HomeMy WebLinkAbout2013-10-23 e-packet
PEOPLE OF SOUTH SAN FRANCISCO
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PEDRO GONZALEZ
Mayor
KARYL MATSUMOTO
Mayor Pro Tem
MARK N. ADDIEGO
Councilman
RICHARD A. GARBARINO
Councilman
PRADEEP GUPTA
Councilman
FRANK RISSO
City Treasurer
KRISTA MARTINELLI
City Clerk
BARRY M. NAGEL
City Manager
STEVEN T. MATTAS
City Attorney
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AGENDA
CITY COUNCIL
CITY OF SOUTH SAN FRANCISCO
REGULAR MEETING
MUNICIPAL SERVICES BUILDING
COUNCIL CHAMBERS
33 ARROYO DRIVE
SOUTH SAN FRANCISCO, CA
WEDNESDAY, OCTOBER 23, 2013
7:00 P.M.
REGULAR CITY COUNCIL MEETING OCTOBER 23, 2013
AGENDA PAGE 2
CALL TO ORDER
ROLL CALL
PLEDGE OF ALLEGIANCE
PRESENTATIONS
Halloween Safety Presentation presented by Deputy Fire Chief Travis Nuckolls.
Update from PG&E Government Relations Representative, Scott Hart.
AGENDA REVIEW
PUBLIC COMMENTS
ITEMS FROM COUNCIL
Announcements.
Committee Reports.
Motion to reappoint Christopher Cairo to the San Mateo County Mosquito and Vector
Control District for a term ending December 31, 2017.
CONSENT CALENDAR
1. Motion to approve the minutes of the meetings of August 5, 2013, August 7, 2013,
August 21, 2013, September 17, 2013 and September 25, 2013.
2. Motion confirming payment registers for October 23, 2013.
3. Resolution amending the Memorandum of Understanding for the Operating Engineers
and adoption of salary schedules.
4. Resolution authorizing the acceptance of $40,000 in grant funding from the Silicon
Valley Community Foundation to support Project Read’s Financial Well-being program
and amending the Library Department’s 2013/2014 operating budget.
5. Resolution approving a Funding Agreement with the San Mateo County Transit District
for preparation of a Project Study Report/Project Development Study for the Grand
Boulevard Initiative Complete Streets Project.
6. Resolution approving the submittal of an application for the State’s 2013 “Urban
Greening Program Grant” to fund new street trees, rain gardens and median landscaping
along El Camino Real between Arroyo Drive and Kaiser Way.
7. Resolution approving the submittal of the Grand Boulevard Initiative Complete Streets
Project application.
REGULAR CITY COUNCIL MEETING OCTOBER 23, 2013
AGENDA PAGE 3
ADMINISTRATIVE BUSINESS
8. “Centennial Village” Safeway Shopping Center
Shamain Partnership/Owner
WT Mitchell Group, Inc, /Applicant
180 El Camino Real (APN014-183-110)
P11-0065: UP11-0006, DR11-0019, TDM13-0001, ND12-0004 and DA13-0002
Resolutions recommending that the City Council adopt the Initial Study and Mitigated
Negative Declaration (ND12-0004) and Approve Planning Project P11-0065:UP11-0006,
DR11-0019, TDM13-0001 and DA13-0002 in accordance with the SSFMC Chapters 19,
20.090,20.300, 20.330, 20.350, 20.400, 20.440, 20.450, 20.460, 20.480 & 20.490.
9. Resolution approving a Community Development Block Grant (“CDBG”) loan
agreement between the City of South San Francisco and Mid Peninsula Housing for the
rehabilitation of the Sundial Apartments.
10. Resolution Amending the 2013-14 Fire Department Operating Budget to fund consulting
services needed to comply with Federal Ground Emergency Medical Transport (GEMT)
Reporting Requirements and approving a contract with NBS.
11. Resolution amending the FY 2013-14 Capital Improvement Program by appropriating an
additional $550,000 from PG&E On-Bill Financing and $346,000 from general fund
reserves for the HVAC Replacement at Various City Buildings project number pf1408;
and authorize the City Manager to execute agreements with PG&E for the participation in
0% interest On-Bill Financing program.
12. Approval of contract for recruitment services for the position of City Manager. (Firm to
be identified following completion of interviews at October 23rd special City Council
meeting.)
13. Approval of Amendment No. 17 to contract between the City of South San Francisco and
Meyers Nave pursuant to which Steve Mattas will provide Interim City Manager and
Successor Agency Executive Director Services and Jason Rosenberg will provide Interim
City Attorney Services and Robin Donoghue will provide Interim Successor Agency
General Counsel services effective November 2, 2013.
14. Closed Session: Conference with Labor Negotiators
(Pursuant to Government Code Section 54957.6)
Agency Designated Representative: Barry Nagel
Unrepresented Employees: Interim City Manager and Interim Assistant City Manager
COMMUNITY FORUM
ADJOURNMENT
Staff Report
DATE: October 23, 2013
TO: Honorable Mayor and City Council
FROM: Marty Van Duyn, Assistant City Manager
SUBJECT: CENTENNIAL VILLAGE – USE PERMIT, DESIGN REVIEW,
TRANSPORTATION DEMAND MANAGEMENT PLAN, DEVELOPMENT
AGREEMENT AND MITIGATED NEGATIVE DECLARATION FOR A
PHASED DEVELOPMENT TO CONSTRUCT A MIXED-USE PROJECT
INCLUDING APPROXIMATELY 222,000 SQUARE FEET OF
COMMERCIAL SPACE AND 284 RESIDENTIAL UNITS ON A 14.5 ACRE
SITE LOCATED AT 180 EL CAMINO REAL IN THE EL CAMINO REAL
MIXED USE (ECRMX) ZONING DISTRICT IN ACCORDANCE WITH
SSFMC CHAPTERS 19.60, 20.090, 20.300, 20.330, 20.350, 20.400, 20.440,
20.450, 20.460, 20.480 & 20.490.
Address: 180 El Camino Real (APN 014-183-110)
Owner: Shamain Partnership
Applicant: El Camino and Spruce LLC
Case No.: P11-0065: UP11-0006, DR11-0019, TDM13-0001, DA13-0002 &
ND12-0004
RECOMMENDATION
It is recommended that the City Council follow the recommendation of the Planning
Commission and take the following actions:
1. Adopt a Resolution making findings and adopting Mitigated Negative Declaration
ND12-0004; and
2. Adopt a Resolution making findings and approving Planning Project P11-0065,
including Use Permit UP11-0006, Design Review DR11-0019, and Transportation
Demand Management Plan TDM13-0001 based on the attached draft findings and
subject to the attached draft conditions of approval; and
3. Waive reading and introduce an Ordinance approving Development Agreement
DA13-0002.
BACKGROUND / DISCUSSION
September 11th and September 25th Staff Reports and Discussion
The September 11, 2013 and September 25, 2013 City Council Staff Reports (without
attachments) are attached for background on the project. At the September 25th meeting, Council
Staff Report
Subject: 180 El Camino Real - Mixed Use Development
Date: October 23, 2013
Page 3 of 3
3. Draft Ordinance
Exhibit A: Development Agreement
4. City Council Staff Reports – September 11, 2013 and September 25, 2013 (without
attachments)
BMN/MVD/SK/GB/bg
Attachment 1
Draft CEQA Resolution
RESOLUTION NO._________
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO
STATE OF CALIFORNIA
A RESOLUTION MAKING FINDINGS AND ADOPTING
THE INITIAL STUDY AND MITIGATED NEGATIVE
DECLARATION FOR THE DEVELOPMENT OF A 14.5
ACRE SITE FOR THE CENTENNIAL VILLAGE AT 180
EL CAMINO REAL PROJECT IN THE EL CAMINO
REAL MIXED USE ZONING DISTRICT
WHEREAS, El Camino and Spruce LLC, a Nevada limited liability company
(“Applicant”), has submitted an application for a mixed-use project on an approximately 14.5
acre site located at 180 El Camino Real, which consists of approximately 220,000 square feet of
commercial/retail space and up to 284 residential rental units (“Project”); and
WHEREAS, approval of Applicant’s proposal is considered a “Project” as that term is
defined under the California Environmental Quality Act, Public Resources Code Sections 21000,
et seq. (“CEQA”); and
WHEREAS, in accordance with CEQA, an initial study was performed, the result of
which was preparation and circulation of a mitigated negative declaration (“IS/MND”) analyzing
the proposed Project and concluding that approval of the Project could not have a significant
effect on the environment because the impacts of the Project could all be mitigated to levels
below established CEQA thresholds of significance with the adoption of mitigation measures and
enforcement of such measures through a Mitigation Monitoring and Reporting Program
(“MMRP”); and,
WHEREAS, the IS/MND was provided to the State Clearinghouse and circulated for a
30-day public review period, beginning on April 12, 2013, during which time members of the
public were invited to comment on the environmental analysis and conclusions for the proposed
Project; and
WHEREAS, six comment letters were submitted on the IS/MND, from the San Mateo
County Health System, San Francisco International Airport, County of San Mateo Department of
Public Works, C/CAG, the California Department of Transportation and the City of San Bruno;
and
WHEREAS, the City prepared written responses to comments received on the IS/MND
and prepared a Final MND for circulation, which consists of the IS/MND (incorporated by
reference), all comments received on the IS/MND, written responses to comments received on
the IS/MND, revisions to the IS/MND where appropriate, and a Mitigation Monitoring and
Reporting Program (“MMRP”); and
WHEREAS, the Planning Commission held a duly noticed public hearing on August 15,
2012, to consider the IS/MND, the proposed Use Permit, Design Review, Transportation
Demand Management Plan and Development Agreement for the Project and take public
testimony, at the conclusion of which, the Planning Commission recommended that the City
Council adopt the IS/MND and approve the Project; and
WHEREAS, the City Council held a duly noticed public hearing on September 11, 2013
which was continued to September 25, 2013 and to October 23, 2013, to consider the IS/MND,
the Use Permit, Design Review, Transportation Demand Management Plan and Development
Agreement and take public testimony; and
WHEREAS, the City Council has reviewed and carefully considered the information in
the IS/MND, including all comment letters submitted, and makes the findings contained in this
Resolution, and adopts the IS/MND, as an objective and accurate document that reflects the
independent judgment and analysis of the City in the discussion of the Project’s environmental
impacts.
NOW, THEREFORE, BE IT RESOLVED that based on the entirety of the record before
it, which includes without limitation, the California Environmental Quality Act, Public
Resources Code §21000, et seq. (“CEQA”) and the CEQA Guidelines, 14 California Code of
Regulations §15000, et seq.; the South San Francisco General Plan, General Plan EIR and South
El Camino Real General Plan Amendment EIR; the South San Francisco Municipal Code; the
Project application; the Centennial Village Project Plans, as prepared by Johnson Lyman
Architects, dated August 1, 2013; the Preliminary Transportation Demand Management Plan, as
prepared by TJKM Transportation Consultants, dated July 9, 2013; the 180 El Camino Real
IS/MND, including the Draft and Final IS/MND, the MMRP and all appendices thereto; all site
plans, and all reports, minutes, and public testimony submitted as part of the Planning
Commission’s meeting held on August 15, 2013 meeting, and Planning Commission
deliberations; all reports, minutes, and public testimony submitted as part of the City Council’s
duly noticed public hearing on September 11, 2013 which was continued to September 25, 2013
and to October 23, 2013, and City Council deliberations; and any other evidence (within the
meaning of Public Resources Code §21080(e) and §21082.2), the City Council of the City of
South San Francisco hereby finds as follows:
1. The foregoing Recitals are true and correct and made a part of this Resolution.
2. The exhibits and attachments, including the Initial Study/Mitigated Negative Declaration
(attached as Exhibit A) and the Mitigation Monitoring and Reporting Program, included with the
Final IS/MND (attached as Exhibit B) are each incorporated by reference and made a part of this
Resolution, as if set forth fully herein.
3. The documents and other material constituting the record for these proceedings are
located at the Planning Division for the City of South San Francisco, 315 Maple Avenue, South
San Francisco, CA 94080, and in the custody of Chief Planner, Susy Kalkin.
4. The proposed Project is consistent with the City of South San Francisco General Plan
because the land use, development standards, densities and intensities, buildings and structures
proposed are compatible with the goals, policies, and land use designations established in the
General Plan (see Gov’t Code, § 65860), and none of the land uses, development standards,
densities and intensities, buildings and structures will operate to conflict with or impede
achievement of the any of the goals, policies, or land use designations established in the General
Plan.
5. In accordance with CEQA, the City Council has considered the Initial Study and
Mitigated Negative Declaration for the Project, and based on the entirety of the record, as
described above, the City Council, exercising its independent judgment and analysis, makes the
following findings regarding the environmental analysis of the Project:
a. In October 1999, the City Council certified an Environmental Impact Report for
the General Plan; in 2001 the City Council certified a Supplemental Environmental Impact
Report for updates to the General Plan. In 2010, the City Council certified an Environmental
Impact Report for the South El Camino Real General Plan and Zoning Amendments. CEQA
allows for streamlined approval of actions that are consistent with adopted General Plans for
which an EIR was certified. (Pub. Resources Code, § 21083; CEQA Guidelines, §§
15152, 15183.) An initial study was prepared for the proposed Project and a mitigated negative
declaration analyzed the potential for impacts that were peculiar to the Project or not analyzed as
significant impacts in the General Plan EIR, Supplemental EIR, or South El Camino Real EIR.
The IS/MND, which expressly considers the City’s previous EIRs, concludes that approval of the
Project will not result in any significant environmental impacts.
b. Design features of the Project, as well as the mitigation measures proposed in the
IS/MND and included in the MMRP, will operate to ensure the impacts of the proposed Project
will not exceed established CEQA thresholds of significance. Therefore, and as further
documented in the IS/MND for the Project, additional mitigation measures beyond those
established in the MMRP are not required for the Project.
c. For the reasons stated in this Resolution, the City Council finds that there is no
substantial evidence in the record supporting a fair argument that approval of the Project will
result in a significant environmental effect.
BE IT FURTHER RESOLVED that the City Council of the City of South San Francisco
hereby makes the findings contained in this Resolution, and adopts the IS/MND (ND12-0004)
for this Project, attached as Exhibit A, and adopts the Mitigation Monitoring and Reporting
Program, attached as Exhibit B.
BE IT FURTHER RESOLVED that the Resolution shall become effective immediately
upon its passage and adoption.
* * * * * * *
I hereby certify that the foregoing resolution was adopted by the City Council of the City of
South San Francisco at a regular meeting held on the 23rd day of October, 2013 by the following
vote:
AYES:________________________________________________________________
NOES:________________________________________________________________
ABSTENTIONS:________________________________________________________
ABSENT:______________________________________________________________
Attest:__________________________________
City Clerk
Exhibits:
Exhibit A: Initial Study and Mitigated Negative Declaration: as attached to the draft resolution
provided with the September 11, 2013 City Council Packet
Exhibit B: Final Mitigated Negative Declaration/ Mitigation Monitoring and Reporting Program:
as attached to the draft resolution provided with the September 11, 2013 City Council
Packet
2134233.1
Attachment 2
Draft Entitlements Resolution
RESOLUTION NO._________
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO
STATE OF CALIFORNIA
A RESOLUTION APPROVING A USE PERMIT,
DESIGN REVIEW, TRANSPORTATION DEMAND
MANAGEMENT PLAN, FOR THE DEVELOPMENT
OF A 14.5 ACRE SITE FOR THE CENTENNIAL
VILLAGE AT 180 EL CAMINO REAL PROJECT IN
THE EL CAMINO REAL MIXED USE ZONING
DISTRICT
WHEREAS, El Camino and Spruce LLC, a Nevada limited liability company
(“Applicant”), has submitted an application for a mixed-use project on an approximately 14.5
acre site located at 180 El Camino Real, which consists of approximately 220,000 square feet of
commercial/retail space and up to 284 residential rental units (“Project”); and,
WHEREAS, Applicant seeks approval of a Use Permit, Design Review, Transportation
Demand Management Plan, and Development Agreement; and,
WHEREAS, Applicant has stated to the City Council their intention to work with
appropriate stakeholders to solicit as many contractors that are parties to collective bargaining
agreements as feasible to bid on Project work which they control, to include in bid documents
provisions expressly encouraging bidders to commit to (a) hiring workers who live in or near
South San Francisco, and (b) using subcontractors that are located in or near South San
Francisco; and,
WHEREAS, approval of the Applicant’s proposal is considered a “project” for purposes
of the California Environmental Quality Act, Pub. Resources Code § 21000, et seq. (“CEQA”);
and,
WHEREAS, the City Council reviewed and carefully considered the information in the
Initial Study/Mitigated Negative Declaration (“IS/MND”), and by separate resolution, adopts the
IS/MND, as an objective and accurate document that reflects the independent judgment and
analysis of the City in the discussion of the Project’s environmental impacts; and,
WHEREAS, the Planning Commission for the City of South San Francisco held a
lawfully noticed public hearing on August 15, 2013 to solicit public comment and consider the
IS/MND and the proposed entitlements and take public testimony, at the conclusion of which,
the Planning Commission recommended that the City Council adopt the IS/MND and approve
the Project; and,
WHEREAS, the City Council held a duly noticed public hearing on September 11, 2013
which was continued to September 25, 2013 and to October 23, 2013, to consider the IS/MND,
the Use Permit, Design Review, Transportation Demand Management Plan, and Development
Agreement and take public testimony.
NOW, THEREFORE, BE IT RESOLVED that based on the entirety of the record before
it, which includes without limitation, the California Environmental Quality Act, Public
Resources Code §21000, et seq. (“CEQA”) and the CEQA Guidelines, 14 California Code of
Regulations §15000, et seq.; the South San Francisco General Plan, General Plan EIR and South
El Camino Real General Plan Amendment EIR; the South San Francisco Municipal Code; the
Project applications; the Centennial Village Project Plans, as prepared by Johnson Lyman
Architects, dated August 1, 2013; the Preliminary Transportation Demand Management Plan, as
prepared by TJKM Transportation Consultants, dated July 9, 2013; the 180 El Camino Real
IS/MND, including the Draft and Final MND and all appendices thereto; all site plans, and all
reports, minutes, and public testimony submitted as part of the Planning Commission’s meeting
held on August 15, 2013, and Planning Commission deliberations; all reports, minutes, and
public testimony submitted as part of the City Council’s duly noticed public hearing on
September 11, 2013 which was continued to September 25, 2013 and to October 23, 2013, and
City Council deliberations; and any other evidence (within the meaning of Public Resources
Code §21080(e) and §21082.2), the City Council of the City of South San Francisco hereby finds
as follows:
A. General Findings
1. The foregoing recitals are true and correct and made a part of this Resolution.
2. The Exhibits attached to this Resolution, including the Conditions of Project
Approval (Exhibit A), the Preliminary Transportation Demand Management (TDM) Plan
(attached as Exhibit B), and the Centennial Village Project Plans (attached as Exhibit C) are each
incorporated by reference and made a part of this Resolution, as if set forth fully herein.
3. The documents and other material constituting the record for these proceedings
are located at the Planning Division for the City of South San Francisco, 315 Maple Avenue,
South San Francisco, CA 94080, and in the custody of Chief Planner, Susy Kalkin.
4. By Resolution No. ________, the City Council, exercising its independent
judgment and analysis, finds that an IS/MND was prepared for the Project in accordance with
CEQA, which IS/MND adequately discloses and analyzes the proposed Project’s potentially
significant environmental impacts. For those impacts that could potentially exceed CEQA
thresholds of significance, the City has identified and imposed mitigation measures that avoid or
reduce the impact to a level of less-than-significant.
B. Use Permit
1. The proposed Project is consistent with the standards and requirements of the
City’s Zoning Ordinance and with the provisions of the El Camino Real Mixed Use Zone
District. The Project meets or exceeds all of the general development standards of the El
Camino Real Mixed Use Zone District, with the exception of the minimum El Camino Real
setback, building length and separation, required commercial frontage, depth of required
commercial frontage, and the maximum length of street frontage walls without an opening. The
stated exceptions are permissible and warranted by the City’s Zoning Ordinance.
2. The proposed Project is consistent with the General Plan by creating a mixed-use
environment that emphasizes pedestrian-activity with buildings built up to the sidewalk along El
Camino Real and South Spruce Ave, provides a well-articulated and visually engaging
development that implements the goals of the Grand Boulevard Initiative and the El Camino
Real Master Plan and locates parking in a way that is not visually dominant, is consistent with
the City’s Design Guidelines as they relate to building design, form and articulation and provides
commercial uses along both El Camino Real and South Spruce Avenue.
3. The proposed use will not be adverse to the public health, safety, or general
welfare of the community, nor detrimental to surrounding properties or improvements, because
the proposed use is consistent with the existing uses in the vicinity of the site, including the
commercial and residential. The project proposes mixed-use Commercial and Residential uses
on a site located in the City’s El Camino Real corridor, which is intended for this type of use.
The General Plan has analyzed this type of use in the South El Camino Real corridor, and
concluded that mixed-use commercial and residential uses are not adverse to the public health,
safety, or welfare. As the proposed Project is consistent with surrounding land uses, approval of
the Project will not be detrimental to the nearby properties.
4. The proposed Project complies with applicable standards and requirements of the
City’s Zoning Ordinance, with the exception of the minimum El Camino Real setback, building
length and separation, required commercial frontage, depth of required commercial frontage, and
the maximum length of street frontage walls without an opening. The stated exceptions are
permissible and warranted by the City’s Zoning Ordinance. The proposed Project is located in
the El Camino Real Mixed Use District and, subject to the exceptions discussed above in Section
B.1, which are permissible and warranted by the City’s Zoning Ordinance, meets the minimum
standards and requirements for that district.
5. The design, location, size, and operating characteristics of the proposed Project
are compatible with the existing and reasonably foreseeable future land uses in the vicinity
because the Project proposes commercial and residential uses in the El Camino Real corridor,
which is specifically intended for such uses.
6. The site is physically suitable for the type of development and density proposed,
as the mixed-use commercial and residential uses will benefit from being located in the El
Camino Real corridor, and the size and development is appropriate for the location and meets the
City’s land use and zoning standards.
7. The Project is consistent with CEQA for the reasons stated in Finding A.4 above.
C. Design Review
1. The Project, including Design Review, is consistent with Title 20 of the South
San Francisco Municipal Code because the Project has been designed as a mixed-use
commercial and residential campus which will provide a pedestrian-friendly environment with
extensive landscaping and sustainability elements incorporated.
2. The Project, including Design Review, is consistent with the General Plan
because the proposed mixed-use development is consistent with the policies and design direction
provided in the South San Francisco General Plan for the El Camino Real Mixed Use land use
designation by encouraging the development of a mixed-use environment that emphasizes
pedestrian-activity in the El Camino Real corridor.
3. The Project, including Design Review, is consistent with the applicable design
guidelines adopted by the City Council in that the proposed Project is consistent with the El
Camino Real Mixed Use District Standards included in Chapter 20.090.
4. The Project is consistent with the Use Permit, as proposed for modification, for
the reasons stated in Section B, above.
5. The Project is consistent with the applicable design review criteria in Section
20.480.006 (“Design Review Criteria”) because the project has been evaluated by the Design
Review Board on April 7, 2013, February 19, 2013, March 9, 2013 and August 1, 2013, and
found to be consistent with, each of the eight design review criteria included in the “Design
Review Criteria” section of the Ordinance, and the Design Review Board.
D. Transportation Demand Management (TDM) Plan
1. The proposed trip reduction measures contained in the TDM (attached hereto as
Exhibit B) are feasible and appropriate for the Project, considering the proposed use or mix of
uses and the project’s location, size, and hours of operation. Appropriate and feasible measures
have been included in the TDM plan to achieve a projected 28% alternative mode usage, as
required. The TDM provides incentives for employees to use modes of transportation other than
single-occupancy vehicle trips, such as secure bicycle storage, shower facilities, preferential
parking for carpools and vanpools, and an employee TDM contact, among others. Further,
pedestrian walkways linking the Project to adjacent BART and bus stops will help encourage
alternative forms of transportation.
2. The proposed performance guarantees will ensure that the target 28% alternative
mode use established for the Project by Chapter 20.210 will be achieved and maintained.
Conditions of approval have been included to require that the Final TDM Plan, which must be
submitted for review and approval prior to issuance of a building permit, shall outline the
required process for on-going monitoring including annual surveys.
NOW, THEREFORE, BE IT FURTHER RESOLVED that subject to the Conditions of
Approval, attached as Exhibit A to this Resolution, the City Council of the City of South San
Francisco hereby makes the findings contained in this Resolution and approves a Use Permit
(UP11-0006), Design Review (DR11-0019) and Transportation Demand Management Plan
(TDM13-0001) for the Project.
BE IT FURTHER RESOLVED that the conditional approvals herein are conditioned
upon the approval and execution of the Development Agreement for the Centennial Village 180
El Camino Real Project.
BE IT FURTHER RESOLVED that this Resolution shall become effective immediately
upon its passage and adoption.
* * * * * * *
I hereby certify that the foregoing resolution was adopted by the City Council of the City of
South San Francisco at the regular meeting held on the 23rd day of October, 2013 by the
following vote:
AYES:________________________________________________________________
NOES:________________________________________________________________
ABSTENTIONS:________________________________________________________
ABSENT:______________________________________________________________
Attest:__________________________________
City Clerk
Exhibits:
Exhibit A: Conditions of Approval: as attached to the draft resolution provided with the
September 11, 2013 City Council Packet
Exhibit B: Preliminary Transportation Demand Management Plan: as attached to the draft
resolution provided with the September 11, 2013 City Council Packet
Exhibit C: Centennial Village Project Plans: as attached to the draft resolution provided with the
September 11, 2013 City Council Packet
2134234.1
Attachment 3
Draft Ordinance – Development Agreement
ORDINANCE NO. ________
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO
STATE OF CALIFORNIA
AN ORDINANCE ADOPTING A DEVELOPMENT
AGREEMENT FOR THE PHASED DEVELOPMENT OF A
MIXED-USE PROJECT INCLUDING APPROXIMATELY
222,000 SQUARE FEET OF COMMERCIAL SPACE AND 284
RESIDENTIAL UNITS ON A 14.5 ACRE SITE LOCATED AT
180 EL CAMINO REAL IN THE EL CAMINO REAL MIXED
USE (ECRMX) ZONING DISTRICT
WHEREAS, El Camino and Spruce LLC (“Applicant”) has submitted an application for
a mixed-use project on an approximately 14.5 acre site located at 180 El Camino Real, which
consists of approximately 220,000 square feet of commercial/retail space and up to 284
residential rental units (“Project”); and,
WHEREAS, Applicant seeks approval of a Use Permit, Design Review, Transportation
Demand Management Plan, and Development Agreement; and,
WHEREAS, as part of its application, the Applicant has sought approval of a
Development Agreement, which would clarify and obligate several project features and
mitigation measures, including payment of existing fees (such as the Sewer Capacity Fee,
General Plan Maintenance Fee, Childcare Impact Fee, and Public Safety Impact Fee), and certain
future fees (including a Park-in-Lieu Fee); and
WHEREAS, approval of the Applicant’s proposal is considered a “project” for purposes
of the California Environmental Quality Act, Pub. Resources Code, §§ 21000, et seq. (“CEQA”);
and,
WHEREAS, by separate Resolution, the City Council adopted an Initial Study/Mitigated
Negative Declaration (“IS/MND”) on October 23, 2013 in accordance with the provisions of
CEQA and the CEQA Guidelines, which analyzed the potential environmental impacts of the
Project; and,
WHEREAS, the Planning Commission for the City of South San Francisco held a
lawfully noticed public hearing on August 15, 2013 to solicit public comment and consider the
IS/MND and the proposed entitlements and take public testimony, at the conclusion of which,
the Planning Commission recommended that the City Council adopt the IS/MND, approve
the entitlements and recommended that the City Council approve Development Agreement; and,
WHEREAS, the City Council held a duly noticed public hearing on September 11, 2013
which was continued to September 25, 2013 and to October 23, 2013, to consider the Project
entitlements and Development Agreement, and take public testimony.
NOW, THEREFORE, the City Council of the City of South San Francisco does hereby
ordain as follows:
SECTION 1. Findings.
That based on the entirety of the record before it, which includes without limitation, the
California Environmental Quality Act, Public Resources Code §21000, et seq. (“CEQA”) and the
CEQA Guidelines, 14 California Code of Regulations §15000, et seq.; the South San Francisco
General Plan, General Plan EIR and South El Camino Real General Plan Amendment EIR; the
South San Francisco Municipal Code; the Project applications; the Centennial Village Project
Plans, as prepared by Johnson Lyman Architects, dated August 1, 2013; the Preliminary
Transportation Demand Management Plan, as prepared by TJKM Transportation Consultants,
dated July 9, 2013; the 180 El Camino Real IS/MND, including the Draft and Final MND and all
appendices thereto; all site plans, and all reports, minutes, and public testimony submitted as part
of the Planning Commission’s meeting held on August 15, 2013; all reports, minutes, and public
testimony submitted as part of the City Council’s duly noticed public hearing on September 11,
2013 which was continued to September 25, 2013 and to October 23, 2013; and any other
evidence (within the meaning of Public Resources Code §21080(e) and §21082.2), the City
Council of the City of South San Francisco hereby finds as follows:
A. The foregoing Recitals are true and correct and made a part of this Ordinance.
B. The proposed Development Agreement (attached as Exhibit A), is incorporated
by reference and made a part of this Ordinance, as if set forth fully herein.
C. The documents and other material constituting the record for these proceedings
are located at the Planning Division for the City of South San Francisco, 315 Maple Avenue,
South San Francisco, CA 94080, and in the custody of Chief Planner, Susy Kalkin.
D. The proposed Project is consistent with the General Plan by creating a mixed-use
environment that emphasizes pedestrian-activity with buildings built up to the sidewalk along El
Camino Real and South Spruce Avenue. Further, the Project provides a well-articulated and
visually engaging development that implements the goals of the Grand Boulevard Initiative and
El Camino Real Master Plan and locates parking in a way that is not visually dominant, is
consistent with the City’s Design Guidelines as they relate to building design, form and
articulation and provides commercial uses along both El Camino Real and South Spruce Avenue.
Further, the land uses, development standards, densities and intensities, buildings and structures
proposed are compatible with the goals, policies, and land use designations established in the
General Plan (see Gov’t Code, § 65860), and none of the land uses, development standards,
densities and intensities, buildings and structures will operate to conflict with or impede
achievement of the any of the goals, policies, or land use designations established in the General
Plan.
Specifically, the General Plan includes policies and programs that are designed to
redevelop low-intensity commercial uses to pedestrian-oriented high intensity mixed use
development, encourage concentrated higher-intensity activity on highly visible locations,
promote visually intricate development, provide space for enhanced pedestrian connections,
require development to be oriented to El Camino Real, and provide housing at specified densities
in keeping with the Housing Element.
E. The City Council has independently reviewed the proposed Development
Agreement, the General Plan, the South San Francisco Municipal Code, and applicable state and
federal law, including Government Code section 65864, et seq., and has determined that the
proposed Development Agreement complies with all applicable zoning, subdivision, and
building regulations and with the General Plan. This finding is based upon all evidence in the
Record as a whole, including, but not limited to: the City Council’s independent review of these
documents, oral and written evidence submitted at the public hearings on the Project, including
advice and recommendations from City staff.
F. The proposed Development Agreement for the Project states its specific duration.
This finding is based upon all evidence in the Record as a whole, including, but not limited to:
the City Council’s independent review of the proposed Development Agreement and its
determination that Section 2 of the Development Agreement states that the Development
Agreement shall expire twenty (20) years from the effective date of this Ordinance.
G. The proposed Development Agreement incorporates the permitted uses, density
and intensity of use for the property subject thereto, as reflected in the proposed Project (P11-
0065), Use Permit (UP11-0006), Design Review (DR11-0019), Transportation Demand
Management Plan (TDM13-0001) and Development Agreement (DA13-0002). This finding is
based upon all evidence in the Record as a whole, including, but not limited to, the City
Council’s independent review of the proposed Development Agreement and its determination
that the Development Agreement sets forth the Project approvals, development standards, and
the documents constituting the Project.
H. The proposed Development Agreement states the maximum permitted height and
size of proposed buildings on the property subject thereto. This finding is based upon all
evidence in the Record as a whole, including, but not limited to, the City Council’s independent
review of the proposed Development Agreement and its determination that the Development
Agreement sets forth the documents which state the maximum permitted height and size of
buildings.
I. The proposed Development Agreement states specific provisions for reservation
or dedication of land for public purposes. This finding is based on all evidence in the Record as a
whole, including, but not limited to the City Council’s independent review of the Development
Agreement.
SECTION 2. Approval of Development Agreement.
A. The City Council of the City of South San Francisco hereby approves the
Development Agreement with El Camino and Spruce, LLC, attached hereto as Exhibit A and
incorporated herein by reference.
B. The City Council further authorizes the City Manager to execute the Development
Agreement, on behalf of the City, in substantially the form attached as Exhibit A, and to make
revisions to such Agreement, subject to the approval of the City Attorney, which do not
materially or substantially increase the City’s obligations thereunder.
SECTION 3. Severability.
If any provision of this Ordinance or the application thereof to any person or
circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the
application of such part or provision to other persons or circumstances shall not be affected
thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are
severable. The City Council of the City of South San Francisco hereby declares that it would
have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof
irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs,
sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
SECTION 4. Publication and Effective Date.
Pursuant to the provisions of Government Code Section 36933, a summary of this
Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council
meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the
Summary, and (2) post in the City Clerk’s Office a certified copy of this Ordinance. Within
fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the
summary, and (2) post in the City Clerk’s Office a certified copy of the full text of this
Ordinance along with the names of those City Council members voting for and against this
Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and
after its adoption.
* * * * * *
Introduced at a regular meeting of the City Council of the City of South San Francisco, held the
23rd day of October, 2013.
Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City
Council held the _____ day of _________, 2013, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
City Clerk
As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this
_____ day of ____________, 2013.
Mayor
Exhibit A
Development Agreement
(Redline of the September 11, 2013 version)
2134171.1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
______________________________________________________________________________
(Space Above This Line Reserved For Recorder’s Use)
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO
AND
EL CAMINO AND SPRUCE LLC
CENTENNIAL VILLAGE
180 EL CAMINO REAL
SOUTH SAN FRANCISCO, CALIFORNIA
1
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this “Agreement”) is entered into as of
________, 2013 by and between El Camino and Spruce LLC, a Nevada limited liability
company (“Developer”), and the City of South San Francisco (“City”), pursuant to
California Government Code § 65864 et seq.
A. To strengthen the public planning process, encourage private participation
in comprehensive planning and reduce the economic risk of development, the Legislature
of the State of California enacted California Government Code § 65864 et seq. (the
“Development Agreement Statute”), which authorizes City to enter into an agreement
with any person having a legal or equitable interest in real property regarding the
development of such property.
B. Pursuant to California Government Code § 65865, City has adopted
procedures and requirements for the consideration of development agreements (South
San Francisco Municipal Code (SSFMC) Chapter 19.60). This Development Agreement
has been processed, considered and executed in accordance with such procedures and
requirements.
C. Developer has a legal and/or equitable interest in certain real property
located at the southern boundary of the City of South San Francisco, west of US 101 at
180 El Camino Real and in the southern part of the South El Camino Real GPA planning
area, consisting of a 14.5-acre corner lot with frontages on El Camino Real and South
Spruce Avenue and as more particularly described and depicted in Exhibit A (the
“Project Site”) .
D. The proposed Project (the “Project”) consists of removal of existing
buildings and construction at full buildout of six new ones: Buildings A, B, C, D, and
Major Tenant 3 (CVS), and a mixed-use building containing ground-floor commercial
with parking and residential uses above. Buildings A, B, C, D, and Major Tenant 3
(CVS) consist of two stories (up to 40 feet in height) and the mixed-use buildings consist
of five stories (up to approximately 70 feet in height with one tower component at 90 feet
in height above Safeway). The proposed commercial component is approximately
222,500 square feet. The proposed residential component comprises a mix of one and two
bedroom units totaling 284 units. A total of 1,392 parking spaces will provide parking
for the retail and residential components of the project. Ground level parking will provide
580 spaces and a parking structure will provide 812 spaces. The residential parking ratio
is 1.5 spaces per 1-bedroom units and 1.8 spaces per 2-bedroom units while the
commercial parking ratio is four spaces per 1,000 square feet. Additionally, 128 bicycle
parking spaces will be provided throughout the project area.
E. Development of the Project requires that the Developer obtain from the
City the following land use entitlements: Use Permit; Development Agreement; Design
Standard Exceptions; Design Review; Transportation Demand Management Plan. Each
of these has been approved. It also requires that Caltrans approve the proposed left turn
on WB El Camino Real onto the south driveway. The approvals and development
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policies described in this Recital E are collectively referred to herein as the “Project
Approvals.” Existing land use entitlements and approvals for the Project Site are shown
in Exhibit B.
F. City has determined that the Project presents certain public benefits and
opportunities which are advanced by City and Developer entering into this Agreement.
This Agreement will, among other things, (1) reduce uncertainties in planning and
provide for the orderly development of the Project; (2) provide greatly needed
commercial and residential development along the El Camino Real corridor; (3) mitigate
any significant environmental impacts; (4) provide for and generate substantial revenues
for the City in the form of one time and annual fees and exactions and other fiscal
benefits; and (5) otherwise achieve the goals and purposes for which the Development
Agreement Statute was enacted.
G. In exchange for the benefits to City described in the preceding Recital,
together with the other public benefits that will result from the development of the
Project, Developer will receive by this Agreement assurance that it may proceed with the
Project in accordance with the “Applicable Law” (defined below), and therefore desires
to enter into this Agreement.
H. On ________________,2013, following a duly noticed public hearing, the
Planning Commission adopted Resolution No. [___], recommending that the City
Council approve this Agreement.
I. The City Council, after conducting a duly noticed public hearing, has
found that this Agreement is consistent with the General Plan and Zoning Ordinance and
has conducted all necessary proceedings in accordance with the City’s rules and
regulations for the approval of this Agreement. In accordance with SSFMC section
19.60.120 the City Council at a duly noticed public hearing adopted Ordinance No. [___],
approving and authorizing the execution of this Agreement.
AGREEMENT
NOW, THEREFORE, the Parties, pursuant to the authority contained in Government
Code Sections 65864 through 65869.5 and Chapter 19.60 of the Municipal Code and in
consideration of the mutual covenants and agreements contained herein, agree as follows:
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ARTICLE 1. DEFINITIONS [terms to be reviewed/added/deleted prior to finalizing
DA]
“Administrative Project Amendment” shall have that meaning set forth in
Section 7.01 of this Agreement.
“Administrative Agreement Amendment” shall have that meaning set forth in
Section 7.02 of this Agreement.
“Agreement” shall mean this Development Agreement.
“Applicable Law” shall have that meaning set forth in Section 6.03 of this
Agreement.
“City Law” shall have that meaning set forth in Section 6.05 of this Agreement.
“Deficiencies” shall have that meaning set forth in Section 9.02 of this
Agreement.
“Development Agreement Statute” shall have that meaning set forth in Recital A
of this Agreement.
“Economically Feasible” shall have that meaning set forth in Section 6.10(b) of
this Agreement.
“Effective Date” shall have that meaning set forth in Section 2.01 of this
Agreement.
“Judgment” shall have that meaning set forth in Section 9.02 of this Agreement.
“Periodic Review” shall have that meaning set forth in Section 10.05 of this
Agreement.
“Project” shall have that meaning set forth in Recital D of this Agreement.
“Project Approvals” shall have that meaning set forth in Recital E of this
Agreement.
“Project Site” shall have that meaning set forth in Recital C of this Agreement.
“Subsequent Approvals” shall mean those certain other land use approvals,
entitlements, and permits in addition to the Project Approvals that are necessary or
desirable for the Project. In particular, the parties contemplate that Developer will seek
approvals for Use Permits, sign permits, amendments to the Use Agreement, and
amendments to this Agreement. The Subsequent Approvals may also include, without
limitation, the following: amendments of the Project Approvals, design review
approvals, improvement agreements, grading permits, building permits, lot line
adjustments, sewer and water connection permits, certificates of occupancy, subdivision
4
maps, rezonings, development agreements, permits, and any amendments to, or repealing
of, any of the foregoing.
“Tax” and “Taxes” shall not include any generally applicable City Business
License Tax or locally imposed Sales Tax.
“Term” shall have that meaning set forth in Section 2.02 of this Agreement.
ARTICLE 2. EFFECTIVE DATE AND TERM
Section 2.01. Effective Date. This Agreement shall become effective upon the date
the ordinance approving this Agreement becomes effective (the “Effective
Date”).
Section 2.02. Term. The term of this Agreement (the “Term”) shall commence upon
the Effective Date and continue for a period of twenty (20) years.
ARTICLE 3. OBLIGATIONS OF DEVELOPER
Section 3.01. Obligations of Developer Generally. The parties acknowledge and
agree that the City’s agreement to perform and abide by the covenants and
obligations of City set forth in this Agreement is a material consideration for
Developer’s agreement to perform and abide by its long term covenants and
obligations, as set forth herein. The parties acknowledge that many of
Developer’s long term obligations set forth in this Agreement are in addition to
Developer’s agreement to perform all the mitigation measures identified in the
Mitigated Negative Declaration (“MND”).
Section 3.02. City Fees.
(a) Developer shall pay those processing, inspection and plan checking fees and
charges required by the City for processing applications and requests for
Subsequent Approvals under the applicable non-discriminatory regulations
in effect at the time such applications and requests are submitted to the City.
(b) Consistent with the terms of the Agreement, City shall have the right to
impose only such development fees (the “Development Fees”) as have been
adopted by City as of the Effective Date of this Agreement, or as to which
City has initiated formal studies and proposals pursuant to City Council
action, and which are identified in Exhibit C. This shall not prohibit City
from imposing on Developer any fee or obligation that is imposed by a
regional agency in accordance with state or federal obligations and required
to be implemented by City. Development Fees shall be due upon issuance of
building permits or certificates of occupancy for the Project, as may be
appropriate, except as otherwise provided under the Agreement.
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Section 3.03. Mitigation Measures. Developer shall comply with the MMRP
approved in conjunction with the MND for the Project, as it may be modified
from time to time in accordance with CEQA or other law.
ARTICLE 4. OBLIGATIONS OF CITY
Section 4.01. Obligations of City Generally. The parties acknowledge and agree
that Developer’s agreement to perform and abide by its covenants and
obligations set forth in this Agreement, including Developer’s decision to process
the siting of the Project in the City, is a material consideration for City’s
agreement to perform and abide by the long term covenants and obligations of
City, as set forth herein.
Section 4.02. Protection of Vested Rights. To the maximum extent permitted by
law, City shall take any and all actions as may be necessary or appropriate to
ensure that the vested rights provided by this Agreement can be enjoyed by
Developer and to prevent any City Law, as defined below, from invalidating or
prevailing over all or any part of this Agreement. City shall cooperate with
Developer and shall undertake such actions as may be necessary to ensure this
Agreement remains in full force and effect. Except as authorized in Section 6.09,
City shall not support, adopt, or enact any City Law, or take any other action
which would violate the express provisions or intent of the Project Approvals or
the Subsequent Approvals.
Section 4.03. Availability of Public Services. To the maximum extent permitted by
law and consistent with its authority, City shall assist Developer in reserving
such capacity for sewer and water services as may be necessary to serve the
Project.
Section 4.04. Developer’s Right to Rebuild. City agrees that Developer may
renovate or rebuild all or any part of the Project within the Term of this
Agreement should it become necessary due to natural disaster, changes in
seismic requirements, or should the buildings located within the Project become
functionally outdated, within Developer’s sole discretion, due to changes in
technology. Any such renovation or rebuilding shall be subject to the square
footage and height limitations vested by this Agreement, and shall comply with
the Project Approvals, the building codes existing at the time of such rebuilding
or reconstruction, and the requirements of CEQA.
ARTICLE 5. COOPERATION - IMPLEMENTATION
Section 5.01. Processing Application for Subsequent Approvals. By approving the
Project Approvals, City has made a final policy decision that the Project is in the
best interests of the public health, safety and general welfare. Accordingly, City
shall not use its discretionary authority in considering any application for a
Subsequent Approval to change the policy decisions reflected by the Project
Approvals or otherwise to prevent or delay development of the Project as set
6
forth in the Project Approvals. Instead, the Subsequent Approvals shall be
deemed to be tools to implement those final policy decisions.
Section 5.02. Timely Submittals By Developer. Developer acknowledges that City
cannot expedite processing Subsequent Approvals until Developer submits
complete applications on a timely basis. Developer shall use its best efforts to
(i) provide to City in a timely manner any and all documents, applications, plans,
and other information necessary for City to carry out its obligations hereunder;
and (ii) cause Developer’s planners, engineers, and all other consultants to
provide to City in a timely manner all such documents, applications, plans and
other necessary required materials as set forth in the Applicable Law. It is the
express intent of Developer and City to cooperate and diligently work to obtain
any and all Subsequent Approvals.
Section 5.03. Timely Processing By City. Upon submission by Developer of all
appropriate applications and processing fees for any Subsequent Approval, City
shall promptly and diligently commence and complete all steps necessary to act
on the Subsequent Approval application including, without limitation:
(i) providing at Developer’s expense and subject to Developer’s request and prior
approval, reasonable overtime staff assistance and/or staff consultants for
planning and processing of each Subsequent Approval application; (ii) if legally
required, providing notice and holding public hearings; and (iii) acting on any
such Subsequent Approval application. City shall ensure that adequate staff is
available, and shall authorize overtime staff assistance as may be necessary, to
timely process such Subsequent Approval application.
Section 5.04. The City may deny an application for a Subsequent Approval only if
such application does not comply with the Agreement or Applicable Law (as
defined below) or with any state or federal law, regulations, plans, or policies as
set forth in Section 6.09.
Section 5.05. Other Government Permits. At Developer’s sole discretion and in
accordance with Developer’s construction schedule, Developer shall apply for
such other permits and approvals as may be required by other governmental or
quasi-governmental entities in connection with the development of, or the
provision of services to, the Project. City shall cooperate with Developer in its
efforts to obtain such permits and approvals and shall, from time to time at the
request of Developer, use its reasonable efforts to assist Developer to ensure the
timely availability of such permits and approvals.
Section 5.06. Residential Property Development
Developer understands that the planned construction of the residential component
of the Project is a substantial inducement to the City to approve this
Development Agreement. In furtherance of achieving that goal, City shall have
the right to promote the residential component of the Project to the residential
development community, including developers, lenders and equity investors with
7
the goal of identifying qualified investors and residential developers that wish to
negotiate with Developer to obtain the right to build out part or all of the
residential component. Developer agrees to negotiate in good faith with any
qualified residential developer, lender or equity investor that is identified by the
City during such process. Developer shall not be obligated to enter into any
agreement with any such residential developer, lender or equity investor, nor to
defer the commencement of construction of any part of the Project during any
negotiations with any such residential developer, lender or equity investor. The
terms and conditions of any agreement that Developer may determine to enter
into with any such residential developer, lender or equity investor shall be in
Developer’s sole and absolute discretion.
Section 5.07. Section 5.6.Assessment Districts or Other Funding Mechanisms.
(a) Existing Fees . The Parties understand and agree that as of the Effective
Date the fees and exactions listed in Exhibit C are the only City fees and
exactions. Except for those fees and exactions listed in Exhibit C, City is
unaware of any pending efforts to initiate, or consider applications for new
or increased fees, exactions, or assessments covering the Project Site, or any
portion thereof.
(b) Future Fees, Taxes and Assessments. City understands that long term
assurances by City concerning fees, taxes and assessments were a material
consideration for Developer agreeing to enter this Agreement and to pay
long term fees, taxes and assessments described in this Agreement. City
shall retain the ability to initiate or process applications for the formation of
new assessment districts covering all or any portion of the Project Site.
Notwithstanding the foregoing, Developer retains all its rights to oppose the
formation or proposed assessment of any new assessment district or
increased assessment. In the event an assessment district is lawfully formed
to provide funding for services, improvements, maintenance or facilities
which are substantially the same as those services, improvements,
maintenance or facilities being funded by the fees or assessments to be paid
by Developer under the Project Approvals or this Agreement, such fees or
assessments to be paid by Developer shall be subject to reduction/credit in
an amount equal to Developer’s new or increased assessment under the
assessment district. Alternatively, the new assessment district shall
reduce/credit Developer’s new assessment in an amount equal to such fees
or assessments to be paid by Developer under the Project Approvals or this
Agreement.
ARTICLE 6. STANDARDS, LAWS AND PROCEDURES GOVERNING THE
PROJECT
Section 6.01. Vested Right to Develop. Developer shall have a vested right to
develop the Project on the Project Site in accordance with the terms and
conditions of this Agreement. Nothing in this section shall be deemed to
8
eliminate or diminish the requirement of Developer to obtain any required
Subsequent Approvals.
Section 6.02. Permitted Uses Vested by This Agreement. The permitted uses of the
Project Site; the density and intensity of use of the Project Site; the maximum
height, bulk and size of proposed buildings; provisions for reservation or
dedication of land for public purposes and the location of public improvements;
the general location of public utilities; and other terms and conditions of
development applicable to the Project, shall be as set forth in the Project
Approvals and, as and when they are issued (but not in limitation of any right to
develop as set forth in the Project Approvals), the Subsequent Approvals.
Permitted uses shall include, without limitation those uses listed as “permitted”
in the El Camino Real Mixed Use zone district.
Section 6.03. Applicable Law. The rules, regulations, official policies, standards
and specifications applicable to the Project (the “Applicable Law”) shall be those
set forth in this Agreement and the Project Approvals, and, with respect to
matters not addressed by this Agreement or the Project Approvals, those rules,
regulations, official policies, standards and specifications (including City
ordinances and resolutions) governing permitted uses, building locations, timing
of construction, densities, design, heights, fees, exactions, and taxes in force and
effect on the Effective Date of this Agreement.
Section 6.04. Uniform Codes. City may apply to the Project Site, at any time during
the Term, then current Uniform Building Code and other uniform construction
codes, and City’s then current design and construction standards for road and
storm drain facilities, provided any such uniform code or standard has been
adopted and uniformly applied by City on a citywide basis and provided that no
such code or standard is adopted for the purpose of preventing or otherwise
limiting construction of all or any part of the Project.
Section 6.05. No Conflicting Enactments. Except as authorized in Section 6.09,
City shall not impose on the Project (whether by action of the City Council or by
initiative, referendum or other means) any ordinance, resolution, rule, regulation,
standard, directive, condition or other measure (each individually, a “City Law”)
that is in conflict with Applicable Law or this Agreement or that reduces the
development rights or assurances provided by this Agreement. Without limiting
the generality of the foregoing, any City Law shall be deemed to conflict with
Applicable Law or this Agreement or reduce the development rights provided
hereby if it would accomplish any of the following results, either by specific
reference to the Project or as part of a general enactment which applies to or
affects the Project:
(a) Change any land use designation or permitted use of the Project Site;
(b) Limit or control the availability of public utilities, services or facilities or
any privileges or rights to public utilities, services, or facilities (for example,
9
water rights, water connections or sewage capacity rights, sewer
connections, etc.) for the Project;
(c) Limit or control the location of buildings, structures, grading, or other
improvements of the Project in a manner that is inconsistent with or more
restrictive than the limitations included in the Project Approvals or the
Subsequent Approvals (as and when they are issued);
(d) Limit or control the rate, timing, phasing or sequencing of the approval,
development or construction of all or any part of the Project in any manner;
(e) Apply to the Project any City Law otherwise allowed by this Agreement that
is not uniformly applied on a City-wide basis to all substantially similar
types of development projects and project sites;
(f) Result in Developer having to substantially delay construction of the Project
or require the issuance of additional permits or approvals by the City other
than those required by Applicable Law;
(g) Establish, enact, increase, or impose against the Project or Project Site any
fees, taxes (including without limitation general, special and excise taxes but
excluding any increased local sales tax or increases city business license
tax), assessments, liens or other monetary obligations (including generating
demolition permit fees, encroachment permit and grading permit fees) other
than those specifically permitted by this Agreement or other connection fees
imposed by third party utilities;
(h) Impose against the Project any condition, dedication or other exaction not
specifically authorized by Applicable Law; or
(i) Limit the processing or procuring of applications and approvals of
Subsequent Approvals.
Section 6.06. Initiatives and Referenda.
(a) If any City Law is enacted or imposed by initiative or referendum, or by the
City Council directly or indirectly in connection with any proposed initiative
or referendum, which City Law would conflict with Applicable Law or this
Agreement or reduce the development rights provided by this Agreement,
such Law shall not apply to the Project.
(b) Except as authorized in Section 6.09, without limiting the generality of any
of the foregoing, no moratorium or other limitation (whether relating to the
rate, timing, phasing or sequencing of development) affecting subdivision
maps, building permits or other entitlements to use that are approved or to be
approved, issued or granted within the City, or portions of the City, shall
apply to the Project.
10
(c) To the maximum extent permitted by law, City shall prevent any City Law
from invalidating or prevailing over all or any part of this Agreement, and
City shall cooperate with Developer and shall undertake such actions as may
be necessary to ensure this Agreement remains in full force and effect.
(d) Developer reserves the right to challenge in court any City Law that would
conflict with Applicable Law or this Agreement or reduce the development
rights provided by this Agreement.
Section 6.07. Environmental Mitigation. The parties understand that the MND was
intended to be used in connection with each of the Project Approvals and
Subsequent Approvals needed for the Project. Consistent with the CEQA
policies and requirements applicable to the MND, City agrees to use the MND in
connection with the processing of any Subsequent Approval to the maximum
extent allowed by law and not to impose on the Project any mitigation measures
or conditions of approval other than those specifically imposed by the Project
Approvals and the MND/MMRP or specifically required by CEQA or other
Applicable Law.
Section 6.08. Life of Subdivision Maps, Development Approvals, and Permits. The
term of any subdivision map or any other map, permit, rezoning or other land use
entitlement approved as a Project Approval or Subsequent Approval shall
automatically be extended for the longer of the duration of this Agreement
(including any extensions) or the term otherwise applicable to such Project
Approval or Subsequent Approval if this Agreement is no longer in effect. The
term of this Agreement and any subdivision map or other Project Approval or
Subsequent Approval shall not include any period of time during which a
development moratorium (including, but not limited to, a water or sewer
moratorium or water and sewer moratorium) or the actions of other public
agencies that regulate land use, development or the provision of services to the
land, prevents, prohibits or delays the construction of the Project or a lawsuit
involving any such development approvals or permits is pending.
Section 6.09. State and Federal Law. As provided in California Government Code
§ 65869.5, this Agreement shall not preclude the application to the Project of
changes in laws, regulations, plans or policies, to the extent that such changes are
specifically mandated and required by changes in state or federal laws or
regulations. Not in limitation of the foregoing, nothing in this Agreement shall
preclude City from imposing on Developer any fee specifically mandated and
required by state or federal laws and regulations.
Section 6.10. Timing of Project Construction and Completion.
(a) The Project consists of three phases. Phasing will occur in such a manner as
to always preserve the potential for 284 apartment units on the site during
the term of the Agreement.
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(i) Phase 1 construction will begin within 18 months after final approval
by the City of all discretionary approvals of the overall plan, and the
passage of all applicable statutes of limitations without legal challenge
and will include:
• All retail except Building E on the master plan
• All second floor office space
• All current site improvements and design features
• Second floor parking above Safeway/ Major 2 Building
• No change to building architecture as approved by the City
Council per DR11-0019.
• Structural/foundation enhancements for Safeway/Major 2
building sufficient to support approved residential construction
and associated parking above.
(ii) Phase 2 will occur when Economically Feasible, and will include:
• Building E and at least 141 apartment units
• All parking structure levels
• Subterranean parking to replace shopping center surface parking
under Building E unless the subterranean parking was
constructed elsewhere on the Project site as a result of
developing residential units as a part of Phase 1
• Second floor parking above Building E and the Health Club
(iii) Phase 3 will occur at the conclusion of Phase 2 and when Economically
Feasible and will include the remainder of up to 284 total apartment
units
(b) In the event a total of 284 apartment units have not been constructed prior to
ten (10) years after the Effective Date of this Agreement, Developer shall
determine whether at that time the criteria set forth below are satisfied. If all
the Triggers set forth below are satisfied Phase 2 shall be conclusively
determined to be “Economically Feasible. ” When Phase 2 is complete,
Developer shall once again determine whether at that time the criteria set
forth below are satisfied. If at that time, the Triggers set forth below all are
satisfied, Phase 3 shall be conclusively determined to be “Economically
Feasible. ” When Phase 2 and following it, Phase 3, are Economically
Feasible, Developer shall either commence construction or arrange with
another Developer to commence construction of a minimum of 141
residential units within two years. Until such time as the earlier of
completion of all 284 residential units or the end of the development
agreement term, Developer shall every two years after the first evaluation of
the criteria repeat the analysis and shall thereafter commence construction of
the residential units. The triggers (“Triggers”) consist of three criteria which
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all must be met in order to require Developer to commence or arrange for
commencement of construction of the units.
The triggers are based on three indices, defined below.
1) A Rent Index. The index will be based on average per-square foot rents
for San Mateo County from RealFacts. In the event that RealFacts no longer
provides this data, a mutually-agreed upon source that includes historic rent
data will be used. If an alternative source cannot be mutually-agreed upon,
the “Rent of Primary Residence” component of the US Consumer Price
Index (CPI) for the San Francisco-Oakland-San Jose area will be used.
The rent index will be calculated as follows:
Rent Index = (Future Rent/Base Rent - 1) * 100 + 100
The Base Rent will be as of the First Quarter 2013; for RealFacts the value
is $2.57. If an alternative data source is used, that source must be used for
both the Base Rent and the Future Rent.
2) A Cost Index. The index will be based on the CCI cost index for San
Francisco published by the Engineering News Record. In the event that the
Engineering News Record no longer publishes this index, a mutually-agreed
upon source will be used. If an alternative source cannot be mutually-agreed
upon, the RS Means Construction cost index will be used
The Cost Index will be calculated as follows:
Cost Index = (Future Index/Base Index – 1) * 100 + 100
The Base Index will be as of March, 2013; for the Engineering News
Record the amount is $10,368.09. If an alternative data source is used,
that source will be used for both the Base Index and the Future Index.
3) A Cost of Funds Index. The index will be based on the market yield on
U.S. Treasury securities at 10-year constant maturity, quoted on an
investment basis, as published by the Federal Reserve.
The Cost of Funds Index will be calculated as follows:
Cost of Funds Index = (Future Treasury Rate/Base Treasury Rate – 1) *
100 + 100
The Base Treasury Rate will be as of March, 2013, 2013; the value is
1.86%.
(c) A Trigger occurs when all of the following occur on December 31st of the
prior year:
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(i) The Rent Index has reached at least 115. This means that rents have
increased by at least 15 percent from the base level.
(ii) The Rent Index has grown by at least 5% more than the Cost Index.
This means that rents have grown by at least 5% more than costs. The
percent difference between the Rent Index and the Cost Index will be
calculated as follows: Percent difference = (Rent Index – Cost
Index)/Cost Index * 100.
(iii) The Cost of Funds Index has not exceeded 200. This means that the
monthly ten year treasury rate as reported on the Federal Reserve
website has not doubled.
(d) Developer shall procure the Rent Index and Cost Index data from RealFacts
and the Engineering News Record, or the alternate sources, and provide
them to the City 10 years after the execution of this agreement and every two
years after thereafter until the commence of construction of the residential
units. Alternatively, Developer shall reimburse the City for procuring the
Rent Index and Cost Index data.
(e) When, beginning on the tenth anniversary of the execution of the
Agreement, Phase 2 is Economically Feasible, Developer must apply for a
building permit and begin construction within 12 months, for Phase 2
containing a minimum of 141 housing units followed by , upon completion
of Phase 2, construction of Phase 3 when it is Economically Feasible
resulting in a total of up to 284 units at full build-out.
(f) Failure by Developer to take these actions within the prescribed time periods
(unless due to causes beyond its reasonable control, a material adverse
change in the indices referred to in 6.10 (c)(i), (c)(ii) or (c)(iii), or the actions
of City) constitutes a material Default of this Agreement by Developer
curable by any remedies set forth in Section 10.
(b) (g)Developer will have the option of modifying the unit mix, size of units,
and sequencing for later phases of the Project in response to changes in
market conditions that may occur from time to time.
ARTICLE 7. AMENDMENT
Section 7.01. To the extent permitted by state and federal law, any Project Approval
or Subsequent Approval may, from time to time, be amended or modified in the
following manner:
(a) Administrative Project Amendments. Upon the written request of Developer
for an amendment or modification to a Project Approval or Subsequent
Approval, the Chief Planner or his/her designee shall determine: (i) whether
the requested amendment or modification is minor when considered in light
of the Project as a whole; and (ii) whether the requested amendment or
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modification is consistent with this Agreement and Applicable Law. If the
Chief Planner or his/her designee finds that the proposed amendment or
modification is minor, consistent with this Agreement and Applicable Law,
and will result in no new significant impacts not addressed and mitigated in
the MND, the amendment shall be determined to be an “Administrative
Project Amendment” and the Chief Planner or his designee may, except to
the extent otherwise required by law, approve the Administrative Project
Amendment without notice and public hearing. Without limiting the
generality of the foregoing, lot line adjustments, minor alterations in vehicle
circulation patterns or vehicle access points, location of parking stalls on the
site, number of required parking stalls if city development standards allow,
substitutions of comparable landscaping for any landscaping shown on any
final development plan or landscape plan, variations in the location of
structures that do not substantially alter the design concepts of the Project,
variations in the residential unit mix (number of one, two or three bedroom
units), location or installation of utilities and other infrastructure connections
or facilities that do not substantially alter the design concepts of the Project,
and minor adjustments to the Project Site diagram or Project Site legal
description shall be treated as Administrative Project Amendments.
(b) Non-Administrative Project Amendments. Any request by Developer for an
amendment or modification to a Project Approval or Subsequent Approval
which is determined not to be an Administrative Project Amendment as set
forth above shall be subject to review, consideration and action pursuant to
the Applicable Law and this Agreement.
Section 7.02. Amendment of this Agreement. This Agreement may be amended
from time to time, in whole or in part, by mutual written consent of the parties
hereto or their successors in interest, as follows:
(a) Administrative Agreement Amendments. Any amendment to this
Agreement which does not substantially affect (i) the Term of this
Agreement, (ii) permitted uses of the Project Site, (iii) provisions for the
reservation or dedication of land, (iv) conditions, terms, restrictions or
requirements for subsequent discretionary actions, (v) the density or
intensity of use of the Project Site or the maximum height or size of
proposed buildings or (vi) monetary contributions by Developer, shall be
considered an “Administrative Agreement Amendment” and shall not,
except to the extent otherwise required by law, require notice or public
hearing before the parties may execute an amendment hereto. Such
amendment may be approved by City resolution.
(b) Any amendment to this Agreement other than an Administrative Agreement
Amendment shall be subject to recommendation by the Planning
Commission (by advisory resolution) and approval by the City Council (by
ordinance) following a duly noticed public hearing before the Planning
15
Commission and City Council, consistent with Government Code Sections
65867 and 65867.5.
(c) Amendment Exemptions. No amendment of a Project Approval or
Subsequent Approval, or a Subsequent Approval shall require an amendment
to this Agreement. Instead, any such matter automatically shall be deemed
to be incorporated into the Project and vested under this Agreement.
ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE
Section 8.01. Assignment and Transfer. Developer may transfer or assign all or any
portion of its interests, rights, or obligations under the Agreement and the Project
approvals to third parties acquiring an interest or estate in the Project or any
portion thereof including, without limitation, purchasers or lessees of lots,
parcels, or facilities. Developer will seek City's prior written consent to any
transfer, which consent will not be unreasonably withheld or delayed. City may
refuse to give consent only if, in light of the proposed transferee's reputation and
financial resources, such transferee would not in City's reasonable opinion be
able to perform the obligations proposed to be assumed by such transferee. Such
determination will be made by the City Manager and will be appealable by
Developer to the City Council
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ARTICLE 9. COOPERATION IN THE EVENT OF LEGAL CHALLENGE
Section 9.01. Cooperation.
In the event of any administrative, legal, or equitable action or other proceeding
instituted by any person not a party to the Agreement challenging the validity of
any provision of the Agreement or any Project approval, the parties will
cooperate in defending such action or proceeding. City shall promptly notify
Developer of any such action against City. If City fails promptly to notify
Developer of any legal action against City or if City fails to cooperate in the
defense, Developer will not thereafter be responsible for City's defense. The
parties will use best efforts to select mutually agreeable legal counsel to defend
such action, and Developer will pay compensation for such legal counsel
(including City Attorney time and overhead for the defense of such action), but
will exclude other City staff overhead costs and normal day-to-day business
expenses incurred by City. Developer's obligation to pay for legal counsel will
extend to fees incurred on appeal. In the event City and Developer are unable to
select mutually agreeable legal counsel to defend such action or proceeding, each
party may select its own legal counsel and Developer will pay its and the City's
legal fees and costs. Developer shall reimburse the City for all reasonable court
costs and attorneys’ fees expended by the City in defense of any such action or
other proceeding or payable to any prevailing plaintiff/petitioner.
Section 9.02. Reapproval.
If, as a result of any administrative, legal, or equitable action or other proceeding,
all or any portion of the Agreement or the Project approvals are set aside or
otherwise made ineffective by any judgment in such action or proceeding
("Judgment"), based on procedural, substantive or other deficiencies
("Deficiencies"), the parties will use their respective best efforts to sustain and
reenact or readopt the Agreement, and/or the Project approvals, that the
Deficiencies related to, unless the Parties mutually agree in writing to act
otherwise:
(i) If any Judgment requires reconsideration or consideration by City of
the Agreement or any Project approval, then the City will consider or
reconsider that matter in a manner consistent with the intent of the
Agreement and with Applicable Law. If any such Judgment invalidates or
otherwise makes ineffective all or any portion of the Agreement or Project
approval, then the parties will cooperate and will cure any Deficiencies
identified in the Judgment or upon which the Judgment is based in a
manner consistent with the intent of the Agreement and with Applicable
Law. City will then consider readopting or reenacting the Agreement, or
the Project approval, or any portion thereof, to which the Deficiencies
related.
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(ii) Acting in a manner consistent with the intent of the Agreement
includes, but is not limited to, recognizing that the parties intend that
Developer may develop the Project as described in the Agreement, and
adopting such ordinances, resolutions, and other enactments as are
necessary to readopt or reenact all or any portion of the Agreement or
Project approvals without contravening the Judgment.
ARTICLE 10. DEFAULT; REMEDIES; TERMINATION
Section 10.01. Defaults. Any failure by either party to perform any term or provision
of the Agreement, which failure continues uncured for a period of thirty (30)
days following written notice of such failure from the other party (unless such
period is extended by mutual written consent), will constitute a default under the
Agreement. Any notice given will specify the nature of the alleged failure and,
where appropriate, the manner in which said failure satisfactorily may be cured.
If the nature of the alleged failure is such that it cannot reasonably be cured
within such 30-day period, then the commencement of the cure within such time
period, and the diligent prosecution to completion of the cure thereafter, will be
deemed to be a cure within such 30-day period. Upon the occurrence of a default
under the Agreement, the non-defaulting party may institute legal proceedings to
enforce the terms of the Agreement or, in the event of a material default,
terminate the Agreement. If the default is cured, then no default will exist and the
noticing party shall take no further action.
Section 10.02. Termination. If City elects to consider terminating the Agreement due
to a material default of Developer, then City will give a notice of intent to
terminate the Agreement and the matter will be scheduled for consideration and
review by the City Council at a duly noticed and conducted public hearing.
Developer will have the right to offer written and oral evidence prior to or at the
time of said public hearings. If the City Council determines that a material
default has occurred and is continuing, and elects to terminate the Agreement,
City will give written notice of termination of the Agreement to Developer by
certified mail and the Agreement will thereby be terminated sixty (60) days
thereafter.
Section 10.03. Enforced Delay; Extension of Time of Performance. In addition to
specific provisions of the Agreement, neither party will be deemed to be in
default where delays in performance or failures to perform are due to, and a
necessary outcome of, war, insurrection, strikes or other labor disturbances,
walk- , outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions
imposed or mandated by other governmental entities (including new or
supplemental environmental regulations), enactment of conflicting state or
federal laws or regulations, judicial decisions, or similar basis for excused
performance which is not within the reasonable control of the party to be
excused. Litigation attacking the validity of the Agreement or any of the Project
approvals, or any permit, ordinance, entitlement or other action of a
governmental agency other than City necessary for the development of the
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Project pursuant to the Agreement will be deemed to create an excusable delay as
to Developer. Upon the request of either party hereto, an extension of time for
the performance of any obligation whose performance has been so prevented or
delayed will be memorialized in writing. The term of any such extension will be
equal to the period of the excusable delay, or longer, as may be mutually agreed
upon.
Section 10.04. Legal Action. Either party may institute legal action to cure, correct, or
remedy any default, enforce any covenant or agreement in the Agreement, enjoin
any threatened or attempted violation thereof, and enforce by specific
performance the obligations and rights of the parties thereto. The sole and
exclusive remedy for any default or violation of the Agreement will be specific
performance. In any proceeding brought to enforce the Agreement, the prevailing
party will be entitled to recover from the unsuccessful party all costs, expenses
and reasonable attorney's fees incurred by the prevailing party in the enforcement
proceeding.
Section 10.05. Periodic Review.
(a) Conducting the Periodic Review. Throughout the Term of this Agreement,
at least once every twelve (12) months following the execution of this
Agreement, City shall review the extent of good-faith compliance by
Developer with the terms of this Agreement. This review (the “Periodic
Review”) shall be conducted by the Chief Planner or his/her designee and
shall be limited in scope to compliance with the terms of this Agreement
pursuant to California Government Code Section 65865.1.
(b) Notice. At least five (5) days prior to the Periodic Review, and in the
manner prescribed in Section 11.09 of this Agreement, City shall deposit in
the mail to Developer a copy of any staff reports and documents to be used
or relied upon in conducting the review and, to the extent practical, related
exhibits concerning Developer’s performance hereunder. Developer shall be
permitted an opportunity to respond to City’s evaluation of Developer’s
performance, either orally at a public hearing or in a written statement, at
Developer’s election. Such response shall be made to the Chief Planner.
(c) Good Faith Compliance. During the Periodic Review, the Chief Planner
shall review Developer’s good-faith compliance with the terms of this
Agreement. At the conclusion of the Periodic Review, the Chief Planner
shall make written findings and determinations, on the basis of substantial
evidence, as to whether or not Developer has complied in good faith with the
terms and conditions of this Agreement. The decision of the Chief Planner
shall be appealable to the City Council. If the Chief Planner finds and
determines that Developer has not complied with such terms and conditions,
the Chief Planner may recommend to the City Council that it terminate or
modify this Agreement by giving notice of its intention to do so, in the
manner set forth in California Government Code Sections 65867 and 65868.
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The costs incurred by City in connection with the Periodic Review process
described herein shall be borne by Developer.
(d) Failure to Properly Conduct Periodic Review. If City fails, during any
calendar year, to either (i) conduct the Periodic Review or (ii) notify
Developer in writing of City’s determination, pursuant to a Periodic Review,
as to Developer’s compliance with the terms of this Agreement and such
failure remains uncured as of December 31 of any year during the term of
this Agreement, such failure shall be conclusively deemed an approval by
City of Developer’s compliance with the terms of this Agreement.
(e) Written Notice of Compliance. With respect to any year for which
Developer has been determined or deemed to have complied with this
Agreement, City shall, within thirty (30) days following request by
Developer, provide Developer with a written notice of compliance, in
recordable form, duly executed and acknowledged by City. Developer shall
have the right, in Developer’s sole discretion, to record such notice of
compliance.
Section 10.06. Default by City or Developer. In the event City or Developer defaults
under the terms of this Agreement, City or Developer shall have all rights and
remedies provided herein or under law. Either party may, in addition to any
other rights or remedies, institute legal action to cure, correct, or remedy any
default, enforce any covenant or agreement herein, enjoin any threatened or
attempted violation thereof, recover damages for any default, enforce by specific
performance the obligations and rights of the parties hereto, or to obtain any
remedies consistent with the purpose of this Agreement.
Section 10.07. California Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California. Any action to enforce or
interpret this Agreement shall be filed and heard in the Superior Court of San
Mateo County, California.
Section 10.08. Resolution of Disputes. With regard to any dispute involving
development of the Project, the resolution of which is not provided for by this
Agreement or Applicable Law, Developer shall, at City’s request, meet with
City. The parties to any such meetings shall attempt in good faith to resolve any
such disputes. Nothing in this Section 10.07 shall in any way be interpreted as
requiring that Developer and City and/or City’s designee reach agreement with
regard to those matters being addressed, nor shall the outcome of these meetings
be binding in any way on City or Developer unless expressly agreed to by the
parties to such meetings.
Section 10.09. Attorneys’ Fees. In any legal action or other proceeding brought by
either party to enforce or interpret a provision of this Agreement, the prevailing
party is entitled to reasonable attorneys’ fees and any other costs incurred in that
proceeding in addition to any other relief to which it is entitled.
20
Section 10.10. Hold Harmless. Developer shall hold City and its elected and
appointed officers, agents, employees, and representatives harmless from claims,
costs, and liabilities for any personal injury, death, or property damage which is a
result of, or alleged to be the result of, the construction of the Project, or of
operations performed under this Agreement by Developer or by Developer’s
contractors, subcontractors, agents or employees, whether such operations were
performed by Developer or any of Developer’s contractors, subcontractors,
agents or employees. Nothing in this section shall be construed to mean that
Developer shall hold City harmless from any claims of personal injury, death or
property damage arising from, or alleged to arise from, any gross negligence or
willful misconduct on the part of City, its elected and appointed representatives,
offices, agents and employees.
ARTICLE 11. MISCELLANEOUS
Section 11.01. Incorporation of Recitals and Introductory Paragraph. The Recitals
contained in this Agreement, and the introductory paragraph preceding the
Recitals, are hereby incorporated into this Agreement as if fully set forth herein.
Section 11.02. No Agency. It is specifically understood and agreed to by and
between the parties hereto that: (i) the subject development is a private
development; (ii) City has no interest or responsibilities for, or duty to, third
parties concerning any improvements until such time, and only until such time,
that City accepts the same pursuant to the provisions of this Agreement or in
connection with the various Project Approvals or Subsequent Approvals;
(iii) Developer shall have full power over and exclusive control of the Project
herein described, subject only to the limitations and obligations of Developer
under this Agreement, the Project Approvals, Subsequent Approvals, and
Applicable Law; and (iv) City and Developer hereby renounce the existence of
any form of agency relationship, joint venture or partnership between City and
Developer and agree that nothing contained herein or in any document executed
in connection herewith shall be construed as creating any such relationship
between City and Developer.
Section 11.03. Enforceability. City and Developer agree that unless this Agreement
is amended or terminated pursuant to the provisions of this Agreement, this
Agreement shall be enforceable by any party hereto notwithstanding any change
hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any
other means) in any applicable general plan, specific plan, zoning ordinance,
subdivision ordinance, or any other land use ordinance or building ordinance,
resolution or other rule, regulation or policy adopted by City that changes, alters
or amends the rules, regulations and policies applicable to the development of the
Project Site at the time of the approval of this Agreement as provided by
California Government Code Section 65866.
Section 11.04. Severability. If any term or provision of this Agreement, or the
application of any term or provision of this Agreement to a particular situation, is
21
held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining terms and provisions of this Agreement, or the application of this
Agreement to other situations, shall continue in full force and effect unless
amended or modified by mutual consent of the parties. Notwithstanding the
foregoing, if any material provision of this Agreement, or the application of such
provision to a particular situation, is held to be invalid, void or unenforceable,
either City or Developer may (in their sole and absolute discretion) terminate this
Agreement by providing written notice of such termination to the other party.
Section 11.05. Other Necessary Acts. Each party shall execute and deliver to the
other all such other further instruments and documents as may be reasonably
necessary to carry out the Project Approvals, Subsequent Approvals and this
Agreement and to provide and secure to the other party the full and complete
enjoyment of its rights and privileges hereunder.
Section 11.06. Construction. Each reference in this Agreement to this Agreement or
any of the Project Approvals or Subsequent Approvals shall be deemed to refer
to the Agreement, Project Approval or Subsequent Approval as it may be
amended from time to time, whether or not the particular reference refers to such
possible amendment. This Agreement has been reviewed and revised by legal
counsel for both City and Developer, and no presumption or rule that ambiguities
shall be construed against the drafting party shall apply to the interpretation or
enforcement of this Agreement.
Section 11.07. Other Miscellaneous Terms. The singular shall include the plural; the
masculine gender shall include the feminine; “shall” is mandatory; “may” is
permissive. If there is more than one signer of this Agreement, the signer
obligations are joint and several.
Section 11.08. Covenants Running with the Land. All of the provisions contained in
this Agreement shall be binding upon the parties and their respective heirs,
successors and assigns, representatives, lessees, and all other persons acquiring
all or a portion of the Project, or any interest therein, whether by operation of law
or in any manner whatsoever. All of the provisions contained in this Agreement
shall be enforceable as equitable servitudes and shall constitute covenants
running with the land pursuant to California law including, without limitation,
Civil Code Section 1468. Each covenant herein to act or refrain from acting is
for the benefit of or a burden upon the Project, as appropriate, runs with the
Project Site and is binding upon the owner of all or a portion of the Project Site
and each successive owner during its ownership of such property.
Section 11.09. Notices. Any notice or communication required hereunder between
City or Developer must be in writing, and may be given either personally, by
telefacsimile (with original forwarded by regular U.S. Mail) by registered or
certified mail (return receipt requested), or by Federal or other similar courier
promising overnight delivery. If personally delivered, a notice shall be deemed
to have been given when delivered to the party to whom it is addressed. If given
22
by facsimile transmission, a notice or communication shall be deemed to have
been given and received upon actual physical receipt of the entire document by
the receiving party’s facsimile machine. Notices transmitted by facsimile after
5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be
deemed to have been given and received on the next normal business day. If
given by registered or certified mail, such notice or communication shall be
deemed to have been given and received on the first to occur of (i) actual receipt
by any of the addressees designated below as the party to whom notices are to be
sent, or (ii) five (5) days after a registered or certified letter containing such
notice, properly addressed, with postage prepaid, is deposited in the
United States mail. If given by Federal Express or similar courier, a notice or
communication shall be deemed to have been given and received on the date
delivered as shown on a receipt issued by the courier. Any party hereto may at
any time, by giving ten (10) days written notice to the other party hereto,
designate any other address in substitution of the address to which such notice or
communication shall be given. Such notices or communications shall be given to
the parties at their addresses set forth below:
If to City, to: City Manager
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Phone: (650) 829-6629
Fax: (650) 829-6623
With a Copy to: Meyers Nave
575 Market Street, Suite 2600
San Francisco, CA 94105
Attn: Steven T. Mattas, City Attorney
Phone: (415) 421-3711
Fax: (415) 421-3767
If to Developer, to: El Camino and Spruce LLC
c/o WT Mitchell Group Inc.
PO Box 5127
Walnut Creek, CA 94596
Phone: 925-407-2676
Fax: 925-988-8032
With Copies to: Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
Attn: Zane O. Gresham
Phone: (415) 268-7000
Fax: (415) 260-7522
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Section 11.10. Entire Agreement, Counterparts And Exhibits. This Agreement is
executed in two (2) duplicate counterparts, each of which is deemed to be an
original. This Agreement consists of [___] pages and [___] exhibits which
constitute in full, the final and exclusive understanding and agreement of the
parties and supersedes all negotiations or previous agreements of the parties with
respect to all or any part of the subject matter hereof. All waivers of the
provisions of this Agreement shall be in writing and signed by the appropriate
authorities of City and the Developer. The following exhibits are attached to this
Agreement and incorporated herein for all purposes:
Exhibit A: Description and Diagram of Project Site
Exhibit B: Existing Land Use Entitlements and Approvals
Exhibit C: City Fees and Exactions
Section 11.11. Recordation Of Development Agreement. Pursuant to California
Government Code § 65868.5, no later than ten (10) days after City enters into
this Agreement, the City Clerk shall record an executed copy of this Agreement
in the Official Records of the County of San Mateo.
IN WITNESS WHEREOF, this Agreement has been entered into by and between
Developer and City as of the day and year first above written.
CITY
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By:_______________________________
Name:____________________________
City Manager
ATTEST:
By: ___________________________
City Clerk
APPROVED AS TO FORM:
By: ___________________________
City Attorney
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Developer
EL CAMINO AND SPRUCE LLC,
a Nevada Limited Liability Company
By:______________________________
Name:____________________________
Its:_______________________________
2105469.7
2105469.5
25
Exhibit A: Description and Diagram of Project Site
LEGAL DESCRIPTION
Real property in the City of South San Francisco, County of San Mateo, State of California,
described as follows:
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF SOUTH SAN
FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, BEING LOT 1, BLOCK 2,
AS DESIGNATED ON THE MAP ENTITLED, "TANFORAN PARK, UNIT NO. 2," WHICH MAP
WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO,
STATE OF CALIFORNIA, JANUARY 5, 1967, IN BOOK 66 OF MAPS AT PAGES 5, 6, AND 7,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID LOT 1, SAID CORNER BEING
A POINT IN THE NORTHEASTERLY LINE OF EL CAMINO REAL AS SHOWN ON SAID
MAP; THENCE ALONG SAID NORTHEASTERLY LINE NORTH 27° 54’ 38" WEST, 86.78
FEET (NORTH 26° 38’ 46" WEST, 86.94 FEET); THENCE NORTH 30° 47’ 29" WEST, 488.12
FEET (NORTH 29° 31’ 37" WEST); THENCE ALONG A TANGENT CURVE TO THE RIGHT,
HAVING A RADIUS OF 25.00 FEET, THROUGH A CENTRAL ANGLE OF 89° 46’ 45" AN ARC
LENGTH OF 39.17 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF SOUTH SPRUCE
AVENUE AS SHOWN ON SAID MAP; THENCE ALONG SAID SOUTHEASTERLY LINE
NORTH 58° 59’ 16" EAST, 4.90 FEET (NORTH 60° 15’ 08" EAST); THENCE ALONG A
TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 689.75 FEET, THROUGH A
CENTRAL ANGLE OF 27° 31’ 15" AN ARC LENGTH OF 331.31 FEET (R OF 689.95 FEET,
CENTRAL ANGLE OF 27° 30’ 30", L OF 331.25 FEET); THENCE NORTH 31° 28’ 01" EAST,
272.47 FEET (NORTH 32° 44’ 38" EAST, 272.47 FEET); THENCE ALONG A TANGENT CURVE
TO THE RIGHT, HAVING A RADIUS OF 1961.99 FEET, THROUGH A CENTRAL ANGLE OF
5° 32’ 44", AN ARC LENGTH OF 189.90 FEET (R OF 1959.86 FEET, CENTRAL ANGLE OF 5°
32’ 02", L OF 189.29 FEET); THENCE NORTH 37° 00’ 45" EAST, 45.82 FEET (NORTH 38° 16’
40" EAST, 46.42 FEET); THENCE LEAVING SAID SOUTHEASTERLY LINE SOUTH 52° 59’
15" EAST, 232.76 FEET (SOUTH 51° 43’ 20" EAST); THENCE ALONG A TANGENT CURVE
TO THE RIGHT, HAVING A RADIUS OF 1999.86 FEET, THROUGH A CENTRAL ANGLE OF
0° 22’ 21", AN ARC LENGTH OF 13.00 FEET (CENTRAL ANGLE OF 0° 22’ 22", L OF 13.01
FEET); THENCE NORTH 57° 19’ 24" EAST, 130.66 FEET (NORTH 58° 35’ 52" EAST, 130.53
FEET) TO A POINT IN THE SOUTHWESTERLY LINE OF HUNTINGTON AVENUE AS
SHOWN ON SAID MAP; THENCE ALONG SAID SOUTHWESTERLY LINE ALONG A NON-
TANGENT CURVE TO THE RIGHT, HAVING A RADIUS OF 959.93 FEET, CONCAVE TO THE
SOUTHWEST, WHOSE CENTER BEARS SOUTH 53° 05’ 43" WEST, THROUGH A CENTRAL
ANGLE OF 2° 23’ 28", AN ARC LENGTH OF 40.06 FEET; THENCE LEAVING SAID
SOUTHWESTERLY LINE SOUTH 57° 19’ 24" WEST, 124.49 FEET (SOUTH 58° 35’ 52" WEST,
124.50 FEET); THENCE SOUTH 32° 40’ 36" EAST, 419.97 FEET (SOUTH 31° 24’ 08" EAST,
419.97 FEET); THENCE NORTH 57° 19’ 24" EAST, 124.99 FEET (NORTH 58° 35’ 52" EAST) TO
A POINT IN SAID SOUTHWESTERLY LINE OF HUNTINGTON AVENUE; THENCE ALONG
SAID SOUTHWESTERLY LINE SOUTH 32° 40’ 36" EAST, 40.00 FEET (SOUTH 31° 24’ 08"
EAST); THENCE LEAVING SAID SOUTHWESTERLY LINE SOUTH 57° 19’ 24" WEST, 134.99
FEET (SOUTH 58° 35’ 52" WEST); THENCE SOUTH 32° 40’ 36" EAST, 82.92 FEET (SOUTH 31°
24’ 08" EAST); THENCE SOUTH 53° 25’ 00" WEST, 923.20 FEET (SOUTH 54° 40’ 52" WEST,
922.99 FEET) TO THE POINT OF BEGINNING.
THE BASIS OF BEARINGS FOR THE ABOVE DESCRIBED PARCEL IS NORTH 58° 59’ 16"
EAST ALONG THE CENTER LINE OF SOUTH SPRUCE AVENUE AS SHOWN ON THE
RECORD OF SURVEY RECORDED IN BOOK "6" OF LICENSED LAND SURVEYORS MAPS
AT PAGE 77, SAN MATEO COUNTY RECORDS.
APN: 014-183-110
JPN: 014-018-183-11A
26
Exhibit B: Existing Land Use Entitlements and Approvals
[To be completed when the exact titles and resolution numbers for
entitlements approved by the Planning Commission and the City Council are
known.]
27
Exhibit C: City Fees and Exactions
180 ECR - Centennial Village
Illustrative calculations of estimated proposed fees
Area Estimations*
180 ECR
Retail/Commercial SF 187,170
Office SF 35,327
Residential Units 284
Total 222,497
Existing Commercial Demolished 144,821
Net New Gross Sq Ft 77,676
Estimated Existing and Proposed Fees, Including Fee Credits
180 ECR
Fee Category Rate Fee
Sewer Capacity Fee (1)varies by use Retail/Commercial $84,875
(Resolution 39-2010)Office $96,083
Residential $1,047,108
General Plan Maintenance Fee 0.0015 of construction value, per GSF 117,000.00$
(Resolution 74-2007)
Child Care Impact Fee 0.68$ per NN GSF for Commercial 28,797.32$
(SSFMC 20.310)1,851.00$ per High Density Residential Unit 525,684.00$
Park-in-Lieu Fee 3,276.00$ per 1,000 GSF Nonresidential 254,466.58$
(per Draft Parkland Acquisition and
Construction Fee)
Public Safety Impact Fee 0.44$ per NN GSF for Retail 82,354.80$
(Resolution 97-2012)0.44$ per NN GSF for Office 15,543.88$
563.00$ per High Density Residential Unit 159,892.00$
Total of Fees 2,411,804.54$
Fees per GSF 10.84$
(1) - Sewer Capacity Fee calculation will vary by use based on application of Resolution 39-2010.
* The areas are estimated and provided for the purpose of illustrating the fee calculation. The actual fee and fee credit for each
phase will be calculated at the time of building permit submittal.
Exhibit C
City Fees and Exactions
Attachment 4
City Council Staff Reports (No attachments)
Meetings of September 11, 2013 and September 25, 2013
Staff Report
DATE: September 11, 2013
TO: Honorable Mayor and City Council
FROM: Marty Van Duyn, Assistant City Manager
SUBJECT: CENTENNIAL VILLAGE – USE PERMIT, DESIGN REVIEW,
TRANSPORTATION DEMAND MANAGEMENT PLAN, DEVELOPMENT
AGREEMENT AND MITIGATED NEGATIVE DECLARATION FOR A
PHASED DEVELOPMENT TO CONSTRUCT A MIXED-USE PROJECT
INCLUDING APPROXIMATELY 222,000 SQUARE FEET OF
COMMERCIAL SPACE AND 284 RESIDENTIAL UNITS ON A 14.5 ACRE
SITE LOCATED AT 180 EL CAMINO REAL IN THE EL CAMINO REAL
MIXED USE (ECRMX) ZONING DISTRICT IN ACCORDANCE WITH
SSFMC CHAPTERS 19.60, 20.090, 20.300, 20.330, 20.350, 20.400, 20.440,
20.450, 20.460, 20.480 & 20.490.
Address: 180 El Camino Real (APN 014-183-110)
Owner: Shamain Partnership
Applicant: El Camino and Spruce LLC
Case No.: P11-0065: UP11-0006, DR11-0019, TDM13-0001, DA13-0002 &
ND12-0004
RECOMMENDATION
It is recommended that the City Council follow the recommendation of the Planning
Commission and take the following actions:
1. Adopt a Resolution making findings and adopting Mitigated Negative Declaration
ND12-0004; and
2. Adopt a Resolution making findings and approving Planning Project P11-0065,
including Use Permit UP11-0006, Design Review DR11-0019, and Transportation
Demand Management Plan TDM13-0001 based on the attached draft findings and
subject to the attached draft conditions of approval; and
3. Waive reading and introduce an Ordinance approving Development Agreement
DA13-0002.
BACKGROUND / DISCUSSION
(A complete discussion of the proposed project is contained in the attached Planning
Commission staff report dated August 15, 2013.)
Staff Report
Subject: 180 El Camino Real - Mixed Use Development
Date: September 11, 2013
Page 2 of 6
Existing Site
The Project site is a 14.5 acre lot with frontages on El Camino Real and South Spruce Ave. The
existing shopping center on the site was constructed in 1965, and currently includes Safeway,
Bally’s Total Fitness, CVS, and Bedroom Express. Firestone Tire & Auto Center is located in a
smaller building at the northwest corner of the site, close to the intersection of El Camino Real
and South Spruce Ave.
The site is bordered by commercial uses to the south, Brentwood Shopping Center and single-
family residential to the west across El Camino Real, See’s Candies and single-family residential
to the north across South Spruce Ave, and office and other general commercial uses to the east
across Huntington Ave. The subject site does not extend all the way to Huntington Avenue –
there is a surface parking lot, a professional office building and a Salvation Army facility
abutting the eastern edge of the property.
The City has in recent years updated General Plan policies and Zoning Ordinance standards
related to the El Camino Real corridor in an effort to “develop the South El Camino area as a
vibrant corridor with a variety of residential and non-residential uses to foster a walkable and
pedestrian-scaled environment” (General Plan Guiding Policy 3.4-G-7), and has been working
with the applicant to develop a plan to achieve this objective on the site.
Proposed Project
The proposed project consists of the demolition of the existing 145,000 square foot shopping
center and replacing it with a mixed-use shopping center containing approximately 220,000
square feet of commercial area, with 284 residential units on upper floors, on this prominent 14.5
acre site.
El Camino Real and South Spruce Avenue would be fronted by a series of two-story buildings
(Buildings A, B, C, D and Major Tenant 3 - CVS) providing a total of 42,400 square feet for
retail uses on the ground floor and 35,300 square feet for office uses on the second floor. These
buildings would serve to create a more pedestrian-friendly environment at the street edge,
increase the amount of commercial activity on the site, and obscure views of the interior parking
lot.
The interior of the site would include an L-shaped five story mixed-use building, with
commercial uses on the ground floor, parking on the second level, and 284 residential units on
the third, fourth and fifth floors. The residential component of the project would consist of a
mixture of one- and two-bedroom apartment units with associated amenities, including open
courtyards. The ground floor tenant spaces would include a 58,000-square-foot Safeway, a
30,000-square-foot Commercial/Retail use (Major Tenant 2), a 36,000-square-foot Health Club
use, and 21,000 square feet of smaller commercial tenant spaces (Building E).
The development could be constructed in up to three phases; following is a breakdown of each
specific phase:
Phase 1
- Construction of ground level retail for Major Tenants 1 (Safeway), 2 (to be determined), the
health club, and both levels of Buildings A, B, C and D and Major Tenant 3 (CVS).
Staff Report
Subject: 180 El Camino Real - Mixed Use Development
Date: September 11, 2013
Page 3 of 6
- Construction of all surface parking and landscaping improvements.
- Construction of 184 parking stalls above Safeway and Major Tenant 2.
Phase 2
- Construction of all structured parking and Building E (including basement level parking).
- Construction of parking level above Building E and Health Club building.
- Construction of a minimum of 141 residential units above the Health Club and Building E.
Phase 3
- Construction of the remaining residential units (up to a total 284 units) above Safeway and
Major Tenant 2.
ZONING CONSISTENCY
Upon full build-out, the proposed project will entail a mixed-use development that fulfills all of
the purpose statements, standards and regulations of the El Camino Real Mixed Use (“ECRMX”)
Zone District, subject to approval of specific exceptions for which the Planning Commission
recommended approval. These exceptions are related to “Supplemental Regulations” within the
ECRMX District, and the approval body is allowed to grant exceptions for specific standards
upon determining that the underlying intent of the ECRMX district is still being met.
A more detailed review of the City’s development standards and requirements is contained in the
attached Planning Commission staff report.
PRELIMINARY TRANSPORTATION DEMAND MANAGEMENT PLAN
In accordance with the Transportation Demand Management (“TDM”) Ordinance, a preliminary
TDM plan is included as part of the project to achieve a minimum 28% alternative mode use,
applicable to all nonresidential development expected to generate 100 or more average daily
trips. In general, the preliminary TDM plan provides for the requisite mode shift goal, and
includes all of the required trip reduction measures, including carpool and vanpool ridematching
services, designated employer contact, guaranteed ride home program, and showers and clothes
locker facilities. A copy of the preliminary TDM plan is attached.
GENERAL PLAN CONSISTENCY
The General Plan Land Use Designation for the site is El Camino Real Mixed Use (“ECRMX”).
The ECRMX land use designation allows for high-intensity active uses and mixed-use
developments. The frontage of the site along El Camino Real and other arterial/collector streets
are required to be devoted to active uses. Upon full build-out of the project, the development
will conform to the General Plan Land Use Policies by creating a mixed-use environment within
the required FAR parameters that emphasizes pedestrian-activity with buildings built up to the
sidewalk along El Camino Real and South Spruce Ave, provides a well-articulated and visually
engaging development that implements the goals of the Grand Boulevard Initiative and locates
parking in a way that is not visually dominant.
Staff Report
Subject: 180 El Camino Real - Mixed Use Development
Date: September 11, 2013
Page 4 of 6
Additionally, the Housing Element identifies the subject site as a near-term housing opportunity
site. Assuming a density of 60 dwelling units per acre for a third of the site, consistent with
densities allowed within the South El Camino Real corridor, the site was identified as being able
to accommodate up to 295 units.
DEVELOPMENT AGREEMENT
The applicant and the City have negotiated a Development Agreement (“DA”) to clarify and
obligate Project features and mitigation measures. The applicant has stated that currently the
economics of the project do not justify the development of apartments, as the total rental income
versus total costs of development are not sufficient to justify the risks associated with the
development at this time. Therefore, the primary feature of the DA is the phasing of the
residential units. Upon the tenth anniversary of the execution of the agreement, the applicant
will be required to perform a calculation of Economic Feasibility; if the performance triggers are
met, the applicant would be required to construct Phase 2 within 12 months. Other Development
Agreement items include:
The term of the Agreement would be twenty (20) years.
Payment of applicable fees, including Public Safety Impact Fee and Child Care Impact
Fee, including annual escalators.
Timing of Project Construction and Completion.
o Phase 1 construction will begin within 18 months of final project entitlement
approval.
o If the 284 apartment units have not been constructed within 10 years of the
approval of the DA, then three triggers are identified to determine if the
residential units are “Economically Feasible”. The triggers were developed
jointly by the project applicant, City staff and the City’s economic consultants. If
all three triggers are met, the developer shall either commence construction or
arrange with another Developer to commence construction of Phase 2 within 12
months.
o Upon the completion of Phase 2, if the same “Economically Feasible” triggers are
met the developer shall either commence construction or arrange with another
Developer to commence construction of Phase 3 within 12 months.
The proposed Development Agreement is attached to the draft Ordinance.
ENVIRONMENTAL REVIEW
The City adopted the South El Camino Real General Plan Amendment (“South ECR GPA”) on
March 24, 2010. The South El Camino Real General Plan Amendment EIR was prepared as a
Program EIR, pursuant to Section 15168 of the California Environmental Quality Act
(“CEQA”), and this document was certified by the City Council following public review and
comment.
Staff Report
Subject: 180 El Camino Real - Mixed Use Development
Date: September 11, 2013
Page 5 of 6
Consistent with the CEQA tiering principles and procedures, an Initial Study/ Mitigated
Negative Declaration (“IS/MND”) was prepared to determine whether the project could have any
significant impacts that had not been adequately addressed in the South ECR GPA EIR. The
IS/MND identifies significant impacts that would be reduced to less than significant impacts
through various mitigation measures, which are discussed in the document.
The IS/MND was distributed to the State Clearinghouse and circulated for a 30-day public
review on April 12, 2013. A total of six comment letters were received from commenting
agencies: San Mateo County Health System (dated April 29, 2013); San Francisco International
Airport (dated May 3, 2013); County of San Mateo Department of Public Works (dated May 8,
2013); C/CAG staff (dated May 13, 2013); the California Department of Transportation (dated
May 14, 2013); and the City of San Bruno (dated May 21, 2013). None of the comment letters
raised significant environmental issues.
A copy of the “Initial Study and Proposed Mitigated Negative Declaration” and the “Final
Mitigated Negative Declaration”, which includes the comment letters and the Mitigation
Monitoring and Reporting Program, are attached to the CEQA Resolution.
REVIEW BY OTHER AGENCIES
The project site is located within Airport Influence Area B as defined in the Airport Land Use
Compatibility Plan (“ALUCP”) for San Francisco International Airport (“SFO”). Projects
located within this influence area are subject to the ALUCP policies related to noise
compatibility, safety compatibility, and airspace protection.
When the current ALUCP was adopted by the City/County Association of Governments of San
Mateo County (C/CAG) in November 2012, the SFO noise contours were updated. Under the
previous 1996 Comprehensive Land Use Plan (“CLUP”), the project site was located within the
CNEL 65 to 70 dB noise contour, which allows multi-family residential units subject to adequate
sound insulation and grant of avigation easement. The 2012 ALUCP updated noise contours
located the project site within the CNEL 70 to 75 dB noise contour, which would not allow new
residential development.
ALUCP General Policy GP-5.3 grants an exception to noise consistency evaluations for
development actions in the review process before the effective date of the current ALUCP,
provided that the proposed development complies with all other requirements of the current
ALUCP. In SFO’s comment letter related to the IS/MND, they verify that the project application
was deemed complete before the adoption of the ALUCP, and therefore is to be evaluated under
the 1996 CLUP. However, any future proposal (not included in the proposed development
application) to construct additional dwelling, subdivide land, or create condominiums for
residential use within the CNEL 70-75 dB contour would be considered incompatible with the
ALUCP.
PLANNING COMMISSION MEETING
At the Planning Commission meeting of August 15, 2013, the Commission reviewed the
proposed project. Five members of the public spoke on the project, with questions related to
Staff Report
DATE: September 25, 2013
TO: Honorable Mayor and City Council
FROM: Marty Van Duyn, Assistant City Manager
SUBJECT: CENTENNIAL VILLAGE – USE PERMIT, DESIGN REVIEW,
TRANSPORTATION DEMAND MANAGEMENT PLAN, DEVELOPMENT
AGREEMENT AND MITIGATED NEGATIVE DECLARATION FOR A
PHASED DEVELOPMENT TO CONSTRUCT A MIXED-USE PROJECT
INCLUDING APPROXIMATELY 222,000 SQUARE FEET OF
COMMERCIAL SPACE AND 284 RESIDENTIAL UNITS ON A 14.5 ACRE
SITE LOCATED AT 180 EL CAMINO REAL IN THE EL CAMINO REAL
MIXED USE (ECRMX) ZONING DISTRICT IN ACCORDANCE WITH
SSFMC CHAPTERS 19.60, 20.090, 20.300, 20.330, 20.350, 20.400, 20.440,
20.450, 20.460, 20.480 & 20.490.
Address: 180 El Camino Real (APN 014-183-110)
Owner: Shamain Partnership
Applicant: El Camino and Spruce LLC
Case No.: P11-0065: UP11-0006, DR11-0019, TDM13-0001, DA13-0002 &
ND12-0004
RECOMMENDATION
It is recommended that the City Council follow the recommendation of the Planning
Commission and take the following actions:
1. Adopt a Resolution making findings and adopting Mitigated Negative Declaration
ND12-0004; and
2. Adopt a Resolution making findings and approving Planning Project P11-0065,
including Use Permit UP11-0006, Design Review DR11-0019, and Transportation
Demand Management Plan TDM13-0001 based on the attached draft findings and
subject to the attached draft conditions of approval; and
3. Waive reading and introduce an Ordinance approving Development Agreement
DA13-0002.
BACKGROUND / DISCUSSION
September 11th Staff Report and Discussion
The September 11, 2013 City Council Staff Report (without attachments) is attached for
background on the project. At that meeting, Council was supportive of the proposed project but
Staff Report
Subject: 180 El Camino Real - Mixed Use Development
Date: September 25, 2013
Page 3 of 3
2. Draft Entitlements Resolution
Exhibit A: Conditions of Approval (as attached to the draft resolution provided
with the September 11, 2013 City Council Packet)
Exhibit B: Preliminary Transportation Demand Management Plan (as attached to
the draft resolution provided with the September 11, 2013 City
Council Packet)
Exhibit C: Project Plans (as attached to the draft resolution provided with the
September 11, 2013 City Council Packet)
3. Draft Ordinance
Exhibit A: Development Agreement
4. City Council Staff Report – September 11, 2013
BMN/MVD/SK/GB/bg
RESOLUTION NO. _________
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
RESOLUTION APPROVING A COMMUNITY
DEVELOPMENT BLOCK GRANT (“CDBG”) LOAN
AGREEMENT BETWEEN THE CITY OF SOUTH SAN
FRANCISCO AND MID-PENINSULA HOUSING FOR
THE REHABILITATION OF THE SUNDIAL
APARTMENTS
WHEREAS, the City of South San Francisco (“City”) receives Community Development
Block Grant (“CDBG”) funds from the U.S. Department of Housing and Urban Development
(“HUD”) pursuant to the provisions of Title I of the Housing and Community Development Act
of l974, as amended; and
WHEREAS, Mid-Peninsula Housing (“MidPen”) has requested a loan of CDBG funds to
rehabilitate all eleven (11) affordable studio apartment units and make additional exterior
improvements to the Sundial Apartments located at 222-224 Grand Avenue; and
WHEREAS, staff recommends that the City Council adopt a resolution authorizing the
City, as lender, to enter into a loan agreement with no interest and no loan payments for a period
of fifty-five (55) years and authorizing the City to execute and record an Affordable Housing
Regulatory Agreement and Declaration of Restrictive Covenants (“Regulatory Agreement”)
which shall require the rents to be affordable to low-income households, for a term of not less
than fifty-five (55) years.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco that the City Council approves a loan agreement between the City of South San
Francisco and MidPen for the rehabilitation of the Sundial Apartments in the form of the
attached Loan Agreement.
BE IT FURTHER RESOLVED that the City Manager of the City of South San Francisco
is hereby authorized and directed to execute the loan agreement and any related documents on
behalf of the City, subject to approval as to final form by the City Attorney, and to take any other
action consistent with the intent of this Resolution.
* * * * *
I hereby certify that the foregoing Resolution was regularly introduced and adopted by
the City Council of the City of South San Francisco at a regular meeting held on the 23rd day of
October, 2013 by the following vote:
AYES: ________________________________________________________________
NOES: ________________________________________________________________
ABSTAIN: ________________________________________________________________
1
ABSENT: ________________________________________________________________
ATTEST: ______________________
City Clerk
2
South San Francisco Public Facility/Housing Activities
Application, Instructions and Checklist
FY 2013-14
Project Title:Sundial Apartments
Project Address:222-224 Grand Avenue City: South San
Francisco Zip: 94080
Project APN:012-315-120
Total Amount Requested under this NOFA:
$140,000 Total Project Cost: $144,000
Previously Approved City Funding: 0 Source: FY 2013/2014
Purpose of Funding for (check all applicable boxes):
Community Facility: Acquisiton Rehabilitation ADA Modifications
Affordable, Supportive, or Transitional Housing: Acquisiton Rehabilitation ADA Modifications
Housing repair and modification programs: Rehabilitation ADA Modifications
Other:
Applicant Name:Mid-Peninsula Belle Haven, Inc.
Address:303 Vintage Park Drive Suite 250 City: Foster City Zip: 94404
Phone:650-356-2911 Fax: hlee@midpen-housing.org
Type of Applicant:Non-Profit
Contact Person:Name: Helen Lee Title: Portfolio Manger
Phone:650-356-2911 Contact Email: hlee@midpen-housing.org
Agency Director: Matthew O. Franklin
Name & Title of Person Authorized to Execute Legal Documents with County for this Project (Should match
attachment 16):
Name: Matthew O. Franklin Title: Assistant Secretary
DUNS Number: 624084203 Federal EIN/TIN Number: 77-0047939
South San Francisco Public Facility/Housing Activities Project
1. Project Summary: Provide a brief narrative summary of the project. Description must include (a) program
specific objectives; (b) target population; (c) geographic impact (d) Description of what the funds will be used for.
What is the exact scope of services for which you plan to use requested funds?
Sundial Apartments is an 11-unit single room occupancy (SRO) development in downtown South San Francisco.
The majority of the residents have incomes that are less than 40% of Area Median Income.The proposed
rehabilitation scope of work for 2013 includes the following: exterior paint and stucco patch; new signage and
lighting; concrete work; replacement of obsolete electrical panel, stoves and water heater; common area flooring
and paint; and soft costs related to permitting.
10/9/2013http://www.citydataservices.net/cities/smatca/happ2013arc.pl?rpt=A2386&prop=283
Attachment A - Application
3
2. Project Beneficiaries: Indicate which CDBG National Objective this project meets and complete the subsequent
questions.
Low to Moderate Income Clientele (LMC)
a) Indicate the total number of low-income* beneficiaries you expect to serve in the chart below.
*Low Income is 80% of Area Median Income or below.
Beneficiaries# of Persons# of Households
# of Extremely Low Income* Persons/Households to be served:77
#of Very Low Income* Persons/Households to be served:22
# of Low Income* Persons/Households to be served:22
Total:1111
b) Income Verification:Describe how you obtain and verify income data.
*Income documentation must be available for review at all times
MidPen's Property Management Corporation conducts annual recertifications.
c. Population Served: Identify the primary population served by
your program. If more than one population is served rank them
numerically. You may only use a number once.
3. Project History. Please briefly describe the project's history leading to this request. Include such information as
when the site was acquired or will be acquired, if rehabilitating an existing structure include year that it was built,
any previous requests for County funding, changed in the project since those requests were made, attempts made
to secure other financing, how current project was estimated, and any other relevant information about the history
of the project.
Sundial was built in 1974 and was acquired by MidPen in 1983. The property was last rehabbed in 2000. The
property currently has a $120K City of South San Francisco loan on the property used for the rehab of the property
in 1989. MidPen requests additional rehab funds from the City of South San Francisco for 2013-2015 as funding is
available. Project costs are based on bid from contractor.
4. Project Details/Milestones: Do you have all necessary planning approvals? List all approvals required for your
project and indicate the status and actual or projected approval dates. You may refer to timeline (Attachment 7) for
details on project milestones.
The rehab scope of work will take approximately 2-3 months, including time for materials purchase and
construction.
5. Does your project require licensing?
6. Are plans and specifications completed?Yes
7. Green Building. Specify how you intend to incorporate Green Building methodology to your program.
We plan to install an energy-efficient water heater that will help to lower utilities costs which are all paid for by the
property.
10/9/2013http://www.citydataservices.net/cities/smatca/happ2013arc.pl?rpt=A2386&prop=283
Attachment A - Application
4
8. Other. Specify any other project issues that you feel should be considered in review of this application for funds.
Attachments
A. Resolution authorizing application and
designation of signatory
Mid-Peninsula_Coalition_Belle_Haven_Inc._Resolution_2013-
06.pdf
B. Certified financial audit Belle_Haven_Inc._-_2012_Final_Financial_Statements.pdf
C. Board roster MidPen_Board.pdf
D. Proof of 501(c)3 / tax-exempt status IRS_Determination_Letter.pdf
E. By-laws Amended_and_Restated_Bylaws.pdf
F. Articles of Incorporation Amended_and_Restated_Articles_of_Incorporation.pdf
G. Other -
H. Other -
ATTACHMENT 1 - PROJECT TEAM Specify
the names, experience, responsibilities and
roles of each team member. Indicate whether
they are full-time or part-time employees.
Project_Team.xlsx
ATTACHMENT 2 - SOURCES & USES
BUDGET/NARRATIVE The total cost of your
project, including construction costs, must be
shown. Please indicate all anticipated sources
and uses of funding in addition to City funds.
Please indicate all anticipated funding sources
separately. Provide a narrative explanation of
each line item.
Sundial_Rehab_2_Year_Budget_100913_-_For_City.xlsx
ATTACHMENT 3 - CONSTRUCTION
ESTIMATE Provide copies of any construction
bids/estimates obtained. If bids are not
available, please explain how you arrived at
estimated construction costs.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 4 - LABOR STANDARDS If
the proposed activity triggers Davis Bacon
prevailing wages, describe how you will meet
the Davis Bacon requirements.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 5 - OTHER FUNDS/LOCAL
MATCH Provide evidence of other fund
commitments or good faith efforts on your part
to seek other funding. For all funding sources,
attach documentation of funding commitments,
if available. Indicate the status of funding
requests if you do not have commitments.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 6 - AREA MAP/SITE
PHOTO/SITE PLAN Provide an area map
indicating location of the project, and a
photograph of the project site, along with site
plan.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 7 - EVIDENCE OF SITE
CONTROL Provide evidence of site control
(e.g. grant deed, sales agreement, option
agreement, lease agreement, etc.) showing
Attachment_submitted_via_email_or_not_required.docx
10/9/2013http://www.citydataservices.net/cities/smatca/happ2013arc.pl?rpt=A2386&prop=283
Attachment A - Application
5
that you have or will have the authority to carry
out the proposed project. If you do not currently
have site control, submit a narrative
explanation. If you lease the project site,
please submit a letter or agreement from the
owner/landlord or other documentation that you
are permitted to make the proposed
improvements to the premises.
ATTACHMENT 8 - TITLE REPORT If you own
or intend to take ownership of the real property,
please provide a copy of the most recent title
policy, or title report (issued within the past 6
months).
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 9 - APPRAISAL If your project
involves acquisition, even if you are not
intending to use County of San Mateo funds for
this purpose, please provide a copy of the
appraisal. If you do not yet have an appraisal,
please indicate when you expect to obtain one.
If you are requesting funds for acquisition, the
appraisal must be submitted no later than 30
days after application due date. County of San
Mateo reserves the right to request an
appraisal for all projects as determined by the
staff.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 10 - PROJECT TIMELINE
Provide a project schedule, designating
specific work tasks, projected delays,
accomplishments, escrow dates, projected
dates to receive all required funding,
construction start dates, and any other major
milestones. Please indicate any specific dates
or requirements for which County of San Mateo
funds will impact other funding sources or
deadlines.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 11 - RELOCATION PLAN If
the proposed project will require relocation of
residential or commercial tenants other than
yourself, provide a copy of the written
relocation plan. If you do not yet have a
relocation plan, please indicate when you
expect to provide one to DoH or City staff.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 12 - HAZARDOUS
MATERIALS MITIGATION If a hazardous
materials assessment has already been
prepared for the proposed project, please
submit a copy. Describe how you plan to
address any findings of hazardous materials
(e.g. lead, asbestos, mold) in your project.
County of San Mateo reserves the right to
request a Hazardous Materials Assessment.
Attachment_submitted_via_email_or_not_required.docx
ATTACHMENT 13 - PROPERTY
MANAGEMENT Indicate who will be
Attachment_submitted_via_email_or_not_required.docx
10/9/2013http://www.citydataservices.net/cities/smatca/happ2013arc.pl?rpt=A2386&prop=283
Attachment A - Application
6
responsible for on-going maintenance and
operations of the facility. Provide Name,
Address & Phone Number.
This application was prepared by:
Name: Helen Lee Title: Portfolio Manager
Initially submitted: May 21, 2013 - 16:56:27
Returned to Draft 05-28-2013 by South San Francisco
Reason: Please provide information for attachments 5, 6, 7, 8, 11, and 13. See email sent on 5/28/13 for more info. Thanks,
10/9/2013http://www.citydataservices.net/cities/smatca/happ2013arc.pl?rpt=A2386&prop=283
Attachment A - Application
7
Attachment A - Application
8
Attachment A - Application
9
Attachment A - Application
10
Sundial Apartments
Name Title/Role Address Phone #
Project Team
Jan Lindenthal Vice President of Real Estate Development 303 Vintage Park Drive Suite 250, Foster City, CA 94404 (650) 356-2919
Bruce Brackett Capital Asset Manager 303 Vintage Park Drive Suite 250, Foster City, CA 94404 (650) 356-2950
Peter Villareal Senior Asset Manager 303 Vintage Park Drive Suite 250, Foster City, CA 94404 (650) 356-2929
Helen Lee Senior Asset Analyst 303 Vintage Park Drive Suite 250, Foster City, CA 94404 (650) 356-2911
Property and Asset Management Team
Debra Sobeck Vice President of Property and Asset Management 303 Vintage Park Drive Suite 250, Foster City, CA 94404 (650) 356-2992
Kim Wolcott Director of Property Operations 303 Vintage Park Drive Suite 250, Foster City, CA 94404 (650) 356-2971
Steve Merritt Asset Manager 303 Vintage Park Drive Suite 250, Foster City, CA 94404 (650) 356-2949
Ana Jackson-Campbell Community Manager 2301 Cooley Avenue, East Palo Alto, CA 94303 (650) 323-1106
Note: All employees listed above are full-time employees.
Attachment A - Application
11
Sundial Apartments
222-224 Grand Avenue, South San Francisco
Draft Capital Improvement Budget for 2013-2015 (Phases 1 and 2)
Cost City MidPen
Capital Improvements Estimate Actual Actual Notes / Explanation of Request
Phase 1
Hard Costs
Exterior Paint 14,400$ 35,228$ Full exterior. Last painted in 2000.
Stucco Patch 2,500$ 1,295$
Signage/Lighting 8,000$ 3,980$ Install new signs for front and back of building and internal signage. Includes exterior lights and replacement of incandescent interior lights
Electrical 7,200$ 12,626$ Replace outdated electrical panel. Separate units onto different panels. Current system impacts all units if there is an outage in one unit.
Stoves 3,000$ 6,933$ Replace obsolete stoves. Current stoves will not work with an upgraded electrical panel.
Water Heater 6,000$ 6,419$ Replace with energy efficient water heater.
Concrete 4,000$ 8,024$ Replace deteriorated concrete at trash enclosure in back of building.
Exterior Doors 2,200$ 4,063$ Replace/refresh exterior doors, including new hardware for doors.
Interiors
Common Area - Flooring 10,000$ 31,594$ Replace with more durable rubber flooring for entranceway, hallway and two sets of stairwells.
Common Area - Paint 2,500$ 10,014$ Repaint entire common area.
Total Hard Costs 59,800$ 120,175$
Soft Costs
Sewer inspection 2,000$ 2,450$ Evaluation to assess condition of aging sewer system.
Terminix inspection 500$ 300$ Evaluation to assess extent of damage from termite activity.
Signage permit 370$ 220$ Type B permit plus fees, reduce by $150 if Type A.
Electrical permit 700$
Design for Signage
Design Review Board 770$ 770$ Historic District - review of paint scheme and signage.
Total Soft Costs 4,340$ 220$ 3,520$
Phase 1 Subtotal 64,140$ 120,395$ 3,520$
Construction Mangement 3,800$ 7,224$ 6% of rehab costs.
Contingency 6,414$ 12,018$ 10%
Phase 1 Total 74,354$ 139,637$ 3,520$
Phase 2
Solar Panels 35,000$ Solar panels to decrease utility costs.
Roof 20,000$ Roof last replaced in 2000 and would need to be replaced before installing solar panels.
Phase 2 Subtotal 55,000$
Construction Mangement 3,300$ 6% of rehab costs.
Contingency 5,830$
Phase 2 Total 64,130$
Attachment A - Application
12
Project Wage Rate Sheet U.S. Department of Housing and Urban Development Office of Labor Relations
form HUD-4720
(03/2004)
PROJECT NAME: MidPen Sundial Apartments Rehabilitation WAGE DECISION NUMBER/MODIFICATION NUMBER: CA130030 8/09/13 CA30 Mod #11
PROJECT NUMBER: PROJECT COUNTY: San Mateo
WORK CLASSIFICATION BASIC HOURLY RATE (BHR) FRINGE BENEFITS TOTAL HOURLY WAGE RATE LABORERS FRINGE BENEFITS: $ 15.82
Bricklayers 39.85 22.00 $61.85 GROUP # BHR TOTAL WAGE
Carpenters 38.50 25.68 $64.18
GROUP 1 27.14 $42.96
Cement Masons 28.65 18.56 $47.21
GROUP 2 26.99 $42.81
Drywall Hangers 37.50 23.58 $61.08
GROUP 3 26.89 $42.71
Electricians 50.00 24.64 $74.64
GROUP 4 20.58 $36.40
Iron Workers 33.00 26.30 $59.30 $
Painters 33.86 20.26 $54.12 OPERATORS FRINGE BENEFITS: $26.27
Plumbers 56.45 29.66 $86.11 GROUP # BHR TOTAL WAGE
Roofers 33.61 12.37 $45.98 GROUP 1 39.02 $65.29
Sheet Metal Workers 37.67 23.93 $61.60
GROUP 2 37.49 $63.76
Soft Floor Layers 44.87 17.98 $62.85
GROUP 3 36.01 $62.28
Tapers 40.37 20.07 $60.44
GROUP 4 34.63 $60.90
Tile Setters 38.61 13.73 $52.34 TRUCK DRIVERS FRINGE BENEFITS: $ OTHER CLASSIFICATIONS GROUP # BHR TOTAL WAGE
$ $
$ $
$ $ ADDITIONAL CLASSIFICATIONS (HUD Form 4230-A) WORK CLASSIFICATION
BASIC HOURLY RATE
FRINGE BENEFITS
TOTAL HOURLY WAGE RATE
DATE OF HUD SUBMISSION TO DOL
DATE OF DOL APPROVAL $ $ $ $
Attachment A - Application
13
At
t
a
c
h
m
e
n
t
A
-
A
p
p
l
i
c
a
t
i
o
n
14
Attachment A - Application
15
Attachment A - Application
16
The following application attachments are available upon City Council’s request
• Certified financial audit
• Board Roster
• Proof of 501(c)3 / tax-exempt status
• By-laws
• Articles of Incorporation
• Area Map/Site Plan
• Evidence of site control
• Title Report
Attachment A - Application
17
Sundial Apartments
222-224 Grand Avenue, South San Francisco
Draft Capital Improvement Budget for 2013-2015 (Phases 1 and 2)
Cost City MidPen
Capital Improvements Estimate Actual Actual Notes / Explanation of Request
Phase 1
Hard Costs
Exterior Paint 14,400$ 35,228$ Full exterior. Last painted in 2000.
Stucco Patch 2,500$ 1,295$
Signage/Lighting 8,000$ 3,980$ Install new signs for front and back of building and internal signage. Includes exterior lights and replacement of incandescent interior lights
Electrical 7,200$ 12,626$ Replace outdated electrical panel. Separate units onto different panels. Current system impacts all units if there is an outage in one unit.
Stoves 3,000$ 6,933$ Replace obsolete stoves. Current stoves will not work with an upgraded electrical panel.
Water Heater 6,000$ 6,419$ Replace with energy efficient water heater.
Concrete 4,000$ 8,024$ Replace deteriorated concrete at trash enclosure in back of building.
Exterior Doors 2,200$ 4,063$ Replace/refresh exterior doors, including new hardware for doors.
Interiors
Common Area - Flooring 10,000$ 31,594$ Replace with more durable rubber flooring for entranceway, hallway and two sets of stairwells.
Common Area - Paint 2,500$ 10,014$ Repaint entire common area.
Total Hard Costs 59,800$ 120,175$
Soft Costs
Sewer inspection 2,000$ 2,450$ Evaluation to assess condition of aging sewer system.
Terminix inspection 500$ 300$ Evaluation to assess extent of damage from termite activity.
Signage permit 370$ 220$ Type B permit plus fees, reduce by $150 if Type A.
Electrical permit 700$
Design for Signage
Design Review Board 770$ 770$ Historic District - review of paint scheme and signage.
Total Soft Costs 4,340$ 220$ 3,520$
Phase 1 Subtotal 64,140$ 120,395$ 3,520$
Construction Mangement 3,800$ 7,224$ 6% of rehab costs.
Contingency 6,414$ 12,018$ 10%
Phase 1 Total 74,354$ 139,637$ 3,520$
Phase 2
Solar Panels 35,000$ Solar panels to decrease utility costs.
Roof 20,000$ Roof last replaced in 2000 and would need to be replaced before installing solar panels.
Phase 2 Subtotal 55,000$
Construction Mangement 3,300$ 6% of rehab costs.
Contingency 5,830$
Phase 2 Total 64,130$
Attachment B - Scope of Work
18
Attachment B - Scope of Work
19
Attachment B - Scope of Work
20
Attachment B - Scope of Work
21
375 Meridian Ave.
San Jose, CA 95126
(408) 885-9900
www.ThinkSignCraft.com
CA Lic. # 894712
Mid-Pen Housing
303 Vintage Park, Suite 250
Foster City, CA 94404
Mark Messier
650.356.2911
Sundial Apartments
224 Grand Ave.
South San Francisco
Page 1 of 8
Revised 08/07/2013
Sundial Apartments
BUILDING SIGNS
qty: 2
36"x8"
2 sq. ft.
.080" Aluminum
Graphics on face.
8""
36"
Attachment B - Scope of Work
22
375 Meridian Ave.
San Jose, CA 95126
(408) 885-9900
www.ThinkSignCraft.com
CA Lic. # 894712
Mid-Pen Housing
303 Vintage Park, Suite 250
Foster City, CA 94404
Mark Messier
650.356.2911
Sundial Apartments
224 Grand Ave.
South San Francisco
Page 2 of 8
Revised 08/07/2013
Sundial Apartments
PROPOSED SIGN LOCATIONS
qty: 2
36"x8"
2 sq. ft.
.080" Aluminum
Graphics on face.
Street front.
Existing canopy above door
to be removed.
Back of Building
Attachment B - Scope of Work
23
Proposal #18920 - Page 1 of 3
PROPOSAL & CONTRACT
4608 Enterprise Commons Fremont, CA 94538 510-657-6764 Fax 510-657-6765
Proposal #18920 - Page 2 of 3
PROPOSAL & CONTRACT
4608 Enterprise Commons Fremont, CA 94538 510-657-6764 Fax 510-657-6765
Base Bid:
Electrical:
• Remove and replace existing electrical sub panel with new 125A 40 circuit panel
• Supply and install new 12 gauge wiring from new sub panel to new cooktops at 20A 240V
receptacle
o Includes necessary drywall removal, replacement, texturing, and painting
Concrete Replacement:
• Remove and replace concrete at rear of building, to include the following:
o Strip of concrete approximately 18”x33’
o (1) new concrete stair and entry
o (2) new impact bollards at gas meter
o Concrete at garbage enclosure area
Exterior and Interior Lighting:
• Supply and install new Lithonia #OLFL 14 PE BZ 14 at rear entrance to building
• Replace incandescent light bulbs at interior of building with fluorescents
Exterior and Interior Painting:
• Paint exterior of building complete – to be rolled, not sprayed
o Includes water containment
o Stucco cracks to be sealed
o Includes supply and install of new sheetmetal head flashing at electrical meters
• Paint interior of common area corridor and stairwells complete
Appliances:
• Supply and install (11) General Electric JP201CBSS electric cooktops and dispose of existing
Hot Water Heater:
• Remove and replace existing water heater with new and dispose of existing
Property Signage:
• Supply and install new signage per SignCraft Package
Exterior Doors:
• Remove and replace (2) exterior entry doors with Pre-Hung exterior grade fiberglass doors
Garbage Enclosure:
• Patch damaged stucco
• Supply and install new wood bumpers
Common Area Flooring:
• Supply and install new Burke Endura Rubber flooring at entry stairs and landings
Base Bid Total: $116,250.00
Add Option 1: _______(INITIAL)
Common Area Flooring:
• Remove and replace existing carpet flooring at common area corridor with new
Floormasters Conqueror Flooring
Add Option 1 Total: $3,925.00
Attachment C – Bid
25
Proposal #18920 - Page 3 of 3
PROPOSAL & CONTRACT
4608 Enterprise Commons Fremont, CA 94538 510-657-6764 Fax 510-657-6765
NOTES:
Contractor used San Mateo County prevailing wage rates
Contractor has assumed there is no lead or asbestos present – to be tested be others or additional costs may be
incurred.
Contractor has assumed new cooktops will fit in existing opening. No new countertops have been included in
proposal.
Contractor to touch up paint/texture at drywall repairs at interiors of units only, no painting/texturing corner to
corner. It is to be understood a slight difference in color/texture may be evident.
Contractor to be provided with adequate staging and storage areas – to be approximately 3 parking spaces.
Contractor to work directly with residents and property manager to coordinate all site safety issues, work activities
and tenant notifications.
Contractor has assumed access to all units will be granted as needed. If stand around time occurs, additional charges
will be incurred.
If any additional hidden rot or termite damage is found, it will be brought to your attention immediately.
We will use care to minimize any damage to existing landscaping where our work occurs. Acceptance of this proposal
acknowledges that some damage may occur.
Code upgrades and/or changes required by municipalities are excluded unless specifically noted above.
We exclude any permits, engineering, drawings, or any work not specifically described above. Should building
permits be required for the work above, related permit fees will be billed separately at cost with no mark up.
As a result of the Carbon Monoxide Poisoning Prevention Act passed in 2010, municipalities now require that an
affidavit be signed to indicate that each and every unit associated with a building permit have operational carbon
monoxide detectors installed in the code required locations. Failure to submit these affidavits will prevent final sign
off of the building permit; funds shall not be withheld from M.L. Nielsen for this reason. M.L. Nielsen will not be
responsible for obtaining these affidavit(s). If the property owner does not comply with the City’s requirements and
M.L. Nielsen is forced to intervene to ensure the permit will be signed off, M.L. Nielsen will bill for all costs related to
this service on a time and materials basis plus overhead and profit.
Attachment C – Bid
26
Total Number of Units:
Total Number of Buildings:
Total Net Rentable SF:
Total Building Gross SF:
Average Unit Net SF:
Total Clubhouse Net SF:
Quantity Per Cent NRSFTotal NRSFGSF
Line item
cost Cost/UnitCost/ NRSFCost/GSF
100010 $0 $0 $0 $0
100020 $0 $0 $0 $0
100030 $0 $0 $0 $0
100040 $0 $0 $0 $0
100050 $0 $0 $0 $0
100060 $0 $0 $0 $0
130010 $0 $0 $0 $0
130020 $0 $0 $0 $0
130030 $0 $0 $0 $0
131010 $0 $0 $0 $0
135010 $0 $0 $0 $0
151010 $0 $0 $0 $0
151020 $0 $0 $0 $0
151030 $0 $0 $0 $0
152010 $0 $0 $0 $0
152020 $0 $0 $0 $0
152030 $0 $0 $0 $0
154010 $0 $0 $0 $0
156010 $0 $0 $0 $0
156020 $0 $0 $0 $0
156030 $0 $0 $0 $0
174010 $0 $0 $0 $0
174020 $0 $0 $0 $0
174030 $0 $0 $0 $0
174040 $0 $0 $0 $0
178010 $0 $0 $0 $0
178020 $0 $0 $0 $0
$0 $0 $0 $0
$5,000$0 $0 $0
200010 $0 $0 $0 $0
210010 $0 $0 $0 $0
210020 $0 $0 $0 $0
220010 $0 $0 $0 $0
236010 $0 $0 $0 $0
237010 $0 $0 $0 $0
251010 $0 $0 $0 $0
253010 $0 $0 $0 $0
2530 20 $0 $0 $0 $0
2540 10 $0 $0 $0 $0
254020 $0 $0 $0 $0
258010 $0 $0 $0 $0
258020 $0 $0 $0 $0
258030 $0 $0 $0 $0
270010 $0 $0 $0 $0
275010 $0 $0 $0 $0
275010 $0 $0 $0 $0
275020 $0 $0 $0 $0
278510 $0 $0 $0 $0
282010 $0 $0 $0 $0
282020 $0 $0 $0 $0
283030 $0 $0 $0 $0
283040 $0 $0 $0 $0
283060 $0 $0 $0 $0
283070 $0 $0 $0 $0
287010 $0 $0 $0 $0
287020 $0 $0 $0 $0
287030 $0 $0 $0 $0
287040 $0 $0 $0 $0
287050 $0 $0 $0 $0
287060 $0 $0 $0 $0
287070 $0 $0 $0 $0
287080 $0 $0 $0 $0
Playgrounds
Volleyball courts
Basketball courts
Sport courts
Water
Temporary Toilets
Dumpsters
Broken Glass
Spare Parts per Contract Documents
Punchout Labor
Small Tools
Temporary Fencing
Final Cleaning
Periodic Cleaning
CSI Division Description
Underground environmental remediation
General Liability Insurance
Workers Comp Insurance
Division 1 General Requirements
General Superintendent
Field Superintendent
Blueprints & Copies
Site Security
Builder's Risk Insurance
Umbrella Liability Insurance
Other Insurance
Project Manager
Payment & Performance Bond
Office Trailer
Field Office Expenses
Equipment rental
Safety Equipment
Telephone
Electricity
Natural Gas Underground
Electrical Underground
Telephone site distribution underground
Asphalt Repair
Surveying & staking
Subtotal Div. 1 General Requirements
Division 2A Site Construction
Other site environmental remediation
Erosion Control - SWPPP
Storm Drains
Demolition
Termite Control
Fire Water Underground
Sanitary Sewer Underground
Concrete curb & gutter
Wheel Stops
Concrete sidewalks ADA WORK
Perimeter wood fences & gates
Asphalt Seal Coat
Tennis courts
Chain Link Fences
Sound walls
Retaining walls
Concrete walls
Stone walls
Site Furnishings - garbage cans, ash trays etc.
Pool furniture
Barbecues
0
Prepared by:
Number of Garage Buildings:
Number of Detached Garages:
ML Nielsen Construction
1
0
0
0
0
Sundial Apartments
MOUNTAIN VIEW CA
Number of Carports:
Number of Storage Spaces:
Bid Date:
0
Project Bid
Bid Worksheet
Contractor:9/6/2013
0
Number of Attached Garages:0
0
0
Total Project Acerage:
Unit Type Total GSF
Unit Mix
Septic systems
Septic leach fields
MidPen Estimate Worksheet_Sundial Apartments_MLN.xlsx 1 of 7
Attachment C – Bid
27
Total Number of Units:
Total Number of Buildings:
Total Net Rentable SF:
Total Building Gross SF:
Average Unit Net SF:
Total Clubhouse Net SF:
Quantity Per Cent NRSFTotal NRSFGSF
Line item
cost Cost/UnitCost/ NRSFCost/GSFCSI DivisionDescription
0
Prepared by:
Number of Garage Buildings:
Number of Detached Garages:
ML Nielsen Construction
1
0
0
0
0
Sundial Apartments
MOUNTAIN VIEW CA
Number of Carports:
Number of Storage Spaces:
Bid Date:
0
Project Bid
Bid Worksheet
Contractor:9/6/2013
0
Number of Attached Garages:0
0
0
Total Project Acerage:
Unit Type Total GSF
Unit Mix
290010 $0 $0$0$0
281010 $0 $0$0$0
$0 $0$0$0
$0 $0$0$0
$0 $0$0$0
$0 $0$0$0
$0$0$0$0
299910 $0 $0$0$0
299920 $0 $0$0$0
299930 $0 $0$0$0
299940 $0 $0$0$0
299950 $0 $0$0$0
299960 $0 $0$0$0
299970 $0 $0$0$0
299980 $0 $0$0$0
$0 $0$0$0
$0$0$0$0
330010 $0 $0$0$0
350010 $0 $0$0$0
354010 $0 $0$0$0
355010 $0 $0$0$0
356010 $0 $0$0$0
357010 $0 $0$0$0
358010 $0 $0$0$0
358020 $0 $0$0$0
390010 $0 $0$0$0
$6,250$0$0$0
421010 $0 $0$0$0
422010 $0 $0$0$0
440010 $0 $0$0$0
480010 $0 $0$0$0
490010 $0 $0$0$0
$0 $0$0$0
$0$0$0$0
510010 $0 $0$0$0
550010 $0 $0$0$0
552010 $0 $0$0$0
570010 $0 $0$0$0
570020 $0 $0 $0 $0
570030 $0 $0 $0 $0
580010 $0 $0 $0 $0
$0 $0 $0 $0
6100 10 $0 $0 $0 $0
610020 $0 $0 $0 $0
610030 $0 $0 $0 $0
610040 $0 $0 $0 $0
610050 $0 $0 $0 $0
620010 $0 $0 $0 $0
620020 $0 $0 $0 $0
Subtotal Div. 2B Off-site Work
Off-site water distribution
Off-site sanitary sewer
Off-site storm sewer
Off-site curb & gutter
Subtotal Div. 2A Site Construction
Division 2B Off-site Work
Landscaping
Irrigation
Site Specific Issues - Describe
Division 4 Masonry
Brick Veneer - exterior
Division 3 Concrete
Off-site asphalt paving
Off-site Signalization
Off-site public walkways
Off-site lighting
Gypsum toppings
Entry monument
Structural steel
Division 5 Metals
Trash/recycle enclosures
Stone veneer
Pool steel fence
Division 6 Woods & Plastics
Masnory restoration & cleaning
Rough carpentry - labor
Expansion control
Structural metal fabrications
Metal stairs, treads & rails
Patio/balcony rails
Perimeter steel fence
Finish carpentry - labor
Finish carpentry - materials
Rough Carpentry - lumber
Roof trusses
Floor trusses
Trellis work - garbage enclosure/landscape
Foundations & Slabs
Lightweight concrete toppings - decks etc.
A/C condenser pads
Swimming pool deck
Decorative concrete
Post-tensioned structural pads
Concrete Restoration & Cleaning
Subtotal Div. 5 Metals
Subtotal Div. 3 Concrete
Subtotal Div. 4 Masonry
Concrete podium garage repairs
MidPen Estimate Worksheet_Sundial Apartments_MLN.xlsx 2 of 7
Attachment C – Bid
28
Total Number of Units:
Total Number of Buildings:
Total Net Rentable SF:
Total Building Gross SF:
Average Unit Net SF:
Total Clubhouse Net SF:
Quantity Per Cent NRSFTotal NRSFGSF
Line item
cost Cost/UnitCost/ NRSFCost/GSFCSI DivisionDescription
0
Prepared by:
Number of Garage Buildings:
Number of Detached Garages:
ML Nielsen Construction
1
0
0
0
0
Sundial Apartments
MOUNTAIN VIEW CA
Number of Carports:
Number of Storage Spaces:
Bid Date:
0
Project Bid
Bid Worksheet
Contractor:9/6/2013
0
Number of Attached Garages:0
0
0
Total Project Acerage:
Unit Type Total GSF
Unit Mix
627010 $0 $0$0$0
627020 $0 $0$0$0
$0 $0$0$0
$0$0$0$0
710010 $0 $0 $0 $0
710020 $0 $0 $0 $0
713010 $0 $0 $0 $0
714010 $0 $0 $0 $0
717010 $0 $0 $0 $0
720010 $0 $0 $0 $0
731010 $0 $0 $0 $0
731020 $0 $0 $0 $0
732010 $0 $0 $0 $0
745010 $0 $0 $0 $0
746010 $0 $0 $0 $0
746020 $0 $0 $0 $0
746030 $0 $0 $0 $0
751010 $0 $0 $0 $0
755010 $0 $0 $0 $0
759010 $0 $0 $0 $0
762010 $0 $0 $0 $0
771010 $0 $0 $0 $0
784010 $0 $0 $0 $0
790010 $0 $0 $0 $0
$0 $0 $0 $0
$0 $0 $0 $0
$0$0 $0 $0
810010 $0 $0 $0 $0
810015 $0 $0 $0 $0
810017 $0 $0 $0 $0
810018 $0 $0 $0 $0
810019 $0 $0 $0 $0
810020 $0 $0 $0 $0
821010 $0 $0 $0 $0
825010 $0 $0 $0 $0
825020 $0 $0 $0 $0
826010 $0 $0 $0 $0
831010 $0 $0 $0 $0
836010 $0 $0 $0 $0
8400 10 $0 $0 $0 $0
8520 10 $0 $0 $0 $0
856010 $0 $0 $0 $0
856020 $0 $0 $0 $0
856030 $0 $0 $0 $0
870010 $0 $0 $0 $0
870020 $0 $0 $0 $0
870025 $0 $0 $0 $0
870030 $0 $0 $0 $0
870040 $0 $0 $0 $0
871010 $0 $0 $0 $0
872010 $0 $0 $0 $0
872020 $0 $0 $0 $0
874010 $0 $0 $0 $0
877010 $0 $0 $0 $0
$3,165$0 $0 $0
911010 $0 $0 $0 $0
920010 $0 $0 $0 $0
Access doors
Sectional overhead doors
Closet sliding doors
Key boxes (leasing/maintenance offices)
Division 9 Finishes
Subtotal Div. 8 Doors & Windows
Garage door opener equipment
Metal framed storefront doors
Metal framed windows & screens
Vinyl windows - nail on fin & screens
Finish hardware
Vinyl windows - retrofit - & screens
Vinyl sliding glass door & screen replacements
Interior door & jamb repair
Entry door lockset replacement
Passage door lockset replacement
Interior door privacy lockset replacement
Entry door viewer
Stucco - 3 coat system L & M
Electro-Mechanical hardware (door hold opens etc)
Weatherstripping & seals
Ceiling suspension - hat channel etc
Slipsheet membrane waterproofing
Direct bond fluid membrane decking
Betonite sheet membrane
Building Insulation
Closet shelving-wood
Division 7 Thermal & Moisture
Waterproofing podium concrete deck
Subtotal Div. 6 Woods & Plastics
Plywood siding - L & M
Vinyl siding - L & M
Built-up roofing
Sheetmetal flashing & trim
Modified Bitiminous membrane roofing
Roof maintenance & repair
Roof shingles - fiberglass
Roof tiles - cement
Roof shingles - repair
Cementitious siding - L & M
Gutters & downspouts
Firestopping
Sealants & caulking
Division 8 Doors & Windows
Smoke seal entry doors
Fiberglass insullated doors (entry)
Wood faced solid core replacement entry doors
Subtotal Div. 7 Thermal & Moisture
Interior prehung doors
Shingle panel siding
Steel faced insullated doors (entry)
Standard steel doors (utility)
Entry door jamb repair
Waterproofing repair
Interior doors
Entry door repair
MidPen Estimate Worksheet_Sundial Apartments_MLN.xlsx 3 of 7
Attachment C – Bid
29
Total Number of Units:
Total Number of Buildings:
Total Net Rentable SF:
Total Building Gross SF:
Average Unit Net SF:
Total Clubhouse Net SF:
Quantity Per Cent NRSFTotal NRSFGSF
Line item
cost Cost/UnitCost/ NRSFCost/GSFCSI DivisionDescription
0
Prepared by:
Number of Garage Buildings:
Number of Detached Garages:
ML Nielsen Construction
1
0
0
0
0
Sundial Apartments
MOUNTAIN VIEW CA
Number of Carports:
Number of Storage Spaces:
Bid Date:
0
Project Bid
Bid Worksheet
Contractor:9/6/2013
0
Number of Attached Garages:0
0
0
Total Project Acerage:
Unit Type Total GSF
Unit Mix
920020 $0 $0$0$0
925010 $0 $0$0$0
925020
930010 $0 $0$0$0
958010 $0 $0$0$0
965010 $0 $0$0$0
965020 $0 $0$0$0
968010 $0 $0$0$0
968020 $0 $0$0$0
968030 $0 $0$0$0
968035 $0 $0$0$0
968040 $0 $0$0$0
968050 $0 $0$0$0
970010 $0 $0$0$0
990010 $0 $0$0$0
990020 $0 $0$0$0
$57,800 $0 $0 $0
1015010 $0 $0 $0 $0
1030010 $0 $0 $0 $0
1035010 $0 $0 $0 $0
1040010 $0 $0 $0 $0
1043010 $0 $0 $0 $0
1052010 $0 $0 $0 $0
1053010 $0 $0 $0 $0
1053020 $0 $0 $0 $0
1055010 $0 $0 $0 $0
1067010 $0 $0 $0 $0
1080010 $0 $0 $0 $0
1080010 $0 $0 $0 $0
1080015 $0 $0 $0 $0
1080020 $0 $0 $0 $0
1082030 $0 $0 $0 $0
1082040 $0 $0 $0 $0
1083010 $0 $0 $0 $0
$0 $0 $0 $0
$3,100$0 $0 $0
1101010 $0 $0 $0 $0
1107010 $0 $0 $0 $0
1102010 $0 $0 $0 $0
1111010 $0 $0 $0 $0
1113010 $0 $0 $0 $0
1117010 $0 $0 $0 $0
1117020 $0 $0 $0 $0
1130010 $0 $0 $0 $0
1140010 $0 $0 $0 $0
1144010 $0 $0 $0 $0
1145010 $0 $0 $0 $0
1145020 $0 $0 $0 $0
1145030 $0 $0 $0 $0
1145040 $0 $0 $0 $0
1145020 $0 $0 $0 $0
1146010 $0 $0 $0 $0
1128010 $0 $0 $0 $0
1128020 $0 $0 $0 $0
$5,400 $0 $0 $0
12300 10 $0 $0 $0 $0
1230020 $0 $0 $0 $0
Drywall repair
Kitchen & bath modular cabinets - Plan 1
Bath accessories - shower curtain rod
Bath accessories - towel bars, TP holders
Awnings - Canvas
Maintenance equipment
Built-in ironing boards
Bath accessories - medicine cabinet
Wire shelving
Toilet & bath accessories
Bath accesssories - mirror replacement
Property monument sign
Manufactured fireplaces
Carpet - family
Common halls
Carpet cleaning
Division 10 Specialties
Toilet partitions (common restrooms)
Interior paint - L & M
Carpet - special access
Carpet - glue down
Exterior paint - L & M
Stucco - 1 coat system - L & M
Drywall including tape and finish new drywall
Ceramic tile
Carpet pad
Resiliant flooring - Kitchen
Suspended T Bar ceilings
Subtotal Div. 9 Finishes
Resiliant flooring - bathroom
Flagpoles
Project signage
Commercial laundry equipment
Door bell replacement
Audio-Visual (clubhouse)
Division 11 Equipment
Safe (Leasing office)
Automatic gate openers/motors/controls
Division 12 Furnishings
Subtotal Div. 11 Equipment
Access electronics to resident amenities
Kitchen & bath modular cabinets - Panit & Repair
Food equipment - garbage disposer
Appliances - apartments - range hoods
Tub wall surround - fiberglass/ABS
Awnings - Metal
Postal specialties
Washers & dryers
Unit kitchens
Appliances - apartments - refrigerators
Appliances - apartments - dishwashers
Sewage treatement equipment
Bath accessories - mirror repair
Waste Compactor
Subtotal Div. 10 Specialties
Fire extinguishers/cabinets
Recycle equipment
Appliances - apartments - ranges
Food service equipment
MidPen Estimate Worksheet_Sundial Apartments_MLN.xlsx 4 of 7
Attachment C – Bid
30
Total Number of Units:
Total Number of Buildings:
Total Net Rentable SF:
Total Building Gross SF:
Average Unit Net SF:
Total Clubhouse Net SF:
Quantity Per Cent NRSFTotal NRSFGSF
Line item
cost Cost/UnitCost/ NRSFCost/GSFCSI DivisionDescription
0
Prepared by:
Number of Garage Buildings:
Number of Detached Garages:
ML Nielsen Construction
1
0
0
0
0
Sundial Apartments
MOUNTAIN VIEW CA
Number of Carports:
Number of Storage Spaces:
Bid Date:
0
Project Bid
Bid Worksheet
Contractor:9/6/2013
0
Number of Attached Garages:0
0
0
Total Project Acerage:
Unit Type Total GSF
Unit Mix
1230030 $0 $0$0$0
1230040 $0 $0$0$0
1230050 $0 $0$0$0
1232010 $0 $0$0$0
1232020 $0 $0$0$0
1232030 $0 $0$0$0
1232040 $0 $0$0$0
1232050 $0 $0$0$0
1230020 $0 $0$0$0
1240010 $0 $0$0$0
1241010 $0 $0$0$0
1249010 $0 $0$0$0
1249020 $0 $0$0$0
1250010 $0 $0$0$0
$0 $0$0$0
$0$0$0$0
1310010 $0 $0$0$0
1310020 $0 $0$0$0
1310030 $0 $0$0$0
1310040 $0 $0$0$0
1312010 $0 $0$0$0
1312030 $0 $0$0$0
1315010 $0 $0$0$0
1315020 $0 $0$0$0
1316010 $0 $0$0$0
1328010 $0 $0$0$0
1370010 $0 $0$0$0
1380010 $0 $0$0$0
1385010 $0 $0$0$0
1385020 $0 $0$0$0
1391010 $0 $0$0$0
1380010 $0 $0$0$0
$0$0$0$0
1420010 $0 $0$0$0
1429010 $0 $0$0$0
1429020 $0 $0 $0 $0
1440010 $0 $0 $0 $0
$0$0 $0 $0
15100 10 $0 $0 $0 $0
15100 20 $0 $0 $0 $0
1510030 $0 $0 $0 $0
1541010 $0 $0 $0 $0
1541020 $0 $0 $0 $0
1541025 $0 $0 $0 $0
1541026 $0 $0 $0 $0
1541030 $0 $0 $0 $0
1541035 $0 $0 $0 $0
1541036 $0 $0 $0 $0
1541040 $0 $0 $0 $0
1541050 $0 $0 $0 $0
1541060 $0 $0 $0 $0
1541070 $0 $0 $0 $0
1541080 $0 $0 $0 $0
1548010 $0 $0 $0 $0
1573010 $0 $0 $0 $0
1575010 $0 $0 $0 $0
Plumbing fixtures - bath counter, faucet, P-trap
Plumbing fixtures - bathtub replacement
Plumbing fixtures - shower pan replacement
Humidity control equipment/humidistat
Kitchen & bath plastic laminate counters - Plan 1
Kitchen & bath plastic laminate counters - Plan 2
Kitchen & bath plastic laminate counters - Plan 3
Kitchen & bath plastic laminate counters - Plan 4
Plumbing fixtrues - bath vanity angle stops & risers
Plumbing fixtures - toilet replacement
Plumbing fixtures - toilet angle stop replacement
Building natural gas piping
Kitchen & bath modular cabinets - Plan 4
Kitchen & bath modular cabinets - Plan 2
Handicap lifts
Division 15 Mechanical & Plumbing
Plumbing water supply - apartments
File cabinets - office
Office equipment
Window coverings - leasing office
Kitchen & bath modular cabinets - Plan 3
Plumbing sanitary waste system
Elevator cab rehab
Subtotal Div. 14 Conveying Systems
Water feature/fountain
Automatic gate openers/motors/controls
Fire sprinkler system - above ground
Furniture - leasing office
Leasing building cabinets and counters
Asbestos Remediation
Carports
Picnic pavilion
Swimming pool
Swimming pool equipment
Fire alarm system
Plumbing fixtures - Bathroom fauset
Plumbing fixtures - Bathroom shower valve assembly
Division 14 Conveying Systems - Elevators
Elevator equipment rehab
Retrofit smoke alarms - per room - labor & materials
Hydraulic Elevators
Pumbing fixtures -apartments - toilet
Security alarm system - leasing office/models
Automatic gate openers/motors/controls
Subtotal Div. 13 Special Construction
Window coverings - apartments
Subtotal Div. 12 Furnishings
Clubhouse building
Clubhouse upgrades
Garage buildings
Maintenance building
Division 13 Special Construction
Plumbing fixtures - Kitchen sink, faucet, P-trap
Plumbing fixtures - kitchen angle stops & risers
Pumbing fixtures - community buildings
Domestic water heaters
Package air conditioning equipment
Kitchen & bath plastic laminate counters -repair/coat
MidPen Estimate Worksheet_Sundial Apartments_MLN.xlsx 5 of 7
Attachment C – Bid
31
Total Number of Units:
Total Number of Buildings:
Total Net Rentable SF:
Total Building Gross SF:
Average Unit Net SF:
Total Clubhouse Net SF:
Quantity Per Cent NRSFTotal NRSFGSF
Line item
cost Cost/UnitCost/ NRSFCost/GSFCSI DivisionDescription
0
Prepared by:
Number of Garage Buildings:
Number of Detached Garages:
ML Nielsen Construction
1
0
0
0
0
Sundial Apartments
MOUNTAIN VIEW CA
Number of Carports:
Number of Storage Spaces:
Bid Date:
0
Project Bid
Bid Worksheet
Contractor:9/6/2013
0
Number of Attached Garages:0
0
0
Total Project Acerage:
Unit Type Total GSF
Unit Mix
1576010 $0 $0$0$0
1576020 $0 $0$0$0
1576030 $0 $0$0$0
1576040 $0 $0$0$0
1577010 $0 $0$0$0
1583010 $0 $0$0$0
1583020 $0 $0$0$0
15905 10 $0 $0$0$0
1595010 $0 $0$0$0
$5,000$0$0$0
1610010 $0 $0$0$0
1614010 $0 $0$0$0
1614020 $0 $0$0$0
1614030 $0 $0$0$0
1614040 $0 $0$0$0
1620010 $0 $0$0$0
1640010 $0 $0$0$0
1650020 $0 $0$0$0
1650030 $0 $0$0$0
1650040 $0 $0$0$0
1650050 $0 $0$0$0
1650060 $0 $0$0$0
1650070 $0 $0$0$0
1650010 $0 $0$0$0
1650020 $0 $0$0$0
1652010 $0 $0$0$0
1653010 $0 $0$0$0
1670010 $0 $0$0$0
1670020 $0 $0$0$0
1670030 $0 $0$0$0
1670040 $0 $0$0$0
1670020 $0 $0$0$0
1674010 $0 $0$0$0
1674020 $0 $0$0$0
1680010 $0 $0$0$0
1680020 $0 $0$0$0
1680030 $0 $0$0$0
1680040 $0 $0$0$0
$9,835$0$0$0
$5,000$0$0$0
$0$0$0$0
$0$0$0$0
$90,550 $0 $0 $0
$0 $0 $0 $0
$20,700
$116,250
Contractor represents that it has, in its role of construction contractor and not as a design professional, (i) familiarized itself with applicable building, plumbing,
mechanical, electrical, fire and other codes, rules, regulations, ordinances and laws bearing upon the Work consistent with the standard of care and industry
standards applicable to the Contractor, (ii) carefully studied the Bid Documents with each other and with information furnished by the Owner and Owner
Consultants and (iii) carefully inspected the property for as-built conditions (iv)advised the Owner in writing of any errors and inconsistencies in the Drawings and
Specifications and variations from site conditions that it discovered and any changes to the Drawings and Specifications which, in Contractor’s experience, will be
required to complete the Work. The Contractor represents that, except as the Contractor may advise the Owner in a written notice with its bid submittal, the
information available to the Contractor is sufficient in content and detail to complete the Work and to enable the Contractor to deliver, within the Bid Sum and the
proposed construction time schedule, a fully completed Project with all appurtenant improvements without the need for any change the Contract Sum specified in
theBid
Electrical - new coverplates, plugs & swithces
Subtotal Div. Mechanical & Plumbing
Electrical - L & M
Electrical - site luninaries/poles/grounds
Emergency lighting
Telephone system - apartments
Telephone phone jack replacement
Telephone inside wiring repair
Telephone - IDF repair
Summary
Telephone system - office
High speed data system - apartments
High speed data system - office
Television system - outside wire rebuild
Television/CATV system rebuild complete
Electrical - GFCI's Kitchen
Electrical - GFCI's Bathroom
Thermostat - replace
Baseboard electric heater replacement - livingroom
Bathroom electric wall heater
Bathroom exhaust fan replacement
Bathroom exhaust fan repair/motor replacement etc
Central heating & cooling units
Baseboard electric heater replacement - bedrooms
Baseboard electric heater replacement - dining room
Testing, adjusting & balancing
General Contractor Fee
Subtotal General Requirements - Div. 1
Subtotal Site Work - Div. 2A
Subtotal Hard Costs Divs. 3 - 16
Subtotal Off-site Work Div. 2B
Subtotal Electrical & Communications
Apartment light fixtures/heat element - bathroom
Television/CATV jack replacement
Television/CATV inside wire repair
Contract Contingency
Electrical - fixtures in utility closets
Division 16 Electrical & Communications
Electrical equipment - motors, generators etc.
Water submeter electronics
Apartment light fixtures - Kitchen
Apartment light fixtures - bedrooms
Apartment light fixtures - hallway
Apartment light fixtures - entry
Apartment light fixtures - bathroom
Total Contract Cost
Electrical - Exterior building fixtures wall packs
MidPen Estimate Worksheet_Sundial Apartments_MLN.xlsx 6 of 7
Attachment C – Bid
32
Total Number of Units:
Total Number of Buildings:
Total Net Rentable SF:
Total Building Gross SF:
Average Unit Net SF:
Total Clubhouse Net SF:
Quantity Per Cent NRSFTotal NRSFGSF
Line item
cost Cost/UnitCost/ NRSFCost/GSFCSI DivisionDescription
0
Prepared by:
Number of Garage Buildings:
Number of Detached Garages:
ML Nielsen Construction
1
0
0
0
0
Sundial Apartments
MOUNTAIN VIEW CA
Number of Carports:
Number of Storage Spaces:
Bid Date:
0
Project Bid
Bid Worksheet
Contractor:9/6/2013
0
Number of Attached Garages:0
0
0
Total Project Acerage:
Unit Type Total GSF
Unit Mix
Date
Signed Company
MidPen Estimate Worksheet_Sundial Apartments_MLN.xlsx 7 of 7
Attachment C – Bid
33
LOAN AGREEMENT
FOR AFFORDABLE HOUSING REHABILITATION
(Sundial Apartments Rehabilitation)
by and between
THE CITY OF SOUTH SAN FRANCISCO
and
MID-PENINSULA COALITION BELLE HAVEN, INC.
_______________, 2013
Attachment D - Loan Agreement
34
Exhibits
A Legal Description of the Parcel
B Form of Promissory Note
C Scope of Work, Budget and Construction Schedule
C-1 Scope of Work
C-2 Project Time Schedule
C-3 Budget
D Form of Requisition
E General Provisions
F Federal Provisions
G Deed of Trust
H Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants
Attachment D - Loan Agreement
35
This Loan Agreement for Affordable Housing Rehabilitation (this “Agreement”) is
entered into effective as of , 2013 (“Effective Date”) by and between
the City of South San Francisco, a municipal corporation (“City”), and Mid-Peninsula
Coalition Belle Haven, Inc., a California nonprofit public benefit corporation,
(“Participant”). City and Participant are hereinafter collectively referred to as the
“Parties.”
RECITALS
A. Whereas, City is the recipient of Community Development Block Grant (“CDBG”)
funds, and;
B. Whereas, Participant owns certain real property located in South San Francisco at
222-224 Grand Avenue, and known as San Mateo County Assessor’s Parcel No. 012-
315-120 as more particularly described in Exhibit A attached hereto (the “Property”).
C. Whereas, Participant intends to rehabilitate all eleven (11) affordable apartment units
and conduct additional property improvements on the Property described as the Scope
of Work (hereafter referred to as the “Scope of Work” or the “Improvements”) set forth in
Exhibit C attached hereto and incorporated herein by reference (hereafter referred to as
the “Sundial Apartments Rehabilitation” or the “Project”), and;
D. Whereas, City operates a program pursuant to which City provides loans using
CDBG funds to qualified local nonprofit organizations to assist such organizations with
affordable housing rehabilitation projects, and;
E. Whereas, Participant has requested, and City has agreed to provide a loan in the
amount of Two Hundred Fifty-nine Thousand Six Hundred and Thirty-seven Dollars
($259,637) (the “Loan”) pursuant to the terms and conditions set forth herein, and;
F. Whereas, concurrently with the execution of this Agreement, among other
documents, Participant shall execute: (a) a secured promissory note (the “Note”) in the
amount of the Loan, (b) a deed of trust (“Deed of Trust”) which shall provide the City
with a security interest in the Project and Participant’s interest in the Property, and (c)
an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants
(“Regulatory Agreement”) which shall require Property rents to be affordable to low -
income households for a term of not less than fifty-five (55) years. This Agreement, the
Note, Deed of Trust, and Regulatory Agreement are collectively hereinafter referred to
as the “Loan Documents,” and;
G. Whereas, Participant previously executed a promissory note dated March 3, 1989
with City as beneficiary in the amount of $120,000 to rehabilitate the Property (“Prior
Loan”). The Prior Loan is being “rolled into” the Loan, and concurrently upon delivery of
the Loan Documents to City, City shall return Prior Loan Note to Participant marked as
“canceled.”
Attachment D - Loan Agreement
36
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows.
ARTICLE I
CITY FINANCIAL ASSISTANCE
1.1 LOAN AND NOTE. City agrees to loan to Participant, and Participant agrees to
borrow from and, subject to the provisions of Section 1.2, repay to City, the sum of up to
Two Hundred Fifty-nine Thousand Six Hundred and Thirty-seven Dollars $259,637 upon
the terms and conditions and for the purposes set forth in this Agreement. The Loan
shall be evidenced by the Note which shall be dated as of the Effective Date and
executed by Participant substantially in the form attached hereto as Exhibit B. Provided
that Participant has complied with all conditions set forth in Section 2.3, the Loan
Proceeds shall be disbursed in accordance with Section 2.2 hereof. The Parties agree
that the City shall disburse Loan Proceeds only for and to the extent necessary for the
purposes set forth in Section 2.1.
1.2 INTEREST RATE; REPAYMENT. The outstanding principal balance of the Note
shall bear interest at the rate of zero percent (0%) simple interest per annum. Provided
that Participant is not in default under the Loan Documents, no periodic payments shall
be due on the Loan. The entire outstanding principal balance of the Loan and all other
sums due under the Loan Documents shall be payable in full on the fifty-fifth (55th)
anniversary of the Effective Date. Notwithstanding the foregoing, the City shall have the
right to declare the entire outstanding principal balance of the Loan together with
accrued interest and all other sums due under the Loan Documents due and payable in
full upon the occurrence of an Event of Default under the Loan Documents and the
expiration of any applicable cure period.
1.2.1 Intentionally omitted
1.3 PREPAYMENT. The Note or any portion of the outstanding principal balance due
under the Note may be prepaid at any time and from time to time, without penalty or
premium. Any prepayment of principal must be accompanied by interest accrued but
unpaid to the date of receipt of prepayment. Prepayments shall be applied first to
accrued but unpaid interest and then to principal. In no event shall any amount due
under the Note become subject to any rights of offset, deduction or counterclaim on the
part of Participant. Any such prepayment shall have no effect upon Developer’s
obligations under the Regulatory Agreement which shall survive for the full term of the
Regulatory Agreement.
ARTICLE II
USE AND DISBURSEMENT OF PROCEEDS
Attachment D - Loan Agreement
37
2.1 USE OF PROCEEDS. Participant shall use the proceeds of the Loan (“Loan
Proceeds”) solely and exclusively to pay for costs billed to Participant by third-parties in
connection with the design and rehabilitation of the Project (as described in Exhibit C)
(the “Multi-Family Housing Rehabilitation”) and such other costs related to the Project
as City may approve in writing.
2.2 DISBURSEMENT OF PROCEEDS. Upon satisfaction of the conditions set forth in
Section 2.3, disbursement of Loan Proceeds by City shall be made to Participant
provided that Participant has provided City with a written requisition substantially in the
form of Exhibit D attached hereto (“Requisition”) specifying the amount and use of the
requested Loan Proceeds for work described in Exhibit C. Disbursement of Loan
Proceeds by City to Participant and/or Contractor(s) shall be made only for costs
incurred on or after the effective date of this Agreement, on a reimbursement basis.
Project funds will be disbursed to Participant and/or Contractor(s) upon receipt and
approval of Requisition. All Requisitions shall contain the following: i) a certified
payroll(s) for all labor completed pursuant to this Agreement; ii) legible copies of all
invoices, payment vouchers, with a written certification that all such construction of the
improvements have been completed; and iii) any other documentation as may
reasonably be requested in order to verify the actual total cost of construction for which
payment is sought. The Requisition must also contain a statement of the cumulative
totals of expenditures from effective date of this Agreement to date.
2.3 CONDITIONS PRECEDENT TO DISBURSEMENT OF PROCEEDS. City’s
obligation to disburse the Loan Proceeds is conditioned upon the satisfaction of all of
the following conditions:
(a) Participant’s delivery to City of each of the following documents, fully-executed and
acknowledged as applicable: (i) this Agreement, (ii) the Note, (iii) the Deed of Trust, and
(iv) the Regulatory Agreement.
(b) Participant’s delivery to City of evidence reasonably satisfactory to City that
Participant has obtained all necessary permits including without limitation, building
permits, licenses, and approvals required to undertake the Project, or that the receipt of
such permits is subject only to such conditions as City shall reasonably approve;
(c) City shall have approved the final plans and specifications or scope of work for the
Project (“Scope of Work”);
(d) Participant’s delivery to the City of evidence of insurance coverage in accordance
with the requirements set forth in Exhibit E attached hereto;
(e) Participant’s delivery to City of such documentation as City shall reasonably require
regarding Participant’s organizational status and authority to execute and perform
Participant’s obligations under the Loan Documents;
Attachment D - Loan Agreement
38
(f) Participant’s delivery to City of all of the following: (a) Project budget; (b)
construction contract; and (c) copies of such other documents related to the
rehabilitation of the Project as City may reasonably request;
(g) No material adverse change as determined by City in its reasonable judgment shall
have occurred in the condition of the Property or the Improvements or in the financial or
other condition of Participant since the date of this Agreement.
2.4 NO OBLIGATION TO DISBURSE PROCEEDS UPON DEFAULT. Notwithstanding
any other provision of this Agreement, the City shall have no obligation to disburse the
Loan Proceeds upon the occurrence of an Event of Default under the Loan Documents
2.5 Intentionally omitted
2.6 Intentionally omitted.
2.7 PARTICIPANT EXECUTION OF WORK.
(a)Following execution of this Agreement, Participant shall enter into a contract or
contracts with one or more properly licensed contractors to perform the Work contained
in the Scope of Work. The construction contract or contracts shall be limited to the work
contained in Exhibit C, unless City and Participant agree in writing to a modification of
the Scope of Work. The construction contract or contracts will be solely between
Participant and the Contractor or Contractors, City will not be a party to the contracts.
(b)Prior to performing any work under this Agreement, Participant or its contractor shall
prepare, submit and obtain all necessary government approvals that may be required
for the work described in the Scope of Work.
(c) If the cost of the Multi-Family Housing Rehabilitation is estimated by the Participant’s
contractor, architect and/or engineer to exceed $100,000, Participant will be required to
obtain competitive sealed bids. Participant shall have the right to select its contractor,
provided that the City finds that the bid covers the required work and is within the
budget for the Scope of Work.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 PARTICIPANT’S REPRESENTATION. Participant represents and warrants to City
as follows, and Participant covenants that until the expiration or earlier termination of
this Agreement, upon learning of any fact or condition which would cause any of the
warranties and representations in this Section 3.1 not to be true, Participant shall
immediately give written notice of such fact or condition to City. Participant
acknowledges that City shall rely upon Participant’s representations made herein
notwithstanding any investigation made by or on behalf of City.
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(a) LEGAL STATUS; AUTHORITY. Participant is a nonprofit public benefit corporation,
duly organized and in good standing under the laws of the State of California.
Participant has the full right, power and authority to undertake the Project and to
execute, deliver and perform all obligations of Participant under the Loan Documents.
Participant’s execution, performance and delivery of the Loan Documents has been duly
authorized by all requisite actions, and when executed and delivered will each constitute
a valid and binding obligation of Participant, enforceable in accordance with the
respective terms thereof. Participant has obtained all required consents for the Project,
including without limitation the consent of the owner of the Property. The persons
executing this Agreement on behalf of Participant have been duly authorized to do so.
This Agreement and the other Loan Documents constitute valid and binding obligations
of Participant, enforceable in accordance with their respective terms.
(b) NO CONFLICT. The execution of the Loan Documents and Participant’s
performance thereunder do not and will not result in a breach of or constitute a default
under any agreement, contract, order, indenture or other instrument to which Participant
is a party or by which Participant may be bound.
(c) NO LITIGATION OR OTHER PROCEEDING. There are no pending or to
Participant’s knowledge, threatened actions or proceedings before any court or
administrative body which may adversely affect the financial condition or operation of
Participant or Participant’s development of the Project and Participants Use of the
Property and the Improvements.
(d) NO BANKRUPTCY. Participant is not the subject of a bankruptcy or insolvency
proceeding.
(f) COMPLIANCE WITH LAWS. Participant is in compliance in all material respects
with all local, state and federal laws, rules, regulations, orders and decrees which are
applicable to the Property and the Improvements located thereon or to Participant in
relation thereto (“Applicable Law”) including without limitation, all environmental, health
and safety, and employment laws. Participant has received no notice from any
governmental authority regarding any threatened or pending zoning, building, fire, or
health code violation or violation of other governmental regulations concerning the
Property that has not been corrected, and no condition on the Property violates any
Applicable Law.
ARTICLE IV
AFFIRMATIVE COVENANTS
4.1 USE OF FUNDS; CONSTRUCTION SCHEDULE. Participant covenants that it shall
use the Loan Proceeds solely for purpose of financing the Project in accordance with
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Section 2.1 and in accordance with the budget and timeline specified in Exhibit C.
Participant must obtain City’s consent to any change to the construction schedule.
4.2 USE AND MAINTENANCE OF THE PROPERTY. Without the written consent of
City, Participant may use the Property solely for the operation of an affordable
multifamily rental housing development. Participant shall keep the Property and the
Improvements in good repair and condition and from time to time make necessary
repairs, renewals and replacements thereto so that the Property and Improvements
shall be preserved and maintained.
4.2.1 AFFORDABLE HOUSING. Participant covenants and agrees for itself, its
successors and assigns that the Property and the Improvements will be subject to
recorded covenants that will restrict use of the Property and provide that for a term of
fifty-five (55) years commencing upon the Effective Date, all of the residential units on
the Property shall be rented at an affordable cost to households whose income is less
than or equal to eighty percent (80%) of Area Median Income in accordance with the
terms hereof and the Regulatory Agreement.
4.3 ACCOUNTING RECORDS; PROPERTY INSPECTION. Participant shall maintain
accurate books and records with respect to the completion of the Project and the use of
the Loan Proceeds and shall permit the City, during business hours and upon
reasonable notice to inspect, audit and examine such books and records and to inspect
the Property during normal business hours upon reasonable notice.
City shall not assume liability or responsibility for any conditions that may be in violation
of local and/or state health and building codes. City shall not assume responsibility for
correcting said conditions, either existing or discovered during the course of
construction. Failure to correct said conditions during the course of rehabilitation shall
not imply the City has accepted said conditions; nor forfeit City’s right to have said
conditions corrected in the future.
4.4 COMPLIANCE WITH LAWS. Participant shall comply with all federal, state and
local laws, regulations, ordinances and rules applicable to the Property and the Project,
including without limitation, all applicable requirements of state and local building codes
and regulations, all applicable statutes and regulations relating to accessibility for the
disabled, and all applicable laws, rules and regulations applicable to the use of CDBG
funds.
4.5 INSURANCE. Participant shall maintain and keep in force at Participant’s expense,
insurance coverage with respect to the Project and the Property in accordance with the
requirements set forth in Exhibit E attached hereto and incorporated herein. Participant
shall require all contractors and subcontractors engaged in work on the Project to
maintain a commercial liability policy in accordance with the requirements set forth in
Exhibit E.
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4.6 INDEMNIFICATION. Participant shall indemnify, defend (with counsel reasonably
acceptable to City), and hold harmless the City and its elected and appointed officials,
officers, agents, and employees (collectively the “Indemnitees"), from and against, and
shall pay on demand, any and all losses, liabilities, damages, costs, claims, demands,
penalties, fines, orders, judgments, injunctive or other relief, expenses and charges
(including attorneys’ fees and expenses of attorneys) (collectively “Liabilities”) arising
directly or indirectly in any manner in connection with or as a result of (a) any breach of
Participant’s covenants under the Loan Documents, (b) any failure of Participant’s
representations and warranties to be true and correct in all material respects when
made, (c) injury or death to persons or damage to property or other loss occurring on
the Property, whether caused by the negligence or any other act or omission of
Participant or any other person or by negligent, faulty, inadequate or defective design,
building, construction or maintenance or any other condition or otherwise, or (d) any
claim, demand or cause of action, or any action or other proceeding, whether
meritorious or not, brought or asserted against any Indemnitee which relates to or arises
out of the Property, the Project, the Loan, the Loan Documents, or any transaction
contemplated thereby, or any failure of Participant to comply with all applicable state,
federal and local laws and regulations, including without limitation, applicable provisions
of the California Building Standards Code, the Prevailing Wage Laws, and the
Americans with Disabilities Act in connection with the construction or operation of the
Project, provided that no Indemnitee shall be entitled to indemnification under this
Section 4.6 for matters caused by any Indemnitee's gross negligence or willful
misconduct. The obligations of Participant under this Section shall survive the
expiration or termination of this Agreement.
4.7 TAXES AND OTHER LIABILITIES. Participant shall pay and discharge when due
any and all indebtedness, obligations, assessments, taxes, including federal and state
payroll and income taxes which are the obligations of Participant in relation to the
Project, the Property, or the Improvements except those that Participant may in good
faith contest or as to which a bona fide dispute may arise, provided provision is make to
the satisfaction of City for eventual payment thereof in the event that it is found that the
same is an obligation of Participant.
4.8 EQUAL EMPLOYMENT OPPORTUNITY.
4.8.1 In the event that the Loan and other direct Federal financial assistance from the
Department of Housing and Urban Development (the “Department”) to Participant
exceeds $200,000, Participant shall be subject to the requirements of Section 3 of the
Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u; the
regulations issued pursuant thereto by the Secretary of the Department as set forth in
24 CFR 135, as amended; and all applicable rules and orders of the Department issued
thereunder (collectively, “Section 3”).
4.8.2 As applicable to the subject matter of this Agreement, the Parties will comply with
or cause to be observed Section 3. The Parties certify and agree that they are under no
contractual or other impediment which would prevent them from complying with these
requirements.
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4.8.3 The contractor will send to each labor organization or representative of workers
with which the contractor has a collective bargaining agreement or other contract or
understanding, if any, a notice advising the said labor organization or workers'
representative of contractor’s commitments under the “Section 3 clause” referenced in
24 CFR 135.38 and shall post copies of the notice in conspicuous places available to
employees and applicants for employment or training
4.8.4 Participant will include the Section 3 clause in every Section 3 covered contract
or subcontract, as defined in 24 CFR 135.6, and will take appropriate action pursuant to
the contract or subcontract upon a finding that the contractor or subcontractor is in
violation of regulations issued by the Secretary of the Department. The contractor will
not subcontract with any subcontractor where it has notice or knowledge that the
subcontractor has been found in violation of the regulations in 24 CFR 135 and will not
let any subcontract unless the subcontractor has first provided it with a preliminary
statement of ability to comply with the requirements of these regulations.
4.8.5 Participant shall comply with all applicable requirements described in the Equal
Employment Opportunity section in Exhibit F.
4.9 HAZARDOUS MATERIALS.
4.9.1 Covenants. Participant shall not cause or permit any Hazardous Materials (as
defined below) to be brought upon, kept, stored or used in, on, or about the Property by
Participant, or the agents, employees, contractors or invitees of Participant except for
materials commonly used in construction activities similar to those related to the Project,
or in the operation and maintenance of the Property and the Improvements, in each
case in compliance with all applicable laws, and shall not cause any release of
Hazardous Materials into, onto, under or through the Property. If any Hazardous
Material is discharged, released, dumped, or spilled in, on, under, or about the Property
and results in any contamination of the Property or adjacent property, or otherwise
results in the release or discharge of Hazardous Materials in, on, under or from the
Property, Participant shall promptly take all actions at Participant’s sole expense as are
necessary to comply with all Environmental Laws (as defined below).
“Hazardous Materials” means any substance, material or waste which is or becomes
regulated by any federal, state or local governmental authority, and includes without
limitation (i) petroleum or oil or gas or any direct or indirect product or by-product
thereof; (ii) asbestos and any material containing asbestos; (iii) any substance, material
or waste regulated by or listed (directly or by reference) as a “hazardous substance”,
“hazardous material”, “hazardous waste”, “toxic waste”, “toxic pollutant”, “toxic
substance”, “solid waste” or “pollutant or contaminant” in or pursuant to, or similarly
identified as hazardous to human health or the environment in or pursuant to, the Toxic
Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental
Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the
Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.],
the Resource Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal
Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C.
Attachment D - Loan Agreement
43
Section 7401, et seq.], the California Underground Storage of Hazardous Substances
Act [California Health and Safety Code Section 25280, et seq.], the California
Hazardous Substances Account Act [California Health and Safety Code Section 25300,
et seq.], the California Hazardous Waste Act [California Health and Safety Code Section
25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act
[California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne
Water Quality Control Act [California Water Code Section 13000, et seq.], as they now
exist or are hereafter amended, together with any regulations promulgated thereunder;
(iv) any substance, material or waste which is defined as such or regulated by any
“Superfund” or “Superlien” law, or any Environmental Law; or (v) any other substance,
material, chemical, waste or pollutant identified as hazardous or toxic and regulated
under any other federal, state or local environmental law, including without limitation,
asbestos, polychlorinated biphenyls, petroleum, natural gas and synthetic fuel products
and by-products.
“Environmental Law” means all federal, state or local statutes, ordinances, rules,
regulations, orders, decrees, judgments or common law doctrines, and provisions and
conditions of permits, licenses and other operating authorizations regulating, or relating
to, or imposing liability or standards of conduct concerning (i) pollution or protection of
the environment, including natural resources; (ii) exposure of persons, including
employees and agents, to Hazardous Materials (as defined above) or other products,
raw materials, chemicals or other substances; (iii) protection of the public health or
welfare from the effects of by-products, wastes, emissions, discharges or releases of
chemical substances from industrial or commercial activities; (iv) the manufacture, use
or introduction into commerce of chemical substances, including without limitation, their
manufacture, formulation, labeling, distribution, transportation, handling, storage and
disposal; or (iv) the use, release or disposal of toxic or hazardous substances or
Hazardous Materials or the remediation of air, surface waters, groundwaters or soil, as
now or may at any later time be in effect, including but not limited to the Toxic
Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental
Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the
Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.],
the Resource Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal
Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C.
Section 7401, et seq.], the California Underground Storage of Hazardous Substances
Act [California Health and Safety Code Section 25280, et seq.], the California
Hazardous Substances Account Act [California Health and Safety Code Section 25300,
et seq.], the California Hazardous Waste Act [California Health and Safety Code Section
25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act
[California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne
Water Quality Control Act [California Water Code Section 13000, et seq.], as they now
exist or are hereafter amended, together with any regulations promulgated thereunder.
4.10 Participant shall comply with all applicable requirements set forth in the Exhibits to
this Agreement.
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4.11 PREVAILING WAGES. If applicable to the Project, Participant shall comply with
the Davis-Bacon and Related Acts (described in Exhibit F) and shall pay and shall
cause Participant’s contractor and subcontractors to pay prevailing wages in the
construction of the Project as those wages are determined pursuant to Labor Code
Section 1720 et seq. and the regulations adopted pursuant thereto (“Prevailing Wage
Laws”) and shall comply or shall cause the contractor and subcontractors to comply with
all other applicable provisions of the Prevailing Wage Laws. Participant shall maintain
or shall cause the contractor and subcontractors to maintain such records as are
necessary to determine if prevailing wages have been paid as required pursuant to the
Prevailing Wage Laws during the construction of the Project. Participant shall cause
the contractor to post at the Property the applicable prevailing rates of per diem wages.
Participant shall indemnify, defend (with counsel approved by City) and hold the
Indemnitees harmless from and against all Liabilities which directly or indirectly, in
whole or in part, are caused by, arise in connection with, result from, relate to, or are
alleged to be caused by, arise in connection with, or relate to, the payment or
requirement of payment of prevailing wages (including without limitation, all claims that
may be made by contractors, subcontractors or other third party claimants pursuant to
Labor Code sections 1726 and 1781), the failure to comply with all applicable state and
federal labor laws, regulations and standards in connection with the construction of the
Project, including but not limited to the Prevailing Wage Laws, or any act or omission of
Participant or Participant’s contractors and subcontractors with respect to the payment
or requirement of payment of prevailing wages, whether or not any insurance policies
shall have been determined to be applicable to any such Claims. It is further agreed that
City does not, and shall not, waive any rights against Participant which it may have by
reason of this indemnity and hold harmless agreement because of the acceptance by
City, or the deposit with City, of any of the insurance policies described in this
Agreement. The provisions of this Section shall survive the expiration or termination of
this Agreement.
ARTICLE V
EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall constitute an event of
default hereunder ("Event of Default"):
(a) Participant removes the Improvements from the Property.
(b) Participant fails to maintain the Improvements and the Property in good condition
and repair in violation of Section 4.2 and Participant fails to cure such default within 30
days following written notice from City.
(c) Participant fails to maintain insurance as required pursuant to the Loan Documents,
and Participant fails to cure such default within fifteen (15) days.
(d) Any representation or warranty contained in this Agreement or any certificate
furnished in connection with the Loan or in connection with any request for
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disbursement of Loan Proceeds proves to have been false or misleading in any material
adverse respect when made.
(e) Participant defaults in the performance of any term, provision, covenant or
agreement (other than an obligation enumerated in this Article V) contained in this
Agreement or in any other Loan Document, and unless such document specifies a
shorter cure period for such default, the default continues for ten (10) days in the event
of a monetary default or thirty (30) days in the event of a nonmonetary default after the
date upon which City shall have given written notice of the default to Participant (or such
longer time as City may agree upon in writing), provided that in each case Participant
commences to cure the default within thirty (30) days and thereafter prosecutes the
curing of such default with due diligence and in good faith.
(f) An Event of Default shall have been declared under any other Loan Document, or
under any other financing document secured by the Property or the Improvements and
such default remains uncured beyond the expiration of all applicable cure periods.
ARTICLE VI
REMEDIES
6.1 REMEDIES AND RIGHTS UPON DEFAULT. Upon the occurrence of an Event of
Default and the expiration of any applicable cure period, City shall have all remedies
available to it under law or equity, including, but not limited to the following, and City
may, at its election, without notice to or demand upon Participant, except for notices or
demands required by law or expressly required pursuant to the Loan Documents,
exercise one or more of the following remedies:
a) Accelerate and declare the balance of the Note and interest accrued thereon
immediately due and payable;
b) Seek specific performance to enforce the terms of the Loan Documents;
c) Pursue any and all other remedies available under law to enforce the terms of the
Loan Documents and City's rights thereunder.
6.2 REMEDIES CUMULATIVE. Each of the remedies provided herein is cumulative
and not exclusive of, and shall not prejudice any other remedy provided in any other
Loan Document. The City may exercise from time to time any rights and remedies
available to it under applicable law, in addition to, and not in lieu of, any rights and
remedies expressly granted in this Agreement or in any other instrument or notice,
demand or legal process of any kind.
ARTICLE VII
MISCELLANEOUS
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7.1 NOTICES. Except as otherwise specified in this Agreement, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their
respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other Party in accordance with this Section.
All such notices shall be sent by:
(a) personal delivery, in which case notice shall be deemed delivered upon receipt;
(b) certified or registered mail, return receipt requested, in which case notice shall be
deemed delivered two (2) business days after deposit, postage prepaid in the United
States mail;
(c) nationally recognized overnight courier, in which case notice shall be deemed
delivered one (1) day after deposit with such courier; or
(d) facsimile transmission, in which case notice shall be deemed delivered on
transmittal, provided that a transmission report is generated reflecting the accurate
transmission thereof.
City:
City of South San Francisco
Attn: Community Development Director
400 Grand Avenue
South San Francisco, CA 94080
Participant:
Mid-Peninsula Coalition Belle Haven, Inc.
Attn: Matthew Franklin
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
7.2 COUNTERPARTS. This Agreement may be executed in multiple counterparts each
of which shall be an original and all of which taken together shall constitute one and the
same instrument.
7.3 SEVERABILITY. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions shall continue in full force and effect unless the rights and
obligations of the Parties are materially altered or abridged by such invalidation, voiding
or unenforceability.
7.4 LEGAL ACTIONS; ATTORNEYS’ FEES. In the event any legal action is
commenced to interpret or to enforce the terms of this Agreement or to collect damages
as a result of any breach thereof, the Party prevailing in any such action shall be entitled
to recover against the other Party all reasonable attorneys’ fees and costs incurred in
such action.
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7.5 CAPTIONS; INTERPRETATION. The captions of the Sections and Articles of this
Agreement are for convenience only and are not intended to affect the interpretation or
construction of the provisions herein contained. The language of this Agreement shall
be construed as a whole according to its fair meaning and not strictly for or against any
Party. Time is of the essence in the performance of this Agreement.
7.6 FURTHER ASSURANCES. The Parties agree to execute, acknowledge and deliver
to the other such other documents and instruments, and take such other actions, as
either shall reasonably request as may be necessary to carry out the intent of this
Agreement.
7.7 PARTIES NOT CO-VENTURERS. Nothing in this Agreement is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
7.8 GOVERNING LAW; VENUE. This Agreement shall in all respects be construed and
enforced in accordance with laws of the State of California without regard to principles
of conflicts of laws. The Parties agree that any action to enforce or interpret this
Agreement shall be litigated exclusively in courts having jurisdiction in San Mateo
County. Participant irrevocably consents to service, jurisdiction, and venue of such
courts for any such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise.
7.9 WAIVER; MODIFICATION AND AMENDMENT. No failure or delay on the part of
the City in exercising any right, power, or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power, or remedy
preclude any other or further exercise thereof or the exercise of any other right, power,
or remedy hereunder. No modification or waiver of any provision of this Agreement, nor
any consent to any departure by Participant therefrom, shall in any event be effective
unless the same shall be in writing, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given. No notice to
or demand on the Participant in any case shall entitle the Participant to any other or
further notice or demand in similar or other circumstances. No amendment to this
Agreement shall be effective unless and until such amendment is in writing, properly
approved in accordance with applicable procedures, and executed by the Parties.
7.10 ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns. Notwithstanding the
foregoing, City’s obligation to make the Loan is personal to Participant, and except as
permitted in section 8.2 of the Regulatory Agreement, shall not be assignable by
Participant by operation of law or otherwise absent the express written consent of City
and any such assignment by operation of law or otherwise shall be void.
7.11 NO THIRD PARTY BENEFICIARIES. There shall be no third party beneficiaries to
this Agreement.
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7.12 ENTIRE AGREEMENT; EXHIBITS. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the Parties with respect to the
subject matter hereof and supersedes any and all prior or contemporaneous oral or
written agreements and negotiations between the Parties with respect thereto. Exhibits
A through F attached hereto are incorporated herein by reference as though fully set
forth herein.
7.13 SURVIVAL. All representations made by Participant herein, all indemnity
provisions and all other provisions that state that they shall survive the termination
hereof shall survive the expiration or earlier termination of this Agreement. The
representations of Participant made herein have been or will be relied upon by the City,
notwithstanding any investigation made by the City or on its behalf.
7.14 CITY STATUS. Participant recognizes and agrees that City is not a commercial
lending institution, but a public City exercising its authority to protect the public health,
safety and welfare. Any duties or obligations which a commercial lending institution
may have to Participant shall not apply to this transaction except as set forth herein and
in the Loan Documents.
7.15 ACTION BY THE CITY. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, or consent by the City is required or permitted
under this Agreement, such action shall be in writing, and such action may be given,
made or taken by the City Manager or by any person who shall have been designated
by the City Manager, without further approval by the City Council.
7.16 NON LIABILITY OF CITY AND CITY OFFICIALS, EMPLOYEES AND AGENTS.
No member, official, employee or agent of the City shall be personally liable to
Participant or any successor in interest to any of the foregoing in the event of any
default or breach by the City, or for any amount of money which may become due to
Participant or Participant’s successors in interest or for any obligation of City under this
Agreement.
IN WITNESS WHEREOF, the Parties have each caused this Agreement to be duly
executed as of the date first written above.
Participant:
Mid-Peninsula Coalition Belle Haven, Inc.
By: _____________________________
Print Name: Matthew Franklin
Title: Assistant Secretary
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City:
City of South San Francisco
__________________________________
Barry Nagel, City Manager
Attest:
_________________________________
City Clerk
Approved as to form:
_______________________________
City Attorney
Attachment D - Loan Agreement
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Exhibit A
PROPERTY
(Attach legal description.)
Attachment D - Loan Agreement
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Exhibit B
SECURED PROMISSORY NOTE
$259,637 South San Francisco, California Date
FOR VALUE RECEIVED, Mid-Peninsula Coalition Belle Haven, Inc., a California
nonprofit public benefit corporation (“Participant”) promises to pay to the City of South
San Francisco, a municipal corporation (“City"), in lawful money of the United States of
America, the principal sum of Two Hundred Fifty-nine Thousand Six Hundred and
Thirty-seven Dollars ($259,637) , or so much thereof as may be advanced by City
pursuant to the Loan Agreement referred to below, in accordance with the terms and
conditions described herein.
This Secured Promissory Note (this “Note”) has been executed and delivered pursuant
to a Loan Agreement for Affordable Housing Rehabilitation dated as of the date hereof
by and between Participant and City (the "Loan Agreement"), and is subject to the terms
and conditions of the Loan Agreement, which are by this reference incorporated herein
and made a part hereof. Capitalized terms used but not defined herein shall have the
meaning ascribed to such terms in the Loan Agreement.
This Note is secured by that certain Deed of Trust dated as of the date hereof, executed
by Participant for the benefit of City and encumbering the Property described therein.
City shall be entitled to the benefits of the security provided by the Deed of Trust and
shall have the right to enforce the covenants and agreements contained herein, in the
Loan Agreement, the Deed of Trust and the other Loan Documents.
This Note is the evidence of the obligation of Participant to repay the Loan referred to in
the Loan Agreement and shall replace the note evidencing the Prior Loan (the “Prior
Note”), dated March 3, 1989, in the amount of $120,000 between the City of South San
Francisco and Mid-Peninsula Coalition Belle Haven, Inc.. Concurrently upon delivery of
this Promissory Note to City, City shall return Prior Note to Participant marked as
“canceled.”
1. INTEREST RATE; REPAYMENT. The outstanding principal balance of this Note
shall bear interest at the rate of zero percent (0%) simple interest per annum. Provided
that Participant is not in default under the Loan Documents, no periodic payments shall
be due on this Note. The City shall have the right to declare the entire outstanding
principal balance of the Loan together with accrued interest and all other sums due
under the Loan Documents due and payable in full upon the occurrence of an Event of
Default under the Loan Documents and the expiration of any applicable cure period.
1.1 Intentionally omitted.
1.2 Intentionally omitted.
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1.3 PREPAYMENT. Participant may, without premium or penalty, at any time and
from time to time, prepay all or any portion of the outstanding principal balance due
under this Note. Prepayments shall be applied first to any unpaid late charges and
other costs and fees then due, then to accrued but unpaid interest, if any, and then to
principal. In no event shall any amount due under this Note become subject to any
rights of offset, deduction or counterclaim on the part of Participant. Any such
prepayment shall have no effect upon Participant’s obligations under the Regulatory
Agreement which shall survive for the full term of the Regulatory Agreement.
1.4 MANNER OF PAYMENT. All payments on this Note shall be made to City at,
City of South San Francisco, 400 Grand Ave. South San Francisco, CA 94080 or such
other place as City shall designate to Participant in writing, or by wire transfer of
immediately available funds to an account designated by City in writing.
2. DEFAULTS.
2.1 EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an event of default hereunder ("Event of Default"):
(a) Participant removes the Improvements from the Property.
(b) Participant fails to maintain the Improvements and the Property in good condition
and repair in violation of the Loan Agreement and Participant fails to cure such default
within thirty (30) days following written notice from City.
(c) Participant fails to maintain insurance as required pursuant to the Loan
Documents, and Participant fails to cure such default within fifteen (15) days.
(d) Any representation or warranty contained in this Agreement or any certificate
furnished in connection with the Loan or in connection with any request for
disbursement of Loan Proceeds proves to have been false or misleading in any material
adverse respect when made.
(e) Participant defaults in the performance of any term, provision, covenant or
agreement (other than an obligation enumerated in this Section 2 contained in this Note
or in any other Loan Document, and unless such document specifies a shorter cure
period for such default, the default continues for ten (10) days in the event of a
monetary default or thirty (30) days in the event of a nonmonetary default after the date
upon which City shall have given written notice of the default to Participant (or such
longer time as City may agree upon in writing), provided that in each case Participant
commences to cure the default within thirty (30) days and thereafter prosecutes the
curing of such default with due diligence and in good faith.
(f) If an Event of Default shall have been declared under any other Loan Document,
subject to the expiration of any applicable cure period set forth in such documents.
Attachment D - Loan Agreement
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2.2 REMEDIES. Upon the occurrence of an Event of Default hereunder, City may, at
its option (i) by written notice to Participant, declare the entire unpaid principal balance
of this Note, together with all accrued interest thereon and all sums due hereunder,
immediately due and payable regardless of any prior forbearance, (ii) exercise any and
all rights and remedies available to it under applicable law, and (iii) exercise any and all
rights and remedies available to City under this Note and the other Loan Documents,
including but not limited to the Deed of Trust. Participant shall pay all reasonable costs
and expenses incurred by or on behalf of City including, without limitation, reasonable
attorneys' fees, incurred in connection with City's enforcement of this Note and the
exercise of any or all of its rights and remedies hereunder.
3. MISCELLANEOUS.
3.1. WAIVER. The rights and remedies of City under this Note shall be cumulative
and not alternative. No waiver by City of any right or remedy under this Note shall be
effective unless in writing signed by City. Neither the failure nor any delay in exercising
any right, power or privilege under this Note will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power or privilege
by City will preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. To the maximum extent permitted by
applicable law (a) no claim or right of City arising out of this Note can be discharged by
City, in whole or in part, by a waiver or renunciation of the claim or right unless in a
writing, signed by City; (b) no waiver that may be given by City will be applicable except
in the specific instance for which it is given; and (c) no notice to or demand on
Participant will be deemed to be a waiver of any obligation of Participant or of the right
of City to take further action without notice or demand as provided in this Note.
Participant hereby waives presentment, demand, protest, notices of dishonor and of
protest and all defenses and pleas on the grounds of any extension or extensions of the
time of payment or of any due date under this Note, in whole or in part, whether before
or after maturity and with or without notice.
3.2. NOTICES. Any notice required or permitted to be given hereunder shall be given
in accordance with Section 7.1 of the Loan Agreement.
3.3. SEVERABILITY. If any provision in this Note is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Note will remain in full
force and effect. Any provision of this Note held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.
3.4 GOVERNING LAW; VENUE. This Note shall be governed by the laws of the
State of California without regard to principles of conflicts of laws. All persons and
entities in any manner obligated under this Note agree that any action to enforce or
interpret this Note shall be litigated exclusively in courts having jurisdiction in San Mateo
County. Borrower irrevocably consents to service, jurisdiction, and venue of such
courts for any such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise.
Attachment D - Loan Agreement
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3.5 PARTIES IN INTEREST. This Note shall bind Participant and its successors and
assigns and shall accrue to the benefit of City and its successors and assigns.
3.6 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this Note
are provided for convenience only and will not affect its construction or interpretation.
3.7 RELATIONSHIP OF THE PARTIES. The relationship of Participant and City
under this Note is solely that of borrower and lender, and the loan evidenced by this
Note will in no manner make City the partner or joint venturer of Participant.
3.8 TIME IS OF THE ESSENCE. Time is of the essence with respect to every
provision of this Note.
IN WITNESS WHEREOF, Participant has executed and delivered this Note as of the
date first written above.
Participant
Mid-Peninsula Coalition Belle Haven, Inc.
By: _____________________________
Print Name: Matthew Franklin
Title: Assistant Secretary
Attachment D - Loan Agreement
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Exhibit C
SCOPE OF WORK, BUDGET AND CONSTRUCTION SCHEDULE
Capitalized terms used in this Exhibit without definition shall have the meaning ascribed
to such terms in the Agreement of which this Exhibit is a part.
1. All activities funded with CDBG funds must meet one of the CDBG program’s
National Objectives: benefit low- and moderate-income persons; aid in the prevention or
elimination of slums or blight; or meet community development needs having a
particular urgency, as defined in 24 CFR 570.208.
2. The CDBG funds approved under the Agreement (“CDBG Funds”) shall only be used
for the Project as identified in the Agreement and this Exhibit C.
3. The Participant shall follow all requirements and keep all records required pursuant to
the Agreement, including without limitation those set forth in Exhibit E and Exhibit F.
4. The Participant shall comply with all requirements to include specified provisions and
language in construction contracts for work on the Project funded with CDBG Funds.
5. The Participant shall request any changes to the Scope of Work, Construction
Schedule or Budget in writing. The City Manager or his/her designee may approve
requests at his/her discretion.
6. Work for which Participant may use CDBG Funds: To rehabilitate all eleven (11)
affordable apartment units and conduct additional property improvements on the
Property described as the Scope of Work (hereafter referred to as the “Scope of Work”
or the “Improvements”) set forth in Exhibit C attached hereto and incorporated herein by
reference (hereafter referred to as the “Sundial Apartments Rehabilitation” or the
“Project”).
7. Program Monitoring and Reporting: The City will perform periodic and final site visits
to ascertain that the approved Scope of Work is proceeding properly and satisfactorily.
City staff will monitor the performance of the Participant against goals and performance
standards stated in the Scope of Work. Substandard performance as determined by the
City will constitute noncompliance with the Agreement. Contract suspension or
termination procedures will be initiated if action to correct such substandard
performance is not taken by the Participant within a reasonable period of time after
notification by the City.
Attachment D - Loan Agreement
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Exhibit C-1
SCOPE OF WORK
Exhibit C-2
Attachment D - Loan Agreement
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PROJECT TIME SCHEDULE
PROJECT TITLE: Sundial Apartments Rehabilitation
ORGANIZATION NAME: Mid-Peninsula Coalition Belle Haven, Inc.
TIME SCHEDULE: Activities are identified for each type of project. Identify target dates
(month/year) for all items that apply to your project. You may add relevant activities if
necessary.
ACTIVITY COMPLETION DATE
Meet with City Planning/obtain permits September 2013
Advertise for and contract with architect N/A
Complete design work/plans and specifications September 2013
Sign contract October 2013
Begin construction November 2013
Finish construction
Notice of project completion
NOTE: The City will undertake a federal Environmental Review of the project prior to
execution of a contract.
Attachment D - Loan Agreement
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Exhibit C-3
BUDGET
(NOTE: This budget may only be modified through a formal written amendment
approved by the City.)
PROJECT TITLE: Sundial Apartments Rehabilitation
ORGANIZATION NAME: Mid-Peninsula Coalition Belle Haven, Inc.
Attachment D - Loan Agreement
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Exhibit D
FORM OF REQUISITION - CDBG Program
Requisition Number:
Participant’s Name: Mid-Peninsula Coalition Belle Haven, Inc.
Property Address: 222-224 Grand Avenue, South San Francisco
Reference is made to that certain Loan Agreement, dated as of ___________ (the
“Agreement”), between the City of South San Francisco, a municipal corporation,
(“City”) and Mid-Peninsula Coalition Belle Haven, Inc. (“Participant”) pursuant to which
City agreed to provide a loan of funds in the maximum amount of $259,637 pursuant to
the Community Development Block Grant (CDBG) Program. Capitalized terms used
and not otherwise defined shall have the meanings set forth in the Agreement. The
Participant requests a disbursement of funds in the amount of $ for
payment of reimbursable costs for the Project in accordance with the provisions of the
Agreement. The supporting documents (invoices, receipts, billing statements, etc.)
attached to this requisition are true, complete and correct copies of original documents
provided by third parties for work authorized by the Agreement. An itemization of costs
is as follows:
Description of Improvement Amount
1. $________
2. $________
3. $________
Total $_________
The disbursement of the amount specified above, when added to all previous
disbursements of funds for the Project, will total the sum of $________ of City funds
provided for the Project. The balance of Loan funds available after disbursement of
funds requested pursuant to this Requisition is $______________.
The undersigned hereby certifies that the statements set forth in this Requisition are
true, complete and correct, and that the disbursement of funds requested hereby
conforms to the requirements of the Agreement.
Dated: ________________, 2013 _______________________________
[Authorized agent of the Participant]
Approved:
_______________________________ Date:______________
Authorized Representative of City
Attachment D - Loan Agreement
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Exhibit E
GENERAL PROVISIONS
Capitalized terms used in this Exhibit without definition shall have the meaning ascribed
to such terms in the Agreement of which this Exhibit is a part.
1. INDEPENDENT CONTRACTOR. At all times during the term of the Agreement,
Participant shall be an independent contractor and shall not be an employee of City.
City shall have the right to control Participant only insofar as the results of Participant's
services rendered pursuant to this Agreement; however, City shall not have the right to
control the means by which Participant accomplishes services rendered pursuant to this
Agreement.
2. LICENSES and PERMITS. Participant represents and warrants to City that it has all
licenses, permits, qualifications and approvals of whatsoever nature which are legally
required for Participant to practice its profession. Participant represents and warrants to
City that Participant shall, at its sole cost and expense, keep in effect at all times during
the term of this Agreement any licenses, permits, and approvals which are legally
required for Participant to practice its profession. In addition to the foregoing,
Participant shall obtain and maintain during the term hereof a valid business license in
the City where construction will take place.
3. TIME. Participant shall devote such time to the performance of services pursuant to
this Agreement as may be reasonably necessary for satisfactory performance of
Participant's obligations pursuant to this Agreement.
4. INSURANCE. Participant and any of its agents, representatives, employees,
contractors or subcontractors performing work under this agreement shall procure and
maintain for the duration of the Agreement, insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the
performance of the work hereunder by Participant, its agents, representatives,
employees, contractors or subcontractors. Consistent with the following provisions,
Participant shall provide proof satisfactory to City of such insurance that meets the
requirements of this section and under forms of insurance satisfactory in all respects,
and that such insurance is in effect prior to beginning work. Participant shall maintain
the insurance policies required by this section throughout the term of this Agreement.
Participant shall not allow any contractor to commence work until Participant has
obtained all insurance required herein for the contractor(s) and provided evidence to the
City that such insurance is in effect. Verification of the required insurance shall be
submitted and made part of this Agreement prior to execution. Participant shall
maintain all required insurance listed herein for the duration of this Agreement.
a. Worker’s Compensation. Participant shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any
and all persons employed directly or indirectly by Participant. The Statutory Workers’
Attachment D - Loan Agreement
61
Compensation Insurance and Employer’s Liability Insurance shall be provided with
limits of not less than $1,000,000 per accident. In the alternative, Participant may rely
on a self-insurance program to meet those requirements, but only if the program of self-
insurance complies fully with the provisions of the California Labor Code. Determination
of whether a self-insurance program meets the standards of the Labor Code shall be
solely in the discretion of the Contract Administrator. The insurer, if insurance is
provided, or the Participant, if a program of self-insurance is provided, shall waive all
rights of subrogation against the City and its officers, officials, employees, and
volunteers for loss arising from work performed under this Agreement.
b. Commercial General and Automobile Liability Insurance
1) General requirements. Participant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than $1,000,000 per occurrence, combined single limit coverage for
risks associated with the work contemplated by this Agreement. If a Commercial
General Liability Insurance or an Automobile Liability form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the
work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including
death resulting therefrom, and damage to property resulting from activities
contemplated under this Agreement, including the use of owned and non-owned
automobiles.
2) Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form CG
0001 (most recent edition) covering comprehensive General Liability on an “occurrence”
basis. Automobile coverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (most recent edition), Code 1 (any auto). No
endorsement shall be attached limiting the coverage.
3) Additional requirements. Each of the following shall be included in the insurance
coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an occurrence basis, and not
on a claims-made basis.
b. City, its officers, officials, employees, and volunteers are to be covered as
additional insureds as respects: liability arising out of work or operations
performed by or on behalf of the Participant; or automobiles owned, leased,
hired, or borrowed by the Participant.
c. For any claims related to this Agreement or the work hereunder, the
Participant’s insurance covered shall be primary insurance as respects the City,
its officers, officials, employees, and volunteers. Any insurance or self-insurance
Attachment D - Loan Agreement
62
maintained by the City, its officers, officials, employees, or volunteers shall be in
excess of the Participant’s insurance and shall not contribute with it.
d. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled by either party, except after 30 days’ prior written
notice has been provided to the City.
c. All Policies Requirements.
1) Acceptability of insurers. All insurance required by this section is to be placed with
insurers with a Bests' rating of no less than A:VII.
2) Verification of coverage. Prior to commencing or authorizing the commencement of
any work under this Agreement, Participant shall furnish City with complete copies of all
policies delivered to Participant by the insurer, including complete copies of all
endorsements attached to those policies. All copies of policies and endorsements shall
show the signature of a person authorized by that insurer to bind coverage on its behalf.
If the City does not receive the required insurance documents prior to the Participant
beginning work, it shall not waive the Participant’s obligation to provide them. The City
reserves the right to require complete copies of all required insurance policies at any
time.
3) Deductibles and Self-Insured Retentions. Participant shall disclose to and obtain the
written approval of City for the self-insured retentions and deductibles before beginning
any of the services or work called for by any term of this Agreement. At the option of
the City, either: the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officers, employees, and volunteers; or the
Participant shall provide a financial guarantee satisfactory to the City guaranteeing
payment of losses and related investigations, claim administration and defense
expenses.
4) Wasting Policies. No policy required by this Section shall include a “wasting” policy
limit (i.e. limit that is eroded by the cost of defense).
5) Waiver of Subrogation. Participant hereby agrees to waive subrogation which any
insurer or contractor may require from vendor by virtue of the payment of any loss.
Participant agrees to obtain any endorsements that may be necessary to affect this
waiver of subrogation.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in
favor of the entity for all work performed by the Participant, its employees, agents, and
subcontractors.
d. Subcontractors. Participant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor.
Attachment D - Loan Agreement
63
All coverages for subcontractors shall be subject to all of the requirements stated
herein.
e. The Risk Manager of City may approve a variation in those insurance requirements
upon a determination that the coverages, scope, limits and forms of such insurance are
either not commercially available or that the City's interests are otherwise fully
protected.
5. PARTICIPANT NO AGENT. Except as City may specify in writing, Participant shall
have no authority, express or implied, to act on behalf of City in any capacity
whatsoever as an agent. Participant shall have no authority, express or implied,
pursuant to this Agreement to bind City to any obligation whatsoever.
6. ASSIGNMENT PROHIBITED. Participant may not assign any right or obligation
pursuant to this Agreement absent City’s prior written consent. Any attempted or
purported assignment of any right or obligation pursuant to this Agreement absent such
consent shall be void and of no effect.
7. PERSONNEL. Participant shall assign only competent personnel to perform services
pursuant to this Agreement. In the event that City, in its sole discretion, at any time
during the term of this Agreement, desires the removal of any such persons, Participant
shall, immediately upon receiving notice from City of such desire of City, cause the
removal of such person or persons.
8. EQUAL EMPLOYMENT OPPORTUNITY
a. Affirmative Action in Employment. Participant shall comply with the Affirmative Action
Program and Equal Employment requirements of the City. During the performance of
this Agreement, Participant agrees as follows:
1) Participant will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, sexual orientation, handicap, age, or national
origin. Participant will take affirmative action to ensure that applicants for employment
are employed, and that employees are treated during employment, without regard to
their race, color, religion, handicap, sex, sexual orientation, age, or national origin. Such
action shall include but not be limited to the following: employment; upgrading; demotion
or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection from training, including apprenticeship.
2) Participant will incorporate the above Affirmative Action provisions in all sub-
consultants for services covered by this Agreement.
9. MINORITY AND FEMALE-OWNED BUSINESS ENTERPRISE. In connection with
the performance of this Agreement, Participant shall comply with the City’s current
policies.
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64
a. Participant shall use its best efforts to obtain the maximum utilization of minority-
owned business enterprises based in South San Francisco and ensure that minority and
female-owned enterprises based in South San Francisco shall have maximum
practicable opportunity for subcontractor work under this Agreement.
b. General Employment Provisions Relating to Handicap/Disability Discrimination. No
qualified individual with a handicap or disability shall, solely on the basis of such
handicap or disability, be subjected to discrimination in employment by Participant.
c. Reports. Participant shall provide such reports and/or documents to City
demonstrating compliance with the terms hereof.
10. STANDARD OF PERFORMANCE. Participant shall perform all services required
pursuant to this Agreement in the manner and according to the standards observed by a
competent practitioner of the profession in which Participant is engaged in the
geographical area in which Participant practices its profession. All instruments of
service of whatsoever nature which Participant delivers to City pursuant to this
Agreement shall be prepared in a substantial, first class and workmanlike manner and
conform to the standards of quality normally observed by a person practicing in
Participant's profession.
11. HOLD HARMLESS AND RESPONSIBILITY OF PARTICIPANTS. Participant shall
take all responsibility for the work, shall bear all losses and damages directly or
indirectly resulting to him/her, to any subcontractor, to the City, to City officers and
employees, or to parties designated by the City, on account of the performance or
character of the work, unforeseen difficulties, accidents, occurrences or other causes
predicated on active or passive negligence of the Participant or of any subcontractor.
Participant shall indemnify, defend and hold harmless the City, its officers, officials,
directors, employees and agents from and against any or all loss, liability, expense,
claim, costs (including costs of defense), suits, and damages of every kind, nature and
description directly or indirectly arising from the performance of the work. This
paragraph shall not be construed to exempt the City, its employees and officers from its
own fraud, willful injury or violation of law whether willful or negligent. For purposes of
Section 2782 of the Civil Code the parties hereto recognize and agree that this
agreement is not a construction contract. By execution of this Agreement, Participant
acknowledges and agrees that it has read and understands the provisions hereof and
that this paragraph is a material element of consideration.
Approval of the insurance contracts does not relieve the Participant or subcontractors
from liability under this paragraph.
12. GOVERNMENTAL REGULATIONS. To the extent that this Agreement may be
funded by fiscal assistance from another governmental entity, Participant shall comply
with all applicable rules and regulations to which City is bound by the terms of such
fiscal assistance program.
Attachment D - Loan Agreement
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13. DOCUMENTS. All reports, data, maps, models, charts, studies, surveys,
photographs, memoranda or other written documents or materials prepared by
Participant pursuant to this Agreement shall become the property of City upon
completion of the work to be performed hereunder or upon termination of the
Agreement.
14. COMPLIANCE WITH APPLICABLE LAWS. Participant shall comply with all laws
applicable to the performance of the work hereunder, including, but not limited to, laws
prohibiting discrimination based on race, religious creed, color, national origin, ancestry,
physical handicap, medical condition, marital status or sex.
15. USE OF RECYCLED PRODUCTS. Participants shall prepare and submit all
reports, written studies and other printed material on recycled paper to the extent it is
available at equal or less cost than virgin paper.
16. TERMINATION. Notwithstanding any provision herein to the contrary, upon
declaration or a budget emergency, City reserves the right to terminate this Agreement
upon (15) fifteen days notice to Participant.
17. It is understood that periodic review of Participant’s work may be necessary and the
right to so review is reserved by the City. The City shall have access to any books,
documents, papers and records of Participant which are directly pertinent to the
program being funded. Participant shall retain all financial records, supporting
documents, and all other records pertinent to this Agreement for a period of five (5)
years after completion of all services rendered under this Agreement, subject to the
qualifications stated in OMB Circular A-110, Attachment C.
a. City shall not assume liability or responsibility for any conditions that may be in
violation of local and/or state health and building codes. City shall not assume
responsibility for correcting said conditions, either existing or discovered during the
course of construction. Failure to correct said conditions during the course of
construction shall not imply the City has accepted said conditions; nor forfeit City’s right
to have said conditions corrected in the future.
18. SUSPENSION, TERMINATION OR WITHHOLDING OF PAYMENTS. In
accordance with 24 CFR 85.43, City may, at any time in its absolute discretion, elect to
suspend or terminate payment to Participant, in whole or in part, under this Agreement,
or not to make any particular payments on this Agreement in the event of any of the
following occurrences:
a. If Participant (with or without knowledge) shall have made any material
misrepresentation of any nature with respect to any information or data furnished to City
in connection with the project.
Attachment D - Loan Agreement
66
b. If there is pending litigation with respect to the Performance by Participant of any of
its duties or obligations under this Agreement which may materially jeopardize or
adversely affect the undertaking of or the carrying out of the project.
c. If Participant shall have taken any action pertaining to the project which requires City
approval without having obtained such approval.
d. If Participant is in default under any provision of this Agreement.
e. If Participant makes improper use of loan funds.
f. If Participant fails to comply with any of the terms and conditions of this Agreement in
such a manner as to constitute material breach thereof.
g. If Participant submits to City any reports which are incorrect or incomplete in any
material respect.
City shall give Participant fourteen (14) days' written notice of its intention to withhold,
suspend or terminate payment under this paragraph. Such notice shall specify the
actions, if any, which must be taken by Participant before payments will be resumed.
19. TERMINATION OF AGREEMENT
a. City may terminate this Agreement immediately (by giving written notice to Participant
of the effective termination date stated in the notice) if Participant abandons its work
under the Agreement; if for any reason the timely completion of such project is rendered
improbable, infeasible, or illegal; or if City otherwise deems such termination to be in the
public interest.
b. This Agreement may be terminated for convenience by either City or Participant, in
accordance with the provisions of 24 CFR 85.44.
20. REVERSION OF ASSETS. Upon expiration of this Agreement, Participant shall
transfer to City any CDBG funds on hand at the time of expiration and any accounts
receivable attributable to the use of CDBG funds. Real property is to be either acquired
or improved with CDBG funds under this Agreement. Therefore, Federal regulations
governing the reversion of real property assets are applicable to this Agreement.
Attachment D - Loan Agreement
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Exhibit F
FEDERAL PROVISIONS
COMPLIANCE WITH FEDERAL REQUIREMENTS
Participant agrees to comply with the following Federal laws, regulations, and
procedures:
a. 24CFR Part 84 (570.502b) Uniform Administrative Requirements for Nonprofit
Organizations (Note 24CFR Part 84 implements OMB Circular A-110)
(1) Attachment A, "Cash Depositories," except for paragraph 4 concerning deposit
insurance;
(2) Attachment B, "Bonding and Insurance";
(3) Attachment C, "Retention and Custodial Requirements for Records," except that
in lieu of the provisions in paragraph 4, the retention period for records pertaining to
individual CDBG activities starts from the date of the City's submission to HUD of the
annual performance and evaluation report, as prescribed in 24 CFR 570.507, in which
the specific activity is reported on for the final time;
(4) Attachment F, "Standards for Financial Management Systems";
(5) Attachment H, "Monitoring and Reporting Program Performance," paragraph 2;
(6) Attachment N, "Property Management Standards," except for paragraph 3
concerning the standards for real property, and except that paragraphs 6 and 7 are
modified so that: (i) in all cases in which personal property is sold, the proceeds shall be
program income, and (ii) personal property not needed by the subrecipient for CDBG
activities shall be transferred to the recipient for the CDBG program or shall be retained
after compensating the recipient; and
(7) Attachment O, "Procurement Standards."
b. 2 CFR Part 230 (formally OMB Circular A-122) Cost Principles for Nonprofit
Organizations, requirements for determining allowable costs under grants, contracts,
and other agreements with non-profit organizations.
c. OMB Circular A-133 Audits of Institutions of States, Local Governments and
Nonprofit Institutions, if Participant receives more than $500,000 in a year in Federal
awards Participant must have an audit conducted in accordance with OMB Circular A-
133. Audit must be performed by an independent auditor in accordance with OMB
Circulars.
Attachment D - Loan Agreement
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d. Title VI of the Civil Rights Act of 1964 (Public Law 88-352), which states that no
person in the United States shall on the ground of race, color or national origin be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.
e. Title VIII of the Civil Rights Act of 1968 (Public Law 90-284), which prohibits
discrimination in the sale or rental of housing, because of race, color, religion, sex, or
national origin, and requires that HUD-assisted activities be carried out in a manner to
affirmatively further fair housing.
f. Section 109 of the Housing and Community Development Act of 1974, which
states that no person in the United States shall on the ground of race, color, national
origin or sex be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity funded in whole or in part
under this Act.
g. Section 504 of the Rehabilitation Act of 1973, as amended, which states that no
otherwise qualified handicapped individual in the United States shall solely by reason of
his/her handicap be excluded from participation in, be denied the benefits of, or be
discriminated against under any program or activity receiving Federal financial
assistance.
h. Age Discrimination Act of 1975, as amended, which states that no persons in the
United States shall, on the basis of age, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.
i. Section 3 of the Housing and Urban Development Act of 1968, which requires
that to the greatest extent feasible, opportunities for training and employment be given
to lower-income persons within the unit of local government or the metropolitan area in
which the project is located, and that contracts for work in connection with the project be
awarded to eligible business concerns which are located in, or owned in substantial part
by, persons residing in the same metropolitan area as the project. Participant shall
comply with City’s procedures for implementation of Section 3.
j. Conflict of interest regulations as contained in 24 CFR 570.611, which require,
among other things, that except for salaries and other related administrative or
personnel costs, no person who is an employee, agent, consultant or officer of the
Participant may obtain a personal or financial interest or benefit from the activity funded
under this Agreement, or have an interest in any contract, subcontract, or agreement
with respect thereto, or the proceeds there under, either for themselves or those with
whom they have family or business ties, during their tenure or for one year thereafter.
Upon written request of the Participant, the City may request the U.S. Department of
Housing and Urban Development to grant an exception to the foregoing requirement on
a case-by-case basis when it can be determined, on the basis of information provided in
accordance with 24 CFR 570.611 (d), that such an exception will serve to further the
Attachment D - Loan Agreement
69
purposes of Title I of the Housing and Community Development Act of 1974, as
amended.
k. In accordance with 24 CFR 570.303 of the Community Development Block Grant
regulations, Participant certifies that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of
it, to any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee of
a Member of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant loan, or cooperative agreement;
(2) If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee of
a Member of Congress in connection with this Federal contract, Grant, loan, or
cooperative agreement, it will complete and submit Standard Form - LLL, "Disclosure
Form to Report Lobbying", in accordance with its instructions.
l. Labor Standards. If the work contemplated by this Agreement exceeds work in
excess of two thousand dollars ($2,000), Participant and any contractors and
subcontractors employed by or under contract to Participant for the purpose of
completing the Improvements described in Exhibit C, shall comply with all applicable
federal labor provisions, including, but not limited to the reporting requirements of the (i)
Davis-Bacon and Related Acts (DBRA), (ii) Contract Work Hours and Safety Standards
Act (CWHSSA), (iii) Copeland (Anti-Kickback) Act, (iv) Section 110 of the Housing and
Community Development Act of 1974, as amended (CDBG).
Additionally, where applicable, the Participant must comply with state prevailing wage
requirements for work to be performed under this Agreement as determined by the
Director of Industrial Relations pursuant to the Director’s authority under Labor Code
Section 1770 et seq.
m. Equal Employment Opportunity. If the construction contract will exceed $10,000,
Participant’s contractor, contractors and subcontractors shall be subject to Federal
equal employment opportunity requirements under the provision of Executive Order
11246.
n. Historic Preservation. The Project is subject to Federal Historic Preservation
requirements and Participant certif ies that it will comply with all applicable Federal
Historical Preservation regulations.
o. National Environmental Protection Act (NEPA). This project is subject to NEPA
and a HUD-required environmental review (ER) will be undertaken by the City to
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70
determine any environmental impacts the Project may have on the physical and built
environment. Participant is made aware that if the Project is determined not to meet
environmental requirements, Participant shall take no action which would create an
adverse environmental impact or limit the choice of reasonable alternatives. Participant
shall not proceed with undertaking any work or activities prior to completion of the ER
except in accordance with 24CFR 58.22 (d).
p. Program Income. No program income is expected to be directly generated from
the use of CDBG funds under this Agreement. In the event that program income is so
generated, Participant shall notify City immediately for instructions regarding disposition
of program income in accordance with the provisions of 24 CFR 570.504 (c).
q. Lead-Based Paint. HUD Lead Safe Housing Rule, 24 CFR 35, subparts B
through R, applies to all housing receiving Federal assistance to which subparts C, D, F
through M, and R of this part apply, except where indicated.
r. Relocation Assistance and Real Property Acquisition Policies Act of 1970, and as
applicable CDBG regulations respectively at 24 CFR 570.606, Participant shall take all
reasonable steps to minimize the displacement of persons (families, individuals,
businesses, nonprofit organizations, and farms) as a result of the Project. As applicable,
the Participant shall be responsible for meeting compliance with the aforementioned
regulations which shall include relocation costs.
2133096.1
Attachment D - Loan Agreement
71
Exhibit G
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
Attachment D - Loan Agreement
72
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Housing & Community Development Division
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (“Deed of Trust”) is made as of ______________, 2013, by Mid-Peninsula
Coalition Belle Haven, Inc., a California nonprofit public benefit corporation, (“Trustor”) to
_____Title Company_________ as trustee (“Trustee”), for the benefit of the City of South San
Francisco, a municipal corporation (“Beneficiary”).
RECITALS
A. Trustor owns fee simple title to the Land described in Exhibit A attached hereto
and incorporated herein by this reference (the “Land”). Trustor intends to rehabilitate all eleven
(11) affordable apartment units and conduct additional property improvements on the Land (the
“Project”.
B. Beneficiary and Trustor have entered into a Loan Agreement dated as of
_______________, 2013 (the “Loan Agreement”) pursuant to which Beneficiary will provide a
loan to Trustor in the amount of Two Hundred Fifty-nine Thousand Six Hundred and Thirty-seven
Dollars $259,637 (the “Loan”) for the purpose of financing the rehabilitation of the Project.
Trustor has issued to Beneficiary a secured promissory note dated as of the date hereof (the
“Note”) to evidence Trustor’s obligation to repay the Loan. An Affordable Housing Regulatory
Agreement and Declaration of Restrictive Covenants will be recorded in the Official Records of
San Mateo County concurrently herewith.
C. As a condition precedent to the making of the Loan, Beneficiary has required that
Trustor enter into this Deed of Trust and grant to Trustee for the benefit of Beneficiary, a lien
and security interest in the Land (defined below) to secure repayment of the Note and
performance of Trustor’s obligations Loan Agreement under the Loan Documents (defined
below).
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is agreed as follows.
Attachment D - Loan Agreement
73
1. Grant in Trust. In consideration of the foregoing and for the purpose of securing payment
and performance of the Secured Obligations defined and described in Section 2, Trustor hereby
irrevocably and unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the
benefit of Beneficiary, with power of sale and right of entry and possession, all estate, right, title
and interest which Trustor now has or may later acquire in and to the Land, and all of the
following, whether presently owned or hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or
constructed on the Land (“Improvements”);
b. All appurtenances, easements, rights of way, pipes, transmission lines or wires
and other rights used in connection with the Land or the Improvements or as a means of access
thereto, whether now or hereafter owned or constructed or placed upon or in the Land or
Improvements and all existing and future privileges, rights, franchises and tenements of the
Land, including all minerals, oils, gas and other commercially valuable substances which may be
in, under or produced from any part of the Land, and all water rights, rights of way, gores or
strips of Land, and any Land lying in the streets, ways, and alleys, open or proposed, in front of
or adjoining the Land and Improvements (collectively, “Appurtenances”);
c. All machinery, equipment, fixtures, goods and other personal Land of the Trustor,
whether moveable or not, now owned or hereafter acquired by the Trustor and now or hereafter
located at or used in connection with the Land, the Improvements or Appurtenances, and all
improvements, restorations, replacements, repairs, additions or substitutions thereto (collectively,
“Equipment”);
d. All existing and future leases, subleases, licenses, and other agreements relating to
the use or occupancy of all or any portion of the Land or Improvements (collectively, “Leases”),
all amendments, extensions, renewals or modifications thereof, and all rent, royalties, or other
payments which may now or hereafter accrue or otherwise become payable thereunder to or for
the benefit of Trustor, including but not limited to security deposits (collectively, “Rents”);
e. All insurance proceeds and any other proceeds from the Land, Improvements,
Appurtenances, Equipment, Leases, and Rents, including without limitation, all deposits made
with or other security deposits given to utility companies, all claims or demands relating to
insurance awards which the Trustor now has or may hereafter acquire, including all advance
payments of insurance premiums made by Trustor, and all condemnation awards or payments
now or later made in connection with any condemnation or eminent domain proceeding
(“Proceeds”);
f. All revenues, income, rents, royalties, payments and profits produced by the
Land, Improvements, Appurtenances and Equipment, whether now owned or hereafter acquired
by Trustor (“Gross Revenues”);
g. All architectural, structural and mechanical plans, specifications, design
documents and studies produced in connection with development of the Land and construction of
the Improvements (collectively, “Plans”); and
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74
h. All interests and rights in any private or governmental grants, subsidies, loans or
other financing provided in connection with development of the Land and construction of the
Improvements (collectively, “Financing”).
All of the above-referenced interests of Trustor in the Land, Improvements, Appurtenances,
Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and Financing as hereby conveyed
to Trustee or made subject to the security interest herein described are collectively referred to
herein as the “Land.”
2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment
and performance of the following (collectively, the “Secured Obligations”): (i) all present and
future indebtedness evidenced by the Note and any amendment thereof, including principal,
interest and all other amounts payable under the terms of the Note; (ii) all present and future
obligations of Trustor to Beneficiary under the Loan Documents (defined below); (iii) all
additional present and future obligations of Trustor to Beneficiary under any other agreement or
instrument acknowledged by Trustor (whether existing now or in the future) which states that it
is or such obligations are, secured by this Deed of Trust; (iv) all obligations of Trustor to
Beneficiary under all modifications, supplements, amendments, renewals, or extensions of any of
the foregoing, whether evidenced by new or additional documents; and (v) reimbursement of all
amounts advanced by or on behalf of Beneficiary to protect Beneficiary’s interests under this
Deed of Trust or any other Loan Document as such may be modified, supplemented, amended,
renewed or extended. The Note, the Loan Agreement, this Deed of Trust, and the Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants (“Regulatory
Agreement”) dated as of the date hereof, executed by and between Trustor and Beneficiary and
recorded substantially concurrently herewith are hereafter collectively referred to as the (“Loan
Documents.”)
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely,
presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits, revenue,
income and proceeds of the Land. This is an absolute assignment and not an assignment for
security only. Beneficiary hereby confers upon Trustor a license to collect and retain such Rents,
royalties, issues, profits, revenue, income and proceeds as they become due and payable prior to
any Event of Default hereunder. Upon the occurrence of any such Event of Default, Beneficiary
may terminate such license without notice to or demand upon Trustor and without regard to the
adequacy of any security for the indebtedness hereby secured, and may either in person, by
agent, or by a receiver to be appointed by a court, enter upon and take possession of the Land or
any part thereof, and sue for or otherwise collect such rents, issues, and profits, including those
past due and unpaid, and apply the same, less costs and expenses of operation and collection,
including reasonable attorneys’ fees, to any indebtedness secured hereby, and in such order as
Beneficiary may determine. Beneficiary’s right to the rents, royalties, issues, profits, revenue,
income and proceeds of the Land does not depend upon whether or not Beneficiary takes
possession of the Land. The entering upon and taking possession of the Land, the collection of
such rents, issues, and profits, and the application thereof as aforesaid, shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant to such notice. If
an Event of Default occurs while Beneficiary is in possession of all or part of the Land and/or is
collecting and applying Rents as permitted under this Deed of Trust, Beneficiary, Trustee and
any receiver shall nevertheless be entitled to exercise and invoke every right and remedy
Attachment D - Loan Agreement
75
afforded any of them under this Deed of Trust and at law or in equity, including the right to
exercise the power of sale granted hereunder. Regardless of whether or not Beneficiary, in
person or by agent, takes actual possession of the Land or the Improvements, Beneficiary shall
not be deemed to be a “mortgagee in possession,” shall not be responsible for performing any
obligation of Trustor under any Lease, shall not be liable in any manner for the Land, or the use,
occupancy, enjoyment or operation of any part of it, and shall not be responsible for any waste
committed by Trustor, lessees or any third parties, or for dangerous or defective condition of the
Land or any negligence in the management, repair or control of the Land. Absent Beneficiary’s
written consent, Trustor shall not accept prepayment of Rents for any rental period exceeding
one month.
4. Security Agreement. The parties intend for this Deed of Trust to create a lien on the
Land, and an absolute assignment of the Rents and Leases, all in favor of Beneficiary. The
parties acknowledge that some of the Land may be determined under applicable law to be
personal Land or fixtures. To the extent that any Land may be or be determined to be personal
Land, Trustor as debtor hereby grants to Beneficiary as secured party a security interest in all
such Land to secure payment and performance of the Secured Obligations. This Deed of Trust
constitutes a security agreement under the California Uniform Commercial Code, as amended or
recodified from time to time (the “UCC”), covering all such Land. To the extent such Land is
not real Land encumbered by the lien granted above, and is not absolutely assigned by the
assignment set forth above, it is the intention of the parties that such Land shall constitute
"proceeds, products, offspring, rents, or profits" (as defined in and for the purposes of Section
552(b) of the United States Bankruptcy Code, as such section may be modified or supplemented)
of the Land and Improvements.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby authorizes
Beneficiary, as secured party, to file such financing statements and amendments thereof and such
continuation statements with respect thereto as Beneficiary may deem appropriate to perfect and
preserve Beneficiary's security interest in the Land and Rents, without requiring any signature or
further authorization by Trustor. If requested by Beneficiary, Trustor shall pay all fees and costs
that Beneficiary may incur in filing such documents in public offices and in obtaining such
record searches as Beneficiary may reasonably require. If any financing statement or other
document is filed in the records normally pertaining to personal Land, that filing shall not be
construed as in any way derogating from or impairing this Deed of Trust or the rights or
obligations of the parties under it.
Everything used in connection with the Land and/or adapted for use therein and/or which is
described or reflected in this Deed of Trust is, and at all times and for all purposes and in all
proceedings both legal or equitable shall be regarded as part of the estate encumbered by this
Deed of Trust irrespective of whether (i) any such item is physically attached to the
Improvements, (ii) serial numbers are used for the better identification of certain equipment
items capable of being thus identified in a recital contained herein or in any list filed with
Beneficiary, or (iii) any such item is referred to or reflected in any such financing statement so
filed at any time. Similarly, the mention in any such financing statement of (1) rights in or to the
proceeds of any fire and/or hazard insurance policy, or (2) any award in eminent domain
proceedings for a taking or for lessening of value, or (3) Trustor's interest as lessor in any present
or future lease or rights to income growing out of the use and/or occupancy of the Land
Attachment D - Loan Agreement
76
conveyed hereby, whether pursuant to lease or otherwise, shall not be construed as in any way
altering any of the rights of Beneficiary as determined by this instrument or impugning the
priority of Beneficiary’s lien granted hereby or by any other recorded document. Such mention
in any financing statement is declared to be solely for the protection of Beneficiary in the event
any court or judge shall at any time hold, with respect to the matters set forth in the foregoing
clauses (1), (2), and (3), that notice of Beneficiary's priority of interest is required in order to be
effective against a particular class of persons, including but not limited to the federal government
and any subdivisions or entity of the federal government.
6. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture filing
pursuant to the provisions of the UCC with respect to all of the Land constituting fixtures, is
being recorded as a fixture financing statement and filing under the UCC, and covers Land,
goods and equipment which are or are to become fixtures related to the Land and the
Improvements. Trustor covenants and agrees that this Deed of Trust is to be filed in the real
estate records of San Mateo County and shall also operate from the date of such filing as a
fixture filing in accordance with Section 9502 and other applicable provisions of the UCC. This
Deed of Trust shall also be effective as a financing statement covering minerals or the like
(including oil and gas) and accounts subject to the UCC, as amended. Trustor shall be deemed to
be the "debtor" and Beneficiary shall be deemed to be the "secured party" for all purposes under
the UCC.
7. Trustor’s Representations, Warranties and Covenants; Rights and Duties of the Parties.
7.1 Representations and Warranties. Trustor represents and warrants that: (i) Trustor
lawfully possesses and holds a fee simple interest in the Land and the Improvements, (ii) Trustor
has good and marketable title to all of the Land; (iii) other than as limited by the Loan
Documents, Trustor has the full and unlimited power, right and authority to encumber the Land
and assign the Rents; (iv) subject only to encumbrances of record and senior liens permitted
pursuant to the Loan Documents or otherwise approved in writing by Beneficiary (“Permitted
Encumbrances”), this Deed of Trust creates a valid lien on Trustor’s entire interest in the Land;
(v) except with respect to Permitted Encumbrances, Trustor owns the Land free and clear of all
deeds of trust, mortgages, security agreements, reservations of title or conditional sales contracts,
(vi) there is no financing statement affecting the Land on file in any public office other than as
disclosed in writing to Beneficiary; and (vii) the correct address of Trustor’s chief executive
office is specified in Section 10.2. Beneficiary agrees that it will not withhold consent to
reasonable requests for subordination of this Deed of Trust provided that the subordination
agreement includes reasonable protections to the Beneficiary in the event of default.
7.2 Condition of Land. Trustor represents and warrants that except as disclosed to
Beneficiary in writing, as of the date hereof: (i) Trustor has not received any notice from any
governmental authority of any threatened or pending zoning, building, fire, or health code
violation or violation of other governmental regulations concerning the Land that has not
previously been corrected, and no condition on the Land violates any health, safety, fire,
environmental, sewage, building, or other federal, state or local law, ordinance or regulation; (ii)
no contracts, licenses, leases or commitments regarding the maintenance or use of the Land or
allowing any third party rights to use the Land are in force; (iii) there are no threatened or
pending actions, suits, or administrative proceedings against or affecting the Land or any portion
Attachment D - Loan Agreement
77
thereof or the interest of Trustor in the Land; (iv) there are no threatened or pending
condemnation, eminent domain, or similar proceedings affecting the Land or any portion thereof;
(v) Trustor has not received any notice from any insurer of defects of the Land which have not
been corrected; (vi) there are no natural or artificial conditions upon the Land or any part thereof
that could result in a material and adverse change in the condition of the Land; (vii) all
information that Trustor has delivered to Beneficiary, either directly or through Trustor's agents,
is accurate and complete; and (viii) Trustor or Trustor’s agents have disclosed to Beneficiary all
material facts concerning the Land.
7.3 Authority. Trustor represents and warrants that this Deed of Trust and all other
documents delivered or to be delivered by Trustor in connection herewith: (a) have been duly
authorized, executed, and delivered by Trustor; (b) are binding obligations of Trustor; and (c) do
not violate the provisions of any agreement to which Trustor is a party or which affects the Land.
Trustor further represents and warrants that there are no pending, or to Trustor’s knowledge,
threatened actions or proceedings before any court or administrative agency which may
adversely affect Trustor’s ownership of the Land.
7.4 Payment and Performance of Secured Obligations. Trustor shall promptly pay
when due the principal and any interest due on the indebtedness evidenced by the Note, and shall
promptly pay and perform all other obligations of Trustor arising in connection with the Secured
Obligations or the Loan Documents in accordance with the respective terms thereof.
7.5 Use of Loan Proceeds; Preservation and Maintenance of Land; Compliance with
Laws. Trustor covenants that it shall use the Loan Proceeds solely for purposes authorized by
the Loan Documents. Trustor covenants that it shall keep the Land and Improvements in good
repair and condition, and from time to time shall make necessary repairs, renewals and
replacements thereto so that the Land shall be preserved and maintained. Trustor covenants to
comply with all federal, state and local laws, regulations, ordinances and rules applicable to the
Land and the Project, including without limitation all applicable requirements of state and local
building codes and regulations, and all applicable statutes and regulations relating to accessibility
for the disabled. Trustor shall not remove, demolish or materially alter any Improvement
without Beneficiary’s consent, shall complete or restore promptly and in good and workmanlike
manner any building, fixture or other improvement which may be constructed, damaged, or
destroyed thereon, and shall pay when due all claims for labor performed and materials furnished
therefor. Trustor shall use the Land and the Improvements solely for purposes authorized by the
Loan Documents, shall not commit or allow waste of the Land, and shall not commit or allow
any act upon or use of the Land which would violate any applicable law or order of any
governmental authority, nor shall Trustor bring on or keep any article on the Land or cause or
allow any condition to exist thereon which could invalidate or which would be prohibited by any
insurance coverage required to be maintained on the Land pursuant to the Loan Documents.
7.6 Restrictions on Conveyance and Encumbrance; Acceleration. Except as permitted
in Section 8.2 of the Regulatory Agreement, it shall be an Event of Default hereunder if the
Land, any part thereof, or interest therein is sold, assigned, conveyed, transferred, hypothecated,
leased, licensed, or encumbered in violation of the Loan Documents or if any other Transfer (as
defined in the Loan Agreement) occurs in violation of the Loan Documents. If any such
Transfer shall occur in violation of such requirements, without limiting the provisions of
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Section 8 hereof, all obligations secured by this Deed of Trust, irrespective of the maturity dates
of such obligations, shall at the option of Beneficiary, and without demand, immediately become
due and payable, subject to any applicable cure period.
7.7 Inspections; Books and Records. Beneficiary and its agents and representatives
shall have the right at any reasonable time upon reasonable notice to enter upon the Land and
inspect the Land to ensure compliance with the Loan Documents. Trustor shall maintain
complete and accurate books of account and other records (including copies of supporting bills
and invoices) adequate to document the use of the Loan Proceeds and the operation of the Land,
together with copies of all written contracts, Leases and other instruments which affect the Land.
The books, records, contracts, Leases and other instruments shall be subject to examination and
inspection by Beneficiary at any reasonable time following two business days prior notice.
7.8 Charges, Liens, Taxes and Assessments. Trustor shall pay before delinquency all
taxes, levies, assessments and other charges affecting the Land that are (or if not paid may
become) a lien on all or part of the Land. Trustor may, at Trustor’s expense, contest the validity
or application of any tax, levy, assessment or charge affecting the Land by appropriate legal
proceedings promptly initiated and conducted in good faith and with due diligence, provided that
(i) Beneficiary is reasonably satisfied that neither the Land nor any part thereof or interest therein
will be in danger of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor shall
have posted a bond or furnished other security as may reasonably be required from time to time
by Beneficiary; and provided further that Trustor shall timely make any payment necessary to
prevent a lien foreclosure, sale, forfeiture or loss of the Land.
7.9 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances,
whether released of record or not, which are discharged in whole or in part by Beneficiary in
accordance with this Deed of Trust.
7.10 Hazard, Liability and Workers’ Compensation Insurance. At all times during the
term hereof, at Trustor’s expense, Trustor shall keep the Improvements and personal Land now
existing or hereafter located on the Land insured against loss by fire, vandalism and malicious
mischief by a policy of standard fire and extended all-risk insurance. The policy shall be written
on a full replacement value basis and shall name Beneficiary as loss payee as its interest may
appear. The full replacement value of the improvements to be insured shall be determined by the
company issuing the policy at the time the policy is initially obtained. Not more frequently than
once every two (2) years, either the Trustor or the Beneficiary shall have the right to notify the
other party that it elects to have the replacement value redetermined by the insurance company.
Subject to the rights of any senior lienholder, the proceeds collected under any insurance policy
may be applied by Beneficiary to any indebtedness secured hereby and in such order as
Beneficiary may determine, or at the option of Beneficiary, the entire amount so collected or any
part thereof may be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
Notwithstanding anything to the contrary set forth herein, provided that Trustor is not in default
under any Loan Document, Trustor shall be permitted to use the proceeds of insurance to rebuild
the Improvements.
7.10.1 Trustor shall at all times during the term hereof, maintain a comprehensive
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79
general liability insurance policy in an amount not less than Two Million Dollars ($2,000,000)
combined single limit, Four Million Dollars ($4,000,000) annual aggregate, together with Five
Million Dollars ($5,000,000) umbrella liability coverage or such other policy limits as Agency
may require in its reasonable discretion, including coverage for bodily injury, Land damage,
products, completed operations and contractual liability coverage. Such policy or policies shall
be written on an occurrence basis and shall name the Beneficiary as an additional insured.
Trustor shall maintain workers’ compensation insurance as required by law.
7.10.2 Trustor shall file with Beneficiary prior to the commencement of the term
hereof, certificates (or such other proof as Beneficiary may require, including without limitation,
copies of the required insurance policies) evidencing each of the insurance policies and
endorsements thereto as required by this Section, and such certificates (or policies) shall provide
that at least thirty (30) days’ prior written notice shall be provided to Beneficiary prior to the
expiration, cancellation or change in coverage under each such policy.
7.10.3 If any insurance policy required hereunder is canceled or the coverage
provided thereunder is reduced, Trustor shall, within fifteen (15) days after receipt of written
notice of such cancellation or reduction in coverage, but in no event later than the effective date
of cancellation or reduction, file with Beneficiary a certificate showing that the required
insurance has been reinstated or provided through another insurance company or companies.
Upon failure to so file such certificate, Beneficiary may, without further notice and at its option,
procure such insurance coverage at Trustor’s expense, and Trustor shall promptly reimburse
Beneficiary for such expense upon receipt of billing from Beneficiary.
7.10.4 The insurance policies required hereunder shall be issued by insurance
companies authorized to do business in the State of California with a financial rating of at least A
VII status as rated in the most recent edition of Best's Key Rating Guide. Each policy of
insurance shall contain an endorsement requiring the insurer to provide at least 30 days written
notice to Beneficiary prior to change in coverage, cancellation or expiration thereof. If any
insurance policy required pursuant to the Loan Documents is canceled or the coverage provided
thereunder is reduced, Trustor shall, within ten (10) days after receipt of written notice of such
cancellation or reduction in coverage, but in no event later than the effective date of cancellation
or reduction, file with Beneficiary a certificate showing that the required insurance has been
reinstated or provided through another insurance company or companies. Upon failure to so file
such certificate, Beneficiary may, without further notice and at its option, procure such insurance
coverage at Trustor’s expense, and Trustor shall promptly reimburse Beneficiary for such
expense upon receipt of billing from Beneficiary.
7.11 Hazardous Materials. Trustor represents and warrants that except as disclosed to
Beneficiary in writing, as of the date hereof to the best knowledge of Trustor: (i) the Land is
free and has always been free of Hazardous Materials (as defined below) and is not and has
never been in violation of any Environmental Law (as defined below); (ii) there are no buried or
partially buried storage tanks located on the Land ; (iii) Trustor has received no notice, warning,
notice of violation, administrative complaint, judicial complaint, or other formal or informal
notice alleging that conditions on the Land are or have ever been in violation of any
Environmental Law or informing Trustor that the Land is subject to investigation or inquiry
regarding Hazardous Materials on the Land or the potential violation of any Environmental Law;
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(iv) there is no monitoring program required by the Environmental Protection Agency or any
other governmental agency concerning the Land; (v) no toxic or hazardous chemicals, waste, or
substances of any kind have ever been spilled, disposed of, or stored on, under or at the Land,
whether by accident, burying, drainage, or storage in containers, tanks, holding areas, or any
other means; (vi) the Land has never been used as a dump or Landfill; and (vii) Trustor has
disclosed to Beneficiary all information, records, and studies in Trustor’s possession or
reasonably available to Trustor relating to the Land concerning Hazardous Materials.
Trustor shall not cause or permit any Hazardous Material (as defined below) to be
brought upon, kept, stored or used in, on, under, or about the Land by Trustor, its agents,
employees, contractors or invitees except for incidental supplies ordinarily used in connection
with the construction, rehabilitation, repair, and operation of residential developments and in
compliance with all applicable laws, and shall not cause any release of Hazardous Materials into,
onto, under or through the Land. If any Hazardous Material is discharged, released, dumped, or
spilled in, on, under, or about the Land and results in any contamination of the Land or adjacent
Land, or otherwise results in the release or discharge of Hazardous Materials in, on, under or from
the Land, Trustor shall promptly take all actions at its sole expense as are necessary to comply
with all Environmental Laws (as defined below).
Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and
hold Beneficiary and its elected and appointed officials, officers, agents and employees
(collectively, “Indemnitees”) harmless from and against any and all loss, claim, liability, damage,
demand, judgment, order, penalty, fine, injunctive or other relief, cost, expense (including
reasonable fees and expenses of attorneys, expert witnesses, and other professionals advising or
assisting Beneficiary), action, or cause of action (all of the foregoing, hereafter individually
“Claim” and collectively “Claims”) arising in connection with the breach of Trustor’s covenants
and obligations set forth in this Section 7.11 or otherwise arising in connection with the presence
or release of Hazardous Materials in, on, under, or from the Land. The foregoing indemnity
includes, without limitation, all costs of investigation, assessment, containment, removal,
remediation of any kind, and disposal of Hazardous Materials, all costs of determining whether
the Land is in compliance with Environmental Laws, all costs associated with bringing the Land
into compliance with all applicable Environmental Laws, and all costs associated with claims for
damages or injury to persons, Land, or natural resources.
Without limiting the generality of the foregoing, Trustor shall, at Trustor’s own cost and
expense, do all of the following:
a. pay or satisfy any judgment or decree that may be entered against any Indemnitee
or Indemnitees in any legal or administrative proceeding incident to any matters against which
Indemnitees are entitled to be indemnified under this Deed of Trust;
b. reimburse Indemnitees for any expenses paid or incurred in connection with any
matters against which Indemnitees are entitled to be indemnified under this Deed of Trust; and
c. reimburse Indemnitees for any and all expenses, including without limitation out-
of-pocket expenses and reasonable fees of attorneys and expert witnesses, paid or incurred in
connection with the enforcement by Indemnitees of their rights under this Deed of Trust, or in
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monitoring and participating in any legal or administrative proceeding.
Trustor’s obligation to indemnify the Indemnitees shall not be limited or impaired by any
of the following, or by any failure of Trustor to receive notice of or consideration for any of the
following: (i) any amendment or modification of any Loan Document; (ii) any extensions of
time for performance required by any Loan Document; (iii) any provision in any of the Loan
Documents limiting Beneficiary's recourse to Land securing the Secured Obligations, or limiting
the personal liability of Trustor, or any other party for payment of all or any part of the Secured
Obligations; (iv) the accuracy or inaccuracy of any representation and warranty made by Trustor
under this Deed of Trust or by Trustor or any other party under any Loan Document, (v) the
release of Trustor or any other person, by Beneficiary or by operation of law, from performance
of any obligation under any Loan Document; (vi) the release or substitution in whole or in part of
any security for the Secured Obligations; and (vii) Beneficiary’s failure to properly perfect any
lien or security interest given as security for the Secured Obligations.
The provisions of this Section 7.11 shall be in addition to any and all other obligations
and liabilities that Trustor may have under applicable law, and each Indemnitee shall be entitled
to indemnification under this Section without regard to whether Beneficiary or that Indemnitee
has exercised any rights against the Land or any other security, pursued any rights against any
guarantor or other party, or pursued any other rights available under the Loan Documents or
applicable law. The obligations of Trustor to indemnify the Indemnitees under this Section shall
survive any repayment or discharge of the Secured Obligations, any foreclosure proceeding, any
foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the
lien of this Deed of Trust.
Without limiting any of the remedies provided in this Deed of Trust, Trustor
acknowledges and agrees that each of the provisions in this Section 7.11 is an environmental
provision (as defined in Section 736(f)(2) of the California Code of Civil Procedure) made by
Trustor relating to real Land security (the “Environmental Provisions”), and that Trustor's
failure to comply with any of the Environmental Provisions will be a breach of contract that will
entitle Beneficiary to pursue the remedies provided by Section 736 of the California Code of
Civil Procedure (“Section 736”) for the recovery of damages and for the enforcement of the
Environmental Provisions. Pursuant to Section 736, Beneficiary's action for recovery of
damages or enforcement of the Environmental Provisions shall not constitute an action within
the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money
judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b,
580d, or 726(b) of the California Code of Civil Procedure.
“Hazardous Materials” means any substance, material or waste which is or becomes
regulated by any federal, state or local governmental authority, and includes without limitation
(i) petroleum or oil or gas or any direct or indirect product or by-product thereof; (ii) asbestos
and any material containing asbestos; (iii) any substance, material or waste regulated by or listed
(directly or by reference) as a “hazardous substance”, “hazardous material”, “hazardous waste”,
“toxic waste”, “toxic pollutant”, “toxic substance”, “solid waste” or “pollutant or contaminant”
in or pursuant to, or similarly identified as hazardous to human health or the environment in or
pursuant to, the Toxic Substances Control Act [15 U.S.C. Section 2601, et seq.]; the
Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section
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9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section
5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. Section 6901, et seq.],
the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C.
Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act
[California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances
Account Act [California Health and Safety Code Section 25300, et seq.], the California
Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California
Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section
25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code
Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations
promulgated thereunder; (iv) any substance, material or waste which is defined as such or
regulated by any “Superfund” or “Superlien” law, or any Environmental Law; or (v) any other
substance, material, chemical, waste or pollutant identified as hazardous or toxic and regulated
under any other federal, state or local environmental law, including without limitation, asbestos,
polychlorinated biphenyls, petroleum, natural gas and synthetic fuel products and by-products.
“Environmental Law” means all federal, state or local statutes, ordinances, rules,
regulations, orders, decrees, judgments or common law doctrines, and provisions and conditions
of permits, licenses and other operating authorizations regulating, or relating to, or imposing
liability or standards of conduct concerning (i) pollution or protection of the environment,
including natural resources; (ii) exposure of persons, including employees and agents, to any
Hazardous Material (as defined above) or other products, raw materials, chemicals or other
substances; (iii) protection of the public health or welfare from the effects of by-products,
wastes, emissions, discharges or releases of chemical substances from industrial or commercial
activities; (iv) the manufacture, use or introduction into commerce of chemical substances,
including without limitation, their manufacture, formulation, labeling, distribution,
transportation, handling, storage and disposal; or (iv) the use, release or disposal of toxic or
hazardous substances or Hazardous Materials or the remediation of air, surface waters,
groundwaters or soil, as now or may at any later time be in effect, including but not limited to the
Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental
Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous
Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.], the Resource
Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control
Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California
Underground Storage of Hazardous Substances Act [California Health and Safety Code Section
25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety
Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety
Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act
[California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water
Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are
hereafter amended, together with any regulations promulgated thereunder.
7.12 Notice of Claims; Defense of Security; Reimbursement of Costs.
a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any
uninsured or partially uninsured loss affecting the Land through fire, theft, liability, or Land
damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within three business
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days of the occurrence of such loss. Trustor shall ensure that Beneficiary shall receive timely
notice of, and shall have a right to cure, any default under any other financing document or other
lien affecting the Land and shall use best efforts to ensure that provisions mandating such notice
and allowing such right to cure shall be included in all such documents. Within three business
days of Trustor’s receipt thereof, Trustor shall provide Beneficiary with a copy of any notice of
default Trustor receives in connection with any financing document secured by the Land or any
part thereof.
b. Defense of Security. At Trustor's sole expense, Trustor shall protect, preserve and
defend the Land and title to and right of possession of the Land, the security of this Deed of
Trust and the rights and powers of Beneficiary and Trustee created under it, against all adverse
claims.
c. Compensation; Reimbursement of Costs. Trustor agrees to pay all reasonable
fees, costs and expenses charged by Beneficiary or Trustee for any service that Beneficiary or
Trustee may render in connection with this Deed of Trust, including without limitation, fees and
expenses related to provision of a statement of obligations or related to a reconveyance. Trustor
further agrees to pay or reimburse Beneficiary for all costs, expenses and other advances which
may be incurred or made by Beneficiary or Trustee in any efforts to enforce any terms of this
Deed of Trust, including without limitation any rights or remedies afforded to Beneficiary or
Trustee or both of them under Sections 7.18 and 8.2, whether or not any lawsuit is filed, or in
defending any action or proceeding arising under or relating to this Deed of Trust, including
reasonable attorneys’ fees and other legal costs, costs of any disposition of the Land under the
power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of title.
d. Notice of Changes. Trustor shall give Beneficiary prior written notice of any
change in the address of Trustor and the location of any Land, including books and records
pertaining to the Land.
7.13 Indemnification. Trustor shall indemnify, defend (with counsel reasonably
acceptable to Beneficiary), and hold harmless the Trustee and the Indemnitees (as defined in
Section 7.11) from and against all Claims arising directly or indirectly in any manner in
connection with or as a result of (a) any breach of Trustor’s covenants under any Loan
Document, (b) any representation by Trustor in any Loan Document which proves to be false or
misleading in any material respect when made, (c) injury or death to persons or damage to Land
or other loss occurring on the Land or in any improvement located thereon, whether caused by
the negligence or any other act or omission of Trustor or any other person or by negligent, faulty,
inadequate or defective design, building, construction or maintenance or any other condition or
otherwise, (d) any claim, demand or cause of action, or any action or other proceeding, whether
meritorious or not, brought or asserted against any Indemnitee which relates to or arises out of
the Land, or any Loan Document or any transaction contemplated thereby, or any failure of
Trustor to comply with all applicable state, federal and local laws and regulations applicable to
the Land, provided that no Indemnitee shall be entitled to indemnification under this Section for
matters caused by any Indemnitee's gross negligence or willful misconduct. The obligations of
Trustor under this Section shall survive the repayment of the Loan and shall be secured by this
Deed of Trust. Notwithstanding any contrary provision contained herein, the obligations of
Trustor under this Section shall survive any foreclosure proceeding, any foreclosure sale, any
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delivery of a deed in lieu of foreclosure, and any release or reconveyance of this Deed of Trust.
7.14. Limitation of Liability. Beneficiary shall not be directly or indirectly liable to
Trustor or any other person as a consequence of any of the following: (i) Beneficiary's exercise
of or failure to exercise any rights, remedies or powers granted to Beneficiary in this Deed of
Trust; (ii) Beneficiary's failure or refusal to perform or discharge any obligation or liability of
Trustor under any agreement related to the Land or under this Deed of Trust; (iii) any waste
committed by Trustor, the lessees of the Land or any third parties, or any dangerous or defective
condition of the Land; or (iv) any loss sustained by Trustor or any third party resulting from any
act or omission of Beneficiary in managing the Land after an Event of Default, unless the loss is
caused by the willful misconduct, gross negligence, or bad faith of Beneficiary. Trustor hereby
expressly waives and releases all liability of the types described in this Section 7.14 and agrees
that Trustor shall assert no claim related to any of the foregoing against Beneficiary.
7.15 Insurance and Condemnation Proceeds. Subject to the rights of any senior
lienholders, any award of damages in connection with any condemnation for public use of, or
injury to the Land or any part thereof is hereby assigned and shall be paid to Beneficiary who
may apply such moneys to any indebtedness secured hereby in such order as Beneficiary may
determine, or at the option of Beneficiary the entire amount so collected or any part thereof may
be released to Trustor. Such application or release shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant to such notice. Notwithstanding the
foregoing, so long as the value of Beneficiary’s lien is not impaired, insurance and/or
condemnation proceeds may be used to repair and/or restore the Project.
7.16 Release, Extension, Modification. At any time and from time to time, without
liability therefor and without notice, upon written request of Beneficiary and presentation of this
Deed of Trust and the Note for endorsement, Trustee may release or reconvey all or any part of
the Land, consent to the making of any map or plat of the Land or part thereof, join in granting
any easement or creating any restriction affecting the Land, or join in any extension agreement or
other agreement affecting the lien or charge hereof. At any time and from time to time, without
liability therefor and without notice, Beneficiary may (i) release any person liable for payment of
any Secured Obligation, (ii) extend the time for payment or otherwise alter the terms of payment
of any Secured Obligation; (iii) accept additional real or personal Land of any kind as security
for any Secured Obligation, or (iv) substitute or release any Land securing the Secured
Obligations.
7.17 Reconveyance. Upon written request of Beneficiary stating that all of the Secured
Obligations have been paid in full, and upon surrender of this Deed of Trust, and the Note,
Trustee shall reconvey, without warranty, the Land or so much of it as is then held under this
Deed of Trust. The recitals in any reconveyance executed under this Deed of Trust of any
matters or facts shall be conclusive proof of the truthfulness thereof. Trustor shall pay all fees of
Trustee and all recordation fees related to such reconveyance.
7.18 Cure; Protection of Security. Either Beneficiary or Trustee may cure any breach
or default of Trustor, and if it chooses to do so in connection with any such cure, Beneficiary or
Trustee may also enter the Land and/or do any and all other things which it may in its sole
discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such
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other things may include: appearing in and/or defending any action or proceeding which purports
to affect the security of, or the rights or powers of Beneficiary or Trustee under, this Deed of
Trust; paying, purchasing, contesting or compromising any encumbrance, charge, lien or claim
of lien which in Beneficiary’s or Trustee’s sole judgment is or may be senior in priority to this
Deed of Trust, such judgment of Beneficiary or Trustee to be conclusive as among Beneficiary,
Trustee and Trustor; obtaining insurance and/or paying any premiums or charges for insurance
required to be carried hereunder; otherwise caring for and protecting any and all of the Land;
and/or employing counsel, accountants, contractors and other appropriate persons to assist
Beneficiary or Trustee. Beneficiary and Trustee may take any of the actions permitted under this
Section 7.18 either with or without giving notice, except for notices required under applicable
law. Any amounts disbursed by Beneficiary pursuant to this paragraph shall become additional
indebtedness secured by this Deed of Trust.
7.19 Limited Partners Right to Cure. Trustor’s limited partners, if any, shall have the
right to cure any default of Trustor hereunder upon the same terms and conditions afforded to
Trustor. Provided that Beneficiary has been given written notice of the address for delivery of
notices to the limited partners, Beneficiary shall provide any notice of default hereunder to the
limited partners concurrently with the provision of such notice to Trustor, and as to the limited
partners, the cure periods specified herein shall commence upon the date of delivery of such
notice in accordance with Section 10.2.
8. Default and Remedies.
8.1 Events of Default. Trustor acknowledges and agrees that an Event of Default
shall occur under this Deed of Trust upon the occurrence of any one or more of the following
events:
a. Beneficiary’s declaration of an Event of Default under any Loan
Document, subject to the expiration of any applicable cure period set forth in such document;
b. Trustor fails to perform any monetary obligation which arises under this
Deed of Trust, and does not cure that failure within ten (10) days following written notice from
Beneficiary or Trustee;
c. If Trustor’s interest in the Land or any part thereof is voluntarily or
involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in violation of
Section 7.6 hereof or if any other Transfer occurs in violation of the Loan Agreement and
Trustor fails to rescind such conveyance or otherwise cure such breach within the time period
specified in paragraph j below;
d. Trustor fails to maintain the insurance coverage required hereunder or
otherwise fails to comply with the requirements of Section 7.10 hereof and Trustor fails to cure
such default within the time specified in Section 7.10;
e. Subject to Trustor’s right to contest such charges as provided herein,
Trustor fails to pay taxes or assessments due on the Land or the Improvements or fails to pay any
other charge that may result in a lien on the Land or the Improvements, and Trustor fails to cure
such default within 10 days.
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f. Any representation or warranty of Trustor contained in or made in
connection with the execution and delivery of this Deed of Trust or in any certificate or
statement furnished pursuant hereto or in any other Loan Document proves to have been false or
misleading in any material adverse respect when made;
g. If, pursuant to or within the meaning of the United States Bankruptcy
Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy
Law”), Trustor or any general partner thereof (i) commences a voluntary case or proceeding; (ii)
consents to the entry of an order for relief against Trustor or any general partner thereof in an
involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or
similar official for Trustor or any general partner thereof; (iv) makes an assignment for the
benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due.
h. If a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (i) is for relief against Trustor or any general partner thereof in an
involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for
Trustor or any general partner thereof or substantially all of such entity’s assets, (iii) orders the
liquidation of Trustor or any general partner thereof, or (iv) issues or levies a judgment, writ,
warrant of attachment or similar process against the Land or the Project, and in each case the
order or decree is not released, vacated, dismissed or fully bonded within 60 days after its
issuance.
i. The holder of any other debt instrument secured by a mortgage or deed of
trust on the Land or part thereof declares an event of default thereunder and exercises a right to
declare all amounts due under that debt instrument immediately due and payable, subject to the
expiration of any applicable cure period set forth in such holder’s documents; or
j. Trustor fails to perform any obligation arising under this Deed of Trust
other than one enumerated in this Section 8.1, and does not cure that failure either within ten (10)
days after written notice from Beneficiary or Trustee in the event of a monetary default, or
within thirty (30) days after such written notice in the event of a nonmonetary default, provided
that in the case of a nonmonetary default that in Beneficiary’s reasonable judgment cannot
reasonably be cured within thirty (30) days, an Event of Default shall not arise hereunder if
Trustor commences to cure such default within thirty (30) days and thereafter prosecutes such
cure to completion with due diligence and in good faith.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth herein, at
any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all
of the rights and remedies described below, and may exercise any one or more or all, of the
remedies set forth in any Loan Document, and any other remedy existing at law or in equity or
by statute. All of Beneficiary’s rights and remedies shall be cumulative, and the exercise of any
one or more of them shall not constitute an election of remedies. Beneficiary shall be entitled to
collect all expenses incurred in pursuing the remedies provided hereunder, including without
limitation reasonable attorneys’ fees and costs.
a. Acceleration. Beneficiary may declare any or all of the Secured
Obligations, including without limitation all sums payable under the Note and this Deed of Trust,
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to be due and payable immediately.
b. Receiver. Beneficiary may apply to any court of competent jurisdiction
for, and obtain appointment of, a receiver for the Land.
c. Entry. Beneficiary, in person, by agent or by court-appointed receiver,
may enter, take possession of, manage and operate all or any part of the Land, and may also do
any and all other things in connection with those actions that Beneficiary may in its sole
discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such
other things may include: taking and possessing copies of all of Trustor’s or the then owner's
books and records concerning the Land; entering into, enforcing, modifying, or canceling Leases
on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants;
fixing or modifying Rents; collecting and receiving any payment of money owing to Trustor;
completing any unfinished construction; and/or contracting for and making repairs and
alterations. If Beneficiary so requests, Trustor shall assemble all of the Land that has been
removed from the Land and make all of it available to Beneficiary at the site of the Land. Trustor
hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney-in-fact to perform
such acts and execute such documents as Beneficiary in its sole discretion may consider to be
appropriate in connection with taking these measures, including endorsement of Trustor's name
on any instruments.
d. UCC Remedies. Beneficiary may exercise any or all of the remedies
granted to a secured party under the UCC.
e. Judicial Action. Beneficiary may bring an action in any court of
competent jurisdiction to foreclose this Deed of Trust in the manner provided by law for
foreclosure of mortgages on real Land and/or to obtain specific enforcement of any of the
covenants or agreements of this Deed of Trust.
f. Power of Sale. Under the power of sale hereby granted, Beneficiary shall
have the discretionary right to cause some or all of the Land, including any Land which
constitutes personal Land, to be sold or otherwise disposed of in any combination and in any
manner permitted by applicable law.
8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby granted,
Beneficiary shall execute or cause the Trustee to execute a written notice of such default and of
its election to cause the Land to be sold to satisfy the obligations hereof, and shall cause such
notice to be recorded in the office of the Recorder of each County wherein the Land or some part
thereof is situated as required by law and this Deed of Trust.
Prior to publication of the notice of sale, Beneficiary shall deliver to Trustee this Deed of
Trust and the Note or other evidence of indebtedness which is secured hereby, together with a
written request for the Trustee to proceed with a sale of the Land, pursuant to the provisions of
law and this Deed of Trust.
Notice of sale having been given as then required by law, and not less than the time then
required by law having elapsed after recordation of such notice of default, Trustee, without
demand on Trustor, shall sell the Land at the time and place fixed by it in the notice of sale,
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either as a whole or in separate parcels and in such order as it may determine, at public auction to
the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee
may, and at Beneficiary’s request shall, postpone sale of all or any portion of the Land by public
announcement at such time and place of sale, and from time to time thereafter may postpone
such sale by public announcement at the time and place fixed by the preceding postponement.
Trustee shall deliver to the purchaser its deed conveying the Land so sold, but without any
covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall
be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and of the trust hereby created,
including reasonable attorneys’ fees in connection with sale, Trustee shall apply the proceeds of
sale to payment of all sums advanced or expended by Beneficiary or Trustee under the terms
hereof and all outstanding sums then secured hereby, and the remainder, if any, to the person or
persons legally entitled thereto.
Without limiting the generality of the foregoing, Trustor acknowledges and agrees that
regardless of whether or not a default has occurred hereunder, if an Event of Default has
occurred under the Loan Documents, and if in connection with such Event of Default
Beneficiary exercises its right to foreclose on the Land, then: (i) Beneficiary shall be entitled to
declare all amounts due under the Note immediately due and payable, and (ii) the proceeds of
any sale of the Land in connection with such foreclosure shall be used to pay all Secured
Obligations, including without limitation, the outstanding principal balance and all other
amounts due under the Note.
At any foreclosure sale, any person, including Trustor, Trustee or Beneficiary, may bid
for and acquire the Land or any part of it to the extent permitted by then applicable law. Instead
of paying cash for such Land, Beneficiary may settle for the purchase price by crediting the sales
price of the Land against the following obligations:
a. First, the portion of the Secured Obligations attributable to the expenses of
sale, costs of any action and any other sums for which Trustor is obligated to pay or reimburse
Beneficiary or Trustee under Section 7.12(c); and
b. Second, the remaining balance of all other Secured Obligations in any
order and proportions as Beneficiary in its sole discretion may choose.
8.4 Trustor’s Right to Reinstate. Notwithstanding Beneficiary’s acceleration of the
sums secured by this Deed of Trust, Trustor shall have the right to have any proceedings begun
by Beneficiary to enforce this Deed of Trust discontinued at any time prior to five days before
sale of the Land pursuant to the power of sale contained in this Deed of Trust or at any time prior
to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays Beneficiary all sums
which would be then due under the Loan Documents if the Secured Obligations had no
acceleration provision; (b) Trustor cures all breaches of any other covenants or agreements of
Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by
Beneficiary and Trustee in enforcing the covenants and agreements of Trustor contained in this
Deed of Trust, and in enforcing Beneficiary’s and Trustee’s remedies as provided herein,
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including, but not limited to, reasonable attorney’s fees; and (d) Trustor takes such action as
Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary’s
interest in the Land and Trustor’s obligation to pay the sums secured by this Deed of Trust shall
continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the
obligations secured hereby shall remain in full force and effect as if no acceleration had
occurred.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all
statutes of limitations as a defense to any action or proceeding brought against Trustor by
Beneficiary; (b) the benefit of all laws now existing or which may hereafter be enacted providing
for any appraisement, valuation, stay, extension, redemption or moratorium; (c) all rights of
marshalling in the event of foreclosure; and (d) all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance
of this Deed of Trust and of the existence, creation, or incurring of new or additional
indebtedness, and demands and notices of every kind.
10. Miscellaneous Provisions.
10.1 Additional Provisions. The Loan Documents grant further rights to Beneficiary
and contain further agreements and affirmative and negative covenants by Trustor which apply
to this Deed of Trust and the Land.
10.2 Notices. Trustor requests that a copy of notice of default and notice of sale be
mailed to Trustor at the address set forth below. That address is also the mailing address of
Trustor as debtor under the UCC. Beneficiary’s address set forth below is the address for
Beneficiary as secured party under the UCC. Except for any notice required under applicable
law to be given in another manner, all notices to be sent pursuant to this Deed of Trust shall be
made in writing, and sent to the parties at their respective addresses specified below or to such
other address as a party may designate by written notice delivered to the other parties in
accordance with this Section. All such notices shall be sent by:
a. personal delivery, in which case notice shall be deemed delivered upon
receipt;
b. certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered two (2) business days after deposit, postage prepaid in the United
States mail;
c. nationally recognized overnight courier, in which case notice shall be
deemed delivered one (1) day after deposit with such courier; or
d. facsimile transmission, in which case notice shall be deemed delivered on
transmittal, provided that a transmission report is generated reflecting the accurate transmission
thereof.
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Beneficiary:
The City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: Community Development Director
Trustor: Mid-Peninsula Coalition Belle Haven, Inc.,
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: Matthew Franklin
Trustee: Name
Address
Address
Attn:
10.3 Binding on Successors. The terms, covenants and conditions of this Deed of
Trust shall be binding upon and inure to the benefit of the heirs, administrators, executors,
successors in interest, transferees, and assigns of the Trustor, Beneficiary and Trustee; provided
however this Section 10.3 does not waive the provisions of Section 7.6.
10.4 Substitution of Trustee. Beneficiary may from time to time or at any time
substitute a trustee or trustees to execute the trust hereby created, and when any such substitution
has been filed for record in the office of the Recorder of San Mateo County, it shall be
conclusive evidence of the appointment of such trustee or trustees, and such new trustee or
trustees shall succeed to all of the powers and duties of the Trustee named herein.
10.5 Attorneys’ Fees and Costs. In any action or proceeding to foreclose this Deed of
Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to Beneficiary and
Trustee all costs of such action or proceeding, including reasonable attorneys’ fees.
10.6 Governing Law; Severability; Interpretation. This Deed of Trust shall be
governed by the laws of the State of California without regard to principles of conflicts of laws.
Trustor agrees that any controversy arising under or in relation to this Deed of Trust shall be
litigated exclusively in the jurisdiction where the Land is located (the “Land Jurisdiction”). The
state and federal courts and authorities with jurisdiction in the Land Jurisdiction shall have
exclusive jurisdiction over all controversies which shall arise under or in relation to the Loan
Documents. Trustor irrevocably consents to service, jurisdiction, and venue of such courts for
any such litigation, and waives any other venue to which it might be entitled by virtue of
domicile, habitual residence or otherwise. If any provision of this Deed of Trust is held
unenforceable or void, that provision shall be deemed severable from the remaining provisions,
and shall in no way affect the validity of this Deed of Trust. The captions used in this Deed of
Trust are for convenience only and are not intended to affect the interpretation or construction of
the provisions herein contained. In this Deed of Trust, whenever the context so requires, the
Attachment D - Loan Agreement
91
singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any
obligation of Trustor hereunder must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or
Trustee to take action on account of any default of Trustor. Consent by Beneficiary or Trustee to
any act or omission by Trustor shall not be construed as a consent to any other or subsequent act
or omission or to waive the requirement for Beneficiary’s or Trustee’s consent to be obtained in
any future or other instance. No amendment to or modification of this Deed of Trust shall be
effective unless and until such amendment or modification is in writing, executed by Trustor and
Beneficiary. Without limiting the generality of the foregoing, Beneficiary’s acceptance of
payment of any sum secured hereby after its due date shall not constitute a waiver by Beneficiary
of its right either to require prompt payment when due of all other sums so secured or to declare
default for failure so to pay.
10.8 Action by Beneficiary. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, or consent by the Beneficiary is required or permitted
under this Agreement, such action shall be in writing, and such action may be given, made or
taken by Beneficiary’s City Manager or by any person who shall have been designated by
Beneficiary’s City Manager, without further approval by the governing board of Beneficiary.
Beneficiary shall use reasonable best efforts to respond to requests for any such approval, notice,
direction, or consent in a timely manner. In any approval, consent, or other determination by
Beneficiary required hereunder, Beneficiary shall act reasonably and in good faith.
10.9 Joint and Several Liability. If Trustor consists of more than one person or entity,
each shall be jointly and severally liable for the faithful performance of all of Trustor’s
obligations under this Deed of Trust.
10.10 Time is of the Essence. Time is of the essence for each provision of this Deed of
Trust.
10.11 Subordination. This Deed of Trust shall be subordinate to that certain Deed of
Trust recorded as Instrument No.1988-146679 in the official records of San Mateo County, to
evidence and secure a loan in the amount of Six Hundred Eighty-Five Thousand Dollars
$685,000.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first
written above.
TRUSTOR:
MID-PENINSULA COALITION BELLE HAVEN, INC.
A CALIFORNIA nonprofit public benefit corporation
By: ______________________________
Matthew O. Franklin
Its: Assistant Secretary
SIGNATURES MUST BE NOTARIZED.
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93
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO )
On , 20__, before me, ______________________, (here insert name and title
of the officer), personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
Attachment D - Loan Agreement
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Exhibit A
LAND
(Attach legal description.)
2145451.1
Attachment D - Loan Agreement
95
Exhibit H
AFFORDABLE HOUSING REGULATORY AGREEMENT AND DECLARATION OF
RESTRICTIVE CONVENANTS
Attachment D - Loan Agreement
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
by and between
THE CITY OF SOUTH SAN FRANCISCO
and
MID-PENINSULA COALITION BELLE HAVEN, INC.
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97
This Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants (this “Agreement”) is entered into effective as of _____________, 2013
(“Effective Date”) by and between the City of South San Francisco, a municipal
corporation (“City”) and Mid-Peninsula Coalition Belle Haven, Inc., a California nonprofit
public benefit corporation, (“Participant”). City and Participant are hereinafter
collectively referred to as the “Parties.”
RECITALS
A. Participant owns certain real property located in the City of South San
Francisco at 222-224 Grand Avenue, and known as San Mateo County Assessor’s
Parcel No. 012-315-120 as more particularly described in Exhibit A attached hereto
(the “Property”).
B. Participant intends to rehabilitate all eleven (11) affordable apartment units
and conduct additional property improvements on the Property (the “Project”) in
accordance with that certain Loan Agreement for Affordable Housing Rehabilitation (the
“Loan Agreement”) dated as of _________________, 2013 and executed by and
between Participant and City.
C. The Loan Agreement provides that for a period of not less than fifty-five
(55) years all of the residential units on the Property shall be rented at an affordable
cost to households whose income is less than or equal to eighty percent (80%) of Area
Median Income (“AMI”).
D. Subject to the conditions set forth in the Loan Agreement, the City has
agreed to provide to Participant a loan in the amount of Two Hundred Fifty-nine
Thousand Six Hundred and Thirty-seven Dollars $259,637 (the “Loan”) in order to
provide financing for the Project. The Loan is evidenced by a Secured Promissory Note
(the “Note”) executed by Participant and dated as of the date hereof, and is secured by
a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (“Deed of
Trust”) dated as of the date hereof and executed by Participant for the benefit of City.
The Deed of Trust will be recorded in the Official Records substantially concurrently
herewith.
E. As a condition to its agreement to provide the Loan to Participant, the City
requires the Property to be subject to the terms, conditions and restrictions set forth
herein.
F. The Parties have agreed to enter into and record this Agreement in order to
satisfy the conditions described in the foregoing Recitals. The purpose of this Agreement is
to regulate and restrict the occupancy and rents of the Project’s Restricted Units for the
benefit of the Project occupants. The Parties intend the covenants set forth in this
Agreement to run with the land and to be binding upon Participant and Participant’s
successors and assigns for the full term of this Agreement.
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98
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows.
1. Definitions. The following terms have the meanings set forth in this Section
wherever used in this Agreement or the attached exhibits.
“Actual Household Size" means the actual number of persons in the applicable
household.
“Adjusted for Family Size Appropriate for the Unit” shall be determined
consistent with Section 50052.5(h) of the California Health and Safety Code and
applicable federal rules (if any).
"Affordable Rent" means the following amounts, less a utility allowance and
such other adjustments as required pursuant to the U.S. Department of Housing and
Urban Development (“HUD”): for units that are restricted for rental to households with
incomes of not more than eighty percent (80%) of AMI (“80% Units”), a monthly rent
that does not exceed one-twelfth (1/12) of thirty percent (30%) of eighty percent (80%)
of Area Median Income, Adjusted for Family Size Appropriate for the Unit.
"Area Median Income" or "AMI " means the median income for San Mateo
County, California, adjusted for Actual Household Size, as determined by HUD
pursuant to Section 8 of the United States Housing Act of 1937 and as published from
time to time by the State of California Department of Housing and Community
Development (“HCD”) in Section 6932 of Title 25 of the California Code of
Regulations or successor provision published pursuant to California Health and
Safety Code Section 50093(c).
“Claims” is defined in Section 10.
"Eligible Household" means a household for which gross household income
upon initial occupancy does not exceed the maximum income level for a Restricted Unit
as specified in Section 2.1.
“Indemnitees” is defined in Section 10.
“Low-Income” or “Lower Income” means an annual gross household income
that is less than or equal to the qualifying limits for households of Lower Income
adjusted for actual household size, as determined periodically by HUD on the basis of
gross annual household income and published by HCD in the Regulations for San
Mateo County. If HUD ceases to make such determination, "Lower Income" shall be
defined as not greater than 80% of Area Median Income adjusted for actual household
size, as published by HCD in the Regulations. If both HCD and HUD cease to make
such determinations, City in its reasonable discretion may designate another definition
of "Lower Income" used by any other federal or state City so long as such definition is
no more restrictive than that set forth herein.
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99
"Restricted Unit" means a dwelling unit which is reserved for occupancy at an
Affordable Rent by a household of not more than a specified household income in
accordance with and as set forth in Sections 2.1 and 2.2.
2. Use and Affordability Restrictions. Participant hereby covenants and agrees, for
itself and its successors and assigns, that the Property shall be used solely for the
operation of an affordable multifamily rental housing development in compliance with
the Loan Agreement and the requirements set forth herein. Participant represents and
warrants that it has not entered into any agreement that would restrict or compromise its
ability to comply with the occupancy and affordability restrictions set forth in this
Agreement, and Participant covenants that it shall not enter into any agreement that is
inconsistent with such restrictions without the express written consent of City.
2.1 Affordability Requirements. For a term of fifty-five (55) years commencing
upon the Effective Date not less than all of the eleven (11) residential units shall be
Rent Restricted (as defined below) and occupied (or if vacant, available for occupancy)
by Eligible Households whose income is less than or equal to eighty percent (80%) of
AMI.
2.2 Rents for Restricted Units. Rents for Restricted Units shall be limited to
Affordable Rents for households of the applicable income limit in accordance with
Section 2.1.
2.2.1 Intentionally omitted.
2.2.1 If upon recertification of tenant incomes, Participant determines that
a tenant has a household income exceeding the maximum qualifying income for such
tenant’s unit, the tenant shall be permitted to continue to occupy the unit, and upon
expiration of the tenant's lease and upon sixty (60) days’ written notice, Participant may
increase the rent for such unit to the lesser of one-twelfth of thirty percent (30%) of the
tenant’s actual household income or the fair market rent Notwithstanding the above, the
Borrower may choose not to renew a tenant's lease if the tenant's household income
exceeds eighty percent (80%) of AMI.
2.2.3 In the event of inconsistency between the provisions of Section
2.2.1 and the rules applicable to the Project in connection with financing provided by
HUD, the rules applicable pursuant to such financing source shall prevail.
2.2.4 Intentionally omitted.
2.3 Intentionally omitted.
2.3 No Condominium Conversion. Participant shall not convert the Project to
condominium or cooperative Participantship or sell condominium or cooperative rights to
the Project or any part thereof during the term of this Agreement.
2.4 Non-Discrimination; Compliance with Fair Housing Laws.
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100
2.4.1 Intentionally Omitted.
2.4.2 Fair Housing. Participant shall comply with applicable state and
federal fair housing laws in the marketing and rental of the units in the Project.
Participant shall accept as tenants, on the same basis as all other prospective tenants,
persons who are recipients of federal certificates or vouchers for rent subsidies
pursuant to the existing Section 8 program or any successor thereto.
2.4.3 Non-Discrimination. Participant shall not restrict the rental, sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any
portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation,
disability, marital status, ancestry, or national origin of any person. Participant
covenants for itself and all persons claiming under or through it, and this Agreement is
made and accepted upon and subject to the condition that there shall be no
discrimination against or segregation of any person or group of persons on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1)
of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property
or part thereof, nor shall Participant or any person claiming under or through Participant
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in, of, or for the Property or part thereof.
2.7 Relocation. Persons residing on the Property as of the Effective Date
shall not be displaced before suitable replacement housing is available in comparable
replacement housing. Participant shall ensure that all occupants of the Property receive
all notices, benefits and assistance to which they are entitled in accordance with
California Relocation Assistance Law (Government Code Section 7260 et seq.), all state
and local regulations implementing such law, and all other applicable local, state and
federal laws and regulations (collectively “Relocation Laws”) relating to the
displacement and relocation of eligible persons as defined in such Relocation Laws.
Any and all costs incurred in connection with the temporary and/or permanent
displacement and/or relocation of occupants of the Property, including without limitation
payments to a relocation consultant, moving expenses, and payments for temporary
and permanent relocation benefits pursuant to Relocation Laws shall be paid by
Participant. Participant shall indemnify, defend (with counsel approved by City) and hold
harmless the Indemnitees (defined in Section 10) from and against any and all Claims
(defined in Section 10) arising in connection with the breach of Participant’s obligations
set forth in this Section except to the extent such Claims arise from the gross
negligence or willful misconduct of the Indemnitees. Participant’s indemnification
obligations set forth in this Section 2.7 shall survive the expiration or earlier termination
of this Agreement.
Attachment D - Loan Agreement
101
3. Reporting Requirements.
3.1. Tenant Certification. Participant or Participant’s authorized agent shall
obtain from each household prior to initial occupancy of each Restricted Unit, and on
every anniversary thereafter, a written certificate containing all of the following in such
format and with such supporting documentation as City may reasonably require:
(a) The identity of each household member;
(b) The total gross household income;
(c) For dwelling units reserved for occupancy by seniors:
(i) The identity and age of the resident who is disabled or
age 62 or older, and
(ii) The identity and age of each other member of the
household or such other information reasonably required to
demonstrate compliance with Section 2.1.1 above.
Participant shall retain such certificates for not less than three (3) years, and
upon City’s request, shall provide copies of such certificates to City and make the
originals available for City inspection.
3.2 Annual Report; Inspections. By not later than April 30 of each year during
the term of this Agreement, Participant shall submit an annual report (“Annual Report”)
to the City in form satisfactory to City, together with a certification that the Project is in
compliance with the requirements of this Agreement. The Annual Report shall, at a
minimum, include the following information for each dwelling unit in the Project: (i) unit
number; (ii) number of bedrooms; (iii) current rent and other charges; (iv) dates of any
vacancies during the previous year; (v) number of people residing in the unit; (vi) total
gross household income of residents; (vii) documentation of source of household
income; and (viii) the information required by Section 3.1.
Participant shall include with the Annual Report, an income recertification for
each household, documentation verifying tenant eligibility, and such additional
information as City may reasonably request from time to time in order to demonstrate
compliance with this Agreement. The Annual Report shall conform to the format
requested by City; provided however, during such time that the Project is subject to a
regulatory agreement restricting occupancy and/or rents pursuant to requirements
imposed in connection with the use of state or federal low-income housing tax credits or
tax-exempt financing, Participant may satisfy the requirements of this Section by
providing City with a copy of compliance reports required in connection with such
financing.
Participant shall permit representatives of City to enter and inspect the Property
and the Project during reasonable business hours in order to monitor compliance with this
Agreement upon 48-hours advance notice of such visit to Participant or to Participant's
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102
management agent.
3.3 Reserved
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect through the
55th anniversary of the Effective Date unless the term is extended by mutual agreement
of the Parties.
4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan.
This Agreement shall remain effective and fully binding for the full term hereof, as such
may be extended pursuant to Section 4.1, regardless of (i) any sale, assignment, transfer,
or conveyance of the Property or the Project or any part thereof or interest therein, (ii)
any payment, prepayment or extinguishment of the Loan or Note, or (iii) any reconveyance
of the Deed of Trust.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties
agree to execute and record appropriate instruments to release and discharge this
Agreement; provided, however, the execution and recordation of such instruments shall
not be necessary or a prerequisite to the termination of this Agreement upon the
expiration of the term as such may be extended pursuant to Section 4.1.
5. Binding Upon Successors; Covenants to Run with the Land. Participant
hereby subjects its interest in the Property and the Project to the covenants and
restrictions set forth in this Agreement. The City and Participant hereby declare their
express intent that the covenants and restrictions set forth herein shall be deemed
covenants running with the land and shall be binding upon and inure to the benefit of
the heirs, administrators, executors, successors in interest, transferees, and assigns of
Participant and City, regardless of any sale, assignment, conveyance or transfer of the
Property, the Project or any part thereof or interest therein. Any successor-in-interest to
Participant, including without limitation any purchaser, transferee or lessee of the Property
or the Project (other than the tenants of the individual dwelling units within the Project)
shall be subject to all of the duties and obligations imposed hereby for the full term of this
Agreement. Each and every contract, deed, ground lease or other instrument affecting or
conveying the Property or the Project or any part thereof, shall conclusively be held to
have been executed, delivered and accepted subject to the covenants, restrictions, duties
and obligations set forth herein, regardless of whether such covenants, restrictions, duties
and obligations are set forth in such contract, deed, ground lease or other instrument. If
any such contract, deed, ground lease or other instrument has been executed prior to
the date hereof, Participant hereby covenants to obtain and deliver to City an instrument
in recordable form signed by the parties to such contract, deed, ground lease or other
instrument pursuant to which such parties acknowledge and accept this Agreement and
agree to be bound hereby.
Participant agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land,
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103
such covenants shall be enforced as equitable servitudes against the Property and the
Project in favor of City.
6. Property Management; Repair and Maintenance; Marketing.
6.1 Management Responsibilities. Participant shall be responsible for all
management functions with respect to the Property and the Project, including
without limitation the selection of tenants, certification and recertification of
household income and eligibility, evictions, collection of rents and deposits,
maintenance, landscaping, routine and extraordinary repairs, replacement of capital
items, and security. City shall have no responsibility for management or maintenance
of the Property or the Project.
6.2 Intentionally omitted6.3 Repair, Maintenance and Security.
Throughout the term of this Agreement, Participant shall at its own expense, maintain
the Property and the Project in good physical condition, in good repair, and in decent,
safe, sanitary, habitable and tenantable living conditions in conformity with all applicable
state, federal, and local laws, ordinances, codes, and regulations. Participant shall
prevent and/or rectify any physical deterioration of the Property and the Project and
shall make all repairs, renewals and replacements necessary to keep the Property
and the improvements located thereon in good condition and repair.
6.3.1 City’s Right to Perform Maintenance. In the event that Participant
breaches any of the covenants contained in Section 6.3, and such default continues for a
period of ten (10) days after written notice from City (with respect to graffiti, debris, and
waste material) or thirty (30) days after written notice from City (with respect to
landscaping, building improvements and general maintenance), then City, in addition to
any other remedy it may have under this Agreement or at law or in equity, shall have the
right, but not the obligation, to enter upon the Property and perform all acts and work
necessary to protect, maintain, and preserve the improvements and the landscaped
areas on the Property. All costs expended by City in connection with the foregoing, shall
constitute an indebtedness secured by the Deed of Trust, and shall be paid by
Participant to City upon demand. All such sums remaining unpaid thirty (30) days
following delivery of City’s invoice therefor shall bear interest at the lesser of 10% per
annum or the highest rate permitted by applicable law. Notwithstanding anything to the
contrary set forth in this Section, City agrees that it will provide Participant with not less
than thirty (30) days’ written notice prior to undertaking any work for which Participant will
incur a financial obligation.
6.4 Intentionally omitted.
6.5 Intentionally omitted.
6.6 Fees, Taxes, and Other Levies. Participant shall be responsible for
payment of all fees, assessments, taxes, charges, liens and levies applicable to the
Property or the Project, including without limitation possessory interest taxes, if
applicable, imposed by any public entity, and shall pay such charges prior to
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104
delinquency. However, Participant shall not be required to pay any such charge so long
as (a) Participant is contesting such charge in good faith and by appropriate
proceedings, (b) Participant maintains reserves adequate to pay any contested
liabilities, and (c) on final determination of the proceeding or contest, Participant
immediately pays or discharges any decision or judgment rendered against it, together
with all costs, charges and interest.
6.7 Insurance Coverage. Throughout the term of this Agreement Participant
shall comply with the insurance requirements set forth in Exhibit B, and shall, at
Participant’s expense, maintain in full force and effect insurance coverage as specified in
Exhibit B.
6.8 Property Damage or Destruction. If any part of the Project is damaged or
destroyed, Participant shall repair or restore the same, consistent with the occupancy
and rent restriction requirements set forth in this Agreement. Such work shall be
commenced within one hundred twenty (120) days after the damage or loss occurs
and shall be completed within one year thereafter or as soon as reasonably
practicable, provided that insurance proceeds are available to be applied to such repairs
or restoration within such period and the repair or restoration is financially feasible.
During such time that lenders or low-income housing tax credit investors providing
financing for the Project impose requirements that differ from the requirements of this
Section the requirements of such lenders and investors shall prevail.
7. Recordation; Subordination. This Agreement shall be recorded in the Official
Records of San Mateo County. Participant hereby represents, warrants and covenants
that with the exception of easements of record, absent the written consent of City, this
Agreement shall not be subordinated in priority to any lien (other than those pertaining to
taxes or assessments), encumbrance, or other interest in the Property or the Project
except that certain Deed of Trust recorded as Instrument No.1988-146679 in the official
records of San Mateo County, evidencing and securing a loan in the amount of Six
Hundred Eighty-Five Thousand Dollars $685,000.. If at the time this Agreement is
recorded, any interest, lien, or encumbrance has been recorded against the Project in
position superior to this Agreement, upon the request of City, Participant hereby
covenants and agrees to promptly undertake all action necessary to clear such matter
from title or to subordinate such interest to this Agreement consistent with the intent of
and in accordance with this Section 7, and to provide such evidence thereof as City may
reasonably request.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this
Agreement, except as permitted pursuant to the Loan Agreement or this Agreement,
Participant shall not directly or indirectly, voluntarily, involuntarily or by operation of law
make or attempt any total or partial sale, transfer, conveyance, assignment or lease
(collectively, “Transfer”) of the whole or any part of the Property, the Project, or the
improvements located on the Property, without the prior written consent of the City,
which approval shall not be unreasonably withheld. In addition, prior to the expiration of
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105
the term of this Agreement, except as expressly permitted by this Agreement or the
Loan Agreement , Participant shall not undergo any significant change of Participant
structure without the prior written approval of City. For purposes of this Agreement, a
“significant change of Participant structure” shall mean a transfer of the beneficial
interest of more than twenty-five percent (25%) in aggregate of the present Participant
structure and /or control of Participant, taking all transfers into account on a cumulative
basis; provided however, neither the admission of an investor limited partner, nor the
transfer by the investor limited partner to subsequent limited partners shall be restricted
by this provision.
8.2 Permitted Transfers. Notwithstanding any contrary provision hereof, the
prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the
granting of temporary easements or permits to facilitate development of the Property; (ii)
the dedication of any property required pursuant to the Loan Agreement ; (iii) the lease
of individual dwelling units to tenants for occupancy as their principal residence in
accordance with this Agreement; (iv) assignments creating security interests for the
purpose of financing the acquisition, construction, or permanent financing of the Project
or the Property in accordance with the Loan Agreement, or Transfers directly resulting
from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security
interest; (v) a Transfer to an entity which is under the direct control of MidPen Housing
Corporation, a California nonprofit public benefit corporation (“Controlled Affiliate”)
provided that the instrument of Transfer provides for the development and operation of
the Property in a manner consistent with the Loan Agreement and this Agreement; (vi)
the admission of limited partners and any transfer of limited partnership interests in
accordance with Participant’s agreement of limited partnership (the “Partnership
Agreement”), in the event Participant is in a limited partnership, provided that the
Partnership Agreement and/or the instrument of Transfer provides the for development
and operation of the Property in a manner consistent with the Loan Agreement and this
Agreement; (vii) the removal of the general partner by the investor limited partner for a
default under the Partnership Agreement, provided the replacement general partner is
reasonably satisfactory to City; or (viii) the transfer of the general partner’s interest to a
nonprofit entity that is tax-exempt under Section 501(c)(3) of the Internal Revenue Code
of 1986 as amended, provided such replacement general partner is reasonably
satisfactory to City.
In addition, City shall not withhold its consent to the sale, transfer or other
disposition of the Property in whole or in part, provided that (1) the Property is and shall
continue to be operated in compliance with this Agreement; (2) the transferee expressly
assumes all obligations of Participant imposed by this Agreement; (3) the transferee
executes all documents reasonably requested by the City with respect to the
assumption of the Participant’s obligations under this Agreement, and upon City’s
request, delivers to the City an opinion of its counsel to the effect that such document
and this Agreement are valid, binding and enforceable obligations of such transferee;
and (4) either (A) the transferee has at least three years’ experience in the operation
and management of low-income multifamily rental housing projects of similar size to that
of the Propertyt, without any record of material violations of nondiscrimination provisions
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or other state or federal laws or regulations applicable to such projects, or (B) the
transferee agrees to retain a property management firm with the experience and record
described in subclause (A).
Consent to any proposed Transfer may be given by the City Manager unless the
City Manager, in his or her discretion, refers the matter of approval to the City Council.
If a proposed Transfer has not been approved by City in writing within thirty (30) days
following City’s receipt of written request by Participant, it shall be deemed rejected.
Participant shall reimburse City for all City costs, including but not limited to
reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents
proposed to affect a Transfer under this Agreement and in reviewing the qualifications
and financial resources of a proposed successor, assignee, or transferee within ten (10)
days following City’s delivery of an invoice detailing such costs.
8.3 Encumbrances. Participant agrees to use best efforts to ensure that all
deeds of trust or other security instruments recorded after the effective date against the
Property, the Project or part thereof for the benefit of a lender other than City (“Third-
Party Lender”) shall contain each of the following provisions: (i) Third-Party Lender
shall use its best efforts to provide to City a copy of any notice of default issued to
Participant concurrently with provision of such notice to Participant; (ii) City shall have
the reasonable right, but not the obligation, to cure any default by Participant within the
same period of time provided to Participant for such cure extended by an additional 90
days; (iii) provided that City has cured any default under Third-Party Lender’s deed of
trust and other loan documents, City shall have the right to foreclose City’s Deed of
Trust and take title to the Project without acceleration of Third-Party Lender’s debt; and
(iv) City shall have the right to transfer the Project without acceleration of Third-Party
Lender’s debt to a nonprofit corporation or other entity which shall own and operate the
Project as an affordable rental housing Project, subject to the prior written consent of
the Third-Party Lender. Participant agrees to provide to City a copy of any notice of
default Participant receives from any Third-Party Lender within three (3) business days
following Participant’s receipt thereof.
8.4 Mortgagee Protection. No violation of any provision contained herein shall
defeat or render invalid the lien of any mortgage or deed of trust made in good faith and
for value upon all or any portion of the Project or the Property, and the purchaser at any
trustee’s sale or foreclosure sale shall not be liable for any violation of any provision
hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall
be bound by and subject to this Agreement from and after such trustee’s sale or
foreclosure sale. Promptly upon determining that a violation of this Agreement has
occurred, City shall give written notice to the holders of record of any mortgages or
deeds of trust encumbering the Project or the Property that such violation has occurred.
9. Default and Remedies.
9.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an event of default hereunder ("Event of Default"):
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(a) The occurrence of a Transfer in violation of Section 8 hereof;
(b) Participant’s failure to maintain insurance on the Property and the
Project as required hereunder, and the failure of Participant to cure such default within
ten (10) days;
(c) Subject to Participant’s right to contest the following charges,
Participant’s failure to pay taxes or assessments due on the Property or the Project or
failure to pay any other charge that may result in a lien on the Property or the Project,
and Participant’s failure to cure such default within thirty (30) days of delinquency;
(d) A default arises under any loan secured by a mortgage, deed of
trust or other security instrument recorded against the Property and remains uncured
beyond any applicable cure period such that the holder of such security instrument has
the right to accelerate repayment of such loan;
(e) An event of default has been declared under the Loan Agreement,
the Note or the Deed of Trust which continues beyond expiration of applicable notice
and cure periods;
(f) Participant’s default in the performance of any term, provision or
covenant under this Agreement (other than an obligation enumerated in this Subsection
9.1), and unless such provision specifies a shorter cure period for such default, the
continuation of such default for ten (10) days in the event of a monetary default or thirty
(30) days in the event of a non-monetary default following the date upon which City
shall have given written notice of the default to Participant, or if the nature of any such
non-monetary default is such that it cannot be cured within 30 days, Participant’s failure
to commence to cure the default within thirty (30) days and thereafter prosecute the
curing of such default with due diligence and in good faith.
The limited partners of Participant, if any, shall have the right to cure any default
of Participant hereunder upon the same terms and conditions afforded to Participant.
Provided that City has been given written notice of the address for delivery of notices to
the limited partners, City shall provide any notice of default hereunder to the limited
partners concurrently with the provision of such notice to Participant, and as to the
limited partners, the cure periods specified herein shall commence upon the date of
delivery of such notice in accordance with Subsection 11.3.
9.2 Remedies. Upon the occurrence of an Event of Default and its
continuation beyond any applicable cure period, City may proceed with any of the
following remedies:
A. Bring an action for equitable relief seeking the specific performance of the
terms and conditions of this Agreement, and/or enjoining, abating, or
preventing any violation of such terms and conditions, and/or seeking
declaratory relief;
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B. Accelerate and declare the balance of the Note and interest accrued
thereon immediately due and payable and proceed with foreclosure under
the Deed of Trust;
C. For violations of obligations with respect to rents for Restricted Units,
impose as liquidated damages a charge in an amount equal to the actual
amount collected in excess of the Affordable Rent;
D. Pursue any other remedy allowed at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The City
may exercise from time to time any rights and remedies available to it under applicable
law or in equity, in addition to, and not in lieu of, any rights and remedies expressly
provided in this Agreement.
10. Indemnity. Participant shall indemnify, defend (with counsel approved by City)
and hold City and its elected and appointed officers, officials, employees, agents, and
representatives (collectively, the “Indemnitees”) harmless from and against all liability,
loss, cost, expense (including without limitation attorneys’ fees and costs of litigation),
claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency,
fine, order, and damage (all of the foregoing collectively “Claims”) arising directly or
indirectly, in whole or in part, as a result of or in connection with Participant’s
construction, management, or operation of the Property and the Project or any failure to
perform any obligation as and when required by this Agreement. Participant’s
indemnification obligations under this Section 10 shall not extend to Claims resulting
solely from the gross negligence or willful misconduct of Indemnitees. The provisions of
this Section 10 shall survive the expiration or earlier termination of this Agreement. It is
further agreed that City does not and shall not waive any rights against Participant that it
may have by reason of this indemnity and hold harmless agreement because of the
acceptance by City, or the deposit with City by Participant, of any of the insurance
policies described in this Agreement or the Loan Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a
written instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement
must be in writing. No waiver shall be implied from any delay or failure by City to take
action on any breach or default hereunder or to pursue any remedy allowed under this
Agreement or applicable law. No failure or delay by City at any time to require strict
performance by Participant of any provision of this Agreement or to exercise any
election contained herein or any right, power or remedy hereunder shall be construed
as a waiver of any other provision or any succeeding breach of the same or any other
provision hereof or a relinquishment for the future of such election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent
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pursuant to this Agreement shall be made in writing, and sent to the Parties at their
respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other parties in accordance with this
Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered upon receipt if delivery is confirmed by a return
receipt;
(iii) nationally recognized overnight courier, with charges prepaid or
charged to the sender’s account, in which case notice is effective on delivery if
delivery is confirmed by the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered
upon transmittal, provided that (a) a duplicate copy of the notice is promptly
delivered by first-class or certified mail or by overnight delivery, or (b) a
transmission report is generated reflecting the accurate transmission thereof.
Any notice given by facsimile shall be considered to have been received on the
next business day if it is received after 5:00 p.m. recipient’s time or on a
nonbusiness day.
City: City of the City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Community Development Director
Participant: Mid-Peninsula Coalition Belle Haven, Inc.
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: Matthew Franklin
11.4 Further Assurances. The Parties shall execute, acknowledge and deliver
to the other such other documents and instruments, and take such other actions, as
either shall reasonably request as may be necessary to carry out the intent of this
Agreement.
11.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or
shall establish the Parties as partners, co-venturers, or principal and agent with one
another.
11.6 Action by the City. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the City is
required or permitted under this Agreement, such action shall be in writing, and such
action may be given, made or taken by the City Manager or by any person who shall
have been designated by the City Manager, without further approval by the City Council.
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11.7 Non-Liability of City and City Officials, Employees and Agents. No
member, official, employee or agent of the City shall be personally liable to Participant
or any successor in interest, in the event of any default or breach by the City, or for any
amount of money which may become due to Participant or its successor or for any
obligation of City under this Agreement.
11.8 Headings; Construction. The headings of the sections and paragraphs of
this Agreement are for convenience only and shall not be used to interpret this
Agreement. The language of this Agreement shall be construed as a whole according
to its fair meaning and not strictly for or against any Party.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is
brought to interpret or enforce the terms of this Agreement, the prevailing party shall be
entitled to recover all reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and
enforceability of the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement, together with the Loan
Agreement, the Note and the Deed of Trust contains the entire agreement of Parties
with respect to the subject matter hereof, and supersedes all prior oral or written
agreements between the Parties with respect thereto. Exhibits A and B, attached
hereto are incorporated herein by this reference.
11.14 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one
agreement.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, the Parties have executed this Affordable Housing
Regulatory Agreement and Declaration of Restrictive Covenants as of the date first
written above.
CITY
THE CITY OF SOUTH SAN FRANCISCO,
A MUNICIPAL CORPORATION
By: __________________________________
Name: Barry M. Nagel
Title: City Manager
ATTEST:
By: _________________________________
City Clerk
APPROVED AS TO FORM:
By: _________________________________
City Attorney
PARTICIPANT
MID-PENINSULA COALITION BELLE HAVEN, INC.
a California nonprofit public benefit corporation
By: ______________________________
Matthew O. Franklin
Its: Assistant Secretary
SIGNATURES MUST BE NOTARIZED.
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STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO )
On , 20__, before me, ______________________, (here insert name and title of the
officer), personally appeared , who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO )
On , 20__, before me, ______________________, (here insert name and title of the
officer), personally appeared , who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
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Exhibit A
PROPERTY
(Attach legal description.)
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Exhibit B
INSURANCE REQUIREMENTS
Prior to initiating work on the Project and continuing through throughout the term
of this Agreement, Participant shall obtain and maintain the following policies of
insurance:
(a) a commercial general liability policy in the amount of One Million Dollars
($1,000,000) combined single limit, Two Million Dollars ($2,000,000) annual aggregate,
together with Five Million Dollars ($5,000,000) umbrella liability coverage, or such other
policy limits as City may require in its reasonable discretion, including coverage for
bodily injury, property damage, products, completed operations and contractual liability
coverage. Such policy or policies shall be written on an occurrence basis and shall
name the Indemnitees as additional insureds.
(b) a comprehensive automobile liability coverage in the amount of One
Million Dollars ($1,000,000), combined single limit including coverage for owned and
non-owned vehicles and shall furnish or cause to be furnished to City evidence
satisfactory to City that Participant and any contractor with whom Participant has
contracted for the performance of work on the Property or otherwise pursuant to this
Agreement carries workers’ compensation insurance as required by law. Automobile
liability policies shall name the Indemnitees as additional insureds.
(c) Upon commencement of construction and continuing until issuance of a
Certificate of Completion, Participant and all contractors working on behalf of Participant
shall maintain a policy of builder's all-risk insurance in an amount not less than the full
insurable cost of the Project on a replacement cost basis naming City as loss payee.
(d) Participant shall maintain property insurance covering all risks of loss
(other than earthquake), including flood (if required) for 100% of the replacement value
of the Project with deductible, if any, in an amount acceptable to City, naming City as
loss payee.
(e) Companies writing the insurance required hereunder shall be licensed to
do business in the State of California. Insurance shall be placed with insurers with a
current A.M. Best's rating of no less than A: VII. The Commercial General Liability and
comprehensive automobile policies required hereunder shall name the Indemnitees as
additional insureds. Builder’s Risk and property insurance shall name City and City as
loss payees as their interests may appear.
(f) Prior to commencement of construction, Participant shall furnish City with
certificates of insurance in form acceptable to City evidencing the required insurance
coverage and duly executed endorsements evidencing such additional insured status.
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The certificates shall contain a statement of obligation on the part of the carrier to notify
City and City of any material adverse change, cancellation, termination or non-renewal
of the coverage at least thirty (30) days in advance of the effective date of any such
material adverse change, cancellation, termination or non-renewal.
(g) If any insurance policy or coverage required hereunder is canceled or
reduced, Participant shall, within fifteen (15) days after receipt of notice of such
cancellation or reduction in coverage, but in no event later than the effective date of
cancellation or reduction, file with City and City a certificate showing that the required
insurance has been reinstated or provided through another insurance company or
companies. Upon failure to so file such certificate, City or City may, without further
notice and at its option, procure such insurance coverage at Participant’s expense, and
Participant shall promptly reimburse City or City for such expense upon receipt of billing
from City or City.
(h) Coverage provided by Participant shall be primary insurance and shall not
be contributing with any insurance, or self-insurance maintained by City or City, and the
policies shall so provide. The insurance policies shall contain a waiver of subrogation
for the benefit of the City and City. Participant shall furnish the required certificates and
endorsements to City prior to the commencement of construction of the Project, and
shall provide City with certified copies of the required insurance policies upon request of
City.
2145511.1
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