RECORDING REQUESTED BY
AND WHEN RECORDED RETURN
TO:
City of Stockton
425 N. El Dorado St, 1st Floor
Stockton, CA 95202
Attention: City Clerk
Record for the Benefit of
The City of Stockton
Pursuant to Government Code
Section 27383
Space Above Reserved for Recorder’s Use Only
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF STOCKTON, a
California municipal corporation
AND
GREENLAW DEVELOPMENT, LLC
a California limited liability company
MARI
POSA INDUSTRIAL PARK PROJECT
Effe
ctive Date: _____________, 2022
EXHIBIT 1
EXHIBIT 1
ARTICLE 1. DEFINITIONS ...........................................................................................................
ARTICLE 2. LAFCO CONDITION; REPRESENTATIONS AND WARRANTIES ...................
ARTICLE 3. EFFECTIVE DATE AND TERM .............................................................................
ARTICLE 4. DEVELOPMENT RIGHTS; APPLICABLE LAWS ................................................
ARTICLE 5. FEES AND FEE CREDITS .......................................................................................
ARTICLE 6. POTENTIAL CFD FOR FIRE STATION FACILITY .............................................
ARTICLE 7. COMPLIANCE WITH LAWS; COMMUNITY BENEFITS ...................................
ARTICLE 8. COOPERATION AND IMPLEMENTATION .........................................................
EXHIBIT 1
ARTICLE 9. THIRD PARTY LEGAL CHALLENGE, IMDEMNITY AND
INSURANCE ........................................................................................................
ARTICLE 10. ANNUAL REVIEW ................................................................................................
ARTICLE 11. MORTGAGEE PROTECTION ...............................................................................
ARTICLE 12. AMENDMENT OF AGREEMENT AND PROJECT APPROVALS ....................
ARTICLE 13. ASSIGNMENT ........................................................................................................
EXHIBIT 1
ARTICLE 14. DEFAULT; REMEDIES; TERMINATION ...........................................................
ARTICLE 15. MISCELLANEOUS PROVISIONS ........................................................................
EXHIBIT 1
EXHIBIT 1
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (“Agreement”) dated for reference purposes as of _____________, 2022 (“Agreement Date”), is entered into by and between GREENLAW DEVELOPMENT, LLC, a California limited liability company (“Developer”) and the CITY OF STOCKTON, a California municipal corporation (“City”). Developer and City are sometimes referred to individually herein as a “Party” and collectively as the “Parties.”
R E C I T A L S
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; capitalized terms used herein and not otherwise defined are defined 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 et 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-term development agreement, establishing certain development rights in the property.
B. In accordance with the Development Agreement Statute, the City Council has adopted a development agreement ordinance codified as Chapter 16.128 of the City’s Municipal Code (“Development Agreement Ordinance”), which authorizes the execution of development agreements and sets forth the required contents and form of those agreements. The provisions of the Development Agreement Statute and the City’s Development Agreement Ordinance are collectively referred to herein as the “Development Agreement Law.” C. Developer holds a legal or equitable interest in
that certain approximately
203-acre real property, as defined by Government Code subsections 65865(a) and (b), located within the unincorporated area of the County of San Joaquin (the “County”) commonly known as the Mariposa Industrial Park (the “Property”). The Property is currently comprised of nine (9) separate parcels bearing Assessors Parcel Numbers 179-220-100, 179-220-110, 179-220-120, 179- 220-130, 179-220-160, 179-220-170, 179-220-180, 179-220-190, and 179-220-240. The Property is more particularly described and depicted in Exhibit A attached hereto and incorporated herein.
D. Not later than fourteen (14) days following its execution of this Agreement, the City will submit an application to the Local Agency Formation Commission (“LAFCO”) to annex the Property into the City (the “Annexation Proceedings”). The potential environmental impacts from development of the Property were evaluated by the City, in compliance with the requirements of the California Environmental Quality Act (“CEQA”), in that certain Environmental Impact Report for the Mariposa Industrial Park (State Clearinghouse No. 2020120283) certified by the City on __________, 2022 (the “MIP EIR”). Development of the Property as described in the MIP EIR, with the modifications requested by the County shown on Exhibit B hereto, is referred to herein as the “Project.”
E. This Agreement sets forth, among other things, the applicable fees, policies EXHIBIT 1
and zoning requirements that apply to development of the Property, and is intended by the City and Developer to provide Developer with vested rights to develop the Property in accordance with the terms and conditions of this Agreement. Consistent with the State policy expressed by Government Code section 65864, this Agreement is intended to reduce the uncertainty of the planning and entitlement process which can result in waste of resources and escalation of development costs; provide certain assurances to Developer that upon successful completion of the Annexation Proceedings Developer may proceed with development of the Property in accordance with the Project Approvals and Applicable Law (as defined herein) and subject to the terms of this Agreement; strengthen the public planning process; encourage private participation in comprehensive planning; and reduce the economic costs of development.
F. The Planning Commission on February ___, 2022, recommended, by adoption of Resolution No. _______, that the City Council take the following actions:
1. Make the appropriate written findings relating to significant environmental impacts, adopt a statement of overriding considerations, adopt a mitigation monitoring and reporting plan, and certify the MIP EIR, all in accordance with the applicable requirements of CEQA and the CEQA Guidelines.
2. Adopt an ordinance authorizing the City to execute this Agreement and allow structures of up to 100 feet tall on the Property G. Prior to its approval of this Agreement, the City Council took the following actions to review and plan for the future development and use of the Property (collectively, the “Existing Approvals”):
3. Made written findings relating to significant environmental impacts, adopted a statement of overriding considerations, adopted a mitigation monitoring and reporting plan, and certified the MIP EIR, all in accordance with the applicable requirements of CEQA and the CEQA Guidelines.
4. Adopted Ordinance No. ______, authorizing the City to execute this Agreement and allowing for structures of up to 100 feet tall on the Property.
H. Under this Agreement, Developer will provide substantial public benefits to the City through its development of the Property and the Project as described herein, including:
1. The Project will, at no cost to the City, fund the preparation of a Rate and Method of Apportionment and other formation documents to support the formation of a Community Facilities District to support the design, construction, staffing, operation and maintenance of critical fire and police protection facilities for the Mariposa Industrial Park area and surrounding areas in south Stockton and its sphere of influence and, if the City establishes such Community Facilities District, the Property will participate in the Community Facilities District.
2. The Project will generate short-term construction jobs related to Property development, including Property grading, infrastructure and building construction, and long-term EXHIBIT 1
employment-generating uses in the industrial components of the Project consistent with City objectives for creating employment opportunities for residents.
3. The Project will implement the City’s General Plan land use and economic development policies designed to attract employment- and tax-generating businesses that support and promote the economic diversity of the City (General Plan Policy LU-4.2).
I. As provided in Article 6 of this Agreement, the Parties intend to work in good faith to consider potential use of public financing under the Mello-Roos Community Facilities Act of 1982 (Government Code sections 53311 et seq.) (“Mello-Roos Act”) for certain Public Benefit Facilities needed in connection with the Project. The financing of such facilities through a Mello- Roos Act community facilities district would fulfill the express legislative goals of the Development Agreement Statute; strengthen the public planning process by linking development rights to financing of public facilities; encourage participation by private landowners in the comprehensive planning required by such financing; reduce economic risk and costs of development by spreading the costs of needed facilities over time; and allow Developer, in exchange for voluntary participation in such financing programs, to proceed with development in accordance with existing City policies, rules and regulations.
J. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Agreement is appropriate. This Agreement will eliminate uncertainty regarding Project Approvals, thereby encouraging planning for, investment in, and commitment to use and development of the Property. Development of the Property in accordance with the terms of this Agreement will in turn provide substantial public benefits to the City, thereby achieving the goals and purposes for which the Development Agreement Law was enacted.
K. The terms and conditions of this Agreement have undergone review by City staff, the Planning Commission and the City Council at publicly noticed meetings, and have been found to be fair, just and reasonable, in conformance with the Development Agreement Law and consistent with the goals, policies, standards and land use designations specified in the General Plan, and consistent with the requirement under Government Code Section 65867.5, and further, the City Council finds that the economic interests of City’s citizens and the public health, safety and welfare will be best served by entering into this Agreement.
L. The City Council approved this Agreement by Ordinance No. __________, adopted by the City Council on _________________, 2022 (“Enacting Ordinance”).
NOW, THEREFORE, in consideration of the mutual promises, covenants and provisions set forth herein, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
A G R E E M E N T
ARTICLE 1.
DEFINITIONS
“Agreement” means this Development Agreement and all Exhibits hereto.
EXHIBIT 1
“Agreement Date” means the reference date identified in the preamble to this Agreement.
“Annexation Date” is defined in Section 2.1.
“Annexation Deadline” is defined in Section 2.1.
“Annexation Proceedings” is defined in Recital D.
“Annual Review” is defined in Section 10.1.
“Applicable City Regulations” is defined in Section 4.2. “Applicable Law” means the Applicable City Regulations and all State and Federal laws and regulations applicable to the Property and the Project as such State and Federal laws are enacted, adopted and amended from time to time, as more particularly described in Section 4.5 (Changes in Applicable Law).
“Assignee” is defined in Section 13.3.
“Assignment” is defined in Section 13.2.
“Capital Financing and Debt Management Policy” means the City’s Debt Management Policy for Capital and Land Secured Financing, Policy Number 17.01.040, with an effective date of October 30, 2018, as it may be amended from time to time. “CEQA” is defined in Recital D.
“CEQA Guidelines” means the State CEQA Guidelines (California Code of Regulations, Title 14, section 15000, et seq.), as amended from time to time. “CFD” is defined in Section 7.2.2.
“Changes in Applicable Law” is defined in Section 4.5.
“City” means the City of Stockton, a California municipal corporation. “City Council” means the City Council of the City of Stockton. “City Manager” means the City’s City Manager or his or her designee. “City Parties” means and includes City and its elected and appointed officials, officers, agents, employees, contractors and representatives. “Claims” means liabilities, obligations, orders, claims, damages, fines, penalties and expenses, including attorneys’ fees and costs.
“Connection Fees” means those fees charged by City on a citywide basis or by a utility provider to utility users as a cost for connecting water, sanitary sewer, and other EXHIBIT 1
applicable utilities, except for any such fee or portion thereof that constitutes an Impact Fee, as defined below.
“Consultant Fees” is defined in Section 5.3.
“Default” is defined in Section 14.1.
“Developer” means Greenlaw Development, LLC, and its permitted successors and assignees.
“Development Agreement Law” is defined in Recital B.
“Development Agreement Ordinance” is defined in Recital B. “Development Agreement Statute” is defined in Recital A. “Effective Date” means the date that this Agreement becomes effective as determined under Section 3.1.
“Enacting Ordinance” refers to the Ordinance identified in Recital L. “Existing Approvals” is defined in Recital G.
“Extension Term” is defined in Section 3.2.2.
“Final” means the date on which (1) all applicable appeal periods for the filing of any administrative appeal challenging the issuance or effectiveness of each of the Existing Approvals and this Agreement shall have expired and no such appeal shall have been filed; (2) in the event of any administrative appeal or Litigation Challenge challenging any of the Existing Approvals and/or this Agreement, that the administrative appeal or Litigation Challenge is settled or there is a final determination or judgment upholding the Existing Approvals and this Agreement, as applicable, and the administrative appeal or Litigation Challenge is no longer subject to appeal.
“General Plan” means the Envision Stockton 2040 General Plan of the City of Stockton adopted by the City Council on December 4, 2018. “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 development project, including, any “fee” as that term is defined by Government Code section 66000(b). For purposes of this Agreement, a fee that meets both the definitions of an Impact Fee and an Exaction will be considered to be an Impact Fee. Impact Fees do not include Other Agency Fees.
“Impact Fee Lock Period” is defined in Section 5.1.
“Initial Term” is defined in Section 3.2.1.
EXHIBIT 1
“LAFCO” is defined in Recital D.
“Litigation Challenge” is defined in Section 9.1.1.
“Litigation Delay” is defined in Section 15.4.2.
“Major Modification” is defined in Section 12.2.
“Mello-Roos Act” is defined in Recital I.
“Minor Modification” is defined in Section 12.2.
“MIP EIR” is defined in Recital D.
“Mortgage” means any mortgage, deed of trust, security agreement, and other like security instrument encumbering all or any portion of the Property, or any of the Developer’s rights 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 Municipal Code of the City of Stockton, as amended from time to time.
“New City Laws” means and includes any ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines or other regulations, which are promulgated or adopted by the City (including but not limited to any City agency, body, department, officer or employee) or its electorate (through their power of initiative or otherwise) after the Effective Date.
“Notice of Breach” is defined in Section 14.1.
“Party/Parties” is defined in the introductory paragraph preceding the Recitals of this Agreement.
“Permitted Delay” is defined in Section 15.4.1.
“PFF Credits” means credits for PFF Impact Fees as provided by Section
16.72.260 of the City of Stockton Municipal Code.
“PFF Impact Fees” means Impact Fees imposed by the City under the City’s Municipal Code, as it may be amended or replaced from time to time. “Planning Commission” means the Planning Commission of the City of Stockton.
“Processing Fees” means all fees charged on a City-wide basis to cover the cost of City processing of Subsequent Approvals and further including any required supplemental or further environmental review, plan checking, inspection and monitoring at the rates which are in EXHIBIT 1
effect at the time those permits, approvals, parcel and/or subdivision maps, entitlements, reviews or inspections are applied for or requested.
“Project” is defined in Recital D.
“Project Approvals” means the Existing Approvals and, when and as approved in accordance with the terms of this Agreement, the Subsequent Approvals. “Property” is defined in Recital C.
“Subdivision Map Act” means California Government Code sections 66410 through 66499.58, as it may be amended from time to time. “Subsequent Approvals” is defined in Section 8.1.
“Term” is defined in Section 3.2.1.
ARTICLE 2.
LAFCO CONDITION; REPRESENTATIONS AND WARRANTIES
LAFCO Annexation. The Parties hereby acknowledge that pursuant to Government Code subsection 65865(b), this Agreement shall not become operative unless and until the Property is annexed to the City; provided, however, that the Parties’ obligations in this Section 2.1 shall be effective and binding on the Parties immediately upon the Effective Date.
The Parties agree to cooperate diligently and in good faith to submit an annexation application to LAFCO as soon as practicable following the Effective Date. The Parties further agree that this Agreement shall automatically terminate if the Annexation Proceedings have not been successfully completed on or before the Annexation Deadline (defined below), and as a result of such termination this Agreement shall be entirely null and void. Subject to potential extension as provided herein, the “Annexation Deadline” shall be December 31, 2022. The Annexation Deadline shall be subject to automatic extension in the event of Litigation Challenge as provided in Section 15.4.2 and may also be extended by mutual agreement of the Parties, each in its sole and absolute discretion. To avoid uncertainty, the Parties acknowledge that the action which must occur to successfully complete the Annexation Proceedings by the Annexation Deadline is issuance of the Certificate of Completion by LAFCO. The date upon which LAFCO issues such Certificate of Completion shall be the “Annexation Date”. In the event this Agreement is terminated or deemed terminated as a result of the inability or failure to successfully complete the Annexation Proceedings by the Annexation Deadline then, upon request by either Party, City and Developer shall execute, acknowledge and record in the Official Records a memorandum of termination memorializing the termination of this Agreement.
City Representations and Warranties. City represents and warrants to Developer that:
2.2.1 Corporate Formation and Powers. City is a municipal corporation, and has all necessary powers under the laws of the State of California to enter into and perform the undertakings and obligations of City under this Agreement.
EXHIBIT 1
2.2.2 Duly Authorized. The execution and delivery of this Agreement and the performance of the obligations of City hereunder have been duly authorized by all necessary City Council action and all necessary approvals have been obtained.
2.2.3 Valid Obligation. Thi s Agreement is a valid obligation of City and is enforceable in accordance with its terms.
The foregoing representations and warranties are made as of the Agreement Date.
Du
ring the Term of this Agreement, City shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.2 not to be true, immediately give written notice of such fact or condition to Developer.
Developer Representations and Warranties. Developer represents and warrants to City that:
2.3.1 Company Formation and Powers. Developer is duly organized, validly existing and in good standing under the laws of the State of California and is authorized to conduct business in California and has all necessary powers under the laws of the State of California to own property and in all other respects enter into and perform the undertakings and obligations of Developer under this Agreement.
2.3.2 Duly Authorized. The execution and delivery of this Agreement and the performance of the obligations of Developer hereunder have been duly authorized by all necessary corporate, partnership or company action and all necessary shareholder, member or partner approvals, as applicable, have been obtained.
2.3.3 Valid Obligation. Thi s Agreement is a valid obligation of Developer and is enforceable in accordance with its terms.
2.3.4 Developer’s Property Interest. D eveloper has a legal or equitable interest in each of the parcels comprising the Property.
2.3.5 No Bankruptcy. Developer has not (a) made a general assignment for the benefit of creditors; (b) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Developer’s creditors; (c) suffered the appointment of a receiver to take possession of all, or substantially all, of Developer’s assets; (d) suffered the attachment or other judicial 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.
The foregoing representations and warranties are made as of the Agreement Dat
e. During the Term of this Agreement, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this 2.3 not to be true, immediately give written notice of such fact or condition to City.
EXHIBIT 1
ARTICLE 3.
EFFECTIVE DATE AND TERM
Effective Date. The Effective Date of this Agreement (“Effective Date”) shall be the later of (a) the date that is thirty (30) days after the date the Enacting Ordinance is adopted, or (b) the date this Agreement is fully executed by the Parties. Said date shall function as the Effective Date for purposes of this Agreement even if, as anticipated by the Parties, the Annexation Date occurs later. The Parties acknowledge that section 65868.5 of the Development Agreement Statute requires that this Agreement be recorded with the County Recorder 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 permitted successors in interest to the Parties to this Agreement. The City Clerk shall cause such recordation.
Term.
3.2.1 Initial Term of Agreement. Subject to extension for Litigation Delay as provided in Section 15.4.2 below, the “Initial Term” of this Agreement shall commence on the Annexation Date and shall expire on the tenth (10th) anniversary of the Annexation Date, unless extended or earlier terminated as provided herein. As used herein “Term” means the Initial Term, plus any Extension Term (defined below).
3.2.2 Extension of Initial Term. The Initial Term of this Agreement may be extended by mutual written agreement of the Parties from the date of expiration of the Initial Term until the date which is five (5) years following the expiration of the Initial Term (“Extension Term”), provided that at the end of the Initial Term: (a) Developer is not, at the time, in Default of any of its obligations hereunder following notice and expiration of applicable cure periods; and (b) the applicable Developer warranties and representations in Section 2.3 above continue to be true and correct. Following the expiration of the Term, or the earlier completion of development of the Project and satisfaction of all of Developer's obligations in connection therewith, this Agreement shall be deemed terminated and of no further force and effect.
3.2.3 Memorandum of Extension. If the Extension Term is granted, City and Developer agree to execute, acknowledge and record in the Official Records of San Joaquin County a memorandum evidencing approval of the Extension Term.
ARTICLE 4.
DEV
ELOPMENT RIGHTS; APPLICABLE LAWS
Vested Rights. The Property is hereby made subject to the provisions of this Agreement. Developer shall have the vested right to develop the Property in accordance with and subject to the Existing Approvals, the Subsequent Approvals, Applicable Law and this Agreement, which shall control the permitted uses, density and intensity of use of the Property, rate of development, and the maximum height (as amended by this Agreement) and size of buildings on the Property.
EXHIBIT 1
Applicable City Regulations. City and Developer acknowledge and agree that, per the Development Agreement Statute, City is restricted in its authority to limit its police power by contract and that the particular limitations, reservations and exceptions set forth in this Agreement are intended to reserve to City those selected police powers that cannot be so limited.
Notwithstanding the foregoing reservations and exceptions, it is the 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, official policies, standards and specifications of City applicable to the development of the Property and Project shall be, collectively, the following “Applicable City Regulations”:
4.2.1 Project Approvals and Agreement. Those rules, regulations, official policies, standards and specifications of the City set forth in the Project Approvals and this Agreement, including without limitation the right to construct structures of up to one hundred (100) feet tall on the Property;
4.2.2 City Rules as of Effective Date. With respect to matters not addressed by and not otherwise inconsistent with the Project Approvals and this Agreement, those laws, rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) in force and effect on the Effective Date governing permitted uses, building locations, timing and manner of construction, densities, intensities of uses, heights (as set forth herein) and sizes, subdivisions and requirements for on- and off-site infrastructure and public improvements, including the City’s zoning development standards applicable to the Project and the Property. In the event of a conflict between the City Rules described in this Section 4.2.2 and the Project Approvals or this Agreement, such conflict shall be resolved in favor of the Project Approvals or this Agreement.
4.2.3 Procedural Rules. N
ew City Laws that relate to hearing bodies,
petitions, applications, notices, findings, 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 City-wide basis to all substantially similar types of development projects and properties.
4.2.4 Building Codes. New City Laws that revise City’s uniform construction codes, including City’s building code, plumbing code, mechanical code, electrical code, fire code, grading code and other uniform construction codes, as of the date of permit issuance, provided, that such New City Laws are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties;
4.2.5 Public Health and Safety. Ne
w 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 basis to all substantially similar types of development projects and properties;
4.2.6 New City Laws Not in Conflict. Ne w City Laws that do not materially interfere with Developer’s vested rights under this Agreement or the Project Approvals;
4.2.7 New City Laws Mandated by Changes in Applicable Law. Ne w City Laws mandated by Changes in Applicable Law as provided in Section 4.5 below; and EXHIBIT 1
4.2.8 Other New City Laws. New City Laws that do not apply to the Property and/or the Project due to the limitations set forth above, but which the Parties mutually agree in writing shall be incorporated into the Applicable City Regulations.
Life of Project Approvals. The term of any and all Project Approvals shall automatically be extended for the longer of the Term of this Agreement or the term otherwise applicable to such Project Approvals. Without limiting the generality of the foregoing, pursuant to the Subdivision Map Act, any vesting or tentative maps heretofore or hereafter approved in connection with development of the Project or the Property shall be extended for the Term (and may be subject to other extensions provided under the Subdivision Map Act). In the event that this Agreement is terminated prior to the expiration of the Term, the term of any Project Approval and the vesting period for any subdivision map approved as a Project Approval shall be the term otherwise applicable to the approval, which shall commence to run on the date that the Project Approval was issued. If upon expiration or earlier termination of this Agreement and the Project Approvals, Developer has not developed the entirety of the Property consistent with this Agreement and the Project Approvals, then the City Council, in its discretion, at any time may change the underlying and use designations or entitlements applicable to the parcels comprising such Property consistent with all Applicable Laws and procedures.
Timing of Development. 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 can depend upon numerous factors that are not within the control of Developer, such as market orientation and demand, interest rates, absorption rates of residential units, availability of financing 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 Town of Camarillo, 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, except as otherwise provided for in this Agreement, Developer’s vested rights under this Agreement include the right to develop the Property and the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its discretion, subject to the terms, requirements and conditions of the Existing Approvals and this Agreement, including provisions addressing required phasing of on- and off-site public improvements.
Changes in Applicable Law. As provided in Section 65869.5 of the Development Agreement Law, 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 specifically mandated and required by (i) changes in State or Federal laws or (ii) any regional governmental agency that, due to the operation of State law (and not the act of City through a memorandum of understanding, joint exercise of powers authority, or otherwise that is undertaken or entered into following the Effective Date) (“Changes in Applicable Law”). In the event Changes in Applicable Law prevent or preclude compliance with one or more provisions of this Agreement, the Parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in Applicable Law. Following the meeting between the EXHIBIT 1
Parties, the provisions of this Agreement may, to the extent legally feasible, and upon mutual agreement of the Parties, be modified or suspended, but only to the minimum extent necessary to comply with such Changes in Applicable Law. In such event, this Agreement together with any required modifications shall continue in full force and effect. Nothing in this Agreement shall preclude Developer from contesting by any available means (including administrative or judicial proceedings) such Changes in Applicable Law or their applicability to the Project.
ARTICLE 5.
CITY FEES AND FEE CREDITS
Impact Fees
For the period commencing on the Annexation Date and continuing until the 10th anniversary of the Annexation Date (“Impact Fee Lock Period”), Developer shall pay when due any and all PFF Impact Fees imposed by City at the time of the Annexation Date in accordance with the current City PFF Impact Fee Rate Table provided in this Section below:
CITY PFF IMPACT FEE RATE TABLE
Public Facilities Fee Name Warehouse/Low
Density
High Cube Distribution
(Building over 500ksf)
Agricultural Mitigation (Rate Per
Net Parcel Area within Pay Zone
Area. Note: May acquire the
agricultural easement in lieu of
paying fee)
$10,494.00 $10,494.00
Air Quality
(Rate Per 1,000 sq.ft.)
$405 $405
City Office Space
(Rate Per 1,000 sq.ft.)
$25.50 $25.50
Community Recreation Center
(Rate Per 1,000 sq.ft.)
$23.25 $23.25
Fire Station
(Rate Per 1,000 sq.ft.)
$54.00 $54.00
Libraries
(Rate Per 1,000 sq.ft.)
$56.00 $56.00
Police
(Rate Per 1,000 sq.ft.)
$62.00 $62.00
Street Improvement
(Rate Per 1,000 sq.ft.)
$931.50 $390.17
Traffic Signal Fee
(Rate Per 1,000 sq.ft.)
$108 $108
Surface Water
(Rate Per square foot floor area
divided by 0.60)
$0.228 $0.228
EXHIBIT 1
All City PFF Impact Fees are subject to a 3.5% Administrative Fee at the time of fee collection.
On the first anniversary of the Annexation Date and every twelve (12) months thereafter until expiration of the Impact Fee Lock Period, all City PFF Impact Fee Rates are subject to a two percent (2%) inflationary increase adjustment. Developer agrees that City shall not be bound by the requirements of the Mitigation Fee Act (Government Code § 66000 et seq.) with respect to such Impact Fees. Developer hereby further waives and releases any claims it may have to challenge the legality of the imposition, use or expenditure of the Impact Fees collected by City during the Impact Fee Lock Period on the grounds that City’s imposition, use or expenditure of such fees violates one or more requirements or limitations imposed by the Mitigation Fee Act or any other provision of Applicable Law.
Following expiration of the Impact Fee Lock Period, City may charge and, subject to Developer’s right to pay under protest and 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 Annexation Date; provided, however, City shall only require Developer to pay new Impact Fees (including increases in existing Impact Fees) that are uniformly applied by City to all substantially similar types of development projects and properties. To the extent Developer has earned PFF Credits for completed public improvements, City shall apply such accrued PFF Credits toward PFF Impact Fees payable by Developer until such PFF Credits are exhausted. Except as explicitly set forth in this Agreement, the application and administration of PFF Impact Fees to and for the Property shall be as set forth in the normally applicable requirements of the Stockton Municipal Code.
Other Applicable City Fees. Except as explicitly excluded by this Agreement, City may charge, and Developer agrees to pay, all Processing Fees, Connection Fees, and all pass- through fees collected by the City on behalf of other outside agencies, based on fee rates established by said outside agencies that are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties.
Consultant Fees. In addition to charging the foregoing Processing Fees, City, in its reasonable discretion and following consultation with Developer, may contract with one or more outside inspectors, engineers or consultants to perform all or any portion of the monitoring, inspection, testing and evaluation services to be performed in connection with construction and development of the Project (“Consultant Fees”). Developer shall pay to City, within thirty (30) days following City’s written demand therefor and the City’s submission of invoices, the full amount of all Consultant Fees, plus a fifteen percent (15%) administration charge. The Consultant Fees, together with the associated administrative charge, shall be in addition to, and not in lieu of, the Processing Fees; provided, however, City agrees not to double- charge Developer (through the imposition of both a Processing Fee and Consultant Fee) for any individual monitoring, inspection, testing or evaluation service.
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ARTICLE 6.
CFD FOR FIRE STATION FACILITY
CFD Formation. The Parties shall cooperate in good faith to establish a Community Facilities District consistent with the provisions of Section 7.2.2 of this Agreement, pursuant to the Mello-Roos Act and the City’s Capital Financing and Debt Management Policy for the design and construction of a fire station to provide fire protection services to the Property and surrounding areas within the City of Stockton and its sphere of influence, consistent with this Agreement, the Project Approvals and Applicable Law.
Funding for CFD Formation. Developer shall fund the analysis and preparation of a Rate and Method of Apportionment (“RMA”) and formation documents for a Community Facilities District (South Stockton Industrial/Commercial Services and Maintenance District) (the “CFD”) consistent with the provisions of Section 7.2.2, in an amount not to exceed one hundred thousand dollars ($100,000.00).
Developer’s Cooperation and Consent. Regarding formation of a Community Facilities District consistent with the provisions of Section 7.2.2 of this Agreement, Developer will (i) execute all necessary petitions and ballots and waive all election waiting and protest periods at City’s request; (ii) support City’s adoption of local policies related to use of said Community Facilities District financing; (iii) allow special tax liens to encumber the Property to accomplish the goals of the Community Facilities District; (iv) be deemed to have irrevocably consented to formation of the Community Facilities District, issuance of Community Facilities District bonds, and the imposition of a special tax against the Property at rates and pursuant to a method of apportionment appropriate to fund the debt service on any Community Facilities District bonds sold to finance the construction of the fire station; and (v) agree not to protest or object to formation of the Community Facilities District or levy of an appropriate special tax consistent therewith.
ARTICLE 7.
COMPLIANCE WITH LAWS; COMMUNITY BENEFITS
Compliance with Applicable Law. Developer, at its sole cost and expense, shall comply with requirements of, and obtain all permits and approvals required by Applicable Law, including requirements of regional, State and Federal agencies having jurisdiction over the Project.
Community Benefits. The Project will afford the City the following public benefits, which could not be secured from Developer in the absence of the Project and this Agreement:
7.2.1 The Project will generate short-term construction jobs related to the development of the Property and the Project, including Property grading, infrastructure and building construction, and long-term employment-generating uses in the industrial and office components of the Project, consistent with City objectives for creation of employment opportunities for residents.
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7.2.2 Not later than thirty (30) days following the Effective Date of this Agreement, Developer shall pay to City $60,000 to fund the analysis and preparation of a Rate and Method of Apportionment (“RMA”) and formation documents for a Community Facilities District (South Stockton Industrial/Commercial Services and Maintenance District) (the “CFD”). Should the costs of preparing the RMA and formation documents exceed $60,000, Developer shall provide additional funding, but the total of Developer’s funding for the RMA and the formation documents (including Developer’s $60,000 initial funding payment) shall not exceed $100,000.
The primary purposes of the CFD are to provide funding for the construction, staffing, equipment, and maintenance for a fire station with a police substation office (the “Station”).
The current estimated construction cost for the Station is $10 million, and the total of the currently estimated annual staffing, equipment, and maintenance costs for the Station is $3.0 million ($2.2 million for staffing and $0.8 million for equipment and maintenance costs).
The annexation area for the CFD will include all currently unapproved commercial and industrial development and parcels within the service area of the Station, both within City limits and that may be annexed into City limits in the future. The CFD will be formed to levy a facilities special tax with a fixed duration, and a services special tax that will continue in perpetuity.
As a condition of the Project approval, Developer shall cooperate with City in the formation of the CFD, based on the RMA and formation documents and on the terms and conditions described above, and in compliance with the requirements of the Mello – Roos Community Facilities Act of 1982 (Government Code §§ 53311 et seq.), including without limitation affirmative votes and the recordation of a Notice of Special Tax Lien.
7.2.3 The Project will implement the City’s General Plan land use and economic development policies designed to attract tax-generating businesses that support the economic diversity of the City (General Plan Policy LU-4.2).
7.2.4 Developer will guarantee certain levels of funding for the Station. If on the fifth anniversary of the Annexation Date the CFD has not collected $1,500,000 in special taxes from all parcels within the CFD, then Developer is obligated to make a payment to the CFD, that payment amount being $1,500,000 less any special taxes already collected by the fifth anniversary of the Annexation Date. Additionally, if on the tenth anniversary of the Annexation Date the CFD has not collected $3,000,000 in special taxes from all parcels in the CFD, then Developer is obligated to make a payment to the CFD, that payment amount being $3,000,000 less all special taxes already collected by the tenth anniversary of the Annexation Date and less any payments previously made by Developer pursuant to this Section 7.2.4. Both the fifth and tenth anniversary payments are separate, independently occurring, obligations. Payments, if obligated, become due 30 days after the respective anniversary date. If the CFD has not been formed on the date that a Developer payment becomes due under this Section 7.2.4, then Developer shall make the payment or payments to the City.
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ARTICLE 8.
COOPERATION AND IMPLEMENTATION
Subsequent Approvals. Certain subsequent land use approvals, entitlements, and permits other than the Existing Approvals (collectively, “Subsequent Approvals”), will be necessary or desirable for implementation of the Project. The Subsequent Approvals may include the following ministerial and discretionary applications and permits: amendments of the Existing Approvals, grading permits, building permits, sewer and water connection permits, certificates of occupancy, lot line adjustments, site plans, development plans, land use plans, building plans and specifications, parcel maps and/or subdivision maps, conditional use permits, design review, demolition permits, improvement agreements, encroachment permits, and any amendments to, or repealing of, any of the foregoing. In connection with any Subsequent Approval, the City shall exercise its discretion in accordance with Applicable Law, the Project Approvals and, as provided by this Agreement, including the reservations of authority set forth herein.
Processing Applications for Subsequent Approvals.
8.2.1 Processing Consistent with Vested Rights. With the Existing Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Applications for Subsequent Ministerial Approvals that are consistent with this Agreement and the Existing Approvals shall be processed and considered in a manner consistent with the vested rights granted by this Agreement and shall be deemed to be tools to implement those final policy decisions, and shall be approved by City so long as they are consistent with this Agreement and the Existing Approvals. While City expressly reserves its discretion with respect to all Subsequent Discretionary Approvals, City agrees that it shall not use its authority in considering any application for a Subsequent Discretionary Approval to change the policy decisions reflected by the Existing Approvals, including changing the permitted uses of the Property or the permitted rate of development, or otherwise to prevent development of the Project as set forth in the Existing Approvals.
8.2.2 City Discretion. Nothing herein shall limit the ability of City to require the necessary reports, analysis or studies to assist in determining that the requested Subsequent Ministerial Approval is consistent with this Agreement and the Existing Approvals.
If the City determines that an application for a Subsequent Ministerial Approval is not consistent with this Agreement or the Existing Approvals and should be processed as an application for a Subsequent Discretionary Approval rather than a Subsequent Ministerial Approval, the City shall specify in writing the reasons for such determination and may propose a modification which would be processed as a Subsequent Ministerial Approval. Developer shall then either modify the application to conform to this Agreement and the Existing Approvals, as the case may be, or the City shall process the application as an application for a Subsequent Discretionary Approval.
Mitigation Measures. To the extent applicable, Developer shall comply with the mitigation measures in the MIP EIR, which reflect the mutually agreed-upon timing of specified improvements and Developer’s pro rata share of funding, where applicable.
Other Agency Subsequent Approvals; Authority of City. Other public agencies not within the control of City may possess authority to regulate aspects EXHIBIT 1
of the development of the Property separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Nevertheless, City shall be bound by, and shall abide by, its covenants and obligations under this Agreement in all respects when dealing with any such agency regarding the Property. City shall cooperate with Developer, to the extent appropriate and as permitted by law, in Developer’s efforts to obtain, as may be required, Other Agency Subsequent Approvals.
Subsequent CEQA Review. The City has certified the MIP EIR, which evaluates the environmental effects of full development, operation and use of the Project, and has imposed all feasible mitigation measures to reduce the significant environmental effects of the Project. The Parties understand and agree that the MIP EIR is intended to be used not only in connection with the Existing Approvals, but also, to the extent legally permitted, in connection with any necessary Subsequent Approvals.
ARTICLE 9.
THIRD PARTY LEGAL CHALLENGE, IMDEMNITY AND INSURANCE
Cooperation in the Event of Legal Challenge.
9.1.1 Cooperation by Parties. City and Developer shall cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement or the Project Approvals (“Litigation Challenge”), and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information.
9.1.2 Potential Joint Defense. I
f Developer desires to contest or defend a
Litigation Challenge and the Parties determine to undertake a joint defense or contest of such Litigation Challenge: i) the Parties will cooperate in the joint defense or contest of such challenge; ii) Developer shall select the attorney(s) to undertake such defense, subject to City’s approval, which shall not be unreasonably withheld; iii) Developer will take the lead role in defending such Litigation Challenge; iv) upon Developer’s request, City shall enter into a joint defense agreement in a form reasonably acceptable to the City Attorney to facilitate the sharing of materials and strategies related to the defense of such Litigation Challenge without waiver of attorney client privilege; v) Developer shall reimburse City, within forty-five (45) 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.
9.1.3 Potential Separate Defense. If Developer desires to contest or defend any Litigation Challenge and if at any time one or both of the Parties determine that they require separate representation: i) Developer shall take the lead role in defending such Litigation Challenge; ii) Developer shall be separately represented by legal counsel of its choice; iii) in any action or proceeding, City shall be separately represented by the legal counsel of its choice, selected after consultation with Developer (including consultation as to the scope and budget for such separate representation), with reasonable costs of such representation to be paid by Developer; iv) Developer shall reimburse City, within forty-five (45) days following City’s written demand therefor, which may be made from time to time during the course of such EXHIBIT 1
litigation, all reasonable costs incurred by City in connection with the Litigation Challenge; v) prior to exceeding any previously established budget for the separate City legal representation, City shall confer with and obtain Developer’s input on any proposed budget augmentation or scope revision; and vi) upon Developer’s request, City shall enter into a joint defense agreement in a form reasonably acceptable to the City Attorney to facilitate the sharing of materials and strategies related to the defense of such Litigation Challenge without waiver of attorney client privilege.
9.1.4 Cost Awards and Proposed Settlements. Developer shall indemnify, defend, and hold harmless City Parties from and against any damages, attorneys’ fees or cost awards, assessed or awarded against City by way of judgment, settlement, or stipulation entered in connection with a Litigation Challenge. Any proposed settlement of a Litigation Challenge by a Party shall be subject to the approval of the other Party, such approval not to be unreasonably withheld, conditioned or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement or any Project Approvals, the settlement shall not become effective unless such amendment or modification is approved by City in accordance with Applicable Law, and the City reserves its full legislative discretion with respect thereto.
Indemnity. Developer shall indemnify, at City’s request defend, and hold the City Parties harmless from and against any and all Claims arising directly as a result of Developer’s acts, omissions, negligence or willful misconduct in connection with Developer’s performance under this Agreement or arising directly as a result of Developer’s (or Developer’s contractors, subcontractors, agents, or employees) work performed in connection with the development of the Property or the Project, including without limitation, Claims involving bodily injury, death or property damage. Developer’s indemnification obligations set forth in this Section shall not apply to the extent any such Claims are the result of the negligence or willful misconduct of any City Party.
Insurance. Prior to commencement of construction of the Project, Developer shall procure and maintain, or cause its contractor(s) to procure and maintain, until the earlier of (a) the expiration of the Term; or (b) the completion of the Project, a commercial general liability policy in an amount not less than Five Million Dollars ($5,000,000) combined single limit, including contractual liability together with a comprehensive automobile liability policy in the amount of Two Million Dollars ($2,000,000), combined single limit. Such policy or policies shall be written on an occurrence form, so long as such form of policy is then commonly available in the commercial insurance marketplace and shall be placed with insurers with a current A.M. Best’s rating of no less than A-:VII or a rating otherwise approved by the City in its sole discretion. If Developer desires to satisfy the foregoing insurance requirements through its contractor, then Developer shall require in its construction contract with the general contractor that said general contractor comply with all of the requirements of this Section 9.3. Developer or its contractor shall furnish at City’s request appropriate certificate(s) of insurance evidencing the insurance coverage required hereunder, and City Parties shall be named as additional insured parties in such policies. The certificate of insurance shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination 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 EXHIBIT 1
by Developer or its contractor shall be primary insurance and shall not be contributing with any insurance, self-insurance or joint self-insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City.
ARTICLE 10.
ANNUAL REVIEW
Annual Review. As required by California Government Code Section 65865.1 and pursuant to Section 16.128.110 of the Development Agreement Ordinance, the City of Stockton Planning Commission 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 to determine good faith compliance with this Agreement (“Annual Review”). Specifically, the Annual Review shall be conducted for the purposes of determining good faith compliance with the terms and/or conditions of this Agreement. Each Annual Review shall also document the status of Project development. In the event the Planning Commission recommends modification or termination of this Agreement in connection with such Annual Review, the action to effectuate such modification or termination must be taken by City Council.
Conduct of Annual Review. The annual review shall be conducted as provided in this Section 10.2. By December 1st of each year, Developer shall provide documentation of its good faith compliance with this Agreement during the calendar year, including a completed annual review form in a form reasonably specified by City from time to time. The information required to be provided as part of the annual review may include, among other items, the status of Project construction and the status of building permit issuances. If the City Manager finds good faith compliance by Developer with the terms of this Agreement, Developer shall be notified in writing and the review for that period shall be concluded. If the City Manager is not satisfied 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 fifteen (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 findings 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 terms and conditions of this Agreement, or there are significant 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 EXHIBIT 1
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 Developer a written Notice of Breach, in which case the provisions of Article 14, below, shall apply.
Failure to Conduct Annual Review. Failure of City to conduct an annual review shall not constitute a waiver by the City of its rights to 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 review.
ARTICLE 11.
MORTGAGEE PROTECTION
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 Developer’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 terms 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 San Joaquin 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 Mortgage.
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 institute any uses other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals. Except as otherwise provided in this 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.
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 during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of Default claimed or the areas of noncompliance set forth in City’s Notice of Default. If a Mortgagee is required to obtain EXHIBIT 1
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.
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 incurred with 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.
AMENDMENT OF AGREEMENT AND PROJECT APPROVALS
Amendment by Written Consent. Except as otherwise expressly provided herein (including Article 10 relating to City’s annual review and Article 14 relating to termination 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 65967, 65867.5 and 65868, and City Municipal Code Section 16.128.
Major Modifications to Agreement. Any amendment to this Agreement which affects or relates to (a) the Term; (b) permitted uses of the Property; (c) provisions for the reservation or dedication of land; (d) conditions, terms restrictions or requirements for subsequent discretionary actions; (e) the type, location, density and intensity of the use of the Property or the maximum height or size of proposed buildings; or (f) providing of community benefits by Developer, shall be deemed a “Major Modification” and shall require giving of notice and a public hearing before the Planning Commission and City Council. In addition, any modifications or changes to the County-requested Project modifications described in Exhibit B hereto shall be deemed a Major Modification for which the County shall be given notice in accordance with Stockton Municipal Code section 16.128.120, and an opportunity to comment thereon. Any amendment which is not a Major Modification shall be deemed a “Minor Modification” 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 Modification or a Minor Modification.
Minor Modifications. 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 Modifications. No public notice shall be required for a Minor Modification.
Requirement for Writing. No modification, amendment or other change to this Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing which refers expressly to this Agreement and is signed by duly authorized representatives of both City and Developer.
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ARTICLE 13.
ASSIGNMENT
General. Because of the necessity to coordinate development of the entirety of the Property pursuant to plans for the Project, certain restrictions on the right of Developer to assign or 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 benefits of the Project and this Agreement. Developer agrees to and accepts the restrictions set forth in this Article 13 as reasonable and as a material inducement to City to enter into this Agreement.
Notice of Assignment. Developer shall provide the City with written notice of any proposed transfer or assignment of Developer’s rights or obligations hereunder (each, an “Assignment”) at least thirty (30) days prior to such Assignment and request City’s consent to such Assignment, as provided herein. Each such notice of proposed Assignment shall be accompanied by evidence of the corporate, limited liability company or other legal entity’s existence and good standing and a proposed form of Assignee’s assumption of Developer’s obligations hereunder substantially in the form of Exhibit C, which would be recorded in the Official Records of San Joaquin County concurrent with the transfer. Developer shall pay the actual costs borne by City in connection with its review of the proposed Assignment, including the costs incurred by the City Attorney’s Office.
Assignment Processing. Notwithstanding any other limitations in this Article 13, Developer may, upon provision of Notice, execution of an agreement documenting such Assignment in accordance with Section 13.2, and provision of evidence of entity formation and good standing, at any time, assign its rights and obligations under this Agreement with respect to all or any portion of the Property without the consent of City to any person, partnership, joint venture, firm, company, corporation or other entity (any of the foregoing, an “Assignee”) acquiring all or a portion of the Property.
Release of Transferring Developer. Upon a transfer of all or a portion of the Property, Developer shall be released from any further liability or obligations hereunder with respect to the portion so transferred and the Assignee shall be deemed to be the Developer under this Agreement with respect to such transferred Property as specified in the assignment and assumption agreement provided: (i) neither Developer nor Assignee is in default under this Agreement at the time of such transfer; (ii) Developer and Assignee have executed and acknowledged and delivered to City for recordation in the Official Records of the County an assignment and assumption agreement substantially in the form of Exhibit C attached hereto; and (iii) the Assignee has expressly assumed for the benefit of City the obligations of Developer as to the portion of the Property so transferred. No release of Developer shall be effective unless and until each of the above conditions have been met. Notwithstanding anything to the contrary contained in this Agreement, if an Assignee Defaults under this Agreement, such Default shall not constitute a Default by Developer (or any other Assignee) with respect to any other portion of the Property hereunder and shall not entitle City to terminate or modify this Agreement with respect to such other portion of the Property.
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Partial Assignment. Subject to the limitations set forth in this Article 13, in the event of a transfer of a portion of the Property, Developer shall have the right to assign its rights, duties and obligations under this Agreement that are applicable to the transferred portion, and retain all rights, duties and obligations applicable to the retained portions of the Property.
Upon Developer’s request, City, at Developer’s expense, shall cooperate with Developer and any proposed Assignee to allocate rights, duties and obligations under this Agreement and the Project Approvals between the assigned portion of the Property and the retained Property. Assignee shall succeed to the rights, duties and obligations of Developer only with respect to the parcel or parcels, or portion of the Property so purchased, transferred, ground leased or assigned, and Developer shall continue to be obligated under this Agreement with respect to any remaining portions of the Property retained by Developer and not assigned.
Successive Assignment. In the event there is more than one Assignment under the provisions of this Article 13, the provisions of this Article 13 shall apply to each successive Assignment and Assignee.
Other Permitted Transfers. The provisions in this Article 13 shall not be deemed to prohibit or otherwise restrict Developer from (i) granting easements or licenses or modifying existing easements to facilitate development of the Property consistent with the Project Approvals; (ii) encumbering the Property or any portion hereof or of the improvements thereon by a Mortgage securing financing with respect to the Property or Project; or (iii) transferring all or a portion of the Property pursuant to a foreclosure, conveyance in lieu of foreclosure, or other remedial action in connection with a Mortgage, or to any transferee from a Mortgagee or owner of the Property upon foreclosure or after a conveyance in lieu of foreclosure.
ARTICLE 14.
DEFAULT; REMEDIES; TERMINATION
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 perform any term or condition of this Agreement shall constitute a “Default.” In the event of any alleged Default of any term, 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 thereafter at the earliest practicable date, 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. Further, as provided in Section 13.6 above, following transfer of all or any portion of the Property and an assignment or a partial assignment of this Agreement to an Assignee, a Default by such Assignee under this Agreement shall not constitute a Default by Developer (or any other Assignee) and shall not entitle City to terminate EXHIBIT 1
or modify this Agreement with respect to any portion of the Property retained by Developer.
Withholding of Permits. In the event of a Default by Developer (where the determination of such Default has been made by the City Council based on substantial evidence presented at a noticed public hearing), City shall have the right to refuse to issue any permit or other Subsequent Approvals to which Developer would otherwise have been entitled pursuant to this Agreement until such Default 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.
Termination. In the event of a 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 implementing said 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 14.9. Where Developer is the defaulting Party and Developer has previously conveyed portions of the Property and partially assigned this Agreement to one or more third party transferees, City’s right to terminate this Agreement shall be limited to those portion(s) of the Property then owned by Developer.
Specific Performance for Violation of a Condition. If City issues a Project Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by Developer in the future, and if Developer then fails to satisfy such condition, City, in addition to its other rights and remedies available under public improvement agreements, performance bonds or other instruments, shall be entitled to specific performance for the purpose of causing Developer to satisfy such condition.
Legal Actions.
14.5.1 Institution of Legal Actions. In addition to any other rights or remedies and subject to the limitation of damages in Section 14.7, 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 Superior Court for San Joaquin County, California, except for actions that include claims in which the Federal District Court for the Eastern District of the State of California has original jurisdiction, in which case the Eastern District of the State of California shall be the proper venue.
14.5.2 Acceptance of Service of Process. I
n 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 Rob Mitchell, Greenlaw Development, LLC, who is an agent of Developer for service of process, or in such other manner as may be provided by law.
EXHIBIT 1
Rights and Remedies Are Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party, except as otherwise expressly provided herein.
No Money Damages. In no event shall a Party, or its boards, commissions, officers, agents or employees, be liable in money damages, including without 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 obligations requiring 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 of such Party’s rights and remedies otherwise 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 specified solely on the remedies provided for herein with respect to any breach of this Agreement by the other Party.
Surviving Provisions. In the event this Agreement is terminated, neither Party shall have any further rights or obligations hereunder, except for those obligations of City and Developer set forth in Sections 9.1 and 9.2.
ARTICLE 15.
MISCELLANEOUS PROVISIONS
Incorporation of Recitals, Exhibits and Introductory Paragraph. The Recitals contained in this Agreement, the introductory paragraph preceding the Recitals, and the Exhibits attached hereto are incorporated into this Agreement as if fully set forth herein.
Convenants Binding on Successors and Assigns and Run with Land. Except as otherwise more specifically 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 benefit of the Parties and their respective successors and assigns, as provided in Government Code Section 65868.5.
Notice. Any notice, demand or request which may be permitted, required or desired to be given in connection herewith shall be given in writing and directed to the City and Developer as follows:
EXHIBIT 1
If to the City: City Clerk
City of Stockton
425 N. El Dorado St, 1st Floor
Stockton, CA 95202
Telephone: (209) 937-8458
Email:
with copies to: City Manager
City of Stockton
425 N. El Dorado St, 2nd Floor
Stockton, CA 95202
Telephone: (209) 937-8212
Email:
and: City Attorney
City of Stockton
425 N. El Dorado St, 1st Floor
Stockton , CA 95202
Telephone: (209) 937-8333
Email: [email protected]
If to Developer: Greenlaw Development, LLC
Attention: Rob Mitchell
18301 Von Karman Avenue, Suite 301
Irvine, CA 92612Telephone: (949) 331-1353
Email:
[email protected]
with a copy to: Thia Cochran
Cochran Law Group
18301 Von Karman Avenue, Suite 301
Irvine, CA 92612
Telephone: (949) 833-9600
Email:
[email protected]
Notices are deemed effective if delivered by: (a) certified mail, return receipt requested; (b) commercial courier, with delivery to be effective upon verification of receipt; or (c) email, upon actual receipt at the email addresses listed above. Any Party may change its respective address for notices by providing written notice (including email) of such change to the other Parties.
Permitted and Litigation Related Delays.
15.4.1 Permitted Delay. Performance by either Party 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, floods, and fire; (b) civil commotion; (c) riots or terrorist acts; (d) strikes or other forms of material labor disputes; (e) shortages of materials or supplies; or (f) vandalism.
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A Party’s financial inability to perform or obtain financing or adverse economic conditions generally shall not be grounds for claiming a Permitted Delay. The Party claiming a Permitted Delay shall notify the other Party of its intent to claim a Permitted 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 after 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 performance. In no event shall any Permitted Delay extend the Term of this Agreement.
15.4.2 Litigation Delay.
If, as a result of a Litigation Challenge, the
Annexation Proceedings cannot be completed by the initial Annexation Deadline of two years following the Agreement Date as specified in Section 2.1 above, then the Annexation Deadline shall be extended for the period of the Litigation Challenge but in no event more than 12 months beyond the initial Annexation Deadline as specified in Section 2.1. If, following the Annexation Date, this Agreement or any of the Existing Approvals are still not Final as a result of a Litigation Challenge (a “Litigation Delay”), then the Initial Term of this Agreement and the time within which each Party shall be required to perform any act under this Agreement shall be extended by the period of time between the Annexation Date and the date on which the Existing Approvals and this Agreement all become Final, subject to an outside date that is 36 months after the Annexation Date, at which point there shall be no further extension of the Term as a result of any Litigation Delay, unless approved by the City Council in its sole, absolute discretion.
Counterparts. 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.
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 writing any 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.
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 permissive; (d) “or” is not EXHIBIT 1
exclusive; (e) “includes” and “including” are not limiting; and (f) “days” means calendar days unless specifically provided otherwise.
Headings. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Agreement.
Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a specific situation, is found 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.
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.
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.
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 City.
Entire Agreement. 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 constitutes the 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.
Estoppel Certificate. 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 modified or, if so amended or modified, identifying the amendments or modifications; and (c) Developer is not in Default of the performance 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 certificate, including the costs expended by the City Attorney’s Office in connection therewith. The Community Development Director shall be authorized to execute any certificate requested by Developer hereunder. The form of estoppel certificate shall be in a form reasonably acceptable to the City Attorney. The Community Development Director shall execute and return such certificate within thirty (30) days following Developer’s request therefor. Developer and City acknowledge that a certificate hereunder may be relied upon by tenants, assignees, 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 EXHIBIT 1
final request. Failure to respond to the second and final request within fifteen (15) days of receipt thereof shall be deemed approval of the matters set forth in the estoppel certificate.
Recordation of Termination. Upon completion of performance of the Parties or termination of this Agreement, a written statement acknowledging such completion or termination shall be recorded by City in the Official Records of San Joaquin County.
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 specifically provided otherwise or the context requires otherwise.
Negation of Partnership. The Parties specifically 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 businesses of Developer, the affairs of the City, or otherwise, or cause them to be considered joint venturers or members of any joint enterprise.
No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the signatory Parties and their successors and assigns, including Mortgagees. No other person shall have any right of action based upon any provision in this Agreement.
Standard for Consents and Approvals. In cases where the written consent or approval of a party is required hereunder and a standard of review and/or timeline for the granting or withholding of such consent or approval is not set forth, such consent or approval shall not be unreasonably withheld, conditioned or delayed.
Governing State Law. This Agreement shall be construed in accordance with the laws of the State of California, without reference to its choice of law provisions.
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: Project Modifications Requested by County
Exhibit C: Form of Assignment and Assumption Agreement
[SIGNATURES ON FOLLOWING PAGE]
EXHIBIT 1
I
N WITNESS WHEREOF, City and Developer have executed this Agreement as of the Effective Date.
CITY:
CITY OF STOCKTON,
a California municipal corporation
By:
[Signature must be notarized]
ATTEST:
By:
Eliza R. Garza, City Clerk
APPROVED AS TO FORM:
By:
John Luebberke, City Attorney
DEVELOPER:
By:
Name:
Its:
By:
Name:
Its:
[Signatures must be notarized]
EXHIBIT 1
EXHIBIT A
[Property Description – To be Inserted]
EXHIBIT 1
EXHIBIT B
[Project Modifications Requested by County – To be Inserted] EXHIBIT 1
EX
HIBIT C
FORM ASSIGNMENT AND
ASSUMPTION AGREEMENT
City of Stockton
425 N. El Dorado St, 1st Floor
Stockton , CA 95202
Attention: City Clerk
Record for the Benefit of
The City of Stockton
Pursuant to Government Code
Section 27383
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)
)
)
)
)
)
)
(Space Above This Line for Recorder’s Use Only)
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“As signment Agreement”) is entered into as of the ____ day of __________, 20__, by and among Greenlaw Development, LLC, a California limited liability company, (“Assignor”), ____________________________, a ___________________ (“Assignee”), and the City of Stockton, a municipal corporation (“City”).
R E C I T A L S
A. Assignor has entered into a Development Agreement with City effective ______________ (
Recorder’s Document No. ________) (“Development Agreement”), to facilitate the development and use of that certain real property consisting of approximately 120 acres within the City of Stockton, County of San Joaquin, State of California, which is legally described in Exhibit A to the Development Agreement and shown on the map attached to the Development Agreement as Exhibit B (“Site”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Development Agreement.
B. Assignor is the fee owner of the Site, designated as APNs _____________, more pa
rticularly described in Attachment 1 attached hereto and incorporated herein (“Property”).
C. Assignor desires to transfer its interest in the Property to Assignee concurrently with execution of this Assignment Agreement and Assignee desires to so acquire such interest in the Property from Assignor.
D. Article 13 of the Development Agreement provides that Assignor may assign its rights and obligations under the Development Agreement to another party, provided that the Assignor shall have provided to City at least thirty (30) days prior written notice and provided that the assignor and the assignee document the assignment in an agreement substantially in the form of this Assignment Agreement.
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E. Assignor has provided the required written notice to City of its intent to enter into an assignment and assumption agreement as required by Section 13.2 of the Development Agreement.
F. Assignor desires to assign to Assignee and Assignee desires to assume all rights and obligations of Assignor under the Development Agreement [or describe portion of rights and obligations assigned in case of partial assignment]. Upon execution of this Assignment Agreement and transfer to Assignee of legal title to the Property, Assignor desires to be released from any and all obligations under the Development Agreement with respect to the Property.
A G R E E M E N T
NOW, THEREFORE, Assignor, Assignee and City hereby agree as follows:
1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to Assignee, and its successors and assigns, all of Assignor’s rights, title and interest and obligations, duties, responsibilities, conditions and restrictions under the Development Agreement with respect to the Property (collectively, “Rights and Obligations”).
2. Acceptance and Assumption by Assignee. Assignee, for itself and its successors and assigns, hereby accepts such assignment and assumes all such Rights and Obligations, whether accruing before or on or after the Assignment Agreement Effective Date (defined in Section 16 below). Assignee agrees, expressly for the benefit of City, to comply with, perform and execute all of the Rights and Obligations of Developer with respect to the Property arising from or under the Development Agreement.
3. Release of Assignor.
Assignee and City hereby fully release Assignor from all Rights and Obligations. Both Assignor and Assignee acknowledge that this Assignment Agreement is intended to fully assign all of Assignor’s Rights and Obligations to Assignee, and it is expressly understood that Assignor shall not retain any Rights and Obligations whatsoever with respect to the Property.
4. Substitution of Assignor. Assignee hereafter shall be substituted for and replace Assignor in the Development Agreement with respect to the Property. Whenever the term “Developer” appears in the Development Agreement with respect to the Property, it shall hereafter mean Assignee.
5. Assignor and Assignee Agreements, Indemnifications and Waivers.
a. Assignee represents and warrants to City as follows:
(i) Assignee is a ____________________ duly formed within and in good standing under the laws of the State of ________________. The copies of the documents evidencing the formation of Assignee, which have been delivered to City, are true and complete copies of the originals, as EXHIBIT 1
amended to the date of this Assignment Agreement. Assignee has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Assignment Agreement by Assignee has been fully authorized by all requisite actions on the part of Assignee.
(ii) Assignee’s execution, delivery and performance of its obligations under this Assignment Agreement will not constitute a default or a breach under any contract, agreement or order to which Assignee is a party or by which it is bound.
(iii) Assignee has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Assignee’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Assignee’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Assignee’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
(iv) As of the Assignment Agreement Effective Date, Assignee will own fee simple title to the Property.
b. Assignor and Assignee hereby acknowledge and agree that the City has not made, and will not make, any representation or warranty that the assignment and assumption of the Development Agreement provided for hereunder will have any particular tax implications for Assignor or Assignee.
c. Assignor and Assignee each hereby waives and releases and each hereby agrees to indemnify and hold City harmless from any and all damages, liabilities, causes of action, claims or potential claims against City (including attorneys’ fees and costs) arising out of this Assignment Agreement.
d. Assignor acknowledges and agrees that the Rights and Obligations with respect to the Property have been fully assigned to Assignee by this Assignment Agreement and, accordingly, that Assignee shall have the exclusive right to assert any claims against City with respect to such Rights and Obligations. Accordingly, without limiting any claims of Assignee under the Development Agreement, Assignor hereby waives any claims or potential claims by Assignor against City to the extent arising solely out of the Rights and Obligations with respect to the Property.
6. Development Agreement in Full Force and Effect . E
xcept as specifically
provided herein with respect to the assignment, all the terms, covenants, conditions and provisions of the Development Agreement are hereby ratified and shall remain in full force and effect.
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7. Recording. Assignor shall cause this Assignment Agreement to be recorded in the Official Records of San Joaquin County, California, and shall promptly provide conformed copies of the recorded Assignment Agreement to Assignee and City.
8. Successors and Assigns. Subject to the restrictions on transfer set forth in the Development Agreement, all of the terms, covenants, conditions and provisions of this Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns, pursuant to Article 13 and Section 15.2 of the Development Agreement.
9. Assignee Address for Notices. T
he address of Assignee for the purpose of
notices, demands and communications under Section 15.3 of the Development Agreement shall be:
_______________________________
_______________________________
_______________________________
_______________________________
Attention: ______________________
Telephone: _____________________
With a copy to: _______________________________
_______________________________
_______________________________
_______________________________
Attention: ______________________
Telephone: _____________________
10. Applicable Law/Venue. This Assignment Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to its choice of law provisions. Any legal actions under this Assignment Agreement shall be brought only in the Superior Court of the County of San Joaquin State of California.
11. Interpretation. All parties have been represented by counsel in the preparation and negotiation of this Assignment Agreement and this Assignment 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 Assignment 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 permissive; (d) “or” is not exclusive; and (e) “includes” and “including” are not limiting.
12. Headings. Section headings in this Assignment Agreement are fo r co nvenience
only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Assignment Agreement.
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13. Severability. Except as otherwise provided herein, if any provision(s) of this Assignment Agreement is (are) held invalid, the remainder of this Assignment Agreement shall not be affected, except as necessarily required by the invalid provisions, and shall remain in full force and effect unless amended or modified by mutual consent of the parties.
14. Count erp
arts. This Assignment Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute an original, but all of which, when taken together, shall constitute one and the same instrument, with the same effect as if all of the parties to this Assignment Agreement had executed the same counterpart.
15. City Consent . C
ity is executing this Assignment Agreement for the limited purpose of consenting to the assignment and assumption and clarifying that there is privity of contract between City, on the one hand, and Assignee on the other, with respect to the Development Agreement.
16. Effective Date. The Effective Date of this Assignment Agreement shall be the date upon which Assignee obtains fee title to or a ground lease for the Property and Assignor delivers evidence of the transfer to City (“Assignment Agreement Effective Date”). For the purposes of this Section, the evidence of transfer shall consist of a duly recorded deed or ground lease, and title report.
[SIG
NATURES FOLLOW ON SEPARATE PAGES]
EXHIBIT 1
IN WITNESS WHEREOF, Assignor, Assignee and City have entered into this Assignment Agreement as of the date first above written.
ASSIGNOR
_____________________________, a
_______________________________
By:
Name:
Its:
[Signature must be notarized]
By:
Name:
Its:
[Signature must be notarized]
ASSIGNEE
___________________________________, a
_______________________________________
By:
Name:
Its:
[Signature must be notarized]
By:
Name:
Its:
[Signature must be notarized]
[SI
GNATURES CONTINUED ON NEXT PAGE]
EXHIBIT 1
CITY
CITY OF STOCKTON, a municipal corporation
By:
_______________________, City Manager
[Signature must be notarized]
ATTEST:
By:
__________________, City Clerk
APPROVED AS TO FORM:
By:
________________, City Attorney
EXHIBIT 1
A
A
EAST MARIPOSA ROAD
CLARK DRIVE
MARFARGOA ROAD NORTH LITTLEJOHNS CREEK
SAN JOAQUIN COUNTY, CALIFORNIA
BY
JOB NO.
SCALE
DATE
MBE / JTQ
A20631-3
APRIL, 2022
SHEET
250 Cherry Lane, Suite 107, 208Manteca, CA 95337 Phone: (209) 328-1123 www.kierwright.com
REQUESTED BY
COUNTY OF SAN JOAQUIN
PROJECT MODIFICATIONS
AS SHOWN
1 OF 2
NORTH
EXHIBIT "B"
EXHIBIT 1
COUNTY OF SAN JOAQUIN
PROJECT MODIFICATIONS REQUESTED BYAS SHOWN
2 OF 2 SAN JOAQUIN COUNTY,CALIFORNIA
BY
JOB NO.
DATE
MBE / JTQ
A20631-1
APRIL, 2022
SHEET
SCALE
250 Cherry Lane, Suite 107, 208
Manteca, CA 95337
Phone: (209) 328-1123
www.kierwright.com
10' TALL LANDSCAPED BERMA
EXHIBIT "B"
···
60' NO TRUCK ZONE
THERE SHALL BE NO TRANSPORT REFRIGERATION UNITS ALLOWED WITHIN THE 60' NO TRUCK ZONE.THE BERM AND WALL DEPICTED ON THIS EXHIBIT B SHALL BE CONSTRUCTED PRIOR TO THE OCCUPANCY OF ANY STRUCTURES ON THE PROJECT SITE.NO TRUCK TRAILER CIRCULATION OR PARKING SHALL BE ALLOWED WITHIN THE 60' NO TRUCK ZONE DEPICTED ON THIS EXHIBIT B.
EXHIBIT 1