALL
The following were present:

Committee Chair: Leslie Stanton, Vice Chair: Jeff Farmer Members: Maddie Chandler, John Zimmerman
Alternate Members: Vacant, Vacant
Council Liaison: Paul Dohring, Vice Mayor
Staff Liaison: Preya Nixon, Asst. to the City Manager
Member Glenn Smith was excused.

3. PUBLIC FORUM:

No public comment was received.

4. REPORTS BY STAFF AND COMMITTEE:

Reports were conducted.

5. CONSENT CALENDAR:

Members of the Active Transportation Committee or the public may ask that any items be considered individually for purposes of considering alternative action, for extended discussion, or for public comment. Unless that is done, on motion may be used to adopt all recommendation actions.

5.1. Active Transportation and Sustainability Committee Meeting Minutes of June 1, 2022.

DRAFT MINUTES Active Transportation and Sustainability Committee - 01 Jun 2022
A motion was made by Vice Chair Farmer and seconded by member Chandler to approve the minutes for the meeting held on June 1, 2022.

The motion passed unanimously.
# - #

6. SCHEDULED MATTERS:

6.1. Receive a presentation on the Napa County Climate Challenge website # - # Agenda Item #8.3.

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Napa County Climate Challenge Presentation
Staff Report- Napa County Climate Challenge website
Presentation was given by Patrick Jurney
No public comment was received

6.2. Consideration and Feedback Regarding a Draft Ordinance Banning the Use of Gas Powered Leaf Blowers
Preya Nixon, Assistant to the City Manager, presented on this item.

Public comment was received from
Valli Ferrell
Sharon Parham
The following feedback was given by the Committee:
-Equity must be considered in the rebate program, especially for commercial users.
-include the decibel limit of 65 dBA.
-that the noise component is important too
-see if there is any more research on the GHG impact.

A motion was made by Vice Chair Farmer and seconded by Member Chandler to support the ordinance with the feedback provided.

The motion was passed unanimously.
# - #

7. FUTURE AGENDA ITEMS

7.1. • Review and approval of Committee governing language • Presentation from Fire Chief John Sorensen regarding vehicular speeding and potential traffic mitigation
• Active Transportation Plan Phase II
• Potential Reusable Foodware and Waste Reduction Ordinance • Napa Countywide Greenhouse Gas Emission Inventory
Presentation (fall 2022)

8. ADJOURNMENT
Chair Stanton adjourned the meeting at 6:20 p.m.

The next regular Active Transportation Committee meeting is scheduled for October 5, 2022 at 5:00 pm, at the Carnegie Building, 1360 Oak Avenue Approved Attest
__________________________ ________________________
Agenda Item #8.3.

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Chair Preya Nixon,
Assistant to the City Manager
Agenda Item #8.3.

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ORDINANCE NO.

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ST. HELENA AMENDING SECTION 8.24.010 OF CHAPTER 24 TO TITLE 8 OF THE ST. HELENA MUNICIPAL CODE REGARDING LEAF BLOWERS
WHEREAS, the City of St. Helena’s Noise Ordinance, specifically subsection (E) of Section 8.24.010 of the St. Helena Municipal Code, regulates the use of leaf blowers; and
WHEREAS, the City Council of the City of St. Helena desires to ban the use of leaf blowers powered by gasoline and diesel.

NOW, THEREFORE, The City Council of the City of St. Helena does hereby ordain as follows:

Section 1: Amendment.

Subsection (E) of Section 8.24.010 of the St. Helena Municipal Code is hereby amended to read as follows (new language is underlined, deletions are in strikeout):
“8.24.010 Unnecessary noises generally.

E. Leaf Blowers.

1. It shall be unlawful for any person to operate any gas-powered leaf blower other than a gas-powered leaf blower that bears a manufacturer’s label indicating a noise level designation not exceeding sixty-five (65) dB(A) at a distance of fifty (50) feet utilizing American National Standard Institute (“ANSI”) B175.2 methodology. All such leaf blowers shall be operated with all mufflers, full extension tubes, shrouds and sound-attenuating devices supplied by the manufacturer for that leaf blower and shall be maintained in sound operating condition. This paragraph shall not apply to electric leaf blowers. unless it is powered by electricity or battery and is used in compliance with the following criteria:
a. The electric or batter operated leaf blower bears a
manufacturer’s label indicating a noise level designation not exceeding sixty-five (65) dB(A) at a distance of fifty (50) feet utilizing American National Standard Institute (“ANSI”) B175.2 methodology.

All such leaf blowers shall be operated with all mufflers, full extension tubes, shrouds and sound-attenuating devices supplied by the Agenda Item #8.3.

Page 48 of 302 ends

manufacturer for that leaf blower and shall be maintained in sound operating condition.;
b. The leaf blower is operated without the use of a generator with a gasoline or diesel engine; and
c. The leaf blower is operated in a manner that does not result in leaves, dirt, debris, or other materials being blown or deposited on any other parcel, land, lot, or public right-of-way/property other than the parcel, land, lot, or public right-of-way/property on which the leaf blower is being used or operated.

2. The operation of lawful gas battery-powered and electric leaf blowers on all streets and parcels within the city, except for those areas designated in subsection (E)(3) of this section, shall be allowed between nine a.m. and four p.m. Monday through Friday, between ten a.m. and three p.m. on Saturdays, and between ten a.m. and twelve p.m. on Sundays.

3. The operation of lawful gas battery-powered and electric leaf blowers on all parcels on Main Street between Pine Street and Grayson Avenue shall be allowed between five a.m. and three p.m. Monday through Friday, between ten a.m. and three p.m. on Saturdays, and between ten a.m. and twelve p.m. on Sundays.

4. It shall be unlawful to operate gas battery-powered and electric leaf blowers on federal and local holidays.

5. The operation of gas battery-powered and electric leaf blowers shall be exempt from the permit requirement of subsection A of this section.

6. A violation of any provision of this section shall be subject to the enforcement procedures under Chapter 1.12 of this code in addition to any other enforcement remedies available under law and this code.

Notwithstanding any provision to the contrary in Chapter 1.12, for purposes of enforcement of this chapter under Chapter 1.12, a “responsible person” shall only include a person who uses or operates, or a property owner or business that permits the use or operation of, a leaf blower in violation of this chapter.”
Section 2: Severability.

Agenda Item #8.3.

Page 49 of 302 ends

If any section, subsection, phrase, or clause of this ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council would have passed this ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.

Section 3: CEQA.

This ordinance was assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines (the Guidelines), and the environmental regulations of the City. The City Council hereby finds that this ordinance is exempt from review under CEQA under Section 15061(b)(3) of the State CEQA Guidelines because it can be seen with certainty that the provisions contained herein would not have the potential for causing a significant effect on the environment.

Section 4: Rebate Program/Public Education.

City staff shall develop a rebate program for those persons or businesses purchasing a leaf blower powered by electricity or battery to comply with this ordinance.

The rebate program shall be reviewed and approved by City Town Council prior to implementation. City staff shall also establish a public education campaign regarding this ordinance, including notice to likely leaf blower users or operators of its provisions, means of compliance, and penalties for noncompliance, prior to its effective date.

Section 5: Effective Date.

This ordinance shall take effect January 1, 2023 after its final adoption, and a summary of this ordinance shall be published once with the names of the members of the Council voting for and against the ordinance in the St. Helena Star, a newspaper of general circulation published in the City of St. Helena.

THE FOREGOING ORDINANCE was introduced at a regular meeting of the St. Helena City Council on the day of , 2022, and was adopted at a regular meeting of the St. Helena City Council on the day of , 2022, by the following vote:

Mayor Ellsworth: _____
Agenda Item #8.3.

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Vice Mayor Dohring: _____
Councilmember Chouteau: _____
Councilmember Hardy: _____
Councilmember Hall: _____
APPROVED:
___________________________________
Geoff Ellsworth, Mayor
ATTEST:

CITY OF ST. HELENA
___________________________________
Cindy Tzafopoulos, City Clerk
I, CINDY TZAFOPOULOS, CITY CLERK of the City of St. Helena, California, do hereby certify that the foregoing Ordinance was regularly introduced and placed upon its first reading at a regular meeting of the City Council on the day of , 2022. That thereafter said Ordinance was duly adopted and passed at a regular meeting of the City Council on the day of , 2022, by the following vote:

Mayor Ellsworth: _____
Vice Mayor Dohring: _____
Councilmember Chouteau: _____
Councilmember Hardy: _____
Councilmember Hall: _____
Agenda Item #8.3.

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ORDINANCE NO.

NOW, THEREFORE, The City Council of the City of St. Helena does hereby ordain as follows:

Section 1: Amendment.

E. Leaf Blowers.

All such leaf blowers shall be operated with all mufflers, full extension tubes, shrouds and sound-attenuating devices supplied by the Agenda Item #8.3.

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manufacturer for that leaf blower and shall be maintained in sound operating condition.;
b. The leaf blower is operated without the use of a generator with a gasoline or diesel engine; and

4. It shall be unlawful to operate gas battery-powered and electric leaf blowers on federal and local holidays.

5. The operation of gas battery-powered and electric leaf blowers shall be exempt from the permit requirement of subsection A of this section.

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unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.

Section 3: CEQA.

Section 4: Rebate Program/Public Education.

City staff shall develop a rebate program for those persons or businesses purchasing a leaf blower powered by electricity or battery to comply with this ordinance.

Section 5: Effective Date.

Mayor Ellsworth: _____
Vice Mayor Dohring: _____
Councilmember Chouteau: _____
Councilmember Hardy: _____
Councilmember Hall: _____
Agenda Item #8.3.

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APPROVED:
___________________________________
Geoff Ellsworth, Mayor
ATTEST:

Mayor Ellsworth: _____
Vice Mayor Dohring: _____
Councilmember Chouteau: _____
Councilmember Hardy: _____
Councilmember Hall: _____
Agenda Item #8.3.

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Report to the City Council
Regular City Council - 11 Oct 2022
Agenda Section: CONSENT ITEMS
Subject: Consideration and Proposed Approval of a Resolution Authorizing: (1) Amendment #1 to a Professional Services Agreement with Operational Technical Services STH
Contract: FY 2022-011 in the amount of $71,742.30 for a total not-to-exceed amount of $96,742.30 for Temporary
Underground Utilities Staffing and (2) a budget increase of $71,743 to 561-5031-2020 and use of fund balance of the same.

CEQA
Determination:

Exempt
Prepared By: Clayton Church, Public Works Operations Manager Reviewed By: April Mitts, Assistant City Manager
Approved By: Anil Comelo, City Manager

BACKGROUND
On August 23, 2021, the City entered into a Professional Services Agreement (PSA) with Operational Technical Services (OTS) in an amount not-to-exceed $25,000 for temporary water meter services. This agreement was initially executed for additional support to underground utilities staff due to the significant increase in requests for detailed meter reads, leak checks, and meter accuracy tests. Since the time the agreement was executed, there was an immediate and urgent need for additional support for underground utilities field staff due to an unplanned, extended employee absence.

DISCUSSION
Over the past year, the City utilized OTS to bridge a temporary staffing gap caused by a continued extended leave and a recent vacancy in the underground utilities division of Public Works. This position required a Water Distribution Grade 2 operator certification or higher to ensure compliance with State Water Resources Control Board (SWRCB) Agenda Item #8.4.

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The recommended amendment with OTS will cover the outstanding balance with OTS for the temporary employee. The OTS employee applied for, and through the open recruitment process, was hired full time with the City, effective 10/03/2022. Additionally, as part of the agreement with OTS, the City is required to pay OTS a percentage of the employee's initial salary, which equates to just short of $20,000.

Table 1 provides a summary of the current OTS contract, payments, and additional funding needed to satisfy the outstanding balance for services provided.

Table 1
Current OTS Contract $25,000.00
OTS Invoices - Paid through 7/31/22 ($22,179.90)
OTS Invoices - To be Paid through
10/2/22 $54,563.30
OTS - Early Conversion Option $20,000.00
Amendment #1 $71,742.30

FISCAL IMPACT
The fiscal impact of the Professional Services Agreement is for an additional $71,742.30 for a not-to-exceed amount of $96,742.30, a increase to 561-5031-2020 of $71,742.30 and use of water fund balance of the same.

RECOMMENDED ACTION
Staff recommends City Council adopt the attached resolution.

ATTACHMENTS
Attachment 1 - STH Contract FY2022-011 OTS Temp Meter Read Assistance Attachment 2 - Amendment #1 STH Contract FY2021-011-01A OTS Underground Utilities
Attachment 3 - Resolution OTS Contract Amendment Underground Utilities Agenda Item #8.4.

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AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT, made and entered into on _____________, 2021 by and between the City of St. Helena, located in the County of Napa, State of California (City), and Operational Technical Services (Consultant).

RECITALS:

A. City desires to employ Consultant to furnish professional services in connection with the project described as Temporary Water Meter Reader.

B. Consultant has represented that Consultant has the necessary expertise, experience, and qualifications to perform the required duties.

NOW, THEREFORE, in consideration of the mutual premises, covenants, and conditions herein contained, the parties agree as follows:

SECTION 1 – BASIC SERVICES
Consultant agrees to perform the services set forth in Exhibit A, “Scope of Services” and made part of this Agreement.

SECTION 2 – ADDITIONAL SERVICES
Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement that are in addition to or outside of those set forth in this Agreement or Exhibit A, “Scope of Services” (the “Services”), unless such additional Services and compensation are authorized in advance and in writing by the City Council or City Manager of the City.

SECTION 3 – TIME FOR COMPLETION
The time for completion of Services shall be as identified in Exhibit A, “Scope of Services”. The parties expressly agree that time is of the essence in the performance of this Agreement.

SECTION 4 – COMPENSATION AND METHOD OF PAYMENT
A. Subject to any limitations set forth in this Agreement, City agrees to pay consultant the amount specified in Exhibit B, “Compensation” attached hereto and made a part hereof. Total compensation shall not exceed $25,000 unless additional compensation is approved in accordance with Section 2.

B. Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories if applicable: labor (by sub-category), travel, materials, equipment, supplies, subconsultant contracts, and miscellaneous expenses. Each original invoice furnished shall include the expenses incurred during the preceding month, the cumulative Agreement amount, Agenda Item #8.4.

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and the amount remaining on the Agreement. City shall independently review each invoice submitted to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. If no charges or expenses are disputed, the invoice shall be approved, and City will use its best efforts to cause Consultant to be paid within 30 days of receipt of invoice. If the City disputes any charges or expenses, the City will return the original invoice to Consultant for correction and resubmission. If the City reasonably determines, in its sole judgment, that the invoiced charges and expenses exceed the value of the Services performed to date and that it is probable that the Agreement will not be completed satisfactorily within the contract price, City may retain all or a portion of the invoiced charges and expenses.

Within thirty (30) days of satisfactory completion of the project, City shall pay the retained amount, if any, to Consultant.

C. Payment to the Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.

SECTION 5 – STANDARD OF PERFORMANCE
A. Consultant represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons in the same or similar geographical area engaged in providing Services similar to those required of Consultant under this Agreement.

B. In order to induce City to enter into this Agreement, Consultant represents that it is duly organized, existing and in good standing under applicable state law; Consultant is licensed to perform all aspects of the Services; Consultant will employ only persons and Subconsultants with all required licenses and certifications; that Consultant is duly qualified to conduct business in the State; that Consultant has duly authorized the execution, delivery and performance of this Agreement and the Services to be performed herein; and that the Agreement does not violate or create a default under any instrument, agreement, order or decree binding on Consultant.

SECTION 6 – INSPECTION AND FINAL ACCEPTANCE
City may inspect and accept or reject any of Consultant’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Consultant’s work within sixty (60) days after submitted to City, unless the parties mutually agree to extend such deadline. City shall reject work by a timely written explanation, otherwise Consultant’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects and fraud. Acceptance of any of Consultant’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, the sections pertaining to indemnification and insurance.

Agenda Item #8.4.

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SECTION 7 – INSURANCE REQUIRED
Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees, as indicated:

A. Minimum Scope of Insurance. Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).

2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto).

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

B. Minimum Limits of Insurance. Consultant shall maintain limits no less than:

1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations, as applicable. If Commercial General Liability Insurance or other form with a General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

C. Professional Liability Insurance. When Consultant under this Agreement is duly licensed under California Business and Professions Code as an architect, landscape architect, environmental engineer or other professional engineer, or land surveyor (“design professional”), Consultant shall maintain at least $2,000,000 of professional liability insurance. When Consultant is not a design professional, Consultant shall maintain at least $1,000,000 of professional liability insurance combined single limit for each occurrence, insuring against professional errors and omissions in the Services performed by Consultant under this Agreement, including, without limitation, claims for negligence, misrepresentation, violation of good faith and fair dealing, and inaccurate advise arising out of, resulting from, or in connection with Services performed by Consultant under this Agreement.

D. Excess Limits. If Consultant maintains higher limits than the minimums shown above, City requires and shall be entitled to coverage for the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

E. Primary Coverage. For any claims related to this contract the Consultants insurance coverage shall be primary insurance as respects to City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of Consultants insurance and shall not contribute with it.

Agenda Item #8.4.

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F. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions of $25,000 or greater must be declared to and approved by the City.

G. Other Insurance Provisions. The commercial general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. The City, its agent, officers, officials, employees, and volunteers are to be covered as additional insured as respects: liability arising out of work or operations performed by the Consultant or Consultant’s subconsultants; or automobile owned, leased, hired or borrowed by the Consultant.

2. For any claims related to Consultant’s conduct while performing the work of this project, the Consultant’s insurance coverage shall be primary insurance as respects the City, its agents, officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its agents, officers, officials, employees or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.

3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.

4. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subsection (b) of Section 2782 of the Civil Code.

H. Waiver of Subrogation. Consultant’s commercial general liability, automobile liability, workers’ compensation, and employer’s liability policies shall be endorsed with a waiver of subrogation. The insurance company, in its endorsement, agrees to waive all rights of subrogation against the City, its agents, officers, officials, employees and volunteers for losses paid under the terms of this policy which arises from the work performed by the named insured for the City.

I. The Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII, unless otherwise acceptable to the City.

J. Verification of Coverage. Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on forms that conform to City requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.

SECTION 8 – INDEMNIFICATION
A. To the fullest extent allowed by law (including without limitation California Civil Code Sections 2782 and 2782.8), as may be applicable, Consultant shall indemnify, defend, and hold harmless City, its agents, officers, officials, employees, representatives, and volunteers from any and all claims, demands, suits, loss, damages, injury, and/or liability (including any and all costs and expenses in connection therewith, including legal fees and expert witness costs) Agenda Item #8.4.

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(collectively, “Liabilities”), incurred by reason of any negligent or otherwise wrongful act or omission of Consultant, its officers, agents, employees, subconsultants, and subcontractors, or any of them, under or in connection with this Agreement; and Consultant agrees at its own cost, expense and risk to defend any and all claims, actions, suits, or other legal proceedings brought or instituted against City, its agents, officers, officials, employees and volunteers, or any of them, arising out of, pertaining to, or relating to such negligent or otherwise wrongful act or omission, and to pay and satisfy any resulting judgments.

B. When Consultant under this Agreement is duly licensed under California Business and Professions Code as an architect, landscape architect, professional engineer, or land surveyor (i.e., a “design professional,” pursuant to Civil Code § 2782.8(c)), the provisions of this section regarding Consultant’s duty to defend and indemnify apply only to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant.

C. If any action or proceeding is brought against Indemnitees by reason of any of the matters against which Consultant has agreed to indemnify Indemnitees as provided above, Consultant, upon notice from City, shall defend Indemnitees at Consultant’s expense by counsel acceptable to City, such acceptance not to be unreasonably withheld. Indemnitees need not have first paid for any of the matters to which Indemnitees are entitled to Indemnification in order to be so indemnified. The insurance required to be maintained by Consultant shall ensure Consultant’s obligations under this section, but the limits of such insurance shall not limit the liability of Consultant hereunder. The provisions of this section shall survive the expiration or earlier termination of this Agreement.

D. The provisions of this section do not apply to claims to the extent occurring as a result of the City’s sole negligence, active negligence, or willful acts or misconduct.

E. Duty to Cooperate. Each party shall notify the other party immediately in writing of any claim or damage related to activities or Services performed under this Agreement. The parties shall cooperate with each other in the investigation and disposition of all Liabilities arising out of the activities or Services under this Agreement.

F. In the event that Consultant executes any subconsulting agreements in connection with the Services performed under this Agreement, Consultant shall place in all such subconsulting agreements, and cause its subconsultants to agree to, the indemnity and insurance obligations in favor of City and other Indemnitees, as provided herein, in the exact form and substance of those contained in this Agreement.

G. Further, Consultant will defend and indemnify City, and hold it harmless, from any claim, demand or liability that is related to, or results from an assertion that as a result of providing services to City, a Consultant employee or a person performing work pursuant to this Agreement is entitled to benefits from, or is covered by, the Social Security retirement system or the California Public Employee Retirement Systems. Notwithstanding the foregoing, however, Consultant’s obligation for any payments to such a claimant shall be limited to those payments which the City may be required to pay. This indemnity obligation shall survive the termination or expiration of this Agreement.

Agenda Item #8.4.

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SECTION 9 – INDEPENDENT CONTRACTOR STATUS
A. Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Consultant shall have no authority to bind City in any manner or to incur an obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City.

B. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant’s officers, employees or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees or agents are in any manner officials, officers, employees or agents of City.

C. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.

SECTION 10 – CONFLICTS OF INTEREST AND ANTI-FRAUD AND ANTICORRUPTION POLICIES A. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of Services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent, or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts with the interests of City in the performance of this Agreement.

B. City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involved in the performance of non-related Services for other governmental agencies and private parties. Consultant is aware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section.

C. Consultant understands and acknowledges City maintains an anti-fraud and anticorruption policy to protect the City, its operations, and its employees from and against financial risks, operational breaches, and unethical, fraudulent and corrupt activities. Consultant represents and warrants that Consultant, its subcontractor(s) / subconsultant(s) and their respective employees providing Services pursuant to the Agreement are (1) in good standing; (2) have not been previously investigated, convicted, or debarred for fraudulent or corrupt activities; (3) will not participate in fraudulent or corrupt activities, and (4) will take steps to ensure that its employees and subcontractor(s) / subconsultant(s) employees do not participate in any fraudulent or corrupt activities. Consultant acknowledges and agrees further that it has a duty to and will report to City any information or incident(s) about possible fraudulent or corrupt activities Agenda Item #8.4.

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Consultant may discover, and will cooperate in any fraud or corruption investigation conducted, with respect to Consultant’s service provided pursuant to this Agreement.

SECTION 11 – OWNERSHIP OF DOCUMENTS
A. All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Consultant in the course of providing any Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Consultant. When requested by City, but no later than three years after project completion, Consultant shall deliver to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.

B. All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, improvements, developments, works of authorship, or other products developed or created by Consultant during the course of providing Services (collectively the “Work Product”) shall belong exclusively to City. The Work Product shall be considered a “work made for hire” within the meaning of Title 17 of the United States Code. Without reservation, limitation, or condition, Consultant hereby assigns, at the time of creation of the Work Products, without any requirement of further consideration, exclusively and perpetually, any and all right, title, and interest Consultant may have in the Work Product throughout the world, including without limitation any copyrights, patents, trade secrets, or other intellectual property rights, all rights of reproduction, all rights to create derivative works, and the right to secure registrations, renewals, reissues, and extensions thereof.

SECTION 12 – CONFIDENTIAL INFORMATION; RELEASE OF

INFORMATION
A. All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.

B. Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement.

Response to a subpoena or court order shall not be considered “voluntary” provided consultant gives City notice of such court order or subpoena.

C. If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Consultant’s conduct.

D. Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery Agenda Item #8.4.

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request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite such response.

SECTION 13 – SUSPENSION OF WORK
City may, at any time, by ten (10) days written notice suspend further performance by Consultant. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner and Consultant shall be paid for Services performed and reimbursable expenses incurred prior to the suspension date.

SECTION 14 – COMPLIANCE WITH LAW
Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Consultant shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.

SECTION 15 – COMPLIANCE WITH CIVIL RIGHTS
During the performance of this contract, Consultant agrees as follows:

A. Equal Employment Opportunity. In connection with the execution of this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, color, ancestry, age, sexual orientation, gender, gender identity and gender expression as protected categories specifically and expressively in that category, physical handicap, medical condition, marital status, sex, or national origin. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training including apprenticeship.

B. Nondiscrimination Civil Rights Act of l964. Consultant will comply with all federal regulations relative to nondiscrimination to federally-assisted programs.

C. Solicitations for Subcontractors including Procurement of Materials and Equipment.

In all solicitations, either by competitive bidding or negotiations, made by Consultant for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor, supplier, or lessor shall be notified by Consultant of Consultant’s obligations under this Agreement and the regulations relative to nondiscrimination.

SECTION 16 – COMPLIANCE WITH CALIFORNIA LABOR CODE

REQUIREMENTS
Agenda Item #8.4.

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A. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

B. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

C. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.

SECTION 17 – AUDIT AND INSPECTION OF RECORDS
A. Records of Consultant’s direct labor costs, payroll costs, and reimbursable expenses pertaining to this project covered by this Agreement will be kept on a generally recognized accounting basis and made available to City if and when required for a period of up to 3 years from the date of Consultant’s final invoice.

B. Consultant shall maintain all documents and records prepared by or furnished to Consultant during the course of performing the Services for at least three (3) years following completion of the Services. Such records include, but are not limited to, correspondence, Agenda Item #8.4.

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internal memoranda, technical reports and investigations, calculations, books and accounts, accounting records documenting its work under its Agreement, and invoices, payrolls, records and all other data related to matters covered by this Agreement.

C. Consultant shall permit City to audit, examine and make copies, excerpts and transcripts from such records, and the Consultant shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, and data in any matter whatsoever for three (3) years after City makes the final or last payment or within three (3) years after any pending issues between City and Consultant with respect to this Agreement are closed, whichever is later.

SECTION 18 – LIMITATION OF LIABILITY
A. Consultant agrees that any liability of City arising in connection with this Agreement shall be limited exclusively to the City-entity identified as the “City” under this Contract. Under no circumstance shall any other City-entity be liable to Consultant under any theory, whether in contract, tort, or otherwise, and Consultant waives unconditionally any such claims. Consultant hereby waives and release other City-entites from any liability under this Agreement.

B. Notwithstanding any other provision of this Agreement, in no event shall City be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect or incidental damages, including, but not limited to, lost profits or revenue, arising out of or in connection with this Agreement or the Services performed hereunder.

SECTION 19 – COOPERATION BY CITY
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the work as outlined in the Exhibit A, “Scope of Services”, shall be furnished to Consultant in every reasonable way to facilitate, without undue delay, the work to be performed under this Agreement.

SECTION 20 – NOTICES
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, emailed, sent by facsimile, or first class mail, addressed as follows:

To City: City Manager
1572 Railroad Avenue
St. Helena, California 94574
To Consultant: Operational Technical Services
David Sibelman
10250 Constellation Blvd., Ste 3-115
Los Angeles, CA 90067
[email protected]
Agenda Item #8.4.

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Page 11 of 13 ends

Operational Technical Services 082121 Meter Reading
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile, email, or, if mailed, three (3) days after deposit in the custody of the U.S. Postal Service.

SECTION 21 – TERMINATION
A. City may terminate this Agreement, with or without cause, at any time by giving ten (10) days written notice of termination to Consultant. If such notice is given, Consultant shall cease immediately all work in progress.

B. If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice.

C. Upon termination of this Agreement by either Consultant or City, all property belonging to City which is in Consultant’s possession shall be delivered to City. Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in this Agreement.

SECTION 22 – ATTORNEYS’ FEES
If litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to an award of reasonable attorneys’ fees, costs and expenses, in addition to any other relief to which it may be entitled. In addition, any legal fees, costs and expenses incurred to enforce the provisions of this Agreement shall be reimbursed to the prevailing party.

SECTION 23 – ENTIRE AGREEMENT
This Agreement, including the attached Exhibits, is the entire, complete, final and exclusive expression of the parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any party which are not embodied herein shall be valid and binding unless in writing duly executed by the parties or their authorized representatives.

SECTION 24 – SUCCESSORS AND ASSIGNS
This Agreement shall be binding on the heirs, executors, administrators, successors and assigns of the parties. However, this Agreement shall not be assigned by Consultant without written consent of the City.

SECTION 25 – CONTINUITY OF PERSONNEL
Agenda Item #8.4.

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Page 12 of 13 ends

Operational Technical Services 082121 Meter Reading
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff assigned to perform the Services required under this Agreement. Consultant shall notify City of any changes in Consultant’s staff assigned to perform the Services required under this Agreement, prior to any such performance.

SECTION 26 – DEFAULT
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default and may terminate this Agreement immediately by written notice to Consultant.

SECTION 27 – WAIVER
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision, or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or Services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.

SECTION 28 – LAW TO GOVERN; VENUE
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Napa. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Northern District of California, in San Francisco.

SECTION 29 – SEVERABILITY
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).

SECTION 30 – THIRD PARTY BENEFICIARIES
Consultant’s subconsultants shall agree to be bound to the terms of the Agreement to the extent of their scope of Services, including but not limited to, terms regarding indemnity and dispute resolution, and shall agree that City is deemed an express third party beneficiary of their subconsultant agreements. Nothing contained in this Agreement, however, shall operate to confer such or similar rights or benefits on persons or entities not party to this Agreement.

SECTION 31 – STATUTES OF LIMITATION
As between the parties to this Agreement, any applicable statute of limitations for action arising out of, pertaining to, or relating to any act or failure to act in connection with this Agreement shall commence to run on the date of City’s issuance of the final Certificate for Agenda Item #8.4.

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Page 13 of 13 ends

Operational Technical Services 082121 Meter Reading
Payment, or termination of this Agreement, whichever is earlier, except for latent defects and/or deficiencies, for which the applicable statute of limitation shall begin to run upon discovery of the defect and/or deficiency and its cause.

SECTION 32 – SPECIAL PROVISIONS
This Agreement is subject to the following special provisions: none.

IN WITNESS WHEREOF, the parties hereto have accepted, made, and executed this Agreement upon the terms, conditions, and provisions above stated, the day and year first above written.

Consultant: City:

By: ________________________________ By: ________________________ Name: ______________________________ Name: Mark T. Prestwich Title:________________________________ Title: City Manager

Approved as to Form:

By: _________________________________
Name: Ethan Walsh
Title: City Attorney
________________ David S Sibelman
Chief Executive Officer
Agenda Item #8.4.

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Agenda Item #8.4.

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AMENDMENT NO. 1
TO PROFESSIONAL SERVICES AGREEMENT WITH OPERATIONAL TECHNICAL SERVICES; STH CONTRACT NO: 2022-011 FOR TEMPORARY UNDERGROUND UTILITIES STAFFING FOR AN ADDITIONAL $71,742.30 FOR A TOTAL CONTRACT AMOUNT NOT-TO-EXCEED $96,742.30.

This First Amendment to Professional Services Agreement STH Contract: 2021-011 dated August 23, 2021 ("Agreement") is made as of this 11th day of October 2022 by and between the City of St.

Helena, a municipal corporation ("City"), and Operational Technical Services ("Consultant").

RECITALS
A. On August 23, 2021, the City and Consultant entered into the Agreement for Consultant to provide professional services in connection with the project described as Temporary Water Meter Reader assistance in the underground utilities division; and B. Due to a staffing gap caused by a continued extended leave and a recent vacancy in the underground utilities division there was an immediate and urgent need for additional support in this division; and
C. Additional funding is necessary for the payment of outstanding Operational Technical Services invoices through October 3, 2022; and
D. The temporary employee applied for, and through the open recruitment process, was hired full time with the City effective October 3, 2022; and
E. As part of the agreement with OTS, the City is required to pay OTS a percentage of the employee’s initial salary: and
F. The City of St. Helena and Operational Technical Services now desire to amend the Agreement.

AGREEMENT
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements herein contained, for good and valuable consideration, the adequacy of which is hereby acknowledged, the parties agree to amend the Agreement as follows:

1. Section 4.A Compensation and Method of Payment, is amended to read as follows:
“Total compensation shall not exceed $96,742.30…”
All other terms of the Agreement shall remain in full force and effect.

Entered as of the day and year first above stated.

Agenda Item #8.4.

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CONSULTANT:

Signatures of Authorized Persons:

By:

Print Name:

Title:

CITY OF ST. HELENA
a Municipal Corporation
By:

Print Name: Anil Comelo
Title: City Manager
APPROVED AS TO FORM:

Ethan Walsh, City Attorney
Agenda Item #8.4.

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CITY OF ST. HELENA
RESOLUTION NO. 2022 -
A Resolution of the City of St. Helena City Council Authorizing:
(1) the City Manager to execute Amendment No. 1 to STH
Contract: FY2021-011 with Operational Technical Services for Temporary Underground Utilities Staffing in the amount
of $71,742.30 for a total amount not-to-exceed $96,742.30; (2) a Water Fund budget increase of $71,742.30 to 561-5031-2020; and (3) use of Water Operations fund balance of $71,720.30.

RECITALS
A. On August 23, 2021, the City and Consultant entered into the Agreement for Consultant to provide professional services in connection with the project described as Temporary Water Meter Reader assistance in the underground utilities division; and
B. Due to a staffing gap caused by a continued extended leave and a recent vacancy in the underground utilities division there was an immediate and urgent need for additional support in this division; and
C. Additional funding is necessary for the payment of outstanding Operational Technical Services invoices through October 3, 2022; and D. The temporary employee applied for, and through the open recruitment process, was hired full-time with the effective October 3, 2022; and E. As part of the agreement with OTS, the City is required to pay OTS a percentage of the employee's initial salary; and
F. The City of St. Helena and Operational Technical Services now desire to amend the Agreement.

RESOLUTION
NOW, THEREFORE, the City Council of the City of St. Helena resolves as follows:

1. Authorize the City Manager to execute Amendment No. 1 to STH Contract: FY2021- 011 with Operational Technical Services for a Temporary Underground Utility Operator in the amount of $71,742.30 for a total amount not-to-exceed $96,742.30; and
Agenda Item #8.4.

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2. Authorize a Water Fund budget increase of $71,742.30 to 561-5031-2020; and

3. Authorize use of Water Fund Balance in the amount of $71,742.30.

Approved at a Regular Meeting of the St. Helena City Council on October 11, 2022, by the following vote:

Mayor Ellsworth: __________
Vice Mayor Dohring: __________
Councilmember Hardy: __________
Councilmember Chouteau: __________
Councilmember Hall: __________
APPROVED: ATTEST:
________________________ ________________________
Geoff Ellsworth, Mayor Cindy Tzafopoulos, City Clerk
Agenda Item #8.4.

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Report to the City Council
Regular City Council - 11 Oct 2022
Agenda Section: PUBLIC HEARINGS
Subject: Consideration and proposed approval the following actions:

1. Finding that none of the conditions specified in State CEQA Guidelines section 15162 require the
preparation of a subsequent or supplemental EIR or
MND and no additional environmental review is
required; and

2. Introduce and waive first reading of an Ordinance
approving a Development Agreement Amendment
between the applicant and the City of St. Helena for
the LMR Destinations LLC lodging project at 1000
Mills Lane; and

3. Adopt a resolution making specific findings and
approve a Use Permit Amendment for the LMR
Destinations LLC lodging project at 1000 Mills Lane.

CEQA
Determination:

The City has determined that none of the conditions
specified in State CEQA Guidelines section 15162 requiring preparation of a subsequent or supplemental EIR or MND
would occur.

Prepared By: Maya DeRosa, Community Development Director Reviewed By: April Mitts, Assistant City Manager
Approved By: Anil Comelo, City Manager

BACKGROUND
On October 13, 2020, the St. Helena City Council approved Resolution No.2020-100 approving a Use Permit and Design Review for a 65-room hotel. Additionally on October 13, 2020, the City Council introduced Ordinance No. 2020-9, approving a Development Agreement for the subject lodging project and authorized its execution, and adopted that Ordinance on October 27, 2020. The ordinance became effective on November 26, 2020.

Agenda Item #9.1.

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Subsequent to these approvals and with the passage of time and conversations about how to address storm water infrastructure, the City found a superior alternative way to address storm drainage from the project. Please refer to the Project Description below for the details of the change.

The Planning Commission considered the proposed Development Agreement Amendment and Use Permit Amendment on September 29, 2022 and voted (4-0) recommending approval to the City Council.

DISCUSSION

PROJECT DESCRIPTION
Amendment to the Development Agreement and Use Permit for the Long Meadow Ranch Lodging Project – 1000 Mills Lane
The City and developer desire to amend certain provisions of the Development Agreement with respect to certain outstanding obligations of Developer under the Development Agreement. The current Development Agreement provides that the Developer would construct Storm Drain Improvements that would extend along Mills Lane and would ultimately discharge into the Napa River. These Storm Drain Improvements were contemplated in the Highway 29 Specific Plan as a means to provide storm water drainage for future development in the Specific Plan area, and were included in the Development Agreement as an additional commitment that the developer agreed to assume in exchange for the vested development rights provided for in the Development Agreement. However, these Storm Drain Improvements are not needed at this time and are not required for this project. The project is designed so that storm water from up to a ten year storm event (i.e., the most severe storm that is likely to occur in a ten year period) would be collected on the project site and infiltrated through underground infiltration chambers maintained as part of the project. If the Storm Drain Improvements are not built, storm water from rains in excess of a ten year storm event can flow into an infiltration system that will be included within the Mills Lane right of way as part of the realignment of Mills Lane. The infiltration system will essentially be a trench that runs adjacent to Mills Lane, and will be designed at a size that will allow it to detain any excess storm water from the project site up to a twenty-five year storm event. Any storm water that would be detained in this infiltration system would then infiltrate into the ground. This is consistent with the storm drainage plan for the project as originally planned, in that the project currently contemplates that storm water inlets from the site into the storm drain would be designed for 25 year storm water flows, and storm water from more severe storm events would flow over land. This change simplifies the storm water infrastructure for this project significantly, and allows for infiltration of storm water runoff from the project. Any savings that the developer receives due to the removal of the requirement to contribute to the cost of the Storm Drain Improvements will instead be put toward the City’s cost of developing its recycled water system, or other water conservation measures as deemed appropriate by the City.

Agenda Item #9.1.

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The applicant is requesting approval of a Development Agreement Amendment in order to reflect the revised approach to addressing storm drainage from the project site and the additional monetary contribution toward the City’s future recycled water project or other water conservation measures. The Development Agreement Amendment also makes changes to the timing of completion of the recycled water improvements and adds clarifying language regarding reimbursement of certain developer costs in developing public improvements for the benefit of the City, as further described below. Lastly, a Use Permit Amendment is also requested in order to update the previously approved conditions of approval that relate to the storm drain.

No changes to the hotel or onsite amenities is proposed by this request.

ANALYSIS
CEQA
In accordance with the California Environmental Quality Act (CEQA), an Initial Study and Mitigated Negative Declaration (IS/MND) (SCH No. 2020050553) was prepared for the project. The document contains a description of the proposed project, an analysis of potential environmental impacts resulting from the proposed project, as well as mitigation measures intended to reduce potentially significant impacts to less-than-significant levels.

In particular, the IS/MND found that although the proposed project would generate potentially significant impacts related to air quality, biological resources, cultural/tribal resources, hydrology, noise, public services, traffic/transportation, and utilities/service systems, but through the implementation of mitigation measures, all potentially significant impacts would be reduced to less than significant levels. On October 13, 2020, City Council adopted the IS/MND and the Mitigation Monitoring and Reporting Program (MMRP), and approved the project.

On the basis of the whole record, including the IS/MND and MMRP, the City has determined that the minor modifications made to the infrastructure conditions of approval and development agreement terms for the Farmstead property are consistent with the MND and MMRP previously prepared and adopted for the Project on October 13, 2020 and would not result in new impacts or any substantial changes to any significant effects previously identified. Specifically, substantial changes are not proposed in the Project that would require major revisions of the Mitigated Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects have not occurred; new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Mitigated Negative Declaration was adopted, as applicable, showing any of the following, has not come to light: (i) that the Project would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the Agenda Item #9.1.

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applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those previously analyzed would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt.

Thus, based on these findings and all evidence in the record, the City has determined that none of the conditions specified in State CEQA Guidelines section 15162 requiring preparation of a subsequent or supplemental EIR or MND would occur and no additional environmental review is required.

GENERAL PLAN
The nature of this project amendment does not result in any changes to the prior determination that the project is consistent with the adopted 2019 General Plan.

Staff Response: The General Plan requires developer to provide adequate drainage improvements and detention to mitigate storm runoff from the site to the nearest major water way, and require that post-project runoff be limited to pre-project peak flow rates for five year and ten year storms. Developer will still satisfy these standards through the on-site detention included in the design of the project and inclusion of the infiltration system.

HIGHWAY 29 SPECIFIC PLAN
In February 2005, the City adopted the Highway 29 Specific Plan, which outlines circulation changes, roadways extensions, traffic signal installations, and streetscape improvements along the State Route 29 corridor west of the Sulphur Creek Bridge. This project is located within the Highway 29 Specific Plan.

Staff Response: The project, including the proposed amendments to the Development Agreement and Use Permit, remains consistent with the objectives of the Highway 29 Specific Plan. The only substantive change to the project for the developer to provide for the infiltration system rather than the Storm Drain Improvements. The Specific Plan specifically allows for temporary use of storm water detention or retention facilities to address storm water runoff at the discretion of the City Engineer. City staff believes that the infiltration system is an appropriate means of storm water management for this project.

ZONING
The lodging project parcel has zoning designations of Service Commercial (SC) and Twenty-Acre Agriculture (A-20).

The SC designation provides for service and retail uses, restaurants, service stations, motels, public and quasi-public uses, and similar and compatible uses. The designation is intended primarily for service and retail uses that are automobile-oriented or whose operational characteristics and space needs are not considered appropriate for the Central Business District. The A-20 designation provides for agricultural and residential uses. With the exception of those hillside areas designated woodlands and watershed, and wineries designated winery, all lands outside the urban limit line are designated A-20 Agenda Item #9.1.

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regardless of their size or use. The purpose of the A-20 district is to promote and implement the policies of the general plan to preserve agricultural land uses and provide for future orderly development as the urban limit line is adjusted to accommodate urban growth.

Staff Response: Pursuant to SHMC Section 17.52.030, a use permit was approved by the City Council in October 2020 to allow a new hotel in the SC district. No changes are proposed to the building site plan and therefore no changes to consistency with development standards.

USE PERMIT / USE PERMIT AMENDMENT
As noted above, SHMC Section 17.52.030 requires use permit approval for the establishment of a new hotel in the SC district. The purpose of a use permit is to allow the proper integration of essential or desirable uses which may be suitable only in certain locations or zoning districts in the City, or to ensure that such uses are designed or arranged on the site in a particular manner. The Resolution No. 2020-100 for the Use Permit included conditions of approval for the storm drain which need to be amended to be consistent with the amended development agreement. There is no change proposed to the hotel and how it will operate. The attached resolution notes in redline revised condition numbers 32, 40, 44, and 67.

In its review of applications for use permits, the Planning Commission shall evaluate each proposed use in order to consider its impact on the City. Pursuant to Municipal Code Section 17.168.050, no use permit shall be granted unless the following findings can be made:

1. That the proposed use would not generate odors, fumes, dust, light, glare, radiation or refuse that would be injurious to surrounding uses or to the community.

2. That the proposed use would not generate levels of noise that adversely affect the health, safety, or welfare of neighboring properties or uses.

3. That the proposed use would not generate traffic noise in excess of the "normally acceptable" range identified in the General Plan.

4. That the proposed use would not make excessive demands on the provision of public services including water supply, sewer capacity, energy supply, communication facilities, police protection, and fire protection.

5. That the proposed use would provide adequate ingress and egress to and from the proposed location.

6. That allowing the proposed use would not conflict with the City's goal of maintaining the economic viability of a local serving economy.

7. That the proposed use would be compatible with surrounding land uses and would not conflict with the purpose established for the district within which it would be located.

8. That the proposed use would not be in conflict with the City's General Plan.

9. That the proposed use would not be injurious to public health, safety, or welfare.

10.That granting the use permit would not set a precedent for the approval of similar uses whose incremental effect would be detrimental to the City or would be in conflict with the General Plan.

Agenda Item #9.1.

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11.That, as demonstrated on a detailed plan submitted by the applicant, adequate offstreet parking to accommodate the long term parking needs of employees and business owners and customers is available.

12.That the capacity of surrounding streets is adequate to serve the automobile and delivery truck traffic generated by the proposed use.

Staff Response:

Staff finds that the amended conditions of approval meets and/or complies with the required findings to approve a use permit amendment for the lodging project. The findings included in the attached resolution identify this compliance.

DEVELOPMENT AGREEMENT
A development agreement is a land use tool that is authorized and governed by Government Code Section 65864 et seq. and SHMC Chapter 17.156. Development agreements are voluntary, negotiated agreements entered into between an applicant and the City, pursuant to which the Developer may secure vested rights to develop their property under the rules in place at the time of their approval. In exchange for granting these additional vested rights, the City can negotiate to require the Developer to provide additional community benefits to the City in excess of what the City could require through the normal entitlement process. SHMC Chapter 17.156 requires that the Planning Commission hold a public hearing to consider the Development Agreement and amendments to the Development Agreement and following the public hearing make a recommendation to the City Council on whether to approve the Development Agreement or the Amendment, including making a determination whether the development agreement proposed:

A. Is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan; B. Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located; C. Is in conformity with public convenience, general welfare and good land use practice;
D. Will be detrimental to the health, safety and general welfare; E. Will adversely affect the orderly development of property or the preservation of property values. The recommendation shall include the reasons for the recommendation; and
F. Will have a sufficient water supply for subdivisions pursuant to the requirements of Government Code Section 66473.7 [Note: This last finding applies to residential subdivisions of 500 or more lots and therefore is not applicable to this Project].

Section 17.156.090 (Decision by City Council), sets the following requirements for the City Council’s consideration of the development agreement:

G. After the City Council completes its public hearing, it may accept, modify or disapprove the recommendation of the planning commission. It may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation.

The Planning Commission may, but need not, hold a public hearing on matters referred back to it by the city council.

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H. The City Council may not approve the development agreement unless it finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.

I. If the City Council approves the development agreement, it shall do so by the adoption of an ordinance. After the ordinance approving the development agreement takes effect, the City may enter into the agreement.

Staff Response: As noted in the Background section of this report, the Farmstead Lodging project Development Agreement became effective on November 26, 2020. As the amendment to the Development Agreement involves a change in the monetary contributions by the Developer related to the infrastructure, it meets the definition of a “Major Amendments to Agreement” noted in Article 8.2 of the approved Development Agreement. A Major Amendment requires a public hearing before the Planning Commission and City Council and thus is one of the requested action items discussed in this report. There are two primary areas of revision to the approved Development Agreement (DA):

STORM DRAIN AMENDMENTS
Key components of the changes to the DA include:
a. Requirement to construct and contribute to the cost of the Storm Drain is deleted.
b. In place of constructing the storm drain, stormwater from the hotel project in excess of 10 year flows would drain into an infiltration system that would be constructed in the City right of way adjacent to Mills Lane. c. The Developer is fully responsible for the design and construction of the stormwater infiltration system improvements.
d. Exhibit G has been replaced and renamed “Alignment of Infiltration System Improvements”

RECYCLED WATER IMPROVEMENT AMENDMENTS
Key components of the changes to the DA include:
e. The timing of the deadline to construct the recycled water pipe has been extended to November 1, 2024 (previously November 1, 2022). f. A new section of the DA (7.3.5) describes an additional contribution by the developer to the cost of the recycled water improvements or other water conservation measures. The developer is required to pay the City an amount equal to the difference between the developer’s share of the cost of the Storm Drain improvements, and the cost of construction of the infiltration system improvements. The funds paid to the City will be used for the Recycled Water Project or if the Recycled Water Project does not move forward, for other water conservation measures.

The Amendment also clarifies certain provisions related to the reimbursement of costs incurred by the developer for public improvements to be constructed in connection with the project. The Development Agreement requires the developer to pay for the construction certain improvements (including the realignment of Mills Agenda Item #9.1.

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Lane and the installation of recycled water pipe in the Mills Lane right of way), even though developer is only partially responsible for the cost of these improvements.

The proposed amendment includes certain edits to make clear that the cost of construction includes planning, design and management of the construction of those public improvements, and that developer will be eligible for reimbursement of those related costs in excess of developer’s proportionate share, and to provide for review and approval by the City Engineer of any contracts for such costs to ensure that the expenses incurred by developer are appropriate.

Lastly, City staff is recommending one additional provision to be included in the Development Agreement amendment, which has been negotiated with the Developer since the Planning Commission hearing. City staff is recommending the addition of a new requirement that Developer pay to the City the amount of $50,000 for the purpose of offsetting costs that the City has incurred in conjunction with the planning and pursuit of regulatory approval for the Storm Drain Improvements and development of this Amendment, including but not limited to legal, staff and consultant costs incurred by the City. The Developer will pay this amount within 180 days of the effective date of the Development Agreement amendment, with authority granted to the City Manager to reasonably extend the payment deadline for not more than 90 days.

The Development Agreement amendment is consistent with SHMC Chapter

17.156 in that the infrastructure changes are consistent and do not preclude full implementation of the adopted General Plan and Highway 29 Specific Plan, does not make any change to compatible uses in the zoning districts, is in conformance with public convenience, general welfare and good land use practice, will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of property or the preservation of property values.

FISCAL IMPACT
There is no new fiscal impact to the City by the implementation of the Farmstead Hotel Development Agreement Amendment.

RECOMMENDED ACTION
For the reasons described above, staff recommends that the City Council:

2. Introduce and waive first reading of an Ordinance approving a Development Agreement Amendment between the applicant and the City of St. Helena for the LMR Destinations LLC lodging project at 1000 Mills Lane; and

3. Adopt the attached resolution making specific findings and approve a Use Permit Amendment for the LMR Destinations LLC lodging project at 1000 Mills Lane.

ATTACHMENTS
First Amendment to Development Agreement (Farmstead)-FINAL Agenda Item #9.1.

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Executed Development Agreement
Ordinance Approving Farmstead DA Amendment-FINAL
CC Resolution Approving Amendment to Use Permit for Farmstead Project-FINAL Agenda Item #9.1.

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RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:

City of St. Helena
1480 Main Street
St. Helena, California 94574
Attn: City Clerk
Record Without Fee
Pursuant to Government Code
Section 27383
Space Above Reserved for Recorder’s Use Only

FIRST AMENDMENT TO DEVELOPMENT AGREEMENT

BY AND BETWEEN
CITY OF ST. HELENA
AND

LMR DESTINATIONS LLC
Effective Date: ___________, 2022
Agenda Item #9.1.

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FIRST AMENDMENT TO

DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF ST. HELENA

AND LMR DESTINATIONS LLC
This First Amendment to Development Agreement (“First Amendment”), dated as of the Effective Date set forth above, is entered into by and between the City of St. Helena, a California municipal corporation, (“City”) and LMR Destinations LLC, a California limited liability company (“Developer”) . City and Developer may be referred to individually in this First Amendment as “Party” or collectively as “Parties.”

RECITALS
A. City entered into a Development Agreement with an effective date of November 26, 2020, and recorded in the Official Records of Napa County as Document No. 2020-0031913 (the “Development Agreement”), providing for the development of that certain property located at 1000 Mills Lane, St. Helena in the County of Napa as more particularly described in Exhibit A attached hereto and incorporated herein (the “Property”), with a maximum 65 room hotel with ancillary retail and related amenities as more particularly described in the Development Agreement (the “Project”).

B. Concurrently with the approval of the Development Agreement, the City took several actions to approve the Project, which actions are more specifically described as the “Existing Approvals” in the Development Agreement. Since the approval of the Development Agreement, Developer has been proceeding with the development of the Project in accordance with the requirements of the Development Agreement and the Existing Approvals.

C. City and Developer desire to amend certain provisions of the Development Agreement with respect to certain outstanding obligations of Developer under the Development Agreement. The Development Agreement obligates Developer to construct certain storm drain improvements necessary to install a storm drain along Mills Lane to serve properties on Mills Lane, La Fata Street, Fountain Street, Grayson Avenue, Main Street (to Charter Oak Avenue), and Vidovich Avenue and to construct an outfall for said storm drain into the Napa River ( the “Storm Drain Improvements”) as contemplated in the City’s Storm Drain Master Plan dated September 2000. The Storm Drain Improvements are not needed at this time, nor are they required for the Project. The parties therefore desire to eliminate the requirement to construct the Storm Drain Improvements and instead provide that Developer will connect to an infiltration system to be included in the Mills Lane right way. The Parties have further agreed that to the extent Developer experiences financial savings from the as more particularly elimination of Developer’s obligation to contribute to the cost of the Storm Drain Improvements, Developer Agenda Item #9.1.

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shall contribute those financial savings to City for the City’s construction of recycled water improvements or other water conservation measures.

D. In addition, the Parties have determined that certain other amendments and/or clarifications to the Development Agreement should be made to reflect the changes described in these recitals.

AGREEMENTS

1. Incorporation of Recitals. The Parties agree that the above recitals are true and correct and are incorporated herein by reference.

2. Amendment to Section 5.1.2. Section 5.1.2 of the Development Agreement is hereby amended and restated in its entirety to read as follows:
“5.1.2. Stormwater Infiltration System. Developer shall, at its sole cost and expense, design and construct stormwater infiltration system improvements adjacent to the Mills Lane Improvements and within the existing public right of way for Mills Lane and on an alignment as generally depicted in Exhibit G attached hereto and incorporated herein by this reference (the “Infiltration System Improvements”), which Infiltration System Improvements shall be designed to retain and infiltrate at a minimum 25 year stormwater flows. The Project shall include inlets from the Project to the Infiltration System Improvements to manage at minimum such 25 year stormwater flows. The Infiltration System Improvements shall be constructed prior to or concurrently with the development of the Project and in accordance with improvement plans approved by the City Engineer and verified to meet the standards for retention and infiltration as set forth herein.

Developer shall complete the Infiltration System Improvements prior to the issuance of the first certificate of occupancy for the Project by the City.

5.1.2.1 Determining Cost of Infiltration System Improvements. Within fifteen (15) days following execution by Developer of the construction contract or change order that provides for the construction of the Infiltration System Improvements, Developer shall provide City with written confirmation of the cost of the Infiltration System Improvements, along with documentary support for such costs through the construction contract or change order documenting such improvements, which shall include separate line items as necessary to clearly document the separate cost of the Infiltration System Improvements. The City Engineer shall confirm the cost of the Infiltration System Improvements based on the documentation provided, which confirmation by the City Engineer shall be deemed to constitute the cost of the Infiltration System Improvements.

3. Amendment to Section 5.1.4. Section 5.1.4 of the Development Agreement is hereby amended and restated in its entirety to read as follows:

5.1.4 Recycled Water Improvements. Developer shall construct and install additional piping to convey recycled water in the public right of way in Mills Lane extending from the intersection of Highway 29 and Mills Lane easterly to the eastern end of Mills Lane Agenda Item #9.1.

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(the “Recycled Water Pipe”) in a manner as directed by the City Engineer and consistent with plans and specifications as approved by the City and shall be completed prior to November 1, 20222024 as a prerequisite for a final certificate of occupancy for the Project. For purposes of this agreement “recycled water” means wastewater treated by the City’s wastewater treatment facility that meets State requirements for reuse, including but not limited to California Department of Public Health regulations contained in Title 17 and Title 22 of the California Code of Regulations. The Recycled Water Pipe shall be designed and at a size as directed by the City Engineer, but is anticipated to be a twelve (12) inch pipe and will be installed in the a trench constructed in the public right of way for Mills Lane as more specifically set forth in the plans and specifications approved by the City Engineer pursuant to this Section 5.1.4for the Storm Drain Improvements.

Developer shall construct and install the Recycled Water Pipe as a means of offsetting its water requirement in accordance with Chapter 13.12 of the St. Helena Municipal Code.

The construction of the Recycled Water Pipe is being conducted in lieu of paying the inlieu retrofit fee that would otherwise be required of the Project pursuant to Section

13.12.030(B) of the St. Helena Municipal Code.

5.1.4.1 To allow Developer’s Recycled Water Pipe to offset the Project’s use of City water, City shall seek options to improve its wastewater treatment facility to treat wastewater to the above referenced State requirements and shall install necessary piping such that the Recycled Water Pipe is delivering recycled water to Crane Park’s irrigation infrastructure (“Recycled Water Improvements”). City shall pursue efforts to complete these improvements on or before November 1, 2024 subject to CEQA and the right to not build the Recycled Water Improvements in any form. In the event the Recycled Water Improvements are not completed by November 1, 20222024 City and Developer will cooperate to identify and implement measures calculated to save potable water in amounts equal to the Project’s use of City water until recycled water is delivered to Crane Park, if ever. Notwithstanding the above, nothing herein shall commit or otherwise require the City, or be interpreted as committing or requiring the City, to approve the Recycled Water Improvements, or any portion thereof. Further, the Parties acknowledge and agree that the City retains full discretionary authority with respect to the Recycled Water Improvements, and may deny or approve the Recycled Water Improvements, or any portion thereof. Similarly, the City retains full authority under CEQA and other environmental laws to impose any and all feasible mitigation to reduce potentially significant impacts and to consider and adopt alternatives to the Recycled Water Improvements, specifically including the “no project” alternative.

4. Amendment to Section 7.3. Section 7.3 is hereby amended and restated in its entirety to read as follows:

7.3 Construction and Reimbursement for Public Improvements. Pursuant to Sections

5.1.1-5.1.5 of this Agreement, Developer is required to construct the Mills Lane Improvements, Storm Drain Infiltration System Improvements, Recycled Water Pipe, and La Fata Sidewalk Improvements, collectively referred to herein as the “Public Improvements”. This section sets forth the manner in which the required Public Improvements will be planned, designed and constructed, and provides for reimbursement to Developer for costs incurred in conjunction with Agenda Item #9.1.

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contracts with third parties for the planning, design, construction management and construction of these Public Improvements in excess of Developer’s share of such costs.

7.3.1 Planning and Design of Public Improvements. City will undertake and complete the planning and design of the Storm Drain Improvements, including preparation of final design plans, specifications, drawings and related materials as necessary for Developer to issue a request for bids for construction of the Storm Drain Improvements. Developer will undertake and complete the planning and design of the Mills Lane Improvements, Infiltration System Improvements, La Fata Sidewalk Improvements and Recycled Water Pipe, including final design plans, specifications, drawings and related materials as necessary to solicit bids for these improvements, which materials shall be subject to the review and approval by the City Engineer. All third party contracts that Developer will include as part of the cost of the Public Improvements used for purposes of calculating the amount to be reimbursed to Developer pursuant to Section 7.3.4 of this Agreement, including agreement for planning, design and construction management work, shall be subject to the review and approval of the City Engineer to determine the reasonableness of such costs. Developer shall not be eligible for any reimbursement for costs incurred pursuant to such contracts unless and until the contracts are reviewed and approved in writing by the City Engineer, which approval may be granted or withheld in the City Engineer’s reasonable discretion.

7.3.2 Construction of Public Improvements. Following completion of the design work described above, Developer shall bid the Mills Lane Improvements, Storm Drain Infiltration System Improvements and Recycled Water Pipe in conformance with all local and state bidding requirements applicable to the City. The City Engineer shall assist Developer as necessary to ensure compliance with applicable bidding requirements.

The improvements described above may be bid as a single project, provided that if it is bid as a single project it will be broken into component parts in a manner as approved by the City Engineer, so that the costs of each component part is clearly indicated, to allow for calculation of Developer’s share of the cost of each of the required Public Improvements in accordance with this section. The Developer shall bid the La Fata Sidewalk Improvements in a manner as Developer deems appropriate. Developer shall award and enter into the contracts for all the Public Improvements and shall be solely responsible for all project and construction management activities. The Public Improvements shall be inspected and accepted by the City at the appropriate times in accordance with the City’s customary practice and processes.

7.3.3 Developer Share of Public Improvement Costs. Developer shall be solely responsible to pay the full cost of planning, designing, construction management, and constructing the Public Improvements described herein, but shall be entitled to reimbursement from the City for portion of such costs in excess of the Developer’s share of such costs. Developer’s share of the cost of each of the required Public Improvements is as follows:

7.3.3.1 Developer’s share of the cost of the Mills Lane Improvements shall be forty-one percent (41%) of the planning, design, construction management and construction costs attributable to the Mills Lane Agenda Item #9.1.

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Improvements as set forth in the bid documents for such improvements, including any change orders for such improvements and third party contracts for planning, design and construction management services that are reviewed and approved by the City Engineer.

7.3.3.2 Developer’s share of the cost of the Storm Drain Infiltration System Improvements shall be eighteen one hundred percent (18100%) of the planning, design, construction management, and construction costs attributable to the Storm Drain Infiltration System Improvements as set forth in the bid documents for such improvements, including any change orders for such improvements and third party contracts for planning, design and construction management services that are reviewed and approved by the City Engineer.

7.3.3.3 Developer shall pay the full planning, design, construction management and construction cost attributable to the Recycled Water Pipe as set forth in the bid documents for such improvements, including any change orders for such improvements and third party contracts for planning, design and construction management services that are reviewed and approved by the City Engineer up to a maximum amount of Two Hundred Fifty-Six Thousand Five Hundred Forty-Nine Dollars ($256,549). Any planning, design, construction management and construction costs approved by the City Engineer in excess of this maximum amount shall be subject to reimbursement by the City in accordance with Section 7.3.4.

7.3.3.4 Developer shall pay the full cost of planning, design, construction management and construction of the La Fata Sidewalk Improvements with no reimbursement from the City.

7.3.3.5 The amounts for which Developer is solely responsible as set forth above are collectively referred to herein as the “Developer’s Share of Public Improvements.”

7.3.4 Reimbursement for Costs in Excess of Developer’s Share of Public Improvements.

7.3.4.1 Following construction of the Public Improvements by Developer and acceptance of said Public Improvements by the City, the City shall reimburse Developer for the planning, design, construction management and construction costs of the Public Improvements approved by the City Engineer and in excess of the Developer’s Share of Public Improvements, as set forth in the bid documents for such Public Improvements, including any change orders and third party contracts for planning, design and construction management services reviewed and approved by the City Engineer, in the manner set forth below. Developer shall, within sixty (60) days following the date when all of the Public Improvements have been accepted by the City, submit to the City Engineer a calculation of the dollar amount of Developer’s Share of Public Improvements, along with all supporting documentation for such Agenda Item #9.1.

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calculation as requested by the City Engineer, including but not limited to the construction contracts for all of the Public Improvements and all change orders for the Public Improvements, as well as all third party contracts for planning, design and construction management services, and invoices documenting costs incurred thereunder. Within thirty (30) days of such submission, City Engineer shall notify Developer in writing of the City Engineer’s final determination of the Developer’s Share of Public Improvements, and the total amount to be reimbursed to Developer pursuant to this Section 7.3.4. In the event of any dispute between the parties as to the calculation of the amount to be reimbursed to Developer for such costs, the parties shall meet and confer in an effort to resolve such disputes prior to taking any other action pursuant to this Agreement.

7.3.4.2 City shall reimburse Developer an amount equal to fifty percent (50%) of the Transient Occupancy Tax (“TOT”) received by the City from Developer pursuant to Chapter 3.28 of the St. Helena Municipal Code, until the approved planning, design, construction management and construction costs in excess of Developer’s Share of Public Improvements have been reimbursed to Developer in full. Reimbursement shall be made on a quarterly basis within thirty (30) days after the City has confirmed the amount of TOT paid by Developer for the prior quarter, provided that the City may, at its discretion, make additional or larger payments to the Developer toward to the total reimbursement amount. City may use any source of funds it deems appropriate to make the reimbursement payment required hereunder, including general fund moneys, impact fees as appropriate for the constructed improvements or other funds available to pay for the construction of capital improvements. City’s obligation to reimburse Developer pursuant to this section shall survive the expiration of the Term and any Extended Term.

7.3.5 Developer contribution to Recycled Water Improvements. Developer shall separately pay directly to the City an amount equal to the difference between (i) eighteen percent (18%) of the projected cost of the Storm Drain Improvements that were to be constructed by Developer prior to the adoption of the First Amendment (which cost the Parties stipulate is Seven Hundred Sixty-Three Thousand Eight Hundred Forty Dollars ($763,840) based on the low bid received by Developer for such work) (“Developer’s Storm Drain Improvements Cost Share”) and (ii) the cost of construction of the Infiltration System Improvements (specifically excluding the planning, design and construction management costs) as determined pursuant to Subsection 7.3.3.2 above to be used by City for the construction of the Recycled Water Improvements as described in Section 5.1.4.1 of this Agreement, or if the City does not proceed with construction of the Recycled Water Improvements, for such water conservation measures as the City deems appropriate in its sole discretion (the “Recycled Water Contribution”). The Recycled Water Contribution shall be paid to City by Developer within thirty (30) days following confirmation of the cost of the Infiltration System Improvements by the City Engineer pursuant to Section 5.1.2 of this Agreement.

5. Additional Payment for City Costs. In addition to other consideration provided by Developer pursuant to the Agreement as amended herein, Developer shall pay to the City the Agenda Item #9.1.

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amount of Fifty Thousand Dollars ($50,000) (the “Developer Amendment Payment”) for costs incurred by the City in conjunction with the planning and pursuit of regulatory approval for the Storm Drain Improvements and development of this Amendment, including but not limited to legal, staff and consultant costs incurred by the City. The Developer Amendment Payment shall be paid in a single payment on or before one hundred eighty (180) days following the effective date of this Amendment, which is thirty (30) days following approval by the City Council, provided that the City Manager may extend the deadline for payment of the Developer Amendment for a period not to exceed ninety (90) additional days, based on City Manager’s determination that Developer is making reasonable progress on the Project.

6. Amendment to Exhibit D. Exhibit D to the Development Agreement (“Existing Approvals”) shall be modified and amended to incorporate the Amendments to Existing Approvals as attached to this First Amendment as Exhibit B and incorporated herein by this reference. Except as specifically modified or amended by Exhibit B to this First Amendment, Exhibit D to the Development Agreement shall remain in full force and effect.

7. Amendment to Exhibit G. Exhibit G to the Development Agreement (“Storm Drain Improvements”) is hereby deleted and is replaced with the Exhibit G attached to this Amendment and incorporate herein by this reference, which depicts the alignment of the Infiltration System Improvements.

8. Exhibits. The following exhibits are attached to this Agreement and are hereby incorporated herein by this reference for all purposes as if set forth herein in full:

Exhibit A: Property Description
Exhibit B. Amendments to Existing Approvals
Exhibit G. Alignment of Infiltration System Improvements

9. Except as modified by this First Amendment, all terms and conditions of the Development Agreement remain unchanged and are in full force and effect.

10. This First Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. [Signatures on Following Page]
Agenda Item #9.1.

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IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date.

CITY:

CITY OF ST. HELENA, a municipal corporation
By:

Anil Comelo, City Manager
[Signature must be notarized]
ATTEST:

By:

Cindy Tzafopoulos, City Clerk
APPROVED AS TO FORM:

By:

Ethan Walsh, City Attorney
DEVELOPER:

LMR DESTINATIONS LLC, a California limited
liability company
By: Long Meadow Ranch Partners, L.P.
a California limited partnership
Its: Manager
By: LMR GP LLC,
a California limited liability company
Its: General Partner
By:

Ted W. Hall,
Its Manager
[Signature must be notarized]
Agenda Item #9.1.

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83578.00106\40671059.11

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Notary Acknowledgment
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.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, 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

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER
Individual

DESCRIPTION OF ATTACHED DOCUMENT
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Agenda Item #9.1.

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83578.00106\40671059.11

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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

CAPACITY CLAIMED BY SIGNER
Individual

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Agenda Item #9.1.

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83578.00106\40671059.11

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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

CAPACITY CLAIMED BY SIGNER
Individual

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Agenda Item #9.1.

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83578.00106\40671059.11
Exhibit A

EXHIBIT A
Legal Description for the Property
[Attached behind this cover page]
Agenda Item #9.1.

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83578.00106\40671059.11
Agenda Item #9.1.

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83578.00106\40671059.11
Agenda Item #9.1.

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83578.00106\40671059.11
Exhibit B

EXHIBIT B

AMENDMENTS TO EXISTING APPROVALS
[to be inserted]
Agenda Item #9.1.

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83578.00106\40671059.11
Exhibit G

EXHIBIT G

ALIGNMENT OF INFILTRATION SYSTEM IMPROVEMENTS
[to be inserted]
Agenda Item #9.1.

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83578.00106\40671059.11
Exhibit G
Agenda Item #9.1.

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RECORDING REQUESTEDBY
AND WHEN RECORDED RETURN TO:

City of St. Helena
1480 Main Street
St. Helena, CA 94574
Attention: City Clerk
Record Without Fee
Pur.s'mm!to Governmenl Code
Section 27383
Above Reserved Recorder Use Space Only "xfor

DEVELOPMENTA
G
R
E
E

BYAND BET
WEE
N
CITYOF ST. H
E
L
E
N
A
AND
E
ff
ec
ti
v
e
Date: November 20206,

L LLC DE
STI
NA
TIO
NS
8 3
5 7
8 00I6\33-
M8026
Agenda Item #9.1.

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ARTICLE 1

1.]
ARTICLE 2

2.1 l\) [Q E” I9 -law
ARTICLE 3

3.1 3.2

3.3 3.4

3.5 3.6

3.7 3.8

3.9 3.10
ARTICLE 4

4.1 4.2

4.3 ARTICLE 5 5.123 ARTICLE 6 6.1 ARTICLE 7 7.]

TABLE OF CONTENTS
Page
DEFINITIONS............................................................................................ .........
..3
De?nitions................................................................................................ ............
..3
EFFECTIVE DATE AND TERM 7
Effective Date ............................................................................................ ..........
..7
InitialTerm of Agreement .................................................................................. .
..7
City Representations and Warranties................................................................... ..8 DeveloperRepresentations and Warranties ......................................................... ..8 DEVELOPMENT OF THE PROPERTY ............................................................ ..9 Vested Rights............................................................................................. ..........
..9
Applicable Law ...... 9
Development Timing ...................................................................................... ...
.. l0
Regulation by Other Public Agencies................................................................ .. l0 Life of Project Approvals................................................................................... .. I1 Developer’s Right to Rebuild ............................................................................ ..l 1 State and Federal Law ...................................................................................... ..
..I 1
Subsequent Development Review.... ..11
Effective Development Standards...................................................................... ..1l Moratoria................................................................................................. ...........
.. I2
FEES .................................................................................................... ..............
.. 12
Impact Fees and Exactions................................................................................. .. I2 Processing Fees........................................................................................... .. 12 Other Agency Fees.......................... .. DEVELOPER OBLIGATIONS .. 13 Developer Obligations ....................................................................................... City ofSt. Helena Business License .................................................................. ..16 Sales Tax Point of Sale Designation.................................................................. .. 16 ANNUAL REVIEW ................... Annual Review
............................................................................................ .......
..16 COOPERATION AND IMPLEMENTATION ................................................. ..17 Subsequent Approvals ..................................................................................... ..
..

I7
8 3
5 7
8 0()| 06\33-
H8026
Agenda Item #9.1.

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7.2 7.3
ARTICLE 8

8.1 8.2

8.3 8.4

8.5 ARTICLE 9

9.1 9.2

9.3 9.4
ARTICLE 10

10.1 10.2

ARTICLE II

11.1 11.2

11.3 ARTICLE 12 12.6358 12.1247

TABLE OF CONTENTS
(continued)
Page
Processing Applications for Subsequent Approvals ........... .. 18 Construction and Reimbursement for Public Improvements ..............................18 AMENDMENT OF AGREEMENT AND PROJECT APPROVALS .............. ..20 Amendment by Written Consent ....................................................................... ..20 Major Amendments to Agreement ..................................................................... ..20 Minor Amendment............................................................................................. ..20 Requirementfor Writing.................................................................................... ..2] Subsequent CEQAReview

INSURANCE, INDEMNITY AND COOPERATION IN THE EVENT

OF LEGAL CHALLENGE
Insurance Requirements..................................................................................... ..2| Indemnity and Hold Hannless ........................................................................... ..21 Defense and Cooperation in the Event of a LitigationChallenge ..................... ..22 Prevailing Wages ............................................................................................... ..22 TRANSFER AND NOTICE .............................................................................. ..23 Transfer ................. 23
Successive Transfer ........................................................................................... ..24 MORTGAGEE PROTECTION ........................................................................ ..24 Mortgagee Protection......................................................................................... ..24 Mortgagee Not Obligated .................................................................................. ..24 Notice of Default to Mortgagee ......................................................................... ..24 DEFAULT; REMEDIES; TERMINATION 25 Breach and Default ............................................................................................ ..25 Failure to Cure Default Procedure
..................................................................... ..25 Withholding of Permits...................................................................................... ..25 Termination
........................................................................................................ 26 Speci?c Performance for Violation ofa Condition........................................... ..26 Legal Actions................................................... .. Rights and RemediesAre Cumulative............................................................... ..26 No Damages
....................................................................................................... 27 -13- 83578 00106\33-H8026 I
Agenda Item #9.1.

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ARTICLE 13

13.1 13.2

13.3 13.4

13.5 13.6

13.7 13.8

13.9 13.10

13.11 13.12

13.13 13.14

13.15 13.16

13.18920

TABLE OF CONTENTS
(continued)
Resolutionof Disputes....................... ..

Remediesupon Transfer or Assignment............................................................ ..27 Appeals to City Council ..................................................................................... ..27 Surviving Provisions.......................................................................................... ..27 GENERAL PROVISIONS ................................................................................ ..28 Covenants Binding on Successors and Assigns and Run with Land .................28 Notice ................................................................................................................. ..28 Pennitted Delays.. 28
Counterparts....................................................................................................... ..29 Waivers .............................................................................................................. ..29 Construction of Agreement ................................................................................ ..29 Headings............................................................................................................ ..29 Severability ........................................................................................................ ..29 Time is of the Essence 29
ExtensionofTime Limits.................................................................................. ..30 Signatures........................................................................................................... ..30 Entire Agreement ............................................................................................... ..30 Estoppel Certi?cate ............................................................................................ ..30 Recordation of Termination ............................................................................... ..30 City Approvals and Actions..................................................................... .. .30 Negation of Partnership ..................................................................................... ..30 Governing State Law ..31 Recordation ........................................................................................................ Exhibits .............................................................................................................. .. Exhibit A: Property Description Exhibit B: Site Map ExhibitC: Project Description D: Existing Approvals E: Applicable Law & Project Approval Excerpts Exhibit F: Mills Lane lmprovements G: Storm Drain lmprovements Exhibit H: La Fata Sidewalk lmprovements .m83578 00106\33-3-18026I
Agenda Item #9.1.

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DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement”), dated as of the Effective Date, is entered into by and between the City of St. Helena, a California municipal corporation (“City”) and LMR Destinations LLC, a California limited liability company ("Developer”). Developer and City may be referred to individually in this Agreement as a "Party” and collectively as the "Parties.”

RECITALS
This Agreement is entered into on the basis of the following facts, understandings and intentions of the Parties. The following recitals are a substantive part of this Agreement; capitalizedtenns used herein and not otherwisedefined are de?ned in Article 1 of this Agreement.

A. In order to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs and risks of development, the Legislature of the State of California enacted section 65864 el seq. of the Government Code (“Development Agreement Statute”) which authorizes a city and a developer having a legal or equitable interest in real property to enter into a binding, long-tenn development agreement establishing certain development rights in the property.

B. In accordance with the Development Agreement Statute, the City Council of the City of St. Helena enacted Municipal Code Chapter 17.156 ("Development Agreement Regulations”), which authorizes the execution of development agreements and set forth the required contents and form of those agreements. The provisions of the Development Agreement Statute and the City‘s Development Agreement Regulations are collectively referred to herein as the “Development Agreement Law.”
C. Developer isthe owner of that certain real property located at I000 Mills Lane, St.

Helena in the County of Napa, State of Califomia and more particularly described and depicted in Exhibits A and §_ attached hereto and incorporated herein (the “Property”).

D. Developer has applied to the City to construct on the Property a maximum 65 room hotel with ancillary retail and related amenities(the “Project”). The Project is more fully described in Exhibit C, Project Description, and incorporated herein by reference. pursuant to (“CEQA”) 21000 e! seq.) and approved by Resolution No. 2020-100 adopted by the City Council on October 13, 2020. F. Prior to or concurrently with approval of this Agreement, the City will take several actions to review and plan for the future development and use of the Project ("Existing Approvals”). These include: 1. Ordinance No. 2020-9 approving this Agreement; 2. ResolutionNo. 2020-100 approvingthe Use Permit and DesignReview for the Project; 83578 0l)| 06\33~l-l8026l Agenda Item #9.1.

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3. Resolution No. 2020-100 approving the Lot Line Adjustment, Lot Merger, and Variance required for the Project; and

4. ResolutionNo. 2020-100 approving the MND.

A copy of the Existing Approvals are attached hereto as Exhibit D.

G. It is the intent of City and Developer to establish certain conditions and requirements related to review and development of the Project. which are or will be the subject of subsequent development applications and land use entitlements.

H. City findsthat the Agreement will promote orderly growth and quality development in accordance with the goals and policiesset forth in the General Plan; is compatiblewith the uses authorized in, and the regulations prescribed for, the district in which the Property is located; will promote the public convenience, general welfare. and good land use practice; will not be detrimental to the health, safety and general welfare; will not adversely affect the orderly development of property or the preservation of property value; and will promote and encourage the development of the Project by providing a greater degree of requisite certainty.

I. City and Developer have reached mutual agreement and desire to voluntarily enter into this Agreement to facilitate development of the Project subject to the conditions and requirementsset forth herein.
.l. City has given the required notice of its intentionto adopt this Agreement and has conducted public hearings thereon pursuant to Govemment Code section 65867 and Municipal Code section 17.156.070. The City hasreviewed and evaluated this Agreement in accordance with the Development Agreement Law and found that the provisions of this Agreement and its purposes are consistent with the Development Agreement Law and the goals, policies, standards and land use designations specified in the General Plan.

K. On October 13,2020 the City Council introducedOrdinance No. 2020-9 approving this Agreement and authorizing its execution, and adopted that Ordinance on October 27, 2020.

The Ordinance became effective on November 26, 2020.

AGREMENT
covenants herein and other valuable consideration, the Parties hereby agree as follows:
83 57
8 00ll) I6
\33- H30
26 Agenda Item #9.1.

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ARTICLE 1

DEFINITIONS
l.l De?nitions.
“Aj'?liate" means and refers to any person or entity. directly or indirectly, Controlling or Controlled by or under common Control with the applicable person or entity, whether by direct or indirect ownership of equity interests, by contract or otherwise. “Agreement" shall mean this Development Agreement between City and Developer, including all Exhibits hereto.
“Applicable Law" is de?ned in Section 3.2.
“Ca! Trans” means the California Department of Transportation. “CEQA"means the California Environmental Quality Act, California Public Resources Code section 21000, et seq., as amended from time to time. “CEQAGuidelines" means the State CEQAGuidelines (California Code of Regulations,Title 14, section 15000, et seq.), as amended from time to time. “Changes in the Law" is de?ned in Section 3.7.
“City
" means the City of St. Helena, a municipal corporation. “City Council" means the City Council of the City of St. Helena. “City Manager" means City’s City Manager or his or her designee. “City Parties” means and includes City and its elected and appointed of?cials, of?cers, employees, attorneys, contractors and representatives. “Claims” means liabilities, obligations, orders, claims, damages, ?nes, penalties, and expenses, including attorneys’ fees and costs.
utility provider to utility users as a cost for connecting water, sanitary sewer, and other applicable utilities, except for any such fee or portion thereof that constitutes an Impact Fee, as de?ned below. “Control” means and refers to possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether by ownership of equity interests, by contract or otherwise. “Controlling” and “Controlled” mean and refer to exercising or having Control. “Default"is de?ned in Section 12.1.

Agenda Item #9.1.

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“DeveIoper" means LMR Property Acquisition Partners LLC and its permitted successor and assigns.
“DevelopmentAgreement Law" is defined in Recital B.
“DevelopmentAgreementRegulations" is de?ned in Recital B. “DevelopmentAgreementStatute" is defined in Recital A.
“Discretionary Action” or “Discretionary Approval” means an action which requiresthe exercise of j udgment, deliberation or a decision on the part of the City. including any board, commission or department or any officer or employee of the City, in the process of approving or disapproving a particular activity, as distinguished from an activity which merely requires the City, including any board, commission or department or any officer or employee of the City, to determine whether there has been compliance with statutes, ordinances or regulations. “EffectiveDate" means the date that this Agreement becomes effective as determined under Section 2.1.
“Enacting Ordinance" refers to the Ordinance identi?ed in Recital K. “Exactiorts
" means exactions that may be imposed by the City as a condition of developing the Project, including requirements for acquisition, dedication or reservation of land; and obligations to construct on-site or off-site public and private infrastructure improvements such as roadways, utilities or other improvements necessary to support the Project, whether such exactions constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, or impositions made under Applicable Law, including, but not limited to, the Highway 29 Specific Plan. For purposes of this Agreement, Exactions do not include Impact Fees.
“Existing Approvals" means and includes those pennits and approvals for the Project granted by City to Developer as of the Effective Date as set forth in Recital F. “Extension Term" is defined in Section 2.2.1.
“Highway 29 Specific Plan” means the Highway 29 Specific Plan approved by the City Council of the City of St. Helenaon February 22, 2005. "Housing Fees” means the nonresidentialdevelopment project housing impactfees charged by the City to further affordable housing pursuant to Municipal Code section l7.l46.040. “Impact Fees" means the monetary amount charged by City in connection with a development project for the purpose of defraying all or a portion of the cost of mitigating the impacts of the development project or development of the public facilities related to the Agenda Item #9.1.

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development project, including, any "fee” as that term is de?ned by Government Code section 66000(b).
"Initial Term" is de?ned in Section 2.2.
“Litigation Challenge" is de?ned in Section 9.3.
“Major Amemlment" is de?ned in Section 8.2.
“Minor Amendment" is de?ned in Section 8.2.
“MND
" is de?ned in Recital F.
“Mortgage
" means any mortgage, deed of trust, security agreement, and other like security instrumentencumberingall or any portionof the Property or any of the Developer’srights under this Agreement
“Mortgagee" means the holder of any Mortgage, and any successor, assignee or transferee of any such Mortgage holder.
"Municipal Code" means and refers to the City of St. Helena’s Municipal Code, as amended from time to time.
“New City Laws" means and includes any ordinances, resolutions.orders, rules, of?cial policies, standards, speci?cations, guidelines or other regulations, which are promulgated or adopted by the City (including but not limited to any City agency, body, department, of?cer or employee) or its electorate (through their power of initiative or otherwise) after the Effective Date. “Notice ofBreach
" is de?ned in Section 12.1.
“0tl1erAgency Fees" is de?ned in Section 4.3.
“Permitterl Delay
" is de?ned in Section 13.3.
“Permitterl Transfer"means any of the following types of Transfer by Developer, which unless otherwise provided do not require the City’s prior written approval:

1. Any Transfer to a pursuant to a Instrument as collateral for ?nancing to pay all or any part of the cost of construction of the Project; or pursuant to a Security Instrument as collateral for a pennanent ?nancing for the Project. 2. Any Transfer directly resulting from the foreclosure or deed in lieu of foreclosure of a Security Instrument for a loan from a Lender for construction or permanent ?nancing for the Project or as otherwise pennitted under Article 1l. 3. Any Transfer of stock or equity in the Developer that does not change management or operational Control of the Project, with no material change in bene?cial ownership (with the exception of any conveyance to member(s) of the immediate family(ies) of 83578 0()|06\33-H8026 I
Agenda Item #9.1.

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the transferor(s) or trusts for their bene?t) and which constitutes a tax-free transaction under Federal income tax law and California real estate transfer tax.

4. A Property Transfer from Developer to an Af?liate provided that such Af?liate is Controlled by Long Meadow Ranch Partners, L.P., a California limited partnership. “Planning Commission” means the City of St. Helena PlanningCommission. “Processing Fees
" means all fees for processing development project applications, including any required supplemental or other further environmental review, plan checking and inspection and monitoring for land use approvals, design review, grading and building permits, General Plan maintenance fees, and other permits and entitlements required to implement the Project, which are in effect at the time those penrrits. approvals or entitlements are applied for, and which are intended to cover the actual costs of processing the foregoing. “Project Approvals
" means the ExistingApprovals and all SubsequentApprovals. "Project" is de?ned in Recital D.
"Property" is de?ned in Recital C.
“Property Transfer”means and refers to any "change in ownership,” as de?ned in Revenue and Taxation Code Sections 60, e_t$1., of all or any portion of the Property. “Security Instrument" means any security instrument, deed of trust, security deed, contract for deed, deed to secure debt, or other voluntary real property (including leasehold) security instrument(s) or agreement(s) intended to grant real property (including leasehold) security for any obligation (including a purchase-money or other promissory note) encumbering the Property, as entered into, renewed, modi?ed, consolidated, increased, decreased, amended, extended, restated, assigned (wholly or partially), collaterally assigned, or supplemented from time to time, unless and until paid, satis?ed, and discharged of record. If two or more such security instrumentsare consolidatedor restated as a single lien or held by the same Lender(as applicable) then all such security instruments so consolidated or restated shall constitute a single Security Instrument. A participation interest in a security instrument (or partial assignment of the secured loan) does not itself constitute a Security Instrument. through 66499.58, as it may be amended from time to time. “Subsequent Approvals” is de?ned in Section 7.]. “Term " means the Initial Term plus any Extension Term, if such Extension Term is granted under the terms of this Agreement. “Total Cost” is de?ned in Section 7.3. l. “TrafficFees” means Impact Fees charged by the City to ?nance circulation improvements including those Impact Fees charged pursuant to MunicipalCode section 3.32.100 83578 0Ol06\33448026 l Agenda Item #9.1.

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“ Transfer"means any of the following:

1. Any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any part of such propeny,right or obligation, or of any legal, bene?cial, or equitable interest or estate in such property, right or obligation or any pan of it (including the grant of any easement, lien, or other encumbrance); or

2. Any conversion, exchange, issuance, modi?cation, reallocation, sale, or other transfer of any direct or indirect equity interest(s) in the owner of such property, right or obligation by the holders of such equity interest(s); or

3. Any merger, consolidation, sale, or lease of all or substantially all of the assets of the Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest of all or substantially all of the assets of the Developer; or

4. Any Property Transfer; or

5. The recordationof any deed of trust, mortgage, lien or similar encumbrance against all or any portion of the Property or the Project. “Transient Occupancy Tax” means those taxes levied by City pursuant to Municipal Code chapter 3.28, which are collected and remitted to City by hotel operators.

ARTICLE 2

EFFECTIVE DATE AND TERM

2.] Effective Date. The Effective Date of this Agreement shall be the later of (a) the date that is thirty (30) days after the date that the Enacting Ordinance is adopted, or (b) the date this Agreement is fully executed by the Parties. The Effective Date is inserted at the beginning of this Agreement. The Parties acknowledge that section 65868.5 of the Development Agreement Statute requires that this Agreement be recorded in the official records of Napa County no later than ten (10) days after the City enters into this Agreement, and that the burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement.
on the Effective Date and shall expire on the ??h (5"‘)anniversary of the Effective Date. unless earlier terminated. 2.2.] Extension of Initial Tenn. The Initial Term of this Agreement may be extended from the date of expiration of the Initial Tenn until the date which is live (5) years following the expiration of the lnitial Term ("Extension Term”), provided that at the end of the lnitial Term: (a) Developer is not, at the time, in Default of any of its obligations hereunder following notice and expiration of applicable cure periods; (b) the applicable Developer warranties and representations in Section 2.4 below continue to be true and correct; and (e) no event has occurred which with the passage of time or giving of notice or both would constitute a Default by Developer hereunder. Following the expiration of the Term, or the earlier completion 7 83578 00l()6\33-H8026 l Agenda Item #9.1.

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of development of the Project and satisfaction of all of Developer’s obligations in connection therewith, this Agreement shall be deemed tenninated and of no further force and effect; provided, however, that this termination shall not affect reimbursements to Developer under Section 7.3, Developer’s obligation to pay the Affordable Housing Payment pursuant to Section 5.1.6, or any right or duty arising from entitlementsor approvals, including the Project Approvals concurrently with, or subsequent to, the Effective Date. The Initial Term or Extension Tenn, as applicable, shall automatically be extended for the period of time of any actual delay resulting from any enactments pursuant to New City Laws that are necessary to protect the physical health and safety of the public that are uniformly applied on a City-wide basis.

2.2.2 Memorandum of Extension. If the Extension Term is granted, City and Developer agree to execute, acknowledge and record in the official records of Napa County a memorandum evidencing approval of the Extension Tenn.

2.3 City Representations and Warranties. City represents and warrants to Developer that, as of the Effective Date:

2.3.1 City is a municipal corporation, and has all necessary powers under the laws of the State of California to enter into and perfonn the undenakings and obligations of City under this Agreement.

2.3.2 The execution and delivery of this Agreement and the perfonnance of the obligations of the City hereunderhave been duly authorized by all necessary City Council action and all necessary approvals have been obtained.

2.3.3 This Agreement is a valid obligation of City and is enforceable in accordance with its tenns.

2.3.4 During the Term of this Agreement, City shall, upon learning of any fact or condition which would cause of any ofthe warranties and representations in this Section 2.3 not to be true, immediately give written notice of such fact or condition to Developer.

2.4 Developer Representations and Warranties. Developer represents and warrants to City that, as of the Effective Date:
necessary powers California to own property interests and in all other respects enter into and perfonn the undertakings and obligations of Developer underthis Agreement. 2.4.2 The execution and delivery of this Agreement and the necessary performance of the obligations of Developer hereunder have been duly authorized by all necessary company action and all necessary member approvals have been obtained. 2.4.3 This Agreement is a valid obligation of Developer and is enforceable in accordance with its tenns.

Agenda Item #9.1.

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2.4.4 Developer has not (a) made a general assignment for the bene?t of creditors; (b) ?led any voluntary petition in bankruptcy or suffered the ?ling of any involuntary petition by Developer’s creditors; (c) suffered the appointment of a receiver to take possession of all, or substantially all, of Deve|oper‘s assets; (d) suffered the attachmentor otherjudicial seizure of all, or substantially all, of Developer’s assets; or (e) admitted in writing its inability to pay its debts as they come due.

2.4.5 During the Term of this Agreement, Developer shall, upon learningof any fact or condition which would cause any of the warranties and representations in this Section 2.4 not to be true, immediately give written notice of such fact or condition to City.

ARTICLE 3

DEVELOPMENT OF THE PROPERTY

3.1 Vested Rights. The Property is hereby made subject to the provisions of this Agreement. Developer shall have the vested right to develop the Property and the Project in accordance with and subject to the Existing Approvals, the Subsequent Approvals, Applicable Law and this Agreement, which shall, among other things, control the permitted uses, density and intensity of use of the Property, requirements for on- and off-site infrastructure and public improvements, the Exactions, and the maximum height and size of buildings on the Property.

3.2 Applicable Law. City and Developer acknowledge and agree that City isrestricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions contained in this Agreement are intended to reserve to City all of its police power that cannot be so limited. Notwithstanding the foregoing reservation of City, it isthe intent of City and Developer that this Agreement be construed to provide Developer with rights afforded by law, including but not limited to, the Development Agreement Statute. Therefore, the laws, rules, regulations, of?cial policies, standards and speci?cations of City applicable to the development of the Property and/or the Projectshall be (collectively, "Applicable Law”):

3.2.1 Those rules, regulations, of?cial policies, standards and speci?cations of the City set forth in the ProjectApprovals and this Agreement. For purposes of convenience and clarity and to provide a centralized set of reference documents, Exhibit E describes and attaches portions of the Project Approvals and the Applicable Law, which sets forth the applicable uses,
intend for Exhibit E to limit any vested rights or other rights or obligations speci?cally contemplated or conferred by this Agreement; 3.2.2 With respect to matters not addressed by and not otherwise inconsistent with the Project Approvals and this Agreement, those laws, rules, regulations, of?cial policies, standards and speci?cations (including City ordinances and resolutions) governing permitted uses, building locations, timing and manner of construction, densities, intensities of uses, heights and sizes, requirements for on- and off-site infrastructure and public improvements, in force and effect on the Effective Date; Agenda Item #9.1.

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3.2.3 New City Laws that relate to hearing bodies, petitions, applications, notices, ?ndings, records, hearings, reports, recommendations, appeals and any other matter of procedure imposed at any time, provided such New City Laws are uniformly applied on a Citywide basis to all substantially similartypes of development projects and properties;

3.2.4 New City Laws that revise City’s uniform construction codes. including City’s building code, plumbing code, mechanical code, electrical code, ?re code, grading code and other uniform construction codes, as of the date of permit issuance, provided, that such New City Laws are unifonnly applied on a City-wide basis to all substantially similar types of development projects and properties;

3.2.5 New City Laws that are necessary to protect physical health and safety of the public; provided, that such New City Laws are uniformly applied on a City-wide basisto all substantially similartypes of development projects and propenies;

3.2.6 New City Laws that do not con?ict with this Agreement or the Project Approvals, provided such new City Laws are uniformly applied on a City-wide basis to all substantially similartypes of development projects and properties; and

3.2.7 New City Laws that do not apply to the Property and/or the Project due to the limitations set forth above, but only to the extent that such New City Laws are accepted in writing by Developer in its sole discretion.

3.3 Development Timing. City and Developer acknowledge that Developer cannot at this time predict what portions of the Project will be included within any phase of the Project, when or the rate at which the phases will be developed or the order in which each phase will be developed. Such decisions depend upon numerous factors that are not within the control of Developer, such as market orientation and demand, interest rates, absorption, completion, availability of ?nancing and other similar factors. In particular, and not in any limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. The City ofCumarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting the timing of development prevailing over such parties’ agreement, it is the desire to avoid that result by acknowledging that, unless otherwise provided for in this Agreement or the Project Approvals, exercise of its discretion, subject to the terms, requirements and conditions of the Project Approvals and this Agreement. 3.4 Regulation by Other Public Agencies. City and Developer acknowledge and agree that other governmental or quasi-govemmental entities not within the control of City possess authority to regulate aspects of the development of the Property and the Project and that this Agreement does not limit the authority of such other public agencies. City shall reasonably cooperate with Developer in Developer’s effort to obtain such permits and approvals as may be requiredby other governmental or quasi-govemmentalentitiesin connectionwith the development of, or the provision of services to, the Property and/or the Project; provided, however, City shall Agenda Item #9.1.

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have no obligation to incur any costs, without compensation or reimbursement, or to amend any City policy. regulation or ordinance in connection therewith.

3.5 Life of Project Approvals. The tem of any and all Project Approvals shall automatically be the longer of the Tenn or the term otherwise applicable to such ProjectApproval.

3.6 Developer’s Right to Rebuild. City agrees that Developer may renovate or rebuild portions of the Project at any time within the Term should it become necessary due to any casualty, including natural disaster or changes in seismic requirements. Such renovations or reconstruction shall be processed as a Subsequent Project Approval consistent with all prior Project Approvals and ApplicableCity Law. Any such renovationor rebuildingshall be subject to all design, density and other limitations and requirements imposed by this Agreement, and shall comply with the ProjectApprovals, ApplicableCity Law, and the requirementsof CEQA.

3.7 State and Federal Law. As provided in Section 65869.5 of the Development Agreement Statute, this Agreement shall not preclude the applicability to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are speci?cally mandated and required by changes in State or Federal laws or by changes in laws, regulations, plans or policies of special districts or other governmental entities, other than City, created or operating pursuant to the laws of the State of California (“Changes in the Law”). In the event Changes in the Law prevent or preclude, or render substantially more expensive or time consuming, compliance with one (1) or more provisions of this Agreement, the City and Developer shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended, or perfonnance thereof delayed, as may be necessary to comply with Changes in the Law. Nothing in this Agreement shall preclude City or Developer from contesting by any available means (including administrative orjudicial proceedings) the applicability to the Project any such Changes in the Law. If Changes in the Law preclude or substantially prevent or preclude, or render substantially more expensive or time consuming, performanceof this Agreement in a manner that makes the Project economically infeasible, Developer, in its sole and absolute discretion, may terminate this Agreement by providing written notice thereof to City.

3.8 Subsequent Development Review. The City shall not require Developer to obtain any approvals or permits for the development of the Project in accordance with this Agreement other than those permits or approvals that are required by the Applicable Law. However, any intensity, density, building height or timingof the Project, or decreasesthe lot area, setbacks, yards, parking or other entitlements pennitted on the Property shall be subject to the rules, regulations, ordinances and official policies of the City then in effect. 3.9 Effective Development Standards. The City agrees that it is bound to permit the uses, intensity of use and density on the Property which are permitted by this Agreement, insofar as this Agreement and the Project Approvals so provide or as otherwise set forth in the Applicable Law. The City hereby agrees that it will not unreasonably withholdor unreasonably condition any Discretionary Action or DiscretionaryApproval which must be issued by the City in order for the Project to proceed, provided that Developer reasonably and satisfactorily complies with all preliminary procedures, actions, payments of Processing Fees, and criteria generally required of l 1 83578 DOI06\33—H8026I Agenda Item #9.1.

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developers by the City for processing applications for developments and consistent with this Agreement.

3.10 Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise after the Effective Date, which relates to the rate, timing,or sequencingof the developmentor constructionon all or any part of the Property, including, without limitation, any ordinance, resolution or other measure restricting or precluding the issuance of building permits, the City agrees that the ordinance, resolution or other measure shall not apply to the Property or this Agreement, unless the changes are both (a) found by the City to be necessary to protect the health and safety of the residents of the City, and (b) generally applicable on a Citywide basis.

ARTICLE 4
FEES

4.] Impact Fees and Exactions. City may charge and, subject to Developer’s right to protest and/or pursue a challenge in law or equity to any new or increased Impact Fees, Developer shall pay any and all Impact Fees imposed by City, including new Impact Fees adopted after the Effective Date; provided, however, City shall only require Developer to pay new Impact Fees (including increasesin Impact Fees) that are unifonnly applied by City to all substantially similar types of Development Projects and properties. Pursuant to St. Helena Municipal Code Section l7.l46.040, Developer shall pay Traffic Fees upon City's issuance of a certificate of occupancy, while all other Impact Fees shall be paid prior to issuance of a building permit. In addition, City may impose and Developer shall comply with those Exactionsrequired by this Agreement and the Project Approvals. Notwithstanding anything to the contrary contained in this Section 4.], except as otherwise speci?cally provided in Section 3.2 above, in no event shall the City impose any additional Exactions (beyond those set forth in the Existing Approvals and this Agreement) in connection with the development of the Project, as long as such development is substantially consistent with the Project Approvals.

4.2 Processing Fees. Subject to Developer’s right to protest and/or pursue a challenge in law or equity to any new or increased Processing Fee, City may charge and Developer agrees to pay any and all Processing Fees which are in effect on a City-wide basis at the time those permits, approvals or entitlements are applied for, and which are intended to cover the actual costs

4.3 Other Agency Fees. Nothing in this Agreement shall preclude City from collecting fees from Developerthat are lawfully imposedon the Project by another agency havingjurisdiction over the Project, which the City isrequired to collect pursuant to Applicable Law (“Other Agency Fees”). 4.4 Connection Fees. Subject to Developer’s right to protest and/or pursue a challenge in law or equity to any new or increased Connection Fee, City may charge and Developer shall pay any Connection Fee that is lawfully adopted.

Agenda Item #9.1.

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ARTICLE 5

DEVELOPER OBLIGATIONS

5.1 Developer Obligations. In consideration of the rights and bene?ts conferred by City to Developer under this Agreement, Developer shall perform the public bene?t obligations and pay to City the contributions set forth in this Article 5 all within the times set forth herein.

5.1.1 Mills Lane Improvements. Developer shall construct improvements to Mills Lane as depicted in Exhibit F ("Mills Lane Improvements”), which are consistent with City’s Highway 29 Speci?c Plan, prior to or concurrently with the development of the Project and shall complete the Mills Lane Improvements prior to the issuance of the first certi?cate of occupancy for the Project by the City. Construction shall be completed in accordance with improvements plans as approved by the City Engineer, and before Developer receives a ?nal certi?cate of occupancy for the Project.

5.1.2 Storm Drain Improvements. Developer shall construct those certain storm drain improvements necessary to extend and improve the stonn drain along Mills Lane to serve properties on Mills Lane. La Fata Street, Fountain Street, Grayson Avenue, Main Street (to Charter Oak Avenue), and Vidovich Avenue and to construct an outfall for said storm drain into the Napa River (the "Storm Drain Improvements”). The Storm Drain Improvements shall be designed by City in accordance with the City’s long-standing plan for this separate project as contained in City’s Storm Drain Mater Plan dated September 2000 (see Table 4-1) and the Highway29 Speci?c Plan (see pages 37-39, Exhibit 1I), and are depicted in Exhibit G. City shall further be responsible for permitting required for the Storm Drain Project, which are anticipated to include permits from the California Department of Fish and Wildlife, San Francisco Regional Water Quality Control Board and Army Corps of Engineers. Developer shall commence constructionof the Storm Drain Improvements after the City has secured the permits required for the Storm Drain Improvements, provided. however, that the Storm Drain Improvements shall be completed before the Developer receives a ?nal certi?cate of occupancy for the Project.

5.1.3 La Fata Sidewalk Improvements. Developer shall design and construct those certain sidewalk improvements on the west side of La Fata Street as depicted in Exhibit H (the “La Fata Sidewalk Improvements”). Developer shall construct the La Fata Sidewalk in accordance with improvement plans as approved by the City Engineer. The La Fata Sidewalk access to an alternate employee parking lot prior to occupancy of the Project where Developer's employees will no longer utilize the La Fata Sidewalk Improvements to access the Project site the Developer may request that the City consider such alternate parking lot as an acceptable location for employee parking. In the event City approves such alternative parking lot for employee parking, which approval City may grant or deny in its sole discretion, Developer shall be relieved of the obligation to construct the La Fata Sidewalk Improvements pursuant to this Section 5.1.3. 5.1.4 Recycled Water Improvements. Developer shall construct and install additional piping to convey recycled water in the public right of way in Mills Lane extending from Highway 29 easterly to the eastern end of Mills Lane (the “Recycled Water Pipe”) in a I3 83578.00] 06\334-18026l Agenda Item #9.1.

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manner as directed by the City Engineer and shall be completed prior to November 1, 2022 as a prerequisite for a ?nal certificate of occupancy for the Project. For purposes of this agreement “recycled water” means wastewater treated by the City’s wastewater treatment facility that meets State requirementsfor reuse, including but not limited to California Department of Public Health regulations contained in Title 17 and Title 22 of the California Code of Regulations. The Recycled Water Pipe shall be designed and at a size as directed by the City Engineer, but is anticipated to be a twelve (12) inch pipe and will be installed in the trench constructed for the Stonn Drain Improvements. Developer shall construct and install the Recycled Water Pipe as a means of offsetting its water requirement in accordance with Chapter 13.12 of the St. Helena Municipal Code. The construction of the Recycled Water Pipe is being conducted in lieu of paying the in—lieuretro?t fee that would otherwise be required of the Project pursuant to Section l3.12.030(B)ofthe St. Helena Municipal Code.

Notwithstanding the above, nothing herein shall commit or otherwise require the City, or be interpreted as committing or requiring the City, to approve the Improvements, or any portion thereof. Further, the Parties acknowledge and agree that the City retains full discretionary authority with respect to the Improvements, and may deny or approve the Improvements, or any portion thereof. Similarly, the City retains full authority under CEQAand other environmental laws to impose any and all feasible mitigation to reduce potentially significant impacts and to consider and adopt alternatives to the Improvements, speci?cally including the “no project” alternative.

5.1.5 Affordable Housing. In lieu of paying the City’s nonresidential development project housing impact fee pursuant to City of St. Helena MunicipalCode Section

17.146.040, Developer shall make a payment in the amount and manner set forth in this Section Payment”). The Affordable Housing Payment shall be made to the City in the manner and for the purposes set forth in this Section. 5.1.5.1 One Million Dollars ($1,000,000) (the "lnitial Housing Payment”) shall be paid to the City prior to and as a condition of issuance of the building permit for the Project. The InitialHousing Payment shall be set aside by the City to be used by Our Town St. Helena or its designee (which designee must be approved by the City) ("OTSH”) to acquire that certain parcel designatedas APN 009-660-005 and commonly known at the "Phelps Property” or an equivalent parcel suitable for the purpose of developing affordable housing as approved by the City in its discretion (the “Affordable Housing Parcel”) subject to and conditioned upon satisfaction of the following conditions: 14 83578 00106\33-148026 l Agenda Item #9.1.

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(i) Prior to the time that the Initial Housing Payment is due and payable by Developer to City, OTSH shall provide evidence satisfactory to the City that OTSH has entered into a binding purchase option or binding purchase agreement for the acquisition of the Affordable Housing Parcel. If OTSH has not provided such evidence prior to the time the Initial Housing Payment is due and payable to the City, the Initial Housing Payment may be used by the City for any affordable housing purpose at its discretion, and the City shall have no further obligation to set aside the Initial Housing Payment for the acquisition of the Affordable Housing Parcel.
(ii) Subject to paragraph (i) above, the City shall deposit the Initial Housing Payment into escrow for the acquisition of the Affordable Housing Parcel at such time as requestedby OTSH, provided that OTSH has satis?ed the following conditions precedent:
(a) OTSH has provided evidence satisfactory to the City that OTSH has secured land use entitlements from the City and all other applicable governmental agencies for the development of not lessthan twenty (20) units of for-sale or rental housing on the Affordable Housing Parcel, including but not limited to a General Plan Amendment and Zone Change. Developer acknowledges that City’s zoning, building and land use regulations shall be applicable to any development of the Affordable Housing Parcel, and nothing herein shall be construed as a waiver or limitation on the City’s discretion in considering any application for land use entitlements on the Affordable Housing Parcel.
(b) OTSH has provided evidence satisfactory to the City that it has secured ?nancing suf?cient to construct and develop not less than 20 units of for-sale or rental housing with not lessthan 50° 0 of the total units affordable to very low incomehouseholds and not less than 50% of total units affordable lower income households. both as de?ned in St.

Helena MunicipalCode Section l7.l44.020.
(c) OTSH has entered into an Affordable Housing
Covenant or Regulatory Agreement with the City in a fonn satisfactory to the City Attorney, ensuring that the Affordable Housing Parcel shall be developed with affordable for-sale or rental housing consistent with the requirements of the project ?nancing described in paragraph (b) above, which covenant or agreement shall be recorded against the Property at the time of acquisition of the Affordable Housing Parcel by OTSH.
conditions precedent described in paragraphs (a)-(c) above on or before three (3) years from the date of payment of the Initial Housing Payment to the City by Developer, the City shall have no further obligation to set aside the Initial Housing Payment for the acquisition of the Affordable Housing Site, and the City may use the InitialHousingPayment for any affordable housing purpose as City deems appropriate. 5.1.5.2 The remaining Two Million Two Hundred Thousand ($2,200,000) of the Affordable Housing Payment (the "Second Housing Payment”) shall be due and payable to the City at the earlier of (i) a Transfer of the Property by Developer, other than a Permitted Transfer, (ii) conversion of the Developer’s construction ?nancing for the Project to permanent ?nancing, or (iii) sixty (60) months a?er issuance of a ?nal certi?cate of occupancy for 15 E357800l06\3344ll026 I Agenda Item #9.1.

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the Project. The Second Housing Payment shall be deposited into the City’s affordable housing fund to be used for affordable housing purposes as City deems appropriate. This obligation shall survive the expiration of the Term or any Extended Term of this Agreement and the City shall have all rights and remedies available under this Agreement or in law or equity to compel Developer to makesuch Second Housing Payment at or before the time requiredunder this Section, even if the Term or any Extended Tenn has expired.

5.2 City of St. Helena Business License. Developer, at its expense, shall obtain and maintain a City of St. Helena business license at all times during the Term, and shall include a provision in all general contractor agreements for the Project requiring each such general contractor to obtain and maintain a City of St. Helena businesslicense during perfonnance of the work of construction.

5.3 Sales Tax Point of Sale Designation. Developer shall use good faith, diligent efforts to the extent allowed by law to require all persons and entities providing bulk lumber, concrete, structural steel and pre-fabricated building components, such as roof trusses, to be used in connection with the construction and development of, or incorporated into.the Project, to (a) obtain a use tax direct payment permit; (b) elect to obtain a subcontractor permit for the job site of a contract valued at Five Million Dollars ($5,000,000) or more; or (c) otherwise designate the Property as the place of use of material used in the constructionof the Project in order to have the local portion of the sales and use tax distributed directly to City instead of through the countywide pool. Developer shall instruct its general contractor(s) for the Project to, and cause such general contractor(s) to instruct its/their subcontractorsto, cooperate with City to ensure the local sales/use tax derived from construction of the Project is allocated to City to the fullest extent possible. To assist City in its efforts to ensure that such local sales/use tax is so allocated to City, Developer shall on an annual basis provide City with such infomration as shall be reasonably requested by City regarding subcontractorsworking on the Project with contracts in excess of the amount set forth above, including a description of all applicablework and the dollar value of such subcontracts. City may use such information to contact each subcontractor who may qualify for local allocation of use taxes to City.

ARTICLE 6

ANNUAL REVIEW

6.1.] Purpose. As requiredby California Government Code section 65865.1 and Municipal Code section l7.l56.l20, City and Developer shall review this Agreement and all actions taken pursuant to the terms of this Agreement with respect to the development of the Project every twelve (12) months solely to detennine good faith compliancewith this Agreement. Speci?cally, City’s annual review shall be conducted for the purposes of detennining compliance by Developer with its obligations underthis Agreement. Eachannualreview shall also document: (a) the status of the Project development. and (b) any extension of the Initial Term of this Agreement pursuant to Section 2.2. 6.1.2 Conduct of Annual Review. The annual review shall be conducted as provided in this Section 6.1.2. By December 1st of each year, Developer shall provide 16 83578 00l06\33-H8026 I Agenda Item #9.1.

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documentation of its good faith compliance with this Agreement during the calendar year, and such other infonnation as may reasonably be requested by the City Manager. Within ninety (90) days after receipt of Developer’s documents of good faith compliance with this Agreement, the City Manager shall make a detennination regarding whether or not Developer has complied in good faith with the provisions and conditions of this Agreement. This detennination shall be made in writing with reasonable specificity, and a copy of the determination shall be provided to Developer in the manner prescribed in Section 13.2. If the City Manager ?nds good faith complianceby Developer with the terms of this Agreement, Developer shall be noti?ed in writing and the review for that period shall be concluded. If the City Manager is not satis?ed that Developer is performing in accordance with the terms and conditions of this Agreement, the City Manager shall prepare a written report specifying why the Developer may not be in good faith compliance with this Agreement, refer the matter to the City Council, and notify Developer in writing at least ?fteen (15) business days in advance of the time at which the matter will be considered by the City Council. This notice shall include the time and place of the City Council’s public hearing to evaluate good faith compliance with this Agreement, a copy of the City Manager’s report and recommendations, if any, and any other information reasonably necessary to inform Developer of the nature of the proceeding. The City Council shall conduct a public hearing at which Developer must submit evidence that it has complied in good faith with the terms and conditions of this Agreement. Developer shall be given an opportunity to be heard at the hearing. The ?ndings of the City Council on whether Developer has complied with this Agreement for the period under review shall be based upon substantial evidence in the record. If the City Council determines, based upon substantial evidence, that Developer has complied in good faith with the terms and conditions of this Agreement, the review for that period shall be concluded. If the City Council determines, based upon substantial evidence in the record, that Developer has not complied in good faith with the tems and conditions of this Agreement, or there are signi?cant questions as to whether Developer has complied with the terms and conditions of this Agreement, the City Council, at its option, may continue the hearing and may notify Developer of the City’s intent to meet and confer with Developer within thirty (30) days of such determination, prior to taking further action. Following such meeting, the City Council shall resume the hearing in order to further consider the matter and to make a determination regarding Developer’s good faith compliance with the terms and conditions of this Agreement.

In the event City determines Developer is not in good faith compliance with the terms and conditions of this Agreement, City may give the Developer a written Notice of Breach, in which case the provisions of Section 12.], below, shall apply.

6.] to to an review shall not constitute a waiver by the City of its rightsto otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual ARTICLE review. 7 COOPERATION AND IMPLEMENTATION 7.1 Subseguent Approvals. Certain subsequent land use approvals, entitlements, and permits other than the Existing Approvals, will be necessary or desirable for implementation of the Project ("Subsequent Approvals”). The Subsequent Approvals may include, without limitation, the following: amendments of the Existing Approvals, grading permits, building 17 3357:; um06\33-M8026 I
Agenda Item #9.1.

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IX
permits, design review permits,sewer and water connection permits, certi?cates of occupancy, lot line adjustments. site plans, encroachment pennits, development plans, land use plans, building plans and speci?cations, parcel maps and or subdivision maps and any amendments to, or repealing of, any of the foregoing. Except as otherwise expressly provided herein, the City shall not impose requirements or conditions upon the development and construction of the Project that are inconsistent with the Project, Project Approvals, Existing Approvals, vested rights and the tenns and conditions of this Agreement. The City acknowledges and agrees that except as otherwise speci?cally provided in Section 3.3 above, as long as development of the Project sought in the Subsequent Approvals is substantially consistentwith the Project, in no event shall the City impose any additional Exactions (beyond those set forth in the ExistingApprovals) in connection with the development of the Project approved in the Subsequent Approvals.

7.2 Processing Applications for Subseguent Approvals.

7.2.1 Timelv Submittals by Developer. Developer acknowledges that City cannot begin processing applications for Subsequent Approvals until Developer submits complete applications on a timely basis. Developer shall use diligent good faith efforts to (a) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (b) cause Developer’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other materials required under Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent Approvals.

7.2.2 Timely Processing by City. Upon submission by Developer of all appropriate applications and Processing Fees for any pending Subsequent Approval, City shall, promptly and diligently, subject to City ordinances.policies and procedures, commence and complete all steps necessary to act on Developer’s currently pending Subsequent Approval applications including: (a) providing at Developer’s expense planning and processing of each pending Subsequent Approval application (provided that Developer shall pay such all costs at cost plus 10% for administrative costs incurred); (b) if legally required, providing notice and holding public hearings; and (c) acting on any such pending SubsequentApproval application.

7.3 Construction and Reimbursement for Public Improvements. Pursuant to Sections

5.1.1-5.1.5 of this Agreement, Developer is required to construct the Mills Lane Improvements, in which the required Public Improvements will be planned, designed and constructed, and provides for reimbursement to Developer for costs incurred in conjunction with the construction of these Public Improvements in excess of Developer’s share of the costs. 7.3.1 Planning and Design of Public Improvements. City will undertake and complete the planning and design of the Stonn Drain Improvements, including preparation of ?nal design plans, speci?cations, drawings and related materials as necessary for Developer to issue a request for bids for constructionof the Stonn Drain Improvements. Developer will undertake and complete the planning and design of the Mills Lane Improvements, La Fata Sidewalk Improvements and Recycled Water Pipe, including final design plans, speci?cations, 8 3
5 7
8 0()| 068344 I
8026
Agenda Item #9.1.

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I9
drawings and related materials as necessary to solicit bids for these improvements, which materials shall be subject to the review and approval by the City Engineer.

7.3.2 Construction of Public Improvements. Following completion of the design work described above, Developer shall bid the Mills Lane Improvements, Storm Drain Improvements and Recycled Water Pipe in conformance with all local and state bidding requirements applicable to the City. The City Engineer shall assist Developer as necessary to ensure compliance with applicable bidding requirements. The improvements described above may be bid as a single project, provided that if it is bid as a single project it will be broken into component parts in a manner as approved by the City Engineer, so that the costs of each component part is clearly indicated, to allow for calculation of Developer’s share of the cost of each of the required Public Improvements in accordance with this section. The Developer shall bid the La Fata Sidewalk Improvements in a manner as Developer deems appropriate. Developer shall award and enter into the contracts for all the Public Improvements and shall be solely responsible for all project and construction management activities. The Public Improvements shall be inspected and accepted by the City at the appropriate times in accordance with the City’s customary practice and processes.

7.3.3 Developer Share of Public Improvement Costs. Developer shall be solely responsible to pay the full cost of constructing the Public Improvements described herein, but shall be entitled to reimbursementfrom the City for a portionof the cost of constructing the Public Improvements in excess of the Deve|oper’s share of such costs. Developer’s share of the cost of each of the required Public Improvements is as follows:

7.3.3.1 Developer’s share of the cost of the Mills Lane Improvements shall be forty-one percent (41%) of the construction costs attributable to the Mills Lane Improvements as set forth in the bid documents for such improvements, including any change orders for such improvements that are reviewed and approved by the City Engineer.

7.3.3.2 Developer’s share of the cost of the Storm Drain Improvements shall be eighteen percent (18%) of the construction costs attributable to the Storm Drain Improvements as set forth in the bid documents for such improvements, including any change orders for such improvements that are reviewed and approved by the City Engineer.

7.3.3.3 shall the full cost to
change orders for such improvements that are reviewed and approved by the City Engineer up to a maximum amount of Two Hundred Fi?y-Six Thousand Five Hundred Forty-Nine Dollars ($256,549). Any construction costs in excess of this maximum amount shall be subject to reimbursement by the City in accordance with Section 7.3.4. 7.3.3.4 Developer shall pay the full cost of construction of the La Fata Sidewalk Improvements with no reimbursementfrom the City. 7.3.3.5 The amounts for which Developer is solely responsible as set forth above are collectively referred to herein as the “Developer’s Share of Public Improvements.” 8 3
5 7

8. 0
(”
068344 I
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7.3.4 Reimbursement for Costs in Excess of Developer’s Share of Public Improvements.

7.3.4.1 Following construction of the Public Improvements by Developer and acceptance of said Public Improvements by the City, the City shall reimburse Developer for the construction costs of the Public Improvements in excess of the Developer’s Share of Public Improvements, as set forth in the bid documents for such Public Improvements, including any change orders reviewed and approved by the City Engineer, in the manner set forth below.

7.3.4.2 City shall reimburse Developer an amount equal to ?fty percent (50° o) of the Transient Occupancy Tax ("TOT”) received by the City from Developer pursuant to Chapter 3.28 of the St. Helena Municipal Code, until the construction costs in excess of Developer’s Share of Public Improvements have been reimbursed to Developer in full.

Reimbursement shall be made on a quarterly basis within thirty (30) days after the City has confirmed the amount of TOT paid by Developer for the prior quarter, provided that the City may, at its discretion, make additional or larger payments to the Developer toward to the total reimbursement amount. City may use any source of funds it deems appropriate to make the reimbursement payment required hereunder, including general fund moneys, impact fees as appropriate for the constructed improvements or other funds available to pay for the construction of capital improvements. City’s obligation to reimburse Developer pursuant to this section shall survive the expiration of the Term and any Extended Tenn.

ARTICLE 8

AMENDMENT OF AGREEMENT AND PROJECT APPROVALS

8.] Amendment by Written Consent. Except as otherwise expressly provided herein (including Section 6.1 relating to City’s annual review and Section 12.1 relating to tennination in the event of a breach), this Agreement may be terminated,modified or amended only by mutual written consent of the Parties hereto or their successors in interest or assignees and in accordance with the provisions of Government Code sections 65867, 65867.5, and 65868.

8.2 Major Amendments to Agreement. Any amendment to this Agreement which affects or relates to (a) the Tenn; (b) permitted uses of the Property; (c) provisions for the or terms or
or size of proposed buildings; or (f) monetary contributions by Developer, shall be deemed a “Major Amendment” and shall require giving of notice and a public hearing before the Planning Commission and City Council. Any amendment which is not a Major Amendment shall be deemed a “Minor Amendment” and shall not, except to the extent otherwise required by Applicable Law, require notice of public hearing before the Parties may execute an amendment hereto. The City Manager or his or her designee shall have the authority to determine if an amendment is a Major Amendment or a Minor Amendment. 8.3 Minor Amendment. The City Manager or his or her designee shall have the authority to review and approve amendments to this Agreement provided that such amendments are not Major Amendments. 83578 00l06\33-H8026 l Agenda Item #9.1.

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8.4 Reguirement for Writing. No modi?cation, amendment or other change to this Agreement or any provision hereof shall be effective for any purpose unless speci?cally set forth in a writing which refers expressly to this Agreement and is signed by duly authorized representatives of both Parties or their successors in interest.

8.5 Subseguent CEQ2AReview. No additional CEQAdocumentation shall be required unless Developer proposes substantial changes in the Project that result in unmitigated environmental impacts beyond those analyzed in the PriorCEQAdocumentsor in the Prior CEQA Analysis. In the event that any additional CEQAdocumentation is legally required for any discretionary Subsequent Approval, then the scope of such documentationshall be focused, to the extent possible consistent with CEQA, on the speci?c subject matter of the SubsequentApproval, and the City, at Developer’sexpense, shall conductsuch additionalCEQAreview as expeditiously as possible.

ARTICLE 9

INSURANCE, INDEMNITY AND COOPERATION IN THE EVENT OF

LEGAL CHALLENGE

9.1 Insurance Reguirements. Developer shall procure and maintain, or cause its contractor(s) to procure and maintain, until the earlier of (a) the expiration of this Agreement; or (b) the completion of the Project, a commercial general liability policy in an amount not less than two million ($2,000,000) combined single limit, including contractual liability together with a comprehensive automobile liability policy in the amount of one million ($1,000,000), combined single limit. Such policy or policies shall be written on an occurrence form, so long as such fonn of policy is then commonly available in the commercial insurance marketplace. Developer’s insurance shall be placed with insurers with a current A.M. Best’s rating of no less than A-:VIl or a rating otherwise approved by the City in its sole discretion. Developer shall furnish at City’s request appropriate certi?cate(s) of insurance evidencing the insurance coverage required hereunder, and City Parties shall be named as additional insured parties in such policies. The certi?cate of insurance shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or tennination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination (ten (10) days advance notice in the case of cancellation for nonpayment of premiums) where the insurance carrier provides such notice to the Developer. Coverage provided hereunder by Developer shall policy or the endorsement shall contain a waiver of subrogation for the bene?t of City. 9.2 Indemnity and Hold Hannless. Developer shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmlessCity Partiesfrom and against any and all Claims, including Claims for any bodily injury, death, or property damage, resulting directly or indirectly from the development or constructionof the Project by or on behalf of Developer, and/or from any other acts or omissions of Developer underthis Agreement, whethersuch acts or omissions are by Developer or any of Developer’s contractors, subcontractors, agents or employees, except to the extent such Claims arise from the sole active negligence or willful misconduct of City or City Parties. 8 3
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9.3 Defense and Cooperation in the Event of a Litigation Challengg. City and Developer shall cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or of?cial challenging the validity of any provision of this Agreement, or the Project Approvals (“Litigation Challenge”), and the Parties shall keep each other infonned of all developments relating to such defense, subject only to con?dentiality requirementsthat may prevent the communicationof such information. To the extent Developer desires to contest or defend such Litigation Challenge, (a) Developer shall take the lead role defending such LitigationChallenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice; (b) City may, in its sole discretion, elect to be separately represented by the legal counsel of its choice in any such action or proceeding with the reasonable costs of such representation to be paid by Developer; (c) Developer shall reimburse City, within ten (10) business days following City’s written demand therefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the Litigation Challenge, including City’s administrative, legal, and court costs and City Attomey oversight expenses; and (d) Developer shall indemnify, defend, and hold hamiless City Parties from and against any damages, attorneys’ fees or cost awards, including attorneys’ fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against City by way of judgment, settlement, or stipulation. Any proposed settlement of a Litigation Challenge shall be subject to City’s approval not to be unreasonably withheld, conditioned or delayed. If the tenns of the proposed settlement would constitute an amendment or modi?cation of this Agreement or any Project Approvals, the settlement shall not become effective unless such amendment or modi?cation is approved by City in accordance with Applicable Law, and City reserves its full legislative discretion with respect thereto. If Developer opts not to contest or defend such Litigation Challenge, City shall have no obligation to do so.

9.4 Prevailing Wages. Without limiting the foregoing, Developer acknowledges the requirements of California LaborCode Section 1720, e! .s'eq., and 1770 et set]., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and "maintenance” projects, as de?ned. If work on off-site improvements pursuant to this Agreement is being perfonned by Developer as part of an applicable “public works” or “maintenance” project, as de?ned by the Prevailing Wage Laws, and if the total compensation under the contract in question is $1,000 or more, Developer agrees to fully comply with such Prevailing Wage Laws. Developer understands and agrees that it is Developer’s obligation to diem wages. Developer shall make available to interested parties upon request, copies of the prevailing rates of per diem wages for each craft, classi?cation or type of worker needed to execute the work subjectto Prevailing Wage Laws, and shall post copies at the Developer’sprincipalplace of business and at the Property. Developer shall defend, indemnify and hold the City, its elected officials, of?cers, employees and agents free and harmless pursuant to the indemni?cation provisions of this Agreement from any claim or liability arising out of any failure or alleged failure by Developer to comply with the Prevailing Wage Laws associated with any "public works” or “maintenance” projects associated with Project development. 8 3
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ARTICLE 10

TRANSFER AND NOTICE

10.1 Transfer. Because of the necessity to coordinate development of the entirety of the Property pursuant to plans for the Project,particularlywith respect to the provision of on- and offsite public improvements and public services and bene?ts, certain restrictions on the right of Developer to Transfer its interest under this Agreement with respect to the Property, or any portion thereof, are necessary in order to assure the achievement of the goals, objectives and public bene?ts of the Project and this Agreement.
l0.l.l Developer agrees to and accepts the restrictions set forth in this Section

10.1 as reasonable and as a material inducement to City to enter into this Agreement. The Developer shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in Control of the Developer, as well as any and all changes in the interest or the degree of Control of the Developer by any such person, of which information the Developer or any of its partners, members or officers are noti?ed or may otherwise have knowledge or information.

10.1.2 Except as expressly permitted in this Agreement, the Developer represents to the City that it has not made and agrees that it will not make or create, or suffer to be made or created, any Transfer other than a Permitted Transfer, either voluntarily, involuntarily or by operation of law, until after the completionof the Project and all of Developer’sobligations under this Agreement; provided, however, that the City may approve in its reasonable discretion, Transfers other than Permitted Transfers prior to the completion of the Project and such obligations under this Agreement. In deciding whether to approve or disapprove any proposed Transfer, the City may consider the proposed transferee’s financial strength and the experience of the proposed transferee and its senior management in undertaking and successfully completing projects of a similar type and size as the Project or that portion of the Project proposed to be transferred. Any Transfer made in contravention of this Section 10.1 shall be voidable at the election of the City and this Agreement may be terminated by the City or the City may exercise any other remedy available to the City under the terms of this Agreement, provided, however, that (i) the City shall first notify the Developer in writing of its intention to terminate this Agreement or to exercise any other remedy, and (ii) the Developer shall have twenty (20) calendar days following its receipt of such written notice to commence and, thereafter, diligently and satisfactory to the City. 10.1.3 The Developer shall provide the City no less than thirty (30) days prior written notice of any proposed Pennitted Transfer which the Developer desiresto enter into prior to the completion of the Project and Developer’s obligations under this Agreement, other than a Permitted Transfer for which no notice shall be required. The Developer shall have the burden of demonstrating to the City’s reasonable satisfaction that the proposed PermittedTransfer meets the conditions and requirements of this Agreement with respect to Pennitted Transfers. 10.1.4 Once the Developer has completed all its obligationsunder Article 5 of this Agreement, including but not limited to payment of the full Affordable Housing Payment, and 23 s357s.oo|os\3344s02s I
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received a ?nal certificate ofoccupancy for the Project, this Section 10.1 shall no longer apply to Transfers by Developer. City acknowledges that in the event Developer has completed all obligations under Article 5 except for making the Second Housing Payment, and Developer intendsto make the Second Housing Payment concurrently with the Transfer of the Project, City shall not have discretion to approve or deny such transfer except to require the making of the Second Housing Payment concurrent with the Transfer, and Developer shall still be obligated to notify City of such Transfer in accordance with this Section 10.1.

10.2 Successive Transfer. In the event there is more than one Transfer under the provisions of this Article 10, the provisions of this Article 10 shall apply to each successive Transfer.

ARTICLE 11

MORTGAGEE PROTECTION

11.1 Mortgagee Protection. Neither entering into this Agreement nor a breach hereof shall defeat. render invalid, diminish or impair the lien of any Mortgage made in good faith and for value. Nothing in this Agreement shall prevent or limit Developer, at its sole discretion, from granting one or more Mortgages encumbering all or a portion of Deve|oper’s interest in the Property or portion thereof or improvement thereon as security for one or more loans or other financing, but all of the tems and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of Mortgagee who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise. Developer shall provide the City with a copy of the deed of trust or mortgage within ten (10) days after its recording in the official records of Napa County; provided, however, that Developer’s failure to provide such document shall not affect any Mortgage, including without limitation, the validity, priority or enforceability of such Mongage.

11.2 Mortgagee Not Obligated. No Mortgagee (including one who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise) shall have any obligation to construct or complete construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any use except in full compliance with this Agreement and the other Project Approvals nor to construct any improvements thereon or Section 11.2, all of the terms and conditions contained in this Agreement and the other Project Approvals shall be binding upon and effective against and shall run to the benefit of any person or entity, including any Mortgagee, who acquires title or possession to the Property, or any portion thereof. 11.3 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee requesting a copy of any Notice of Default given Developer hereunder and specifying the address for service thereof, then City agrees to use its diligent, good faith efforts to deliver to such Mortgagee, concurrently with service thereon to Developer, any Notice of Default given to Developer. Each Mortgagee shall have the right, but not the obligation, during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of Default 24 83578 00106 3-148 251
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claimed or the areas of noncompliance set forth in City’s Notice of Default. If a Mortgagee is required to obtain possession in order to cure any Default, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure, but in no event may this period exceed 120 days from the date the City delivers the Notice of Default to Developer.

11.4 No Supersedure. Nothing in this Article 11 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision or public improvement agreement or other obligation incurredwith respect to the Project outside this Agreement, nor shall any provision of this Article 11 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 11.3.

ARTICLE 12
DEFAULT; REMEDIES; TERMINATION

12.1 Breach and Default. Subject to Permitted Delays or by mutual consent in writing, and except as otherwise provided by this Agreement, breach of, failure, or delay by either Party to perfonn any term or condition of this Agreement shall constitute a “Default.” In the event of any alleged Default of any tenn, condition, or obligation of this Agreement, the Party alleging such Default shall give the defaulting Party notice in writing specifying the nature of the alleged Default and the manner in which the Default may be satisfactorily cured ("Notice of Breach”). The defaulting Party shall cure the Default within thirty (30) days following receipt of the Notice of Breach, provided, however, if the nature of the alleged Default is non-monetary and such that it cannot reasonably be cured within such thirty (30) day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure therea?er, shall be deemed to be a cure, provided that if the cure is not diligently prosecuted to completion, then no additional cure period shall be provided. If the alleged failure is cured within the time provided above, then no Default shall exist and the noticing Party shall take no further action to exercise any remedies available hereunder. If the alleged failure is not cured, then a Default shall exist under this Agreement and the non-defaulting Party may exercise any of the remedies available under this Agreement.

12.2 Failure to Cure Default Procedure. If after Default or Notice of Breach, the Planning and Building Director ?nds and determines that Developer remains in default and that Planning Commission and then set a public hearing before the Commission in accordance with the notice and hearing requirements of Govemment Code Sections 65867 and 65868. If a?er public hearing, the PlanningCommission ?nds and determines, on the basis of substantialevidence, that Developer, or an Assignee, as the case may be, has not cured default pursuant to this Section, and that the City shall tenninate or modify this Agreement, Developershall be entitled to appeal that ?nding and detennination to the City Council in accordance with Section 12.10 below. In the event of a ?nding and determination that all defaults are cured, there shall be no appeal by any person or entity. 12.3 Withholding of Permits. In the event of a Default by Developer, or following notice of breach to Developer pursuant to Section 12.1 above and during/following the cure period 25 83578 0010603448026 I Agenda Item #9.1.

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provided therein, upon a ?nding by the City Manager that Developer is in breach, City shall have the right to refuse to issue any pennit or other Subsequent Approvals to which Developer would otherwise have been entitled pursuant to this Agreement until such Default or breach is cured.

This provision is in addition to and shall not limit any actions that City may take to enforce the conditions of the Project Approvals.

12.4 Tennination. In the event of an uncured Default by a Party, the non-defaulting Party shall have the right to terminate this Agreement upon giving notice of intent to terminate pursuant to Government Code section 65868 and regulations of City implementing such section.

Following notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code section 65867 and City regulations implementingsaid section. Following consideration of the evidence presented in said review before the City Council, a Party alleging Default by the other Party may give written notice of termination of this Agreement to the other Party. Termination of this Agreement shall be subject to the provisions of Section 12.12.

12.5 §pecific Performance for Violation of a Condition. If City issues a Project Approval pursuant to this Agreement in reliance upon a speci?ed condition being satis?ed by Developer in the future, and if Developer then fails to satisfy such condition, City shall be entitled to speci?c perfonnance for the purpose of causing Developer to satisfy such condition. If City issues a Project Approval pursuant to this Agreement and Developer ful?lls its obligations under this Agreement in reliance upon a speci?ed condition being satis?ed by the City in the future, and if the City then fails to satisfy such condition, Developershall be entitled to speci?c performance for the purpose of causing City to satisfy such condition.

12.6 Legal Actions.

12.6.1 Institution of Legal Actions. In addition to any other rights or remedies and subject to the limitation of damages in Section 12.7, a Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any other remedies consistent with the purpose of this Agreement. Any such legal action shall be brought in the SuperiorCourt for Napa County, California, except for actionsthat include claims in which the Federal District Court for the Northern District of the State of California has originaljurisdiction, in which case theNorthern

12.6.2 Acceptance of Service of Process. In the event that any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City Clerk of City or in such other manner as may be provided by law. In the event that any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon CS Lawyer’s Incorporating Service, Developer’s registered agent for service of process, or in such other manner as may be provided by law.12.7 Rights and Remedies Are Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by a Party of one or more ofsuch rights or remediesshall not preclude 8 3
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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, except as otherwise expressly provided herein.

12.8 No Damages. In no event shall a Party, or its boards, commissions,officers, agents or employees, be liable in damages, includingwithout limitation, actual, consequential or punitive damages, for any Default under this Agreement. It is expressly understood and agreed that the sole legal remedy available to a Party for a breach or violation of this Agreement by the other Party shall be an action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party, or to terminate this Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligationsrequiring an obligation of money from the other Party under the terms of this Agreement including, but not limited to, obligations to pay attorneys’ fees and obligations to advance monies or reimburse monies. In connection with the foregoing provisions, each Party acknowledges, warrants and represents that it has been fully informed with respect to, and represented by counsel of such Party’s choice in connection with, the rights and remedies of such Party hereunder and the waivers herein contained, and after such advice and consultation has presently and actually intended,with full knowledge ofsuch Party’s rights and remediesotherwise available at law or in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to rely to the extent herein speci?ed solely on the remedies provided for herein with respect to any breach of this Agreement by the other Party.

12.9 Resolution of Disputes. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable Law, a Party shall, at the request of another Party, meet with designated representatives of the requesting Party promptly following its request. The parties to any such meetingsshall attempt in good faith to resolve any such disputes. Nothing in this Section 12.9 shall in any way be interpreted as requiring that Developer, City and or City’s designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to in writing by the partiesto such meetings.

12.10 Remedies upon Transfer or Assignment. Notwithstanding anything to the contrary contained in this Article 12, if Developer has transferred all or a portion of its interest in the Property pursuant to Section 10.1 above, then the City may only exercise its remedies under this Article 12 against the defaulting Developer or Assignee and such party’s portion of the Property. a finding and/or determination of the Planning Commission is created by this Agreement, that appeal shall be taken, if at all, within twenty (20) days after the mailing of the finding and/or determination to Developer. The City Council shall act upon the finding and/or determination of the Planning Commission within eighty (80) days after the mailing,or within any additional period as may be agreed upon by Developer and the Council. 12.12 Surviving Provisions. In the event this Agreement isterminated, neither Party shall have any further rights or obligationshereunder, except for those obligationsof Developerset forth in Article 9. 8 3
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ARTICLE 13

GENERAL PROVISIONS

13.1 Covenants Binding on Successors and Assigns and Run with Land. Except as otherwise more speci?cally provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards, terms, covenants and obligations,shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities acquiring the Property, or any interest therein, and shall inure to the bene?t of the Parties and their respective successors and assigns, as provided in Government Code section 65868.5.

13.2 Notice. Any notice, demand or request which may be pennitted, required or desired to be given in connectionherewith shall be given in writing and directed to the City and Developer as follows:
lfto the City: City Clerk
City of St. Helena
1572 RailroadAvenue
St. Helena, CA 94574
with a copy to: City Attorney
City of St. Helena
1572 Railroad Avenue
St. Helena, CA 94574
If to Developer: LMR Destinations LLC
Attn: Ted Hall
P.O. Box 477
Rutherford, CA 94573
with a copy to: Rob Anglin
Holman Teague Roche Anglin, LLP
1455 First Street, Suite 217
Napa, CA 94559
Notices are deemed effective if delivered by certi?ed mail, return receipt requested, or commercial courier, with delivery to be effective upon verification of receipt. Any Party may change its respective address for notices by providing written notice of such change to the other Parties.13.3 Permitted Delays. Performance by either of the Parties of an obligation hereunder shall be excused during any period of “Permitted Delay.” Permitted Delay shall mean delay beyond the reasonable control of a Party caused by (a) calamities, including without limitation earthquakes, ?oods, and ?re; (b) civil commotion; (c) riots or terrorist acts; (d) strikes or other forms of material labor disputes; (e) shortages of materialsor supplies; or (f) vandalism. A Party’s 28 33573 00: 06\3344KOZ6I
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?nancial inability to perfonn or obtain ?nancing or adverse economic conditions generally shall not be grounds for claiming a Pemiitted Delay. The Party claiming a Permitted Delay shall notify the other Party of its intent to claim a Pennitted Delay, the specific grounds of the same and the anticipated period of the Permitted Delay within thirty (30) business days after the occurrence of the conditions which establish the grounds for the claim. If notice by the Party claiming such extension is sent to the other Party more than thirty (30) days a?er the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. The period of Permitted Delay shall last no longer than the conditions preventing perfonnance. In no event shall any Permitted Delay extend the Term of this Agreement.

13.4 Countemarts.This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

13.5 Waivers. Notwithstanding any other provision in this Agreement, any failures or delays by any Party in asserting any of its rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies,or deprive any 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. A Party may specifically and expressly waive in writingany condition or breach of this Agreement by the other Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision.

Consent by one Party to any act by the other Party shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or similar acts in the future. l3.6 Construction of Agreement. All Parties have been represented by counsel in the preparation and negotiation of this Agreement, and this Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are mandatory, and "may” is pennissive; (d) “or” is not exclusive; (e) “includes” and “including” are not limiting; and (0 “days” means calendar days unlessspeci?cally provided otherwise.

Agreement. 13.8 Severability. lf any term or provision of this Agreement, or the application of any term or provision of this Agreement to a speci?c situation, isfound to be invalid.or unenforceable in whole or in part for any reason, the remaining terms and provisions of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provisions, in which case any Party may terminate this Agreement by providing written notice thereof to the other Party. 13.9 Time is of the Essence. Time is of the essence of this Agreement. All references to time in this Agreement shall refer to the time in effect in the State of California. 29 33573 00l06\33-t-18026 I
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30 13.10 Extension of Time Limits. The time limits set forth in this Agreement may be extended by mutual consent in writing of the Parties in accordance with the provisions of this Agreement.

13.11 Signatures. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Developer and the City.

13.12 EntireAgreement. This Agreement (including all exhibits attached hereto, each of which is fully incorporated herein by reference), integrates all of the terms and conditions mentioned herein or incidental hereto, and constitutesthe entire understanding of the Parties with respect to the subject matter hereof, and all prior or contemporaneous oral agreements, understandings,representations and statements, and all prior written agreements, understandings, representations, and statements are terminated and superseded by this Agreement.

13.13 Estopgel Certi?cate. Developer or its lender may, at any time, and from time to time, deliver written notice to the City requesting the City to certify in writing that: (a) this Agreement is in full force and effect; (b) this Agreement has not been amended or modi?ed or, if so amended or modi?ed, identifying the amendments or modi?cations; and (c) Developer is not in Default of the perfonnance of its obligations, or if in Default, to describe therein the nature and extent of any such Defaults. Developer shall pay, within thirty (30) days following receipt of City‘s invoice, the actual costs borne by City in connection with its review of the proposed estoppel certi?cate, including the costs expended by the City Attomey’s Of?ce in connection therewith.

The City Manager shall be authorizedto execute any certificate requestedby Developer hereunder.

The fonn of estoppel certi?cate shall be in a fonn reasonably acceptable to the City Attorney. The City Manager shall execute and return such certi?cate within thirty (30) days following Developer’s request therefor. Developer and City acknowledge that a certificate hereunder may be relied upon by tenants, transferees, investors, partners, bond counsel, underwriters, bond holders and Mortgagees. The request shall clearly indicate that failure of the City to respond within the thirty-day period will lead to a second and ?nal request. Failure to respond to the second and ?nal request within ?fteen (15) days of receipt thereof shall be deemed approval of the estoppel certi?cate.

13.14 Recordation of Tennination. Upon completion of performance of the Parties or statement acknowledging

13.15 City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless speci?cally provided otherwise or the context requires otherwise. 13.16 Negation of Partnership. The Partiesspeci?cally acknowledge that the Project is a private development, that no Party to this Agreement is acting as the agent of any other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the Parties in the R
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3|
businesses of Developer, the affairs of the City, or otherwise, or cause them to be considered venturers or members of any joint enterprise.

13.17 No Third Party Bene?ciaries. This Agreement is made and entered into for th e protection and bene?t of the signatory Parties and their successors and assigns, incl udin
g
Mortgagees. No other person shall have any right of action based upon any provision i n
t
Agreement.
l3.l8 Governing State Law. This Agreement shall be construed in accordance wit h
t
h
e
laws of the State of Califomia, without reference to its choice of law provisions.

13.19 Recordation. As provided in Government Code Section 65868.5, the City Cle rk
of
St. Helena shall record a copy of this Agreement with the Registrar-Recorder of the Coun ty
of
Napa within ten (10) days following its execution by both Parties. Developer shall provid e
t
h
e
City Clerk with the fees for recording prior to or at the time of recording.

13.20 Exhibits. The following exhibits are attached to this Agreement and are h er
e
b
y
incorporated herein by this reference for all purposes as if set forth herein in full:

Property Description
Exhibit B: Site Map
: Project Description
: Existing Approvals
Exhibit E: Applicable Law & Project Approval Excerpts
Exhibit F: Mills Lane Improvements
Exhibit G: Storm Drain Improvements
Exhibit H: La Fata Sidewalk Improvements
[
S
I
G
N
A
T
U
R
E
S
FOLLOWING ONPAGE]
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IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date.

CITY:

CITY OF ST. HELENA. a municipal corporation
By:

Mark Prestwich, City Manager
/Signature must be nomrize1l/
ATTEST:

By:

Cindy Tzafopoulos,City Clerk
APPROVED AS TO FORM:

By:

Ethan Walsh, City Attorney
DEVELOPER:

LMR DESTINATIONS LLC.a California limited
liability company
By: Long Meadow Ranch Partners.L.P.
a California limited partnership
Its: Manager
lls. General Partner By: Ted W. Ha I, Its Manager
[Signature must be ImtarI':etl/
reby certify that t
h
is
atrue ISand copy exact of the
original record on file the City of St Helena
County of N pa State oCal
fifor
nia
Atte 1
Cindy Tzafo ulos, lek
Date: I
”>._/.u -' .45
1’
:
8 3
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32 Mark Prestwich,
S nature mun be no
ATTEST:

By:

T Cindy Tzafopoulos, City Clerk
APPROVED AS TO FORM:

DEVELOPER:

LMR DESTINATIONS LLC, a C
ali
fo
rn
ia
limited
liability company
By: Long Meadow Ranch Partn
ers,
L.P.
a Califomia limited partne
rship Its: Manager
By: LMR GP LLC,
a California limited liabilit
y Its: GeneralPartner

IN WITNESS WHERE
OF,
executed this have Agreement of asnd the City Developer the Effective Date.

CITY:
municipal corporation HELENA, ST. aCITY OF
By:

City Manager
[lgtarizedl
By:

T
e
d
Hall, W.

It
sIs
ig
na
lu
rz
numrized] bemust
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On this day of , ,befo me,
re Notary Public, personally appeared ,who
proved to me on the basis of satisfacto
ry
name(s) etobehe whose is/are person(s)
vi
d
e
n
c
e
subscribed to the within instrumentan
d
atohat executed the same he/she/they me
c in his/her/their authorized capacity
(ies),
onathat byeir th instrument his/her signature(s)
n
d
the person(s), or the entity upon behalfwh the executed the instrument. acted, person(s) ich
I certify under PENALTY OF PERJU
RY
unthe laws of State the California
der foregoing paragraph is true and correct.

CHRISTINE EHALL
COMM. #2299458
,-Notary Public Calltomia
Napa County Comm. Exlres Jul 2073 3.

WITNESS my hand and official seal.

NRO1 LOHN
Signature: (Seal)
A notary public orthis certi?cate office completing
r veri?es only the i
d
e
n
ti
t
y
the individual who signed of
document to whic
h
isnot tcerti and the attached,
h?cate
i
s
truthfulness, accura
(_:Lor
that document. of validit
y

STATE OF CALIF
ORNI
A

COUNTY OF
_ll
'. L
(
I
A/
»4
8 3
5 7
8 06\33- OOI l
H8026
Agenda Item #9.1.

Page 143 of 302 ends

A notary public or other of?cer completing this certi?cate veri?es only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy. or validityof that document.

STATE OF CALIFORNIA

COUNTY OF
On this I1 day of ND\l€l‘l\\°Cf , 20 '1«0before me, S W W1
_S°\\“$ -E,°" Notary Public, personally appeared MQVK ?f'€'s+vsJ\(.V \
,who
proved to me on the basis of satisfactory evidence to be the person (s)
is/are nam(s)
subscribed to the within instrument and acknowledged to me that he /
sh
e/
th
ey
executed the same
in his/her/their authorized capacity(ies), and that by his/her their sig nat
ure
(s)
onthe instrument
the person(s), or the entity upon behalf of which the person(s) acted ,
the instrument.

I certify under PENALTY OF PERJURY underthe laws of the Stat e
thate Cal
ifor
nia
foregoing paragraph IS true and correct.
i
. SOPHI
A
' §
couu.
l WITNESS my hand and official seal. in 9
II can.E
n. N23 16.

Signature: !§ (Seal
)
B3 S7

8. 0
()|
06 \33448026
.|
Agenda Item #9.1.

Page 144 of 302 ends

St. Helena City CouncilOctober 11, 2022

St. Helena City Council
October 11, 2022