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Home My WebLink About2017-09-06 e-packet@7:00Wednesday, September 6, 2017 7:00 PM City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA Municipal Services Building, Council Chambers 33 Arroyo Drive, South San Francisco, CA Special City Council Special Meeting Agenda September 6, 2017Special City Council Special Meeting Agenda NOTICE IS HEREBY GIVEN, pursuant to Section 54956 of the Government Code of the State of California, the City Council of the City of South San Francisco will hold a Special Meeting on Wednesday, September 6, 2017, at 7:00 p.m., in the City Council Chambers, Municipal Services Building, 33 Arroyo Drive, South San Francisco, California. Purpose of the meeting: Call to Order. Roll Call. Agenda Review. Public Comments - comments are limited to items on the Special Meeting Agenda. ADMINISTRATIVE BUSINESS Report regarding a resolution approving the Implementation Agreement with the San Mateo County Harbor District related to the 2011 Memorandum of Understanding approved by the Harbor District, City of South San Francisco and South San Francisco Redevelopment Agency and approving a budget amendment adding $125,000 to the City Manager’s Fiscal Year 2017-2018 Operating Budget. (Mike Futrell, City Manager and Steve Mattas, Assistant City Attorney) 1. Resolution approving the Implementation Agreement between the City of South San Francisco and the San Mateo County Harbor District related to the 2011 Memorandum of Understanding approved by the Harbor District, City of South San Francisco and South San Francisco Redevelopment Agency and approving Budget Amendment 18.005 to increase the City Manager’s Fiscal Year 2017-2018 Operating Budget by $125,000. 1a. Report regarding a resolution approving a Subdivision Improvement Agreement between the City of South San Francisco and Oyster Point Development, LLC related to the Phase IC Improvements and authorizing the City Manager to execute the agreement. (Eunejune Kim, Director of Public Works/City Engineer) 2. Resolution approving the subdivision improvement agreement between the City of South San Francisco and Oyster Point Development, LLC in connection with Parcel Map No. 17-0002 (Oyster Point) and authorizing the City Manager to execute the agreement. 2a. Page 2 City of South San Francisco Printed on 9/20/2017 September 6, 2017Special City Council Special Meeting Agenda PUBLIC HEARING Report regarding resolution amending the FY 2017-18 Master Fee Schedule. (Richard Lee, Director of Finance) 3. Resolution amending the FY 2017-18 Master Fee Schedule.3a. Report regarding public hearing on the Community Development Block Grant 16-17 Consolidated Annual Performance and Evaluation Report; the Assessment of Fair Housing Study and the City’s Citizen Participation Plan; and resolution authorizing the submittals. (Alex Greenwood, Economic and Community Development Director) 4. Resolution approving the 2016-2017 Consolidated Annual Performance and Evaluation Report and the Citizen Participation Plan for the Community Development Block Grant Program, and authorizing its submittal to the U.S. Department of Housing and Urban Development. 4a. Report regarding a Development Agreement, Purchase and Sale Agreement, and Affordable Housing Agreement with ROEM Development Corporation for the disposition and development of City-owned parcel at 418 Linden Avenue (APN 012-314-010), and 201-219 Grand Avenue (APNs 012-316-110, 012-316-100, 012-316-090 and 012-316-080), for $1,700,000 collectively, and approving Budget Amendment 18.003. (Julie Barnard, Economic Development Coordinator) 5. Ordinance approving a Development Agreement between ROEM Development Corporation and the City of South San Francisco for the development of the properties located at 418 Linden Avenue and 201-219 Grand Avenue 5a. Resolution approving a Purchase and Sale and Affordable Housing Agreement with ROEM Development Corporation, for the disposition of City-owned parcel at 418 Linden Avenue, (APN 012-314-010), and 201-219 Grand Avenue (APNs 012-316-110, 012-316-100, 012-316-090 and 012-316-080) for $1,700,000. 5b. Adjournment. Page 3 City of South San Francisco Printed on 9/20/2017 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-736 Agenda Date:9/6/2017 Version:1 Item #:1. Report regarding a resolution approving the Implementation Agreement with the San Mateo County Harbor District related to the 2011 Memorandum of Understanding approved by the Harbor District,City of South San Francisco and South San Francisco Redevelopment Agency and approving a budget amendment adding $125,000 to the City Manager’s Fiscal Year 2017-2018 Operating Budget.(Mike Futrell,City Manager and Steve Mattas, Assistant City Attorney) RECOMMENDATION It is recommended that the City Council adopt a resolution approving the Implementation Agreement between the San Mateo County Harbor District and the City of South San Francisco attached hereto and approving a budget amendment adding $125,000 to the City Manager’s Fiscal year 2017-2018 Operating Budget. BACKGROUND/DISCUSSION History/Joint Powers Agreement The City of South San Francisco (City)and the San Mateo County Harbor District (Harbor District)entered into a Joint Powers Agreement (JPA)with the District in 1977 regarding the management,maintenance and operation of the Oyster Point Marina and Park (Oyster Point).The JPA has a 49-year term and will expire on November 11, 2026. Oyster Point Development In March 2011,the City and the former Redevelopment Agency of the City of South San Francisco (RDA) entered into a Development Agreement (DA)and Disposition and Development Agreement (DDA), respectively,with Oyster Point Ventures,LLC to form a public/private partnership to redevelop approximately 80+acres at Oyster Point.This included approximately 40+acres of the city-owned land managed by the Harbor District under the JPA.Due to the recession and other factors,the fully approved project did not immediately move forward to construction. In 2016,Oyster Point Ventures,LLC (OPV)sold its interest to a new development group,Oyster Point Development,LLC (OPD).This transfer was approved by the City Council in 2016,and the transfer of the associated leases from OPV to OPD was approved by the District on June 29,2016.The DA/DDA commits OPD (Developer)to first implement Phase I,consisting of a minimum of 508,000 square feet of research and development (R&D)and/or office space with associated infrastructure,and to make extensive public infrastructure improvements (described below)on property within and adjacent to the city-owned property covered by the JPA. The Developer is planning to start construction of Phase I in October 2017. Much of the infrastructure work in Phase I required of OPD will take place on city-owned land currently under City of South San Francisco Printed on 8/31/2017Page 1 of 5 powered by Legistar™ File #:17-736 Agenda Date:9/6/2017 Version:1 Item #:1. Much of the infrastructure work in Phase I required of OPD will take place on city-owned land currently under the management of the District pursuant to the JPA,portions of which are subject to the leases between the District and OPD;these leases were formerly referred to as the King leases.The infrastructure work, specifically known as Phase IC work,includes new streets and utilities,improvements to the clay cap over the landfill,enhanced parking,open space recreation,beach and park areas,Bay Trail improvements,and grading at the prospective hotel site.The cost of the improvements on the city-owned land is borne jointly by the Developer and the Successor Agency to the Redevelopment Agency.The 2017 updated total cost of Phase IC improvements is approximately $44,141,000. Additional work,known as Phase IIC work,will take place on another portion of city-owned land managed by the Harbor District,namely a new pump station,repairs to the landfill clay cap,improved parking areas and landscaping.The cost of the improvements for Phase IIC work is borne mostly by the Successor Agency to the Redevelopment Authority,although the Developer will perform some of the work and contribute funds towards the new pump station associated with the future development of a hotel.The 2017 updated cost of the landfill clay repair,which will be advanced ahead of the other IIC improvements,is approximately $843,000.At the conclusion of Phase IC and Phase IIC work,Oyster Point will emerge with new roads and parking lots,along with improved public spaces. Current City-Harbor District Memorandum of Understanding (MOU) Coincident with execution of the DA and DDA between the City,Redevelopment Agency and the developer in 2011,the City,Redevelopment Agency and the Harbor District entered into an agreement (the MOU)to facilitate the development of the Phase IC and IIC improvements.Exhibit A attached to the associated resolution to this staff report is a copy of the MOU.The MOU was clear that when certain city-owned parcels were transferred to the developer pursuant to the DDA that those now-developer-owned parcels were automatically removed from the JPA.The MOU also anticipated that the City and the RDA intended to complete additional public and private improvements on a portion of the remaining city-owned land,making reference to a map attached to the MOU.This map showed a portion of land redeveloped as “flexible space - recreational playfields”and a portion as “future hotel development -interim boat storage.”These contiguous parcels collectively referred to as the “open space-hotel site”are contained within the scope of work for Phase IC construction and include having the developer prepare the open space for recreational use,and prepare all groundwork required for later construction of a hotel. Proposed Implementation Agreement The proposed Implementation Agreement is intended to assist the City and Harbor District in implementing the 2011 MOU and the proposed Oyster Point development including the Phase IC and Phase IIC infrastructure work.The Draft Implementation Agreement (Exhibit B to the associated resolution to this staff report)includes the following primary terms. 1. Access to Marina Property during and for Construction of Phase IC/IIC Improvements. a. Authorizes access to Marina Property covered by the JPA during Phase IC and IIC developments. City of South San Francisco Printed on 8/31/2017Page 2 of 5 powered by Legistar™ File #:17-736 Agenda Date:9/6/2017 Version:1 Item #:1. The Implementation Agreement authorizes the City’s and Developer’s contractors to access portions of the Marina Property subject to the JPA to construct the Phase IC and IIC improvements.The Implementation Agreement also requires all contractors to keep vehicular and pedestrian access open at all times during construction for District operations,including but not limited to the docks,fueling facilities,boat ramps, parking lots,bathrooms,ferry terminal,harbor master’s office and the yacht club.It also authorizes the contractors to install fences as needed to close off constructions sites on the property during the Phase IC and IIC developments, subject to providing the access to District facilities as previously noted. b.Requires Contractors to indemnify and defend the City and the District for the contractors’actions on the construction sites. The Implementation Agreement also requires that contractors provide insurance for their acts and specially naming the District,Successor Agency and the City as additional insured.The clause also requires that contractors hold harmless,defend and indemnify the City,the Successor Agency and the District from liability that arises from any willful misconduct,negligence or omissions committed by the contractors or their subcontractors and employees. 2. Termination of the E, E-1, E-2, E-3 and E-4 Parcel King Leases. Pursuant to the DDA,the City/Successor Agency and OPD are exchanging property interests in certain portions of the Marina Property and in the OPD (formerly King)leases applicable to the Marina Property covered by the JPA.Pursuant to the MOU,when the City closes escrow on the conveyance of the specified property to OPD (“Conveyed Property”),the Conveyed Property will automatically be removed from the property included in the JPA and will no longer be subject to the JPA. Also,pursuant to this Implementation Agreement,when escrow closes on the sale of Conveyed Property to OPD and the transfer of the OPD leases to the City,the City and the District agree that the OPD leases applicable to parcels E,E-1,E-2,E-3 and E-4 (which are all on land that is not being conveyed to OPD but on which Phase IC improvements will be constructed) will also terminate. 3. Removal of the proposed recreation and hotel parcels from the land covered by the JPA. Upon close of escrow of Conveyed Property,the proposed recreation and hotels parcels will be removed from the lands included within the JPA.Thereafter,the City shall be responsible for maintenance of those parcels and the JPA will no longer apply to those parcels. 4. Fuel Dock and Fuel Line Repair/Replacement. The Implementation Agreement provides that the City will consider formation of community facilities district (“CFD”)not later than April 30,2018.In the event the community facilities district is formed,the City would agree to reimburse the District from CFD funds for an amount not to exceed $2,500,000 (increased annually by City of South San Francisco Printed on 8/31/2017Page 3 of 5 powered by Legistar™ File #:17-736 Agenda Date:9/6/2017 Version:1 Item #:1. agree to reimburse the District from CFD funds for an amount not to exceed $2,500,000 (increased annually by 2%)for appropriate repair and replacement of the fueling infrastructure system.The fueling infrastructure improvements would be constructed in two phases identified as the “Initial Improvements”and the “Landslide Improvements”with the Initial Improvements anticipated to be complete not later than December 31,2020 and the Landside Improvements anticipated to be completed not later than December 31,2025.The design of the Initial Improvements and the Landside Improvements is subject to approval by the City. In addition,the City will reimburse the District $90,000 to be used for temporary repairs that the City Manager and District Executive Director agree are necessary for operation of the current fueling infrastructure system. This reimbursement obligation terminates upon commencement of construction of the new fuel dock.If the City does not create a CFD,the District may:(1)continue to operate and maintain the current fueling and infrastructure system,(2)elect to fund the Initial Improvements and the Landside Improvements itself,or (3) elect to cease operation and maintenance of the fueling system.In the event that the District elects to cease operation and maintenance of the fueling system,the City will assume responsibility for the fueling system,and will have the option of shutting down the fueling infrastructure system in a manner that complies with applicable law. 5. Fueling Infrastructure Operation and License Agreement. Upon close of escrow,the District will take over operation and maintenance of the fueling infrastructure system,subject to specified rights to elect not to operate and maintain the fueling infrastructure if the anticipated repair and replacement of the fueling infrastructure does not occur.Also,if necessary,the City will grant the District a license for the access to the land necessary to operate and maintain the fueling infrastructure.The City also agrees to allow the District fueling suppliers and contractors access to City roads and parking lots in order to continue maintaining and operating the fuel lines and facilities. 6. Reimbursement of District Expenses Related to Preparation of the Implementation Agreement. The City will reimburse the District for actual and reasonable costs of negotiating this Implementation Agreement, up to $35,000. The District must submit and invoice with reasonable supporting information. Project Schedule 2011 MOU between District and South San Francisco regarding proposed development 2018 April, formation of CFD 2018 December 31,City funding for design and engineering of initial improvements (from shore to dock) 2020 December 31, City funding for completion of initial improvements City of South San Francisco Printed on 8/31/2017Page 4 of 5 powered by Legistar™ File #:17-736 Agenda Date:9/6/2017 Version:1 Item #:1. 2020 December 31, District will ‘make best efforts’ to complete initial improvements 2025 December 31,City will provide funding to complete landside improvements (tank and lines) 2026 End of term of JPA and Implementation Agreement On August 16,2017,the Implementation Agreement was approved aby the District at a Board of Harbor Commissioners meeting, by a 3-2 vote. FISCAL IMPACT The City will reimburse the Harbor District in the amount up to thirty-five thousand dollars ($35,000)for expenses related to preparation of the agreement.The City will also reimburse the Harbor District for immediate and necessary repairs to the fuel dock in the amount of ninety thousand dollars ($90,000)but those funds are planned to be reimbursed to the City from OPD,subject to OPD receiving a credit for that payment against future community facilities district payments described below. Staff recommends that the City Council approve Budget Adjustment 18.005,appropriating $125,000 within the General Fund and amending the City’s Manager’Fiscal Year 2017-18 Operating Budget.The funding source will be FY 2017-18 General Fund operating surplus;the net impact of which will be $35,000,as $90,000 will be reimbursed by Oyster Point Development, LLC. The City is proposing to form a Community Facilities District (CFD)to generate revenue to pay for the estimated two and a half million dollars ($2,500,000)needed for the fuel system replacement,subject to an annual two percent (2%) increase as identified in the Implementation Agreement. CONCLUSION It is recommended that the City Council adopt a resolution approving the Implementation Agreement with the Harbor District and the related budget amendment.The proposed Implementation Agreement serves to clarify the intent of the MOU in order to facilitate the commencement of the Oyster Point redevelopment project,and serves to clarify obligations to maintain and operate the fueling system at Oyster Point between the City and the District. City of South San Francisco Printed on 8/31/2017Page 5 of 5 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-735 Agenda Date:9/6/2017 Version:1 Item #:1a. Resolution approving the Implementation Agreement between the City of South San Francisco and the San Mateo County Harbor District related to the 2011 Memorandum of Understanding approved by the Harbor District,City of South San Francisco and South San Francisco Redevelopment Agency and approving Budget Amendment 18.005 to increase the City Manager’s Fiscal Year 2017-2018 Operating Budget by $125,000. WHEREAS,in 1977,the City of South San Francisco (City)and the San Mateo County Harbor District (District)entered into a Joint Powers Agreement (JPA)regarding the management,maintenance and operation of the Oyster Point Marina and Park (Oyster Point), which will expire on November 11, 2026; and WHEREAS,in March 2011,the City and the former Redevelopment Agency of the City of South San Francisco (RDA)entered into a Development Agreement (DA)and Disposition and Development Agreement (DDA)respectively,with Oyster Point Ventures,LLC,to redevelop approximately eighty (80)acres of property at Oyster Point; and WHEREAS,in 2016,the City Council approved a transfer of interest from Oyster Point Ventures,LLC,to Oyster Point Development, LLC (OPD); and WHEREAS,the DA/DDA commits OPD (Developer)to implement construction work at Oyster Point in several stages beginning with Phase I,which consists of developing research and development (R&D)space, R&D associated infrastructure, and public infrastructure improvements; and WHEREAS,a significant portion of Phase I infrastructure work,known as Phase IC work,will take place on City-owned land currently under District management pursuant to the JPA,and will include public improvements such as new streets and utilities, enhanced parking, and landfill improvements; and WHEREAS,additional development,known as Phase IIC work,will be constructed on another portion of City- owned land managed by the District,including a new pump station associated with the hotel development,land fill repair, and improved parking and landscaping; and WHEREAS,in 2011,the City,Redevelopment Agency and the District entered into an agreement (the MOU)to facilitate the development of the Phase IC and IIC improvements, attached hereto as Exhibit A; and WHEREAS,the MOU also provided for the transfer of certain City-owned parcels to Developer pursuant to the DDA, and the construction of additional public and private improvements on remaining city-owned land; and WHEREAS,the proposed Implementation Agreement,attached hereto as Exhibit B,is intended to assist the City and the District in implementing the 2011 MOU,the proposed Oyster Point development including the Phase IC and Phase IIC infrastructure work,and the additional maintenance and operation of Oyster Point, City of South San Francisco Printed on 9/7/2017Page 1 of 2 powered by Legistar™ File #:17-735 Agenda Date:9/6/2017 Version:1 Item #:1a. including maintenance and operation of the fuel dock and fuel line at the marina; and WHEREAS,the proposed Implementation Agreement serves to clarify the intent of the MOU in order to facilitate the commencement of the Oyster Point redevelopment project,and serves to clarify obligations relating to maintaining and operating the fueling system at Oyster Point between the City and the District; and WHEREAS,on August 16,2017,at a regular Board of Harbor Commissioners meeting,the District approved the Implementation Agreement by a 3-2 vote; and WHEREAS,staff recommends approval of the Implementation Agreement between the City and the District; and WHEREAS,staff recommends that the City Council approve Budget Adjustment 18.005,appropriating $125,000 within the General Fund and amending the City’s Manager’s Fiscal Year 2017-2018 Operating Budget.The funding source will be Fiscal Year 2017-2018 General Fund operating surplus;the net impact of which will be $35,000, as $90,000 will be reimbursed by Oyster Point Development, LLC. NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of South San Francisco: 1.Approves the attached Implementation Agreement with the San Mateo County Harbor District Related to the 2011 Memorandum of Understanding approved by the Harbor District,City of South San Francisco and South San Francisco Redevelopment Agency; and 2.Authorizes the City Manager to execute the Implementation Agreement on behalf of the City of South San Francisco,subject to approval as to form by the City Attorney,and to take any other required action consistent with the intent of this resolution; and 3.Approves Budget Adjustment 18.005,appropriating $125,000 within the General Fund and amending the City’s Manager’s FY 2017-18 operating budget. ***** City of South San Francisco Printed on 9/7/2017Page 2 of 2 powered by Legistar™ IMPLEMENTATION AGREEMENT BY AND BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND THE SAN MATED COUNTY HARBOR DISTRICT RELATED TO THE 2011 AGREEMENT BY AND AMONG THE CITY, DISTRICT, AND THE CITY'S FORMER REDEVELOPMENT AGENCY This agreement, dated and made effective as of August _, 2017 (the "Effective Date"), is entered into by and between the City of South San Francisco, a municipal corporation ("City"), and the San Mateo County Harbor District, a political subdivision of the State of California ("District") and is hereinafter referred to as "AGREEMENT." City and District are hereinafter collectively referred to as the "Parties," and sometimes individually as "Party." RECITALS A. Whereas, City is the owner of certain real property located in the City and commonly known as the Oyster Point Marina ("Marina Property"), as shown on Exhibit 1 attached hereto. City and District have entered into a Joint Powers Agreement, dated July 6, 1977, related to the development, operations, and maintenance of the Marina Property pursuant to Government Code section 6500 et seq. ("JPA"). B. Whereas, District entered into certain long-term leases with King Ventures for certain portions of the Marina Property ("King Leases"), as shown generally on Exhibit 2. The King Leases were subsequently acquired by Oyster Point Development, LLC ("Developer") pursuant to an assignment from the previous developer Oyster Point Ventures, LLC. C. Whereas, pursuant to the terms of the Disposition and Development Agreement b y and among the City, the Redevelopment Agency of South San Francisco ("Redevelopment Agency") and Oyster Point Ventures, LLC, dated March 23, 2011 ("DDA"), portions of the Marina Property ("Conveyed Property") as shown in Exhibit C to the 2011 Agreement are to be conveyed by the City to the Developer and the Developer's interest in some of the King Leases are to be conveyed from Developer to City and others related to the Conveyed Property are to be extinguished. D. Whereas, on March 25, 2011, the Parties and the Redevelopment Agency entered into an agreement ("2011 Agreement") which formalized and superseded the points of agreement contained within a 2009 Memorandum of Understanding between the Parties and set forth the Parties and Redevelopment Agency's rights and obligations related to implementation of the DDA and amendment to JPA related t'o Conveyed Property. E. Whereas Recitals D and E and Exhibit B to the 2011 Agreement provides that development of the Marina Property including the Conveyed Property will include in specified locations office/research and development life science campus, commercial development (including retail, restaurants and hotel uses) and public amenities including specifically public recreational uses and a hotel on property easterly of the Conveyed Property. F. Whereas, pursuant to Sections 6.1 and 6.2 of the 2011 Agreement, the District provided to the City a Capital Improvement and Management Plan and the Redevelopment Agency and City paid the District $2,600,000 for dock improvements and wave attenuators which the District has installed at Oyster Point Marina. 2846008.1 1 City and Harbor District Agreement (August 2017)-8/10/17) G. Whereas, pursuant to Section 9 of the 2011 Agreement, the Redevelopment Agency agreed to pay and did pay the District $31,173.17 to reimburse District costs incurred in negotiating the 2011 Agreement. H. Whereas, the District has informed the City that the District has paid off the debt owed to the California Department of Boating and Waterways as referenced in Recital B and Section 5 of the 2011 Agreement. I. Whereas, pursuant to Section 4 of the 2011 Agreement, upon conveyance of the Conveyed Property, and without further action by the City and District, the Conveyed Property will be automatically removed from property covered and subject to the JPA and all rights and obligations of the Parties set forth in the JPA related to Conveyed Property will terminate. J. Whereas, Developer is proceeding with construction authorized in the DDA and referred in Recital E of the 2011 Agreement and the Parties desire to enter into this Agreement to implement the 2011 Agreement in furtherance of construction of the Phase IC, ID and IIC on the Marina Property including the Conveyed Property. K. Whereas the Marina Property includes property on which improvements will be made as part of construction of Phases IC, ID and IIC. L. Whereas, the King Leases provide for the installation, maintenance and repair of fueling facilities in and adjacent to the area identified as parcels E-3 and E-4 on Exhibit 2 and whereas the facilities were installed and operated by the various lessees and sub-lessees of the King Leases and are in need of repair. M. Whereas, the Parties desire to enter into this Agreement to implement the improvements referenced in the 2011 Agreement and to confirm that the recreation parcel and the hotel parcel portions of the Marina Property will be removed from the property covered by the JPA and that as a result of that removal the District's rights and obligations including specifically the obligation for maintenance for those properties will terminate upon conveyance of the Conveyed Property to the Developer. N. Whereas, the District desires to retain access to and usage of the fueling system on the dock and the related fuel lines and fuel tanks on the Marina Property and desires to have a license agreement providing such access and usage rights for portion of the fueling system that is not now or subsequently authorized by the JPA. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Section 1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date, and shall terminate on the later of November 11, 2026, or the satisfaction by the City of its funding obligations set forth in Section 6, unless extended or earlier terminated by mutual consent of the parties. For avoidance of doubt, if the City has not satisfied its funding obligations set forth in Section 6, the parties intend this agreement to remain in place even if the JPA is terminated, unless otherwise determined by mutual consent of the Parties. 2846008.1 2 City and Harbor District Agreement (August 2017)-8/10/17) Section 2 Termination of E, E-1, E-2, E-3 and E-4 Parcel King Leases. The District will consent to a request by Developer and City to assign all existing King Leases pertaining to Parcels E, E-1, E-2, E-3, and E-4 to the City. Upon the close of escrow for conveyance of the Conveyed Properties from the City to Developer, any and all existing King Leases pertaining to Parcels E, E-1, E-2, E-3 and E-4, or portions thereof, shall be terminated and shall be of no further force and effect. Section 3 Removal of Land Subiect to the JPA Obligations. Upon close of escrow for the conveyance of the Conveyed Properties from the City to Developer pursuant to the DDA, Section 2 and Section 3 of the JPA, and those incorporated exhibits (JPA Exhibits 1 and 2) are hereby amended to remove from the terms of the JPA the land designated in Exhibit 3 and the rights and obligations set forth in the JPA shall no longer apply to land designated in Exhibit 3. Section 4 Access to Marina Property During and for Construction of Phase IC and Phase IIC Improvements. District and City agree that City, Developer and their contractors shall have access to the Marina Property under the control of District during construction of the Phase IC and Phase IIC improvements set forth in the DDA. The Phase IC and Phase IIC improvements are shown on Exhibit 4 attached hereto. City agrees that it shall require any contractors retained by the Developer or the City (either on behalf of the City or on behalf of the Successor Agency) to maintain at all times vehicular and pedestrian access routes to District- related operations (including but not limited to docks, fueling facilities, boat ramps, parking lots, bathrooms, ferry terminal, harbor master's office and the yacht club). District agrees that Developer, City or their contractor may install fences and restrict access to construction areas necessary to construct the Phase IC and IIC improvements. City shall require that Developer or City contractors shall defend, indemnify and hold harmless the City, Successor Agency and District and their officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of contractor or its employees, subcontractors, or agents. The foregoing obligation of the contractor shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the gross negligence or willful misconduct of the City, Successor Agency, District or their officers, employees, or agents and (2) the actions of contractor or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of contractor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Section 5 Fueling Infrastructure Operations and License. In addition to the rights conferred to District in the JPA to maintain and operate a fueling service for users of the Oyster Point Marina, City agrees to grant District anon-exclusive license for the land shown in Exhibit 5 ("License Area"), for a term not to exceed to the term of the JPA (current or as amended), to continue to operate and maintain the fuel utility lines; fuel tanks with up to 20,000 gallon capacity (which are currently constructed as two underground tanks), fueling docks, and fueling station, as well as any other related facilities or improvements appurtenant to the fueling service 2846008.1 3 City and Harbor District Agreement (August 2017)-8/10/17) at the marina (collectively, "Fueling Infrastructure"). The City further agrees that as part of this license, the City will cooperate with District to allow District and its fuel suppliers and fuel system contractors access across City roads and parking lots to the extent necessary for District to continue to maintain and operate the Fueling Infrastructure. Subject to the Districts' rights set forth in Section 6, the District shall operate, or cause to be operated, the Fueling Infrastructure (existing and as repaired or replaced pursuant to Section 6 below) for the term of the JPA. District shall at District's sole cost, operate and maintain the Fueling Infrastructure (as repaired or replaced pursuant to Section 6 below) in accordance with all government permits and federal, state, and local laws and regulations. District shall also hold harmless, defend and indemnify City for claims or damage that arise from District's maintenance and operation of the Fueling Infrastructure. Nothing herein prevents the District from temporarily or permanently ceasing operating the Fueling Infrastructure existing as of the Effective Date as deemed necessary by the District in its sole discretion to comply with any regulatory requirements, or unanticipated circumstances affecting the condition of the Fueling Infrastructure, or as necessary to accomplish the Improvements described in Section 6 of this Agreement. Section 6 Fuel Dock and Fuel Line Repair. In order to facilitate the continued provision of fueling services at Oyster Point Marina and only if the Oyster Point area community facilities district ("OPCFD") referenced herein is established and the necessary funds have been paid to the City from the OPCFD, the City shall provide the District with the necessary funding so that the District can commence and complete the repair and replacement of the Fueling Infrastructure, and any necessary remediation required by such repair and replacement, consistent with proposed improvements set forth in Exhibit 6 (the "Improvements"). The Improvements are contemplated to be completed in two phases, the Initial Improvements and the Land Side Improvements as set forth and defined in Exhibit 6. The maximum amount of funding the City will provide to the District for design and construction of the Improvements, with all such funding originating exclusively from the OPCFD, shall not exceed the total amount collected by the OPCFD for facilities purposes, less administrative costs. This not to exceed amount is $2,500,000, subject to a two (2) percent annual increase for each calendar year commencing in 2019. The design and engineering plans for the Improvements shall be subject to approval by District's General Manager and City's City Manager. A. To fund the Improvements, the City intends to form the OPCFD. The City agrees to take all actions necessary and within its reasonable control to consider formation of the OPCFD not later than Apri130, 2018. If the OPCFD is formed later than Apri130, 2018, (1) the dates for funding and performing the Improvements set forth in sub-paragraphs B and C, below, will be extended by the same amount of time as delay in formation of the OPCFD, and (2) the parties will meet and confer to establish the exact schedule for funding and performing the Improvements, with the District ultimately retaining all rights set forth in sub-paragraph D. B. Following and only upon formation of the OPCFD, the City will provide the District with the necessary funding to enable the District to design, commence and complete the Initial Improvements. If the OPCFD is formed, the City will provide funding for the District to complete the design and engineering phase of the Initial Improvements no later than December 31, 2018. The total amount payable for the design and engineering phase of the Initial 2846008. t 4 City and Harbor District Agreement (August 2017)-8/10/17) Improvements is estimated at $75,000. If the OPCFD is formed, the City will provide funding for the District to complete the construction phase of the Initial Improvements no later than December 31, 2020. The total amount payable for the construction phase of the Initial Improvements is estimated at $1,175,000. The City will only provide funding for the District to complete the Initial Improvements in the total not to exceed amount of $1,250.000, subject to a two (2) percent annual increase for each calendar year commencing in 2019 until the Initial Improvements are complete consistent with the completion deadlines set forth herein. In the event that actual costs for the Initial Improvements exceed the amount the City is obligated to fund pursuant to the previous sentence, the parties agree to meet to consider any reasonable request by the District to allocate costs from the Landside Improvements funding set forth in sub-paragraph C to the Initial Improvements, so long as the City's total funding obligation for the Improvements is not increased beyond the $2,500,000 (as adjusted) described in the first paragraph of this Section 6. Assuming that the City provides funding pursuant to the schedule set in this sub-paragraph B, the District will make best efforts to ensure that the Initial Improvements are complete no later than December 31, 2020. Nothing herein prevents the District from completing the Initial Improvements prior to the City providing funding, subject to reimbursement by the City, up to the not-to-exceed amounts set forth in this sub-paragraph. If the Initial Improvements are not complete by December 31, 2020, the parties will meet and confer in good faith regarding the continued operation of the Fueling Infrastructure and the related obligations of one or both parties. C. Following and only upon formation of the OPCFD, the City will provide the District with the necessary funding to enable the District to design, commence and complete the Landside Improvements. If the OPCFD is formed, the City will provide funding according to a schedule that will allow the District to complete the Landside Improvements no later than December 31, 2025. The parties will meet and confer as to the exact schedule for funding and performing the Landside Improvements. Assuming that the City provides funding pursuant to the schedule agreed to by the parties, the District will complete the Landside Improvements no later than December 31, 2025, unless otherwise agreed to by the parties. The total amount payable for the Landside Improvements shall not exceed the total not-to exceed amount specified in the first paragraph of this Section 6, less amounts already paid by the City for the Initial Improvements. Nothing herein prevents the District from completing the Landside Improvements prior to the City providing funding, subject to reimbursement by the City, up to the not-to-exceed amount set forth in this sub-paragraph. D. In the event that the OPCFD is not established by April 30, 2018, the parties agree to meet and confer in good faith regarding the continued operation of the Fueling Infrastructure and the related obligations of one or both parties, in particular if necessary to make minor schedule adjustments as contemplated in sub-paragraph A. The City and District further agree that if the parties are unable to agree to mutually acceptable terms related to continued operation of the Fueling Infrastructure and the related obligations of one or both parties, the District may elect, at its sole discretion, and upon written notice to the City, the following: i. The District may cease operation and maintenance of the Fueling Infrastructure and will have no further obligations to do so. 2846008.1 5 City and Harbor District Agreement (August 2017)-8/10/17) ii. The City will assume sole and complete responsibility for the operation and maintenance of the Fueling Infrastructure. The City may choose to operate and maintain the Fueling Infrastructure, but is under no obligation to do so and may instead choose to take whatever action it deems appropriate to limit and/or cease operation and maintenance of the Fueling Infrastructure, as consistent with applicable law. The District will cooperate with an y such action taken by the City, provided that the parties will meet and confer to minimize the impact of any City action on District operations. Whether or not it operates and maintains the Fueling Infrastructure, the City will be solely responsible for compliance with all government permits and federal, state, and local laws and regulations associated with the Fueling Infrastructure, including without limitation compliance with state law related to the continued operation or decommissioning of the underground fuel tanks and fuel lines. The City shall hold harmless, defend and indemnify the District for claims or damages that arise from City's maintenance and operation (or non-operation and non-maintenance) of the Fueling Infrastructure after the effective date of this Implementation Agreement. iii. The City will have no obligations to provide funding to the District for the Improvements as set forth in this Agreement and the District will have no obligations to complete the Improvements as set forth in this Agreement. E. The City will reimburse the District $90,000 to be used for repairs that the City and District agree are necessary for operation of the current fueling infrastructure system. This reimbursement obligation terminates upon commencement of construction of the new fuel dock. F. The City is applying for a Boating Infrastructure Grant from the California Division of Boating and Waterways that maybe used to pay in part for the Improvements (the Grant). Notwithstanding anything to the contrary in this Section 6, in the event that the City receives funding for the Improvements from the Grant, it will dedicate all such funding for the Improvements and, upon making Grant funding available to the District, may reduce proportionately the amount it funds the Improvement from the proceeds of the OPCFD so long as the City's total obligation to fund the Improvements remains in the amount set forth in this Section 6. Section 7 Reimbursement of District Costs. Upon submission of an invoice with reasonable supporting information, City agrees to reimburse the District for its actual and reasonable costs of negotiating this Agreement in an amount not to exceed $35,000. Section 8 2011 Agreement. Except as stated herein, the 2011 Agreement remains in force and effective between the Parties and the Successor Agency to former Redevelopment Agency. Section 9 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 Parties in accordance with this Section. All such notices shall be sent by: (a) personal delivery, in which case notice is effective upon delivery; or 2sa600s. t 6 City and Harbor District Agreement (August 2017)-8/10/17) (b) 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. City: City of South San Francisco 400 Grand Ave. South San Francisco, CA 94080 Attn: City Manager Phone: (650) 877-8501 Facsimile: (650) 829-6623 with a copy to: Meyers Nave 555 12`h Street, Suite 1500 Oakland, CA 94607 Attn: South San Francisco City Attorney Phone: (510) 808-2000 Facsimile: (510) 444-1108 District: San Mateo County Harbor District 504 Avenue Alhambra, 2°d Floor El Granada, CA 94018 Attn: General Manager Phone: (650) 583-4400 Facsimile: (650) 583-4611 Section 10 Severability. If any term or provision of this Agreement or the application thereof shall, to any extent, be held to be invalid or unenforceable, such term or provision shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms and provisions of this Agreement or the application of such terms and provisions to circumstances other than those as to which it is held invalid or unenforceable unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provision. Section 11 Entire Agreement; Amendments in Writing; Counterparts. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral and written, between the Parties with respect to such subject matter. This Agreement may be amended only b y a written instrument executed by the Parties or their successors in interest. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Section 12 Successors and Assigns; No Third-Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided however, that except as authorized herein neither Party shall transfer or assign any of such Party's rights hereunder by operation of law or otherwise without the prior written consent of the other Party, and any such transfer or assignment without such consent shall be void. Subject to the immediately preceding sentence, this Agreement is not intended to benefit, 2846008.1 '7 City and Harbor District Agreement (August 2017)-8/10/17) and shall not run to the benefit of or be enforceable by, any other person or entity other than the Parties and their permitted successors and assigns. Section 13 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Section 14 Relationship of Parties. The Parties agree that nothing in this Agreement is intended to or shall be deemed or interpreted to create among them the relationship of buyer and seller, or of partners or joint venturers. Section 15. Captions. The captions used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of the provisions hereof. SIGNATURES ON THE NEXT PAGE 2846008.1 g City and Harbor District Agreement (August 2017)-8/10/17) IN WITNESS WHEREOF, the Parties have executed this Agreement, effective as of the date first written above. CITY CITY OF SOUTH SAN FRANCISCO, a municipal corporation B y: Name: City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: B y: City Attorney DISTRICT SAN MATED COUNTY HARBOR DISTRICT, a political subdivision of the State of California B y: Name: General Manager ATTEST: By: District Secretary APPROVED AS TO FORM: By: District Counsel Exhibit List Exhibit 1 —Map showing Marina Property Exhibit 2 —King Leases Exhibit 3 —Additional Property to be Removed from JPA Exhibit 4 —Phase IC and Phase IIC Improvements Exhibit 5 —License Area Exhibit 6 —Conceptual Scope of Improvements 2846008.1 9 City and Harbor District Agreement (August 2017)-8/10/17) EXHIBIT 1 (Map Showing Marina Property) 2846008.1 10 City and Harbor District Ageement (August 2017}— 8/10/17) ~~ ~ ~ ~, y~\.,~ . e ~'~ LE G E N D - - - - - -: . r : BU S I N E S S PA R K PR O P E R T Y LI M E ~- ~, ~ ~ BU S I N E S S PA R K PR O P E R T Y ~~. . . . ~J OYS T E R PO I N T ~ ~ _ ` a BU S I N E S S ~~ pp~ ~ r ~ MA R I N A PR O P E R T Y LI N E PAR C E L 1 r rI (° ~ ~- - p' ~q OY S T E R ~ ~ E- ~ PO I N T rz ~ BU s n v E s s ' q a ~ PA R K ~~~ ~ . , . ~ . . J iF PA R C E L 2 r `~ ~ ~ O ;~~ , a A /~Y S T E R P O I N T C ' ~. . `~ ' ~ ~ BU S I N E S S j PA R K PAR C E L 3 .c` ~ ~ ,.~ P C r B ' PAR C E L A-B MA R I N A PR O P E R T Y PA R C E L AC R E A G E S PAR C E L LA N D AC R E A G E A 6. 2 8 1 A-B 1. 2 9 1 A 2. A 9 t C 1. 0 4 1 D-1 l. i B t D-2 E 2. 8 1 f_ 3.8 1 t E-1 1. 9 6 1 E-2 2. 1 2 1 E-9 0. 0 9 1 E-4 -- F 0. 6 4 1 G 1. 6 2 1 G-1 0. 6 2 f G-2 0. 1 3 E N 0. 7 ( t REM A I N D E R _ _. _ _ _ 21 . 2 3 t _ __ _REM A I N D E R PA R C E L Exh i b i t 1 EXHIBIT 2 (King Leases) 2846008.1 11 City and Hazbor District Agreement (August 2017}— 8/10/17) ~~ ~' ' '~ a~~~ ;~ e ls~ ~ ~ ~~ ! OY S T E R PO I N T B US I N E S S l PA R K ~ ~ ~, PAR C E L 1 r LE G E N D --~ - - - _ _- ~ - ~ BU S I N E S S PA R K PR O P E R T Y LI N E ~~v ~ ~ a L.~ . . . ~J BU S I N E S S PA R K PR O P E R T Y r~ ~A ~ ~- - OY S T E R ' ~_ 1 _ _ 1~ ~ t— ~ ~ PO I N T N z ~ BU S I N E S S r `` " " ' . ~ ~II.~ . . J PA R C MA R I N A PR O P E R L Y LI N E MAR I N A PR O P E R T Y PA R C E L A G R E A G E S PAR C E L LA N D AC R E A G E A 6. 2 8 1 A —Q 1. 2 9 1 B 2. 8 9 1 C ].0 4 t D-1 1. 1 8 1 -- ~. - 2 . - - E 2, B I t 3.B l t E-1 1. 9 6 1 E-2 2. 1 2 1 E —a o. o s t E-4 -- F 0. 6 4 1 G 1. 6 2 1 G -1 0. 6 2 1 Ex h i b i t 2 EXHIBIT 3 (Area removed from JPA) 2846008.1 12 City and Harbor District Agreement (August 2017}— 8/l0/17) OW N E R ' S ST A T E M E N T wE. TH E UN O E R S I C N E D , HE R E B Y ST A T E TX A T WE Af l E TH E OW N E N S OF OR HA V E SOM E RI G X T , TI T L E AN D / O R IN T E R 6 T IN AN D TO TH E RE A L PR O P E R T Y IN C L U O E O WIT H I N TH E SU B D I V I S I O N SH O W N OJ TH I S MA P AN D TH A T WE AR E TH E ON L Y PER S O N S WH O S E CO N S E N T IS NE C E S S A R Y TO PA 5 5 CL E A N TI T L E TO SA I D RE A L PRO P E R T Y AN O WE HE R E B Y CO N S E g i TO TH E MA N I N C AN D FI L I N G OF SA I D MA P AN D SlI B 0 1 V I 5 1 0 N A$ SH O W N WI T H I N TH E DI S T I N C T I V E BO R D E R . THE R E AR E NO NE W EA S E M E N T $ TO DE D I C A T E BY: CI T Y Oi SO U T H SA N FR A N C I S C O O WN E R ' S AC K N O W L E D G E M E N T STA i E OF CA L I F O R N I A COU N T Y OF __ _ _ _ ` ~ _ ~ _ _ _ ON ~_ _ _ _ _ _ _ _ _ _ _ BE F O i E ME __ __ _ _ _ _ _ A NO T A f l Y PU B L I C , PE R S O N A B L Y APP E A R E D __ _ ` _ _ ' _ _ _ " _ _ ' _ ` _ ~ _ _ ' _ _ - - WH O PR O V E S TO ME ON TH E BA 5 1 5 Oi SA T I S F A C T O R T EV I D E N C E TO BE TX E PER S O N ( 5 J WH O S E NA M E ( 5 ) IS / A R E SU B S C R I B E D TO TX E WI T H I N IN S T R U M E N T AN D ACK N O W l E O C E D TO ME TH A T HE / S H E /T H E Y EX E C U T E D TH E SA M E IN HI S / H E R / T H E I R AUT H O R I Z E D CA P A C I T Y ( I E S ) pN 0 B7 HI S ~ X E R / i H E l f l SI C N A T U f l E ( 5 ) ON TH E INS T R U M E N T TH E PE R S O N ( 5 ) , OR TX E EN T I T Y UP O N BE H A L F OF WN I C X TH E PER S O N ( 5 J AC T E D , EX E C U T E D TH E IN S T R U M E N T . CER T I F Y UN D E f l PE N A L T Y Of PE R J U R Y UN D E R TX E UW S OF TH E ST A T E OF CnL I ( O R N i q TH A T TH E FO f l E C 0 1 N G PA N A G R A P M IS TR U E AN D CO f l R E C T . WIT N E S S MY RA N D : SIG N A T U R E __ __ _ __ _ NAM E (T Y P E D OA PR I N T E D ) , NO T A f l Y PU B I J C IN AND FO R SA I D CO U N T Y AN D ST A T E . PRI N C I P A L CO U N T Y OF BU S M E 5 5 : __ _ COM M I S S I O N E% P I K E S : _ _ _ _ _ _ _ _ _ _ COM M I S S I O N / Oi NO T A R Y : __ _ _ ~ SOI L S RE P O R T ST A T E M E N T I ~ I SA N FR A N g 5 C 0 BA Y ~ ?0 ~P A R C E ~ I PAf l C E L ~~ ~ . ~ SE k Q 3 ~ _. . ._ —. ._ . _. PJRG E I~~ \ ~1 PAR C E L PA R C E L I PA R C E L L 5 6 J . ~ —_ J, ~ KEY MA P NO SC F L E PAR C E L AR E A S : PAR C E L 1 = 5. 4 8 Ac . PAR C E L 2 = 4. 4 8 Ac . PAR C E L 3 = 3. 7 4 Ae . PAR C E L 4 = 10 . 0 7 Ac . PAR C E L 5 = 2. 7 2 Ac . PAR C E L 6 = 5. 6 9 Ac . THE TO T A L AR E A WI T H I N TH E DI S T I N C T I V E BO R D E R LI N E IS 32 . 9 nC RE S t TEC H N I C A L RE V I E W E R ' S ST A T E M E N T CI T Y EN G I N E E R ' S ST A T E M E N T HER E B Y ST A T E iH A i I RA V E EX A M I N E D TH I S MA P AN D TH A T TH E SU B D I V I S I O N SHO W N HE R E O N IS SU B S T A N T I A L L Y TX E SA M E AS IT AP P E A R E D ON TX E TE N T A T I V E MAP . AN D AN Y AP P R O V E D AL T E R A T I O N S TH E P E O ~; TH A T AL L PN O V I S I O N S OF iX E CAU f OR N I A Sl 1 8 D I V 1 5 1 0 N MA P AC T AN D AN Y LO C A L OR D I N A N C E S RP P L I C A B L E AT TH E TIM E OF AP P R O V A L OF TH E TE N T A T I V E MA P , RA V E BE E N CO M P U E O WI T H . DAT E D : SE G U N 0 0 SA M M Y BA l 1 T I S T A , RC E N0 . 6f i 15 6 CIT Y OF SO U T H SR N 1' R A N L I S C O , CA U F O R N ~ A LI CE N S E E% P I R E S fi -3 0 - 2 0 1 8 SUR V E Y O R ' S ST A T E M E N T THI S NA P WA S PR E P A R E D Br ME OR UN D E R MY DI R E C T I O N AN D WA S BA S E D UP O N a REC O R D DA T A IN CO N F O R M A N C E WI T H TX E RE Q U I R E M E N T S OF TH E SU B D I V I S I O N MA P ACT AN O LO C A L OR D I N A N C E AT TX E RE D D E S T OF HC P OY S T E N PO I N T DE V E L O P M E N T , LLC , ON __ _ _ _ _ _ , 20 1 7 . 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Su r v e y i n g &P l a n n i n g 317 0 1 a Se l v a Sl r e e t , Su i l e 10 0 San Ma l e o , CA 94 4 0 3 850 . 3 4 9 . 2 1 5 1 wil s e y h a m . c o m SH E E T 4 OF 4 ~~ Ex c l u d e d Pa r c e l s Ex h i b i t 3 -2 EXHIBIT 4 (Phase IC and Phase IIC Improvements) 2846008.1 13 City aad Harbor District Agreement (August 2017 8/10/17) ~ ~~ . UP TO 50 8 , 0 0 0 GS F OF OF F I C E / R & D SP A C E :, ,~ , , O . CL A Y CA P RE P A I R AT PH A S E ID 1 ~ -- ~ ~ Q CL E A N U P OF SU M P 1 1 ~ ~ ~` ~ O ME T H A N E MI T I G A T I O N SY S T E M S r ` ~' - ~" ~ Q RE L O C A T I O N OF RE F U S E - -- - - ~ + F'H A ~ F I~ l a P' ~ - ~ A ~ ~ ~ II [ ~ - 1 i J l ~ Q UP TO 1, 7 4 6 , 2 3 0 GS F OF OF F I C E / R & D SP A C E O; O ST R E E T S &U T I L I T I E S IN BU S I N E S S PA R K ~ Q RE L O C A T I O N OF SE W E R PU M P ST A T I O N ~ .r -" - ~ ~ ; O LA N D S C A P I N G AT BC D C PH A S E S II D - I V D 1 ~- -- - - - - - - - - - - - - ~ _ ~~ —' 1 i ~ to : 1 -`~ i PH A S E IU D ,~ ~t r Q ~ ~~ , ~~ ' ` ~v ~ `~0 ~ (~ . — l~. I ~ ~ ~` ~ `\ `V ~t- - - . ~ .. . . . . . ~. . . . . . - _ , . ~\ ~'~ ~ ~ ~~ PH A S E SC ~ '- - '" ~ ,; , STR E E T S &U T I L I T I E S AT HU B Q ST R E E T S &U T I L I T I E S TO PO I N T o CL A Y CA P RE P A I R AT PH A S E IC O RE C O N F I G U R E D PA R K I N G AT MA R I N A Q RE C R E A T I O N AR E A Q FU T U R E HO T E L SI T E Q BE A C H / P A R K Q BA Y TR A I L & PA L . M PR O M E N D A D E ~~A ~ ~~ ~ Q RE P A V I N G OF PA R K I N G PH A S E II C Q LA N D S C A P I N G AT PA R K f N G PH A S E II C LAN D S C A P I N G AT BC D C PH A S E S II C '~~ ; , i i.^*` ..~ ~ ~ r~: , .. .. . .. . ~, r +a ".i ~ . . . a -. . v' ~~ J . ~ d h w ~ ~ '~ P HA S E II C Q ~i ' i Exh i b i t 4. i ~- ,t- ~ `~ a' ~ A ~ E 1V EXHIBIT 5 (License Area) 2846008.1 14 City and Harbor District Agreement (August 2017)--- 8/10/i7) EXISTING .,,~ ~ „e e~ ,.~, ~/r .— ~ _. ~1~. ~ t y ~ i ~'~ .~ ~ . _ ...~ 1\: ~~9..~• ~ -- w -... ; . ~ /~ •-- (~ FUEL LINE . • . ;~'~~ / ~~~Y~ / r. ,~.~ ~~~ .~' i — /~ (~ UST FUEL TANKS + ~ ~~'~ F .. ~' ~" " *License Area includes location of existing fuel line and five (5) feet on either side of the fuel line Exhibit 5 EXHIBIT 6 (Conceptual Scope of Improvements) Described below are potential Initial Improvements and Landside Improvements as referenced in the agreement and the Anchor Report, dated May 26, 2017. I nitial Improvements 1. Potential minor repairs include: - Replace deck on existing fuel dock (if appropriate) - Repairing broken cleats and loose rub rails on existing fuel dock - Relocate/secure electrical utility wire/conduit on existing fuel dock - Replace/repair approach structure girders - Replace/repair gangway walking surface 2. Fuel dock and on-dock utilities replacement Landside Improvements F uel system replacement in conformance with current codes and regulations. Components of the system i ncludes: - Double-walled underground fuel tanks) - Double-walled pipes - Sump vaults - Fuel pumps - Dispensers City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-895 Agenda Date:9/6/2017 Version:2 Item #:2. Report regarding a resolution approving a Subdivision Improvement Agreement between the City of South San Francisco and Oyster Point Development,LLC related to the Phase IC Improvements and authorizing the City Manager to execute the agreement. (Eunejune Kim, Director of Public Works/City Engineer) RECOMMENDATION It is recommended that the City Council adopt a resolution approving a Subdivision Improvement Agreement between the City of South San Francisco and Oyster Point Development,LLC related to the Phase IC Improvements and authorizing the City Manager to execute the agreement. BACKGROUND/DISCUSSION In March 2011,the City of South San Francisco (City)and the former Redevelopment Agency of the City of South San Francisco (Successor Agency)approved the Oyster Point Redevelopment Project.The entitlements were intended to form a public/private partnership to redevelop approximately 82 acres at Oyster Point,and included a General Plan Amendment,Zoning Text Amendment,Precise Plan,Design Review,Tentative Parcel Map,Transportation Demand Management Program,Development Agreement (DA)and a Disposition and Development Agreement (DDA). The DA/DDA commits the Developer,Oyster Point Development,LLC,to first implement Phase I,consisting of a minimum of 508,000 square feet of research and development (R&D)and/or office space,with associated infrastructure. The Developer is targeting start of construction of Phase I by fall 2017. Per the DDA,prior to the commencement of construction,the Successor Agency is required to perform a land conveyance to the Developer.In keeping with this land conveyance,the Developer has prepared a Tentative Parcel Map to re-parcelize the property to allow separate parcels for each of the office/R&D phases,the open space areas,the hotel parcel and the reconfigured roadways.The Tentative Parcel Map has been reviewed by the City’s Engineering Division and been found to comply with the provisions of SSFMC Title 19 (Subdivision Ordinance).Pursuant to the DDA and the Tentative Parcel Map approved by the City,the Developer is required and proposes to construct various improvements in and adjacent to the Property,described generally as the “Phase IC Improvements”in the DDA.The Phase IC Improvements include,but are not limited to,the grading and construction of streets, gutters, sidewalks, sanitary sewer, and storm drainage facilities. The Developer has presented to the City a final parcel map for approval,entitled Parcel Map No.17-0002 (Oyster Point)(“Subdivision”),for purposes of conveyance of the Conveyed Property pursuant to the DDA to create Parcels 5 and 6.The Map identifies existing streets and public easements that will be vacated and removed concurrently with the future dedication and acceptance of streets constructed as part of the new Phase IC Improvements into the City’s street system.The City Engineer of the City of South San Francisco will approve Parcel Map No.17-0002 for purposes of conveyance of the Conveyed Property pursuant to the DDA by September 29, 2017. The Subdivision Improvement Agreement will ensure the Phase IC Improvements will be completed per City approved plans and specifications.The Developer will place a bond in the amount of 100%of the cost of the Phase IC Improvements.The City Attorney’s office has reviewed the agreement.The agreement is Exhibit A toCity of South San Francisco Printed on 8/31/2017Page 1 of 2 powered by Legistar™ File #:17-895 Agenda Date:9/6/2017 Version:2 Item #:2. Phase IC Improvements.The City Attorney’s office has reviewed the agreement.The agreement is Exhibit A to the associated resolution to this staff report. FISCAL IMPACT This action has no impact to the City’s budget. CONCLUSION Adoption of this resolution will allow for the execution of the Subdivision Improvement Agreement and initiate the construction of the Phase IC Improvements at Oyster Point. City of South San Francisco Printed on 8/31/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-896 Agenda Date:9/6/2017 Version:1 Item #:2a. Resolution approving the subdivision improvement agreement between the City of South San Francisco and Oyster Point Development,LLC in connection with Parcel Map No.17-0002 (Oyster Point)and authorizing the City Manager to execute the agreement. WHEREAS,in March 2011,the City of South San Francisco (“City”)and the former Redevelopment Agency of the City of South San Francisco (“Successor Agency”)approved the Oyster Point Redevelopment Project to develop approximately 82 acres at the Oyster Point Marina (“Property”); and WHEREAS,the entitlements included a General Plan Amendment,Zoning Text Amendment,Precise Plan, Design Review,Tentative Parcel Map,Transportation Demand Management Program,and a Development Agreement (“DA”)and a Disposition and Development Agreement (“DDA”)between the City,the Successor Agency,and Oyster Point Development,LLC (as successor in interest to Oyster Point Ventures,LLC) (Developer); and WHEREAS,the DA/DDA commits Developer to first implement Phase I,consisting of a minimum of 508,000 square feet of research and development (“R&D”)and/or office space,with associated infrastructure,all of which is targeted to begin construction by Fall 2017; and WHEREAS,pursuant to the DDA,the City/Successor Agency is required to convey certain portions of the Property to Developer prior to commencement of Phase I construction; and WHEREAS,in connection with this conveyance,the Developer prepared a Tentative Parcel Map to re-parcelize the property to allow separate parcels for each of the office/R&D phases,the open space areas,the hotel parcel and the reconfigured roadways; and WHEREAS,the Tentative Parcel Map was reviewed by the City’s Engineering Division and found to comply with the provisions of Title 19 of the South San Francisco Municipal Code (“Municipal Code”); and WHEREAS,pursuant to the DDA and the Tentative Parcel Map approved by the Planning Commission,the Developer is required and proposes to construct various improvements in and adjacent to the Property, described generally as the “Phase IC Improvements” in the DDA; and WHEREAS,the Phase IC Improvements include,but are not limited to,the grading and construction of streets, gutters,sidewalks,sanitary sewer,and storm drainage facilities;relocation of landfill materials and construction of replacement land cap; and open space improvements; and WHEREAS,the Developer has presented to the City a final parcel map for approval,entitled Parcel Map No. 17-0002 (Oyster Point)(“Final Parcel Map”),for the purpose of transferring the Conveyed Property pursuant to the DDA and to create Parcels 5 and 6; and WHEREAS,the Final Parcel Map identifies existing streets and public easements that the City and Developer City of South San Francisco Printed on 9/13/2017Page 1 of 2 powered by Legistar™ File #:17-896 Agenda Date:9/6/2017 Version:1 Item #:2a. WHEREAS,the Final Parcel Map identifies existing streets and public easements that the City and Developer intend to be vacated and removed concurrently with the future dedication and acceptance of streets constructed as part of the new Phase IC Improvements into the City’s street system; and WHEREAS,Title 19 of the Municipal Code requires the Developer to file an agreement for all improvements required under the Subdivision Ordinance, as a condition precedent to approval of a final map, and WHEREAS,the Subdivision Improvement Agreement,attached hereto as Exhibit A and incorporated herein, was prepared in accordance and in compliance with Title 19,Chapter 19.44 of the Municipal Code and the DDA,and provides for the rights and obligations of the parties regarding Phase IC Improvement pursuant to the DDA/DMSA; and WHEREAS,the City Engineer will approve the Parcel Map for the purpose of conveying the Conveyed Property pursuant to the DDA and to create Parcels 5 and 6 prior to the close of escrow for the Conveyed Property,on the condition that Developer has executed the Subdivision Improvement Agreement as approved by the City Council; and WHEREAS,the proposed Subdivision Improvement Agreement will ensure that Phase IC Improvements will be completed in accordance with the DDA, and any other conditions of approval and applicable law. NOW,THEREFORE BE IT RESOLVED,the City Council of the City of South San Francisco hereby takes the following actions: 1.Approves the attached Subdivision Improvement Agreement between the City of South San Francisco and Oyster Point Development, LLC, attached hereto and incorporated herein as Exhibit A, in connection with Parcel Map No. 17-0002 (Oyster Point); and 2.Authorizes the City Manager to execute the Subdivision Improvement Agreement on behalf of the City, subject to approval as to form by the City Attorney, and to take any other required action consistent with the intent of this resolution. ****** City of South San Francisco Printed on 9/13/2017Page 2 of 2 powered by Legistar™ SUBDIVISION IMPROVEMENT AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND OYSTER POINT DEVELOPMENT, LLC IN CONNECTION WITH PARCEL MAP NO. 17-0002 (OYSTER POINT) This SUBDIVISION IMPROVEMENT AGREEMENT ("Agreement") is dated September , 2017 by and between the City of South San Francisco, a municipal corporation, hereinafter designated "City," and Oyster Point Development, LLC, a Delaware limited liability company, hereinafter designated "Developer." RECITALS WHEREAS, the City is the owner of the real property located in the City of South San Francisco, County of San Mateo, State of California, more particularly described on Exhibit A attached hereto (the "Property"); and WHEREAS, pursuant to that certain Disposition and Development Agreement ("DDA") dated March 23, 2011, between City, Developer (as successor in interest to Oyster Point Ventures, LLC), and the Successor Agency to the South San Francisco Redevelopment Agency, a public body corporate and politic ("Successor Agency"), City intends to convey to Successor Agency and Successor Agency intends to convey to Developer, and Developer intends to acquire from Successor Agency, certain portions of the Property identified as the Conveyed Property in the DDA; and WHEREAS, pursuant to the DDA and the tentative parcel map approved by the City, Developer is required and proposes to construct various improvements in and adjacent to the Property, described generally as the "Phase IC Improvements" in the DDA; and WHEREAS, City and Developer are parties to that certain Development Management Services Agreement ("DMSA"), dated February 1, 2017, which sets forth the terms upon which Developer will provide City and Successor Agency with development management services for the design, engineering, permitting, construction and completion of the Phase IC Improvements; and WHEREAS, Developer has presented to the City a final parcel map for approval, hereinafter designated "Map", entitled Parcel Map. No. 17-0002 (Oyster Point) ("Subdivision"), for purposes of conveyance of the Conveyed Property pursuant to the DDA and to create Parcels 5 and 6; and WHEREAS, Developer has requested approval of the Map prior to the construction and completion of the Phase IC Improvements, which are appurtenant to the Subdivision designated in the Map, all in accordance with, and as required by, the plans and specifications for all or any EXHIBIT A Page 1 of 16 of the Phase IC Improvements in, appurtenant to, or outside the limits of the Subdivision; and WHEREAS, the Map identifies existing streets and public easements that the City and Developer intend will be vacated and removed concurrently with the future dedication and acceptance of streets constructed as part of the new Phase IC Improvements into the City's street system; and WHEREAS, the City Engineer of the City of South San Francisco on , 2017 approved Parcel Map No. 17-0002 for purposes of conveyance of the Conveyed Property pursuant to the DDA and to create Parcels 5 and 6, on the condition that Developer first ester into and execute this Agreement with City and meet the requirements of the Resolution; and WHEREAS, the DDA and DMSA collectively provide assurances that the Phase IC Improvements will be completed in compliance with the City-approved plans for the Phase IC Improvements, in a good worker-like manner and in accordance with the conditions of approval and applicable law; and WHEREAS, this Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Title 19 of the South San Francisco Municipal Code ,and to address matters relating to the City's approval of the Map that are not specifically addressed in the DDA and DMSA. NOW, THEREFORE, for and in consideration of the approval of the Map, and in order to ensure satisfactory performance by Developer and Developer's obligations under the Subdivision Map Act, Title 19 of the Municipal Code, the parties agree as follows: AGREEMENT 1. Relationship to Prior Agreements (a) This Agreement is a mechanism to implement the obligations of Developer, City and Agency with respect to conveyance of the Conveyed Property pursuant to the DDA and development of the Phase IC Improvements, pursuant to and as contemplated by (i) Article III of the DDA and (ii) the DMSA. In the event of a conflict between this Agreement and either the DDA or the DMSA, the DDA or the DMSA, as the case maybe, shall control. (For avoidance of doubt, in the event of a conflict between the DDA and the DMSA, the DDA shall control). Capitalized terms used herein that are defined in the DDA or DMSA shall be defined as set forth in the DDA or DMSA, as the case maybe. (b) The parties acknowledge and agree that the DDA and the DMSA, collectively, address substantially all of the matters that would typically be addressed in a Subdivision Improvement Agreement approved by the City. Accordingly, the parties further acknowledge and agree that it is appropriate to incorporate all applicable provisions of the DDA and DMSA b y reference herein. Without limitation, the development of the Phase IC Improvements shall be z EXHIBIT A Page 2 of 16 performed in accardance with the DDA and DMSA with respect to the following matters typically addressed in a Subdivision Improvement Agreement: a. Performance of W b. Time for Commencement and Performance c. Time of Essence —Extension d. Permits, Compliance with Law e. Superintendence by Developer f. Contract Security/Bonds g. Hold Harmless Agreement h. Developer's Insurance i. Evidence of Insurance j. Developer not Agent of City k. Cost of En 'nom eerin~ and Inspection 1. As-Built Drawings 2. Places and Grades to be Fixed by City Engineer All of the work is to be done at the places, and with the necessary materials, in the manner and at the grades shown on the plans and specifications to be approved by the City Engineer, as such approval not to be unreasonably withheld. All work shall be done to the satisfaction of the City Engineer. 3. Repairs and Replacement Developer or its general contractor shall replace or have replaced, or repair or have repaired, all pipes and monuments which are destroyed or damaged, and Developer or its general contractor shall replace or have replaced, repair or have repaired, or pay to the owner the entire cost of replacement or repairs, of any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the State of California, or any agency or political subdivision thereof, or by any combination of such owners. Any such repair or 3 EXHIBIT A Page 3 of 16 replacement shall be to the satisfaction, and subject to the approval of, the City Engineer or the corporation, person or agency, as such approval not to be unreasonably withheld. 4. Utility Deposit —Statement Developer or its general contractor shall file with the City, when required by a public utility corporation, a written statement signed by Developer or its general contractor and each public utility corporation involved, to the effect that Developer or its general contractor has made all deposits legally required by such public utility corporation for the connection of any and all public utilities to be supplied by such public utility corporation within the Subdivision (exclusive of Parcels 5 and 6). 5. Inspection by City Developer shall at all times maintain proper facilities, and shall provide safe access, for inspection by City, to all parts of the work and to the shops wherein the work is in preparation. 6. Title to Improvements Title to, and ownership of, all Phase IC Improvements constructed hereunder by Developer shall vest absolutely in City, or to such other public agencies, persons, partnerships, associations or corporations to which dedications of easements were made or reserved upon the completion and acceptance of such improvements by City or the agency, person, partnership, association or corporation. 7. Repair and Reconstruction of Defective Work If, within a period of one year after City's acceptance of the Phase IC Improvements, any such improvements or part of any improvements furnished and/or installed or constructed, or caused to be installed or constructed by Developer's general contractor, fails to fulfill any of the requirements of this Agreement or the specifications referred to herein, or proves to be defective or become damaged because of differential settlement, action of the elements, or ordinary usage, except for catastrophic events, Developer's general contractor shall without delay and without any cost to City repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Phase IC Improvements. Should Developer's general contractor fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Developer's general contractor can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Developer or its general contractor, at Developer's election, shall pay to City the actual cost of such repair plus fifteen percent (15%). Developer's general contractor shall at the time of acceptance of the improvements by City or other public agency, provide the City with a corporate surety bond, or other form of security approved by City (such approval not to be unreasonably withheld) in the principal sum often percent (10%) of the direct cost of such improvements without mark-up. The City shall release such corporate surety bond, or other form C! EXHIBIT A Page 4 of 16 of security approved by City, upon expiration of the one-year period following City's acceptance of the Phase IC Improvements and settlement of any claims filed during such one-year period. 8. Trenching and Backfilling Developer shall require that all trenching and backfilling within and outside the property lines for utility lines, including sanitary, storm, water and any other purposes, shall be done under the inspection of a soils engineer who shall test the trenching and backfilling with a sufficient number of soil tests to secure the proper compaction. If required as a condition to any permit issued by City, Developer shall further require that a certificate be filed with the City stating that said trenching and backfilling has been performed in accordance with the soils engineer's recommendations. 9. Contract Security Prior to the commencement of construction of any Phase IC Improvements, Developer shall cause its general contractor to furnish "Performance Security" and/or "City Security" as set forth in Section 6.5.1 of the DDA. a. Breach of Agreement; Performance by Sureties or City Following the provision of Performance Security and/or City Security, and in the event of an "Event of Default" by Developer as defined in Section 10.2 of the DDA and Section 4.02 of the DMSA, the following remedy shall be available to the City, in accordance with Section 1 0.6.1 of the DDA. Following provision of notice and expiration of all applicable cure periods as set forth in the DDA, the general contractor's sureties shall have the duty to take over the work and complete the work and the Improvement herein specified; provided, however, that if the sureties, within five (5) days after being served notice of such breach, do not give City written notice of their intention to take over the performance of the Agreement, and do not commence performance thereof within five (5) days after notice to the City of such election, City may take over the work and prosecute the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of Developer or its general contractor, and the sureties shall be liable to City for an y excess cost or damages occasioned by City; and, in such event, City, without liability for so doing, may take possession of, and use in completing the work, such materials, appliances, plant and other property belonging to Developer or its general contractor as maybe on site of the work and necessary therefor. 10. Notice of Breach or Default If Developer or its general contractor refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of the work within such time, or if the Developer or its general contractor should be adjudged as bankrupt, or if Developer or its general contractor should make a general assignment for the benefit of Developer's or its 5 EXHIBIT A Page 5 of 16 general contractor's creditors, or if a receiver should be appointed in the event of Developer's or its general contractor's insolvency, or if Developer or an y of Developer's contractors, subcontractors, agents or employees should violate any of the provisions of the Agreement, the City Engineer or City Manager may serve written notice upon Developer or Developer's general contractor and Developer or its general contractor's sureties of breach of this Agreement, or of any portion thereof, and default of Developer or its general contractor. 1 1. Vacation and Dedication of Public Easements and Improvements. Pursuant to the DDA, City shall continue to own the parcel identified on the Map as "New Parcel2 (Future Street)" following completion of the Subdivision and conveyance of the Conveyed Property to Developer. City and Developer acknowledge that certain of the Phase IC Improvements, defined as the "Streets and Utilities at Hub" in the DDA, will be constructed by Developer on such New Parcel2 and subsequently accepted by the City at a later date (for purposes hereof, the "Dedicated Improvements"). City and Developer further acknowledge that the Map identifies certain existing easements, licenses, agreements and other similar interests in real property (the "Vacated Easements"), and certain existing streets and other improvements (the "Removed Improvements") that shall remain in place at the time of conveyance of the Conveyed Property but shall be terminated, vacated or removed, as applicable during subsequent development of the Phase IC Improvements, as depicted on the Map. In addition, City and Developer intend that Developer will construct a temporary street and related improvements for the City's use prior to completion and dedication of the Dedicated Improvements and demolition of the Removed Improvements (the "Temporary Improvements"), as depicted on Exhibit B. Following the effective date of this Agreement, and pursuant to Section 6.11 of the DDA, the City and Developer agree to cooperate to take all actions to timely complete the contemplated construction, dedications, and vacations as follows: (a) Prior to commencement of construction of the Temporary Improvements, Developer shall offer to City easements for such Temporary Improvements for public access and public utilities purposes ("Temporary Easements"), in form and substance acceptable to City, which shall provide that each Temporary Easement shall terminate concurrently with the City's written acceptance of the Dedicated Improvements. Upon City's written acceptance of the Temporary Easements, Developer shall use commercially reasonable efforts to timely commence and prosecute to completion the construction of the Temporary Improvements, in accordance with all required permits and agreements. (b) Prior to completion of construction of the Temporary Improvements, Developer shall take no action to prevent continued public use for roadway purposes of those portions of Oyster Point Blvd. and Marina Blvd. shown on the Map; provided, however, that Developer shall not assume any obligations relating to the maintenance or repair of such roads upon conveyance of the Conveyed Property pursuant to the DDA nor shall Developer assume any liability relating to or arising from the public's use of such roads; provided further: (1) that Developer or its general contractor shall be responsible for repairs to such roads that are determined to be necessary by the City Engineer and that arise as a result of use of the roads by the Developer or C: EXHIBIT A Page 6 of 16 its contractors and (2) that Developer or its general contractor shall be liable for any claims, damages or demands that arise from Developer or its contractors' use of such roads in a negligent or grossly negligent manner (it being understood -that all maintenance and repair obligations and any liability arising from the use of such roads shall remain with the City other than as a result of actions by Developer or its contractors) until such time as the obligations of the City in Section 11(d) below have been satisfied. Except as expressly set forth in this Section 1 1(b) or in the DMSA or DDA, the City shall indemnify, defend, and hold harmless Developer and its officers, employees, agents, successors and assigns from any claim for damages or injuries to persons or property arising from the use of such portions of Oyster Point Blvd. or Marina Blvd. by any persons other than Developer or Developer's employees, agents, contractors or invitees. (c) Upon completion of construction of the Temporary Improvements, including any required inspections by City thereof, Developer shall commence and diligently prosecute to completion the demolition of the Removed Improvements and the development of the Dedicated Improvements, in accordance with the DDA and DMSA. (d) Upon completion of demolition of the Removed Improvements and construction of the Dedicated Improvements, including any required inspections by the City, the City (or the Successor Agency as obligated in the DDA) and Developer shall take all necessary and proper actions to timely effectuate (1) dedication and acceptance of the Dedicated Improvements, (2) vacation or termination of the Vacated Easements, and (3) vacation or termination of the Temporary Easements. The parties contemplate that such dedication and vacations will be effectuated through a subsequent Parcel Map; however, nothing herein shall be construed as prohibiting the parties from using alternative means that are consistent with applicable law. 1 2. Notices All notices herein required shall be given in accordance with Section 7.01 of the DMSA and as follows: To City: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: City Manager and Assistant City Manager With a copy to: Meyers Nave 555 12`h Street, Suite 1500 Oakland, CA 94607 Attn: Steven T. Mattas, Assistant City Attorney 7 EXHIBIT A Page 7 of 16 To OPD: Oyster Point Development, LLC 401 Marina Boulevard, Suite 200 South San Francisco, California 94080 Attn: Chao Wu, Chief Executive Officer With a copy to: Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 Attn: Zane Gresham 1 3. Assi ng~ent Subdivider agrees that this Agreement shall bind Subdivider and Subdivider's successors in interest, heirs and assigns. 13. Governing Law The laws of the State of California shall govern this Agreement. 14. Severability If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 1 5. Parties Obli ~ated Developer agrees that this Agreement shall bind Developer and Developer's successors in interest, heirs and assigns. 16. Attorney's Fees If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party maybe entitled. The court may set such fees in the same action or in a separate action brought for that purpose. [signatures on the following page] EXHIBIT A Page 8 of 16 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above. CITY: CITY OF SOUTH SAN FRANCISCO, a municipal corporation DEVELOPER: Oyster Point Development, LLC, a Delaware limited liability company I~ Mike Futrell, City Manager ATTEST: City Clerk APPROVED AS TO FORM: Chao Wu, Chief Executive Officer City Attorney EXHIBIT A Page 9 of 16 EXHIBIT A Description of Property [Legal Description of Property Subject to Parcel Map] EXHIBIT A Page 10 of 16 EXHIBIT A A LL THAT REAL PROPERTY SITUATE IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN M ATED, STATE OF CALIFORNIA MORE PARTICULARLY DESCRIBED AS FOLLOWS: B EGINNING AT A POINT THAT IS THE INTERSECTION OF THE EASTERLY LINE OF GULL DRIVE WITH THE SOUTHERLY LINE OF PARCEL A AS SHOWN ON PAGE 7 OF THAT CERTAIN PARCEL MAP NO. 99- 005 FILED ON DECEMBER 8, 1999 IN BOOK 72 OF PARCEL MAPS AT PAGES 6 - 8 IN THE OFFICIAL R ECORDS OF SAN MATED COUNTY, CALIFORNIA; THENCE N 01° 39' 45" E FOR A DISTANCE OF 27.24 FEET TO A POINT, SAID POINT BEING THE B EGINNING OF A CURVE TO THE LEFT HAVING A RADIUS OF 520.55 FEET AND A CENTRAL ANGLE O F 37° 40' 44", TO WHICH POINT A RADIAL LINE BEARS S 88° 20' 15" E; THENCE ALONG SAID CURVE FOR A DISTANCE OF 342.32 FEET; THENCE, N 36° 00' S9" W FOR A DISTANCE OF 111.60 FEET; THENCE, N 37° 35' 47" W FOR A DISTANCE OF 95.40 FEET TO A POINT, SAID POINT BEING THE B EGINNING OF ANON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 68.43 FEET AND A CENTRAL ANGLE OF 43° 21' 20", TO WHICH POINT A RADIAL LINE BEARS S 70' 36' S4" W; THENCE ALONG SAID CURVE FOR A DISTANCE OF 51.78 FEET; THENCE N 80~ 06' 10" E FOR A DISTANCE OF 10.55 FEET; THENCE N 53' 02' 05" E FOR A DISTANCE OF 31.13 FEET; THENCE N 34° 15' 34" W FOR A DISTANCE OF 9.00 FEET; T HENCE N 43~ 08' 03" E FOR A DISTANCE OF 62.07 FEET; THENCE N 85~ 46' S5 " W FOR A DISTANCE OF 144.09 FEET; THENCE N 00° 00' S5" W FOR A DISTANCE OF 20.95 FEET TO A POINT, SAID POINT BEING THE B EGINNING OF ANON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 385.83 FEET AND A CENTRAL ANGLE OF 06° 02' 32", TO WHICH POINT A RADIAL LINE BEARS S 15° 03' 48" E; THENCE ALONG SAID CURVE FOR A DISTANCE OF 40.69 FEET; THENCE S 63° 09' 48" E FOR A DISTANCE OF 13.12 FEET TO A POINT, SAID POINT BEING THE B EGINNING OF ANON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 395.67 FEET THROUGH A CENTRAL ANGLE OF 25° 59' OS", TO WHICH POINT A RADIAL LINE BEARS 5 22~ 22' 46" E; THENCE ALONG SAID CURVE FOR A DISTANCE OF 179.44 FEET; THENCE N 41° 38' 09" E FOR A DISTANCE OF 122.56 FEET; EXHIBIT A Page 11 of 16 THENCE S 54° 47' 39" E FOR A DISTANCE OF 8.46 FEET; THENCE N 34° 49' OS" E FOR A DISTANCE OF 89.36 FEET; THENCE N 46~ 03' 05" E FOR A DISTANCE OF 208.12 FEET TO A POINT, SAID POINT BEING THE B EGINNING OF ANON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 205.00 FEET THROUGH A CENTRAL ANGLE OF 26° 37' 38", TO WHICH POINT A RADIAL LINE BEARS N 15°21'18"W; THENCE ALONG SAID CURVE FOR A DISTANCE OF 95.27 FEET; THENCE N 00~ 00' S5" W FOR A DISTANCE OF 278.18 FEET; THENCE N 89~ 59' 05" E FOR A DISTANCE OF 531.33 FEET THENCE S 00° 00' 24" E FOR A DISTANCE OF 21.43 FEET TO A POINT, SAID POINT BEING THE B EGINNING OF ANON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 125.95 FEET AND A CENTRAL ANGLE OF 88° 57' 42", TO WHICH POINT A RADIAL LINE BEARS N 05° 01' 03" W; THENCE ALONG SAID CURVE FOR A DISTANCE OF 195.56 FEET; THENCE S 03° 58' 45" E FOR A DISTANCE OF 25.53 FEET; THENCE S 05° 58' 39" E FOR A DISTANCE OF 65.98 FEET; THENCE S 10' S9' 30" E FOR A DISTANCE OF 22.42 FEET; THENCE S 22° 13' 39" E FOR A DISTANCE OF 77.55 FEET; THENCE S 37° 12' 16" E FOR A DISTANCE OF 101.18 FEET; THENCE 5 51' S2' 44" E FOR A QISTANCE OF 91.48 FEET; THENCE S 60' 39' 10" E FOR A DISTANCE OF 22.25 FEET; THENCE S 70` 35' S9" E FOR A DISTANCE OF 45.53 FEET; THENCE S 68~ 22' 00" E FOR A DISTANCE OF 28.21 FEET; THENCE 5 63° 56' 22" E FOR A DISTANCE OF 55.27 FEET; THENCE S 59° 13' S6" E FOR A DISTANCE OF 60.97 FEET; THENCE 5 88' 49' S0" E FOR A DISTANCE OF 155.68 FEET; THENCE S 07° 36' 22" W FOR A DISTANCE OF 283.63 FEETTO A POINT, SAID POINT BEING THE B EGINNING OF ANON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 856.00 FEET AND A CENTRAL ANGLE OF 12° 03' 47", TO WHICH A RADIAL LINE BEARS S 07° 36' 22" W; EXHIBIT A Page 12 of 16 THENCE ALONG SAID CURVE FOR A DISTANCE OF 180.22 FEET; THENCE S 20~ 05' 10" W FOR A DISTANCE OF 60.07 FEETTO A POINT, SAID POINT BEING THE B EGINNING OF ANON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 1168.50 FEET AND A CENTRAL ANGLE OF 07° 11' 38", TO WHICH POINT A RADIAL LINE BEARS S 17° 41' S6" W; T HENCE ALONG SAID CURVE FOR A DISTANCE OF 146.71 FEET TO A POINT OF COMPOUND C URVATURE, SAID POINT BEING THE BEGINNING OF A CURVE TO THE LEFT HAVING A R ADIUS OF 913.50 FEET AND A CENTRAL ANGLE OF 12° 00' 36", TO WHICH POINT A RADIAL L INE BEARS S 10~ 30' 18" W; T HENCE ALONG SAID CURVE FOR A DISTANCE OF 191.48 FEET TO A POINT OF COMPOUND C URVATURE, SAID POINT BEING THE BEGINNING OF A CURVE TO THE LEFT HAVING A RADIUS O F 1088.37 FEET AND A CENTRAL ANGLE OF 25° 14' 14", TO WHICH POINT A RADIAL LINE BEARS S 01~ 30' 17" E; THENCE ALONG SAID CURVE FOR A DISTANCE OF 479.40 FEET TO A POINT OF REVERSE C URVATURE, SAID POINT BEING THE BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS O F 496.50 FEET AND A CENTRAL ANGLE OF 34° 43' S9", TO WHICH POINT A RADIAL LINE BEARS N 26° 44' 32" W; THENCE ALONG SAID CURVE FOR A DISTANCE OF 300.98 FEET; T HENCE S 00° 45' 17" W FOR A DISTANCE OF 384.11 FEET; THENCE S 87° 28' S8" W FOR A DISTANCE OF 79.42 FEET; THENCE S 83° 24' 03" W FOR A DISTANCE OF 80.14 FEET; THENCE 5 77° 44' 18" W FOR A DISTANCE OF 69.68 FEET; THENCE S 66~ 04' S4" W FOR A DISTANCE OF 80.39 FEET; THENCE N 79' 14' 25" W FOR A DISTANCE OF 24.50 FEET; THENCE S 85° 36' 39" W FOR A DISTANCE OF 37.90 FEET; THENCE S 68° 54' 02" W FOR A DISTANCE OF 54.13 FEET; THENCE N 65° 40' 32" W FOR A DISTANCE OF 41.34 FEET; THENCE N 81~ 14' 05" W FOR A DISTANCE OF 97.58 FEET; T HENCE S 89° 14' 02" W FOR A DISTANCE OF 47.67 FEET; THENCE N 86° 01' S0" W FOR A DISTANCE OF 119.99 FEET; THENCE S 87~ 31' 14 " W FOR A DISTANCE OF 27.90 FEET; EXHIBIT A Page 13 of 16 THENCE S 83' 41' 38" W FOR A DISTANCE OF 64.38 FEET; THENCE 5 89° 58' S6" W FOR A DISTANCE OF 61.70 FEET; T HENCE N 89° 33' 20" W FOR A DISTANCE OF 60.00 FEET; THENCE N 79° 37' 03" W FOR A DISTANCE OF 60.00 FEET; T HENCE S 89' 32' 27" W FOR A DISTANCE OF 60.00 FEET; THENCE S 89~ 59' 14" W FOR A DISTANCE OF 60.00 FEET; T HENCE S 84° 55' 16" W FOR A DISTANCE OF 51.08 FEET; THENCE S 00° 45' 17" W FOR A DISTANCE OF 137.22 FEET; T HENCE S 89° 55' 25" W FOR A DISTANCE OF 737.35 FEET TO THE POINT OF BEGINNING. CONTAINS 1,402,154 SQUARE FEET OR 32.189 ACRES± T HE BASIS OF BEARINGS FOR THIS DESCRIPTION IS THE SAME AS REFERENCED ON THE A FOREMENTIONED PARCEL MAP NO. 99-005. ~~A` ~~~8DESCRIPTION PREPARED BY: cog G9 fiOPdAL.d P. ~t ~ CA~t1ER01~ p--, ~8s}u 4 ~o r~ ~, No. z s~s~ ~~ R ONALD P. CAMERON, P.L.S. L9185 ~'~j. ~~~ LICENSE EXPIRES 03/31/2019 ~0~ ~~►~.14 EXHIBIT A Page 14 of 16 EXHIBIT B Temporary Easements and Improvements [Diagram showing location of temporary road easement] 2852515.1 EXHIBIT A Page 15 of 16 PA R : E L 133 9 9 5 V r -~s y~ PAR C E L B 72 PM S- ~ •~ Nor a Pa R r ~ ~~ ~ i ~r ~ il f ~ t' li~ ~~ ' {~ ~A \ _s ~~ I Qf ~ j {. iN +~ cs t 7 '~ ~ ! . ' . . ; ~_ /" ~ - .n. . n i _^ ~~ ~{f i t ; - ~ , ` ' i ~ ~if - ~ ~/ - ~ ~ — 0 a~n x~ i a ~ ~I ~ I I I 4 ~ ~ ~~j ~ ~ ~ l ~ ~ l ~ ~ ~ '~ 1 ~ ~jw .. ~, ~ ~ , TT ~ ~yf , i , , . ~ r ~ , : .,~ i=. ic e ~ _ 1t , F a ~ ,~ ~ . — — - S ~ ~~ ' ~~ S ~ ~I L ~ ~. : a ~1i .w! a \ \ i ~ ~! t . ~l . . _ ~ _~ . ~ ~ \ 1 71 ~ ~ _ ~„ ,, , . ,, L07 ~1 : - . W 'Y ~ ~ 70 MA 7 12 ,7 0 MA P 12 i NOT A PA R T I NO I ~ A PA R T Oys l a r Po m~ ~ E r g v ~ e e m g ~ E N e O i ~ s \ 1 0 1 6 - 0 0 2 di I C S~ r e e l a a M IJ h i e s ' ~ 2 0 1 ] O B I] S ~ e a l 2 Jr d Dr a f t ENe ~~ " ~ + . ~, ~ ~~ 1 1 ~~ .. l)' - ' ~C U I I f ~~ ~ ~ 'CI ` ~ ~ u ~ ~ r : i i i 1 1 i : 1 ~ `~ I ~ ~ Ii p u f i l D II A € 1 1 5 ~ ~ ~ ~ _P ~ ~ ~ ~ k y ' _ _" J ' ~~ 1W~ 1 ~~ .. ~ L~ ~ u n ~ l l u n l n u 1 1 1 1 1 1 [ r ~ J ! ~ ~ m e s ~ ~~1 ~ r~Ti✓ ~_ _ ~ ~I •. 1 1 / ~ `•~ ~~ r ~ ms s` - a ~`- - - r' 1 +,• ~ ~ ~ ' 1. ci f^ -- - y, - ~ ,~ ~ ~ ~ ~ _. _~ y , ~ ~, . , . ~, ~ ~ ~; ~~~ - ~ . `- - == . ~~' /% ~ ~ ~ of ~ ~' ~ ~ l ~~ ~ ~~ ~ ~ ~ _ ~ .. ~` ~ ~ ~ f`, ~~~ w o ~ y V I mo \1 ~_ , i ~ /~~ _ ; A '~Z _ -_ ~ + Po A •• N Po X ON 0! AA EL A (5 5 P4 1 , k~ ~ ~ 6 70 , i N L NG TH E L LE N D HE R E O N iW SN E I' ~p P ' NO T A PA R T B-~ - I ] 03 : 5 1 2 1 PM br a t l d r A ~ L0 T Id . BL O L N ~I ~~ ' — — — ~ NO T AP A R T '~ EXHIBIT A Page 16 of 16 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-883 Agenda Date:9/6/2017 Version:1 Item #:3. Report regarding resolution amending the FY 2017-18 Master Fee Schedule.(Richard Lee,Director of Finance) RECOMMENDATION It is recommended that the City Council adopt a resolution amending the FY 2017-18 Master Fee Schedule. BACKGROUND/DISCUSSION The City Council adopted the Fiscal Year (FY)2017-18 Master Fee Schedule on June 28,2017.The user fees that were adopted as part of the Master Fee Schedule reflected the collaborative efforts of consultants,staff,and the City Council to comprehensively update the City’s user fees. In preparation to implement the new fees and rates authorized by City Council in the FY 2017-18 Master Fee Schedule,staff discovered various clarifications and additions to the Master Fee Schedule,as indicated in Exhibit A to the accompanying resolution.Of the 11 proposed amendments to the Master Fee Schedule,five are fees that were inadvertently removed,five are language clarifications,and one is a fee that was missing a time increment, thus the fee was calculated to have no cost. Staff confirms that the additional fees listed in Exhibit A are in compliance with Proposition 218,as the fee is less than or equal to the cost to provide the service.For example,based on the most recent fee study,for a permit valued at $1.0 million,a plan check takes 50 hours to complete.Staff has confirmed that upon request of an applicant to expedite the plan check process,on average,staff augmentation and prioritization of a plan check requires an additional 35 percent of staff time, or 67.5 hours in total. FISCAL IMPACT The recommended amendments to the Master Fee Schedule that add development related fees will become effective 60 days after Council adoption of the accompanying resolution,while all other changes will become effective immediately.Staff anticipates a nominal fiscal impact to permit fee revenues during this period of time. CONCLUSION Formal authorization of the recommended amendments to the Master Fee Schedule will ensure alignment between the City’s cost recovery efforts and delivery of high quality service to the South San Francisco community. City of South San Francisco Printed on 8/31/2017Page 1 of 1 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-885 Agenda Date:9/6/2017 Version:1 Item #:3a. Resolution amending the FY 2017-18 Master Fee Schedule. WHEREAS,the City Council of the City of South San Francisco adopted the Fiscal Year (FY)2017-18 Master Fee Schedule on June 28, 2017; and WHEREAS,in preparation to implement the new fees and rates authorized by the FY 2017-18 Master Fee Schedule,staff discovered various clarifications and additions that are necessary within the Master Fee Schedule; and WHEREAS,of the 11 proposed amendments,five are attributable to fees that were inadvertently removed from the Master Fee Schedule, five provide clarifying language, and one corrects a fee calculation; and WHEREAS,the recommended amendments to the Master Fee Schedule provides formal authority for the City to continue to charge the said fees; and WHEREAS,the proposed fees do not exceed the cost to provide the service,thus is compliant with Proposition 218; and WHEREAS,the proposed additional fees in the Master Fee Schedule will be effective 60 days after adoption by the City Council. NOW,THEREFORE,BE IT RESOLVED that the City Council of the City of South San Francisco does hereby approve the FY 2017-18 Master Fee Schedule amendments as set forth in Exhibit A, attached hereunder. ***** City of South San Francisco Printed on 9/20/2017Page 1 of 1 powered by Legistar™ 1 of 1 City of South San Francisco EXHIBIT A Master Fee Schedule FY 2017-18 Proposed Amendments BL5.1 Expedited Building Plan Check Fee 35% of plan check fee BL7 Plan Checking - Mechanical and Plumbing (Based on trade valuation) (Includes 3 Plan Reviews) BL8 Plan Checking - Electrical (Based on trade valuation) (Includes 3 Plan Reviews) BL8.1 Title 24 Energy Plan Check Surcharge 25% of plan check fee F108.1 Expedited Fire Plan Check Fee 35% of plan check fee F43 Group R, Division 1 Occupancies and Group $, Division 2 with 3 or more dwelling units per building ($125 minimum charge) PW2 Encroachment Permit Fee (covers two inpections)Flat 307$ Deposit Estimated cost of improvement PW4 On-site inspection/processing fee for the recordation of the condition of the private sewer lateral. Per Recordation 144$ PW22 Hauling/Grading Plan Check and Permit Processing (Cubic Yards) PW36 Waste Management Plan Review 1% of plan checking fee Fee No.Fee Description Fee Unit Fee / Deposit City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-784 Agenda Date:9/6/2017 Version:1 Item #:4. Report regarding public hearing on the Community Development Block Grant 16-17 Consolidated Annual Performance and Evaluation Report;the Assessment of Fair Housing Study and the City’s Citizen Participation Plan;and resolution authorizing the submittals.(Alex Greenwood,Economic and Community Development Director) RECOMMENDATION Staff recommends that the City Council hold a public hearing on: ·The FY2016-2017 Consolidated Annual Performance and Evaluation Report (CAPER)for the Community Development Block Grant (CDBG) Program, and ·The Citizen Participation Plan (CPP), and ·The Assessment of Fair Housing (AFH) Study. Staff further recommends that City Council adopt a resolution approving the FY2016-2017 CAPER and authorizing its submittal to the U.S. Department of Housing and Urban Development (HUD). BACKGROUND/DISCUSSION Consolidated Annual Performance and Evaluation Report (CAPER) The U.S.Department of Housing and Urban Development (HUD)requires jurisdictions that receive Community Development Block Grant (CDBG)funds to submit a year-end Consolidated Annual Performance and Evaluation Report (CAPER).The CAPER describes how the City of South San Francisco utilized the CDBG funds to address the City’s housing and community development needs.It further compares the City’s accomplishments to the goals the City set in the Fiscal Year (FY)2016-2017 Annual Action Plan (AAP).The CAPER outlines the activities that were funded,the people that were served and also provides a comprehensive accounting of all CDBG funds allocated,expended,and/or reprogrammed during FY2016-2017.See Attachment 1. Pursuant to the CDBG regulations,the City must provide a 15-day public comment period and hold a public hearing on the CAPER,prior to submitting it to HUD.A public notice relating to the availability of the draft CAPER was published in the San Mateo County Times and posted on the City’s Facebook page on August 23, 2017.The report was made available at the City’s Economic &Community Development Department offices, at the City’s public libraries,and on the City’s website.Any comments received during the comment period or at the public hearing will be incorporated into the CAPER. In FY2016-2017,the City expended a total of $730,629 in CDBG funding and $11,437 in HOME administrative funding received from the San Mateo County HOME Consortium. This year,the City used CDBG funds to support a number of programs including public services,home repair programs and public improvements.There were 801 individuals served through the City’s public service programs which provided dental services,clothing,shelter,foster youth services and rape trauma services. There were 37 households that were served through the City’s housing rehabilitation programs through City of South San Francisco Printed on 8/31/2017Page 1 of 3 powered by Legistar™ File #:17-784 Agenda Date:9/6/2017 Version:1 Item #:4. There were 37 households that were served through the City’s housing rehabilitation programs through organizations like Rebuilding Together,El Concillo,and Center for Independence.Additionally,two public improvement projects were implemented in areas of need.These projects included the resurfacing of Brentwood Park playground and updating intersections to make them ADA compliant.A total of 186 ADA ramps were installed throughout the City. Assessment of Fair Housing An Assessment of Fair Housing (AFH)report is required prior to the preparation of the 5-year Consolidated Plan.The draft AFH report is being prepared in compliance with the requirements of HUD’s Affirmatively Furthering Fair Housing (AFFH)Ruleunder HUD.As a recipient of HUD funding,the City of South San Francisco has entered into a Collaborative Agreement with the County of San Mateo,the cities of Daly City, Redwood City and San Mateo,and the Housing Authority of South San Francisco to work together to prepare the AFH for the entire San Mateo County region in compliance with the AFFH Final Rule.The draft AFH report is required prior to the preparation of the 5-year Consolidated Plan,which will be prepared for Fiscal Years 2017-2023.The Consolidated Plan provides the strategic vision for housing and community development programs funded through HUD.The City of South San Francisco will soon begin preparation for the FY 2017- 2023 Consolidation Plan. The AFFH Rule provides an effective planning approach to aid program participants,including the parties to the proposed Agreement,to overcome historic patterns of segregation,promote fair housing choice and foster inclusive communities that are free from discrimination.The AFH report refers to the analysis undertaken pursuant to 24 C.F.R.§5.154 of the AFFH Final Rule that includes an analysis of fair housing data,an assessment of fair housing issues and contributing factors,and an identification of fair housing priorities and goals. Pursuant to the CDBG regulations, the City must provide a 30-day public comment period and a public hearing on the draft AFH report. The draft AFH report has been made available for public review in the San Mateo County Housing Authority’s and South San Francisco’s Economic & Community Development Department website and office since August 7, 2017, and a public notice was published in the San Mateo County Times on August 7, 2017. The extensive draft AFH is available at the following website: <http://housing.smcgov.org/draft-afh.> Any comments received during the comment period or at the public hearing will be incorporated into the Final AFH. Citizen Participation Plan Pursuant to the City’s current Citizen Participation Plan (CPP), any substantial changes to an existing policy document, such as the AFH, requires a 15-day public notice and comment period. The City’s existing CPP does not address the AFH, and therefore the CPP needed to be updated to reflect the AFH process. Concurrent with the AFH preparation, staff amended the CPP policies and document, see Attachment 2, to include a public hearing prior to the release of the draft AFH and an additional public hearing to receive comments and to provide a 30 day notice to the public prior to the public meeting. FISCAL These actions have no impact to the City’s fiscal budget. CONCLUSION Staff recommends that the City Council hold a public hearing to hear public comments on the FY2016-2017 CAPER, CPP, and AFH for the CDBG Program and adopt a resolution approving the FY2016-2017 CAPER City of South San Francisco Printed on 8/31/2017Page 2 of 3 powered by Legistar™ File #:17-784 Agenda Date:9/6/2017 Version:1 Item #:4. and authorizing its submittal to HUD. Attachments: 1.Draft FY2016-2017 CAPER 2.2017 Updated CPP 3.FY2016-2017 CAPER City Council Meeting Presentation City of South San Francisco Printed on 8/31/2017Page 3 of 3 powered by Legistar™ CAPER 1 OMB Control No: 2506-0117 (exp. 06/30/2018) CR-05 -Goals and Outcomes Progress the jurisdiction has made in carrying out its strategic plan and its action plan. 91.520(a) This could be an overview that includes major initiatives and highlights that were proposed and executed throughout the program year. The City made significant progress against the goals in the Program Year 2016 (PY 2016) AnnualAction Plan. Below is a brief overview of the programs and projects supported through the PY 2016 CDBG program. The complete table of service goals and outcomes is below as Table 1. City Sponsored Housing Rehab Program The City issued 3Emergency RepairVoucher, and began to revamp the housing rehabilitation loan program and the Debris Box and Emergency Home Repair Voucher program to promote more participation. Minor Home Repair Programs Center for Independence of Individuals with Disabilities (CID). The City used CDBG funds to support CID’s Housing Accessibility Modification (HAM) Program which provided accessibility modifications to six households; Rebuilding Together Peninsula (RTP). The City used CDBG funds to support two RRP programs, National Rebuilding Day, which provided repairs for three households, and Safe at Homewhich served nineteen households in total; El Concilio. The City used CDBG funds to support El Concilio’s Peninsula Minor Home Repair Program with a total of sixhouseholds. Public Services Public service providers provided services to 413youth, seniors, persons with disabilities, and low- income persons and families. Housing and homeless services providers provided services to 362 persons either experiencing homelessness or at risk of homelessness. Public Infrastructure Improvements The City replaced 186 sidewalk ramps in low-and moderate-incomeneighborhoods to improve ADA accessibility. Brentwood Park Playlot -TheCity replaced Brentwood Park’s flood-vulnerable woodchip surface with CAPER 2 OMB Control No: 2506-0117 (exp. 06/30/2018) fully accessible rubberized surfacing. Comparison of the proposed versus actual outcomes for each outcome measure submitted with the consolidated plan and explain, if applicable, why progress was not made toward meeting goals and objectives. 91.520(g) Categories, priority levels, funding sources and amounts, outcomes/objectives, goal outcome indicators, units of measure, targets, actual outcomes/outputs, and percentage completed for each of the grantee’s program year goals. The table below provides detailed review of the programs and projects funded through the CDBG program and includes progress against the 2013-2018 Consolidated and Strategic Plans. Table 1-Accomplishments –Program Year & Strategic Plan to Date CAPER 3 OMB Control No: 2506-0117 (exp. 06/30/2018) Project Activity Agency or Operator Goal Category CDBG Funding Indicator Unit of Measure Exp. 5 yr Strat Plan Act. 5 yr Strat Plan % Comp Exp. Prog. Yr. Actua l Prog. Yr. % Comp Planning and Admin. City Staff Efficient Administration and Oversight Efficient Administration and Oversight $131,636 Annual Administration NA NA NA NA NA NA 100% Project Sentinel Fair Housing Services Suitable living environment Non-Homeless Special Needs HOME $11,437 Public Services other than Low/Mod Housing Benefit Persons Assisted 50 47 94%15 26 173% Housing Rehab Programs TOTAL Multiple Providers Housing opportunities Affordable Housing $64,390 Homeowner Housing Rehabilitated Housing Unit 125 116 93%48 37 77% CID Housing opportunities Affordable Housing $10,000 Homeowner Housing Rehabilitated Housing Unit NA NA NA 8 6 75% El Concilio Housing opportunities Affordable Housing $7,544 Homeowner Housing Rehabilitated Housing Unit NA NA NA 10 6 60% Rebuilding Together Rebuild Day Housing opportunities Affordable Housing $12,000 Homeowner Housing Rehabilitated Housing Unit NA NA NA 3 3 100% Rebuilding Together Safe at Home Housing opportunities Affordable Housing $25,000 Homeowner Housing Rehabilitated Housing Unit NA NA NA 16 19 119% City Sponsored Rehab Programs Housing opportunities Affordable Housing $9,846 Homeowner Housing Rehabilitated Housing Unit NA NA NA 11 3 27% Public Services TOTAL Multiple Providers Suitable living environment Non-Homeless Special Needs $52,471 Public Services other than Low/Mod Housing Benefit Persons Assisted 5000 3277 66%499 775 155% CAPER 4 OMB Control No: 2506-0117 (exp. 06/30/2018) Community Overcoming Relationship Abuse (CORA) Suitable living environment Non-Homeless Special Needs $10,000 Public Services other than Low/Mod Housing Benefit Persons Assisted NA NA NA 6 5 83% Health Mobile Dental Care for Children Suitable living environment Non-Homeless Special Needs $7,998 Public Services other than Low/Mod Housing Benefit Persons Assisted NA NA NA 105 118 112% John Papan Memorial John's Closet Suitable living environment Non-Homeless Special Needs $5,000 Public Services other than Low/Mod Housing Benefit Persons Assisted NA NA NA 100 47 47% Legal Aid Society of San Mateo Suitable living environment Non-Homeless Special Needs $10,000 Public Services other than Low/Mod Housing Benefit Persons Assisted NA NA NA 75 91 121% Ombudsman Services of San Mateo Suitable living environment Non-Homeless Special Needs $9,473 Public Services other than Low/Mod Housing Benefit Persons Assisted NA NA NA 74 101 136% Rape Trauma Services Suitable living environment Non-Homeless Special Needs $10,000 Public Services other than Low/Mod Housing Benefit Persons Assisted NA NA NA 50 51 102% Public Services Homeless Support TOTAL Multiple Providers Housing opportunities Homeless $30,500 Public Services for Low/Mod Housing Benefit Persons Assisted Inc. Public Servic es Inc. Public Servic es Inc. Public Servic es Inc. Public Servic es Inc. Public Servic es Inc. Public Servic es HIP Home Sharing Program Housing opportunities Homeless, Affordable Housing $10,000 Public Services other than Low/Mod Housing Benefit Seniors Assisted NA NA NA 11 12 109% Samaritan House Safe Harbor Housing opportunities Homeless $14,000 Public Services for Low/Mod Housing Benefit Persons Assisted NA NA NA 63 336 533% CAPER 5 OMB Control No: 2506-0117 (exp. 06/30/2018) Star Vista Transitional Housing Housing opportunities Homeless $6,500 Public Services for Low/Mod Housing Benefit Persons Assisted NA NA NA 15 14 93% Public Facilities and Infrastrct. City Staff, Contractors Public Infrastructure Non-Housing Community Development $451,632 Public Facility or Infrastructure Activities for Low/Moderate Income Housing Benefit Number of Projects 5 7 140%2 2 100% Brentwood Park Public Infrastructure Non-Housing Community Development $45,603 Public Facility or Infrastructure Activities for Low/Moderate Income Housing Benefit Persons with Improve d Access NA NA NA 1245 1245 100% ADA Improvement Project Public Infrastructure Non-Housing Community Development $406,029 Public Facility or Infrastructure Activities for Low/Moderate Income Housing Benefit Persons with Improve d Access NA NA NA 2125 0 2125 0 100% Economic Development City Staff, Contractors Economic Development Economic Development $0 Façade Treatment / Business Building Rehabilitation Number of Projects 5 8 160%1 0 0% CAPER 6 OMB Control No: 2506-0117 (exp. 06/30/2018) Assess how the jurisdiction’s use of funds, particularly CDBG, addresses the priorities and specific objectives identified in the plan, giving special attention to the highest priority activities identified. Need. Affordable Housing Goal. Increase, maintain, and improve the supply of affordable housing forlow to moderate income individuals andfamilies. ActivitiesImplemented. The City supported the rehabilitation and repair of 35 homes occupied by low- and moderate-income households, and helped preserve the available supply of housing. Need. Public Service. Goal. Provide public services to improve the quality of life for low-income individuals and families, including those at risk of being homeless and special needs populations. Activities Implemented. The City supported public services providers to provide services for 413 low- and moderate-income persons, including youth, seniors, persons with a disability, and persons experiencing domestic violence (not including homeless services). Need. Homeless services and housing. Goal. Provide service-enriched shelter and housing for homeless families and individuals. Activities Implemented. Funding for homeless services and housing was implemented under the public service category to support services for 362 persons. Need. Public Improvements. Goal. Preserve and improve public facilities that serve a high percentage of low‐income or special needs residents ActivitiesImplemented. During PY 2016 the City completed the resurfacing of Brentwood Park play area, which provided fully accessible and flood resistant play space for children in low-and moderate-income neighborhoods, as well as replaced 186 sidewalk ramps with ADA compliant access, to help address the need for improved accessibility in the City. Need. Economic Development. Goal. Sustain and/or increase the level of business and economic activity in areas that serve or have a high percentage of low-income residents. ActivitiesImplemented. During the development of the 2013-2018 Consolidated Plan, the City identified a strategic goal of 5 façade rehabilitations in the downtown area for the planning period. During the first three years of the Consolidated Plan, the City completed 8 façade improvements, at 160% of goal. The City had planned for one additional façade improvement in PY 2016, but was unable to identify a qualified applicant, and, as the long term goals of the program had been met, elected to discontinue the program. CAPER 7 OMB Control No: 2506-0117 (exp. 06/30/2018) CR-10 -Racial and Ethnic composition of families assisted Describe the families assisted (including the racial and ethnic status of families assisted). 91.520(a) Table 2–Table of assistance to racial and ethnic populations by source of funds Race or Ethnicity CDBG White 442 Black or African American 173 Asian 89 American Indian or American Native 19 Native Hawaiian or Other Pacific Islander 44 American Indian or American Native and White 2 Asian and White 3 Black or African American and White 1 American Indian or American Native and Black 3 Other 61 Total 835 Hispanic 328 Not Hispanic 507 Narrative Table 2 above shows the race and ethnic distribution of services across households and persons. The above numbers do not include the public infrastructure and facilities programs, which are tabulated by census block group. According to the 2015 American Community Survey provided through the U.S. Census Bureau, the race and ethnic distribution across the City of South San Francisco as below: Race or Ethnicity Percent of Total Population White 36.7% Black or African American 2.4% Asian 38.1% American Indian or American Native .2% Native Hawaiian or Other Pacific Islander 2.5% American Indian or American Native and White .9% Asian and White 1.5% Black or African American and White .4% American Indian or American Native and Black .01% Other 14.9% Hispanic 34.5% CAPER 8 OMB Control No: 2506-0117 (exp. 06/30/2018) CR-15 -Resources and Investments 91.520(a) Identify the resources made available Table 3-Resources Made Available Source of Funds Source Resources Made Available Amount Expended During Program Year CDBG CDBG 682,321 730,629 Other Other 11,437 11,437 Narrative PY 2016 was exceptionally challenging for the City in terms of resources. A reconciliation of prior year programs and an unexpected increase in Program Income resulted in far more resources being available than the City had originally programmed in the 2016-2017 Annual Action Plan. The City worked to program and spend funds as quickly as possible and to spend down the excess funds in order to meet HUD’s May timeliness requirements, but was unsuccessful. The City is preparing a workout plan with HUD’s direction to help get spending back on schedule. The City spent more funding in PY 2016 than was receivedby tapping into prior year unspent funding, but still has excess funding from prior years that must be spent down. Identify the geographic distribution and location of investments Table 4–Identify the geographic distribution and location of investments Target Area Planned Percentage of Allocation Actual Percentage of Allocation Narrative Description Downtown, Uptown, Orange/Lindenville, Camino/Sunshine & Westborough 33%50% Increased expenditures in the public infrastructure program increased the percentage of funding spent in the CDBG target areas. Narrative The City designates these areas as target areas for funding services because a majority of those who reside and/or receive services in this area are low-and moderate-income. Therefore, improvements made to this area, through activities like public right of way accessibility improvements and public facility improvements that provide additional access to residents and neighborhoods are supported through the CDBG program. Leveraging Explain how federal funds leveraged additional resources (private, state and local funds), including a description of how matching requirements were satisfied, as well as how any publicly owned land or property located within the jurisdictionthat were used to address the needs identified in the plan. CAPER 9 OMB Control No: 2506-0117 (exp. 06/30/2018) The non-profit organizations that received CDBG funding leveraged their CDBG grants with their own funding from foundations, state and county grants, private donors, corporations, in-kind donors,and/or fees for service. The City also leveraged CDBG funds with local funds in the public infrastructure projects. CR-20 -Affordable Housing 91.520(b) Evaluation of the jurisdiction's progress in providing affordable housing, including the number and types of families served, the number of extremely low-income, low-income, moderate-income, and middle-income persons served. Table 5–Number of Households One-Year Goal Actual Number of homeless households to be provided affordable housing units 0 0 Number of non-homeless households to be provided affordable housing units 0 0 Number of special-needs households to be provided affordable housing units 0 0 Total 0 0 Table 6–Number of Households Supported One-Year Goal Actual Number of households supported through rental assistance 0 0 Number of households supported through the production of new units 0 0 Number of households supported through the rehab of existing units 48 37 Number of households supported through the acquisition of existing units 0 0 Total 48 37 Discuss the difference between goals and outcomes and problems encountered in meeting these goals. This year, the City served 37householdsthrough the following housing rehabilitation programs/projects: Center for Independence of Individuals with Disabilities (CID) Housing Accessibility Modification (HAM) Program, El Concilio’s Peninsula Minor Home Repair Program, the City-Sponsored Housing Rehabilitation Program, and both the Rebuilding Together Peninsula’s (RTP) Safe at Home and National Rebuilding Day programs. CAPER 10 OMB Control No: 2506-0117 (exp. 06/30/2018) CID -HAM Program: CID was able to provide accessibility modifications to 6low-income households. This year, CID faced a number of challenges in meeting its goals. CID explained that the biggest challengeswas running out of funds due to the high cost of stair lifts and ramps. El Concilio’s Peninsula Minor Home Repair Program: Under Peninsula Minor Home Repair, El Concilio interviewed, enrolled and assessed six householdsin the City of South San Francisco.El Concilio also struggled with meeting rehabilitation goals due to lack of funds. City-Sponsored Housing Rehabilitation Program: The City issued noloans, and no Debris Box Vouchers, and three Emergency Repair Vouchers. The City is revamping the housing rehabilitation program to improve resident participation, including adding marketing and revising program guidelines. RTP –Safe at Home Program: RTP exceeded its FY2016goal.RTP served 19 clients, three more than the 16 proposed.Thirteen of the homeowners fall into the extremely low or very low-income category. RTP -National Rebuilding Day: National Rebuilding Day is completed annually in April where approximately 3,000 volunteers give their time and skills to help neighbors live more independently in safer, cleaner, and healthier environments. RTP met its goals and served three South San Francisco households as part of National Rebuilding Day. Discuss how these outcomes will impact future annual action plans. Both El Concilio and CID failed to meet their annual goals during PY 2016. Both expressed that the primary challenges was that the increased costs for specific activities was using up more of the available funding and resulting in fewer total projects being completed. The annual CDBG funding for both El Concilio and CID had not been increased over recent years, while both construction and material costs have increased significantly. To help service providers increase the number of households that they are able to serve, the City reviewed average costs per project and compared those costs with other jurisdictions in San Mateo County. TheCity found that provider costs were the lowest in the City compared to the rest of the County. While the City does support fiscal responsibility, the extra low per unit costs were making it increasingly difficult for providers to meet goals, particularlyas other costs have increased. To help improve performance, the City increased the allowed per unit costs to be comparable with the rest of San Mateo County. All of the rehabilitation programs received significant increases in funding with expected increases in goals for PY 2017, and the City will be monitoring closely to evaluate the impact that the increase funds have on performance. CAPER 11 OMB Control No: 2506-0117 (exp. 06/30/2018) Include the number of extremely low-income, low-income, and moderate-income persons served by each activity where information on income by family size is required to determine the eligibility of the activity. Table 7–Number of Households Served Number of Households Served CDBG Actual HOME Actual Extremely Low-income 736 9 Low-income 60 6 Moderate-income 13 11 Total 809 26 Narrative Information All households served met the CDBG income requirementsof either being extremely low income (30% or less of AMI*), low income (31-50% of AMI*), or moderate income (51-80% of AMI*). The City uses HOME funding through the San Mateo Consortium to fund Project Sentinel’s Fair Housing efforts. Those clients are reported under the HOME column. *AMI = Area Median Income CR-25 -Homeless and Other Special Needs 91.220(d, e); 91.320(d, e); 91.520(c) Evaluate the jurisdiction’s progress in meeting its specific objectives for reducing and ending homelessness through: Reaching out to homeless persons (especially unsheltered persons) and assessing their individual needs The Homeless Outreach Team (HOT) a multi-disciplinary, bilingual program that was created in South San Francisco twoyears ago, continued their work this year. The HOT Program has a full-time case manager that works, in collaboration with the City’s police, to identify and serve the most difficult, long term homeless individuals by placing them in emergency shelters and connecting them with County medical and rehabilitation services. So far, the HOT Program has been very successful and has provided many HOT clients with needed medical care and identification cards, signed HOT clients up for assistance programs such as Supplement Security Income (SSI), and placed HOT clients into emergency shelter or other housing programs such as the Veterans Affairs (VA) Housing Vouchers. Additionally, on a monthly basis the HOT Program holds a Case Managers Meeting that brings together homeless providers, other social service providers, County staff, City staff, City Police and the HOT case manager to discuss current issues with HOT clients and to identify potential solutions. Additionally, CAPER 12 OMB Control No: 2506-0117 (exp. 06/30/2018) there is a HOT Steering Committee comprised of elected officials, program managers, and City staff who work to make larger program-wide and policy level changes to improve the homeless outreach, services and prevention efforts in South San Francisco and County-wide. Addressing the emergency shelter and transitional housing needs of homeless persons Samaritan House –Safe Harbor This year, the City has provided Samaritan House CDBG funding to operate the Safe Harbor Shelter. Safe Harbor provides emergency (less than 30 days) and transitional (30 days to six months) shelter, for single homeless adults over age 18 in South San Francisco. Safe Harbor provided shelter to 336South San Francisco residents and exceeded their goal by 533%. Lastyear, Safe Harbor completed two major renovationsthat greatly improved the shelter’s exterior and interior infrastructure. With the addition of this learning centerand major renovationsin the past few years, Samaritan House is able to implement a diverse set of classes and workshops for clients to assist in transitioning out of the shelter. As mentioned, the Housing Placement Specialist hired by Samaritan House provides housing placement services for homeless clients addressing their transitional housing needs. CORA CORA assisted fiveSouth San Francisco clients in 2016, missing their goal by one household. Threeyears ago, CORA was able to re-organize their programmatic departments. This process resulted in the creation of the Crisis Intervention Department which is comprised of CORA’s 24-hour hotline, Emergency Response Program collaboration with law enforcement, and the two emergency shelters. CORA also combined its Mental Health program, Children’s Program, and Supportive Housing Programs under the newly formed Family Support Services Department. The other departments (Legal, Community Education, Administration, and Development) remain unchanged. As these changes have evolved and settled in, staff has reported being better supported and services more enriched. This new structure also is poising the agency for growth. In addition to the funding provided to these two non-profits, the City was able to make non-monetary efforts to address the emergency shelter and transitional housing needs of homeless persons by continuing to actively participate in the Continuum of Care (CoC) Steering Committee and Project Performance Subcommittee. This year, the CoC focused on creating ways to better evaluate and improve the effectiveness of the County’s homeless programsto align with objectives set forth in the Homeless Emergency Assistance and Rapid Transition to Housing Action (HEARTH), and the federal strategic plan, Opening Doors.The CoC continue to work towards set standards.These are: CAPER 13 OMB Control No: 2506-0117 (exp. 06/30/2018) 1.Percentage of exits to permanent housing; 2.Housing retention rate; 3.Participants obtaining employment income during program participation; 4.Participants increasing total income during program participation; 5.Program occupancy levels; 6.CoC/Emergency Solution Grant (ESG) spending rates; and 7.Homeless Management Information System (HMIS) data quality. These performance measures will allow the CoC to identify areas of improvement and better address the needs of homeless persons. Helping low-income individuals and families avoid becoming homeless, especially extremely low-income individuals and families and those who are: likely to become homeless after being discharged from publicly funded institutions and systems of care (such as health care facilities, mental health facilities, foster care and other youth facilities, and corrections programs and institutions); and, receiving assistance from public or private agencies that address housing, health, social services, employment, education, or youth needs Legal Aid conducted legal servicesclinics between July 1, 2016 and June 30, 2017,where tenants received assistance with evictions, rent increases, repairs, housing discrimination, security deposits, and other legal questions pertaining to housing stability. A total of 91South San Francisco households were served, at 121% of goal. Project Sentinel provides comprehensive fair housing services including complaint investigation, community outreach, and education to San Mateo County residents.Project Sentinel assisted a total of 26South San Francisco residents this year through their various services (case investigations, consultations, and referrals). HIP Housing’s Home Sharing program interviews and screens clients for housing, provides housemate, alternative housing, and community resources to clients with the potential of matching persons in affordable home sharing arrangements.12 persons were matched with households and provided housing during PY 2016. Helping homeless persons (especially chronically homeless individuals and families, families with children, veterans and their families, and unaccompanied youth) make the transition to permanent housing and independent living, including shortening the period of time that individuals and families experience homelessness, facilitating access for homeless individuals and families to affordable housing units, and preventing individuals and families who were recently homeless from becoming homeless again As mentioned previously, the Homeless Outreach Team (HOT) has been very successful in placing HOT CAPER 14 OMB Control No: 2506-0117 (exp. 06/30/2018) clients in housing and connecting them with needed services.Samaritan House provided services to 336 persons in need of transitional housing. StarVista works with emancipated foster youth to stabilize their housing situationand served 14 clients during PY 2016.The Life Moves (formerly InnVision Shelter Network), and family homeless shelter in Daly City, Family Crossroads, underwent major rehabilitation and seismic retrofittingin 2015, is now open and serving clients. The City continues to work with the CoC to address homeless needs in the community. CR-30 -Public Housing 91.220(h); 91.320(j) Actions taken to address the needs of public housing The South San Francisco Public Housing Authority (SSFPHA) operates as a separate entity and submits its own action plans and performance reports to HUD separately from the City of South San Francisco. The SSFPHA manages 80 unitsof affordable public housing. Information about the needs and strategy of the SSFPHA can be found in the SSFPHA’s AAP. Actions taken to encourage public housing residents to become more involved in management and participate in homeownership Not applicable Actions taken to provide assistance to troubled PHAs The PHA is not troubled. CAPER 15 OMB Control No: 2506-0117 (exp. 06/30/2018) CR-35 -Other Actions 91.220(j)-(k); 91.320(i)-(j) Actions taken to remove or ameliorate the negative effects of public policies that serve as barriers to affordable housing such as land use controls, tax policies affecting land, zoning ordinances, building codes, fees and charges, growth limitations, and policies affecting the return on residential investment. 91.220 (j); 91.320 (i) The City took the following actions to remove or ameliorate the negative effects of public policies that serve as barriers to affordable housing: The City’s municipal code provides SSFMC section 20.390 provides incentives to developers for the production of housing that is affordable to lower and moderate-income residents. Continued to implement the City's Inclusionary Housing Ordinance; this requires that a percentage of new “for sale” residential units are made available as Below Market Rate (BMR) units for low income residents. The City will also continue to support its existing BMR units. The City’s General Plan, and specifically the Housing Element, includes policies that support the development of affordable housing. Twoyears ago, the 2015-2023 Housing Element was adopted by State Housing and Community Development. The City continued to support the rehabilitation of existing housing stock by using CDBG funding to support home repair programs, including El Concilio, the Center of Independence of Individuals with Disabilities’ (CID)Housing Accessibility Modification Program, Rebuilding Together Peninsula, and the City-Sponsored Housing Rehabilitation Program. The City continued to cooperate with other governmental agencies and take an active interest in seeking solutions to area-wide housing problems. Continued to investigate new sources of funding for the City's affordable housing programs and working with non-profit developers to promote the development of housing affordable to lower income households.Twoyears ago, the City accepted the Rotary Housing Development application which will provide 81 affordable senior housing units downtown. This project is currently under construction. Continued to consider a process to allow fee waivers or deferrals of planning, building, and impact fees for affordable housing developments. Reduced government and public infrastructure constraints to affordable housing development through administrative support, inter-governmental cooperation, public-private partnerships, and permit streamlining. Implementing zoning to ensure there is an adequate supply of land to meet its Association of Bay Area Governments (ABAG) regional housing needs allocation by adopting the Downtown Station Area Specific Plan which includes community benefits. The City included in the Housing Element to consider a reduction in the minimum lot size for downtown development properties to encourage affordable, small housing development and Also included in the Housing Element is the option to reduce minimum development standards for condominium construction from five to two units to encourage affordable housing CAPER 16 OMB Control No: 2506-0117 (exp. 06/30/2018) production. Actions taken to address obstacles to meeting underserved needs. 91.220(k); 91.320(j) Given the limited funds available, the City prioritized activities which provide maximum benefits to the community. Many local service providers are also experiencing declines in both private and public funding, which further hinder their capability to meet needs. The City addressed this obstacle by continuing to look for new funding sources and find creative ways to leverage and utilize existing funding. Additionally, the City encouraged collaboration amongst itself, other jurisdictions, and non- profits. The majority of the City’s CDBG funds were allocated to supporting housing rehabilitation and public right of way improvement projects because they are not restricted by spending limitations and are highly impactful. A major funding obstacle continued to be sufficiently supporting the wide variety of crucial public services needed in the City due to federal spending limits specific to public services. While this need far exceeded the funds available to provide those services, this year, the City selected those activities which would be most effective. Actions taken to reduce lead-based paint hazards. 91.220(k); 91.320(j) The City continuedto incorporate lead testing and lead safe work practices into allrehabilitation projects it funds. Additionally, the City continued to providelead-based paint informationavailable on its website, to all the local non-profit agencies, to homeowners and renters. TheCity also providedloans and grants to homeowners and public facilities to abate lead-basedpaint hazards. Actions taken to reduce the number of poverty-level families.91.220(k); 91.320(j) Housing Safe and affordable housing is an essential component in the efforts to reduce poverty. With the loss of Redevelopment Agency (RDA) funding, the City was unable to contribute to the development of new affordable housing. However, the City did make efforts to maintain the existing supply of affordable housing by funding multiple home rehabilitation activities (See Section CR-20 -Affordable Housing). The City also continued to operate its 16 affordable housing unitsand oversee the Below Market Rate (BMR) Program. In addition City staff fielded numerous phone calls and in person inquiries regarding information on affordable housing. These resource packets, along with the City’s website, are updated on a regular basis with affordable housing information. Public Services As mentioned, the City funds and/or supports a variety of non-profit organizations that provide housing assistance, food, child care, clothing, health services, legal services, and other emergency services to low-income residents. The City also promotes communication and collaboration among the nonprofits to avoid duplication of efforts and to be able to provide more comprehensive/”wrap around” services for low-income residents. Additionally, the City has in-house programs that also helped residents CAPER 17 OMB Control No: 2506-0117 (exp. 06/30/2018) improvetheir economic opportunities. For example, the City’s Community Learning Center offered classes in English, computers, native language literacy, job training, and citizenship along with providing activities for children. Economic Development The City also takes on various economic development efforts to attract and retain businesses and jobs in South San Francisco. The City continues to operate the Business Cooperation Program (BCP) which seeks to lower the cost of doing business in the City. This programconsists of three elements: 1.Contacting the major businesses and developers to assess how the City’s economic development efforts can be altered to meet their needs, and let them know the City is supportive of their business efforts; 2.Providing information on the City’s commercial (Property Assessed Clean Energy) PACE program to assist in financing improvements that will save energy for the businesses and achieve the City’s Climate Action Goals, and providing information on other business support programs such as Employment Training Panel (ETP) assistance, and the Governor’s Office of Business and Economic Development (Go-Biz) financial programs; and 3.Ask for participation in the City’s proposed Sales and Use Tax Program that will retain these taxes locally instead of them being allocated to the County sales Tax pool. The City has also partnered with several regional agencies and organizations that focus on job growth. For example, City staff works closely with Skyline College’s Science, Technology, Engineering, and Mathematics (STEM) program that assists high school students, the Bay Area Entrepreneur Center (BAEC), a business incubator/accelerator and resource center for start-up companies, and early stage companies, Joint Venture Silicon Valley, and ChinaSF. Actions taken to develop institutional structure. 91.220(k); 91.320(j) The City made the following efforts to improve and/or develop institutional structure: Continued to work with the other local jurisdiction as part of the CDBG "Work Group" to increase collaboration and make administrative and monitoring processes standardized and electronic/automated. For example, the CDBG Work Group moved the environmental review and project approval process for minor home repair programs into an online format. Continued to serve on the Continuum of Care (CoC) Steering Committee and is involved in all CoC decision-making. The CoC Steering Committee is the organized group that guides the implementation of San Mateo County's homeless services system. The CoC undertakes a wide range of efforts to meet the needs of homeless persons and those at risk of homelessness. Continued to build and improve relationships with local service providers. The City has had challenges with meeting timeliness in spending, resulting from unpredictable program CAPER 18 OMB Control No: 2506-0117 (exp. 06/30/2018) income receipts and changes in program and project subscription. The City is actively reviewing and improving under-served programs, and reprogramming funds from programs that have met set goals and are no longer in high demand. The City has prepared a workout plan that is under review with HUD to address spending issues, and has dedicated staff to the CDBG program to help improve organizational capacity. Actions taken to enhance coordination between public and private housing and social service agencies. 91.220(k); 91.320(j) The City took following actions to enhance coordination between public and private housing and social service agencies: Continued to collaborate with the County of San Mateo, private housing developers, lenders, and non-profit housing developers in order to create more affordable housing. Continued to participate in the CDBG "Work Group" and to improve CDBG administrative processes for both sub-recipients and City staff. Continued to fund non-profit agencies serving low-income residents Encouraged collaboration and cooperation among local service providers. Continued to participate in the CoC Steering Committee. Continued to work with HOT which brings together the HOT case manager, City police and staff, homeless providers, and other social service providers. Continued to participate in the San Mateo County HOME Consortium and to serve on the San Mateo County's Housing & Community Development Committee (HCDC) Continued to build and improve relationships with local serviceproviders. Continued working with regional economic development groups and promote economic development collaborations. Continued to work with businesses and the Chamber of Commerce on downtown beautification and other projects to improve the downtown Continued to finance and support the City sponsored housing rehab program. Worked with El Concilio, RTP and CID to coordinate housing repair and rehabilitation needs throughout the community. Identify actions taken to overcome the effects of any impediments identified in the jurisdictions analysis of impediments to fair housing choice. 91.520(a) During PY 2016 the City participated in a regional Assessment of Fair Housing that will supplant the Analysis of Impediments currently in effect. The new Assessment of Fair Housing provides new goals and metrics by which the City will work to address fair housing issues in the community. Other actions currently under way include: CAPER 19 OMB Control No: 2506-0117 (exp. 06/30/2018) The City continued to support testing and enforcement activities, efforts to educatelandlords and property management companies about fair housing law, and efforts to educate housing consumers in fair housing rights. The City continued to support investigations into actual cases, and efforts to educate housing providers about requirements for reasonable accommodation or modification. The City continued to support efforts by outside groups to educate buyers through credit counseling and home purchase training. Project Sentinel was able to identify and evaluate the causes of denial of HUD funding in 2012.Project Sentinel received $11,437in CDBG funding in PY 2016. Project Sentinel was audited by City staff on April 1, 2016. As a result, staff recommended to improve records of income verification by including what is required in outreach materials, and to log interaction with clients around income verification requests. CAPER 20 OMB Control No: 2506-0117 (exp. 06/30/2018) CR-40 -Monitoring 91.220 and 91.230 Describe the standards and procedures used to monitor activities carried out in furtherance of the plan and used to ensure long-term compliance with requirements of the programs involved, including minority business outreach and the comprehensive planning requirements The City uses the Consolidated Subrecipient Monitoring Plan (Monitoring Plan) that was developed by the entitlement jurisdictions in San Mateo County to review performance over a period of time and to evaluate compliance of non-profit subrecipients funded with CDBG funding. The Monitoring Plan specifies the criteria the City uses to determine potential areas and levels of risk, which include quarterly desk reviews, new subrecipients or organizational change, cumulative grant award amount, administrative history, program performance, and financial capacity. On a quarterly basis, the City conducts a limited review of all subrecipients, which includes reviewing quarterly performance reports and expense summaries that are submitted by the subrecipients. These quarterly performance reports update staff as to whether the non-profit is meeting its annual objectives and the status of the program. Additionally, the City will conduct on-site monitoring reviews of those subrecipients the City determines to have potential risks and/or have not been monitored in recent years.The on-site monitoring consists of a programmatic and fiscal review of files,a tour of the program facilities as appropriate, an explanation of the services provided, discussions with program and administrative staff, and introduction to one or more actual beneficiaries, if possible. Also, the City can conduct in-depthreviews, if needed, which typically consist of a concentratedreview of a known high-risk area or critical function. During PY 2016 the City experienced staff turnover that directly impacted the ability to monitor CDBG funded agencies. As the City participates with the other jurisdictions in San Mateo County as a consortium, the City was able to review monitoring documentation prepared by partner jurisdictions to help ensure that shared services providers continue to meet CDBG requirements. With the new staff that have been added to the City’s CDBG program, PY 2017 will include several more on-site monitoring efforts. Citizen Participation Plan 91.105(d); 91.115(d) Describe the efforts to provide citizens with reasonable notice and an opportunity to comment on performance reports. Public Notification Efforts A notice announcing the 15-day public comment period and a public hearing for the CAPER was published in the San Mateo County Times on August 23, 2017and a public hearing will be held on September 6, 2016.All notices informed citizens about the purpose of the CAPER and invited them to review the document and to either submit comments or provide them at the public hearing. All notices included the phone number and address of the Economic & Community Development (ECD) office in order to address any community inquiries. This notification was written in English and Spanish in an CAPER 21 OMB Control No: 2506-0117 (exp. 06/30/2018) effort to reach the City’s Spanish language community. Draft copies of this report were made available at all public libraries, at the City’s ECD office, and on the City’s main website. Additionally, an email notification was sent out to local non-profits and CDBG sub-recipients. Summary of Citizen Comments Pending Close of Public Comment Period. CR-45 -CDBG 91.520(c) Specifythe nature of, and reasons for, any changes in the jurisdiction’s program objectives and indications of how the jurisdiction would change its programs as a result of its experiences. The City did not experience any changes in its program objectives this year.All of this year’s CDBG activities addressed one of the objectives that were identified in the FY2016-2017 AAP. Each year, the City conducts a needs assessment and reviews the prior year performance of each CDBG activity before it allocates funding. This is to ensure that CDBG funding is being used to meet the City’s objectives for the year. Additionally, each AAP is tailored to address both the long-term and more immediate needs of the City. For example, in FY2016-2017 the City focused on providing decent and affordable housing, providing a suitable living environment and expanding economic development opportunities. Does this Jurisdiction have any open Brownfields Economic Development Initiative (BEDI) grants? No CAPER 22 OMB Control No: 2506-0117 (exp. 06/30/2018) CR-45 -CDBG 91.520(c) Specify the nature of, and reasons for, any changes in the jurisdiction’s program objectives and indications of how the jurisdiction would change its programs as a result of its experiences. The City did not experience any changes in its program objectives this year. All of this year’s CDBG activities addressed one of the objectives that were identified in the FY2016-2017 AAP. Each year, the City conducts a needs assessment and reviews the prior year performance of each CDBG activity before it allocates funding. This is to ensure that CDBG funding is being used to meet the City’s objectives for the year. Additionally, each AAP is tailored to address both the long-term and more immediate needs of the City. For example, in FY2016-2017 the City focused on providing decent and affordable housing, providing a suitable living environment and expanding economic development opportunities. Does this Jurisdiction have any open Brownfields Economic Development Initiative (BEDI) grants? No [BEDI grantees] Describe accomplishments and program outcomes during the last year. City of South San Francisco - Citizen Participation Plan Page 1 of 12 Draft Citizen Participation Plan City of South San Francisco Revised August 23, 2017 for Public Review Economic and Community Development Department City of South San Francisco - Citizen Participation Plan Page 2 of 12 400 Grand Avenue, South San Francisco, CA 94080 City of South San Francisco - Citizen Participation Plan Page 3 of 12 INTRODUCTION ........................................................................................................... 43 Overview of the Consolidated Plan Process .......................................................... 43 The Program Year .................................................................................................. 43 PUBLIC ACCESS TO INFORMATION ......................................................................... 43 I. Public Notice ........................................................................................................... 43 Items Covered by the Public Notice Requirement: ................................................. 54 Forms of Public Notice ........................................................................................... 54 Adequate Public Notice .......................................................................................... 54 II. Standard Documents ............................................................................................. 54 Availability of Standard Documents ........................................................................ 65 Places Where Standard Documents Are Available ................................................ 65 III. Public Hearings ..................................................................................................... 65 Content .................................................................................................................. 65 Access ................................................................................................................... 65 Populations with Unique Needs ............................................................................. 65 THE ANNUAL ACTION PLAN AND/OR FIVE-YEAR CONSOLIDATED PLAN .......... 76 I. Community Needs Assessment .............................................................................. 76 II. The Proposed Annual Action Plan and/or Five-Plan Consolidated Plan ................ 76 Displacement Policy ............................................................................................... 76 Technical Assistance ............................................................................................. 86 Availability of a Proposed Annual Action Plan and/or Five-Plan Consolidated Plan ............................................................................................................................... 86 Public Hearing and Further Action ......................................................................... 87 III. The Adopted Plan ................................................................................................. 97 IV. Amendments to the Plan ...................................................................................... 97 Substantial Amendments ....................................................................................... 98 Public Notice and Public Hearing for Substantial Amendments ............................. 98 THE CONSOLIDATED ANNUAL PERFORMANCE AND EVALUATION REPORT .. 108 Public Notice and Public Hearing for the CAPER ................................................. 109 ADMINISTRATION OF THE CITIZEN PARTICIPATION PLAN ................................. 109 I. Record-Keeping Protocol ...................................................................................... 109 Public Access to Information ................................................................................ 119 Requests for Assistance .................................................................................... 1110 II. Criteria for Amendment ...................................................................................... 1210 COMPLAINTS PROCEDURES ................................................................................ 1211 City of South San Francisco - Citizen Participation Plan Page 4 of 12 INTRODUCTION Pursuant to 24 CFR part 91.105, the Citizen Participation Plan (CPP) of South San Francisco will encourage citizen participation, particularly residents of predominantly low and moderate income neighborhoods1, in the development of the City’s Five-Year Consolidated Plan2 and/or Annual Action Plan3, substantial amendments to these plans, and the Consolidated Annual Performance and Evaluation Report (CAPER). Overview of the Consolidated Plan Process The policies and procedures in this Citizen Participation Plan relate to the following activities:  Identification of housing and community development needs.  Preparation of a proposed new Five-Year Consolidated Plan or the preparation of a proposed Annual Action Plan.  Formal approval by elected officials of a final Annual Action Plan or Five-Year Consolidated Plan.  On occasion during the year, it might be necessary to change the use of the funds already budgeted in an Annual Action Plan, or to change the priorities established in the Five-Year Consolidated Plan. In that case, a formal Substantial Amendment will be proposed, considered, and acted upon.  After a "program year" is complete a Consolidated Annual Performance and Evaluation Report (CAPER) must be drafted for public review and comment and then formally submitted to the Department of Housing and Urban Development (HUD). The Program Year The program year is from July 1st through June 30th. PUBLIC ACCESS TO INFORMATION I. Public Notice There shall be advanced public notice of all public hearings and all public meetings, such as City Council Meetings, relating to the activities covered by this Citizen Participation Plan. 1 Neighborhoods where the majority of the households have an annual income of up to 80 percent of Area Median Income (AMI), as defined by the U.S. Department of Housing and Urban Development 2 The Five-Year Consolidated Plan provides a five year strategy for use of available resources to meet identified needs and describes the actions, programs, objectives and projects to be undertaken during the five year period 3 The Annual Action Plan is prepared annually and describes the activities the City will undertake during the upcoming program year City of South San Francisco - Citizen Participation Plan Page 5 of 12 Items Covered by the Public Notice Requirement:  Proposed Annual Action Plan and/or Five-Year Consolidated Plan  Any proposed Substantial Amendment to the Annual Action Plan or Five-Year Consolidated Plan  The Consolidated Annual Performance and Evaluation Report (CAPER)  Amendments to the Citizen Participation Plan Forms of Public Notice  Public notices will be published in the San Mateo County Times, a newspaper of general circulation.  Notice will also be given to agencies providing services to lower income people.  Notice will be sent to any person or organization requesting to be on an email list. Adequate Public Notice Adequate advance notice is "timely"; it is given with enough lead-time for the public to take informed action. The amount of lead-time can vary, depending on the event. II. Standard Documents Standard documents include:  Proposed and adopted Five-Year Consolidated Plan  Proposed and adopted Annual Action Plans  Proposed and adopted Substantial Amendments to a Five-Year Consolidated Plan or Annual Action Plan  Consolidated Annual Performance and Evaluation Report (CAPER)  Citizen Participation Plan. TIMING ANNUAL PLAN/ CONSOLIDATED PLAN CAPER SUBSTANTIAL AMENDMENTS CITIZEN PARTICIPATION Assessment of Fair Housing (AFH) Report Public Comment Period/ Notice of Availability 30 days 15 days 30 days 15 days 30 days Number of Required Hearings 1 1 1 1 1 Needs Assessment Required Yes – Notice 10 days prior to Needs Assessment No No No Date Required to send to HUD May 15th or 45 days before the beginning of the next program fiscal year September 30th or 90 days after the end of the program fiscal year City of South San Francisco - Citizen Participation Plan Page 6 of 12 Availability of Standard Documents In order to encourage public participation a reasonable number of copies of standard documents will be provided to the public at no cost and within two working days of a request. These materials will also be available in a form accessible to persons with disabilities when requested. Places Where Standard Documents Are Available Standard documents will also be available at all City libraries as well as the Department of Economic and Community Development - 400 Grand Avenue, South San Francisco, CA and the City’s website. Staff will provide a written statement that notes when and where standard documents were delivered. III. Public Hearings Public hearings are required by law in order to obtain the public’s views and to provide the public with the City's responses to public questions and proposals. The law requires a public hearing to review the City’s Five-Year Consolidated Plan and/or Annual Action Plan and a public hearing to review the Consolidated Annual Performance and Evaluation Report (CAPER). Content The topics of discussion at public hearings include, but are not limited to: project goals and objectives, the total amount of funding available, community development and housing needs, proposed project activities and amount of funding requested for each project, proposed amount of funding for projects affecting low and moderate income neighborhoods, and whether or not any displacement is expected to occur. Access Public hearings will be held only after there has been adequate notice as described in the Public Notice part of this Citizen Participation Plan. Public hearings will be held at 7:00 p.m. or other times convenient to most people who might benefit from the use of funds. Public hearings will be held at the City Council Chambers or at places accessible by public transportation. Populations with Unique Needs All public hearings will be held at locations accessible to people with disabilities. Provisions will also be made for disabled or non-English speaking residents when requests are made at least five working days prior to a hearing. All published public hearing notices will state that accommodations are available for disabled and non-English speaking residents and will contain the following written in Spanish: notice title, public hearing date, time and location, and notification of translation services. City of South San Francisco - Citizen Participation Plan Page 7 of 12 THE ANNUAL ACTION PLAN AND/OR FIVE-YEAR CONSOLIDATED PLAN The laws providing funds, described by this Citizen Participation Plan, call for improved accountability. In compliance with the terms of the law, South San Francisco will use the following procedures. I. Community Needs Assessment Due to the extensive and diverse housing and community development needs of low and moderate income people, priorities must be set in order to decide which needs should receive more attention. The laws and regulations require a Community Needs Assessment to obtain residents’ opinions about needs and the priority of needs within the community. A Needs Assessment Meeting will occur before a draft of the Annual Action Plan or Five-Year Consolidated Plan is published for comment so that the needs identified can be considered by the City and addressed in the draft Annual Action and/or Five-Year Consolidated Plan. The public should be notified 10 days prior to a Needs Assessment Meeting. Assessment of Fair Housing The Assessment of Fair Housing (AFH) is a plan that analizesanalyses local fair housing issues and sets fair housing goals and priorities. It is prepared prior to the preparation of the Consolidated Plan. During the development of its AFH, The City will solicit feedback from the community and address complaints. In order to do this, the City will make relevant documents, HUD‐provided data, and analysis of any other pertinent data available to the public. The City will consult with agencies and organization identified during the AFH process During the process of development of the AFH the City will hold at least one publicly noticed public hearing to solicit input from community members, organizations, andorganizations, and other interested parties. Upon posting of the proposed AFH, the City will allow a public comment period for at least 30 days. II. The Proposed Annual Action Plan and/or Five-Plan Consolidated Plan In the proposed Annual Action Plan and/or Five-Plan Consolidated Plan, the City will provide the public with an estimate of the amount of CDBG funds it expects to receive (including grant and anticipated program income) in the upcoming year, along with a description of the types of activities that can be funded with these resources. Also, the public will be given an estimate of the amount funds that will be used in ways that will benefit low and moderate-income people. Displacement Policy The goal of the City is to minimize the extent to which low and moderate income people will be displaced as a result of the use of CDBG funds. This anti-displacement policy requires the plan to describe how South San Francisco will assist people who may be displaced as a result of the use of these funds, specifying the type and level of assistance. City of South San Francisco - Citizen Participation Plan Page 8 of 12 Technical Assistance City staff will work with organizations and individuals representative of low and moderate-income people who are interested in submitting a proposal to obtain funding for an activity. Outreach and public notices to non-profits will take place in the form of email updates. All potential applicants for funding are encouraged to contact City staff for technical assistance before completing a proposal form. Staff can provide information on plans and details of a project, help applicants understand whether their projects are eligible and the amount of funding available for their type of activity. Availability of a Proposed Annual Action Plan and/or Five-Plan Consolidated Plan There must be reasonable notice of the proposed Annual Action Plan and/or Five-Year Consolidated Plan so that residents will have an opportunity to review it and comment on it. Notice will be made according to the procedures described earlier in this Citizen Participation Plan, with the addition of the following procedures specifically for Annual Action Plan and/or Five-Year Consolidated Plan:  There will be 30 days advance notice and availability of a proposed Annual Action Plan and/or Five-Year Consolidated Plan before there is a public hearing about it.  A summary of the Proposed Annual Action Plan and/or Five-Year Consolidated Plan will be written and be published the San Mateo County Times. At a minimum this summary will include: a description of the contents and purpose of the Action Plan and/or Five-Year Consolidated Plan and a list of the locations where copies of the entire Proposed Action Plan and/or Five-Year Consolidated Plan may be examined.  A reasonable number of copies of the Proposed Annual Action Plan and/or Five- Year Consolidated Plan will be made available to the public at no cost within two working days of a request. Also, copies will be available at the locations indicated earlier in this Citizen Participation Plan under Public Access to Information.  In order for low and moderate income people to determine the degree that they might be affected, the Proposed Annual Action Plan and/or Five-Year Consolidated Plan will be complete and contain: all HUD-required sections, the HUD-required Priorities Table and, a written description of all proposed uses of CDBG, funds. At a minimum, this description shall include the type of activity and the amount of federal money to be allocated to it. Public Hearing and Further Action A public hearing about the Proposed Annual Action Plan and/or Five-Year Consolidated Plan will be conducted by the Mayor and City Council 30 days after it is available to the public. In preparing an Annual Action Plan and/or Five-Year Consolidated Plan for submission to HUD, careful consideration will be given to all comments and views expressed by the public, whether given as verbal testimony at the public hearing or City of South San Francisco - Citizen Participation Plan Page 9 of 12 submitted in writing. The Annual Action Plan and/or Five-Year Consolidated Plan submitted to HUD will have a section that presents all comments, plus explanations why any comments were not accepted. III. The Adopted Plan The final Adopted Annual Action Plan and/or Five-Year Consolidated Plan will be made available to the public and will include the community development objectives, projected use of funds, and the community development activities. Copies of the Adopted Annual Action Plan and/or Five-Year Consolidated Plan will be available at the locations specified in Public Access to Information section. IV. Amendments to the Plan The Annual Action Plan and/or Five-Year Consolidated Plan must be amended anytime there is a change of CDBG funding of more than $50,000 from one eligible activity to another or to fund a new activity not previously identified in the Annual Action Plan or Consolidated Plan. The public will be notified whenever there is a substantial amendment. Substantial Amendments The following will be considered "substantial" amendments:  To make a change in its allocation priorities or a change in the method of distribution of funds;  To change the purpose, scope, location, or beneficiaries of an activity. Public Notice and Public Hearing for Substantial Amendments There must be reasonable notice of a proposed Substantial Amendment so that residents will have an opportunity to review it and comment on it. Notice will be made according to the procedures described earlier in this Citizen Participation Plan, with the addition of the following procedures specifically for Substantial Amendments:  There will be 30 days advance notice of and availability of a proposed Substantial Amendment before there is a public hearing about it.  A detailed written description of the proposed Substantial Amendment will be made available to the public at no cost within two working days of a request. Also, copies will be available at the locations indicated earlier in this Citizen Participation Plan under Public Access to Information.  There will be a public hearing regarding the proposed Substantial Amendment conducted by the Mayor and City Council. This public hearing will not take place until the public has had 30 days to review the proposed Substantial Amendment. In preparing a Substantial Amendment for submission to HUD, careful consideration will be given to all comments and views expressed by the public, whether given as verbal testimony at the public hearing or submitted in writing. The Substantial Amendment City of South San Francisco - Citizen Participation Plan Page 10 of 12 submitted to HUD will have a section that presents all comments, plus explanations why any comments were not accepted. THE CONSOLIDATED ANNUAL PERFORMANCE AND EVALUATION REPORT Every year, South San Francisco must submit to HUD a Consolidated Annual Performance and Evaluation Report (CAPER) within 90 days of the close of the program year. In general, the CAPER must include a description of the use of funds, an assessment of the relationship of that use to the priorities and specific objectives identified in the Annual Action Plan, the number of extremely low, low, and moderate income persons served (including racial and ethnic status) by each activity where information on income by family size is required to determine eligibility of the activity and actions take to affirmatively further fair housing. Public Notice and Public Hearing for the CAPER There must be reasonable notice that a CAPER is available so that residents will have an opportunity to review it and comment on it. Notice will be made according to the procedures described earlier in this Citizen Participation Plan, with the addition of the following procedures specifically for a CAPER:  There will be 15 days advance notice of and availability of a CAPER before there is a public hearing about it.  A reasonable number of copies of the CAPER will be made available to the public at no cost within two working days of a request. Also, copies will be available at the locations indicated earlier in this Citizen Participation Plan under Public Access to Information.  There will be one public hearing regarding the CAPER.  This public hearing will be conducted by the Mayor and City Council, in the interest of public accountability. It will not take place until the public has had 15 days to review the CAPER. In preparing a CAPER for submission to HUD, careful consideration will be given to all comments and views expressed by the public, whether given as verbal testimony at the public hearing or submitted in writing. The CAPER submitted to HUD will have a section that presents all comments, plus explanations why any comments were not accepted. ADMINISTRATION OF THE CITIZEN PARTICIPATION PLAN The Citizen Participation Plan is a required component of the Annual Action Plan and/or Five-Year Consolidated Plan and therefore is subject to public review and comment. I. Record-Keeping Protocol All standard documents must be published and recorded in accordance with this Citizen Participation Plan. The City of South San Francisco will also maintain an up-to-date City of South San Francisco - Citizen Participation Plan Page 11 of 12 record of all citizen participation related activities. This Citizen Participation Record will contain the following items: Public Access to Information  A record of when the Citizen Participation Plan was adopted and/or is amended.  Records of all public notices announcing the availability of the following documents for public comment: o Annual Action and/or Five Year Consolidated Plan o Consolidated Annual Performance and Evaluation Report (CAPER) o Substantial Amendments made to either the Annual Action or Five Year Consolidated Plan o Citizen Participation Plan  Records of the delivery of the Annual Action and/or Five Year Consolidated Plan, Substantial Amendments to the Annual Action and/or Five Year Consolidated Plan, CAPER or Citizen Participation Plan to all City libraries and the Department of Economic and Community Development. Staff will provide a written statement noting when and where the documents were delivered  Records of online accessibility of the Annual Action and/or Five Year Consolidated Plan, Substantial Amendments to the Annual Action and/or Five Year Consolidated Plan, CAPER or Citizen Participation Plan. A screen shot of the City’s website which includes a link is acceptable  Records of any public comments made about the Annual Action and/or Five Year Consolidated Plan, Substantial Amendments to the Annual Action and/or Five Year Consolidated Plan, CAPER or Citizen Participation Plan. If no public comments were received, Staff should include a record stating that no public comment was received.  Records of all meeting minutes where the meeting was convened to consider the Annual Action and/or Five Year Consolidated Plan, Substantial Amendments to the Annual Action and/or Five Year Consolidated Plan, CAPER or Citizen Participation Plan. Requests for Assistance  A record of all requests/and or provisions for translation services at public meetings  A record of any special accommodations made for disabled citizens to attend public meetings City of South San Francisco - Citizen Participation Plan Page 12 of 12  A record of requests and/or provisions of technical assistance by low to moderate income groups. II. Criteria for Amendment To revise the CPP, a draft version of the revised CPP will be prepared by City staff and made available for the fifteen-day public review period. A notice for the public review period will be published in a newspaper of general circulation. A copy of the draft version of the revised CPP will be made available at the Department of Economic and Community Development and all City libraries during the public review period. A reasonable number of free copies of the draft version of the revised CPP will be provided to residents and groups upon request. Following the public comment period, a public hearing will be on held on the draft. The City Council shall consider any comments or complaints received in writing or at the public hearings. COMPLAINTS PROCEDURES Written complaints from the public will receive a meaningful, written reply within 15 working days. Complaints can be mailed to: Department of Economic and Community Development 400 Grand Avenue South San Francisco, CA 94080 FY 2 0 1 5 - 2 0 1 6 Co n s o l i d a t e d A n n u a l P e r f o r m a n c e a n d Ev a l u a t i o n R e p o r t (C A P E R ) , As s e s s m e n t o f F a i r H o u s i n g ( A F H ) , & Ci t i z e n P a r t i c i p a t i o n P l a n ( C P P ) Se p t e m b e r 6 , 2 0 1 6 Ci t y C o u n c i l M e e t i n g At t a c h m e n t 3 Co n s o l i d a t e d A n n u a l P e r f o r m a n c e an d E v a l u a t i o n R e p o r t ( C A P E R ) Ex p e n d e d 18 % 9% 11 % 62 % CD B G $ 7 3 0 , 6 2 9 Ad m i n i s t r a t i v e $1 3 1 , 6 3 6 Ho u s i n g R e h a b Pr o g r a m s $ 6 4 , 3 9 0 Pu b l i c S e r v i c e s $8 2 , 9 7 1 Pu b l i c Im p r o v e m e n t s $4 5 1 , 0 6 6 HO M E F u n d i n g $ 1 1 ,43 7 80 1 In d i v i d u a l s S e r v e d Th r o u g h C D B G a n d H O M E Pr o g r a m s Ov e r v i e w Pu b l i c S e r v i c e s Or g a n i z a t i o n s I n d i v i d u a l s Served 5 118 47 91 101 51 12 336 14 775 26 To t a l 801 CD B G Fu n d s Ho m e Ad m i n Fu n d s HI P Ho m e Sh a r i n g Pr o g r a m Sa m a r i t a n Ho u s e Sa f e Ha r b o r St a r Vi s t a Tr a n s i t i o n a l Ho u s i n g Pr o j e c t Se n t i n e l Fa i r Ho u s i n g Se r v i c e s Su b t o t a l C o m m u n i t y Ov e r c o m i n g Re l a t i o n s h i p Ab u s e (C O R A ) He a l t h Mo b i l e De n t a l Ca r e fo r Ch i l d r e n Jo h n Pa p a n Me m o r i a l Jo h n ' s Cl o s e t Le g a l Ai d So c i e t y of Sa n Ma t e o Om b u d s m a n Se r v i c e s of Sa n Ma t e o Ra p e Tr a u m a Se r v i c e s Ho u s i n g R e h a b a n d M i n o r H o m e R e p a i r Ho u s e h o l d s S e r v e d th r o u g h H o u s i n g Re h a b i l i t a t i o n a n d M i n o r Ho m e R e p a i r P r o g r a m s 37 Ho u s i n g R e h a b a n d M i n o r H o m e R e p a i r Pu b l i c I m p r o v e m e n t P r o j e c t s 18 6 A D A R a m p s AD A I m p r o v e m e n t P r o j e c t Pu b l i c I m p r o v e m e n t P r o j e c t s Br e n t w o o d P a r k P l a y g r o u n d Af f o r d a b l e F a i r H o u s i n g ( A F H ) a n d Ci t i z e n P a r t i c i p a t i o n P l a n ( C P P ) Af f o r d a b l e F a i r H o u s i n g ( A F H ) S t u d y  Re q u i r e d p r i o r t o p r e p a r a t i o n o f t h e 5 - y e a r P l a n  Co l l a b o r a t i o n w i t h C o u n t y & o t h e r c i t i e s  In c l u d e s :  an a l y s i s o f f a i r h o u s i n g d a t a ,  as s e s s m e n t o f f a i r h o u s i n g i s s u e s & f a c t o r s , a n d  id e n t i f i c a t i o n o f f a i r h o u s i n g p r i o r i t i e s a n d g o a l s  Av a i l a b l e s i n c e A u g u s t 1 o n C o u n t y W e b s i t e  An y c o m m e n t s r e c e i v e d d u r i n g t h e c o m m e n t p e r i o d o r a t th e p u b l i c h e a r i n g w i l l b e i n c o r p o r a t e d i n t o t h e F i n a l A F H Ci t i z e n P a r t i c i p a t i o n P l a n ( C P P )  Up d a t e d t o i n c o r p o r a t e t h e p u b l i c o u t r e a c h , pa r t i c i p a t i o n a n d n o t i c i n g p r o c e s s f o r o f t h e A F H  HU D r e q u i r e s a p u b l i c r e v i e w c o m m e n t p e r i o d pr i o r t o m a k i n g r e v i s i o n s t o t h e C P P Re c o m m e n d a t i o n • He a r p u b l i c c o m m e n t s o n t h e F Y 2 0 1 6 - 2 0 1 7 CA P E R , C P P , a n d A F H f o r t h e C D B G P r o g r a m • Ad o p t a r e s o l u t i o n a p p r o v i n g a r e v i s e d C P P a n d th e F Y 2 0 1 6 - 2 0 1 7 C A P E R a n d a u t h o r i z i n g i t s su b m i t t a l t o H U D . City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-785 Agenda Date:9/6/2017 Version:1 Item #:4a. Resolution approving the 2016-2017 Consolidated Annual Performance and Evaluation Report and the Citizen Participation Plan for the Community Development Block Grant Program,and authorizing its submittal to the U.S. Department of Housing and Urban Development. WHEREAS,the U.S.Department of Housing and Urban Development (“HUD”)requires communities receiving Community Development Block Grant (“CDBG”)funds to submit a year-end Consolidated Annual Performance and Evaluation Report (“CAPER”); and WHEREAS,the Citizen Participation Plan (“CPP”)is required by the CDBG Program regulations at 24 CFR part 91.105; and WHEREAS,the CAPER has been available for public review in the Economic and Community Development Department,the City’s public libraries,and on the City’s website since August 23,2017 and a notice of public hearing was published in the San Mateo County Times on August 23, 2017; and WHEREAS,in fiscal year 2016-2017 the City expended a total of $730,629 in CDBG funding and $11,437 in HOME administrative funding received from the San Mateo County HOME Consortium to carry out a broad range of community development activities; and WHEREAS, staff recommends adopting the revised CPP; and WHEREAS,the revised CPP clearly incorporates all federal regulations,encourages citizen participation,and provides greater flexibility in reallocating unspent funds and program income while ensuring funds are expended in a timely manner; and WHEREAS,pursuant to the current CPP amendment requirements,the revised CPP was made available for a 15-day public comment period from August 23,2017 to September 6,2017 and a public notice announcing the availability of the revised Citizen Participation Plan was published in the San Mateo County Times on August 23, 2017; and WHEREAS,on September 6,2017,the City held a duly noticed public hearing on the 2016-2017 CAPER and CPP for the CDBG Program. NOW THEREFORE IT BE RESOLVED that the City Council of the City of South San Francisco does hereby resolve as follows: 1.Approves the 2016-2017 CAPER; 2.Adopts the revised CPP; and City of South San Francisco Printed on 9/10/2017Page 1 of 2 powered by Legistar™ File #:17-785 Agenda Date:9/6/2017 Version:1 Item #:4a. 3.Authorizes the City staff to submit the CAPER to the U.S.Department of Housing and Urban Development, and to take any other actions as necessary to carry out the intent of this resolution. ***** City of South San Francisco Printed on 9/10/2017Page 2 of 2 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-540 Agenda Date:9/6/2017 Version:1 Item #:5. Report regarding a Development Agreement,Purchase and Sale Agreement,and Affordable Housing Agreement with ROEM Development Corporation for the disposition and development of City-owned parcel at 418 Linden Avenue (APN 012-314-010),and 201-219 Grand Avenue (APNs 012-316-110,012-316-100,012- 316-090 and 012-316-080),for $1,700,000 collectively,and approving Budget Amendment 18.003.(Julie Barnard, Economic Development Coordinator) RECOMMENDATION Staff recommends that the City Council take the following actions: 1.Introduce an Ordinance approving a Development Agreement between ROEM Development Corporation and the City of South San Francisco for the development of the properties located at 418 Linden Avenue and 201-219 Grand Avenue, and waive further reading, and 2.Adopt a resolution approving a Purchase and Sale Agreement and Affordable Housing Agreement between the City of South San Francisco and ROEM Development Corporation for the sale the City-owned parcels at 418 Linden Avenue,and 201-219 Grand Avenue,and authorizing the City Manager to execute the Agreements. BACKGROUND In December 2015,the City approved the Grand and Linden Project,which includes the two following downtown properties: •201-219 Grand Avenue (Successor Agency-owned properties),which is entitled for a mixed-use project with 46 housing units, ground floor commercial, a leasing office and a resident lounge; and •418 Linden (City-owned site),which is entitled for residential use only project with 38 residential units, with some flexibility to allow for live/work spaces. At the time of approval,the City Council (Council)and Successor Agency (Agency)approved a Disposition and Development Agreement (DDA)with Brookwood Equities,LLC.In the ensuing months,Brookwood was unable to advance the project,and as a result the City Council and Successor Agency terminated the DDA. According to the terms of the DDA,after termination,the City retained the project entitlements,which allowed the City to solicit a new developer with the entitled development.Staff conducted an extensive Request for Proposals (RFP)process,and selected a developer,ROEM Development Corporation (ROEM).On January 23, 2017, the Oversight Board approved the Agency’s recommendation for ROEM for the 201 Grand site. Exclusive Negotiating Rights Agreement (ENRA) Following the selection of ROEM,staff and the Developer negotiated an ENRA.The purpose of the ENRA was to establish procedures and standards for the negotiation between the City and ROEM in order to reach a Purchase and Sale Agreement (PSA). Key business points that are contained in the ENRA include the following. •A sale price of $1,000,000 for 418 Linden (City owned site) •A sale price of $1,200,000 for 201 Grand (Successor Agency owned site) City of South San Francisco Printed on 8/31/2017Page 1 of 5 powered by Legistar™ File #:17-540 Agenda Date:9/6/2017 Version:1 Item #:5. ·Deposit: $200,000 deposit upon execution of the ENRA ·Term:The ENRA was set initially at 120 days with administrative authority to extend by 90 days at a charge to the developer of $25,000 ·A draft pro-forma as well as proof of project financing, 45 days ahead of the ENRA expiration The original ENRA term expired on August 2,2017.Prior to the ENRA expiration,in order to allow for additional time to negotiate,ROEM exercised its option to extend the ENRA for 90 days.Pursuant to the ENRA,they paid a non-refundable $25,000 fee for that extension.The new ENRA expiration date is October 31, 2017. Subsequent Negotiations On June 21,2017,ROEM informed staff that they had recently received new construction bids that showed that the Project was facing a $5.8 million shortfall.Staff worked with ROEM to identify possible solutions,which resulted in the following key project revisions: 1.Reduction of Linden Land Price: •Reduce the purchase price of the City’s parcel (418 Linden) by $500,000. 2.Injection of Affordable Housing Funds: •The City could contribute up to $3.5 million in City Affordable Housing Funds. •Work with ROEM to seek other non-City funding sources,including funding from HEART of San Mateo, and San Mateo County Measure K funds. 3.Developers Reduction in Return on Cost (ROC): •ROEM agreed to reduce their ROC from 6.0%to 5.75%.The developer did caution that reducing the Project’s ROC may significantly reduce the number of equity funders willing to invest in the Project, but they feel comfortable proceeding with the reduced return. 4.Developer Concessions: •ROEM identified cost reductions,approximately $1 million through measures that do not impact exterior design.These include modest reductions to soft costs,using standard doors to avoid the need to pay for custom doors, etc. 5.Unit Affordability Levels: •An adjustment to the Area Median Income (AMI)of the 17 Below Market Rate (BMR)units would be required in order to meet the Affordable Housing Fund regulations. Development Agreement On August 17,2017,the Planning Commission reviewed the DA at a public hearing.The Planning Commission made a recommendation that the City Council approve DA and adopted a resolution making findings and determining that the properties are in conformity with South San Francisco’s General Plan. Some of the key business points addressed in the DA include the following. •Prevailing Wage: ROEM is required to pay prevailing wage on all construction work on the Project. •Commercial Project:Within 17 months after the start of construction,ROEM will hire a commercial broker to lease the commercial and retail space in 201 Grand.Thereafter,every 30 days the developer will provide a retail leasing progress report that shows the tenants contacted,tenant contact information, and the results of such contact.These good faith efforts to occupy ground floor retail space with restaurants or other active retail tenant will be made.Personal and financial services,offices,medical City of South San Francisco Printed on 8/31/2017Page 2 of 5 powered by Legistar™ File #:17-540 Agenda Date:9/6/2017 Version:1 Item #:5. clinics and other similar uses will not permitted. The developer will offer right of first refusal for the commercial spaces to the prior tenants,Ben Tre and Moms Tofu House. Finally,no residential Certificate of Occupancies will be issued until a LOI or leases have been executed.Should the developer be unsuccessful in securing a tenant,the developer will be required to provide basic warm shell improvements to the ground floor retail space. •Development Schedule:Following the execution of the PSA.DA and AHA,ROEM has committed to the following schedule for the development of the properties. Building permit submittal 4 months after agreement execution Construction Financing Secured 5 months after agreement execution Construction Contract Executed 5 months after agreement execution Building Permit Issuance 6 months after agreement execution Close of Escrow 6 months after agreement execution Construction start 30 days after building permit issuance but no later than 7 months after agreements are executed Construction complete 30 months after agreement execution Purchase and Sale Agreement While working to close the funding shortfall,the developer and City have negotiated several necessary agreements for the conveyance and construction of the development.These include a Purchase and Sale Agreement,Development Agreement (DA)and Affordable Housing Agreement (AHA).Note that the key business points that were included in the aforementioned agreements have been conveyed from the former DDA with Brookwood with some minor adjustments where necessary. Some of the key business points contained in the PSA are as follows. •Purchase Prices: 201 Grand Avenue:$1,200,000 418 Linden Avenue:$500,000 (This includes a write down by the City Council of $500,000 on the purchase price of the City owned parcel, 418 Linden.) •Open of Escrow: Escrow will open when the DA and PSA are executed. •Close of Escrow (COE) will occur upon the occurrence of all of the following: -ROEM has provided proof of equity and debt financing commitments,which include proof of equity and debt, City of South San Francisco Printed on 8/31/2017Page 3 of 5 powered by Legistar™ File #:17-540 Agenda Date:9/6/2017 Version:1 Item #:5. -ROEM has provided the City with a Proforma, -ROEM has obtained all building permits, -ROEM has provided the City with an executed construction contract, and -ROEM has provided the City with a Completion Guaranty. Fiscal Impact and Affordable Housing Agreement The Project’s income and value has been impacted by the inclusion of BMR units,and therefore an offset is needed to make the development economically viable.As mentioned earlier,the City could contribute an injection of available housing funds to assist with the provision for the BMR rental units.A $3,500,000 grant in financial assistance to ROEM is proposed. The terms of the transfer of financing is outlined in the AHA. The funds are available from two City Fund accounts,the affordable housing bonds proceeds,and affordable housing in-lieu fund.These grant funds will be expended as part of the construction of the development.Staff proposes using money from the City Housing Fund (Fund 241 for $2,450,000)and the Affordable Housing Trust Fund (Fund 205 for $1,050,000). Aside from a small amount of funding proposed to subsidize the Rotary development,funding from Fund 241 account has not been appropriated.The City will ultimately be at risk of forfeiting these funds in 2019 if not spent. Funding will not be released to the developer until at Close of Escrow. The total number of BMR units remains unchanged from the originally entitled project,at 17 units.However,in order to meet the regulations associated with the affordable housing funds,a minor adjustment of some of the affordability levels was required. The below reflects the changes to the affordability levels: AMI levels Number of units Number of units Previously approved Amended 0-60% AMI 02 60-80% AMI 1410 80-120% AMI 35 Aside from the terms listed above, no other changes to the terms of the former AHA have been made. Public Benefits of Development Proceeding •Implements Adopted Council Downtown Policies:The project is aligned with,and will implement the Downtown Area Specific Plan.The development will implement the concept of higher density development in proximity to transit,will provide mixed-use for the 201 Grand development,will implement the streetscape improvements of wider pedestrian oriented sidewalks,and will create a new public open space plaza. •Implements Adopted Council Housing Policies:The development will assist the City with implementing its Housing Element policies and its ABAG regional fair share housing goals for a mix of workforce and market rate housing.The new units will provide housing for workers in the City’s commercial areas, which will help create a balance of jobs and housing which is both a local and regional goal. •Promotes Active Ground Floor Retail uses on Grand Avenue:Consistent with the Downtown Specific City of South San Francisco Printed on 8/31/2017Page 4 of 5 powered by Legistar™ File #:17-540 Agenda Date:9/6/2017 Version:1 Item #:5. •Promotes Active Ground Floor Retail uses on Grand Avenue:Consistent with the Downtown Specific Plan, the Grand Cypress project will have active ground floor uses at a key Grand Avenue corner. •Implements Adopted Council Climate Action Plan Policies:To the extent that the City can promote the development of new housing near its commercial job centers,it will allow greater use of alternative transportation modes (walking,biking,transit)that will reduce auto trips and greenhouse gas reduction in conformance with the goals of the City’s Climate Action Plan. •Serves as Catalyst for Community Development Objectives:The development will comprise one of several developments considered to have a catalytic effect for future new private development by demonstrating to the market that downtown investment can be economically successful. •Creates Construction Jobs:The development will pay prevailing wage and will support local labor and construction workers with new construction employment. •Provides New Revenues to the City,County and Schools:The combined value of the developments is estimated at $47 million.This will produce new revenues for all of the taxing entities,the largest of which are the County,the South San Francisco Unified School District (SSFUSD)and the City.The parcels are currently generating no property tax revenue,as they are not on the tax rolls due to public ownership. Next Steps If City Council approves the price and terms of the agreements,final approval of the sale price for 201 Grand will also be needed from the Oversight Board. The next Oversight Board meeting is on September 19, 2017. If approved,the City will execute all agreements and ROEM will proceed immediately with efforts to reach building permit submittal, with construction projected to begin in May-June 2018. CONCLUSION Staff recommends that the City Council: 1.Introduce an ordinance approving a Development Agreement with ROEM Development Corporation and waive further reading, and 2.Adopt a resolution authorizing the City Manager to execute Purchase and Sale Agreement, Development Agreement and Affordable Housing Agreement between the City of South San Francisco and ROEM Development Corporation for the sale of the City-owned parcels at 418 Linden Avenue,and 201-219 Grand Avenue;and approving Budget Amendment 18.003,providing ROEM Development with $3,500,000 in grant funding ($1,050,000 from Fund 205 and $2,450,000 from Fund 241)for the provision of BMR rental units. City of South San Francisco Printed on 8/31/2017Page 5 of 5 powered by Legistar™ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-891 Agenda Date:9/6/2017 Version:1 Item #:5a. Ordinance approving a Development Agreement between ROEM Development Corporation and the City of South San Francisco for the development of the properties located at 418 Linden Avenue and 201-219 Grand Avenue WHEREAS, the City of South San Francisco (“City”) is the owner of certain real property located in the City of South San Francisco, California, known as County Assessor’s Parcel Number 012-314-010 (“418 Linden Avenue”); and, WHEREAS, the City is also the owner of former Redevelopment Agency property located in the City of South San Francisco, California, known as County Assessor’s Parcel Number 012-316-110 (201 Grand Avenue), 012- 316-100 (207 Grand Avenue), 012-316-090 and 012-316-080 (217-219 Grand Avenue) (collectively, the “201 Grand Avenue”); and, WHEREAS, in December 2015 the City approved entitlements for a residential project at 418 Linden Avenue and a mixed-use project at 201 Grand Avenue (“Project”); and, WHEREAS, in December 2016 the City and Agency selected a developer, ROEM Development Corporation (“Developer”), to develop the 418 Linden Avenue and 201 Grand Avenue Projects; and, WHEREAS, Developer seeks to purchase the property from the City, and seeks approval of a Development Agreement; and, WHEREAS, the City Council certified an Environmental Impact Report (“EIR”) on January 28, 2015 (State Clearinghouse number 2013102001) in accordance with the provisions of CEQA and CEQA Guidelines, which analyzed the potential environmental impacts of the development of the Downtown Station Area Specific Plan; and, WHEREAS, the 418 Linden Avenue and 201 Grand Avenue Projects are both within the Downtown Station Area Specific Plan (“DSASP”) area and were found to be within the parameters analyzed within the DSASP EIR; and, WHEREAS, the Project will not result in any new significant environmental effects or a substantial increase in the severity of any previously identified effects beyond those disclosed and analyzed in the DSASP EIR, and wound not constitute a change in circumstances that would require additional environmental review; and, WHEREAS, the Planning Commission held a properly noticed public hearing on July 6, 2017 to solicit public comment and consider the Development Agreement, take public testimony, and make a recommendation to the City Council on the Development Agreement; and City of South San Francisco Printed on 8/31/2017Page 1 of 3 powered by Legistar™ File #:17-891 Agenda Date:9/6/2017 Version:1 Item #:5a. WHEREAS, on September 6, 2017, the City Council for the City of South San Francisco held a lawfully noticed public hearing to consider the Development Agreement. NOW, THEREFORE, BE IT ORDAINED that based on the entirety of the Record before it, as described below, the City Council of the City of South San Francisco does hereby ORDAIN as follows: SECTION I. FINDINGS. A.General Findings. 1.The foregoing recitals are true and correct and made a part of this Ordinance. 2.The Development Agreement (Exhibit A) and its attachments, is incorporated by reference and made a part of this Ordinance, as if they were each 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 the Chief Planner, Sailesh Mehra. 4.The 418 Linden Avenue and 201 Grand Avenue Projects are consistent with the General Plan by creating a mixed-use environment that emphasizes pedestrian-activity with buildings built up to the property line on Linden Avenue and Grand Avenue, respectively, provide well-articulated and visually engaging development that implements the goals of the Downtown Station Area Specific Plan, are consistent with the City’s Design Guidelines as they relate to building design, form and articulation and, in the case of the 201 Grand Avenue project, provide commercial uses along both Grand and Cypress Avenues. B.Development Agreement 1.The Developer and City have negotiated a Development Agreement pursuant to Government Code section 65864 et seq. The Development Agreement, attached hereto as Exhibit A, sets for the duration, property, project criteria, and other required information identified in Government Code section 65865.2. Based on the findings in support of the Project, the City Council finds that the Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the South San Francisco General Plan and any applicable zoning regulations. 2.The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for the land use district in which the real property is located. The subject site is suitable for the type and intensity of the land use being proposed. The General Plan specifically contemplates the proposed type of project and the suitability of the site for development was analyzed thoroughly in the environmental document prepared for the Project. 3.The Development Agreement is in conformity with public convenience, general welfare and good land use practice. 4.The Development Agreement will not be detrimental to the health, safety and general welfare. City of South San Francisco Printed on 8/31/2017Page 2 of 3 powered by Legistar™ File #:17-891 Agenda Date:9/6/2017 Version:1 Item #:5a. 5.The Development Agreement will not adversely affect the orderly development of property or the preservation of property values. SECTION II. DEVELOPMENT AGREEMENT. The City Council of the City of South San Francisco hereby: 1.Approves the Development Agreement between ROEM Development Corporation and the City of South San Francisco for the development of the properties located at 418 Linden Avenue and 201-219 Grand Avenue, attached hereto as Exhibit A and incorporated herein. 2.Authorizes the City Manager to enter into and execute the Development Agreement on behalf of the City Council in substantially the same form as attached hereto as Exhibit A; to make any revisions, amendments, or modifications, subject to the approval of the City Attorney, deemed necessary to carry out the intent of this Ordinance and which do not materially alter or increase the City’s obligations thereunder. SECTION III. 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 IV. 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 Councilmembers voting for and against this Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and after its adoption. City of South San Francisco Printed on 8/31/2017Page 3 of 3 powered by Legistar™ 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) This instrument is exempt from recording fees pursuant to Government Code section 27383. Documentary Transfer Tax is $0.00 (exempt per Revenue & Taxation Code section 11922, Transfer to Municipality). DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF SOUTH SAN FRANCISCO AND ROEM DEVELOPMENT CORPORATION GRAND AND LINDEN PROJECT SOUTH SAN FRANCISCO, CALIFORNIA DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (“Agreement”) is entered into as of _______________, 2017 by and between ROEM Development Corp, a California corporation (“Developer”), and the City of South San Francisco (“City”), pursuant to California Government Code (“Government Code”) sections 65864 et seq. ROEM Development Corp and the City are sometimes collectively referred to herein as “Parties.” RECITALS 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 sections 65864 et seq. (the “Development Agreements Statute”), which authorizes the City to enter into an agreement with any person having a legal or equitable interest in real property for the development of such property. B. Pursuant to Government Code section 65864, City has adopted procedures and requirements for the consideration of development agreements (South San Francisco Municipal Code (“SSFMC”) Chapter 19.60). This Agreement has been processed, considered, and executed in accordance with such procedures and requirements. C. The purpose of this Agreement is to provide for the development of a high-density, mixed use project including residential units and ground floor commercial units located on the real property commonly known as 201-219 Grand Avenue, with Assessor’s Parcel Numbers: 012-316- 110, 012-316-100, 012-316-090 and 012-316-080 (the “Grand Project Site”), as more particularly described on Exhibit A attached hereto; and, a high-density residential project located on the real property commonly known as 418 Linden Avenue, with Assessor’s Parcel Number 012-314-010 (the “Linden Project Site”), as more particularly described on Exhibit B attached hereto. D. Concurrently with the approval of this Agreement, Developer shall enter into a Purchase and Sale Agreement and Joint Escrow Instructions between South San Francisco Successor Agency, as Seller, and Developer, as Buyer, whereby Developer shall have the right, upon satisfaction of certain terms and conditions contained therein, to acquire a fee title interest in the Grand Project Site (the “Grand PSA”); and, a Purchase and Sale Agreement and Joint Escrow Instructions between the City, as Seller, and Developer, as Buyer whereby Developer shall have the right, upon satisfaction of certain terms and conditions contained therein, to acquire a fee title interest in the Linden Project Site (the “Linden PSA”). The Grand Project Site and the Linden Project Site are collectively referred to herein as the “Project Site” or the “Properties”. E. As set forth herein, upon Developer’s acquisition of the Properties, Developer shall re-develop the Grand Project Site into a high-density, mixed-use project including 46 residential units, nine (9) of which are required to be below market rate (“BMR”) units with the following affordability levels: three (3) units affordable to households earning 80-120% of the Area Median Income (AMI), five (5) units affordable to housing holds earning 60%-80% AMI, and one (1) unit affordable to households earning up to 60% AMI, and ground floor retail (the “Grand Project”); and, Developer shall re-develop the Linden Project Site into a high-density, residential use only 2 project, with some flexibility for live/work spaces, including 38 residential units, eight (8) of which are required to be BMR units with the following levels of affordability: two (2) units affordable to households earning 80-120% AMI, five (5) units affordable to households earning 60-80% AMI, and one (1) unit affordable to households earning up to 60% AMI (the “Linden Project”). The Grand Project and the Linden Project are collectively referred to herein as the “Project” or the “Projects”. F. Both Projects are fully entitled, and have obtained planning approval from the Design Review Board, Planning Commission, Successor Agency and City Council as well as the Oversight Board. The approved and in effect Grand Project entitlements include Planning Project: P15-0017; Use Permit UP15-0003; Design Review DR15-0016; and Parking Exception PE15- 0001. The approved and in effect Linden Project entitlements include Planning Project P15-0016; Use Permit UP15-0002; Design Review DR15-0015; and Parking Exception PE15-0002. Because the City provided substantial financial support of the pre-development entitlement costs of these Projects, the source of City funds triggers the affordable housing mandates of the Projects set forth in this Agreement. The entitlements listed in this Recital F and all Conditions of Approval and Mitigation Measures imposed on the entitlements are collectively referred to herein as the “Project Approvals.” The Project Approvals are described in Exhibit B attached hereto. G. 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 needed residential development consistent with the Downtown Station Area Specific Plan; (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. H. 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 in section 6.3 below), and therefore desires to enter into this Agreement. I. On _________, following a duly noticed public hearing, the Planning Commission adopted Resolution No. ____________ recommending that the City Council approve this Agreement. J. With the Planning Commission’s recommendation set forth in its Resolution No. _______________ , 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. 3 AGREEMENT NOW, THEREFORE, the Parties, pursuant to the authority contained in Government Code sections 65864 through 65869.5 and Chapter 19.60 of the South San Francisco Municipal Code and in consideration of the mutual covenants and agreements contained herein, agree as follows: ARTICLE 1 DEFINITIONS 1.1 “Administrative Project Amendment” shall have that meaning set forth in Section 7.1 of this Agreement. 1.2 “Administrative Agreement Amendment” shall have that meaning set forth in Section 7.2 (a) of this Agreement. 1.3 “Affiliate of Developer” shall have that meaning set forth in Section 8.1 of this Agreement. 1.4 “Agreement” shall mean this Development Agreement. 1.5 “Applicable Law” shall have that meaning set forth in Section 6.3 of this Agreement. 1.6 “CEQA” shall have that meaning set forth in Section 3.3 of this Agreement. 1.7 “City” shall mean the City of South San Francisco. 1.8 “City Law” shall have that meaning set forth in Section 6.5 of this Agreement. 1.9 “Claims” shall have that meaning set forth in Section 6.10 of this Agreement. 1.10 “Control” shall have that meaning set forth in Section 8.1 of this Agreement. 1.11 “Controlled” shall have that meaning set forth in Section 8.1 of this Agreement. 1.12 “Controlling” shall have that meaning set forth in Section 8.1 of this Agreement. 1.13 “Deficiencies” shall have that meaning set forth in Section 9.2 of this Agreement. 1.14 “Developer” shall mean ROEM Development Corporation, a California corporation or its assignee. 1.15 “Development Agreements Statute” shall have that meaning set forth in Recital A of this Agreement. 1.16 “Development Fees” shall have that meaning set forth in Section 3.2 of this Agreement. 1.17 “DSASP” shall have that meaning set forth in Section 3.1 of this Agreement. 4 1.18 “Effective Date” shall have that meaning set forth in Section 2.1 of this Agreement. 1.19 “EIR” shall have that meaning set forth in Section 3.1. 1.20 “Force Majeure Delay” shall have that meaning set forth in Section 10.3 1.21 “Grand PSA” is defined as the “Purchase and Sale Agreement and Joint Escrow Instructions between the City of South San Francisco and ROEM Development Corp. dated __________, relating to the Grand Project Site and approved pursuant to South San Francisco Oversight Board Resolution No. ______. 1.22 “GDP” shall have that meaning set forth in Section 10.3 1.23 “Indemnitees” shall have that meaning set forth in Section 6.10 of this Agreement. 1.24 “Judgment” shall have that meaning set forth in Section 9.2 of this Agreement. 1.25 “Linden PSA” is defined as the “Purchase and Sale Agreement and Joint Escrow Instructions between the City of South San Francisco and ROEM Development Corp. dated _________, regarding the Linden Project Site, and approved pursuant to South San Francisco City Council Resolution No. ______. 1.26 “Parties” shall mean the Developer and City, collectively. 1.27 “Periodic Review” shall have that meaning set forth in Section 10.5 of this Agreement. 1.28 “Project” or “Projects” shall have that meaning set forth in Recital E of this Agreement. 1.29 “Project Approvals” shall have that meaning set forth in Recital F of this Agreement. 1.30 “Project Site” shall have that meaning set forth in Recital D of this Agreement. 1.31 “PSA” shall mean the Grand PSA and the Linden PSA, together. 1.32 “Severe Economic Recession” shall have that meaning set forth in Section 10.3 1.33 “SSFMC” shall have the meaning set forth in Recital B of this Agreement. 1.34 “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, for example, the parties contemplate that Developer may, at its election, seek approvals for the following: amendments of the Project Approvals, unless determined not required pursuant to the further provisions of this Agreement: improvement agreements, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of 5 occupancy, subdivision maps, rezonings, development agreements, use permits, sign permits and any amendments to, or repealing of, any of the foregoing. 1.35 “Tax” and “Taxes” shall not include any generally applicable City Business License Tax or locally imposed Sales Tax. 1.36 “Term” shall have that meaning set forth in Section 2.2 of this Agreement. ARTICLE 2 EFFECTIVE DATE AND TERM 2.1 Effective Date. This Agreement shall become effective upon the date when the following have occurred: (i) this Agreement is executed pursuant to the resolution and ordinance described in Recitals I and J, and (ii) the Grand PSA and the Linden PSA are both fully executed and effective (the “Effective Date”). If both PSAs are not executed and effective by December 31, 2017, this Agreement shall terminate and have no further force or effect unless the Developer and City have mutually agreed in writing to extend the date. 2.2 Term. The term of this Agreement (“Term”) shall commence upon the Effective Date and, unless terminated pursuant to this Agreement, shall continue until completion of construction of the Project, as evidenced by a final certificate of occupancy. ARTICLE 3 OBLIGATIONS OF DEVELOPER 3.1 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 applicable mitigation measures identified in the Downtown Station Area Specific Plan (“DSASP”) and Environmental Impact Report (“EIR”). 3.2 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) Developer agrees that Developer shall be responsible for the payment of development fees, charges, exactions, and taxes (“Development Fees”) generally applicable, and specifically applicable to the Project. Further, nothing herein shall be construed to relieve the Property from common benefit assessments levied against it and similarly situated properties by the City pursuant to and in accordance with any statutory procedure for the assessment of property to pay for infrastructure and/or services that benefit the Property. This shall not prohibit City from imposing on Developer any fee or obligation that is imposed by a regional agency in accordance 6 with state or federal obligations and required to be implemented by City. Development Fees shall be due upon issuance of building permits, except as otherwise provided under the Agreement or the Project Approvals. 3.3 Mitigation Measures. Developer shall comply with the Mitigation Measures included in the Project Approval and those identified and approved in the Downtown Station Area Plan EIR, in accordance with the California Environmental Quality Act (“CEQA”) or other law. 3.4 Compliance with Terms of the Purchase and Sale Agreement. Developer shall comply with all terms of the Grand PSA and the Linden PSA. In the event that either the Linden PSA or the Grand PSA is terminated under its terms prior to the transfer of real property to the Developer, this Agreement shall terminate and shall have no further force or effect, unless otherwise agreed to by both parties in writing. 3.5 Cost of Acquisition and Construction. Except as expressly set forth herein, Developer shall be solely responsible for all direct and indirect costs and expenses incurred in connection with the acquisition of the Properties and construction of the Project, specifically excluding any relocation obligations, and none of such costs and expenses shall be the obligation of the City. 3.6 Affordable Housing. Developer acknowledges that upon Developer’s acquisition of the Properties, the Properties will be subject to recorded covenants that will restrict use of the Properties for a term of not less than fifty-five (55) years, commencing upon the issuance of a final certificate of occupancy for the Project, as further set forth in the Linden Affordable Housing Agreement (“Linden AHA”) and the Grand Affordable Housing Agreement (“Grand AHA”), each substantially in the forms attached hereto as Exhibits C and D (the “AHAs”), each of which shall be recorded in the Official Records on the date that Developer acquires the Project Site. The AHAs shall provide that not less than twenty percent (20%) of the residential units in the Project as a whole shall be rented at an affordable cost (as defined in the respective AHA) and also shall ensure that use of any city financial assistance shall be utilized by Developer in a manner consistent with those terms imposed on the use of said City financial assistance. ARTICLE 4 OBLIGATIONS OF CITY 4.1 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 development of the Project in the City, is material consideration for City’s agreement to perform and abide by the long term covenants and obligations of City, as set forth herein. 4.2 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 above, 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 6.9, City shall not support, adopt, or enact 7 any City Law, or take any other action which would violate the express provisions or intent of the Project Approvals or the Subsequent Approvals. 4.3 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. 4.4 Developer’s Right to Rebuild. City agrees that Developer may, but shall not be obligated to, renovate or rebuild all or any part of the Project within the Term of this Agreement should it become necessary due to damage or destruction. 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. 4.5 Expedited Plan Check Process. The City agrees to provide an expedited plan check process for the approval of Project drawings consistent with its existing practices for expedited plan checks. The City shall use reasonable efforts to provide such plan checks within 3 weeks of a submittal that meets the requirements of Section 5.2. The City acknowledges that the City’s timely processing of Subsequent Approvals and plan checks is essential to the Developer’s ability to achieve the Schedule of Performance. ARTICLE 5 COOPERATION – IMPLEMENTATION 5.1 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 forth in the Project Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy decisions. 5.2 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. 5.3 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, 8 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. If overtime staff is necessary, City shall first obtain Developer’s prior written consent prior to the incurring overtime fees and passing such overtime fees on to Developer for reimbursement. 5.4 Denial of Subsequent Approval Application. 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 those state or federal law, regulations, plans, or policies set forth in Section 6.9. 5.5 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. 5.6 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, provided that if 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. Nothing herein shall modify or limit Developer’s right to oppose the formation or proposed assessment of any new assessment district or increased assessment. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT 6.1 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 and the Project Approvals. Nothing in this section shall be deemed to eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals. 6.2 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 9 Project Approvals), the Subsequent Approvals, provided, however, that no further design review or other discretionary approvals or public hearings shall be required except for review of minor changes to the Project Approvals by the Chief Planner as provided in this Agreement. 6.3 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. 6.4 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 (if applicable), 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. 6.5 No Conflicting Enactments. Except as authorized in Section 6.9, 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, the Project Approvals 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, Project Approvals 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, 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) 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; 10 (f) 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, those fees in effect at the time of issuance of the building permit, or other connection fees imposed by third party utilities; (g) Impose against the Project any condition, dedication or other exaction not specifically authorized by Applicable Law; (h) Limit the processing or procuring of applications and approvals of Subsequent Approvals; or, (i) Establish, enact, increase, or impose against the Project or Project Site any requirement that would materially increase Developer’s total cost associated with processing and constructing the Project as contemplated in the Project Approvals. 6.6 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, the Project Approvals 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 6.9, 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. (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) Notwithstanding any other remedy provided to Developer in this Agreement, City and Developer each reserves the right to challenge in court any City Law that would conflict with Applicable Law, the Project Approvals or this Agreement or reduce the development rights provided by this Agreement. 6.7 Environmental Mitigation. The parties understand that the DSASP EIR 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 DSASP EIR, City agrees to use the DSASP EIR 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 DSASP EIR, or specifically required by CEQA or other Applicable Law. 11 6.8 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 Developer’s processing and development of the Project, the Term 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 foregoing 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. 6.9 State and Federal Law. As provided in Government Code section 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. 6.10 Prevailing Wage. Developer shall pay, or cause to be paid, prevailing wages, for all construction work required or undertaken pursuant or under this Agreement. For the purposes of this Agreement, “prevailing wages” means not less than the general prevailing rate of per diem wages, as defined in Section 1773 of the California Labor Code and Subchapter 3 of Chapter 8, Division 1, Title 8 of the California Code of Regulations (Section 16000 et seq.), and as established by the Director of the California Department of Industrial Relations (“DIR”) for the respective craft classification. In any case where the prevailing wage is established by the DIR, the general prevailing rate of per diem wages shall be adjusted annually in accordance with the established rate in effect as of such date. In furtherance of Developer’s obligation to pay prevailing wages, addition, and regardless of whether required by all applicable state and federal laws, rules and regulations, Developer and its contractors and agents shall comply with California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto (“Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. Developer shall submit to City a plan for monitoring payment of prevailing wages that includes providing original payrolls to the Labor Compliance Officer at the City’s Office of Economic Development and Housing, and shall implement such plan at Developer’s expense. To the fullest extent permitted by law, Developer shall indemnify, defend (with counsel approved by City) and hold the City, and their respective elected and appointed officers, officials, employees, agents, consultants, and contractors (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”) 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 any Prevailing Wage Laws, or any act or omission of 12 Developer related to this Agreement 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 the City does not and shall not waive any rights against Developer which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by the City, or Developer’s deposit with the City of any of the insurance policies described in this Agreement. The provisions of this Section 6.10 shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project. Developer’s indemnification obligations set forth in this section shall not apply to Claims arising solely from the gross negligence or willful misconduct of the Indemnitees. 6.11 Timing of Project Construction and Completion. This project shall, at all times, be constructed in a manner consistent with the Schedule of Performance, attached hereto as Exhibit E. 6.12 No Condominium Conversion. City acknowledges and agrees that the residential component of the Project, other than the Below Market Rate (BMR) units, is proposed for, approved as, and will be constructed as market-rate rental housing. Developer shall not convert the residential units in the Project to condominium or cooperative ownership or sell condominium or cooperative rights to the residential portion of the Project or any part thereof unless Developer obtains the City's consent and meets the City’s affordability requirements in effect at the time. City prior written consent shall be required with respect to the sale or condominium conversion of the retail/commercial portion of the Project or any part thereof, and shall not be unreasonably withheld, conditioned or delayed provided that Developer meets all applicable requirements. 6.13 Commercial Project. Developer hereby agrees to abide by the following terms with respect to the commercial portion of the Grand Project: (a) Within seventeen (17) months after the start of construction, Developer shall enter into an agreement with a qualified commercial broker to lease the commercial and retail space to be constructed in the Grand Project. (b) Within the following 30 days following execution of the broker agreement, and every 30 days thereafter, Developer shall provide a retail leasing progress report that shows the tenants contacted, tenant contact information, and the results of such contact. (c) Developer shall grant a right of first refusal to prior tenants Ben Tre and Moms Tofu House. (d) The commercial retail space shall be constructed in a manner that is consistent with all applicable zoning regulations. Further, Developer shall employ Good Faith Efforts to occupy ground floor retail space with restaurants or other active retail tenant. Personal and financial services, offices, medical clinics and other similar uses are not permitted. For the purposes of this section, Good Faith Efforts shall constitute detailed progress reports from Developer’s broker that outline the companies contacted, contact name, dates and times of meetings, and any follow-up outreach. If, after Good Faith Efforts by Developer, securing one of the foregoing preferred uses with a signed lease or Letter of Intent for the ground floor retail space 13 is shown to be infeasible, Developer and City agree to meet and confer regarding the additional permissible uses for the ground floor retail space. The City shall not issue Certificates of Occupancy for the Project’s residential units until Developer provides executed retail leases for the foregoing preferred uses of ground floor retail space, or until Developer provides Basic Improvements to ground floor retail space. For the purposes of this section, Basic Improvements shall be defined as access to mechanical, electrical and plumbing connections, which must include access to drain and waste; to heating, ventilation and air conditioning (HVAC); to electrical subpanels; and to floor slabs, at four locations throughout the retail space for future use. 6.14 Project Screening. Developer will provide screening during construction that depicts a project rendering with contact details that refer people to a website/company that will provide them more information on the development. 6.15 Construction Pursuant to Plans. Buyer and its contractor(s) shall construct the Project in accordance with the approved Construction Plans and the Project Approvals. Developer shall comply with all directions, rules and regulations of any fire marshal, health officer, building inspector or other officer of every governmental agency having jurisdiction over the Project. Each element of the work shall proceed only after procurement of each permit, license or other authorization that may be required for such element by any governmental agency having jurisdiction. All design and construction work on the Project shall be performed by licensed contractors, engineers or architects, as applicable. 6.16 City Disclaimer. Developer acknowledges that the City is under no obligation, and does not undertake or assume any responsibility or duty to Developer or to any third party, to in any manner review, supervise, or inspect the progress of construction or the operation of the Project. Developer and all third parties shall rely entirely upon its or their own supervision and inspection in determining the quality and suitability of the materials and work, the performance of architects, subcontractors, and material suppliers, and all other matters relating to the construction and operation of the Project. Any review or inspection undertaken by the City is solely for the purpose of determining whether Developer is properly discharging its obligations under this Agreement, and shall not be relied upon by Developer or any third party as a warranty or representation by the City as to the quality of the design or rehabilitation of the improvements or otherwise. ARTICLE 7 AMENDMENT 7.1 Amendment. 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 reasonably determine at his or her sole discretion: (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 modification is consistent with 14 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 DSASP EIR, 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 or prohibited by Applicable Law or this Agreement, and only after making the findings required by this subsection (a), 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, 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. 7.2 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 the City determines is minor and does not substantially affect (i) the Term of this Agreement and Schedule of Performance, (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) Other Agreement Amendments. Any amendment to this Agreement that the City does not find to be an Administrative Agreement Amendment as defined in 7.2 (a) shall be subject to approval by the City Council (by ordinance) following a duly noticed public hearing before 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 15 8.1 Assignment and Transfer. (i) Developer may not transfer or assign all or any portion of its interests, rights, or obligations under the Agreement and the Project approvals to third parties prior to the issuance of a certificate of occupancy for the portion of the Project to be transferred. Notwithstanding any other provision of this Agreement to the contrary, prior to the issuance of the certificate of occupancy, each of following Transfers are permitted and shall not require City consent under Section 8.1(ii): (a) Any transfer for financing purposes to secure the funds necessary for construction and/or permanent financing of the Project; (b) An assignment of this Agreement, or a portion thereof, to an Affiliate of Developer; (c) The sale of one or more of the completed residential units to an occupant thereof; (d) Transfers of common area to a homeowners or property owners association; and (e) Dedications and grants of easements and rights of way required in accordance with the Project Approvals. For the purposes of this Section 8.1(i), “Affiliate of Developer” means: an entity or person that Developer is a member of, contains one or more of the principal members or shareholders of Developer, or that is directly or indirectly controlling, controlled by, or under common control with Developer. For the purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity or a person, whether through the ownership of voting securities, by contract, or otherwise, and the terms “controlling” and “controlled” have the meanings correlative to the foregoing. (ii) Upon issuance of the certificate of occupancy, Developer and/or an Affiliate of Developer may freely transfer or assign all or any portion of its interests, rights, or obligations under the Agreement, or its ownership interest in the Project, to third parties for that portion of the Project for which a certificate of occupancy has been issued. ARTICLE 9 COOPERATION IN THE EVENT OF LEGAL CHALLENGE 9.1 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 16 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 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. 9.2 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: (a) 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, the Project Approvals 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. (b) Acting in a manner consistent with the intent of the Agreement and the Project Approvals includes, but is not limited to, recognizing that the parties intend that Developer may develop the Project as described in the Agreement and Project Approvals, 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 10.1 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, each in the non-defaulting party’s sole discretion. If the default is timely cured, then no default will exist and the noticing party shall take no further action. 17 10.2 Termination. If City elects to consider terminating the Agreement due to a material uncured 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 ten (10) days thereafter. City shall cease all work, and incurring fees on Developer’s behalf upon the date it delivers its notice of intent to terminate the Agreement to Developer. 10.3 Enforced Delay; Extension of Time of Performance. Subject to the limitations set forth below, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement, the Schedule of Performance, and the PSAs shall be extended, where delays are due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation and arbitration, including court delays; legal challenges to this Agreement, the PSA, the Project Approvals, or any other approval required for the Project or any initiatives or referenda regarding the same; environmental conditions, pre-existing or discovered, delaying the construction or development of the Property or any portion thereof; unusually severe weather but only to the extent that such weather or its effects (including, without limitation, dry out time) result in delays that cumulatively exceed thirty (30) days for every winter season occurring after commencement of construction of the Project; acts or omissions of the other party; or acts or failures to act of any public or governmental agency or entity (except that acts or failures to act of City shall not excuse performance by City); moratorium; or a Severe Economic Recession (each a “Force Majeure Delay”). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if Notice by the party claiming such extension is sent to the other party within sixty (60) days of the commencement of the cause. If Notice is sent after such sixty (60) day period, then the extension shall commence to run no sooner than sixty (60) days prior to the giving of such Notice. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Developer. Developer’s inability or failure to obtain financing or otherwise timely satisfy shall not be deemed to be a cause outside the reasonable control of the Developer and shall not be the basis for an excused delay unless such inability, failure or delay is a direct result of a Severe Economic Recession. “Severe Economic Recession” means a decline in the monetary value of all finished goods and services produced in the United States, as measured by initial quarterly estimates of United States Gross Domestic Product (“GDP”) published by the United States Department of Commerce Bureau of Economic Analysis (and not subsequent monthly revisions), lasting more than four (4) consecutive calendar quarters. Any quarter of flat or positive GDP growth shall end the period of such Severe Economic Recession. 10.5 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. Except for a Developer Default that the City elects to remedy through the exercise of section 10.5.1, 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 18 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. 10.5.1 Completion Guaranty. As a condition to close of escrow, Developer has provided City with an executed a guaranty of completion of the Project in accordance with the terms of this Agreement, substantially in the form of Exhibit F ("Completion Guaranty") attached hereto. Upon the occurrence of a Default by Developer based on failure to comply with the Project Schedule of Performance, attached hereto as Exhibit E, City’s remedies shall include but are not limited to: exercise of the completion guarantee, as applicable, the transfer of all plans and reports specified in Section 10.11, as well as all other remedies set forth in this Agreement. 10.6 Periodic Review. (a) Conducting the Periodic Review. Throughout the Term of this Agreement, at least once every twelve (12) months following the Effective Date or more often as may be required pursuant to section 19.60.185 of the SSFMC, City shall review the extent of good-faith compliance by Developer with the terms of this Agreement. This review (“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 Government Code section 65865.1. (b) Notice. At least thirty (30) days prior to the Periodic Review, and in the manner prescribed in Section 11.9 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 material terms and conditions of this Agreement. The decision of the Chief Planner shall be appealable to the City Council. If in the Chief Planner’s good faith determination based on substantial evidence 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 Government Code sections 65867 and 65868, provided City has first complied with the provisions of Section 101. And 10.2 affording Developer both notice and opportunity to cure. 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) timely 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 19 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 City’s review, 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. 10.7 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. 10.8 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 for a period not exceeding thirty (30) days. Nothing in this section shall in any way be interpreted as requiring that Developer and City and/or City’s designee reach agreement within said thirty (30) days 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. 10.9 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. 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, 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. 10.11 Construction Plans. If this Agreement is terminated for any reason other than City’s non-performance, Developer, at no cost to the City, shall deliver to the City copies of any studies, surveys, plans, specifications and reports and construction plans, BCD's (including OMR's) in the Developer’s possession or in the possession of the Developer’s consultants related to development of the Project on the Property. In the event the City terminates the Agreement pursuant to Section 10.2, the City shall have sole rights to the studies, surveys, plans, specifications and reports and construction plans, BCD's (including OMR's) in the Developer’s possession or in the possession of the Developer’s consultants related to development of the 20 Project on the Property, and the City shall have right to utilize such plans or studies, and/or assign the plans to a successor in interest with the intent to develop the Project. ARTICLE 11 MISCELLANEOUS 11.1 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. 11.2 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. 11.3 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 Government Code section 65866. 11.4 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 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. 11.5 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. 21 11.6 Construction. Each reference in 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. 11.7 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. 11.8 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. 11.9 Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by e-mail (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express 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 by email 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. Notices transmitted 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: 22 If to City, to: City of South San Francisco 400 Grand Avenue Attn: City Manager South San Francisco, CA 94080 Phone: (650) 877-8500 Fax: (650) 829-6609 With a Copy to: City of South San Francisco 400 Grand Avenue Attn: ECD Director South San Francisco, CA 94080 Phone: (650) 829-6622 Fax: (650) 829-6609 alex.greenwood@ssf.net With a Copy to: Meyers Nave Attn: Jason Rosenberg 555 12th Street, Suite 1500 Oakland, CA 94607 Tel (510) 808-2000 Fax (510) 444-1108 Email jrosenberg@meyersnave.com If to Developer: ROEM Development Corporation 1650 Lafayette Street Santa Clara, CA 95050 Attention: Alex Sanchez Telephone: (408) 984-5600 Email: asanchez@roemcorp.com With Copies to: Situs Law, PC Attn: Summer Ludwick, Esq. 10 Almaden Blvd., Suite 1250 San Jose, CA 95113 Telephone: (408) 299-0100 Email: sludwick@situslaw.com 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 21 pages and five (5) 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 23 Exhibit B: List of Project Approvals Exhibit C: Form of Linden Affordable Housing Agreement Exhibit D: Form of Grand Affordable Housing Agreement Exhibit E: Project Schedule of Performance Exhibit F: Form of Completion Guaranty 11.11 Recordation Of Development Agreement. Pursuant to Government Code section 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 24 DEVELOPER ROEM DEVELOPMENT CORPORATION a California Corporation By: By:_______________________ A-1 Exhibit A Description and Diagram of Linden Project Site The site is bounded by Lux Avenue to the north, Linden Avenue to the west, and Tamarack Avenue to the south. Project Name Linden Project Address 418 Linden APN 012-314-010 Owner City of South San Francisco Area 14,000 sq. ft. / 0.32 acres Zoning Downtown Transit Core (DTC) Current Use Parking Lot A-2 Description and Diagram of Grand Project Site Project Name Grand Project Addresses 201-219 Grand Avenue APNs 012-316-110 012-316-100 012-316-090 012-316-080 Owner City of South San Francisco Area 20,198 square feet (sq. ft.) / 0.46 acres Zoning Grand Avenue Core (GAC) Current Use Parking Lot & Commercial (Restaurant) The site is bounded by Cypress Avenue to the east, Grand avenue to the north and Third Lane to the south. B-1 #39643361_v4 Exhibit B: List of Project Approvals Grand Project • Planning Project: P15-0017 • Use Permit UP15-0003 • Design Review DR15-0016 • Parking Exception PE15-0001 Linden Project • Planning Project P15-0016 • Use Permit UP15-0002 • Design Review DR15-0015 • Parking Exception PE15-0002 C-1 Exhibit C Linden Affordable Housing Agreement [to be provided upon execution] D-1 Exhibit D Grand Affordable Housing Agreement [to be provided upon execution] E-1 Exhibit E Project Schedule of Performance SCHEDULE OF PERFORMANCE 1 50% Construction Drawings (CDs) and Proforma Two (2) months after Development Agreement Execution 2 100% CDs submitted for building permits and Updated Proforma Four (4) months after DA execution 3 Construction Financing Secured and Construction Contract Executed Five (5) months after DA execution 4 If building permit application and 100% CDs were complete in #2, building permit ready for issuance Six (6) months after DA execution 5 Close of Escrow and Property Conveyance Six (6) months after DA execution 6 Construction Start Start within 30 days after Building permit issuance, but no later than Seven (7) months after DA execution 7 Construction Completion Thirty (30) months after DA execution F-1 Exhibit F Form of Completion Guaranty COMPLETION GUARANTY (LINDEN) THIS COMPLETION GUARANTY (the “Guaranty”) is made this ___day of _____________________, 2018 by and between THE CITY OF SOUTH SAN FRANCISCO, a municipal corporation (“City”) and ____________________________________(“Guarantor”). RECITALS A. On _______, _______________________________, a _________ (“Developer”) acquired the real property commonly known as 418 Linden Avenue, South San Francisco, California (the “Property”) from the City pursuant to that certain Purchase and Sale Agreement and Joint Escrow Instructions dated ___, 2017 (the “PSA”). B. As set forth in the PSA, Developer is to construct a high-density, 38-unit multi- family apartment building, eight (8) units of which are required to be made available at below market rates (the “Linden Project”), pursuant to that certain Development Agreement dated ______, 2018 between City and Developer (the “DA”). C. As a condition precedent to transferring the Property to Developer, the City requires Guarantor to execute and deliver this Guaranty Guarantying the lien-free completion of the Linden Project pursuant to, and in accordance with, the DA, and providing for the performance of other covenants contained herein. GUARANTY AND AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the agreements set forth below, Guarantor hereby agrees as follows: 1. Guaranty. Subject to the terms and conditions set forth herein, Guarantor unconditionally and irrevocably guarantees the full and timely performance of Developer’s obligations under the DA, to construct and complete the Project in accordance with the DA, free and clear of all mechanics liens. 2. Remedies. If Developer fails to timely perform an of its obligations under the DA with respect to the construction and completion of the Project, after expiration of any applicable notice and cure periods, the City, prior to exercising any of its remedies hereunder, shall demand (by written notice) that Guarantor perform the same on Developer’s behalf. If, within thirty (30) days after receiving such demand, Guarantor advises the City in writing that Guarantor will commence and diligently proceed to cure all defaults of Developer under the DA, which by their nature are capable of being cured by Guarantor, then the DA shall remain in full force and effect, and the F-2 City shall perform for the benefit of the Guarantor any unperformed obligations of the City under the DA. If Guarantor fails to respond to City’s written notice, or fails to perform as herein above provided, the City shall have the following remedies in addition to other remedies expressly provided herein: (a) From time to time and without first being required to exhaust any or all security held by the City, if any, to require performance by the Guarantor of any obligation to be performed on the part of the Guarantor pursuant to the terms hereof, by action at law or in equity or both. Nothing herein shall be construed to prohibit the City from pursuing any remedies under any other agreement, against any person other than the Guarantor. (b) If Guarantor does not timely perform its obligations under this Guaranty, the City, at City’s option, shall have the right to perform any obligation required to be performed by Guarantor under this Guaranty, which City reasonably deems necessary, and expend such sums as City reasonably deems proper in order so to complete such obligation. The amount of any and all reasonable expenditures made by City shall be immediately due and payable by Guarantor to City, notwithstanding City’s pursuit of any other rights or remedies. 3. Termination. This Guaranty shall terminate and be of no further force or effect upon the occurrence of either (i) upon issuance of a final certificate of occupancy for the Project, or (ii) termination of the DA by either City or Developer in accordance with its own terms. 4. Interest. Any sums required to be paid by the Guarantor to the City pursuant to the terms hereof that are not paid within thirty (30) days of the date due, shall bear interest at the prime rate announced by the Bank of America plus three percent (3%), from the date said sums shall have become due until the date said sums are paid. 5. Consideration. Guarantor acknowledges that the undertakings given hereunder are given in consideration of the City's conveyance of the Property to Developer pursuant to the PSA and City’s performance under the DA, and that the City would not convey the Property were it not for Guarantor’s execution and delivery of this Guaranty. 6. No Waiver, Extension or Modification. No failure on the part of the City to pursue any remedy hereunder shall constitute a waiver on its part of the right to pursue said remedy on the basis of the same or a subsequent breach. No extension, modification, amendment or renewal of the DA shall serve to waive the provisions hereof or discharge the Guarantor from any obligation herein contained, in whole or in part, except to the extent expressly approved by the City by written instrument signed by the City, specifying the nature and the extent of the intended waiver and discharge of the Guarantor. 7. Covenant of Guarantor. Guarantor shall promptly advise the City in writing of any material adverse change in the business or financial condition of Guarantor. 8. Guaranty Independent; Waiver of Exoneration. F-3 (a) Guarantor agrees that the obligations hereunder are independent of and in addition to the undertakings of the Developer pursuant to the DA, any other Guarantees given in connection with the DA, and other obligations of the Guarantor to the City. (b) Guarantor agrees that the validity of this Guaranty shall continue and the obligations of Guarantor hereunder shall in no way be terminated, affected, diminished or impaired by reason of any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship affecting the Developer or its partners, parents, principals, or members whether or not notice is given to the Guarantor, or by any other circumstances or condition that may grant or result in a discharge, limitation or reduction of liability of the Developer or its partners, parents, principals, members or of a surety or a guarantor. (c) Guarantor waives all rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such rights or remedies including but not limited to any right to require the City to, after expiration of applicable notice and cure periods to Developer, (1) proceed against the Developer, any partner or member of the Developer or any other person, (2) proceed against or exhaust any security held by the City, or (3) pursue any remedy in the power of the City whatsoever. If Guarantor is liable pursuant to this Guaranty, Guarantor waives any defense arising by reason of any disability or other defense of the Developer or any partner or member of the Developer, or any of their parents, principals, or affiliated entities or by reason of the cessation from any cause whatsoever of the liability of the Developer or any member or partner of the Developer, or any of their parents, principals, or affiliated entities other than the full discharge and performance of all of Developer’s obligations under the DA. Guarantor, except as expressly set forth herein, waives any defense it may acquire by reason of the City's election of any remedy against it or the Developer, or both, even though the Guarantors’ right of subrogation may be impaired thereby or extinguished under the antideficiency statutes of the State of California. Without limiting the generality of the foregoing, Guarantor waives (a) any defense that may arise by reason of the lack of authority or of any other person or persons or the failure of City to file or enforce a claim against the estate (in administration, bankruptcy, or any other proceeding) of any other person or persons; (b) demand, protest and notice of any kind including but not limited to notice of any kind (except for the notice required in Sections 2 and 10 hereof or under the DA) including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or nonaction on the part of Developer, City, any endorser or creditor of Developer or Guarantor or on the part of any other person whomsoever under this or any other instrument in connection with any obligation or evidence of indebtedness held by City as collateral or in connection with any obligations the performance of which are hereby Guaranty; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any duty on the part of City to disclose to Guarantor any facts City may now or hereafter know about Developer, regardless of whether City has reason to believe that any such F-4 facts materially increase the risk beyond that which Guarantor intended to assume or has reason to believe that such facts are unknown to Guarantor; (e) any defense arising because of City's election, in any proceeding instituted under the federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code; and (f) any defense based on any borrowing or grant of a security interest under Section 364 of the Federal Bankruptcy Code. Without limiting the generality of the foregoing or any other provision hereof, Guarantor hereby expressly waives any and all benefits which might otherwise be available to Guarantor under California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899, and 3433 and California Code of Civil Procedure Sections 580(a), 580(b), 580(d), and 726. (e) Until termination of this Guaranty (as set forth in Section 3), Guarantor shall have no right of subrogation, and waives any right to enforce any remedy that the City now has or may hereafter have against the Developer or any member of Developer, or any other person, and waives the benefit of, and any right to participate in, any security now or hereafter held by City from the Developer. 9. Continued Existence; No Transfer or Assignment. (a) Guarantor does hereby further agree that as long as this Guaranty is in effect, it will not dispose of all or substantially all of its assets without the express written approval of the City, which shall not be unreasonably withheld. (b) The obligations of Guarantor under this Guaranty may not be assigned or transferred without, in each case, the express written approval of the City, which approval shall be within the sole and absolute discretion of the City. 10. Notices. City shall provide Guarantor with all written notices delivered to Developer pursuant to the DA at the same time such notice is delivered to Developer. Guarantor shall not be liable under this Guaranty unless and until it has received such notice. The Guarantor shall have the right to perform any and all of Developer’s obligations under the DA. 11. Miscellaneous. (a) This Guaranty shall inure to the benefit of City and its successors and assigns and shall bind the heirs, executors, administrators, personal representatives, successors and assigns of Guarantor. (b) This Guaranty shall be governed by and shall be construed in accordance with the laws of the State of California. (c) Time is of the essence hereof. (d) If any term, provision, covenant or condition hereof or any application thereof should be held by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, provisions, covenants and conditions hereof and all applications thereof not F-5 held invalid, void or unenforceable shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. (e) Guarantor assumes the responsibility for keeping informed of (1) the financial condition of Developer, (2) any change in the management or control of Developer, and (3) all other circumstances bearing upon the risk of nonperformance by Developer of its obligations under the DA. (f) This Guaranty 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. (g) Any notice or communication required hereunder between City or Guarantor must be in writing, and may be given either personally, by e-mail (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express 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 by email 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. Notices transmitted 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 of South San Francisco 400 Grand Avenue Attn: City Manager South San Francisco, CA 94080 Phone: (650) 877-8500 Fax: (650) 829-6609 F-6 With a Copy to: City of South San Francisco 400 Grand Avenue Attn: ECD Director South San Francisco, CA 94080 Phone: (650) 829-6622 Fax: (650) 829-6609 alex.greenwood@ssf.net With a Copy to: Meyers Nave Attn: Jason Rosenberg 555 12th Street, Suite 1500 Oakland, CA 94607 Tel (510) 808-2000 Fax (510) 444-1108 Email jrosenberg@meyersnave.com If to Guarantor: With Copies to: (h) In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Guaranty, 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. IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the day and year first above written. GUARANTOR By:_____________________________ Name: __________________________ Its______________________________ F-7 COMPLETION GUARANTY (GRAND) THIS COMPLETION GUARANTY (the “Guaranty”) is made this ___day of _____________________, 2018 by and between THE CITY OF SOUTH SAN FRANCISCO, a municipal corporation (“City”) and ____________________________________(“Guarantor”). RECITALS D. On _______, _______________________________, a _________ (“Developer”) acquired the real property commonly known as 201-219 Grand Avenue, South San Francisco, California (the “Property”) from the City pursuant to that certain Purchase and Sale Agreement and Joint Escrow Instructions dated ___, 2017 (the “PSA”). E. As set forth in the PSA, Developer is to construct a high-density, mixed-use project, including 46 residential units, nine (9) of which are required to be below market rate units, and approximately 6,000 square feet of ground floor commercial units (the “Grand Project”) pursuant to that certain Development Agreement dated ______, 2018 between City and Developer (the “DA”). F. As a condition precedent to transferring the Property to Developer, the City requires Guarantor to execute and deliver this Guaranty Guarantying the lien-free completion of the Grand Project pursuant to, and in accordance with, the DA, and providing for the performance of other covenants contained herein. GUARANTY AND AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the agreements set forth below, Guarantor hereby agrees as follows: 1. Guaranty. Subject to the terms and conditions set forth herein, Guarantor unconditionally and irrevocably guarantees the full and timely performance of Developer’s obligations under the DA, to construct and complete the Project in accordance with the DA, free and clear of all mechanics liens. 2. Remedies. If Developer fails to timely perform an of its obligations under the DA with respect to the construction and completion of the Project, after expiration of any applicable notice and cure periods, the City, prior to exercising any of its remedies hereunder, shall demand (by written notice) that Guarantor perform the same on Developer’s behalf. If, within thirty (30) days after receiving such demand, Guarantor advises the City in writing that Guarantor will commence and diligently proceed to cure all defaults of Developer under the DA, which by their nature are capable of being cured by Guarantor, then the DA shall remain in full force and effect, and the City shall perform for the benefit of the Guarantor any unperformed obligations of the City under the DA. If Guarantor fails to respond to City’s written notice, or fails to perform as herein above F-8 provided, the City shall have the following remedies in addition to other remedies expressly provided herein: (a) From time to time and without first being required to exhaust any or all security held by the City, if any, to require performance by the Guarantor of any obligation to be performed on the part of the Guarantor pursuant to the terms hereof, by action at law or in equity or both. Nothing herein shall be construed to prohibit the City from pursuing any remedies under any other agreement, against any person other than the Guarantor. (b) If Guarantor does not timely perform its obligations under this Guaranty, the City, at City’s option, shall have the right to perform any obligation required to be performed by Guarantor under this Guaranty, which City reasonably deems necessary, and expend such sums as City reasonably deems proper in order so to complete such obligation. The amount of any and all reasonable expenditures made by City shall be immediately due and payable by Guarantor to City, notwithstanding City’s pursuit of any other rights or remedies. 3. Termination. This Guaranty shall terminate and be of no further force or effect upon the occurrence of either (i) upon issuance of a final certificate of occupancy for the Project, or (ii) termination of the DA by either City or Developer in accordance with its own terms. 4. Interest. Any sums required to be paid by the Guarantor to the City pursuant to the terms hereof that are not paid within thirty (30) days of the date due, shall bear interest at the prime rate announced by the Bank of America plus three percent (3%), from the date said sums shall have become due until the date said sums are paid. 5. Consideration. Guarantor acknowledges that the undertakings given hereunder are given in consideration of the City's conveyance of the Property to Developer pursuant to the PSA and City’s performance under the DA, and that the City would not convey the Property were it not for Guarantor’s execution and delivery of this Guaranty. 6. No Waiver, Extension or Modification. No failure on the part of the City to pursue any remedy hereunder shall constitute a waiver on its part of the right to pursue said remedy on the basis of the same or a subsequent breach. No extension, modification, amendment or renewal of the DA shall serve to waive the provisions hereof or discharge the Guarantor from any obligation herein contained, in whole or in part, except to the extent expressly approved by the City by written instrument signed by the City, specifying the nature and the extent of the intended waiver and discharge of the Guarantor. 7. Covenant of Guarantor. Guarantor shall promptly advise the City in writing of any material adverse change in the business or financial condition of Guarantor. 8. Guaranty Independent; Waiver of Exoneration. (f) Guarantor agrees that the obligations hereunder are independent of and in addition to the undertakings of the Developer pursuant to the DA, any other Guarantees given in connection with the DA, and other obligations of the Guarantor to the City. F-9 (g) Guarantor agrees that the validity of this Guaranty shall continue and the obligations of Guarantor hereunder shall in no way be terminated, affected, diminished or impaired by reason of any bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship affecting the Developer or its partners, parents, principals, or members whether or not notice is given to the Guarantor, or by any other circumstances or condition that may grant or result in a discharge, limitation or reduction of liability of the Developer or its partners, parents, principals, members or of a surety or a guarantor. (h) Guarantor waives all rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such rights or remedies including but not limited to any right to require the City to, after expiration of applicable notice and cure periods to Developer, (1) proceed against the Developer, any partner or member of the Developer or any other person, (2) proceed against or exhaust any security held by the City, or (3) pursue any remedy in the power of the City whatsoever. If Guarantor is liable pursuant to this Guaranty, Guarantor waives any defense arising by reason of any disability or other defense of the Developer or any partner or member of the Developer, or any of their parents, principals, or affiliated entities or by reason of the cessation from any cause whatsoever of the liability of the Developer or any member or partner of the Developer, or any of their parents, principals, or affiliated entities other than the full discharge and performance of all of Developer’s obligations under the DA. Guarantor, except as expressly set forth herein, waives any defense it may acquire by reason of the City's election of any remedy against it or the Developer, or both, even though the Guarantors’ right of subrogation may be impaired thereby or extinguished under the antideficiency statutes of the State of California. Without limiting the generality of the foregoing, Guarantor waives (a) any defense that may arise by reason of the lack of authority or of any other person or persons or the failure of City to file or enforce a claim against the estate (in administration, bankruptcy, or any other proceeding) of any other person or persons; (b) demand, protest and notice of any kind including but not limited to notice of any kind (except for the notice required in Sections 2 and 10 hereof or under the DA) including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or nonaction on the part of Developer, City, any endorser or creditor of Developer or Guarantor or on the part of any other person whomsoever under this or any other instrument in connection with any obligation or evidence of indebtedness held by City as collateral or in connection with any obligations the performance of which are hereby Guaranty; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (i) any duty on the part of City to disclose to Guarantor any facts City may now or hereafter know about Developer, regardless of whether City has reason to believe that any such facts materially increase the risk beyond that which Guarantor intended to assume or has reason to believe that such facts are unknown to Guarantor; (e) any defense arising because of City's election, in any proceeding instituted under the federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code; and (f) F-10 any defense based on any borrowing or grant of a security interest under Section 364 of the Federal Bankruptcy Code. Without limiting the generality of the foregoing or any other provision hereof, Guarantor hereby expressly waives any and all benefits which might otherwise be available to Guarantor under California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899, and 3433 and California Code of Civil Procedure Sections 580(a), 580(b), 580(d), and 726. (j) Until termination of this Guaranty (as set forth in Section 3), Guarantor shall have no right of subrogation, and waives any right to enforce any remedy that the City now has or may hereafter have against the Developer or any member of Developer, or any other person, and waives the benefit of, and any right to participate in, any security now or hereafter held by City from the Developer. 9. Continued Existence; No Transfer or Assignment. (c) Guarantor does hereby further agree that as long as this Guaranty is in effect, it will not dispose of all or substantially all of its assets without the express written approval of the City, which shall not be unreasonably withheld. (d) The obligations of Guarantor under this Guaranty may not be assigned or transferred without, in each case, the express written approval of the City, which approval shall be within the sole and absolute discretion of the City. 10. Notices. City shall provide Guarantor with all written notices delivered to Developer pursuant to the DA at the same time such notice is delivered to Developer. Guarantor shall not be liable under this Guaranty unless and until it has received such notice. The Guarantor shall have the right to perform any and all of Developer’s obligations under the DA. 11. Miscellaneous. (i) This Guaranty shall inure to the benefit of City and its successors and assigns and shall bind the heirs, executors, administrators, personal representatives, successors and assigns of Guarantor. (j) This Guaranty shall be governed by and shall be construed in accordance with the laws of the State of California. (k) Time is of the essence hereof. (l) If any term, provision, covenant or condition hereof or any application thereof should be held by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, provisions, covenants and conditions hereof and all applications thereof not held invalid, void or unenforceable shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. F-11 (m) Guarantor assumes the responsibility for keeping informed of (1) the financial condition of Developer, (2) any change in the management or control of Developer, and (3) all other circumstances bearing upon the risk of nonperformance by Developer of its obligations under the DA. (n) This Guaranty 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. (o) Any notice or communication required hereunder between City or Guarantor must be in writing, and may be given either personally, by e-mail (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express 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 by email 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. Notices transmitted 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 of South San Francisco 400 Grand Avenue Attn: City Manager South San Francisco, CA 94080 Phone: (650) 877-8500 Fax: (650) 829-6609 With a Copy to: City of South San Francisco 400 Grand Avenue Attn: ECD Director South San Francisco, CA 94080 Phone: (650) 829-6622 Fax: (650) 829-6609 alex.greenwood@ssf.net F-12 With a Copy to: Meyers Nave Attn: Jason Rosenberg 555 12th Street, Suite 1500 Oakland, CA 94607 Tel (510) 808-2000 Fax (510) 444-1108 Email jrosenberg@meyersnave.com If to Guarantor: With Copies to: (p) In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Guaranty, 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. IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the day and year first above written. GUARANTOR By:_____________________________ Name: __________________________ Its______________________________ City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:17-541 Agenda Date:9/6/2017 Version:1 Item #:5b. Resolution approving a Purchase and Sale and Affordable Housing Agreement with ROEM Development Corporation,for the disposition of City-owned parcel at 418 Linden Avenue,(APN 012-314-010),and 201-219 Grand Avenue (APNs 012-316-110, 012-316-100, 012-316-090 and 012-316-080) for $1,700,000. WHEREAS,the City of South San Francisco (“City”)is the owner of certain real property located in the City of South San Francisco,California,with the address of 418 Linden Avenue,known as County Assessor’s Parcel Numbers (“APN”) 012-314-010 (“418 Linden”); and WHEREAS,the City is the owner of certain real property located in the City of South San Francisco, California,with the address of 201-219 Grand Avenue,known as APNs 012-316-100,012-316-110,012-316- 080 and 012-316-090 (“201 Grand”); and WHEREAS,on June 29,2011,the Legislature of the State of California (the “State”)adopted Assembly Bill x1 26 (“AB 26”),which amended provisions of the State’s Community Redevelopment Law (Health and Safety Code sections 33000 et seq)(the “Dissolution Law”),pursuant to which the former Redevelopment Agency of the City of South San Francisco was dissolved on February 1,2012.The City became the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Successor Agency”),and in accordance with the Dissolution Law,the Successor Agency prepared a Long Range Property Management Plan (“LRPMP”), which was approved by a resolution of the Oversight Board for the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Oversight Board”)on May 21,2015,and was approved by the Department of Finance (“DOF”) on October 1, 2015; and WHEREAS,consistent with the Dissolution Law and the LRPMP,certain real properties located in the City of South San Francisco,that were previously owned by the former Redevelopment Agency was transferred to the Successor Agency (“Agency Properties”); and WHEREAS,on October 18,2016,the City entered into an Amended and Restated Master Agreement for Taxing Entity Compensation (“Compensation Agreement”)with the various local agencies who receive shares of property tax revenues from the former redevelopment project area (“Taxing Entities”),which provides that upon approval by the Oversight Board of the sale price,and consistent with the LRPMP,the proceeds from the sale of any of the Agency Properties will be distributed to the Taxing Entities in accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former Redevelopment Agency; and WHEREAS,on February 8,2017,the City adopted Resolution 16-2017 approving the transfer of the Agency Properties from the Successor Agency to the City and in accordance with the requirements set forth in the LRPMP,and on February 21,2017,the Oversight Board adopted a resolution approving the transfer of the Redevelopment Properties from the Successor Agency to the City; and WHEREAS,consistent with the LRPMP and the Oversight Board resolution,the Successor Agency and City City of South San Francisco Printed on 9/10/2017Page 1 of 4 powered by Legistar™ File #:17-541 Agenda Date:9/6/2017 Version:1 Item #:5b. executed and recorded grant deeds transferring the Agency Properties to the City; and WHEREAS,201 Grand is one of the Agency Properties and is subject to the provisions of the LRPMP and the Compensation Agreement; and WHEREAS,418 Linden is entitled for 38 housing units,with some potential ground floor live/work spaces; and WHEREAS,201 Grand is entitled for 46 housing units with ground floor commercial,a leasing office and a resident lounge; and WHEREAS,ROEM Development Corporation (“Developer”)was selected as the developer;and the City and Developer entered into an Exclusive Negotiating Rights Agreement (“ENRA”); and WHEREAS, the ENRA was effective on April 4, 2017, with an initial term of 120 days; and WHEREAS,on July 31,2017,Developer opted to extend the ENRA term and paid the $25,000 fee with the new expiration date of October 31, 2017; and WHEREAS,City staff recommends providing $3,500,000 in grant funding to Developer,with $2,450,000 being drawn from the City Housing Fund (“Fund 241”),and $1,050,000 being drawn from the Affordable Housing Trust Fund (“Fund 205”); and WHEREAs,the City and Developer have negotiated a Purchase and Sale Agreement (“PSA”)or the disposition 418 Linden, which is attached to this resolution as Exhibit A; and WHEREAS,the City and Developer have negotiated a PSA for the disposition of 201 Grand,which is attached to this resolution as Exhibit B; and WHEREAS,the City and Developer have also negotiated an Affordable Housing Agreement (“AHA”)for 418 Linden and 201 Grand, and are included as Exhibit C and Exhibit D, respectively; and WHEREAS,pursuant to redevelopment law and the Master Compensation Agreement,final approval of the sale price of 201 Grand must be approved by the Oversight Board to the Successor Agency of South San Francisco; and WHEREAS,the City and the Developer now wish to enter into a Purchase and Sale Agreement (“PSA”)for 418 Linden, attached hereto and incorporated herein as Exhibit A; and WHEREAS,the City and the Developer now wish to enter into a Purchase and Sale Agreement (“PSA”)for 201 Grand, attached hereto and incorporated herein as Exhibit B; and WHEREAS,approval of the PSAs are considered a “project”for purposes of the California Environmental Quality Act, Pub. Resources Code § 21000, et seq. (“CEQA”); and WHEREAS,on January 28,2015,the City Council certified an Environmental Impact Report (“EIR”),State City of South San Francisco Printed on 9/10/2017Page 2 of 4 powered by Legistar™ File #:17-541 Agenda Date:9/6/2017 Version:1 Item #:5b. WHEREAS,on January 28,2015,the City Council certified an Environmental Impact Report (“EIR”),State Clearinghouse number 2013102001,in accordance with the provisions of the California Environmental Quality Act (Public Resources Code,§§21000,et seq.,“CEQA”)and CEQA Guidelines,which analyzed the potential environmental impacts of the development of the Downtown Station Area Specific Plan; and WHEREAS,on January 28,2015,the City Council also adopted a Statement of Overriding Considerations (“SOC”)in accordance with the provisions of the California Environmental Quality Act (Public Resources Code,§§21000,et seq.,“CEQA”)and CEQA Guidelines,which carefully considered each significant and unavoidable impact identified in the EIR and found that the significant environmental impacts are acceptable in light of the Downtown Station Area Specific Plan’s economic,legal,social,technological and other benefits; and WHEREAS,CEQA allows for limited environmental review of subsequent projects under a program EIR when an agency finds that a project would not create any new environmental effects beyond those previously analyzed under a program EIR and would not require any new mitigation measures (CEQA Guidelines §15168 (c)(2)); and WHEREAS,the development of the City Property was contemplated in the DSAP EIR,and the execution of a Purchase and Sale Agreement for development consistent with the DSAP would not result in any new significant environmental effects or a substantial increase in the severity of any previously identified effects beyond those disclosed and analyzed in the Downtown Station Area Specific Plan Program EIR certified by the City Council, nor would any new mitigation measures be required. NOW THEREFORE IT BE RESOLVED that the City Council of the City of South San Francisco does hereby resolve as follows: 1.Determines that the recitals are true and correct. 2.Approves a PSA with ROEM in substantially the same form attached hereto as Exhibit A,for the disposition of the City-owned parcel at 418 Linden Avenue (APN 012-314-010) for $500,000. 3.Subject to approval by the Oversight Board of the final sale price,approves a PSA with ROEM in substantially the same form attached hereto as Exhibit B,for the disposition of 201-219 Grand Avenue (APNs 012-316-110, 012-316-100, 012-316-090 and 012-316-080) for $1,200,000. 4.Approves the Affordable Housing Agreements for 418 Linden and 201 Grand,in substantially the same form attached hereto as Exhibit C and Exhibit D, respectively. 5.Approves Budget Amendment 18.003,providing ROEM Development with $3,500,000 in grant funding ($1,050,000 from Fund 205 and $2,450,000 from Fund 241)for the provision of Below Market Rate (BMR) rental units, as set forth in the PSAs. 6.Authorizes the City Manager to enter into and execute on behalf of the City Council the PSAs and the AHAS,in substantially the same form attached hereto as Exhibits A,B,C and D;to make any revisions, City of South San Francisco Printed on 9/10/2017Page 3 of 4 powered by Legistar™ File #:17-541 Agenda Date:9/6/2017 Version:1 Item #:5b. AHAS,in substantially the same form attached hereto as Exhibits A,B,C and D;to make any revisions, amendments or modifications deemed necessary to carry out the intent of this Resolution and which do not materially or substantially increase the City’s obligations thereunder. ***** City of South San Francisco Printed on 9/10/2017Page 4 of 4 powered by Legistar™ 1 PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS 418 Linden Avenue THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“this Agreement”), dated _______, 2017, for reference purposes only, is made by and between the City of South San Francisco, a municipal corporation, (“City” or the “Seller”) and ROEM Development Corporation, a California corporation (“Buyer”). Seller and Buyer are collectively referred to herein as the “Parties.” RECITALS A. City is the owner of the real property located in the City of South San Francisco at 418 Linden Avenue, known as San Mateo County Assessor’s Parcel Nos. 012-314-010 and more particularly described in Exhibit A-1 attached hereto (the “Linden Property” or, the “Property”). B. The City desires to sell the Linden Property to Buyer for the construction of a high density, 38-unit multi-family apartment building (the “Linden Project”), eight (8) units of which are required to be made available at below market rates as further described in the Linden Affordable Housing Agreement substantially in the form attached hereto as Exhibit B (the “AHA”). Development of the Linden Project is described and defined in the Development Agreement between the City and Buyer, substantially in the form attached hereto as Exhibit C (the “DA”). Upon Closing, the AHA and the DA will be recorded in the official records of San Mateo County. C. In order to assist in the construction of affordable units, upon Closing, Seller will provide Buyer a grant in the amount Five Hundred and Twenty Five Thousand Dollars ($525,000.00) from City Affordable Housing In-Lieu Fees, and a grant in the amount of One Million Two Hundred and Twenty Five Thousand ($1,225,000.00) from City Affordable Housing Bond Funds to partially finance the Project on the Linden Property (“City Grants”), as set forth in this Agreement and the DA. The terms and conditions associated with Buyer’s use of the City Grants after the Closing are set forth in the DA. D. On April 4, 2017, City of South San Francisco and Agency and Buyer entered into an Exclusive Negotiation Rights Agreement (“ENRA”) that provided the Buyer the exclusive right to collaborate and negotiate with the City for the purpose of reaching agreement on a project description, appropriate land uses, economic feasibility, and a definitive agreement whose terms and conditions would govern any conveyance and development of the Property. In furtherance thereof, Buyer submitted a deposit in the amount of Two Hundred Thousand Dollars ($200,000.00) to City to reimburse the costs Seller would incur in preparation of this Agreement and the Purchase and Sale Agreement for the Grand Project (“ENRA Deposit”). Upon execution of the ENRA, City provided Buyer with copies, but not ownership, of all City owned non-privileged studies, surveys, plans, specifications, reports, and other documents with respect to the Property that City had in its possession or control, which had not already been provided to Buyer (“Bridging Documents”). 2 D. The Linden Property and the Linden Project are fully entitled, and have obtained planning approval from the Design Review Board, Planning Commission, Successor Agency and City Council as well as the Oversight Board. The Linden Project entitlements include Planning Project P15-0016; Use Permit UP15-0002; Design Review DR15-0015; Parking Exception PE15- 0002; and Affordable Housing Agreement AHA15-0004 (collectively herein the “Project Approvals”). Buyer acknowledges and agrees that execution of this Agreement by Agency does not constitute approval for the purpose of the issuance of building permits for the Project, does not limit in any manner the discretion of Agency in such approval process if any, and does not relieve Buyer from the obligation to apply for and obtain any, if necessary, entitlements, approvals, and permits, for construction of the Linden Project on the Linden Property including without limitation, the approval of architectural plans, the issuance of any certificates regarding historic resources required in connection with the Project (if any), and any required environmental review in the event Buyer seeks revisions to any of the above Project Approvals. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth above and the Exhibits attached to this Agreement are each incorporated into the body of this Agreement as if set forth in full. 2. PURCHASE AND SALE. 2.1. Subject to the terms and conditions set forth herein, Seller agree to sell the Property to Buyer, and Buyer hereby agrees to acquire the Property from Seller. 2.2. The purchase price for the Property to be paid by Buyer to City is five hundred thousand dollars ($500,000.00), payable in all cash at Closing. 3. ESCROW. 3.1. Escrow Account. This sale shall be consummated through an “Escrow” established with Chicago Title Insurance Company; Escrow Agent: Sherri Keller, 675 N. First Street, San Jose, CA 95112 (“Escrow Holder”). Escrow Holder shall perform all escrow and title services in connection with this Agreement. 3.2. Opening of Escrow; Effective Date. Within three (3) business days of the date that Seller has obtained approval of this executed Agreement by the City Council, approval of the sale price by the Oversight Board, and approval of the executed DA and the executed AHA by the City Council, Seller shall open an escrow account with Escrow Holder by depositing this executed Agreement, the executed DA and the executed AHA into Escrow. The date the executed Agreement, DA and AHA are received by Escrow Holder, as established and confirmed by Escrow Holder, shall be deemed the “Effective Date.” By such deposit 3 Escrow Holder is authorized and instructed to act in accordance with the provisions of this Agreement, which Agreement shall constitute Escrow Holder’s escrow instructions. 3.3. Buyer’s Deposit; Application of Prior ENRA Deposit. Within three (3) business days of the Effective Date, Seller will deposit the one half of the remaining, unused, portion of the ENRA Deposit into Escrow, and Buyer will deposit the difference between the amount deposited by Seller and $100,000.00, so that the total deposit held in Escrow for the Linden Property as Buyer’s deposit is One Hundred Thousand Dollars ($100,000.00) (the “Deposit”). Note that the other one half of the remaining, unused, portion of the ENRA Deposit will be deposited into the Grand Property Escrow. The Deposit is non-refundable, except in the event of a Seller breach, and is applicable toward the Purchase Price. 3.4. Seller’s Administration Fee. Within three (3) business days of the Effective Date, Buyer shall deposit funds in the amount of Fifteen Thousand Dollars ($15,000.00) with Escrow Holder (the “Administration Fee”). Escrow Holder shall immediately release the Administration Fee to Seller, and throughout the term of this Agreement, Seller may draw upon the Administration Fee to compensate it for the cost of reasonably necessary third-party assistance, legal fees and staff time incurred by Seller in administering the sale of the Property. Seller will notify Buyer of the identify, qualifications, scope of work and budget for any third party consultants that will be paid for from the Administration Fee, prior to authorizing work under any such third party contract, and will provide Buyer a written account of the Administration Fee, including copies of any third party invoices under approved scopes of work (excluding any information subject to attorney client privilege) upon Buyer’s request. All costs and fees shall be charged at City’s actual cost and all staff time shall be charged at City’s standard rate. Seller shall deposit the Administration Fee in a separate interest bearing account of Seller and any interest, when received by Seller, will become part of the Administration Fee. City shall account for all deposits, interest earnings and withdraws from the Administration Fee consistent with all reporting requirements of the State of California Department of Finance. The unused portion of the Administration Fee, if any, shall be credited against the Purchase Price at Closing, or returned to Buyer if this Agreement is terminated, for any reason, prior to Closing. 4. APPROVAL OF CONDITION OF TITLE; PROPERTY DISCLOSURE REQUIREMENTS. 4.1. Condition of Title/Preliminary Title Report. At the Closing, Seller shall convey title to the Property to Buyer by grant deed in Escrow Holder’s standard form (the “Grant Deed”). As a condition to Buyer’s obligation to close escrow hereunder, title to the Property to be conveyed to Buyer shall be subject only to the Permitted Exceptions (as defined below). Promptly following the execution of this Agreement, Seller shall deliver or cause the Escrow Holder to deliver to Buyer a preliminary title report issued by Escrow Holder and dated within ten (10) days of the mutual execution of this Agreement (the “Preliminary Title Report”) showing the state of title to the Property, together with copies of all matters shown as exceptions therein. Buyer may also obtain a survey or updated survey of the Proper ty (the “Survey”), at Buyer's sole cost and expense. Buyer shall have the right within the first twenty (20) days following the Effective Date (the “Title Review Period”), to give Seller written notice (“Buyer’s 4 Title Notice”) of Buyer’s disapproval of any title exceptions or matters set forth in the Title Report or Survey, or any other matters affecting Title to the Property (collectively, the “Title Objections”). If Buyer timely gives the Buyer’s Title Notice, Seller shall elect, within fifteen (15) days following receipt of Buyer’s Title Notice, by written notice given to Buyer, whether to remove or delete from the title to be conveyed to Buyer prior to the Closing any or all of the Title Objections. If Buyer fails to timely give the Buyer’s Title Notice, or if Seller fails to make such election within the aforementioned fifteen (15) day period, then Seller shall be deemed to have elected not to remove any Title Objections. Upon receipt of Seller’s written notice (or deemed election not to remove the Title Objections), Buyer may elect, within the Title Review Period, to either (i) terminate this Agreement, in which event all rights and obligations hereunder (except for those that expressly survive the termination of this Agreement) shall cease and the Deposit shall be promptly returned to Buyer, or (ii) waive any title or survey objections it may have, without a reduction of the Purchase Price. If Buyer fails to make an election referred to in the immediately preceding sentence, by written notice to Seller within the Title Review Period, then Buyer shall be deemed to have elected the option to terminate this Agreement as set forth in clause (i) above. As used herein, “Permitted Exceptions” shall mean: (i) non-delinquent liens for real estate taxes and assessments; (ii) any other liens, easements, encumbrances, covenants, conditions and restrictions of record described in the Preliminary Title Report, except those that Seller has expressly agreed to remove pursuant to Paragraph 5(b) above; provided, however, that the lien of any deed of trust shall not be a Permitted Exception in any event; (iii) the DA; (iv) the AHA; and (v) local, state and federal laws, ordinances or governmental regulations including, but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property. Seller will provide Buyer with standard owner affidavits regarding tenants, work on site, etc. if applicable as may reasonably be required by the Title to permit Title Company’s issuance of an ALTA title insurance policy. Delivery of title in accordance with the foregoing shall be evidenced by the willingness of the Escrow Holder to issue, at Closing, at Buyer’s cost, an ALTA Owner’s Policy of Title Insurance in the amount of the Purchase Price showing fee simple title to the Property vested in Buyer (or its assignee), subject only to the Permitted Exceptions and the standard exclusions to coverage shown on such Policy of Title Insurance (the “Title Policy”). 4.2 Environmental and Natural Hazards Disclosure. California Health & Safety Code section 25359.7 requires owners of non-residential real property who know, or have reasonable cause to believe, that any release of hazardous substances are located on or beneath the real property to provide written notice of same to the buyer of real property. Other applicable laws require Seller to provide certain disclosures regarding natural hazards affecting the Property. During the period of time between the execution of the ENRA and the execution of this Agreement, Seller shall make all necessary disclosures required by law 5. BUYER’S SCHEDULE OF PERFORMANCE 5.1. Buyer’s Schedule of Performance. Subject to Force Majeure Delays (as defined in Section 8.4), Buyer shall complete the following milestones in furtherance of the Closing, in accordance with the following schedule: 5 Deadline Milestone (a) Within two (2) months after Effective Date Buyer shall have completed 50% of the Construction Drawings and submitted the Financial ProForma to Seller (b) Within four (4) months after Effective Date Buyer shall have completed all Final Plans and submitted 100% construction drawings to the City for building permits, and submitted an Updated Proforma to Seller (c) Within five (5) months after Effective Date Buyer shall have secured Construction Financing and executed a contract with a general contractor for construction of the Project in accordance with the final plans (d) Within six (6) months after Effective Date Buyer and Seller shall have satisfied (or waived in writing) all contingencies to Closing set forth in this Agreement, and be prepared to Close Escrow 6. CLOSING AND PAYMENT OF PURCHASE PRICE 6.1. Closing. The close of escrow (the “Closing” or “Close of Escrow”) shall be deemed to occur on the date the Grant Deed is recorded and Buyer’s funds are released to Seller and the City Grants are released to Buyer, which shall occur within ten (10) days of the date that all of Buyer’s contingencies to Closing set forth in Section 6.2 and Seller’s contingencies to Closing set forth in Section 6.3 have been satisfied, or waived in writing, or such other date that the Parties agree in writing, each in their sole discretion. 6.2. Buyer’s Conditions to Closing. Buyer's obligation to purchase the Property is subject to the satisfaction of all of the following conditions or Buyer's written waiver thereof (in Buyer’s sole discretion) on or before the Closing Date: (a) Buyer has approved the condition of the Property and Waived any further Due Diligence Contingency. Buyer has used the period of time between the execution of the ENRA and the date of the execution of this Agreement as its “Due Diligence Contingency Period” to complete physical inspections of the Property and due diligence related to the purchase of the Property. Pursuant to paragraph 9 of the ENRA, Seller has made available to Buyer for review or copying at Buyer’s expense all non-privileged studies, surveys, plans, specifications, reports, and other documents with respect to the Property that Seller has in its possession or control, which have not already been provided. Buyer understands that notwithstanding the delivery by City to Buyer of any materials, including, without limitation, third party reports, Buyer has relied entirely on Buyer’s own experts and consultants and its own independent investigation in proceeding with the acquisition of the Property. Studies or documents prepared by Seller and its agents solely for the purpose of negotiating the terms of the Purchase Agreement were not required to be provided by Seller to Buyer. Buyer acknowledges that it has completed its due diligence 6 with respect to the physical condition of the Property and is satisfied with respect to such and will provide Seller further written evidence of its acceptance of the condition of the property and its wavier of any due diligence contingency prior to Closing. (b) Seller have performed all obligations to be performed by Seller pursuant to this Agreement. (c) Seller’s representations and warranties herein are true and correct in all material respects as of the Closing Date. (d) Buyer has approved the Title Report, and Title Company is irrevocably committed to issue a ALTA Extended Title Policy to Buyer upon recordation of the Grant Deed and effective as of the Closing Date, insuring title to Buyer in the full amount of the Purchase Price, subject only to the Permitted Exceptions. (e) Seller has deposited the City Grants into Escrow with instructions to release the City Grants to Buyer, only upon the Closing. (f) The Property is free of all occupants, licensees, tenants, and is prepared to be delivered “vacant” to Buyer at Closing. (g) Buyer has secured binding commitments, subject only to commercially reasonable conditions, for all funding necessary for the successful and feasible purchase of the Property and completion of the Project. (h) Thirty (30) days prior to Closing, Buyer’s construction loan, if any, for the Project shall have closed, or shall be ready to close concurrently with the Closing. (i) Five (5) days before closing, Buyer shall have obtained approval of Buyer’s Final Proforma from City, and shall have deposited the approved Final Proforma into Escrow. (j) Buyer has completed all Final Plans and construction drawings and has obtained all building and other permits from the City and other issuing agencies required to construct the Project pursuant to all Final Plans and as required and necessary for the Buyer to satisfy the obligations set forth in the DA and AHA. (k) Buyer shall have executed a construction contract with a qualified and reputable general contractor for the Project, which construction contract shall be enforceable, contain a “prevailing wage” requirement, and require contractor to commence construction promptly upon issuance of the final building permit, and shall have deposited a copy thereof into Escrow five (5) days before Closing. (l) Buyer or Buyer’s General Contractor shall obtain, or cause to be obtained, and deliver to Seller the following bonds: (a) a labor and materials/payment bond or bonds for the general contract, which shall be equal to one hundred percent (100%) of all costs of construction to be incurred pursuant to the general contract, and (b) a performance bond or bonds for the general contractor in an amount equal to one hundred percent (100%) of all costs to be 7 incurred pursuant to the general contract (collectively, the "Bonds"). The Bonds shall be in commercially reasonable form and substance, and name Seller as obligee. (m) Buyer’s General Contractor shall have submitted to City’s Building Department for City’s approval, detailed final construction plans for construction of the Project on the Property (the “Construction Plans”). As used herein “Construction Plans” means the final construction documents that are in conformance with the Bridging Construction Documents (“BCDs”) and Owner’s Minimum Requirements (“OMRs”) and upon which Buyer and Buyer’s contractors shall rely in constructing the Project (including the landscaping, parking, and common areas) and shall include, without limitation, the site development plan, final architectural drawings, landscaping, exterior lighting and signage plans and specifications, materials specifications, final elevations, and building plans and specifications. The Construction Plans shall be based upon the scope of development set forth in the BCDs and upon the Project Approvals, and shall not materially deviate therefrom without the express written consent of Seller. Provided the Construction Plans are consistent with the BCDs, approval of the Construction Plans by City shall be deemed approval thereof by Seller. (n) Buyer is prepared to deliver a guaranty of completion of the Project in accordance with the terms of this Agreement, substantially in the form of Exhibit D ("Completion Guaranty") attached hereto. 6.3. Seller’s Conditions to Closing. The Close of Escrow and Seller’s obligation to sell and convey the Property to Buyer are subject to the satisfaction of the following conditions or Seller’s written waiver (in Seller’s sole discretion) of such conditions on or before the Closing Date or any sooner date stated below: (a) Buyer has performed all obligations to be performed by Buyer pursuant to this Agreement before Closing Date. (b) Buyer's representations and warranties set forth herein are true and correct in all material respects as of the Closing Date. (c) Buyer’s Financing Commitments. Forty-five (45) days prior to Closing, Buyer has provided Seller written confirmation, acceptable to Seller, which approval shall not be unreasonably withheld, that Buyer has obtained financing commitments for the acquisition and construction financing for the acquisition and development of the Property: (d) Construction Loan. Thirty (30) days prior to Closing, Buyer’s construction loan, if any, for the Project shall have closed, or shall be ready to close concurrently with the Closing. (e) Proforma. Thirty (30) days before closing, Buyer shall have obtained approval of Buyer’s Final Proforma from City, and shall have deposited the approved Final Proforma into Escrow. (f) Buyer shall have completed all Final Plans and construction drawings and has obtained all building and other permits from the City and other issuing agencies 8 required to construct the Project pursuant to all Final Plans and as required and necessary for the Buyer to satisfy the obligations set forth in the DA and AHA. (g) Buyer shall have executed a construction contract with a qualified and reputable general contractor for the Project, which construction contract shall be enforceable, contain a “prevailing wage” requirement, and require contractor to commence construction promptly upon issuance of the final building permit, and shall have deposited a copy thereof into Escrow five (5) days before Closing. (h) Buyer or Buyer’s General Contractor shall have obtained and delivered to Seller the following bonds: (a) a labor and materials/payment bond or bonds for the general contract, which shall be equal to one hundred percent (100%) of all costs of construction to be incurred pursuant to the general contract, and (b) a performance bond or bonds for the general contractor in an amount equal to one hundred percent (100%) of all costs to be incurred pursuant to the general contract (collectively, the "Bonds"). The Bonds shall be in commercially reasonable form and substance and shall name Seller as obligee. (i) Construction Plans. Buyer’s General Contractor shall have submitted to City’s Building Department for City’s approval, detailed final construction plans for construction of the Project on the Property (the “Construction Plans”). As used herein “Construction Plans” means the final construction documents that are in conformance with the Bridging Construction Documents (“BCDs”) and Owner’s Minimum Requirements (“OMRs”) and upon which Buyer and Buyer’s contractors shall rely in constructing the Project (including the landscaping, parking, and common areas) and shall include, without limitation, the site development plan, final architectural drawings, landscaping, exterior lighting and signage plans and specifications, materials specifications, final elevations, and building plans and specifications. The Construction Plans shall be based upon the scope of development set forth in the BCDs and upon the Project Approvals, and shall not materially deviate therefrom without the express written consent of Seller. Provided that the Construction Plans are consistent with the BCDs, approval of the Construction Plans by City shall be deemed approval thereof by Seller. (j) Buyer’s Completion Guaranty. Buyer has delivered its Completion Guaranty to Escrow Holder. 6.4. Closing Deliveries. 6.4.1 Delivery of Documents and Closing Funds. At or prior to Closing, Seller and Buyer shall each deposit such other instruments as are reasonably required by the Title Company or otherwise required to close the escrow and consummate the conveyance of the Property in accordance with the terms hereof, including but not limited to the following: 6.4.1.1 Deliveries by Seller. At or before Closing, Seller shall deposit the following into escrow: (i) one (1) original executed and acknowledged Grant Deed; (ii) one (1) duly executed non-foreign certification for the Property in accordance with the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended; (iii) one (1) duly executed California Form 593-W Certificate for the Property or comparable non-foreign person affidavit to satisfy the requirements of California Revenue and Taxation Code Section 18805(b) 9 and 26131; (iv) title to all Bridging Documents; and (v) funds in the total amount of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) for the City Grants. 6.4.1.2 Condition to disbursement of City Grants. City’s obligation to provide Seller with City Grants in the total amount of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) at the Closing Date is conditioned upon Close of Escrow. If the Closing does not occur, for any reason whatsoever, the Cit y has no obligation to deliver the City Grants to Buyer. 6.4.1.3 Deliveries by Buyer. No less than five (5) business days prior to the close of escrow, Buyer shall deposit into escrow: (i) immediately available funds which together with the Deposit plus interest thereon, if any, is equal to: a) the Purchase Price as adjusted by any prorations between the Parties; (b) all escrow fees (including the costs of preparing documents and instruments) and recording fees and all transfer taxes; (c) the cost of the Title Policy and title report costs (d) any other costs that are the responsibility of Buyer under this Agreement; (ii) a fully executed Completion Guarantee executed by Buyer; and, (iii) one (1) original executed Preliminary Change of Ownership Report for the Property. 6.4.2. Escrow Instructions. This Agreement constitutes the joint escrow instructions (JEI) of Seller and Buyer with respect to the conveyance of the Property to Buyer, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties shall use reasonable good faith efforts to close the escrow for the conveyance of the Property in the shortest possible time. All funds received in the escrow shall be deposited in interest-bearing accounts for the benefit of the depositing Party in any state or national bank doing business in the State of California. All disbursements shall be made by check or wire transfer from such accounts. If, in the opinion of either Party, it is necessary or convenient in order to accomplish the Closing, such Party may provide supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control. Th e Closing shall take place as set forth in Section 6.4.3 below. Escrow Agent is instructed to release Seller’s and Buyer’s escrow closing statements to the respective parties. 6.4.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall: (a) Pay and charge Buyer for the premium of the Title Policy, including any endorsements requested by Buyer. (b) Pay and charge Buyer for escrow fees, charges, and costs as provided in Section 6.4.1.2. (c) Disburse to Seller the Purchase Price, less Seller’s share of any escrow fees, costs and expenses, and record the Grant Deed when both the Buyer Conditions Precedent and Seller Conditions Precedent have been fulfilled or waived in writing by Buyer and Seller, as applicable. Immediately following recordation of the Grant Deed, Escrow Agent shall record the DA and AHA. (d) Disburse to Buyer the City Grants. 10 (e) Do such other actions as necessary, including obtaining and issuing the Title Policy, to fulfill its obligations under this Agreement. (f) Direct Seller and Buyer to execute and deliver any instrument, affidavit, and statement, and to perform any act, reasonably necessary to comply with the provisions of FIRPTA, if applicable, and any similar state act and regulations promulgated thereunder. (g) Prepare and file with all appropriate governmental or taxing authorities uniform settlement statements, closing statements, tax withholding forms including IRS 1099 -S forms, and be responsible for withholding taxes, if any such forms are provided for or required by law. (h) Deliver to Buyer the certificate of title to those Bridging Documents for which Buyer has previously requested transfer of ownership from Seller to Buyer, the Non-Foreign Affidavit, the California Certificate and the original recorded grant deed; 6.4.4 Pro-Rations. At the close of escrow, the Escrow Agent shall make the following prorations: (i) property taxes will be prorated as of the close of escrow based upon the most recent tax bill available, including any property taxes which may be assessed after the close of escrow but which pertain to the period prior to the transfer of title to the Property to Buyer, regardless of when or to whom notice thereof is delivered; and (ii) any Seller reimbursement for the unapplied portion of the Administrative Fee. 7. REPRESENTATIONS, WARRANTIES AND COVENANTS. 7.1. Seller’s Representations, Warranties. In addition to the representations, warranties and covenants of Seller contained in the other sections of this Agreement, Seller hereby represents, warrants and covenants to Buyer that the statements below in this Section 7.1 are each true and correct as of the Closing Date provided however, if to Seller’s actual knowledge any such statement becomes untrue prior to Closing, Seller will notify Buyer in writing and Buyer will have three (3) business days thereafter to determine if Buyer wishes to proceed with Closing. If Buyer determines it does not wish to proceed, then the terms of Section 8 will apply. As used herein, the term “to Seller’s best knowledge” shall mean the knowledge of :_______________, with duty of inquiry. (a) Authority. Seller is a public agency, lawfully formed, in existence and in good standing under the laws of the State of California. Seller has the full right, capacity, power, authority, and all necessary approvals to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by Seller, and upon delivery to and execution by Buyer is a valid and binding agreement of Seller. (b) Encumbrances. Other than the approval and recordation of the DA and AHA at Closing, Seller has not alienated, encumbered, transferred, mortgaged, assigned, pledged, or otherwise conveyed its interest in the Property or any portion thereof, nor entered into any Agreement to do so, and there are no liens, encumbrances, mortgages, covenants, conditions, reservations, restrictions, easements or other matters affecting the Property, except for the Permitted Exceptions. Seller will not, directly or indirectly, alienate, encumber, transfer, mortgage, 11 assign, pledge, or otherwise convey its interest prior to the Close of Escrow, as long as this Agreement is in force. (c) There are no agreements affecting the Property except those which have been disclosed by Seller. There are no agreements which will be binding on the Buyer or the Property after the Close of Escrow. (d) Condemnation. To Seller’s best knowledge, there are not presently pending any eminent domain or condemnation actions against the Property or any part thereof; and Seller has not received written notice of any eminent domain or condemnation actions being contemplated that would affect the Property or any part thereof. (e) Claims. To Seller’s best knowledge, Seller has not received written notice of any claims or of any legal actions or proceedings in any court pending against the Property or against Seller that may affect the Property or Seller’s ability to consummate the transaction contemplated in this Agreement. To Seller’s best knowledge, Seller has not received any written notice that the condition of the Property is in violation of any laws or regulations or the requirements of any insurance underwriters or policies. (f) Lease; Occupancy Rights; Superior Rights. There are no leases, occupancy rights, rights of first refusal or rights of first offer that affect the Property. Seller will deliver the property vacant and free of any lease agreements or occupancy rights prior to or at close of escrow. (g) No Conflict. The execution and delivery of this Agreement, and the sale and conveyance of the Property contemplated hereby, do not and will not (a) violate the terms of any order, writ or decree of any court or judicial or regulatory authority or body binding upon Seller, (b) conflict with or result in a breach of any condition or provision or constitute a default under or pursuant to the terms of any contract, mortgage, lien, lease, agreement, debenture or instrument to which Seller is a party, or which is or purports to be binding upon Seller or upon the Property, or (c) to Seller’s best knowledge, violate any rule, regulation, statute or law applicable to Seller. (h) Historical Designation of the Property. To Seller’s best knowledge, Seller has not received written notice of any pending applications for or current designations of the Property as a historic building or landmark. (i) Property Documents. All Bridging Documents provided by Seller to Buyer are true, correct and complete copies of all documents and information relating to the Property in Seller’s possession and control. To the extent that Seller’s Bridging Documents were prepared by third parties or for third parties, including a previous potential buyer of the Property, Seller represents to Buyer that Seller has the right to provide such materials to Buyer and is not prohibited by contract or otherwise from disclosing such materials to Buyer, but Seller does not make any representation about Buyer’s ability or inability to use or rely on any such materials, or the accuracy or completeness thereof. Seller shall not be liable to Buyer or any other party for any detrimental reliance on such third-party materials. 12 (j) Environmental Laws. To Seller’s best knowledge, the Property is not in violation of any federal, state, local or administrative agency ordinance, law, rule, regulation, order or requirement relating to environmental conditions or Hazardous Material (“Environmental Laws”). To Seller’s best knowledge, Seller has not used, manufactured, generated, treated, stored, disposed of, or released any Hazardous Materials on, under or about the Property or transported any Hazardous Materials over the Property except in compliance with Environmental Laws. For the purposes hereof, “Hazardous Material” shall mean any substance, chemical, waste or other material which is listed, defined or otherwise identified as “hazardous” or “toxic” under any federal, state, local or administrative agency ordinance or law, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., or any regulation, order, rule or requirement adopted thereunder, as well as any formaldehyde, urea, polychlorinated biphenyls, petroleum, petroleum product or by-product, crude oil, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel or mixture thereof, radon, asbestos, and “source,” “special nuclear” and “by-product” material as defined in the Atomic Energy Act of 1985,42 U.S.C. §§ 3011 et seq. 7.2. Seller’s Covenants. From the Effective Date, through the Closing, Seller covenants as follows: (a) Seller shall terminate all maintenance or service contracts and utilities relating to and servicing the Property, as of the Closing Date. (b) Seller shall remove all fixtures, furnishings and equipment and personal property (“FF&E”) that is not adhered to or an integral improvement to the Property as of the Closing Date, so that the Property is delivered in a vacant, broom-clean condition with all trash and personal effects removed. (c) Seller shall maintain and operate the Property in its present state of repair and in substantially the same condition as on the Effective Date. (d) Seller shall pay all liens, encumbrances, taxes, penalties, interest and assessments on the Property, and perform all covenants thereunder, before they become delinquent or a default would occur thereunder. (e) Seller shall maintain in effect all insurance policies relative to the Property in full force and effect. (f) Seller shall promptly notify Buyer if any of the representations and warranties set forth in this Agreement become untrue prior to the Closing Date. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Seller contained in this Agreement are conditions precedent to Buyer’s obligation to proceed with the Closing hereunder. The foregoing representations and warranties shall survive the expiration, termination, or close of escrow of this Agreement and shall not be deemed merged into the deed upon closing. 13 7.3. Buyer’s Representations and Warranties. In addition to the representations, warranties and covenants of Buyer contained in the other sections of this Agreement, Buyer hereby represents, warrants and covenants to Seller that the statements below in this Section 7.3 are each true as of the Effective Date, and, if to Buyer’s actual knowledge any such statement becomes untrue prior to Closing, Buyer shall so notify Seller in writing and Seller shall have at least three (3) business days thereafter to determine if Seller wishes to proceed with Closing. (a) Buyer has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by Buyer, and upon delivery to and execution by Seller shall be a valid and binding agreement of Buyer. (b) Buyer is not bankrupt or insolvent under any applicable federal or state standard, has not filed for protection or relief under any applicable bankruptcy or creditor protection statute, and has not been threatened by creditors with an involuntary application of any applicable bankruptcy or creditor protection statute. (c) Buyer accepts and acknowledges that after the Closing, the Property will be subject to the DA and AHA, which will be recorded against the Property at Closing. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Buyer contained in this Agreement are conditions precedent to Seller’s obligation to proceed with the Closing hereunder. 7.4. Property Sold, “AS IS”. Buyer specifically acknowledges that the Seller is selling the Property on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis and that, subject to Seller's representations, warranties, covenants and obligations set forth in this Agreement, and all exhibits attached hereto and incorporated herein, and any obligations arising under applicable law, Buyer is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, or its employees, appointed or elected officials, agents, or brokers as to any matters concerning the Property. The Seller makes no representations or warranties as to any matters concerning the Property, including without limitation: (i) the quality, nature, adequacy and physical condition of the Property, (ii) the quality, nature, adequacy, and physical condition of soils, geology and any groundwater, (iii) the existence, quality, nature, adequacy and physical condition of utilities serving the Property, (iv) the development potential of the Property, and the Property's use, habitability, merchantability, or fitness, suitability, value or adequacy of the property for any particular purpose, (v) except as otherwise provided in this Agreement, the zoning or other legal status of the Property or any other public or private restrictions on use of the Property, (vi) the compliance of the Property or its operation with any Environmental Laws, covenants, conditions and restrictions of any governmental or quasi-governmental entity or of any other person or entity, (vii) the presence or removal of Hazardous Materials, substances or wastes on, under or about the Property or the adjoining or neighboring property; (viii) the quality of any labor and materials used in any improvements on the Property, (ix) the condition of title to the Property, (x) the leases, service contracts, or other agreements affecting the Property, or (xi) the economics of the operation of the Property. 14 8. DEFAULT, REMEDIES, TERMINATION. 8.1. Default Remedies – General. Failure by either Party to perform any action or covenant required by this Agreement within sixty (60) days following receipt of written Notice from the other Party specifying the failure shall constitute a “Default” under this Agreement; provided, however, that if the failure to perform cannot be reasonably cured within such sixty (60) day period, a Party shall be allowed additional time as is reasonably necessary to cure the failure so long as such Party commences to cure the failure within the sixty (60) day period and thereafter diligently prosecutes the cure to completion. 8.2. Default. 8.2.1 Remedies. 8.2.1.1 Default by Buyer; Seller’s Remedies. Upon the occurrence of an uncured Default by Buyer, Seller’s remedies shall be limited to (i) liquidated damages pursuant to Section 8.2.2 and (ii) termination of this Agreement pursuant to Section 8.3. 8.2.1.2 Default by Seller; Buyer’s Remedies. Upon the occurrence of a Default by Seller under this Agreement, Buyer’s remedies shall be limited to obtaining specific performance or injunctive relief, or terminating this Agreement, and in either event, return of the Deposit and any unused portion of the Administrative Fee. 8.2.2 Liquidated Damages. SUBJECT TO NOTICE AND EXPIRATION OF APPLICABLE CURE PERIODS AND ANY PERMITTED EXTENSIONS OF TIME AS PROVIDED IN THIS AGREEMENT, IF IN THE EVENT OF A BUYER DEFAULT AS SET FORTH IN 8.2.1.1, SELLER WILL SUFFER DAMAGES AND THAT IT IS IMPRACTICABLE AND INFEASIBLE TO FIX THE ACTUAL AMOUNT OF SUCH DAMAGES. THEREFORE, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF TH IS AGREEMENT, IN THE EVENT OF AN UNCURED DEFAULT, BUYER, WITHIN THIRTY (30) DAYS FOLLOWING SELLER’S WRITTEN DEMAND THEREFOR, SHALL TURN OVER ALL REPORTS AND PLANS IN THE BUYER’S ACTUAL OR CONSTRUCTIVE POSSESSION THAT HAVE BEEN PREPARED BY AND FOR BUYER RELATED TO THE PROJECT AND THE PROPERTY (WITH THE EXCEPTION OF BUYER’S INTELLECTUAL PROPERTY, CONFIDENTIAL FINANCIAL INFORMATION, AND ANY INFORMATION SUBJECT TO LEGAL PRIVILEGE) (THE “MATERIALS”). THE BUYER’S DEPOSIT AND MATERIALS SHALL SERVE AS LIQUIDATED DAMAGES TO THE SELLER FOR A DEFAULT SPECIFIED IN SECTION 8.2.1.1. THE VALUE OF THE BUYER’S DEPOSIT AND MATERIALS CONSTITUTES A REASONABLE ESTIMATE OF THE DAMAGES THAT THE SELLER WOULD INCUR IN THE EVENT OF A DEFAULT. RETENTION OF THE BUYER’S DEPOSIT, AND MATERIALS SHALL BE THE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A DE FAULT A DEFAULT SPECIFIED IN SECTION 8.2.1.1, AND THE SELLER WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER, INCLUDING WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS 15 INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. SELLER WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. BY PLACING ITS INITIALS BELOW, BUYER AND SELLER SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED UPON, AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. INITIALS: _________ ______________ SELLER BUYER 8.3. Termination. This Agreement may be terminated by the Party for whom a condition is intended to benefit: (i) if there is an uncured Default, after notice from the Party not in default and expiration of all cure periods, (ii) if there is a failure of an express Buyer Contingency to Closing (Section 6.2) or Seller Contingency to closing (6.3) (which is not waived by the Party whom the condition benefits) by timely notice from the Party whom the condition benefits, (iii) a representation or warranty of a Party becomes untrue prior to Closing under Section 7.1 or 7.3 (which is not waived by the Party whom the condition benefits), or Seller cannot satisfy a covenant to Closing set forth in Section 7.3 , (iv) upon mutual written consent of the Parties, each in its sole discretion. Upon termination, the Parties will also cooperate to record a notice of termination or quitclaim deed. 8.4 Force Majeure Delay. All obligations in this Agreement shall not be deemed to be in default, all performance and other dates specified in those sections shall be extended, where delays are due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; litigation and arbitration, including court delays; legal challenges to this Agreement, legal challenges to the Project Approvals, or legal challenges to any other approval required from any public agency other than the Seller for the Project, or any initiatives or referenda regarding the same; environmental conditions, pre-existing or discovered, delaying the construction or development of the Property or any portion thereof; unusually severe weather but only to the extent that such weather or its effects (including, without limitation, dry out time) result in delays that cumulatively exceed thirty (30) days for every winter season occurring after commencement of construction of the Project; acts or omissions of the other Party; or acts or failures to act of any public or governmental agency or entity (except that acts or f ailures to act of Seller shall not excuse performance by Seller); moratorium; or a Severe Economic Recession (each a “Force Majeure Delay”). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within sixty (60) days of the commencement of the cause. If notice is sent after such sixty (60) day period, then the extension shall commence to run no sooner than sixty (60) days prior to the giving of such notice. Buyer’s inability or failure to obtain financing or otherwise timely satisfy shall not be deemed to be a cause outside the reasonable control of the Buyer and shall not be the basis for an excused delay unless such inability, failure or delay is a direct result of a Severe Economic Recession. “Severe Economic Recession” means a decline in the monetary value of all finished goods and services produced in the United States, as measured by initial quarterly estimates of United States Gross 16 Domestic Product (“GDP”) published by the United States Department of Commerce Bureau of Economic Analysis (and not subsequent monthly revisions), lasting more than four (4) consecutive calendar quarters. Any quarter of flat or positive GDP growth shall end the period of such Severe Economic Recession. 9. BROKERS. Seller represents that no real estate broker has been retained by Seller in the sale of the Property or the negotiation of this Agreement. Buyer represents that no real estate broker has been retained by Buyer in the procurement of the Property or negotiation of this Agreement. Neither Seller nor Buyer shall pay or be liable for any commissions or brokerage fees for the sale of the Property. Buyer and Seller shall indemnify, hold harmless and defend each other from any and all claims, actions and liability for any breach of the preceding sentence, and any commission, finder’s fee, or similar charges arising out of Buyer’s or Seller’s conduct. 10. ASSIGNMENT. Buyer may not assign its rights or delegate its duties under this Agreement without Seller’s prior written consent, which may be withheld in Seller’s sole discretion, except for an assignment to a “Buyer Permitted Transferee”, set forth in subsections (a)-(c) below, which shall not require Seller’s consent under this Section 10 (each a “Buyer Permitted Transferee”): (a) Any transfer for financing purposes to secure the funds necessary for construction and/or permanent financing of the Project; (b) An assignment of this Agreement to an Affiliate of Buyer; (c) A special purpose entity created by Buyer for the development of the Linden Property to serve as the ownership entity for the Project. For the purposes of this Section 10, “Affiliate of Buyer” means an entity or person that is directly or indirectly controlling, controlled by, or under common control with Buyer. For the purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity or a person, whether through the ownership of voting securities, by contract, or otherwise, and the terms “controlling” and “controlled” have the meanings correlative to the foregoing. Upon execution of an assignment and assumption agreement between Buyer, as assignor, and a Buyer Permitted Transferee, ROEM Development Corporation shall be released from all obligations under this Agreement, and thereafter, for purposes of this Agreement and where the context warrants, a reference to the Buyer shall be to the applicable Permitted Transferee. 17 11. ENVIRONMENTAL INDEMNITY. Effective upon Close of Escrow, to the fullest extent allowed by law, Buyer agrees to unconditionally and fully indemnify, protect, defend (with counsel satisfactory to Seller), and hold Seller, and their respective elected and appointed officers, officials, employees, agents, consultants and contractors harmless from and against any and all claims (including without limitation third party claims for personal injury, real or personal property damage, or damages to natural resources), actions, administrative proceedings (including without limitation both formal and informal proceedings), judgments, damages, punitive damages, penalties, fines, costs (including without limitation any and all costs relating to investigation, assessment, analysis or clean-up of the Property), liabilities (including without limitation sums paid in settlements of claims), interest, or losses, including reasonable attorneys’ and paralegals’ fees and expenses (including without limitation any such fees and expenses incurred in enforcing this Agreement or collecting any sums due hereunder), together with all other costs and expenses of any kind or nature (collectively, the “Costs”) that arise directly or indirectly from or in connection with the presence, suspected presence, release, or suspected release, of any Hazardous Materials in, on or under the Property or in or into the air, soil, soil gas, groundwater, or s urface water at, on, about, around, above, under or within the Property, or any portion thereof, except those Costs that arise solely as a result of actions by Seller or actions by the Seller. The indemnification provided pursuant to this Section shall specifically apply to and include claims or actions brought by or on behalf of employees of Buyer or any of its predecessors in interest and Buyer hereby expressly waives any immunity to which Buyer may otherwise be entitled under any industrial or worker’s compensation laws. In the event the Seller suffers or incurs any Costs, Buyer shall pay to Seller the total of all such Costs suffered or incurred by the Seller upon demand therefore by Seller. The indemnification provided pursuant to this Section shall include, without limitation, all loss or damage sustained by the Seller due to any Hazardous Materials: (a) that are present or suspected by a governmental agency having jurisdiction to be present in the Property or in the air, soil, soil gas, groundwater, or surface water at, on, about, above, under, or within the Property (or any portion thereof) or to have emanated from the Property, or (b) that migrate, flow, percolate, diffuse, or in any way move onto, into, or under the air, soil, soil gas, groundwater, or surface water at, on, about, around, above, under, or within the Property (or any portion thereof) after the date of this Agreement as a result of Seller’s or its predecessors’ activities on the Property. The provisions of this Section 10 shall survive the termination of this Agreement and the Close of Escrow. 12. HAZARDOUS MATERIALS; DEFINITIONS. 12.1. Hazardous Materials. As used in this Agreement, “Hazardous Materials” means any chemical, compound, material, mixture, or substance that is now or may in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below) as a “hazardous substance”, “hazardous material”, “hazardous waste”, “extremely hazardous waste”, infectious waste”, toxic substance”, toxic pollutant”, or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term “Hazardous Materials” shall also include asbestos or asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable as fuel, perchlorate, and methyl tert butyl ether, whether or not defined as a hazardous waste or hazardous substance in the Environmental Laws. 18 12.2. Environmental Laws. As used in this Agreement, “Environmental Laws” means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations or directives, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the environment or human, plant or animal health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 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. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300 et seq.). 13. RELEASE BY BUYER. Effective upon the Close of Escrow, and subject to Seller's representations under this Agreement and any obligations arising under this Agreement or applicable law, Buyer waives releases, remises, acquits and forever discharges Seller, and its officers, directors, appointed and elected officials, managers, employees and agents, and any other person acting on behalf of Seller, from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses and compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Buyer now has or which may arise in the future on account of or in any way arising from or in connection with the physical condition of the Property or any law or regulation applicable thereto including, without limiting the generalit y of the foregoing, any federal, state or local law, ordinance or regulation pertaining to Haz ardous Materials. This Section 13 shall survive the termination of this Agreement and the Close of Escrow. BUYER ACKNOWLEDGES THAT BUYER IS FAMILIAR WITH SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. BY INITIALING BELOW, BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE: 19 Buyer’s initials: _____________ 14. LOSS BY FIRE OR OTHER CASUALTY/CONDEMNATION (a) If prior to the Closing Date the Property is materially damaged or condemned, or if Seller receives notice of pending or threatened condemnation proceedings, as defined in subparagraph (c) below, Buyer shall have the right, exercisable by giving written notice of such decision to Seller within fifteen (15) calendar days after receiving written notice of such damage, condemnation, or threatened condemnation to elect to proceed with this Agreement, subject to the terms and conditions of this Section 14. If Buyer fails to give such written notice of its intent to proceed with the transaction, Buyer shall be deemed to have elected to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder (except for those that expressly survive the termination of this Agreement) and the Deposit shall be returned to Buyer. (b) In the event of any damage to or condemnation of the Property, whether or not material, upon the Closing all insurance or condemnation proceeds payable to Seller by reason of such damage, destruction, or condemnation shall be paid or assigned to Buyer, less such sums as may have been expended by Seller for the repair or restoration of the Property. (c) For the purpose of this paragraph, the phrase “materially damaged or condemned” shall be deemed to mean a loss or damage to the Property the cost of repair or replacement of which exceeds Five Hundred Thousand Dollars ($500,000.00) or which results in diminution in land area which results in a loss of any net square footage of the Property or any condemnation of the Property, threatened or actual. Seller shall notify Buyer in writing within two (2) days of any material damage, condemnation or threatened condemnation. 15. MISCELLANEOUS. 15.1. Attorneys’ Fees. If any party employs counsel to enforce or interpret this Agreement, including the commencement of any legal proceeding whatsoever (including insolvency, bankruptcy, arbitration, mediation, declaratory relief or other litigation), the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs (including the service of process, filing fees, court and court reporter costs, investigative fees, expert witness fees, and the costs of any bonds, whether taxable or not) and shall include the right to recover such fees and costs incurred in any appeal or efforts to collect or otherwise enforce any judgment in its favor in addition to any other remedy it may obtain or be awarded. Any judgment or final order issued in any legal proceeding shall include reimbursement for all such attorneys’ fees and costs. In any legal proceeding, the “prevailing party” shall mean the party determined by the court to most nearly prevail and not necessarily the party in whose favor a judgment is rendered. 15.2. Interpretation. This Agreement has been negotiated at arm’s length and each party has been represented by independent legal counsel in this transaction and this Agreement has been reviewed and revised by counsel to each of the Parties. Accordingly, each party hereby waives any benefit under any rule of law (including Section 1654 of the California 20 Civil Code) or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting party. 15.3. Survival. All indemnities, covenants, representations and warranties contained in this Agreement shall survive Close of Escrow. 15.4. Successors. Except as provided to the contrary in this Agreement, this Agreement shall be binding on and inure to the benefit of the Parties and their successors and assigns. 15.5. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 15.6. Integrated Agreement; Modifications. This Agreement (and all exhibits incorporated herein) contains all the agreements of the Parties concerning the subject hereof any cannot be amended or modified except by a written instrument executed and delivered by the parties. There are no representations, agreements, arrangements or understandings, either oral or written, between or among the parties hereto relating to the subject matter of this Agreement that are not fully expressed herein. In addition there are no representations, agreements, arrangements or understandings, either oral or written, between or among the Parties upon which any party is relying upon in entering this Agreement that are not fully expressed herein. 15.7. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, any such provision shall not be affected by the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision this is in keeping with the intent of the Parties as expressed herein. 15.8. Notices. Any delivery of this Agreement, notice, modification of this Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval, waiver, declaration or other communication that either party desires or is required to give to the other party or any other person shall be in writing. Any such communication may be served personally, or by nationally recognized overnight delivery service (i.e., Federal Express) which provides a receipt of delivery, or sent by prepaid, first class mail, return receipt requested, with a courtsey copy delivered via e-mail, to the party’s address as set forth below: To Buyer: ROEM Development Corporation 1650 Lafayette Street Santa Clara, CA 95050 Attention: Alex Sanchez Telephone: (408) 984-5600 x16 Email: asanchez@roemcorp.com 21 with a copy to: Situs Law, PC Attn: Summer Ludwick 10 Almaden Blvd., Suite 1250 San Jose, CA 95113 Tel (408) 299-0100 Email: sludwick@situslaw.com To Seller: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: Executive Director Tel (650) 877-8501 Email with a copy to: Meyers Nave Attn: Jason Rosenberg 555 12th Street, Suite 1500 Oakland, CA 94607 Tel (510) 808-2000 Email: jrosenberg@meyersnave.com If to Escrow Holder: Chicago Title Insurance Company Escrow Agent: Sherri Keller 675 N. First Street San Jose, CA 95112 Tel (408)993-2325 Email: Sherri.keller@ctt.com Any such communication shall be deemed effective upon p ersonal delivery or on the date of first refusal to accept delivery as reflected on the receipt of delivery or return receipt, as applicable. Any party may change its address by notice to the other party. Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this section and that any person to be given notice actually receives such notice. 15.9. Time. Time is of the essence to the performance of each and every obligation under this Agreement. 15.10. Days of Week. If any date for exercise of any right, giving of any notice, or performance of any provision of this Agreement falls on a Saturday, Sunday or federal observed holiday, the time for performance will be extended to 5:00 p.m. on the next business day. 15.11. Reasonable Consent and Approval. Except as otherwise provided in this Agreement, whenever a Party is required or permitted to give its consent or approval under this Agreement, such consent or approval shall not be unreasonably withheld or delayed. If a Party is required or permitted to give its consent or approval in its sole and absolute discretion or if 22 such consent or approval may be unreasonably withheld, such consent or approval may be unreasonably withheld but shall not be unreasonably delayed. 15.12. Cooperation and Further Assurances. Each Party agrees to cooperate with the other in this transaction and, in that regard, shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of this Agreement. 15.13. Waivers. Any waiver by any Party shall be in writing and shall not be construed as a continuing waiver. No waiver will be implied from an y delay or failure to take action on account of any default by any Party. Consent by any Party to any act or omission by another Party shall not be construed to be consent to any other subsequent act or omission or to waive the requirement for consent to be obtained in any future or other instance. 15.14. Signatures/Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any one of such completely executed counterparts shall be sufficient proof of this Agreement. Copies of original signatures shall suffice for all purposes. 15.15. Access to Property. Prior to the Closing, Seller shall cooperate to enable representatives of Buyer to obtain the right of access to all portions of the Property for the purposes of implementing this Agreement. Buyer agrees to provide written notice to Seller at least twenty four (24) hours prior to undertaking any studies or work upon the Property. Buyer shall indemnify, defend, protect and hold Seller and Seller Parties harmless from any Claims arising out of the acts, omissions, negligence or willful misconduct of Buyer or its employees, agents, contractors, subcontractors or representatives (each a “Buyer Party” and, collectively, the “Buyer Parties”) in connection with such studies and investigations, except for Claims arising from or related to any pre-existing condition on or of the Property or Claims to the extent caused by the active negligence or willful misconduct of Seller or its employees, agents, contractors or representatives. In addition, in the event Buyer or any Buyer Party causes any damage to any portion of the Property, Buyer shall promptly restore the Property as nearly as possible to the physical condition existing immediately prior to Buyer’s entry onto the Property. Buyer’s indemnification obligations set forth in this Section 15.15 shall survive Closing or the termination of this Agreement. 15.16. Memorandum of Agreement. A Memorandum of Agreement in substantially the form of Exhibit E attached hereto and incorporated herein by this reference shall be executed and recorded against the Property immediately following recordation of the Grant Deed. 15.17. Relationship Between Seller and Buyer. It is hereby acknowledged that the relationship between Seller and Buyer is not that of a partnership or joint venture and that Seller and Buyer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the exhibits hereto, Seller shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. 23 15.18. Seller Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by Seller, the City Manager of the City of South San Francisco, or its designee is authorized to act on behalf of Seller. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. SELLER: CITY OF SOUTH SAN FRANCISCO By: _______________________________ Mike Futrell City Manager ATTEST: By: _______________________________ City Clerk APPROVED AS TO FORM: By: _______________________________ Jason Rosenberg City Attorney BUYER: ROEM DEVELOPMENT CORPORATION, a California corporation By: _______________________________ Robert Emami, President APPROVED AS TO FORM: By: _______________________________ Counsel for Buyer 24 Chicago Title Insurance Company agrees to act as Escrow Holder in accordance with the terms of this Agreement. CHICAGO TITLE INSURANCE COMPANY By: Name: Its: Dated: 25 LIST OF EXHIBITS Exhibit A Legal Description Exhibit B Affordable Housing Agreement Exhibit C Development Agreement Exhibit D Completion Guaranty Exhibit E Memorandum of Agreement 26 Exhibit A LEGAL DESCRIPTION For APN/Parcel ID(s): 012-314-010 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOTS 10 AND 11, BLOCK 138, AS DELINEATED UPON THAT CERTAIN MAP ENTITLED "SOUTH SAN FRANCISCO, SAN MATEO CO., CAL. PLAT NO. 1", FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, ON MARCH 1ST, 1892 IN BOOK "B" OF MAPS, AT PAGE 6 AND COPIED INTO BOOK 2 OF MAPS AT PAGE 52. 27 Exhibit B AFFORDABLE HOUSING AGREEMENT [to be provided upon execution] 28 Exhibit C DEVELOPMENT AGREEMENT [to be provided upon execution] 29 Exhibit D COMPLETION GUARANTY [to be provided upon execution] 30 Exhibit E FORM OF MEMORANDUM OF AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: APN: Space above this line for recorder’s use MEMORANDUM OF PURCHASE AGREEMENT THIS MEMORANDUM OF PURCHASE AGREEMENT (this “Memorandum”) is made effective as of the ____ day of _______, _____, by and between_______, a California____________ (“Seller”), and _____________________ (“Buyer”), with reference to the following facts: A. Seller and Buyer have entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated _________, 2017 (the “Agreement”), providing for, among other things, the sale by Seller to Buyer of the real property more particularly described on Exhibit “A” (the “Property”). B. Seller and Buyer now desire to set forth a memorandum of public record of such Agreement. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, it is hereby agreed as follows: 1. Purchase. Seller has agreed to sell to Buyer, and Buyer has agreed to purchase from Seller, the Property upon the terms and subject to the conditions contained in the Agreement, all of which terms and conditions are hereby incorporated herein by this reference as though fully set forth herein. 2. Termination. If not acquired by Buyer pursuant to the Purchase Agreement, this Memorandum shall terminate as of the date the Agreement terminates in accordance with its terms and in no event later than ______________. 3. Purpose. This Memorandum is prepared solely for the purpose of recordation, and it in no way modifies the provisions of the Agreement. 31 4. No Change in Ownership. The recording of this document does not constitute a change in ownership. The recording is for the sole purpose of placing third parties on notice that the Seller has entered into a contract to sell the subject property and that the sale is pending until such time as a Grant Deed is recorded or a Quitclaim Deed releasing the Memorandum is recorded. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date first written above. Seller: By: _________________________________ Name: _______________________________ Its: _________________________________ Date: _____________________________ Buyer By: _________________________________ Name: _______________________________ Its: _________________________________ Date: _____________________________ 1 PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS 201-219 Grand Avenue THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“this Agreement”), dated _______, 2017, for reference purposes only, is made by and between the City of South San Francisco, a municipal corporation, (“City” or the “Seller”) and ROEM Development Corporation, a California corporation (“Buyer”). Seller and Buyer are collectively referred to herein as the “Parties.” RECITALS A. The City of South San Francisco is the owner of certain real property located in the City of South San Francisco, California, at 201-219 Grand Avenue, known as County Assessor's Parcel Numbers 012-316-110, 012-316-100, 012-316-090 and 012-316-080 and more particularly described in Exhibit A attached hereto (the "Grand Property" or the “Property” herein). B. On June 29, 2011, the Legislature of the State of California (the “State”) adopted Assembly Bill x1 26 (“AB 26”), which amended provisions of the State’s Community Redevelopment Law (Health and Safety Code sections 33000 et seq)(the “Dissolution Law”), pursuant to which the former Redevelopment Agency of the City of South San Francisco was dissolved on February 1, 2012. The City became the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Successor Agency”), and in accordance with the Dissolution Law, the Successor Agency prepared a Long Range Property Management Pl an (“LRPMP”), which was approved by a resolution of the Oversight Board for the Successor Agency to the Redevelopment Agency of the City of South San Francisco (“Oversight Board”) on May 21, 2015, and was approved by the Department of Finance (“DOF”) on October 1, 2015. C. Consistent with the Dissolution Law and the LRPMP, certain real properties located in the City of South San Francisco, that were previously owned by the former Redevelopment Agency was transferred to the Successor Agency (“Agency Properties”). On October 18, 2016, the City entered into an Amended and Restated Master Agreement for Taxing Entity Compensation (“Compensation Agreement”) with the various local agencies who receive shares of property tax revenues from the former redevelopment project area (“Taxing Entities”), which provides that upon approval by the Oversight Board of the sale price, and consistent with the LRPMP, the proceeds from the sale of any of the Agency Properties will be distributed to the Taxing Entities in accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former Redevelopment Agency. D. On February 8, 2017, the City adopted Resolution 16-2017 approving the transfer of the Agency Properties from the Successor Agency to the City and in accordance with the requirements set forth in the LRPMP, and on February 21, 2017, the Oversight Board adopted a resolution approving the transfer of the Redevelopment Properties from the Successor Agency to the City. 2 E. Consistent with the LRPMP and the Oversight Board resolution, the Successor Agency and City executed and recorded grant deeds transferring the Agency Properties to the City. The Grand Property is one of the Agency Properties and is subject to the provisions of the LRPMP and the Compensation Agreement. F. The City desires to sell the Grand Property to Buyer for the construction of a high- density, mixed-use project, including 46 residential units, nine (9) of which are required to be below market rate units, and approximately 6,000 square feet of ground floor commercial units (the “Grand Project”), as further described in the Grand Affordable Housing Agreement substantially in the form attached hereto as Exhibit B (the “AHA”). Development of the Grand Project is described and defined in the Development Agreement between the City and Buyer, substantially in the form attached hereto as Exhibit C ( the “DA”). Upon Closing, the AHA and the DA will be recorded in the official records of San Mateo County. G. In order to assist in the construction of affordable units, upon Closing, Seller will provide Buyer a grant in the amount Five Hundred and Twenty Five Thousand Dollars ($525,000.00) from City Affordable Housing In-Lieu Fees, and a grant in the amount of One Million Two Hundred and Twenty Five Thousand ($1,225,000.00) from City Affordable Housing Bond Funds to partially finance the Project on the Grand Property (“City Grants”), as set forth in this Agreement and the DA. The terms and conditions associated with Buyer’s use of the City Grants after the Closing are set forth in the DA. H. On April 4, 2017, City of South San Francisco and Agency and Buyer entered into an Exclusive Negotiation Rights Agreement (“ENRA”) that provided the Buyer the exclusive right to collaborate and negotiate with the City for the purpose of reaching agreement on a project description, appropriate land uses, economic feasibility, and a definitive agreement whose terms and conditions would govern any conveyance and development of the Property. In furtherance thereof, Buyer submitted a deposit in the amount of Two Hundred Thousand Dollars ($200,000.00) to City to reimburse the costs Seller would incur in preparation of this Agreement and the Purchase and Sale Agreement for the Linden Project (“ENRA Deposit”). Upon execution of the ENRA, City provided Buyer with copies, but not ownership, of all City owned non-privileged studies, surveys, plans, specifications, reports, and other documents with respect to the Property that City had in its possession or control, which had not already been provided to Buyer (“Bridging Documents”). I. The Grand Property and the Grand Project are fully entitled, and have obtained planning approval from the Design Review Board, Planning Commission, Successor Agency and City Council as well as the Oversight Board. The Grand Project entitlements include Planning Project: P15-0014; Use Permit UP15-0003; Design Review DR15-0016 and Parking Exception PE15-0001 (collectively herein the “Project Approvals”). Buyer acknowledges and agrees that execution of this Agreement by Agency does not constitute approval for the purpose of the issuance of building permits for the Project, does not limit in any manner the discretion of Agency in such approval process if any, and does not relieve Buyer from the obligation to apply for and obtain any, if necessary, entitlements, approvals, and permits, for construction of the Grand Project on the Grand Property including without limitation, the approval of architectural plans, the issuance of any certificates regarding historic resources required in connection with the Project (if 3 any), and any required environmental review in the event Buyer seeks revisions to any of the above Project Approvals. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth above and the Exhibits attached to this Agreement are each incorporated into the body of this Agreement as if set forth in full. 2. PURCHASE AND SALE. 2.1. Subject to the terms and conditions set forth herein, Seller agree to sell the Property to Buyer, and Buyer hereby agrees to acquire the Property from Seller. 2.2. The purchase price for the Property to be paid by Buyer to City is One Million Two Hundred Thousand Dollars ($1,200,000.00), payable in all cash at Closing. Seller shall distribute the net sale proceeds to the taxing entities pursuant to Section 5 of the Compensation Agreement. 3. ESCROW. 3.1. Escrow Account. This sale shall be consummated through an “Escrow” established with Chicago Title Insurance Company; Escrow Agent: Sherri Keller, 675 N. First Street, San Jose, CA 95112 (“Escrow Holder”). Escrow Holder shall perform all escrow and title services in connection with this Agreement. 3.2. Opening of Escrow; Effective Date. Within three (3) business days of the date that Seller has obtained approval of this executed Agreement by the City Council, approval of the sale price by the Oversight Board, and approval of the executed DA and the executed AHA by the City Council, Seller shall open an escrow account with Escrow Holder by depositing this executed Agreement, the executed DA and the executed AHA into Escrow. The date the executed Agreement, DA and AHA are received by Escrow Holder, as established and confirmed by Escrow Holder, shall be deemed the “Effective Date.” By such deposit Escrow Holder is authorized and instructed to act in accordance with the provisions of this Agreement, which Agreement shall constitute Escrow Holder’s escrow instructions. 3.3. Buyer’s Deposit; Application of Prior ENRA Deposit. Within three (3) business days of the Effective Date, Seller will deposit the one half of the remaining, unused, portion of the ENRA Deposit into Escrow, and Buyer will deposit the di fference between the amount deposited by Seller and $100,000.00, so that the total deposit held in Escrow for the Grand Property as Buyer’s deposit is One Hundred Thousand Dollars ($100,000.00) (the “Deposit”). Note that the other one half of the remaining, unused, portion of the ENRA Deposit will be deposited into the Linden Property Escrow. The Deposit is non-refundable, except in the event of a Seller breach, and is applicable toward the Purchase Price. 4 3.4. Seller’s Administration Fee. Within three (3) business days of the Effective Date, Buyer shall deposit funds in the amount of Fifteen Thousand Dollars ($15,000.00) with Escrow Holder (the “Administration Fee”). Escrow Holder shall immediately release the Administration Fee to Seller, and throughout the term of this Agreement, Seller may draw upon the Administration Fee to compensate it for the cost of reasonably necessary third-party assistance, legal fees and staff time incurred by Seller in administering the sale of the Property. Seller will notify Buyer of the identify, qualifications, scope of work and budget for any third party consultants that will be paid for from the Administration Fee, prior to authorizing work under any such third party contract, and will provide Buyer a written account of the Administration Fee, including copies of any third party invoices under approved scopes of work (excluding any information subject to attorney client privilege) upon Buyer’s request. All costs and fees shall be charged at City’s actual cost and all staff time shall be charged at City’s standard rate. Seller shall deposit the Administration Fee in a separate interest bearing account of Seller and any interest, when received by Seller, will become part of the Administration Fee. City shall account for all deposits, interest earnings and withdraws from the Administration Fee consistent with all reporting requirements of the State of California Department of Finance. The unused portion of the Administration Fee, if any, shall be credited against the Purchase Price at Closing, or returned to Buyer if this Agreement is terminated, for any reason, prior to Closing. 4. APPROVAL OF CONDITION OF TITLE; PROPERTY DISCLOSURE REQUIREMENTS. 4.1. Condition of Title/Preliminary Title Report. At the Closing, Seller shall convey title to the Property to Buyer by grant deed in Escrow Holder’s standard form (the “Grant Deed”). As a condition to Buyer’s obligation to close escrow hereunder, title to the Property to be conveyed to Buyer shall be subject only to the Permitted Exceptions (as defined below). Promptly following the execution of this Agreement, Seller shall deliver or cause the Escrow Holder to deliver to Buyer a preliminary title report issued by Escrow Holder and dated within ten (10) days of the mutual execution of this Agreement (the “Preliminary Title Report”) showing the state of title to the Property, together with copies of all matters shown as exceptions therein. Buyer may also obtain a survey or updated survey of the Property (the “Survey”), at Buyer's sole cost and expense. Buyer shall have the right within the first twenty (20) days following the Effective Date (the “Title Review Period”), to give Seller written notice (“Buyer’s Title Notice”) of Buyer’s disapproval of any title exceptions or matters set forth in the Title Report or Survey, or any other matters affecting Title to the Property (collectively, the “Title Objections”). If Buyer timely gives the Buyer’s Title Notice, Seller shall elect, within fifteen (15) days following receipt of Buyer’s Title Notice, by written notice given to Buyer, whether to remove or delete from the title to be conveyed to Buyer prior to the Closing any or all of the Title Objections. If Buyer fails to timely give the Buyer’s Title Notice, or if Seller fai ls to make such election within the aforementioned fifteen (15) day period, then Seller shall be deemed to have elected not to remove any Title Objections. Upon receipt of Seller’s written notice (or deemed election not to remove the Title Objections), Bu yer may elect, within the Title Review Period, to either (i) terminate this Agreement, in which event all rights and obligations hereunder (except for those that expressly survive the termination of this Agreement) shall cease and the Deposit shall be promptly returned to Buyer, or (ii) waive any title or survey objections it may have, without a 5 reduction of the Purchase Price. If Buyer fails to make an election referred to in the immediately preceding sentence, by written notice to Seller within the Title Review Period, then Buyer shall be deemed to have elected the option to terminate this Agreement as set forth in clause (i) above. As used herein, “Permitted Exceptions” shall mean: (i) non-delinquent liens for real estate taxes and assessments; (ii) any other liens, easements, encumbrances, covenants, conditions and restrictions of record described in the Preliminary Title Report, except those that Seller has expressly agreed to remove pursuant to Paragraph 5(b) above; provided, however, that the lien of any deed of trust shall not be a Permitted Exception in any event; (iii) the DA; (iv) the AHA; and (v) local, state and federal laws, ordinances or governmental regulations including, but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property. Seller will provide Buyer with standard owner affidavits regarding tenants, work on site, etc. if applicable as may reasonably be required by the Title to permit Title Company’s issuance of an ALTA title insurance policy. Delivery of title in accordance with the foregoing shall be evidenced by the willingness of the Escrow Holder to issue, at Closing, at Buyer’s cost, an ALTA Owner’s Policy of Title Insurance in the amount of the Purchase Price showing fee simple title to the Property vested in Buyer (or its assignee), subject only to the Permitted Exceptions and the standard exclusions to coverage shown on such Policy of Title Insurance (the “Title Policy”). 4.2 Environmental and Natural Hazards Disclosure. California Health & Safety Code section 25359.7 requires owners of non-residential real property who know, or have reasonable cause to believe, that any release of hazardous substances are located on or beneath the real property to provide written notice of same to the buyer of real property. Other applicable laws require Seller to provide certain disclosures regarding natural hazards affecting the Property. During the period of time between the execution of the ENRA and the execution of this Agreement, Seller shall make all necessary disclosures required by law 5. BUYER’S SCHEDULE OF PERFORMANCE 5.1. Buyer’s Schedule of Performance. Subject to Force Majeure Delays (as defined in Section 8.4), Buyer shall complete the following milestones in furtherance of the Closing, in accordance with the following schedule: Deadline Milestone (a) Within two (2) months after Effective Date Buyer shall have completed 50% of the Construction Drawings and submitted the Financial ProForma to Seller (b) Within four (4) months after Effective Date Buyer shall have completed all Final Plans and submitted 100% construction drawings to the City for building permits, and submitted an Updated Proforma to Seller 6 Deadline Milestone (c) Within five (5) months after Effective Date Buyer shall have secured Construction Financing and executed a contract with a general contractor for construction of the Project in accordance with the final plans (d) Within six (6) months after Effective Date Buyer and Seller shall have satisfied (or waived in writing) all contingencies to Closing set forth in this Agreement, and be prepared to Close Escrow 6. CLOSING AND PAYMENT OF PURCHASE PRICE 6.1. Closing. The close of escrow (the “Closing” or “Close of Escrow”) shall be deemed to occur on the date the Grant Deed is recorded and Buyer’s funds are released to Seller and the City Grants are released to Buyer, which shall occur within ten (10) days of the date that all of Buyer’s contingencies to Closing set forth in Section 6.2 and Seller’s contingencies to Closing set forth in Section 6.3 have been satisfied, or waived in writing, or such other date that the Parties agree in writing, each in their sole discretion. 6.2. Buyer’s Conditions to Closing. Buyer's obligation to purchase the Property is subject to the satisfaction of all of the following conditions or Buyer's written waiver thereof (in Buyer’s sole discretion) on or before the Closing Date: (a) Buyer has approved the condition of the Property and Waived any further Due Diligence Contingency. Buyer has used the period of time between the execution of the ENRA and the date of the execution of this Agreement as its “Due Diligence Contingency Period” to complete physical inspections of the Property and due diligence related to the purchase of the Property. Pursuant to paragraph 9 of the ENRA, Seller has made available to Buyer for review or copying at Buyer’s expense all non-privileged studies, surveys, plans, specifications, reports, and other documents with respect to the Property that Seller has in its possession or control, which have not already been provided. Buyer understands that notwithstanding the delivery by City to Buyer of any materials, including, without limitation, third party reports, Buyer has relied entirely on Buyer’s own experts and consultants and its own independent investigation in proceeding with the acquisition of the Property. Studies or documents prepared by Seller and its agents solely for the purpose of negotiating the terms of the Purchase Agreement were not required to be provided by Seller to Buyer. Buyer acknowledges that it has completed its due diligence with respect to the physical condition of the Property and is satisfied with respect to such and will provide Seller further written evidence of its acceptance of the condition of the property and its wavier of any due diligence contingency prior to Closing. (b) Seller have performed all obligations to be performed by Seller pursuant to this Agreement. (c) Seller’s representations and warranties herein are true and correct in all material respects as of the Closing Date. 7 (d) Buyer has approved the Title Report, and Title Company is irrevocably committed to issue a ALTA Extended Title Policy to Buyer upon recordation of the Grant Deed and effective as of the Closing Date, insuring title to Buyer in the full amount of the Purchase Price, subject only to the Permitted Exceptions. (e) Seller has deposited the City Grants into Escrow with instructions to release the City Grants to Buyer, only upon the Closing. (f) The Property is free of all occupants, licensees, tenants, and is prepared to be delivered “vacant” to Buyer at Closing. (g) Buyer has secured binding commitments, subject only to commercially reasonable conditions, for all funding necessary for the successful and feasible purchase of the Property and completion of the Project. (h) Thirty (30) days prior to Closing, Buyer’s construction loan, if any, for the Project shall have closed, or shall be ready to close concurrently with the Closing. (i) Five (5) days before closing, Buyer shall have obtained approval of Buyer’s Final Proforma from City, and shall have deposited the approved Final Proforma into Escrow. (j) Buyer has completed all Final Plans and construction drawings and has obtained all building and other permits from the City and other issuing agencies required to construct the Project pursuant to all Final Plans and as required and necessary for the Buyer to satisfy the obligations set forth in the DA and AHA. (k) Buyer shall have executed a construction contract with a qualified and reputable general contractor for the Project, which construction contract shall be enforceable, contain a “prevailing wage” requirement, and require contractor to commence construction promptly upon issuance of the final building permit, and shall have deposited a copy thereof into Escrow five (5) days before Closing. (l) Buyer or Buyer’s General Contractor shall obtain, or cause to be obtained, and deliver to Seller the following bonds: (a) a labor and materials/payment bond or bonds for the general contract, which shall be equal to one hundred percent (100%) of all costs of construction to be incurred pursuant to the general contract, and (b) a performance bond or bonds for the general contractor in an amount equal to one hundred percent (100%) of all costs to be incurred pursuant to the general contract (collectively, the "Bonds"). The Bonds shall be in commercially reasonable form and substance, and name Seller as obligee. (m) Buyer’s General Contractor shall have submitted to City’s Building Department for City’s approval, detailed final construction plans for construction of the Project on the Property (the “Construction Plans”). As used herein “Construction Plans” means the final construction documents that are in conformance with the Bridging Construction Documents (“BCDs”) and Owner’s Minimum Requirements (“OMRs”) and upon which Buyer and Buyer’s contractors shall rely in constructing the Project (including the landscaping, parking, and common areas) and shall include, without limitation, the site development plan, final architectural drawings, 8 landscaping, exterior lighting and signage plans and specifications, materials specifications, final elevations, and building plans and specifications. The Construction Plans shall be based upon the scope of development set forth in the BCDs and upon the Project Approvals, and shall not materially deviate therefrom without the express written consent of Seller. Provided the Construction Plans are consistent with the BCDs, approval of the Construction Plans by City shall be deemed approval thereof by Seller. (n) Buyer is prepared to deliver a guaranty of completion of the Project in accordance with the terms of this Agreement, substantially in the form of Exhibit D ("Completion Guaranty") attached hereto. 6.3. Seller’s Conditions to Closing. The Close of Escrow and Seller’s obligation to sell and convey the Property to Buyer are subject to the satisfaction of the following conditions or Seller’s written waiver (in Seller’s sole discretion) of such conditions on or before the Closing Date or any sooner date stated below: (a) Buyer has performed all obligations to be performed by Buyer pursuant to this Agreement before Closing Date. (b) Buyer's representations and warranties set forth herein are true and correct in all material respects as of the Closing Date. (c) Buyer’s Financing Commitments. Forty-five (45) days prior to Closing, Buyer has provided Seller written confirmation, acceptable to Seller, which approval shall not be unreasonably withheld, that Buyer has obtained financing commitments for the acquisition and construction financing for the acquisition and development of the Property: (d) Construction Loan. Thirty (30) days prior to Closing, Buyer’s construction loan, if any, for the Project shall have closed, or shall be ready to close concurrently with the Closing. (e) Proforma. Thirty (30) days before closing, Buyer shall have obtained approval of Buyer’s Final Proforma from City, and shall have deposited the approved Final Proforma into Escrow. (f) Buyer shall have completed all Final Plans and construction drawings and has obtained all building and other permits from the City and other issuing agencies required to construct the Project pursuant to all Final Plans and as required and necessary for the Buyer to satisfy the obligations set forth in the DA and AHA. (g) Buyer shall have executed a construction contract with a qualified and reputable general contractor for the Project, which construction contract shall be enforceable, contain a “prevailing wage” requirement, and require contractor to commence construction promptly upon issuance of the final building permit, and shall have deposited a copy thereof into Escrow five (5) days before Closing. (h) Buyer or Buyer’s General Contractor shall have obtained and delivered to Seller the following bonds: (a) a labor and materials/payment bond or bonds for the 9 general contract, which shall be equal to one hundred percent (100%) of all costs of construction to be incurred pursuant to the general contract, and (b) a performance bond or bonds for the general contractor in an amount equal to one hundred percent (100%) of all costs to be incurred pursuant to the general contract (collectively, the "Bonds"). The Bonds shall be in commercially reasonable form and substance and shall name Seller as obligee. (i) Construction Plans. Buyer’s General Contractor shall have submitted to City’s Building Department for City’s approval, detailed final construction plans for construction of the Project on the Property (the “Construction Plans”). As used herein “Construction Plans” means the final construction documents that are in conformance with the Bridging Construction Documents (“BCDs”) and Owner’s Minimum Requirements (“OMRs”) and upon which Buyer and Buyer’s contractors shall rely in constructing the Project (including the landscaping, parking, and common areas) and shall include, without limitation, the site development plan, final architectural drawings, landscaping, exterior lighting and signage plans and specifications, materials specifications, final elevations, and building plans and specifications. The Construction Plans shall be based upon the scope of development set forth in the BCDs and upon the Project Approvals, and shall not materially deviate therefrom without the express written consent of Seller. Provided that the Construction Plans are consistent with the BCDs, approval of the Construction Plans by City shall be deemed approval thereof by Seller. (j) Buyer’s Completion Guaranty. Buyer has delivered its Completion Guaranty to Escrow Holder. 6.4. Closing Deliveries. 6.4.1 Delivery of Documents and Closing Funds. At or prior to Closing, Seller and Buyer shall each deposit such other instruments as are reasonably required by the Title Company or otherwise required to close the escrow and consummate the conveyance of the Property in accordance with the terms hereof, including but not limited to the following: 6.4.1.1 Deliveries by Seller. At or before Closing, Seller shall deposit the following into escrow: (i) one (1) original executed and acknowledged Grant Deed; (ii) one (1) duly executed non-foreign certification for the Property in accordance with the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended; (iii) one (1) duly executed California Form 593-W Certificate for the Property or comparable non-foreign person affidavit to satisfy the requirements of California Revenue and Taxation Code Section 18805(b) and 26131; (iv) title to all Bridging Documents; and (v) funds in the total amount of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) for the City Grants. 6.4.1.2 Condition to disbursement of City Grants. City’s obligation to provide Seller with City Grants in the total amount of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00) at the Closing Date is conditioned upon Close of Escrow. If the Closing does not occur, for any reason whatsoever, the City has no obligation to deliver the City Grants to Buyer. 6.4.1.3 Deliveries by Buyer. No less than five (5) business days prior to the close of escrow, Buyer shall deposit into escrow: (i) immediately available funds 10 which together with the Deposit plus interest thereon, if any, is equal to: a) the Purchase Price as adjusted by any prorations between the Parties; (b) all escrow fees (including the costs of preparing documents and instruments) and recording fees and all transfer taxes; (c) the cost of the Title Policy and title report costs (d) any other costs that are the responsibility of Buyer under this Agreement; (ii) a fully executed Completion Guarantee executed by Buyer; and, (iii) one (1) original executed Preliminary Change of Ownership Report for the Property. 6.4.2. Escrow Instructions. This Agreement constitutes the joint escrow instructions (JEI) of Seller and Buyer with respect to the conveyance of the Property to Buyer, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties shall use reasonable good faith efforts to close the escrow for the conveyance of the Property in the shortest possible time. All funds received in the escrow shall be deposited in interest-bearing accounts for the benefit of the depositing Party in any state or national bank doing business in the State of California. All disbursements shall be made by check or wire transfer from such accounts. If, in the opinion of either Party, it is necessary or convenient in order to accomplish the Closing, such Party may provide supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control. The Closing shall take place as set forth in Section 6.4.3 below. Escrow Agent is instructed to release Seller’s and Buyer’s escrow closing statements to the respective parties. 6.4.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall: (a) Pay and charge Buyer for the premium of the Title Policy, including any endorsements requested by Buyer. (b) Pay and charge Buyer for escrow fees, charges, and costs as provided in Section 6.4.1.2. (c) Disburse to Seller the Purchase Price, less Seller’s share of any escrow fees, costs and expenses, and record the Grant Deed when both the Buyer Conditions Precedent and Seller Conditions Precedent have been fulfilled or waived in writing by Buyer and Seller, as applicable. Immediately following recordation of the Grant Deed, Escrow Agent shall record the DA and AHA. (d) Disburse to Buyer the City Grants. (e) Do such other actions as necessary, including obtaining and issuing the Title Policy, to fulfill its obligations under this Agreement. (f) Direct Seller and Buyer to execute and deliver any instrument, affidavit, and statement, and to perform any act, reasonably necessary to comply with the provisions of FIRPTA, if applicable, and any similar state act and regulations promulgated thereunder. (g) Prepare and file with all appropriate governmental or taxing authorities uniform settlement statements, closing statements, tax withholding forms including IRS 1099 -S forms, and be responsible for withholding taxes, if any such forms are provided for or required by law. 11 (h) Deliver to Buyer the certificate of title to those Bridging Documents for which Buyer has previously requested transfer of ownership from Seller to Buyer, the Non-Foreign Affidavit, the California Certificate and the original recorded grant deed; 6.4.4 Pro-Rations. At the close of escrow, the Escrow Agent shall make the following prorations: (i) property taxes will be prorated as of the close of escrow based upon the most recent tax bill available, including any property taxes which may be assessed after the close of escrow but which pertain to the period prior to the transfer of title to the Property to Buyer, regardless of when or to whom notice thereof is delivered; and (ii) any Seller reimbursement for the unapplied portion of the Administrative Fee. 7. REPRESENTATIONS, WARRANTIES AND COVENANTS. 7.1. Seller’s Representations, Warranties. In addition to the representations, warranties and covenants of Seller contained in the other sections of this Agreement, Seller hereby represents, warrants and covenants to Buyer that the statements below in this Section 7.1 are each true and correct as of the Closing Date provided however, if to Seller’s actual knowledge any such statement becomes untrue prior to Closing, Seller will notify Buyer in writing and Buyer will have three (3) business days thereafter to determine if Buyer wishes to proceed with Closing. If Buyer determines it does not wish to proceed, then the terms of Section 8 will apply. As used herein, the term “to Seller’s best knowledge” shall mean the knowledge of :_______________, with duty of inquiry. (a) Authority. Seller is a public agency, lawfully formed, in existence and in good standing under the laws of the State of California. Seller has the full right, capacity, power, authority, and all necessary approvals to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by Seller, and upon delivery to and execution by Buyer is a valid and binding agreement of Seller. (b) Encumbrances. Other than the approval and recordation of the DA and AHA at Closing, Seller has not alienated, encumbered, transferred, mortgaged, assigned, pledged, or otherwise conveyed its interest in the Property or any portion thereof, nor entered into any Agreement to do so, and there are no liens, encumbrances, mortgages, covenants, conditions, reservations, restrictions, easements or other matters affecting the Property, except for the Permitted Exceptions. Seller will not, directly or indirectly, alienate, encumber, transfer, mortgage, assign, pledge, or otherwise convey its interest prior to the Close of Escrow, as long as this Agreement is in force. (c) There are no agreements affecting the Property except those which have been disclosed by Seller. There are no agreements which will be binding on the Buyer or the Property after the Close of Escrow. (d) Condemnation. To Seller’s best knowledge, there are not presently pending any eminent domain or condemnation actions against the Property or any part thereof; and Seller has not received written notice of any eminent domain or condemnation actions being contemplated that would affect the Property or any part thereof. 12 (e) Claims. To Seller’s best knowledge, Seller has not received written notice of any claims or of any legal actions or proceedings in any court pending against the Property or against Seller that may affect the Property or Seller’s ability to consummate the transaction contemplated in this Agreement. To Seller’s best knowledge, Seller has not received any written notice that the condition of the Property is in violation of any laws or regulations or the requirements of any insurance underwriters or policies. (f) Lease; Occupancy Rights; Superior Rights. There are no leases, occupancy rights, rights of first refusal or rights of first offer that affect the Property. Seller will deliver the property vacant and free of any lease agreements or occupancy rights prior to or at close of escrow. (g) No Conflict. The execution and delivery of this Agreement, and the sale and conveyance of the Property contemplated hereby, do not and will not (a) violate the terms of any order, writ or decree of any court or judicial or regulatory authority or body binding upon Seller, (b) conflict with or result in a breach of any condition or provision or constitute a default under or pursuant to the terms of any contract, mortgage, lien, lease, agreement, debenture or instrument to which Seller is a party, or which is or purports to be binding upon Seller or upon the Property, or (c) to Seller’s best knowledge, violate any rule, regulation, statute or law applicable to Seller. (h) Historical Designation of the Property. To Seller’s best knowledge, Seller has not received written notice of any pending applications for or current designations of the Property as a historic building or landmark. (i) Property Documents. All Bridging Documents provided by Seller to Buyer are true, correct and complete copies of all documents and information relating to the Property in Seller’s possession and control. To the extent that Seller’s Bridging Documents were prepared by third parties or for third parties, including a previous potential buyer of the Property, Seller represents to Buyer that Seller has the right to provide such materials to Buyer and is not prohibited by contract or otherwise from disclosing such materials to Buyer, but Seller does not make any representation about Buyer’s ability or inability to use or rely on any such materials, or the accuracy or completeness thereof. Seller shall not be liable to Buyer or any other party for any detrimental reliance on such third-party materials. (j) Environmental Laws. To Seller’s best knowledge, the Property is not in violation of any federal, state, local or administrative agency ordinance, law, rule, regulation, order or requirement relating to environmental conditions or Hazardous Material (“Environmental Laws”). To Seller’s best knowledge, Seller has not used, manufactured, generated, treated, stored, disposed of, or released any Hazardous Materials on, under or about the Property or transported any Hazardous Materials over the Property except in compliance with Environmental Laws. For the purposes hereof, “Hazardous Material” shall mean any substance, chemical, waste or other material which is listed, defined or otherwise identified as “hazardous” or “toxic” under any federal, state, local or administrative agency ordinance or law, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., or any regulation, order, rule or requirement adopted thereunder, as well as any formaldehyde, urea, 13 polychlorinated biphenyls, petroleum, petroleum product or by-product, crude oil, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel or mixture thereof, radon, asbestos, and “source,” “special nuclear” and “by-product” material as defined in the Atomic Energy Act of 1985,42 U.S.C. §§ 3011 et seq. 7.2. Seller’s Covenants. From the Effective Date, through the Closing, Seller covenants as follows: (a) Seller shall terminate all maintenance or service contracts and utilities relating to and servicing the Property, as of the Closing Date. (b) Seller shall remove all fixtures, furnishings and equipment and personal property (“FF&E”) that is not adhered to or an integral improvement to the Property as of the Closing Date, so that the Property is delivered in a vacant, broom-clean condition with all trash and personal effects removed. (c) Seller shall maintain and operate the Property in its present state of repair and in substantially the same condition as on the Effective Date. (d) Seller shall pay all liens, encumbrances, taxes, penalties, interest and assessments on the Property, and perform all covenants thereunder, before they become delinquent or a default would occur thereunder. (e) Seller shall maintain in effect all insurance policies relative to the Property in full force and effect. (f) Seller shall promptly notify Buyer if any of the representations and warranties set forth in this Agreement become untrue prior to the Closing Date. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Seller contained in this Agreement are conditions precedent to Buyer’s obligation to proceed with the Closing hereunder. The foregoing representations and warranties shall survive the expiration, termination, or close of escrow of this Agreement and shall not be deemed merged into the deed upon closing. 7.3. Buyer’s Representations and Warranties. In addition to the representations, warranties and covenants of Buyer contained in the other sections of this Agreement, Buyer hereby represents, warrants and covenants to Seller that the statements below in this Section 7.3 are each true as of the Effective Date, and, if to Buyer’s actual knowledge any such statement becomes untrue prior to Closing, Buyer shall so notify Seller in writing and Seller shall have at least three (3) business days thereafter to determine if Seller wishes to proceed with Closing. (a) Buyer has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by Buyer, and upon delivery to and execution by Seller shall be a valid and binding agreement of Buyer. 14 (b) Buyer is not bankrupt or insolvent under any applicable federal or state standard, has not filed for protection or relief under any applicable bankruptcy or creditor protection statute, and has not been threatened by creditors with an involuntary application of any applicable bankruptcy or creditor protection statute. (c) Buyer accepts and acknowledges that after the Closing, the Property will be subject to the DA and AHA, which will be recorded against the Property at Closing. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Buyer contained in this Agreement are conditions precedent to Seller’s obligation to proceed with the Closing hereunder. 7.4. Property Sold, “AS IS”. Buyer specifically acknowledges that the Seller is selling the Property on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis and that, subject to Seller's representations, warranties, covenants and obligations set forth in this Agreement, and all exhibits attached hereto and incorporated herein, and any obligations arising under applicable law, Buyer is not relying on any representations or warranties of an y kind whatsoever, express or implied, from Seller, or its employees, appointed or elected officials, agents, or brokers as to any matters concerning the Property. The Seller makes no representations or warranties as to any matters concerning the Property, including without limitation: (i) the quality, nature, adequacy and physical condition of the Property, (ii) the quality, nature, adequacy, and physical condition of soils, geology and any groundwater, (iii) the existence, quality, nature, adequacy and physical condition of utilities serving the Property, (iv) the development potential of the Property, and the Property's use, habitability, merchantability, or fitness, suitability, value or adequacy of the property for any particular purpose, (v) except as otherwise provided in this Agreement, the zoning or other legal status of the Property or any other public or private restrictions on use of the Property, (vi) the compliance of the Property or its operation with any Environmental Laws, covenants, conditions and restrictions of any governmental or quasi-governmental entity or of any other person or entity, (vii) the presence or removal of Hazardous Materials, substances or wastes on, under or about the Property or the adjoining or neighboring property; (viii) the quality of any labor and materials used in any improvements on the Property, (ix) the condition of title to the Property, (x) the leases, service contracts, or other agreements affecting the Property, or (xi) the economics of the operation of the Property. 8. DEFAULT, REMEDIES, TERMINATION. 8.1. Default Remedies – General. Failure by either Party to perform any action or covenant required by this Agreement within sixty (60) days following receipt of written Notice from the other Party specifying the failure shall constitute a “Default” under this Agreement; provided, however, that if the failure to perform cannot be reasonably cured within such sixty (60) day period, a Party shall be allowed additional time as is reasonably necessary to cure the failure so long as such Party commences to cure the failure within the sixty (60) day period and thereafter diligently prosecutes the cure to completion. 8.2. Default. 15 8.2.1 Remedies. 8.2.1.1 Default by Buyer; Seller’s Remedies. Upon the occurrence of an uncured Default by Buyer, Seller’s remedies shall be limited to (i) liquidated damages pursuant to Section 8.2.2 and (ii) termination of this Agreement pursuant to Section 8.3. 8.2.1.2 Default by Seller; Buyer’s Remedies. Upon the occurrence of a Default by Seller under this Agreement, Buyer’s remedies shall be limited to obtaining specific performance or injunctive relief, or terminating this Agreement, and in either event, return of the Deposit and any unused portion of the Administrative Fee. 8.2.2 Liquidated Damages. SUBJECT TO NOTICE AND EXPIRATION OF APPLICABLE CURE PERIODS AND ANY PERMITTED EXTENSIONS OF TIME AS PROVIDED IN THIS AGREEMENT, IF IN THE EVENT OF A BUYER DEFAULT AS SET FORTH IN 8.2.1.1, SELLER WILL SUFFER DAMAGES AND THAT IT IS IMPRACTICABLE AND INFEASIBLE TO FIX THE ACTUAL AMOUNT OF SUCH DAMAGES. THEREFORE, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF TH IS AGREEMENT, IN THE EVENT OF AN UNCURED DEFAULT, BUYER, WITHIN THIRTY (30) DAYS FOLLOWING SELLER’S WRITTEN DEMAND THEREFOR, SHALL TURN OVER ALL REPORTS AND PLANS IN THE BUYER’S ACTUAL OR CONSTRUCTIVE POSSESSION THAT HAVE BEEN PREPARED BY AND FOR BUYER RELATED TO THE PROJECT AND THE PROPERTY (WITH THE EXCEPTION OF BUYER’S INTELLECTUAL PROPERTY, CONFIDENTIAL FINANCIAL INFORMATION, AND ANY INFORMATION SUBJECT TO LEGAL PRIVILEGE) (THE “MATERIALS”). THE BUYER’S DEPOSIT AND MATERIALS SHALL SERVE AS LIQUIDATED DAMAGES TO THE SELLER FOR A DEFAULT SPECIFIED IN SECTION 8.2.1.1. THE VALUE OF THE BUYER’S DEPOSIT AND MATERIALS CONSTITUTES A REASONABLE ESTIMATE OF THE DAMAGES THAT THE SELLER WOULD INCUR IN THE EVENT OF A DEFAULT. RETENTION OF THE BUYER’S DEPOSIT, AND MATERIALS SHALL BE THE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A DEFAULT A DEFAULT SPECIFIED IN SECTION 8.2.1.1, AND THE SELLER WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER, INCLUDING WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. SELLER WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. BY PLACING ITS INITIALS BELOW, BUYER AND SELLER SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED UPON, AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. INITIALS: _________ ______________ SELLER BUYER 16 8.3. Termination. This Agreement may be terminated by the Party for whom a condition is intended to benefit: (i) if there is an uncured Default, after notice from the Party not in default and expiration of all cure periods, (ii) if there is a failure of an express Buyer Contingency to Closing (Section 6.2) or Seller Contingency to closing (6.3) (which is not waived by the Party whom the condition benefits) by timely notice from the Party whom the condition benefits, (iii) a representation or warranty of a Party becomes untrue prior to Closing under Section 7.1 or 7.3 (which is not waived by the Party whom the condition benefits), or Seller cannot satisfy a covenant to Closing set forth in Section 7.3 , (iv) upon mutual written consent of the Parties, each in its sole discretion. Upon termination, the Parties will also cooperate to record a notice of termination or quitclaim deed. 8.4 Force Majeure Delay. All obligations in this Agreement shall not be deemed to be in default, all performance and other dates specified in those sections shall be extended, where delays are due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; litigation and arbitration, including court delays; legal challenges to this Agreement, legal challenges to the Project Approvals, or legal challenges to any other approval required from any public agency other than the Seller for the Project, or any initiatives or referenda regarding the same; environmental conditions, pre-existing or discovered, delaying the construction or development of the Property or any portion thereof; unusually severe weather but only to the extent that such weather or its effects (including, without limitation, dry out time) result in delays that cumulatively exceed thirty (30) days for every winter season occurring after commencement of construction of the Project; acts or omissions of the other Party; or acts or failures to act of any public or governmental agency or entity (except that acts or failures to act of Seller shall not excuse performance by Seller); moratorium; or a Severe Economic Recession (each a “Force Majeure Delay”). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within sixty (60) days of the commencement of the cause. If notice is sent after such sixty (60) day period, then the extension shall commence to run no sooner than sixty (60) days prior to the giving of such notice. Buyer’s inability or failure to obtain financing or otherwise timely satisfy shall not be deemed to be a cause outside the reasonable control of the Buyer and shall not be the basis for an excused delay unless such inability, failure or delay is a direct result of a Severe Economic Recession. “Severe Economic Recession” means a decline in the monetary value of all finished goods and services produced in the United States, as measured by initial quarterly estimates of United States Gross Domestic Product (“GDP”) published by the United States Department of Commerce Bureau of Economic Analysis (and not subsequent monthly revisions), lasting more than four (4) consecutive calendar quarters. Any quarter of flat or positive GDP growth shall end the period of such Severe Economic Recession. 9. BROKERS. Seller represents that no real estate broker has been retained by Seller in the sale of the Property or the negotiation of this Agreement. Buyer represents that no real estate broker has been retained by Buyer in the procurement of the Property or negotiation of this Agreement. Neither Seller nor Buyer shall pay or be liable for any commissions or brokerage fees for the sale of the Property. Buyer and Seller shall indemnify, hold harmless and defend each other from any and all claims, actions and liability for any breach of the preceding sentence, and any commission, finder’s fee, or similar charges arising out of Buyer’s or Seller’s conduct. 17 10. ASSIGNMENT. Buyer may not assign its rights or delegate its duties under this Agreement without Seller’s prior written consent, which may be withheld in Seller’s sole discretion, except for an assignment to a “Buyer Permitted Transferee”, set forth in subsections (a)-(c) below, which shall not require Seller’s consent under this Section 10 (each a “Buyer Permitted Transferee”): (a) Any transfer for financing purposes to secure the funds necessary for construction and/or permanent financing of the Project; (b) An assignment of this Agreement to an Affiliate of Buyer; (c) A special purpose entity created by Buyer for the development of the Grand Property to serve as the ownership entity for the Project. For the purposes of this Section 10, “Affiliate of Buyer” means an entity or person that is directly or indirectly controlling, controlled by, or under common control with Buyer. For the purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity or a person, whether through the ownership of voting securities, by contract, or otherwise, and the terms “controlling” and “controlled” have the meanings correlative to the foregoing. Upon execution of an assignment and assumption agreement between Buyer, as assignor, and a Buyer Permitted Transferee, ROEM Development Corporation shall be released from all obligations under this Agreement, and thereafter, for purposes of this Agreement and where the context warrants, a reference to the Buyer shall be to the applicable Permitted Transferee. 18 11. ENVIRONMENTAL INDEMNITY. Effective upon Close of Escrow, to the fullest extent allowed by law, Buyer agrees to unconditionally and fully indemnify, protect, defend (with counsel satisfactory to Seller), and hold Seller, and their respective elected and appointed officers, officials, employees, agents, consultants and contractors harmless from and against any and all claims (including without limitation third party claims for personal injury, real or personal property damage, or damages to natural resources), actions, administrative proceedings (including without limitation both formal and informal proceedings), judgments, damages, punitive damages, penalties, fines, costs (including without limitation any and all costs relating to investigation, assessment, analysis or clean-up of the Property), liabilities (including without limitation sums paid in settlements of claims), interest, or losses, including reasonable attorneys’ and paralegals’ fees and expenses (including without limitation any such fees and expenses incurred in enforcing this Agreement or collecting any sums due hereunder), together with all other costs and expenses of any kind or nature (collectively, the “Costs”) that arise directly or indirectly from or in connection with the presence, suspected presence, release, or suspected release, of any Hazardous Materials in, on or under the Property or in or into the air, soil, soil gas, groundwater, or surface water at, on, about, around, above, under or within the Property, or any portion thereof, except those Costs that arise solely as a result of actions by Seller or actions by the Seller. The indemnification provided pursuant to this Section shall specifically apply to and include claims or actions brought by or on behalf of employees of Buyer or any of its predecessors in interest and Buyer hereby expressly waives any immunity to which Buyer may otherwise be entitled under any industrial or worker’s compensation laws. In the event the Seller suffers or incurs any Costs, Buyer shall pay to Seller the total of all such Costs suffered or incurred by the Seller upon demand therefore by Seller. The indemnification provided pursuant to this Section shall include, withou t limitation, all loss or damage sustained by the Seller due to any Hazardous Materials: (a) that are present or suspected by a governmental agency having jurisdiction to be present in the Property or in the air, soil, soil gas, groundwater, or surface water at, on, about, above, under, or within the Property (or any portion thereof) or to have emanated from the Property, or (b) that migrate, flow, percolate, diffuse, or in any way move onto, into, or under the air, soil, soil gas, groundwater, or surface water at, on, about, around, above, under, or within the Property (or any portion thereof) after the date of this Agreement as a result of Seller’s or its predecessors’ activities on the Property. The provisions of this Section 10 shall survive the termination of this Agreement and the Close of Escrow. 12. HAZARDOUS MATERIALS; DEFINITIONS. 12.1. Hazardous Materials. As used in this Agreement, “Hazardous Materials” means any chemical, compound, material, mixture, or substance that is now or may in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below) as a “hazardous substance”, “hazardous material”, “hazardous waste”, “extremely hazardous waste”, infectious waste”, toxic substance”, toxic pollutant”, or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term “Hazardous Materials” shall also include asbestos or asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable as fuel, perchlorate, and methyl tert butyl ether, whether or not defined as a hazardous waste or hazardous substance in the Environmental Laws. 19 12.2. Environmental Laws. As used in this Agreement, “Environmental Laws” means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations or directives, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the environment or human, plant or animal health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 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. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300 et seq.). 13. RELEASE BY BUYER. Effective upon the Close of Escrow, and subject to Seller's representations under this Agreement and any obligations arising under this Agreement or applicable law, Buyer waives releases, remises, acquits and forever discharges Seller, and its officers, directors, appointed and elected officials, managers, employees and agents, and any other person acting on behalf of Seller, from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses and compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Buyer now has or which may arise in the future on account of or in any way arising from or in connection with the physical condition of the Property or any law or regulation applicable thereto including, without limiting the generality of the foregoing, any federal, state or local law, ordinance or regulation pertaining to Haz ardous Materials. This Section 13 shall survive the termination of this Agreement and the Close of Escrow. BUYER ACKNOWLEDGES THAT BUYER IS FAMILIAR WITH SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. BY INITIALING BELOW, BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE: 20 Buyer’s initials: _____________ 14. LOSS BY FIRE OR OTHER CASUALTY/CONDEMNATION (a) If prior to the Closing Date the Property is materially damaged or condemned, or if Seller receives notice of pending or threatened condemnation proceedings, as defined in subparagraph (c) below, Buyer shall have the right, exercisable by giving written notice of such decision to Seller within fifteen (15) calendar days after receiving written notice of such damage, condemnation, or threatened condemnation to elect to proceed with this Agreement, subject to the terms and conditions of this Section 14. If Buyer fails to give such written notice of its intent to proceed with the transaction, Buyer shall be deemed to have elected to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder (except for those that expressly survive the termination of this Agreement) and the Deposit shall be returned to Buyer. (b) In the event of any damage to or condemnation of the Property, whether or not material, upon the Closing all insurance or condemnation proceeds payable to Seller by reason of such damage, destruction, or condemnation shall be paid or assigned to Buyer, less such sums as may have been expended by Seller for the repair or restoration of the Property. (c) For the purpose of this paragraph, the phrase “materially damaged or condemned” shall be deemed to mean a loss or damage to the Property the cost of repair or replacement of which exceeds Five Hundred Thousand Dollars ($500,000.00) or which results in diminution in land area which results in a loss of any net square footage of the Property or any condemnation of the Property, threatened or actual. Seller shall notify Buyer in writing within two (2) days of any material damage, condemnation or threatened condemnation. 15. MISCELLANEOUS. 15.1. Attorneys’ Fees. If any party employs counsel to enforce or interpret this Agreement, including the commencement of any legal proceeding whatsoever (including insolvency, bankruptcy, arbitration, mediation, declaratory relief or other litigation), the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs (including the service of process, filing fees, court and court reporter costs, investigative fees, expert witness fees, and the costs of any bonds, whether taxable or not) and shall include the right to recover such fees and costs incurred in any appeal or efforts to collect or otherwise enforce any judgment in its favor in addition to any other remedy it may obtain or be awarded. Any judgment or final order issued in any legal proceeding shall include reimbursement for all such attorneys’ fees and costs. In any legal proceeding, the “prevailing party” shall mean the party determined by the court to most nearly prevail and not necessarily the party in whose favor a judgment is rendered. 15.2. Interpretation. This Agreement has been negotiated at arm’s length and each party has been represented by independent legal counsel in this transaction and this Agreement has been reviewed and revised by counsel to each of the Parties. Accordingly, each party hereby waives any benefit under any rule of law (including Section 1654 of the California 21 Civil Code) or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting party. 15.3. Survival. All indemnities, covenants, representations and warranties contained in this Agreement shall survive Close of Escrow. 15.4. Successors. Except as provided to the contrary in this Agreement, this Agreement shall be binding on and inure to the benefit of the Parties and their successors and assigns. 15.5. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 15.6. Integrated Agreement; Modifications. This Agreement (and all exhibits incorporated herein) contains all the agreements of the Parties concerning the subject hereof any cannot be amended or modified except by a written instrument executed and delivered by the parties. There are no representations, agreements, arrangements or understandings, either oral or written, between or among the parties hereto relating to the subject matter of this Agreement that are not fully expressed herein. In addition there are no representations, agreements, arrangements or understandings, either oral or written, between or among the Parties upon which any party is relying upon in entering this Agreement that are not fully expressed herein. 15.7. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such i llegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, any such provision shall not be affected by the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision this is in keeping with the intent of the Parties as expressed herein. 15.8. Notices. Any delivery of this Agreement, notice, modification of this Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval, waiver, declaration or other communication that either party desires or is required to give to the other party or any other person shall be in writing. Any such communication may be served personally, or by nationally recognized overnight delivery service (i.e., Federal Express) which provides a receipt of delivery, or sent by prepaid, first class mail, return receipt requested, with a courtsey copy delivered via e-mail, to the party’s address as set forth below: To Buyer: ROEM Development Corporation 1650 Lafayette Street Santa Clara, CA 95050 Attention: Alex Sanchez Telephone: (408) 984-5600 x16 Email: asanchez@roemcorp.com 22 with a copy to: Situs Law, PC Attn: Summer Ludwick 10 Almaden Blvd., Suite 1250 San Jose, CA 95113 Tel (408) 299-0100 Email: sludwick@situslaw.com To Seller: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: Executive Director Tel (650) 877-8501 Email with a copy to: Meyers Nave Attn: Jason Rosenberg 555 12th Street, Suite 1500 Oakland, CA 94607 Tel (510) 808-2000 Email: jrosenberg@meyersnave.com If to Escrow Holder: Chicago Title Insurance Company Escrow Agent: Sherri Keller 675 N. First Street San Jose, CA 95112 Tel (408)993-2325 Email: Sherri.keller@ctt.com Any such communication shall be deemed effective upon personal delivery or on the date of first refusal to accept delivery as reflected on the receipt of delivery or return receipt, as applicable. Any party may change its address by notice to the other party. Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this section and that any person to be given notice actually receives such notice. 15.9. Time. Time is of the essence to the performance of each and every obligation under this Agreement. 15.10. Days of Week. If any date for exercise of any right, giving of any notice, or performance of any provision of this Agreement falls on a Saturday, Sunday or federal observed holiday, the time for performance will be extended to 5:00 p.m. on the next business day. 15.11. Reasonable Consent and Approval. Except as otherwise provided in this Agreement, whenever a Party is required or permitted to give its consent or approval under this Agreement, such consent or approval shall not be unreasonably withheld or delayed. If a Party is required or permitted to give its consent or approval in its sole and absolute discretion or if 23 such consent or approval may be unreasonably withheld, such consent or approval may be unreasonably withheld but shall not be unreasonably delayed. 15.12. Cooperation and Further Assurances. Each Party agrees to cooperate with the other in this transaction and, in that regard, shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of this Agreement. 15.13. Waivers. Any waiver by any Party shall be in writing and shall not be construed as a continuing waiver. No waiver will be implied from any delay or failure to take action on account of any default by any Party. Consent by any Party to any act or omission by another Party shall not be construed to be consent to any other subsequent act or omission or to waive the requirement for consent to be obtained in any future or other instance. 15.14. Signatures/Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any one of such completely executed counterparts shall be sufficient proof of this Agreement. Copies of original signatures shall suffice for all purposes. 15.15. Access to Property. Prior to the Closing, Seller shall cooperate to enable representatives of Buyer to obtain the right of access to all portions of the Property for the purposes of implementing this Agreement. Buyer agrees to provide written notice to Seller at least twenty four (24) hours prior to undertaking any studies or work upon the Property. Buyer shall indemnify, defend, protect and hold Seller and Seller Parties harmless from any Claims arising out of the acts, omissions, negligence or willful misconduct of Buyer or its employees, agents, contractors, subcontractors or representatives (each a “Buyer Party” and, collectively, the “Buyer Parties”) in connection with such studies and investigations, except for Claims arising from or related to any pre-existing condition on or of the Property or Claims to the extent caused by the active negligence or willful misconduct of Seller or its employees, agents, contractors or representatives. In addition, in the event Buyer or any Buyer Party causes any damage to any portion of the Property, Buyer shall promptly restore the Property as nearly as possible to the physical condition existing immediately prior to Buyer’s entry onto the Property. Buyer’s indemnification obligations set forth in this Section 15.15 shall survive Closing or the termination of this Agreement. 15.16. Memorandum of Agreement. A Memorandum of Agreement in substantially the form of Exhibit E attached hereto and incorporated herein by this reference shall be executed and recorded against the Property immediately following recordation of the Grant Deed. 15.17. Relationship Between Seller and Buyer. It is hereby acknowledged that the relationship between Seller and Buyer is not that of a partnership or joint venture and that Seller and Buyer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the exhibits hereto, Seller shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. 24 15.18. Seller Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by Seller, the City Manager of the City of South San Francisco, or its designee is authorized to act on behalf of Seller. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. SELLER: CITY OF SOUTH SAN FRANCISCO By: _______________________________ Mike Futrell City Manager ATTEST: By: _______________________________ City Clerk APPROVED AS TO FORM: By: _______________________________ Jason Rosenberg City Attorney BUYER: ROEM DEVELOPMENT CORPORATION, a California corporation By: _______________________________ Robert Emami, President APPROVED AS TO FORM: By: _______________________________ Counsel for Buyer 25 Chicago Title Insurance Company agrees to act as Escrow Holder in accordance with the terms of this Agreement. CHICAGO TITLE INSURANCE COMPANY By: Name: Its: Dated: 26 LIST OF EXHIBITS Exhibit A Legal Description Exhibit B Affordable Housing Agreement Exhibit C Development Agreement Exhibit D Completion Guaranty Exhibit E Memorandum of Agreement 27 Exhibit A LEGAL DESCRIPTION 201 Grand Avenue For APN/Parcel ID(s): 012-316-110 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOT 29 IN BLOCK 140, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA, PLAT NO. 1", FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, ON MARCH 1, 1892 IN BOOK "B" OF MAPS AT PAGE(S) 6, AND A COPY ENTERED IN BOOK 2 OF MAPS AT PAGE 52. 207 Grand Avenue For APN/Parcel ID(s): 012-316-100 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOT 28, IN BLOCK 140, AS DESIGNATED ON THE MAP ENTITLED “SOUTH SAN FRANCISCO, SAN MATEO CO. CAL, PLAT NO. 1”, WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MARCH 1, 1892 IN BOOK “B” OF MAPS, AT PAGE 6, AND A COPY ENTERED IN BOOK 2 OF MAPS, AT PAGE 52. 217-219 Grand Avenue For APN/Parcel ID(s): 012-316-080 012-316-090 THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN MATEO, CITY OF SOUTH SAN FRANCISCO, AND DESCRIBED AS FOLLOWS: LOTS 25, 26 AND 27 IN BLOCK 140, AS DESIGNATED ON THE MAP ENTITLED “SOUTH SAN FRANCISCO, SAN MATEO CO. CAL, PLAT NO. 1”, WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MARCH 1, 1892 IN BOOK “B” OF MAPS, AT PAGE 6, AND A COPY ENTERED IN BOOK 2 OF MAPS, AT PAGE 52. 28 Exhibit B AFFORDABLE HOUSING AGREEMENT [to be provided upon execution] 29 Exhibit C DEVELOPMENT AGREEMENT [to be provided upon execution] 30 Exhibit D COMPLETION GUARANTY [to be provided upon execution] 31 Exhibit E FORM OF MEMORANDUM OF AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: APN: Space above this line for recorder’s use MEMORANDUM OF PURCHASE AGREEMENT THIS MEMORANDUM OF PURCHASE AGREEMENT (this “Memorandum”) is made effective as of the ____ day of _______, _____, by and between_______, a California____________ (“Seller”), and _____________________ (“Buyer”), with reference to the following facts: A. Seller and Buyer have entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated _________, 2017 (the “Agreement”), providing for, among other things, the sale by Seller to Buyer of the real property more particularly described on Exhibit “A” (the “Property”). B. Seller and Buyer now desire to set forth a memorandum of public record of such Agreement. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, it is hereby agreed as follows: 1. Purchase. Seller has agreed to sell to Buyer, and Buyer has agreed to purchase from Seller, the Property upon the terms and subject to the conditions contained in the Agreement, all of which terms and conditions are hereby incorporated herein by this reference as though fully set forth herein. 2. Termination. If not acquired by Buyer pursuant to the Purchase Agreement, this Memorandum shall terminate as of the date the Agreement terminates in accordance with its terms and in no event later than ______________. 3. Purpose. This Memorandum is prepared solely for the purpose of recordation, and it in no way modifies the provisions of the Agreement. 4. No Change in Ownership. The recording of this document does not constitute a change in ownership. The recording is for the sole purpose of placing third parties on notice that the Seller has entered into a contract to sell the subject property and that the sale is 32 pending until such time as a Grant Deed is recorded or a Quitclaim Deed releasing the Memorandum is recorded. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date first written above. Seller: By: _________________________________ Name: _______________________________ Its: _________________________________ Date: _____________________________ Buyer By: _________________________________ Name: _______________________________ Its: _________________________________ Date: _____________________________ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: City Manager 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 for 418 Linden Avenue, South San Francisco by and between THE CITY OF SOUTH SAN FRANCISCO and ROEM DEVELOPMENT CORPORATION 2 This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _____________, 2018 (“Effective Date”) by and between the City of South San Francisco, a municipal corporation (“City”) and ROEM Development Corporation, a California corporation {INSERT NEW ENTITY IF APPLICABLE AT CLOSING} (“Owner”). City and Owner are hereinafter collectively referred to as the “Parties.” RECITALS A. Owner owns that certain real property located in the City of South San Francisco at 418 Linden Avenue, known as San Mateo County Assessor’s Parcel Nos. 012-314-010 and more particularly described in Exhibit A attached hereto (the “Property”). B. In accordance with that certain Development Agreement executed by and between the Parties and dated as of ____________ (the “DA”), a memorandum of which was recorded in the Official Records of San Mateo County (“Official Records”) on ________, Owner will re- develop the Property into a high-density, residential apartment building (the “Project”). Capitalized terms used and not defined in this Agreement have the meaning ascribed to them in the DA. C. To assist in the construction of affordable units at the Project, City provided Owner with a grant in the amount of Five Hundred Twenty-Five Thousand Dollars ($525,000.00) from City Affordable Housing In-Lieu Fees, and a grant in the amount of One Million Two Hundred and Twenty-Five Thousand ($1,225,000.00) from City Affordable Housing Bond Funds to partially finance the Project (“City Grants”), as further set forth in the DA. D. As a condition to its agreement to provide the City Grants, the City requires the Property to be subject to the terms, conditions and restrictions set forth herein, specifically, the City requires that for a period of not less than fifty-five (55) years, twenty percent (20%) of the residential units in the Project be rented at Affordable Rents to Eligible Households. The City requires residential rental units assisted with funds from the City’s low- and moderate-income housing fund to remain affordable for the longest feasible time. 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 occupants of the Project. The Parties intend the covenants set forth in this Agreement to run with the land and to be binding upon Owner and Owner’s successors and assigns for the full term of this Agreement. 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. AGREEMENT 1. Definitions. The following terms have the meanings set forth in this Section wherever used 3 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) and as defined below: Studio – 1 person One Bedroom – 1.5 people Two Bedroom – 3 people Three Bedroom – 4.5 people "Affordable Rent" means the following amounts, less a utility allowance and such other adjustments as required pursuant to the California Redevelopment Law: (i) 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 AMI, Adjusted for Family Size Appropriate for the Unit, and (ii) for units that are restricted for rental to households with incomes of not more than one hundred twenty percent (120%) of AMI (“120% Units”), a monthly rent that does not exceed one-twelfth of thirty percent (30%) of one hundred twenty percent (120%) 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 the U.S. Department of Housing and Urban Development (“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 does not exceed the applicable maximum income level for a Restricted Unit as specified in Section 2.1 and Exhibit B. “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 agency so long as such definition is no more restrictive than that set forth herein. 4 “Moderate-Income” means an annual gross household income that is less than or equal to 120% of AMI, adjusted for actual household size as determined periodically by HCD on the basis of gross annual household income and published in the Regulations for San Mateo County. “Regulations ” means Title 25 of the California Code of Regulations. “Rent -Restricted ” means a dwelling unit for which the gross rent charged for such unit does not exceed the Affordable Rent, as adjusted for assumed household size in accordance with the Department of Housing and Community Development (“HCD”) guidelines. "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 and Exhibit B. 2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its successors and assigns, that the Property shall be used solely for the operation of a mixed-use, multifamily rental housing development in compliance with the DA and the requirements set forth herein. Owner 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 Owner 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. 2.1.1 Linden Property. For a term of fifty-five (55) years commencing upon the date of issuance of a final certificate of occupancy for the residential portion of the Project, not less than six (6) of the residential units of the Project shall be both Rent Restricted (as defined below) and occupied (or if vacant, available for occupancy), available at Affordable Rents to Eligible Households with income no greater than eighty percent (80%) of Area Median Income, and no fewer than two (2) additional units in the Project shall be both Rent Restricted and occupied (or if vacant, available for occupancy) available at Affordable Rents to Eligible Households whose income is no greater than one hundred twenty percent (120%) of Area Median Income. The eight (8) residential units subject to this Agreement shall also be Rent Restricted and occupied by Eligible Households and allocated across unit type as specified in Exhibit B. 2.1.2 Recertification. In the event that recertification of Eligible Household incomes indicates that the number of Restricted Units actually occupied by Eligible Households falls below the number reserved for each income group as specified in this Section 2.1 and Exhibit B, Owner shall rectify the condition by renting the next available dwelling unit(s) in the Project to Eligible Household(s) until the required income mix is achieved. 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 and Exhibit B. Notwithstanding the foregoing, no Eligible Household qualifying for a Restricted Unit shall be denied continued occupancy of a unit in the Project because, after admission, such Eligible Household's adjusted income increases to exceed the qualifying limit for such Restricted Unit. A household which at initial occupancy qualifies in a particular income category shall be 5 treated as continuing to be of such income category so long as the household’s gross income does not exceed 140% of the applicable income limit. In the event the gross household income of a household that qualified at the applicable income limit at initial occupancy exceeds the applicable income limit for a unit, that unit will continue to be considered as satisfying the applicable income limit if the unit remains Rent-Restricted. If upon recertification of Eligible Household incomes, Owner determines that a Eligible Household has a household income exceeding the maximum qualifying income for such Eligible Household’s unit, the Eligible Household shall be permitted to continue to occupy the unit, and upon expiration of the Eligible Household's lease and upon sixty (60) days’ written notice, Owner may increase the rent for such unit to the fair market rent, and Owner shall rent the next available unit to a Eligible Household whose household income does not exceed the applicable income limit in order to achieve the affordability requirements of this Agreement. 2.3 Notice of Affordability Restrictions on Transfer of Property. The Parties shall execute a Notice of Affordability Restrictions on Transfer of Property substantially in the form attached hereto as Exhibit C, and shall cause such notice to be recorded substantially concurrently with the recordation of this Agreement. 2.4 Unit Sizes, Design and Location. The Restricted Units shall be of comparable design quality as unrestricted units in the Project. Eligible Households of Restricted Units shall have access to all common facilities of the Project equal to that of Eligible Households of units in the Project that are not Restricted Units. The Restricted Units shall be allocated among affordability categories as set forth in Exhibit B. 2.5 City Grant Funds. Owner shall ensure that all City Grant Funds are used for the construction of affordable units in a manner consistent with the applicable City Grant Funds requirements, which at a minimum, requires residential rental units assisted For with funds from the City’s low- and moderate-income housing fund to remain affordable for the longest feasible time. 2.6 No Condominium Conversion. Owner shall not convert the residential units in the Project to condominium or cooperative ownership or sell condominium or cooperative rights to the residential portion of the Project or any part thereof unless Owner obtains the City's consent and meets the affordability requirements of Section 2.1. City’s prior written consent shall be required with respect to the sale or condominium conversion of the retail/commercial portion of the Project or any part thereof. 2.6 Non-Discrimination; Compliance with Fair Housing Laws. 2.6.1 Preferences. In order to ensure that there is an adequate supply of affordable housing within the City for City residents and employees of businesses located within the City, to the extent permitted by law and consistent with the program regulations for funding sources used for development of the Project, at initial lease up, Owner shall give a preference in the rental of the residential units in the Project to Eligible Households that include at least one member who lives or works in the City of South San Francisco. If there are fewer Eligible Households than the number of such units, the units will be made available to the general public. Notwithstanding the 6 foregoing, in the event of a conflict between this provision and the provisions of Section 42 of the Internal Revenue Code of 1986, as amended, the provisions of such Section 42 shall control. 2.6.2 Fair Housing. Owner shall comply with state and federal fair housing laws in the marketing and rental of the units in the Project. Owner shall accept as Eligible Households, on the same basis as all other prospective Eligible Households, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or any successor thereto. 2.6.3 Non-Discrimination. Owner 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. Owner 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 subd ivision (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 Owner or any person claiming under or through Owner establish o r permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of Eligible Households, lessees, sub-Eligible Households, sublessees or vendees in, of, or for the Property or part thereof. Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. 3. Reporting Requirements. 3.1. Eligible Household Certification. Owner or Owner’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; and (b) The total gross household income; Owner shall retain such certificates for not less than three (3) years, and upon City’s request, shall make the certificates available for City inspection. 3.2 Annual Report; Inspections. By not later than April 30th of each year during the term of this Agreement, Owner 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. 7 Owner shall include with the Annual Report, an income recertification for each household, documentation verifying Eligible Household 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, Owner may satisfy the requirements of this Section by providing City with a copy of compliance reports required in connection with such financing. 3.3 On-site Inspection. Owner 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 Owner or to Owner's management agent. 3.4 Additional Information. Owner shall provide any additional information reasonably requested by City. The City shall have the right to examine and make copies of all books, records, or other documents of the Owner which pertain to the Project. 3.5 Records. The Owner shall maintain complete, accurate and current records pertaining to the Development, and shall permit any duly authorized representative of the City to inspect records, including records pertaining to income and household size of Eligible Households. All Eligible Household lists, applications and waiting lists relating to the Project shall at all times be kept separate and identifiable from any other business of the Owner and shall be maintained in a reasonable condition for proper audit and subject to examination during business hours by representatives of the City. The Owner shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least three (3) years, and for any period during which there is an audit undertaken by the City pursuant to the DA. 4. Term of Agreement. 4.1 Term of Restrictions. Unless extended by mutual agreement of the Parties, upon the 55th anniversary of issuance of the final certificate of occupancy for the residential portion of the Project, this Agreement shall automatically terminate and be of no further force or effect. 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 any sale, assignment, transfer, or conveyance of the Property or the Project or any part thereof or interest therein. 4.3 Reconveyance. Upon the expiration 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 evidence the expiration of this Agreement, or to evidence the release and discharge of this Agreement as a matter of title. 5. Binding Up on Successors; Covenants to Run with the Land . Owner hereby subjects its interest in the Property and the Project to the covenants and restrictions set forth in this Agreement. The Parties 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 8 to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of the Parties, 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 Owner, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the Eligible Households of the individual dwelling units or retail/commercial space 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, Owner 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. Owner 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, 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. Owner, or Owner’s designee, shall be responsible for all management functions with respect to the Property and the Project, including without limitation the selection of Eligible Households , 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 Repair, Maintenance and Security. Throughout the term of this Agreement, Owner, or Owner’s designee, 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. Without limiting the foregoing, Owner agrees to maintain the Project and the Property (including without limitation, the residential units, common areas, meeting rooms, landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Project. Owner 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 conditi on and repair. Owner shall provide adequate security services for occupants of the Project. 6.2.1 City’s Right to Perform Maintenance. In the event that Owner breaches any of the covenants contained in Section 6.2, and such default continues for a period of thirty (30) 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 9 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. 6.2.2 Costs. All costs expended by City in connection with the foregoing Section 6.2.1, shall be paid by Owner 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 8% 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 Owner with not less than thirty (30) days’ written notice prior to undertaking any work for which Owner will incur a financial obligation. 6.3 Marketing and Management Plan. Within 180 days following the Effective Date of this Agreement, Owner shall submit for City review and approval, a plan for marketing and managing the Property ("Marketing and Management Plan" or “Plan”). The Marketing and Management Plan shall address in detail how Owner plans to market the Restricted Units to prospective Eligible Households in accordance with fair housing laws and this Agreement, Owner’s Eligible Household selection criteria, and how Owner plans to certify the eligibility of Eligible Households. The Plan shall also describe the management team and shall address how the Owner and the management entity plan to manage and maintain the Property and the Project. The Plan shall include the proposed management agreement and the form of rental agreement that Owner proposes to enter into with Project Eligible Households. Owner shall abide by the terms of the Marketing and Management Plan in marketing, managing, and maintaining the Property and the Project, and throughout the term of this Agreement. 6.4 Approval of Amendments. If City has not responded to any submission of the Management and Marketing Plan, the proposed management entity, or a proposed amendment or change to any of the foregoing within thirty (30) days following City’s receipt of such plan, proposal or amendment, the plan, proposal or amendment shall be deemed approved by City. 6.5 Fees, Taxes, and Other Levies. Owner 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 delinquency. However, Owner shall not be required to pay any such charge so long as (a) Owner is contesting such charge in good faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Owner immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. Nothing in this Section 6.6 is intended to prohibit Owner from applying for any exemption from property taxes and fees that may be available to the owners of low-income housing. 6.6 Insurance Coverage. Throughout the term of this Agreement Owner shall comply with the insurance requirements set forth in the DA, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in the DA. 6.7 Property Damage or Destruction. If any part of the Project is damaged or destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent restriction 10 requirements set forth in this Agreement. Such work shall be commenced as soon as reasonably practicable 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. Owner 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. 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, Owner 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. Notwithstanding the foregoing, the City agrees that pursuant to Health and Safety Code Section 33334.14(a)(4), the City will not withhold consent to reasonable requests for subordination of this Agreement to deeds of trust provided for the benefit of lenders identified in the Financing Plan approved in connection with the DA, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default consistent with the requirements of Health and Safety Code Section 33334.14(a)(4), including without limitation, extended notice and cure rights. 8. Transfer and Encumbrance. 8.1 Restrictions on Transfer and Encumbrance. Upon issuance of a final certificate of occupancy for the Project, or any portion thereof, Owner may freely transfer or assign all or any portion of its interests, rights or obligations in the Property, or under this Agreement, to any third party, and, as this Agreement “runs with the land” this Agreement shall be binding on Owner’s successors and assigns for the full term of this Agreement. Prior to issuance of a final certificate of occupancy for the Project, or any portion thereof, Owner may transfer or assign all or any portion of its interest, right or obligations in the Property only as set forth in the DA, and with City’s prior written consent, which consent City shall not withhold provided that (1) the Project is and shall continue to be operated in compliance with this Agreement; (2) the transferee expressly assumes all obligations of Owner imposed by this Agreement; (3) the transferee executes all documents reasonably requested by the City with respect to the assumption of the Owner’s obligations under this Agreement, and upon City’s and/or Agency’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 ownership, operation and management of low-income multifamily rental housing projects of similar size to that of the Project, without any record of material violations of nondiscrimination provisions 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 sub-clause (A). 11 Consent to any proposed Transfer may be given by the City’s City Manager unless the City Manager, in his or her discretion, refers the matter of approval to the City’s governing board. If a proposed Transfer has not been approved by City in writing within thirty (30) days following City’s receipt of written request by Owner, it shall be deemed rejected. Owner 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 effect 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. Owner agrees to use best efforts to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property, the Project or part thereof for the benefit of a lender (“Lender”) shall contain each of the following provisions: (i) Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner concurrently with provision of such notice to Owner; and, (ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner within the same period of time provided to Owner for such cure extended by an additional 90 days. Owner agrees to provide to City a copy of any notice of default Owner receives from any Lender within thirty (30) business days following Owner’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"): (a) The occurrence of a Transfer in violation of Section 8 hereof; (b) Owner’s failure to maintain insurance on the Property and the Project as required hereunder, and the failure of Owner to cure such default within thirty (30) days of written notice from City; (c) Subject to Owner’s right to contest the following charges, Owner’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 Owner’s failure to cu re such default within sixty (60) days of delinquency; 12 (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) Owner’s default in the performance of any material 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 thirty (30) days in the event of a monetary default or sixty (60) days in the event of a non-monetary default following the date upon which City shall have given written notice of the default to Owner, or if the nature of any such non-monetary default is such that it cannot be cured within 60 days, Owner’s failure to commence to cure the default within thirty (60) days and thereafter prosecute the curing of such default with due diligence and in good faith. 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; B. 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; C. 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. To the fullest extent permitted by law, Owner shall indemnify, defend (with counsel approved by City) and hold City and its respective 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 Owner’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. Owner’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 do not and shall not waive any rights against Owner that they may have by reason of this indemnity and hold harmless agreement because of the acceptance by, or the deposit with City by Owner, of any of the insurance policies described in this Agreement or the DA. 13 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 Owner 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 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; or (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 con firmed by the delivery service. If to City, to: City of South San Francisco 400 Grand Avenue Attn: City Manager South San Francisco, CA 94080 Phone: (650) 877-8500 With a Copy to: City of South San Francisco 400 Grand Avenue Attn: ECD Director South San Francisco, CA 94080 Phone: (650) 829-6622 Email: alex.greenwood@ssf.net 14 With a Copy to: Meyers Nave Attn: Jason Rosenberg 555 12th Street, Suite 1500 Oakland, CA 94607 Tel (510) 808-2000 Fax (510) 444-1108 Email jrosenberg@meyersnave.com If to Developer: ROEM Development Corporation 1650 Lafayette Street Santa Clara, CA 95050 Attention: Alex Sanchez Telephone: (408) 984-5600 Email: asanchez@roemcorp.com 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 governing board of the City at the discretion of the City Manager. 11.7 Non-Liability of City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner 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 Owner 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. 15 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 DA, and the other City Documents and Agency Documents 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 through C, 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. 16 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:________________________________ Title:_________________________________ ATTEST: By: _________________________________ Krista Martinelli, City Clerk APPROVED AS TO FORM: By: _________________________________ Jason Rosenberg, City Attorney OWNER ROEM DEVELOPMENT CORPORATION, A CALIFORNIA CORPORATION By: ______________________________ Its: _______________________________ SIGNATURES MUST BE NOTARIZED. 17 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. 18 WITNESS my hand and official seal. Signature _______________________________ (Seal) 19 Exhibit A LINDEN AVENUE PROPERTY For APN/Parcel ID(s): 012-314-010 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOTS 10 AND 11, BLOCK 138, AS DELINEATED UPON THAT CERTAIN MAP ENTITLED "SOUTH SAN FRANCISCO, SAN MATEO CO., CAL. PLAT NO. 1", FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, ON MARCH 1ST, 1892 IN BOOK "B" OF MAPS, AT PAGE 6 AND COPIED INTO BOOK 2 OF MAPS AT PAGE 52. 20 Exhibit B Number of Units by Unit Size and Targeted Area Median Income (AMI) Levels Linden Avenue Property Maximum Household Income Up to 60% AMI 60% - 80% AMI 80% -120% AMI Total Studio 1 0 0 1 1-Bedroom 3 1 4 2-Bedroom 0 2 1 3 3-Bedroom 0 0 0 0 Total 1 5 2 8 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: City Manager 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 for 201 -219 Grand Avenue, South San Francisco by and between THE CITY OF SOUTH SAN FRANCISCO and ROEM DEVELOPMENT CORPORATION 2 This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _____________, 2018 (“Effective Date”) by and between the City of South San Francisco, a municipal corporation (“City”) and ROEM Development Corporation, a California corporation {INSERT NEW ENTITY IF APPLICABLE AT CLOSING} (“Owner”). City and Owner are hereinafter collectively referred to as the “Parties.” RECITALS A. Owner owns that certain real property located in the City of South San Francisco located at 201-219 Grand Avenue, known as San Mateo County Assessor’s Parcel Nos. 012-316- 110, 012-316-100, 012-316-090 and 012-316-080 and more particularly described in Exhibit A attached hereto (the “Grand Property” or the “Property”). B. In accordance with that certain Development Agreement executed by and between the Parties and dated as of ____________ (the “DA”), a memorandum of which was recorded in the Official Records of San Mateo County (“Official Records”) on ________, Owner will re- develop the Property into a high-density, mixed use project including residential units and ground floor commercial units (the “Project”). Capitalized terms used and not defined in this Agreement have the meaning ascribed to them in the DA. C. To assist in the construction of affordable units at the Project, City provided Owner with a grant in the amount of Five Hundred Twenty-Five Thousand Dollars ($525,000.00) from City Affordable Housing In-Lieu Fees, and a grant in the amount of One Million Two Hundred and Twenty-Five Thousand ($1,225,000.00) from City Affordable Housing Bond Funds to partially finance the Project (“City Grants”), as further set forth in the DA. D. As a condition to its agreement to provide the City Grants, the City requires the Property to be subject to the terms, conditions and restrictions set forth herein, specifically, the City requires that for a period of not less than fifty-five (55) years, twenty percent (20%) of the residential units in the Project be rented at Affordable Rents to Eligible Households . The City requires residential rental units assisted with funds from the City’s low- and moderate-income housing fund to remain affordable for the longest feasible time. 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 occupants of the Project. The Parties intend the covenants set forth in this Agreement to run with the land and to be binding upon Owner and Owner’s successors and assigns for the full term of this Agreement. 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. 3 AGREEMENT 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) and as defined below: Studio – 1 person One Bedroom – 1.5 people Two Bedroom – 3 people Three Bedroom – 4.5 people "Affordable Rent" means the following amounts, less a utility allowance and such other adjustments as required pursuant to the California Redevelopment Law: (i) 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 AMI, Adjusted for Family Size Appropriate for the Unit, and (ii) for units that are restricted for rental to households with incomes of not more than one hundred twenty percent (120%) of AMI (“120% Units”), a monthly rent that does not exceed one-twelfth of thirty percent (30%) of one hundred twenty percent (120%) 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 the U.S. Department of Housing and Urban Development (“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 does not exceed the applicable maximum income level for a Restricted Unit as specified in Section 2.1 and Exhibit B. “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 4 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 agency so long as such definition is no more restrictive than that set forth herein. “Moderate-Income” means an annual gross household income that is less than or equal to 120% of AMI, adjusted for actual household size as determined periodically by HCD on the basis of gross annual household income and published in the Regulations for San Mateo County. “Regulations ” means Title 25 of the California Code of Regulations. “Rent -Restricted ” means a dwelling unit for which the gross rent charged for such unit does not exceed the Affordable Rent, as adjusted for assumed household size in accordance with the D epartment of Housing and Community Development (“HCD”) guidelines. "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 and Exhibit B. 2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its successors and assigns, that the Property shall be used solely for the operation of a mixed-use, multifamily rental housing development in compliance with the DA and the requirements set forth herein. Owner 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 Owner 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. 2.1.1 Grand Property. For a term of fifty-five (55) years commencing upon the date of issuance of a final certificate of occupancy for the residential portion of the Project, not less than eight (8) of the residential units of the Project shall be both Rent Restricted (as defined below) and occupied (or if vacant, available for occupancy), available at Affordable Rents to Eligible Households with income no greater than eighty percent (80%) of Area Median Income, and no fewer than one (1) additional units in the Project shall be both Rent Restricted and occupied (or if vacant, available for occupancy), available at Affordable Rents to Eligible Households whose income is no greater than one hundred twenty percent (120%) of Area Median Income. The nine (9) residential units subject to this Agreement shall also be Rent Restricted and occupied by Eligible Households and allocated across unit type as specified in Exhibit B. 2.1.2 Recertification. In the event that recertification of Eligible Household incomes indicates that the number of Restricted Units actually occupied by Eligible Households falls below the number reserved for each income group as specified in this Section 2.1 and Exhibit B, Owner shall rectify the condition by renting the next avai lable dwelling unit(s) in the Project to Eligible Household(s) until the required income mix is achieved. 2.2 Rents for Restricted Units . Rents for Restricted Units shall be limited to Affordable Rents for households of the applicable income limit in acc ordance with Section 2.1 5 and Exhibit B. Notwithstanding the foregoing, no Eligible Household qualifying for a Restricted Unit shall be denied continued occupancy of a unit in the Project because, after admission, such Eligible Household's adjusted income increases to exceed the qualifying limit for such Restricted Unit. A household which at initial occupancy qualifies in a particular income category shall be treated as continuing to be of such income category so long as the household’s gross income does not exceed 140% of the applicable income limit. In the event the gross household income of a household that qualified at the applicable income limit at initial occupancy exceeds of the applicable income limit for a unit, that unit will continue to be consid ered as satisfying the applicable income limit if the unit remains Rent -Restricted. If upon recertification of Eligible Household incomes, Owner determines that an Eligible Household has a household income exceeding the maximum qualifying income for such Eligible Household’s unit, the Eligible Household shall be permitted to continue to occupy the unit, and upon expiration of the Eligible Household's lease and upon sixty (60) days’ written notice, Owner may increase the rent for such unit to the fair market rent, and Owner shall rent the next available unit to a Eligible Household whose household income does not exceed the applicable income limit in order to achieve the affordability requirements of this Agreement. 2.3 Unit Sizes, Design and Location. The Restricted Units shall be of comparable design quality as unrestricted units in the Project. Eligible Households of Restricted Units shall have access to all common facilities of the Project equal to that of Eligible Households of units in the Project that are not Restricted Units. The Restricted Units shall be allocated among affordability categories as set forth in Exhibit B. 2.4 City Grant Funds. Owner shall ensure that all City Grant Funds are used for the construction of affordable units in a manner consistent with the applicable City Grant Funds requirements, which at a minimum, requires residential rental units assisted with funds from the City’s low- and moderate-income housing fund to remain affordable for the longest feasible time. 2.5 Condominium Conversion. Owner shall not convert the residential units in the Project to condominium or cooperative ownership or sell condominium or cooperative rights to the residential portion of the Project or any part thereof unless Owner obtains the City's consent and meets the affordability requirements of Section 2.1. City’s prior written consent shall be required with respect to the sale or condominium conversion of the retail/commercial portion of the Project or any part thereof. 2.6 Non-Discrimination; Compliance with Fair Housing Laws. 2.6.1 Preferences. In order to ensure that there is an adequate supply of affordable housing within the City for City residents and employees of businesses located within the City, to the extent permitted by law and consistent with the program regulations for funding sourc es used for development of the Project, at initial lease up, Owner shall give a preference in the rental of the residential units in the Project to Eligible Households that include at least one member who lives or works in the City of South San Francisco. If there are fewer Eligible Households than the number of such units, the units will be made available to the general public. Notwithstanding the foregoing, in the event of a conflict between this provision and the provisions of Section 42 of the Internal Revenue Code of 1986, as amended, the provisions of such Section 42 shall control. 6 2.6.2 Fair Housing. Owner shall comply with state and federal fair housing laws in the marketing and rental of the units in the Project. Owner shall accept as Eligible Households, on the same basis as all other prospective Eligible Households, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or any successor thereto. 2.6.3 Non-Discrimination. Owner 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. Owner 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 Owner or any person claiming under or through Owner establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of Eligible Households, lessees, sub-Eligible Households, sublessees or vendees in, of, or for the Property or part thereof. Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. 3. Reporting Requirements. 3.1. Eligible Household Certification. Owner or Owner’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; and (b) The total gross household income; Owner shall retain such certificates for not less than three (3) years, and upon City’s request, shall make the certificates available for City inspection. 3.2 Annual Report; Inspections. By not later than April 30th of each year during the term of this Agreement, Owner 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. Owner shall include with the Annual Report, an income recertification for each household, documentation verifying Eligible Household eligibility, and such additional information as City 7 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, Owner may satisfy the requirements of this Section by providing City with a copy of compliance reports required in connection with such financing. 3.3 On-site Inspection. Owner 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 Owner or to Owner's management agent. 3.4 Additional Information. Owner shall provide any additional information reasonably requested by City. The City shall have the right to examine and make copies of all books, records, or other documents of the Owner which pertain to the Project. 3.5 Records. The Owner shall maintain complete, accurate and current records pertaining to the Development, and shall permit any duly authorized representative of the City to inspect records, including records pertaining to income and household size of Eligible Households. All Eligible Household lists, applications and waiting lists relating to the Project shall at all times be kept separate and identifiable from any other business of the Owner and shall be maintained in a reasonable condition for proper audit and subject to examination during business hours by representatives of the City. The Owner shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least three (3) years, and for any period during which there is an audit undertaken by the City pursuant to the DA. 4. Term of Agreement. 4.1 Term of Restrictions. Unless extended by mutual agreement of the Parties, upon the 55th anniversary of issuance of the final certificate of occupancy for the residential portion of the Project, this Agreement shall automatically terminate and be of no further force or effect. 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 any sale, assignment, transfer, or conveyance of the Property or the Project or any part thereof or interest therein. 4.3 Reconveyance. Upon the expiration 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 evidence the expiration of this Agreement, or to evidence the release and discharge of this Agreement as a matter of title. 5. Binding Upon Successors; Covenants to Run with the Land . Owner hereby subjects its interest in the Property and the Project to the covenants and r estrictions set forth in this Agreement. The Parties 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 the Parties, regardless of any sale, assignment, conveyance or transfer of the Property, the Project 8 or any part thereof or interest therein. Any successor-in-interest to Owner, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the Eligible Households of the individual dwelling units or retail/commercial space 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, Owner 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. Owner 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, 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. Owner, or Owner’s designee, shall be responsible for all management functions with respect to the Property and the Project, including without limitation the selection of Eligible Households , 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 Repair, Maintenance and Security. Throughout the term of this Agreement, Owner, or Owner’s designee, 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. Without limiting the foregoing, Owner agrees to maintain the Project and the Property (including without limitation, the residential units, common areas, meeting rooms, landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Project. Owner 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 conditi on and repair. Owner shall provide adequate security services for occupants of the Project. 6.2.1 City’s Right to Perform Maintenance. In the event that Owner breaches any of the covenants contained in Section 6.2, and such default continues for a period of thirty (30) 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 9 all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. 6.2.2 Costs. All costs expended by City in connection with the foregoing Section 6.2.1, shall be paid by Owner 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 8% 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 Owner with not less than thirty (30) days’ written notice prior to undertaking any work for which Owner will incur a financial obligation. 6.3 Marketing and Management Plan. Within 180 days following the Effective Date of this Agreement, Owner shall submit for City review and approval, a plan for marketing and managing the Property ("Marketing and Management Plan" or “Plan”). The Marketing and Management Plan shall address in detail how Owner plans to market the Restricted Units to prospective Eligible Households in accordance with fair housing laws and this Agreement, Owner’s Eligible Household selection criteria, and how Owner plans to certify the eligibility of Eligible Households. The Plan shall also describe the management team and shall address how the Owner and the management entity plan to manage and maintain the Property and the Project. The Plan shall include the proposed management agreement and the form of rental agreement that Owner proposes to enter into with Project Eligible Households. Owner shall abide by the terms of the Marketing and Management Plan in marketing, managing, and maintaining the Property and the Project, and throughout the term of this Agreement. 6.4 Approval of Amendments. If City has not responded to any submission of the Management and Marketing Plan, the proposed management entity, or a proposed amendment or change to any of the foregoing within thirty (30) days following City’s receipt of such plan, proposal or amendment, the plan, proposal or amendment shall be deemed approved by City. 6.5 Fees, Taxes, and Other Levies. Owner 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 delinquency. However, Owner shall not be required to pay any such charge so long as (a) Owner is contesting such charge in good faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Owner immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. Nothing in this Section 6.6 is intended to prohibit Owner from applying for any exemption from property taxes and fees that may be available to the owners of low-income housing. 6.6 Insurance Coverage. Throughout the term of this Agreement Owner shall comply with the insurance requirements set forth in the DA, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in the DA. 6.7 Property Damage or Destruction. If any part of the Project is damaged or destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work shall be commenced as soon as reasonably practicable after the damage or loss occurs a nd shall be completed within one year 10 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. Owner 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. 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, Owner 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. Notwithstanding the foregoing, the City agrees that pursuant to Health and Safety Code Section 33334.14(a)(4), the City will not withhold consent to reasonable requests for subordination of this Agreement to deeds of trust provided for the benefit of lenders identified in the Financing Plan approved in connection with the DA, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default consistent with the requirements of Health and Safety Code Section 33334.14(a)(4), including without limitation, extended notice and cure rights. 8. Transfer and Encumbrance. 8.1 Restrictions on Transfer and Encumbrance. Upon issuance of a final certificate of occupancy for the Project, or any portion thereof, Owner may freely transfer or assign all or any portion of its interests, rights or obligations in the Property, or under this Agreement, to any third party, and, as this Agreement “runs with the land” this Agreement shall be binding on Owner’s successors and assigns for the full term of this Agreement. Prior to issuance of a final certificate of occupancy for the Project, or any portion thereof, Owner may transfer or assign all or any portion of its interest, right or obligations in the Property only as set forth in the DA, and with City’s prior written consent, which consent City shall not withhold provided that (1) the Project is and shall continue to be operated in compliance with this Agreement; (2) the transferee expressly assumes all obligations of Owner imposed by this Agreement; (3) the transferee executes all documents reasonably requested by the City with respect to the assumption of the Owner’s obligations under this Agreement, and upon City’s and/or Agency’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 ownership, operation and management of low-income multifamily rental housing projects of similar size to that of the Project, without any record of material violations of nondiscrimination provisions 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 sub-clause (A). Consent to any proposed Transfer may be given by the City’s City Manager unless the City 11 Manager, in his or her discretion, refers the matter of approval to the City’s governing board. If a proposed Transfer has not been approved by City in writing within thirty (30) days following City’s receipt of written request by Owner, it shall be deemed rejected. Owner 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 effect 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. Owner agrees to use best efforts to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property, the Project or part thereof for the benefit of a lender (“Lender”) shall contain each of the following provisions: (i) Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner concurrently with provision of such notice to Owner; and, (ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner within the same period of time provided to Owner for such cure extended by an additional 90 days. Owner agrees to provide to City a copy of any notice of default Owner receives from any Lender within thirty (30) business days following Owner’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"): (a) The occurrence of a Transfer in violation of Section 8 hereof; (b) Owner’s failure to maintain insurance on the Property and the Project as required hereunder, and the failure of Owner to cure such default within thirty (30) days of written notice from City; (c) Subject to Owner’s right to contest the following charges, Owner’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 Owner’s failure to cure such default within sixty (60) days of delinquency; 12 (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) Owner’s default in the performance of any material 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 thirty (30) days in the event of a monetary default or sixty (60) days in the event of a non-monetary default following the date upon which City shall have given written notice of the default to Owner, or if the nature of any such non-monetary default is such that it cannot be cured within 60 days, Owner’s failure to commence to cure the default within thirty (60) days and thereafter prosecute the curing of such default with due diligence and in good faith. 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; B. 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; C. 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. To the fullest extent permitted by law, Owner shall indemnify, defend (with counsel approved by City) and hold City and its respective 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 Owner’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. Owner’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 do not and shall not waive any rights against Owner that they may have by reason of this indemnity and hold harmless agreement because of the acceptance by, or the deposit with City by Owner, of any of the insurance policies described in this Agreement or the DA. 13 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 Owner 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 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; or (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 con firmed by the delivery service. If to City, to: City of South San Francisco 400 Grand Avenue Attn: City Manager South San Francisco, CA 94080 Phone: (650) 877-8500 With a Copy to: City of South San Francisco 400 Grand Avenue Attn: ECD Director South San Francisco, CA 94080 Phone: (650) 829-6622 Email: alex.greenwood@ssf.net 14 With a Copy to: Meyers Nave Attn: Jason Rosenberg 555 12th Street, Suite 1500 Oakland, CA 94607 Tel (510) 808-2000 Fax (510) 444-1108 Email jrosenberg@meyersnave.com If to Developer: ROEM Development Corporation 1650 Lafayette Street Santa Clara, CA 95050 Attention: Alex Sanchez Telephone: (408) 984-5600 Email: asanchez@roemcorp.com 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 governing board of the City at the discretion of the City Manager. 11.7 Non-Liability of City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner 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 Owner 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 fa ir 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. 15 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 DA and the other City Documents and Agency Documents 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 through C, 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. 16 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:________________________________ Title:_________________________________ ATTEST: By: _________________________________ Krista Martinelli, City Clerk APPROVED AS TO FORM: By: _________________________________ Jason Rosenberg, City Attorney OWNER ROEM DEVELOPMENT CORPORATION, A CALIFORNIA CORPORATION By: ______________________________ Its: _______________________________ SIGNATURES MUST BE NOTARIZED. 17 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. 18 WITNESS my hand and official seal. Signature _______________________________ (Seal) 19 Exhibit A GRAND AVENUE PROPERTY 201 Grand Avenue For APN/Parcel ID(s): 012-316-110 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOT 29 IN BLOCK 140, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA, PLAT NO. 1", FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, ON MARCH 1, 1892 IN BOOK "B" OF MAPS AT PAGE(S) 6, AND A COPY ENTERED IN BOOK 2 OF MAPS AT PAGE 52. 207 Grand Avenue For APN/Parcel ID(s): 012-316-100 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOT 28, IN BLOCK 140, AS DESIGNATED ON THE MAP ENTITLED “SOUTH SAN FRANCISCO, SAN MATEO CO. CAL, PLAT NO. 1”, WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MARCH 1, 1892 IN BOOK “B” OF MAPS, AT PAGE 6, AND A COPY ENTERED IN BOOK 2 OF MAPS, AT PAGE 52. 217-219 Grand Avenue For APN/Parcel ID(s): 012-316-080 012-316-090 THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN MATEO, CITY OF SOUTH SAN FRANCISCO, AND DESCRIBED AS FOLLOWS: LOTS 25, 26 AND 27 IN BLOCK 140, AS DESIGNATED ON THE MAP ENTITLED “SOUTH SAN FRANCISCO, SAN MATEO CO. CAL, PLAT NO. 1”, WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MARCH 1, 1892 IN BOOK “B” OF MAPS, AT PAGE 6, AND A COPY ENTERED IN BOOK 2 OF MAPS, AT PAGE 52. 20 Exhibit B Number of Units by Unit Size and Targeted Area Median Income (AMI) Levels Grand Avenue Property Maximum Household Income Up to 60% AMI 60% - 80% AMI 80% -120% AMI Total Studio 1 1 1-Bedroom 4 3 7 2-Bedroom 1 0 1 3-Bedroom 0 0 Total 1 5 3 9