HomeMy WebLinkAbout150 Park Road, Lot F - Staff ReportCity of Burlingame
Design Review Amendment for Previously Approved 132-Unit Workforce
and Senior Apartment Development
Address: 150 Park Road (Parking Lot F)
Item No. 8d
Regular Action Item
Meeting Date: March 9, 2020
Request: Application for Design Review Amendment for design changes to a previously approved 132-unit
affordable workforce and senior apartment development.
Applicant: Chris Grant, The Pacific Companies APN: 029-224-270
Property Owner: City of Burlingame Lot Area: 36,750 SF
Architect: WHA Architects
General Plan: Howard Avenue Mixed Use District/R-4 Incentive District
Zoning: HMU (Howard Mixed Use) and R-4 Incentive District Subarea
Adjacent Development: Multifamily Residential and Commercial Uses
Current Use: Public Parking Lot (Lot F)
Background: On December 10, 2018, the Planning Commission approved an application for Design Review,
Density Bonus Incentives and Lot Merger for construction of a new five story, 132-unit affordable workforce
and senior apartment development at 150 Park Road (Public Parking Lot F), zoned HMU and R-4 Incentive
District Subarea (see attached December 10, 2018 Planning Commission Minutes). A building permit for the
project has not yet been submitted.
On July 8, 2019, the Planning Commission reviewed implementation of the Commission's direction and
suggestions for the previously approved project, which included clarifying the window design, revisiting the
color for the storefront, awnings, and roof structures, and providing bicycle parking and bench seating along
the front of the building (see attached July 8, 2019 Planning Commission Minutes). There was no action
required by the Planning Commission since the revisions did not affect the projects' compliance with objective
standards, design review standards, and conditions of approval.
Summary: Since the original approval of the project in 2018, a new architect has been chosen to prepare the
construction drawings. During their analysis, the architect identified a number of efficiency and logistical
conflicts with the originally approved floor plans. With this application, several design changes throughout the
building are proposed. In his letter dated December 31, 2019, the architect notes that "the plans and
elevations for this project have been modified from the originally entitled drawings to respond to building code
requirements, fire code requirements, basic structural engineering principals, and constructability constraints".
Please refer to the architect's letter for a detailed list of the proposed changes. Planning staff would highlight
the following:
■ Many of the exterior changes are due to changes to the interior of the building, including reducing the
unit plan types from 48 to 12 units. There is no change to the total number of units provided (132).
■ There are no changes proposed to the overall height (60 feet previously approved), exterior materials
and footprint of the building.
■ The stairway and elevator enclosures on the rooftop have been eliminated. Access to the roof is now
provided via roof hatches.
The majority of the exterior changes include revising window sizes and locations and adjusting exterior wall
locations to comply with building and fire codes as noted above. For clarity, Planning staff suggested that the
changes not be clouded on the building elevations. The applicant will be available at the meeting to provide a
summary and answer questions.
Design Review Amendment 150 Park Road (Parking Lot F)
Amendment to Condition No. 4(change to mix of affordable units): On October 8, 2019, the City of
Burlingame and Pacific West Communities, Inc., entered into an Amended and Restated Disposition and
Development Agreement (DDA), which included a refinement to the type and mix of affordable units and
income categories. As a result, this application for an amendment also includes revising Condition of Approval
No. 4 so that it is consistent with the Amended and Restated DDA. The revised condition will read as follows
with underlininq indicating new text and strikeouts (�+r��^�) indicating deleted text.
- that the affordable housing development shall contain � 77 workforce housing rental units (�-s#�ia�
�3 65 one-bedroom units and � 12 two-bedroom units) and �4 55 senior apartment rental units (4-� 50
one-bedroom units and 5 two-bedroom units) and shall consist of the following:
■ 82 units targeted to households earning up to 50% Area Median Income (AMI)
■ 35 units targeted to households earning up to 69°� 80% AMI
■ 14 units targeted to households earning up to �8°� 120% AMI
t R ren4�l i�r�i�� ��rnc4erl 4n coninrc o�rnirin i ir� 4n �.l10% 4�A1
f ilS2 rer�4�1 iini4c ��rnc�or�J +n c�oninrc o�rnir�n i�r� 4n R(10% ���I
■ 1 manager rental unit (workforce)
Project Description of Previously Approved Project: The project consists of decommissioning the existing
public parking lot (Parking Lot F) and constructing a new, 5-story 132-unit affordable workforce and senior
apartment development. The existing 97 parking stalls that would be displaced will be provided in a parking
garage currently under construction on Parking Lot N.
The majority of the building contains five levels of residential units above a partially below grade parking
garage. The apartment development will contain 78 workforce housing units (3 studios, 53 one-bedroom units
and 22 two-bedroom units) and 54 senior apartment units (49 one-bedroom units and 5 two-bedroom units).
A total of 144 parking spaces are provided on-site in a partially above grade and below grade parking garage.
137 parking spaces are provided in a puzzle stacker system and 7 independent disabled-accessible spaces
are provided within the parking garage. All vehicles will enter and exit the project through a driveway entrance
on Park Road.
The following applications were previously approved for this project:
Design Review for construction of a new five story, 132-unit affordable workforce and senior
apartment development.
Density Bonus Incentives for building height, right side setback and ground floor use to facilitate
affordable housing.
Lot Merger.
Staff Comments: None.
Design Review Criteria: The criteria for design review in mixed use districts is detailed in Code Section
25.57.030 (g) and requires the proposed project to be reviewed by the Planning Commission for the following
considerations:
(1) Support of the pattern of diverse architectural styles that characterize the city's commercial, industrial
and mixed use areas; and
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Design Review Amendment 150 Park Road (Parking Lot F;i
(2) Respect and promotion of pedestrian activity by placement of buildings to maximize commercial use�
of the street frontage, off-street public spaces, and by locating parking so that it does not dominate�
street frontages; and
(3) On visually prominent and gateway sites, whether the design fits the site and is compatib�e with the
surrounding development; and
(4) Compatibility of the architecture with the mass, bulk, scale, and existing materials of existing
development and compatibility with transitions where changes in land use occur nearby; and
(5) Architectural design consistency by using a single architectural style on the site that is consistent
among primary elements of the structure, restores or retains existing or significant original
architectural features, and is compatible in mass and bulk with other structures in the immediate area;
and
(6) Provision of site features such as fencing, landscaping, and pedestrian circulation that enriches the
existing opportunities of the commercial neighborhood.
Suggested Findings for Design Review: The project may be found to be compatible with the requirements of
the City's criteria for design review based on the following:
that the project is consistent with the diverse architectural styles of existing residential and
commercial buildings in the area characterized by simple massing, an articulated aluminum storefront
and awnings on the ground floor, and articulated walls and repetitive fenestration on the upper floors;
the project mediates between existing buildings in the area ranging from one to six stories in height to
create a continuous mixed-use residential neighborhood, is well articulated, and embraces the street
and the pedestrian realm;
■ that the architectural style blends traditional and contemporary design elements to be compatible with
adjacent neighborhoods and the City as a whole, and that human scale is provided at the street level
consisting of a front entry element and community space at the front of the building, and on the upper
levels individual balconies with wooden trellises and sun shades provide residential scale and
character;
■ that parking for the project does not dominate the street frontage because the garage has been
located behind the ground floor building fa�ade with one driveway access to the garage measuring 18
feet in width, or 9% of the frontage along Park Road;
■ that on this visually prominent site, the building is characterized by a single contemporary
architectural style and its design fits the site and is compatible with the surrounding development by
exhibiting thoughtful massing, character and pedestrian scale, and successfully creates a good
transition between the existing residential and commercial buildings in the neighborhood with well-
articulated massing and a variety of exterior sidings, textures and colors;
■ that the building is compatible with the mass, bulk, scale, and existing materials of existing
development in that the exterior building materials include a mix of stucco and horizontal siding,
balconies with metal handrails and wood trellises and aluminum sun shades throughout the building.
The ground floor along the Park Road fa�ade includes a concrete base, and an aluminum storefront
system with metal awnings and a tile building entry; and
■ that site features such as fencing, landscaping, and pedestrian circulation to be provided in the
passive park will enrich the existing opportunities of the commercial neighborhood.
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150 Park Road (Parking Lot F)
Planning Commission Action: The Planning Commission should hold a public hearing on the application and
consider public testimony and the analysis contained within the staff report. Affirmative action should be by
resolution and include findings for Design Review, Density Bonus Incentives and Lot Merger. The reasons for
any action should be clearly stated for the record. At the public hearing the following conditions should be
considered:
1. that the project shall be built as shown on the plans submitted to the Planning Division date stamped
January 7, 2020, sheets T1.2 and A1.2 through A10.6;
2. that prior to issuance of a building permit, the applicant shall submit an FYI for Planning Commission
review of the following items:
■ revise the type and style of windows from internal grids to either simulated true divided muntins
with a spacer bar between the dual glazing or windows with no muntins; provide window details
and revise building elevations/renderings;
■ revisit the color specified for the storefront and awnings ("Jargon Jade" or equal previously
specified);
■ revisit the color specified for the structures on the roof ("Honey Bees" or equal previously
specified);
■ provide bicycle parking and bench seating near the main entrance to the building; must be
determined feasible by the Department of Public Works if provided within the right-of-way; and
■ revisit alternative options for the Hardie horizontal lap siding, such as wood or other material.
3. that no entitlements are complete or may vest until the project sponsor enters into any required final
agreements with the City and has consent from the City Council as to the mechanism for the transfer of
property rights and any other required legal agreements or actions required to acquire the rights to build
the project as specified in the plans date stamped December 5, 2018;
4. that the affordable housing development shall contain 77 workforce housing rental units (65 one-
bedroom units and 12 two-bedroom units) and 55 senior apartment rental units (50 one-bedroom units
and 5 two-bedroom units) and shall consist of the following:
■ 82 units targeted to households earning up to 50% Area Median Income (AMI)
■ 35 units targeted to households earning up to 80% AMI
• 14 units targeted to households earning up to 120% AMI
■ 1 manager rental unit (workforce)
5. the applicant shall enter into an agreement for the administration of the renting or leasing of the
affordable units at least 120 days before the final inspection;
6. that the applicant shall enter into a regulatory agreement with the City; the terms of this agreement shall
be approved as to form by the City Attorney's Office, and reviewed and revised as appropriate by the
reviewing City official; this agreement will be a form provided by the City, and will include the following
terms:
(a) The affordability of very low, low, and moderate income housing shall be assured in a manner
consistent with Government Code Section 65915(c)(1);
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Design Review Amendment 150 Park Road (Parking Lot F)
(b) An equity sharing agreement pursuant to Government Code Section 65915(c)(2) if units are
converted to for sale units in the future;
(c) The location, dwelling unit sizes, rental cost, and number of bedrooms of the affordable units;
(d) A description of any bonuses and incentives, if any, provided by the City; and
(e) Any other terms as required to ensure implementation and compliance with this section, and the
applicable sections of the density bonus law;
7. that prior to issuance of a building permit, the project applicant shall coordinate with the City to design
the passive park located in the 45' x 150' portion of lot at the rear of the site off Lorton Avenue. The
passive park should contain elements such as landscape trees (species and size to be determined by
the City), meandering paths, boulders, seating areas, etc. The project applicant shall be responsible for
preparing the plans, obtaining all necessary permits and constructing the passive park;
8. that the project shall be required to construct the public parking garage on Lot N;
9. that the project applicant and its construction contractor(s) shall develop a construction management
plan for review and approval by the City of Burlingame. The plan must include at least the following
items and requirements to reduce, to the maximum extent feasible, traffic and parking congestion
during construction:
a. A construction parking plan to provide worker parking off site and generally off neighborhood
streets, with shuttles or other transportation as needed to transport workers to the site;
A set of comprehensive traffic control measures, including scheduling of major truck trips and
deliveries to avoid peak traffic hours, detour signs if required, lane closure procedures, signs,
cones for drivers, and designated construction access routes;
c. Identification of haul routes for movement of construction vehicles that would minimize impacts on
motor vehicular, bicycle and pedestrian traffic, circulation and safety, and specifically to minimize
impacts to the greatest extent possible on streets in the project area;
d. Notification procedures for adjacent property owners and public safety personnel regarding when
major deliveries, detours, and lane closures would occur;
e. Provisions for monitoring surface streets used for haul routes so that any damage and debris
attributable to the haul trucks can be identified and corrected by the project applicant; and
Designation of a readily available contact person for construction activities who would be
responsible for responding to any local complaints regarding traffic or parking. This coordinator
would determine the cause of the complaint and, where necessary, would implement reasonable
measures to correct the problem.
10. that prior to issuance of a building permit, the applicant shall apply for a tentative and final map to
merge the parcels with the Public Works, Engineering Division for processing in conformance with the
Subdivision Map Act;
11. that prior to issuance of a building permit for construction of the project, the project construction plans
shall be modified to include a cover sheet listing all conditions of approval adopted by the Planning
Commission, or City Council on appeal; which shall remain a part of all sets of approved plans
throughout the construction process. Compliance with all conditions of approval is required; the
conditions of approval shall not be modified or changed without the approval of the Planning
Commission, or City Council on appeal;
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150 Park Road (Parking Lot F)
12. that any changes to the size or envelope of the building, which would include expanding the footprint or
floor area of the structure, replacing or relocating windows or changing the roof height or pitch, shall be
subject to Planning Commission review (FYI or amendment to be determined by Planning staff);
13. that prior to issuance of the final inspection of the project, the applicant shall pay the public facilities
impact fee in the amount of $730,884.00, made payable to the City of Burlingame and submitted to the
Planning Division;
14. that the project shall be constructed in accordance with the August 24, 2018 "Request for Alternate
Materials or Methods of Construction" agreement between The Pacific Companies and Central County
Fire Department which requires the following: a) the use of quick response sprinkler heads; b) provide
two stairwells with full access to the roof from the residential ground floor; and c) provide a positive
pressure system in these two stairwells for smoke control;
15. that during construction, the applicant shall provide fencing (with a fabric screen or mesh) around the
project site to ensure that all construction equipment, materials and debris is kept on site;
16. that storage of construction materials and equipment on the street or in the public right-of-way shall be
prohibited;
17. that if construction is done during the wet season (October 1 through April 30), that prior to October 1
the developer shall implement a winterization program to minimize the potential for erosion and polluted
runoff by inspecting, maintaining and cleaning all soil erosion and sediment control prior to, during, and
immediately after each storm even; stabilizing disturbed soils throughout temporary or permanent
seeding, mulching matting, or tarping; rocking unpaved vehicle access to limit dispersion of mud onto
public right-of-way; covering/tarping stored construction materials, fuels and other chemicals;
18. that trash enclosures and dumpster areas shall be covered and protected from roof and surface
drainage and that if water cannot be diverted from these areas, a self-contained drainage system shall
be provided that discharges to an interceptor;
19. that this project shall comply with the state-mandated water conservation program, and a complete
Irrigation Water Management and Conservation Plan together with complete landscape and irrigation
plans shall be provided at the time of building permit application;
20. that all site catch basins and drainage inlets flowing to the bay shall be stenciled. All catch basins shall
be protected during construction to prevent debris from entering;
21. that this proposal shall comply with all the requirements of the Tree Protection and Reforestation
Ordinance adopted by the City of Burlingame in 1993 and enforced by the Parks Department; complete
landscape and irrigation plans shall be submitted at the time of building permit application and the
street trees will be protected during construction as required by the City Arborist;
22. that a Protected Tree Removal Permit shall be required from the City of Burlingame Parks Division to
remove any existing protected size trees and that the project shall comply with the Tree Protection and
Reforestation Ordinance adopted by the City of Burlingame and enforced by the Parks Department;
complete landscape and irrigation plans shall be submitted at the time of building permit application and
the street trees shall be protected during construction as required by the City Arborist;
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150 Park Road (Parking Lot F)
23. that if there are any existing trees on adjacent properties abutting the project site that are determined to
remain, the applicant shall have an arborist's report prepared which documents how the trees should
be protected during construction; this report shall be reviewed and approved by the City Arborist and
the contractor shall call for the City Arborist to inspect the protection measures installed before a
building permit shall be issued;
24. that a certified arborist shall be on site during any grading or digging activities that take place within the
designated tree protection zones, including the digging for the foundation and digging for removal or
installation of any utilities; and that if at any time during the hand digging a root greater than 3 inches in
diameter is encountered, the City Arborist shall be notified for further inspection;
25. that the applicant shall coordinate with the City of Burlingame Parks Division regarding the planting of
at least two (2) Magnolia street trees along Park Road;
26. that project approvals shall be conditioned upon installation of an emergency generator to power the
sump pump system; and the sump pump shall be redundant in all mechanical and electrical aspects
(i.e., dual pumps, controls, level sensors, etc.). Emergency generators shall be housed so that they
meet the City's noise requirement;
27. that prior to issuance of a building permit, the applicant shall prepare and submit to the Department of
Public Works — Engineering Division a sanitary sewer analysis that assesses the impact of this project
to determine if the additional sewage flows can be accommodated by the existing sewer line. If the
analysis results in a determination that the existing sewer line requires upgrading, the applicant shall
perform the necessary upgrades as determined by the Engineering Division;
28. that the project shall comply with the Construction and Demolition Debris Recycling Ordinance which
requires affected demolition, new construction and alteration projects to submit a Waste Reduction
plan and meet recycling requirements; any partial or full demolition of a structure, interior or exterior,
shall require a demolition permit;
29. that demolition or removal of the existing structures and any grading or earth moving on the site shall
not occur until a building permit has been issued and such site work shall be required to comply with all
the regulations of the Bay Area Air Quality Management District;
30. that the applicant shall comply with Ordinance 1503, the City of Burlingame Storm Water Management
and Discharge Control Ordinance;
31. that the project shall meet all the requirements of the California Building and Uniform Fire Codes, 2016
Edition, as amended by the City of Burlingame;
32. that this project shall comply with Ordinance No. 1477, Exterior Illumination Ordinance;
33. that construction access routes shall be limited in order to prevent the tracking of dirt onto the public
right-of-way, clean off-site paved areas and sidewalks using dry sweeping methods;
The following conditions shall be met during the Building Inspection process prior to the inspections
noted in each condition:
34. that prior to scheduling the foundation inspection a licensed surveyor shall locate the property corners,
set the building envelope;
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Design Review Amendment 150 Park Road (Parking Lot F)
35. that prior to underfloor frame inspection the surveyor shall certify the first floor elevation of the new
structure(s) and the various surveys shall be accepted by the Building Division;
36. that prior to scheduling the framing inspection, the project architect, engineer or other licensed
professional shall provide architectural certification that the architectural details such as window
locations and bays are built as shown on the approved plans; if there is no licensed professional
involved in the project, the property owner or contractor shall provide the certification under penalty of
perjury. Certifications shall be submitted to the Building Division;
37. that prior to final inspection, Planning Division staff will inspect and note compliance of the architectural
details (trim materials, window type, etc.) to verify that the project has been built according to the
approved Planning and Building plans;
38. that the maximum elevation to the top roof parapet shall not exceed elevation 96.37', as measured from
the average elevation at the top of the curb along Park Road (37.29') for a maximum height not to
exceed 60'-0" to the top of the parapet; the garage finished floor elevation shall be elevation 28.69'; the
top of each floor and final roof ridge shall be surveyed by a licensed surveyor who shall provide
certification of that height to the Building Division; Should any framing exceed the stated elevation at
any point it shall be removed or adjusted so that the final height of the structure with roof shall not
exceed the maximum height shown on the approved plans;
The following conditions of approval are from Downtown Specific Plan:
39. that if subgrade structures are proposed, the project sponsor shall prepare a Geotechnical Study
identifying the depth to the seasonal high water table at the project site. No permanent groundwater
dewatering would be allowed. Instead, all residential uses must be elevated to above the seasonal high
water table and all areas for non-residential uses shall be flood-proofed and anchored, in accordance
with floodplain development requirements, to the design depth as recommended by geotechnical
engineer. Final design shall be prepared by a qualified professional engineer and approved by the
Burlingame Department;
40. the project sponsor shall implement all appropriate control measures from the most currently adopted
air quality ptan at the time of project construction;
41. the project sponsor shall ensure implementation of the following mitigation measures during project
construction, in accordance with BAAQMD standard mitigation requirements:
a. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved
access roads) shall be watered two times per day or as necessary.
b. All haul trucks transporting soil, sand, or other loose material offsite shall be covered or otherwise
loaded consistent with California Vehicle Code Section 23114.
c. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power
vacuum street sweepers at least once per day. The use of dry sweeping is prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph.
e. All roadways, driveways, sidewalks to be paved shall be completed as soon as possible. Building
pads shall be laid as soon as possible after grading unless seeding or soil binders are used.
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150 Park Road (Parking Lot F)
Idling times shall be minimized either by shutting off equipment when not in use or reducing the
maximum idling time to 5 minutes (as required by the California airborne toxics control measure
Title 13, Section 2485 of the California Code of Regulations [CCR]). Clear signage shall be
provided for construction workers at all access points.
g. All construction equipment shall be maintained and properly tuned in accordance with
manufacturer's specifications. All equipment shall be checked by a certified mechanic and
determined to be running in proper condition prior to operation.
Post a publicly visible sign with the telephone number and person to contact at the Lead Agency
regarding dust complaints. This person shall respond and take corrective action within 48 hours.
The Air District's phone number shall also be visible to ensure compliance with applicable
regulations.
the project sponsor shall implement the following Greenhouse Gas reduction measures during
construction activities:
Alternative-Fueled (e.g., biodiesel, electric) construction vehicles/equipment shall make up at
least 15 percent of the fleet.
Use at least 10 percent local building materials.
Recycle at least 50 percent of construction waste or demolition materials.
a.
b.
c.
the project sponsor shall provide adequate secure bicycle parking in the plan area at a minimum ratio of
1 bicycle spot for every 20 vehicle spots;
the apartment management shall post and update information on alternate modes of transportation for
the area (i.e. bus/shuttle schedules and stop locations, maps);
the project sponsor shall incorporate commercial energy efficiency measures such that energy
efficiency is increased to 15% beyond 2008 title 24 standards for electricity and natural gas;
the project sponsor shall incorporate recycling measures and incentives such that a solid waste
diversion rate of 75% is achieved upon occupation of each phase of plan development;
the project sponsor shall incorporate residential water efficiency measures such that water consumption
is decreased by a minimum of 10 percent over current standard water demand factors;
48. that construction shall avoid the March 15 through August 31 avian nesting period to the extent
feasible, as determined by staff. If it is not feasible to avoid the nesting ,period, a survey for nesting
birds shall be conducted by a qualified wildlife biologist no earlier than 7 days prior to construction. The
area surveyed shall include all clearing/construction areas, as well as areas within 250 ft. of the
boundaries of these areas, or as otherwise determined by the biologist. In the event that an active nest
is discovered, clearing/construction sha�l be postponed within 250 ft. of the nest, until the young have
fledged (left the nest), the nest is vacated, and there is no evidence of second nesting attempts;
49. that for projects within the Plan Area that require excavation, a Phase I Environmental Site Assessment
(and Phase II sampling, where appropriate) would be required. If the Phase I Environmental Site
Assessment determines that remediation is required, the project sponsor would be required to
implement all remediation and abatement work in accordance with the requirements of the Department
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150 Park Road (Parking Lot F)
of Toxic Substances Control (DTSC), Regional Water Quality Control Board (RWQCB), or other
jurisdictional agency;
50. the following practices shall be incorporated into the construction documents to be implemented by the
project contractor.
a. Maximize the physical separation between noise generators and noise receptors. Such separation
includes, but is not limited to, the following measures:
Use heavy-duty mufflers for stationary equipment and barriers around particularly noisy
areas of the site or around the entire site; - Use shields, impervious fences, or other physical
sound barriers to inhibit transmission of noise to sensitive receptors;
Locate stationary equipment to minimize noise impacts on the community; and
Minimize backing movements of equipment.
b. Use quiet construction equipment whenever possible.
c. Impact equipment (e.g., jack hammers and pavement breakers) shall be hydraulically or
electrically powered wherever possible to avoid noise associated with compressed air exhaust
from pneumatically-powered tools. Compressed air exhaust silencers shall be used on other
equipment. Other quieter procedures, such as drilling rather than using impact equipment, shall
be used whenever feasible.
51. the project sponsor shall incorporate the following practice into the construction documents to be
implemented by construction contractors: The project sponsor shall require that loaded trucks and other
vibration-generating equipment avoid areas of the project site that are located near existing residential
uses to the maximum extent compatible with project construction goals;
52. that if the project increases sewer flows to the sanitary sewer system, the project sponsor shall
coordinate with the City Engineer to determine if improvements to public sanitary sewer infrastructure
are needed. If improvements are needed, the following shall apply:
that prior to issuance of a building permit, the project sponsor shall develop a plan to facilitate
sanitary sewer improvements. The plan shall include a schedule for implementing sanitary sewer
upgrades that would occur within the development site and/or contribution of a fair share fee
toward those improvements, as determined by the City Engineer. The plan shall be reviewed by
the City Engineer.
53. that prior to issuance of a building permit, the development plans shall be reviewed by the Fire Marshal to
determine if fire flow requirements would be met given the requirements of the proposed project, and the
size of the existing water main(s). If the Fire Marshal determines improvements are needed for fire
protection services, then the following shall apply:
that prior to issuance of a building permit the project sponsor shall be required to provide a plan to
supply adequate water supply for fire suppression to the project site, consistent with the Fire
Marshal's requirements. The plan shall be reviewed by the Fire Marshal. The project sponsor shall be
responsible for implementation of the plan including installation of new water mains, and/or
incorporation of fire water storage tanks and booster pumps into the building design, or other
measures as determined by the Fire Marshal.
54. that if evidence of an archeological site or other suspected cultural resource as defined by CEQA
Guidelines Section 15064.5, including darkened soil representing past human activity ("midden"), that
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could conceal material remains (e.g., worked stone, worked bone, fired clay vesseis, faunal bone, hearths,
storage pits, or burials) is discovered during construction-related earth-moving activities, all ground-
disturbing activity within 100 feet of the resources shall be halted and the City of Burlingame shall be
notified. The project sponsor shall hire a qualified archaeologist to conduct a field investigation. The City of
Burlingame shall consult with the archeologist to assess the significance of the find. Impacts to any
significant resources shall be mitigated to a less-than significant level through data recovery or other
methods determined adequate by a qualified archaeologist and that are consistent with the Secretary of
the Interior's Standards for Archeological Documentation. Any identified cultural resources shall be
recorded on the appropriate DPR 523 (A-J) form and filed with the NWIC;
55. that should a unique paleontological resource or site or unique geological feature be identified at the
project construction site during any phase of construction, the project manager shall cease all construction
activities at the site of the discovery and immediately notify the City of Burlingame. The project sponsor
shall retain a qualified paleontologist to provide an evaluation of the find and to prescribe mitigation
measures to reduce impacts to a less-than-significant level. Work may proceed on other parts of the
project site while mitigation for paleontological resources or geologic features is carried out. The project
sponsor shall be responsible for implementing any additional mitigation measures prescribed by the
paleontologist and approved by the City; and
56. that if human remains are discovered at any project construction site during any phase of construction, all
ground-disturbing activity within 100 feet of the resources shall be halted and the City of Burlingame and
the County coroner shall be notified immediately, according to Section 5097.98 of the State Public
Resources Code and Section 7050.5 of California's Health and Safety Code. If the remains are determined
by the County coroner to be Native American, the Native American Heritage Commission (NAHC) shall be
notified within 24 hours, and the guidelines of the NAHC shall be adhered to in the treatment and
disposition of the remains. The project sponsor shall also retain a professional archaeologist with Native
American burial experience to conduct a field investigation of the specific site and consult with the Most
Likely Descendant, if any, identified by the NAHC. As necessary, the archaeologist may provide
professional assistance to the Most Likely Descendant, including the excavation and removal of the human
remains. The City of Burlingame shall be responsible for approval of recommended mitigation as it deems
appropriate, taking account of the provisions of State law, as set forth in CEQA Guidelines section
15064.5(e) and Public Resources Code Section 5097.98. The project sponsor shall implement approved
mitigation, to be verified by the City of Burlingame, before the resumption of ground-disturbing activities
within 100 feet of where the remains were discovered.
Ruben Hurin
Planning Manager
c. Chris Grant, The Pacific Companies, applicant
Attachments:
Applicant's Explanation Letter, dated December 31, 2019
December 10, 2018 Planning Commission Minutes
July 9, 2019 Planning Commission Minutes
Planning Commission Resolution (Proposed)
Notice of Public Hearing — Mailed February 28, 2020
Area Map
11
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MEM�RANDUM
T0: The Pacific Companies
DATE: December 31, 2019
ATTENTION: Chris Grant
PROJECT: The Viliage at Buriingame
PROJECT NO.: 2019235
FROM: Peter Gabrich
SUBJECT: Narrative tletailing changes to pians and elevations for The Viilage at Buriingame
The plans and elevations far this project have been modified from the originally entitled drawings to
respond to building code requirements, fire code requirements, basic structural engineering principals.
and constructability constraints. In keeping with the intent of the originaily entitied plans, the project has
been redesigned with the above parameters in mind. A list of the modifications is detailed below:
Description
• Reducetl unit plan types from 48 to 12 units, while keeping the same overall unit count and
mix.
• Revised unit plans to allow for stacking of plumbing, mechanical, and structural systems.
• Revised window locations to provide for adequate structural shear transfer at exterior and
interior walls.
• Revised buiiding plans and elevations to meet allowable opening requirements set forth in
Califomia Building Code table 705.8 (10'-15' = 45% openings ailowed). Openings at covered
decks are includetl in this requirement.
• Revised builtling plans to allow for imaginary property lines an fire walls separating building
areas consistent with CBC section 705.3 (Buildings on the same Mot.), and Table 506.2
(Aliowable area factor.j
• Revised unit plans to provide for mobility requirements outlined in CBC Chapter 11 B(Pubiic
Housing Accessibility). 5%-10% will need to compiy with mobility requirements depending on
funding sources.
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• Revised vertical circulation (stairs) to be more efficient and allow for easier fabrication.
• Revised stairs at back of property to allow #or proper head height exiting garage.
• Maintainetl 60 foot maximum building height.
• Maintained overall building footprint.
• Maintained overali building design language,�intent to fit within the context of the previously
entitled project.
Please feel free to contact our office if you have any questions.
Sincerely,
�
Peter Ga rich, Architect, Principal
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Monday, December 10, 2018
7:00 PM
BURLINGAME CITY HALL
501 PRIMROSE ROAD
BURLINGAME, CA 94010
Council Chambers
g. 150 Park Road (Parking Lot F), zoned HMU & R-4: Application for Design Review,
Density Bonus Incentives and Lot Merger for construction of a new 132-unit affordable
workforce and senior apartment development. The project is Categorically Exempt from
review pursuant to the California Environmental Quality Act (CEQA), per Section 15332
of the CEQA Guidelines (Infill Exemption). (Chris Grant, The Pacific Companies,
applicant; City of Burlingame, property owner; Pacific West Architecture, architect) (405
noticed) Staff Contact: Ruben Hurin
Attachments: 150 Park Rd (Lot F) - Staff Report
150 Park Rd (Lot F} - Attachments
CEQA Class 32 Infill Exemption
150 Park Rd (Lot F) - Plans
All Commissioners had visited the project site. There were no ex-parte communications to report.
Planning Manager Hurin provided an overview of the statf report.
> The design of the park element is not under consideration, correct? (Hurin: ThaYs correct. City staff
will work with the applicant on the design and may share the proposal with the Parks and Recreation
Commission for their input.)
Chair Gaul opened the public hearing.
Ca/eb Roope, Doug Gibson and Chris Grant, represented the applicant.
Commission Questions/Comments:
> In looking at your civil plan it /ooks like they got the flow-through biotreatment. But the swath of
coloring encompasses the tree wells where the iwo existing magnolias and the new magnolia are. In
looking at the landscape plan, am I correct in understanding that the flow-through biotreatment won't be
where the mangolia trees are located? Just want to make sure the magnolia trees will not be damaged.
(Gibson: Correct, we would only be doing the flow-through biotreatment where new ground level planting is.
The intent would be that we would modify that area for the new planting.)
> On sheet A3.1, there is a swath of area outside of the garage identified by a green diagonal hatch.
What is that area? Will that be shoring area or that's just outside the limits of your construction? (Gibson:
That area primarily would be for service access to the base of the structure.) (Grant: Would also note that
at the request of the Fire Marshal, that area was provided wide enough so that there was pedestrian
access for fire apparatus.)
> Regarding the proposed windows, I don't recall seeing muntins between the glazing when we last
reviewed the project. We didn't have that detail provided on the revised plans. Why the muntins between
the glazing as opposed to expressed on the exterior and interior, like a simulated true divided lite?
(Gibson: The proposed Alside windows meets the price point for the project in order to be economically
feasible.)
City of Burlingame
Meeting Minutes
Planning Commission
City of Burlingame Page 1 Printed on 3/4/2020
Planning Commission Meeting Minutes December 10, 2018
> In past experience we have not accepted the muntins between the glazing, iYs just not expressive
enough. (Grant: Would the Commission accept a window design that did not include muntins between the
glazing much like the submittal in February?) If there was a choice between muntins between the glazing
or not, would prefer no muntins. However, don't know if architecture will still work without the muntins.
> The issue that I have is that when light hits the windows, the muntins befween the glazing look like
security bars on the inside of a window. Would be one of the last characferistics that we would want this
project to have. IYs something we'll need to continue to discuss and perhaps look at other options.
> The stucco is true cementitious base stucco, not an EIFS exterior finish, correct? (Gibson: Correct,
the intent would be a three-layer stucco).
> The lap siding is cementitious Hardie board, correct? (Gibson: Correct.)
> Wood is called out for the trellis, that's not a Trex material, correct? (Gibson: Correct, it would be
timbered wood provided with proper waterproofing and flashing.)
> Is the community space intended to be accessible by the public? (Gibson: IYs meant to be used by
the residents of the facility, it's not meant to be a space that can be leased out or rented for community
events. Not intended to be used as a commercial space as a revenue generator for the property.)
> Would the doors leading to the space typically be locked and only unlocked if there was a party or
some type of gathering to let people come in from the street? (Roope: IPs an amenity for the residents that
live there. Lobby will be accessible alI of the time, but other parts of the building would be open during the
day when the on-site management team is there. Somebody could come in from the outside, but then
would meet the manager on site and work with them.
> How would one enter this space from the inside of the building? (Roope: There is an access provided
through the mail room.)
> Transformer and electrical rooms have doors leading from the street, is that your intention? Would
they be serviced from those doors? (Roope: Yes, those rooms would be locked and serviced that way.)
Are they glass doors? (Roope: They are all designed to have a storefront look to be consistent with the
architecture of the building; would be designed so that you would not be able to see into the rooms.)
> Would the glass doors provide enough security of the equipment? (Roope: Doors would be solid, could
work with staff to study fhat issue further.)
> Given that approximately half of the residents will be seniors, was there any thought to having an ADA
ramp from the lobby to the first floor? (Roope: Elevator provides access from the lobby to the first floor,
there is also an elevator from the parking garage to the main floor, where more of the senior housing is
located.)
> What is the height of the canopy at the main entrance to the building? (Gibson: Approximately
between 13 and 14 feet.)
> Realize that the canopy is establishing the main entrance, but at that height does it provide enough
weather protection? (Roope: Shouldn't be an issue because the lobby doors would be open, so one would
not need a key to open the door. Canopy height appears to be more like 10 to 11 feet, can look at details
and study further.) (Gibson: Could look at lowering it to match the other canopies, however the design
intent was to bring it up higher to announce the entry.)
> Think the different material face at that area, lighting and signage would be enough of an indicator
where the entrance would be, so lowering the canopy might be more useful for the users.
> Stepping back the building mass is helpful, but also seems that two of the more robust and outward
corners of the building were placed on the park side of the building. Is there a reason why they weren't
placed on the front of the building instead of the rear? (Gibson: Tried to accomplish a couple of things.
Have iwo apartment buildings at the rear, some of which have balconies and patios which are very close to
our property line. In working with the neighbors, tied to soften that elevation. As a result, transferred that
loss of square footage to the front of the building. (Gibson: Also reprogrammed some of the elements on
the floor plans at the rear of the building to make it more urban, provide access from the raised patio to
grade at rear. This is a four sided structure, not turning our backs to anyone.)
> Have you considered changing some of the colors on the building? Concern is with the yellow color on
the rooftop mechanical and stairway enclosures. Would like to see a softer color. (Gibson: We could paint
them down so that they would only look like an apparatus on the roof. Went through multiple color
iterations following the last meeting. Concerned that we were starting to wash out the building, there is a
lot of movement and massing on the structure. Feel that contrast of proposed colors will be a signature
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Planning Commission Meeting Minutes December 10, 2018
type of color for this development.)
> Do you know what brand of paint you're using? Do you have specific color names picked out?
(Gibson: Co/ors are noted on the color board. Can provide additional smaller or larger samples. Not
married to the yellow, buf want to come up with a color that is agreeable to the Commission.)
> Application of colors working well with the continuity of the different planes. Like the way the colors
are working now. Only have concern with the Jade color on the awnings it reminds me of 1980's
post-modernism, worried about it getting dated fast. Should revisit this color.
> Would like to see storage for bicycles or Lime bikes. Would also like to see seating provided near
the entrance. (Gibson: Have programmed in storage for 20 bicycles within the building. We have the room,
so we can look into adding those elements.)
> Is that a railing at the roof level? �ll it be visible from the street? (Gibson: That is actually screening
for the rooftop equipment, it will be horizontal banding that (ooks like if's part of the building. You'd have
to be pretty far back to see it from the street.)
> Have you considered any other materials other than Hardie for the horizontal lap siding? (Gibson:
We've used Allura, which is a sfep down from Hardie if it gets too expensive on a project.) Have you
looked at using any wood products? (Gibson: Not for a project of this size. If wood was considered, it
would be placed lower on the building so that it could be easily maintained.) (Roope: Durability and
maintenance concerns are at the top of the list when building affordable housing. Maintenance of wood is
a cost to the property and threatens the long term affordability of the asset. Spend more money rf needed
upfront on durability to make sure maintenance is not an issue.)
> Saw some products at the Pacific Coast Builders Conference this is impregnated wood, it looks great
and has a 25 year warranty. I believe the brand was Thermory. Should look into newer product options to
see if it would make sense costwise. (Roope: Could look into other options, products are improving over
time.)
> Recall that at the last meeting, neigh6or to rear expressed a concern regarding the existing Cypress
tree along the rear property line. (Roope: Have been working closely with the neighbor.)
Public Comments:
Tom Cady, 128 Lorton Avenue: Our property is located directly across the street from the project site .
Thanked the Commission for their committment to the community. Noticed evolution of growth in
Burlingame, glad to see Commission is here to preserve design standards. Met with developer and have
reviewed several of his projects. Believe they have a committment to do things right. Am in support of the
project.
Marina Franco, owner of apartment 6uilding behind project site: Thanked developer for working with us to
increase setbacks at the rear of the building. The portion of the lot on Park Road is zoned HMU and the
park portion of the site on Lorton Avenue is zoned R-4. �U the lot merger affect the zoning? (Hurin: The
park portion of the site would remain R-4, unless there is a proposal in the future to rezone the lot.)
Tom Hafill, 110 Park Road: Building has a lof of articulation, don't think it needs as many colors as
proposed, think one solid color would look better. Thought it was mentioned that there would be 4,000
square feet of commercial space, want to make sure there will be no commercial or retail space in the
building. Renderings don't show any utility poles. Existing utility poles are ugly and block views of cars
when existing the site. Would like to see utilities placed underground as part of this project. Based on
shadow studies, it appears that our pool and gazebo area will be in a shadow all afternoon during the
summer months. Would have liked to see building stepped back so that our recreation area wouldn't be in
shadows during the summer. Is there any way to revise the project at this point?
David Mendell, 214 Lorton Avenue: Project has improved a lot and will continue to improve as iYs being
processed. Important to complete construction of the public parking garage before the housing project.
Because iYs such a big project, iYs important to consider where the construction workers will be parking.
Mike Dunham: Am a member of a group ca/led Housing for All Burlingame that advocates for renter
City of Burlingame Page 3 Printed on 3/4/2020
Planning Commission Meeting Minutes December 10, 2018
protections and affordable housing in our community. Thank you all and the developers for the work thaYs
been done so far on this project. We're in a housing crisis but there is in particular an affordable housing
crisis. If you look at the Regional Housing Needs Assessment numbers for the last few years, Burlingame
has built three affordable units out of 420 that we should have permitted by now. Is an enormous problem
that is only gefting worse and by the year. Strongly disagree with the suggestion that the parking structure
be built first, the City would be much better off finding an off-site solution for parking temporarily because
you'll need to deal with 100 plus parking spaces disappearing anyways. There is no way the City can
absorb that as is you have to find a solution. Know iYs really the City Council's purview, but would strongly
encourage that the housing portion be prioritized. Timing matters a lot, would urge you to move this project
through as quickly as possible, we are about to face a tsunami of 4,000 highly-paid Facebook employees
working very nearby in 2020. Hopefully most of them choose to stay wherever they are and ride on buses
to get here, but assume some percentage of them will look at the good schools and walkable downtown
and will choose to live in Burlingame. That will only make the pressure on renters worse and worse. Two
weeks ago met a single mom and her middle-school aged daughter, who are getting their rent increased
by $1,000 a month from her landlord. She is lucky because she was able to negotiate the rent increase
down to $700 a month. If you're a homeowner and were told that your property taxes were going up $1, 000
a month, you would be very upset and in fact that happened and Prop 13 exists. Renters are getting killed
in this City, so it is critical that development happens quickly and iYs especially critical that the affordable
housing goes in as soon as possible. Urge you to keep this project moving.
Chair Gaul closed the public hearing.
> My understanding of the plans is that the utility poles are remaining in place. In fact the housing
project and parking garage had to be stepped back because of the existing utility poles that are remaining
in place.
> Interpreted the 4,000 square foot commercial space as the area of the community room on the ground
floor, but the project still does not include retail or what would be considered as traditional commercial or
retail tenant space on that ground floor.
> Really like the way that the project has evolved, the articulation and revisions that have been made .
Just looking at a side-by-side comparison of the street elevation on the Park Road side, iYs dramatically
different in terms of the pedestrian experience, including the rhyfhm of the awnings, the storefront
windows, bringing down the garage height, and some of the other articulation, I think is really important
along that that side of the of the project. Especially like the element looking from the park area, iYs a
really nice piece of detailing along that side at the bottom with the awning. Like the way the cornices have
been revised and bolstered and think the project is supportable at this point.
> Concerned with the integrated muntins in between the glazing. Needs to be reconsidered, can come
back as an FYI. In looking at the expressions of the elevations, now have a simple cruciform muntin on
windows, does help with the articulation of the elevation, but the muntins won't be seen. Think that if they
could find a window that has the simulated true divided lites, not looking for a true divided lite window, can
be a muntin on the exterior and interior with a spacer bar between the dual glazing.
> Like the project, there have been some good changes that happened in the past year. Agree with the
comments made regarding the windows and muntins. Would prefer to see no muntins at all rather than the
cheap-looking muntins. Renderings are representative of what the building would look like without muntins
6ecause they don't show up in the renderings. On the prevrous project we looked at, the style required that
additional articulation in the windows. This style is much simpler and more contemporary and doesn't
require the muntins like the style of the last project did. If you can't find a way to solve the problem, then
I'd rather not see the muntins at all.
> Agree with the comments made regarding the teal color, don't think iYs a good choice.
> Would like to see a softening of the components on the roof. Like idea of having an area out front to
park shared bikes, would help with concern over bikes being left on sidewalks.
> Like project and look forward to seeing it started.
> Agree with suggesfion of having benches or a seating area rn front of the building.
> Would also like the applicant to look at fhe Hardie siding or wood siding material options.
> Can staff share thoughts on the order of consfruction, which portion of the project should be built
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Planning Commission Meeting Minutes December 10, 2018
first? (Kane: This is one of severa/ issues that has to be finalized with the City Council because it involves
City land. There are issues about construction, staging and how many different contractors at different
times you have pouring cement, so thaYs something that wil! need to be addressed on the Council side .
The action tonight is the design approval and then we will keep you and the public updated, but there are a
couple of issues that need to be tied out and that's one of them. Some of that wiU be dictated by the
realities of the economics of the financing structure because this involves a lot of tax credit financing, and
also how to minimize impacts on the City. This project will have parking impacts, these are used lots, and
so the Cities' Public Works Department will need to work very closely with the project on timing and make
sure that we have a back-up plan for how consumers and workers are going to be able to park once these
parking lots go offline. There will inevitably be a delay between when one of them goes offline and the
parking structure gets built. At a recent City Council study session, the applicant noted that because of
the lack of frnish work, construction of the parking garage goes faster. So once it gets underway, if has a
shorter build time to completion than the housing.
> Do you know how long construction wiil take for the garage? (Grant: Trying to shorten to get much
closer to a year.) (Kane: It's an aggressive time frame, 18 months to be safe.)
Chair Gaul reopened the public hearing.
Roope: Haven't seen the final version of the conditions of approval for the project, but had a few items we
wanted to request with your permission. Condition #3 deals with the affordability levels, is subject to City
Council, would like to add to that condition the phrase "unless modified by the City Council". Reason for
that is that there have been tax law changes in the past year, and there is an opportunity to serve an
additional band of income levels that may be more appropriate for teachers in the community, an 80%
AMI level. Want to preserve the Council the opportunity do that if they so choose. Regarding Condition
#28, would be helpful to substitute 'grading" for 'building", to be able to submit for a separate grading
permit in order to move the project along faster. Could save a few months while the building permit for the
project is being processed. (Kane: Difficult to be drafting conditions during the meeting. Note that staff
exchanged some edits prior to the meeting, which have been provided to the Commission. Think that
wording can still work with a partial permit issuance, that way it is still a building permit, it's just not saying
which part of the building permit, so we don't have to redraft the condition.)
Roope: Had a question regarding Condition #47, which has to do with the time period we are not allowed to
construct because of nesting birds. Usually we see some kind of further definition, such as an
endangered bird or protected bird, but the condition is so broad that one could interpref it to mean any
type of bird, don't know if that was the intent but that could be a real problem if it includes any type of
bird. Don't want to have staff stuck in a box where we're having to conduct a survey for a common bird and
it disrupts the project meaningfully. (Kane: After the first sentence in Condition #47, we could add "to the
extent feasible as determined by staff".)
Chair Gaul closed the public hearing.
Commissioner Terrones made a motion, seconded by Commissioner Sargent, to approve the
application including the revised conditions provided to the Planning Commission at the
meeting, the language discussed for Condition #47, and the following condition:
> that prior to issuance of a building permit, the applicant shall submit an FYI for Planning
Commission review of the following items:
- revise the type and style of windows from internal grids to either simulated true divided
muntins with a spacer bar between the dual glazing or windows with no muntins; provide
window details and revise building elevations/renderings;
- revisit the color specified for the storefront and awnings ("Jargon Jade" or equal
previously specified);
City of Burlingame Page 5 Printed on 3/4/2020
Planning Commission Meeting Minutes December 10, 2018
- revisit the color specified for the structures on the roof ("Honey Bees" or equal previously
specified);
- provide bicycle parking and bench seating near the main entrance to the building; must
be determined feasible by the Department of Public Works if provided within the right-of-way;
and
- revisit alternative options for the Hardie horizontal lap siding, such as wood or other
material.
The motion carried by the following vote:
Aye: 7- Sargent, Loftis, Kelly, Comaroto, Gaul, Terrones, and Tse
City of Burlingame Page 6 Printed on 3/4/2020
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City of Burlingame
Meeting Minutes
Planning Commission
BURLWGAME CITY HALL
501 PRIMROSE ROAD
BURLINGAME, CA 94010
Monday, July 8, 2019
7:00 PM
Council Chambers
b. 150 Park Road (Lot F), zoned HMU & R-4 — Update of a previously approved 132-unit
affordable workforce and senior apartment development. (Chris Grant, The Pacific
Companies, applicant; City of Burlingame, property owner; Pacific West Architecture,
architect) (376 noticed) Staff Contact: Ruben Hurin
Attachments: 150 Park Rd - Staff Report
160 Lorton Ave - Attachments
150 Park Rd - Revised Plans
150 Park Rd - Previouslv Approved Plans
Planning Manager Hurin provided an overview of the staff report.
Chair Comaroto opened the public hearing.
Chris Grant, represented the applicant.
Commission Questions/Comments:
> You stated that you thought the proposed window is more in keeping with this design, in what respect
do you mean that? (Grant: The lack of muntins is more compatible with the modern design.)
> The co/or of the window changed as well, correct? (Grant: Window color is on the color board that was
submitted. ls more of a neutral color, not trying to highlight the windows.)
> Where there darker green color options for the awnings that worked well with the palette? (Grant: Felt
that a darker color would not be enough color, trying to present an aged copper color for the project.)
> Will stucco be painted or will rt be a color coat stucco7 (Grant: Expectation is that it will be a color
coat stucco, but paint may be applied depending on what the architect calls for in the specifications.)
> Will the siding have integral color or will it be painted? (Grant: Will have integral color rather than
repainting, so that it ages well over time.)
> Will corner boards be same color as siding? (Grant: Yes.)
Public Comments:
Dennis Gay/e: Live immediately adjacent and to the south of the project in a condominium community.
Have greaf interest in what happens next door. Wondering if developer has a break ground date
anticipated yet? Developer previously noted that May 2019 was fhe anticipated construction start date.
Would appreciate it if developer could provide an update. Cost of construction has escalated, is this a
factor that is slowing this project down?
Warren Gish, 110 Park Road: Have quesfions regarding the design, proposed construction methods and
how the project will fit in with the community. Where is garbage and recycling to be collected within the
building and gather by sanitation workers? Rendering shows that the proposed five -story building and
adjacent six-story building are about the same height, wondering if rendering is presenting an accurate
view. Would like to know how wide the passage way is between the two buildings, who will have access to
City of Burlingame page 1 Printed on 3/4/2020
Planning Commission Meeting Minutes July 8, 2019
it and if fhe gate will be locked or unlocked. Concerned about safety and activity in pathways. Will there
be a reduced schedule for use of noisy construction equipment? Will pilings be installed; concerned
about integrity of building at 110 Park Road. Proposed units facing north and east may be concerned with
noise from the airport and train. Will roof be adequately built to accommodate any activities on the roof?
Concerned about what is happening with the contaminated earth from the previous underground tank.
City Attorney Kane noted that contamination on the site is currently being remediated; anticipate being
completed this season, its a seasonal work because it has to do with the groundwater table heighf and
when rains come; can't work on remediation when it's raining and the groundwater has to drain to a certain
point before remediation work can occur. It's a commingled plume from a number of different places and
we are close to completing the work, however if it cannot be completed this season, there are other
locations where we can move that processing so that if is off the construction area. Project is currently in
negotiations with the City, City Council recently adopted an amendment to the disposition and
development agreement, there will be additional technical updates completed in August. The anticipated
break ground date for the housing development is Spring 2020; construction of the public parking garage
is anticipated to start first since there is no subterranean grading.
Chris Grant provided the following responses to the questions raised:
> Garage pickup will occur in southeast portion, or right side of the building, and will be accessed
through an opening in the building.
> Ambition is to maintain control of the pathway and that it not be an open sidewalk through the site;
pathway is approximately four feet wide. Pathway will be retained and overseen by the property
management team; the Fire Department will also have access.
> Fully endorse the notion of maintaining security on the site.
> Would be happy to meet with neighbors to discuss any questions they may have about the project.
> Perspective of rendering is causing proposed building to look as tall as the neighboring building, in
reality the proposed building is slightly lower.
Chair Comaroto closed fhe public hearing.
Commission Comments/Direction:
> Think all of the changes have improved the project and are more sophisticated.
> Would encourage you to continue to pursue placing a bench outside.
Since this was an informational item, which included providing "FYI" clarifications to the Planning
Commission's direction and suggestions for a previously approved project, there was no action taken by
the Planning Commission.
Ciiy of Burlingame Page 2 Prinfed on 3/4/2020
RESOLUTION APPROVING CATEGORICAL EXEMPTION AND DESIGN REVIEW AMENDMENT
RESOLVED, by the Planning Commission of the City of Burlingame that:
WHEREAS, a Categorical Exemption has been prepared and application has been made for Desiqn
Review Amendment for desiqn chanqes to a previouslv approved 132-unit affordable workforce and
senior apartment development at 150 Park Road, Zoned HMU and R-4 Incentive District Subarea, Citv
of Burlingame, property owner, APN: 029-224-270;
WHEREAS, said matters were heard by the Planning Commission of the City of Burlingame on March
9, 2020, at which time it reviewed and considered the staff report and all other written materials and
testimony presented at said hearing;
NOW, THEREFORE, it is RESOLVED and DETERMINED by this Planning Commission that:
On the basis of the Initial Study and the documents submitted and reviewed, and comments
received and addressed by this Commission, it is hereby found that there is no substantial
evidence that the project set forth above will have a significant effect on the environment, and
the revised project falls within the scope of the previous determination that the project is
categorically exempt from review under CEQA pursuant to CEQA Guidelines Section 15332
(Class 32 In-Fill Exemption).
2. Said Design Review Amendment is approved subject to the conditions set forth in Exhibit "A"
attached hereto. Findings for such Design Review Amendment are set forth in the staff report,
minutes, and recording of said meeting.
3. It is further directed that a certified copy of this resolution be recorded in the official records of
the County of San Mateo.
Chairman
I, , Secretary of the Planning Commission of the City of Burlingame,
do hereby certify that the foregoing resolution was introduced and adopted at a regular meeting of the
Planning Commission held on the 9th dav of March, 2020 by the following vote:
Secretary
EXHIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 1
that the project shall be built as shown on the plans submitted to the Planning Division date
stamped January 7, 2020, sheets T1.2 and A1.2 through A10.6;
2. that prior to issuance of a building permit, the applicant shall submit an FYI for Planning
Commission review of the following items:
■ revise the type and style of windows from internal grids to either simulated true divided
muntins with a spacer bar between the dual glazing or windows with no muntins; provide
window details and revise building elevations/renderings;
• revisit the color specified for the storefront and awnings ("Jargon Jade" or equal previously
specified);
■ revisit the color specified for the structures on the roof ("Honey Bees" or equal previously
specified);
■ provide bicycle parking and bench seating near the main entrance to the building; must be
determined feasible by the Department of Public Works if provided within the right-of-way;
and
■ revisit alternative options for the Hardie horizontal lap siding, such as wood or other
material.
3. that no entitlements are complete or may vest until the project sponsor enters into any required
final agreements with the City and has consent from the City Council as to the mechanism for the
transfer of property rights and any other required legal agreements or actions required to acquire
the rights to build the project as specified in the plans date stamped December 5, 2018;
4. that the affordable housing development shall contain 77 workforce housing rental units (65 one-
bedroom units and 12 two-bedroom units) and 55 senior apartment rental units (50 one-bedroom
units and 5 two-bedroom units) and shall consist of the following:
■ 82 units targeted to households earning up to 50% Area Median Income (AMI)
■ 35 units targeted to households earning up to 80% AMI
■ 14 units targeted to households earning up to 120% AMI
■ 1 manager rental unit (workforce)
5. the applicant shall enter into an agreement for the administration of the renting or leasing of the
affordable units at least 120 days before the final inspection;
6. that the applicant shall enter into a regulatory agreement with the City; the terms of this
agreement shall be approved as to form by the City Attorney's Office, and reviewed and revised
as appropriate by the reviewing City official; this agreement will be a form provided by the City,
and will include the following terms:
(a) The affordability of very low, low, and moderate income housing shall be assured in a
manner consistent with Government Code Section 65915(c)(1);
EXHIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 2
(b) An equity sharing agreement pursuant to Government Code Section 65915(c)(2) if units are
converted to for sale units in the future;
(c) The location, dwelling unit sizes, rental cost, and number of bedrooms of the affordable
units;
(d) A description of any bonuses and incentives, if any, provided by the City; and
(e) Any other terms as required to ensure implementation and compliance with this section,
and the applicable sections of the density bonus law;
7. that prior to issuance of a building permit, the project applicant shall coordinate with the City to
design the passive park located in the 45' x 150' portion of lot at the rear of the site off Lorton
Avenue. The passive park should contain elements such as landscape trees (species and size
to be determined by the City), meandering paths, boulders, seating areas, etc. The project
applicant shall be responsible for preparing the plans, obtaining all necessary permits and
constructing the passive park;
8. that the project shall be required to construct the public parking garage on Lot N;
9. that the project applicant and its construction contractor(s) shall develop a construction
management plan for review and approval by the City of Burlingame. The plan must include at
least the following items and requirements to reduce, to the maximum extent feasible, traffic and
parking congestion during construction:
a. A construction parking plan to provide worker parking off site and generally off
neighborhood streets, with shuttles or other transportation as needed to transport workers
to the site;
b. A set of comprehensive traffic control measures, including scheduling of major truck trips
and deliveries to avoid peak traffic hours, detour signs if required, lane closure procedures,
signs, cones for drivers, and designated construction access routes;
c. Identification of haul routes for movement of construction vehicles that would minimize
impacts on motor vehicular, bicycle and pedestrian traffic, circulation and safety, and
specifically to minimize impacts to the greatest extent possible on streets in the project
area;
d. Notification procedures for adjacent property owners and public safety personnel regarding
when major deliveries, detours, and lane closures would occur;
e. Provisions for monitoring surface streets used for haul routes so that any damage and
debris attributable to the haul trucks can be identified and corrected by the project
applicant; and
f. Designation of a readily available contact person for construction activities who would be
responsible for responding to any local complaints regarding traffic or parking. This
coordinator would determine the cause of the complaint and, where necessary, would
implement reasonable measures to correct the problem.
EXHIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 3
10. that prior to issuance of a building permit, the applicant shall appiy for a tentative and final map
to merge the parcels with the Public Works, Engineering Division for processing in conformance
with the Subdivision Map Act;
11. that prior to issuance of a building permit for construction of the project, the project construction
plans shall be modified to include a cover sheet listing all conditions of approval adopted by the
Planning Commission, or City Council on appeal; which shall remain a part of all sets of
approved plans throughout the construction process. Compliance with a�l conditions of approval
is required; the conditions of approval shall not be modified or changed without the approval of
the Planning Commission, or City Council on appeal;
12. that any changes to the size or envelope of the building, which would inciude expanding the
footprint or floor area of the structure, replacing or relocating windows or changing the roof height
or pitch, shall be subject to Planning Commission review (FYI or amendment to be determined
by Planning staff�;
13. that prior to issuance of the final inspection of the project, the applicant shall pay the public
facilities impact fee in the amount of $730,884.00, made payable to the City of Burlingame and
submitted to the Planning Division;
14. that the project shall be constructed in accordance with the August 24, 2018 "Request for
Alternate Materials or Methods of Construction" agreement between The Pacific Companies and
Central County Fire Department which requires the following: a) the use of quick response
sprinkler heads; b) provide two stairwells with full access to the roof from the residential ground
floor; and c) provide a positive pressure system in these two stairwells for smoke control;
15. that during construction, the applicant shall provide fencing (with a fabric screen or mesh) around
the project site to ensure that all construction equipment, materials and debris is kept on site;
16. that storage of construction materials and equipment on the street or in the public right-of-way
shall be prohibited;
17. that if construction is done during the wet season (October 1 through April 30), that prior to
October 1 the developer shall implement a winterization program to minimize the potential for
erosion and polluted runoff by inspecting, maintaining and cleaning all soil erosion and sediment
control prior to, during, and immediately after each storm even; stabilizing disturbed soils
throughout temporary or permanent seeding, mulching matting, or tarping; rocking unpaved
vehicle access to limit dispersion of mud onto public right-of-way; covering/tarping stored
construction materials, fuels and other chemicals;
18. that trash enclosures and dumpster areas shall be covered and protected from roof and surface
drainage and that if water cannot be diverted from these areas, a se►f-contained drainage system
shall be provided that discharges to an interceptor;
19. that this project shall comply with the state-mandated water conservation program, and a
complete Irrigation Water Management and Conservation Plan together with complete landscape
and irrigation plans shall be provided at the time of building permit application;
EXHIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 4
20. that all site catch basins and drainage inlets fiowing to the bay shall be stenciled. All catch
basins shall be protected during construction to prevent debris from entering;
21. that this proposal shall comply with all the requirements of the Tree Protection and Reforestation
Ordinance adopted by the City of Burlingame in 1993 and enforced by the Parks Department;
complete landscape and irrigation plans shall be submitted at the time of building permit
application and the street trees will be protected during construction as required by the City
Arborist;
22. that a Protected Tree Removal Permit shall be required from the City of Burlingame Parks
Division to remove any existing protected size trees and that the project shall comply with the
Tree Protection and Reforestation Ordinance adopted by the City of Burlingame and enforced by
the Parks Department; complete landscape and irrigation plans shall be submitted at the time of
building permit application and the street trees shall be protected during construction as required
by the City Arborist;
23. that if there are any existing trees on adjacent properties abutting the project site that are
determined to remain, the applicant shall have an arborist's report prepared which documents
how the trees should be protected during construction; this report shall be reviewed and
approved by the City Arborist and the contractor shall call for the City Arborist to inspect the
protection measures installed before a building permit shall be issued;
24. that a certified arborist shall be on site during any grading or digging activities that take place
within the designated tree protection zones, including the digging for the foundation and digging
for removal or installation of any utilities; and that if at any time during the hand digging a root
greater than 3 inches in diameter is encountered, the City Arborist shall be notified for further
inspection;
25. that the applicant shall coordinate with the City of Burlingame Parks Division regarding the
planting of at least two (2) Magnolia street trees along Park Road;
26. that project approvals shall be conditioned upon installation of an emergency generator to power
the sump pump system; and the sump pump shall be redundant in all mechanical and electrical
aspects (i.e., dual pumps, controls, level sensors, etc.). Emergency generators shall be housed
so that they meet the City's noise requirement;
27. that prior to issuance of a building permit, the applicant shall prepare and submit to the
Department of Public Works — Engineering Division a sanitary sewer analysis that assesses the
impact of this project to determine if the additional sewage flows can be accommodated by the
existing sewer line. If the analysis results in a determination that the existing sewer line requires
upgrading, the applicant shall perform the necessary upgrades as determined by the Engineering
Division;
28. that the project shall comply with the Construction and Demolition Debris Recycling Ordinance
which requires affected demolition, new construction and alteration projects to submit a Waste
Reduction plan and meet recycling requirements; any partial or full demolition of a structure,
interior or exterior, shall require a demolition permit;
EXMIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 5
29. that demolition or removal of the existing structures and any grading or earth moving on the site
shall not occur until a building permit has been issued and such site work shall be required to
comply with all the regulations of the Bay Area Air Quality Management District;
30
31
32
33
that the applicant shali comply with Ordinance 1503, the City of Burlingame Storm Water
Management and Discharge Control Ordinance;
that the project shall meet all the requirements of the California Building and Uniform Fire Codes,
2016 Edition, as amended by the City of Burlingame;
that this project shall comply with Ordinance No. 1477, Exterior Illumination Ordinance;
that construction access routes shall be limited in order to prevent the tracking of dirt onto the
public right-of-way, clean off-site paved areas and sidewalks using dry sweeping methods;
The following conditions shall be met during the Building Inspection process prior to the
inspections noted in each condition:
34
35
that prior to scheduling the foundation inspection a licensed surveyor shall locate the property
corners, set the building envelope;
that prior to underfloor frame inspection the surveyor shall certify the first floor elevation of the
new structure(s) and the various surveys shall be accepted by the Building Division;
36. that prior to scheduling the framing inspection, the project architect, engineer or other licensed
professional shall provide architectural certification that the architectural details such as window
locations and bays are built as shown on the approved plans; if there is no licensed professional
involved in the project, the property owner or contractor shall provide the certification under
penalty of perjury. Certifications shall be submitted to the Building Division;
37. that prior to final inspection, Planning Division staff
architectural details (trim materials, window type, etc.
according to the approved Planning and Building plans;
will inspect and note compliance of the
) to verify that the project has been built
38. that the maximum elevation to the top roof parapet shall not exceed elevation 96.37', as
measured from the average elevation at the top of the curb along Park Road (37.29') for a
maximum height not to exceed 60'-0" to the top of the parapet; the garage finished floor elevation
shall be elevation 28.69'; the top of each floor and final roof ridge shall be surveyed by a licensed
surveyor who shall provide certification of that height to the Building Division; Should any framing
exceed the stated elevation at any point it shall be removed or adjusted so that the final height of
the structure with roof shall not exceed the maximum height shown on the approved plans;
The following conditions of approval are from Downtown Specific Plan:
39. that if subgrade structures are proposed, the project sponsor shall prepare a Geotechnical Study
identifying the depth to the seasonal high water table at the project site. No permanent
groundwater dewatering would be allowed. Instead, all residential uses must be elevated to
EXHIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 6
above the seasonal high water table and all areas for non-residential uses shall be flood-proofed
and anchored, in accordance with floodplain development requirements, to the design depth as
recommended by geotechnical engineer. Final design shall be prepared by a qualified
professional engineer and approved by the Burlingame Department;
40. the project sponsor shall impiement all appropriate control measures from the most currently
adopted air quality plan at the time of project construction;
41. the project sponsor shall ensure implementation of the following mitigation measures during
project construction, in accordance with BAAQMD standard mitigation requirements:
a. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and
unpaved access roads) shall be watered two times per day or as necessary.
b. All haul trucks transporting soil, sand, or other loose material offsite shall be covered or
otherwise loaded consistent with California Vehicle Code Section 23114.
c. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet
power vacuum street sweepers at least once per day. The use of dry sweeping is
prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph.
e. All roadways, driveways, sidewalks to be paved shall be completed as soon as possible.
Building pads shall be laid as soon as possible after grading unless seeding or soil binders
are used.
f. Idling times shall be minimized either by shutting off equipment when not in use or reducing
the maximum idling time to 5 minutes (as required by the California airborne toxics control
measure Title 13, Section 2485 of the California Code of Regulations [CCR]). Clear
signage shall be provided for construction workers at all access points.
g. All construction equipment shall be maintained and properly tuned in accordance with
manufacturer's specifications. All equipment shall be checked by a certified mechanic and
determined to be running in proper condition prior to operation.
h. Post a publicly visible sign with the telephone number and person to contact at the Lead
Agency regarding dust complaints. This person shall respond and take corrective action
within 48 hours. The Air District's phone number shall also be visible to ensure compliance
with applicable regulations.
42. the project sponsor shall implement the following Greenhouse Gas reduction measures during
construction activities:
a. Alternative-Fueled (e.g., biodiesel, electric) construction vehicles/equipment shall make up
at least 15 percent of the fleet.
b. Use at least 10 percent local building materials.
EXHIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 7
c. Recycle at least 50 percent of construction waste or demolition materials.
43. the project sponsor shall provide adequate secure bicycle parking in the pfan area at a minimum
ratio of 1 bicycle spot for every 20 vehicle spots;
44. the apartment management shall post and update information on alternate modes of
transportation for the area (i.e. bus/shuttle schedules and stop locations, maps);
45. the project sponsor shall incorporate commercial energy efficiency measures such that energy
efficiency is increased to 15% beyond 2008 title 24 standards for electricity and natural gas;
46. the project sponsor shall incorporate recycling measures and incentives such that a solid waste
diversion rate of 75% is achieved upon occupation of each phase of plan development;
47. the project sponsor shall incorporate residential water efficiency measures such that water
consumption is decreased by a minimum of 10 percent over current standard water demand
factors;
48. that construction shall avoid the March 15 through August 31 avian nesting period to the extent
feasible, as determined by staff. If it is not feasible to avoid the nesting period, a survey for
nesting birds shall be conducted by a qualified wildlife biologist no earlier than 7 days prior to
construction. The area surveyed shall include all clearing/construction areas, as well as areas
within 250 ft. of the boundaries of these areas, or as otherwise determined by the biologist. In the
event that an active nest is discovered, clearing/construction shall be postponed within 250 ft. of
the nest, until the young have fledged (left the nest), the nest is vacated, and there is no
evidence of second nesting attempts;
49. that for projects within the Plan Area that require excavation, a Phase I Environmental Site
Assessment (and Phase II sampling, where appropriate) would be required. If the Phase I
Environmental Site Assessment determines that remediation is required, the project sponsor
would be required to implement all remediation and abatement work in accordance with the
requirements of the Department of Toxic Substances Control (DTSC), Regional Water Quality
Control Board (RWQCB), or other jurisdictional agency;
50. the following practices shall be incorporated into the construction documents to be implemented
by the project contractor.
a. Maximize the physical separation between noise generators and noise receptors. Such
separation includes, but is not limited to, the following measures:
Use heavy-duty mufflers for stationary equipment and barriers around particularly
noisy areas of the site or around the entire site; - Use shields, impervious fences, or
other physical sound barriers to inhibit transmission of noise to sensitive receptors;
Locate stationary equipment to minimize noise impacts on the community; and
Minimize backing movements of equipment.
b. Use quiet construction equipment whenever possible.
EXHIBIT "A"
Conditions of Approval for Categorical Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 8
c. Impact equipment (e.g., jack hammers and pavement breakers) shall be hydraulically or
electrically powered wherever possible to avoid noise associated with compressed air
exhaust from pneumatically-powered tools. Compressed air exhaust silencers shall be
used on other equipment. Other quieter procedures, such as drilling rather than using
impact equipment, shall be used whenever feasible.
51. the project sponsor shall incorporate the following practice into the construction documents to be
implemented by construction contractors: The project sponsor shall require that loaded trucks
and other vibration-generating equipment avoid areas of the project site that are located near
existing residential uses to the maximum extent compatible with project construction goals;
52. that if the project increases sewer flows to the sanitary sewer system, the project sponsor shall
coordinate with the City Engineer to determine if improvements to public sanitary sewer
infrastructure are needed. If improvements are needed, the following shall apply:
that prior to issuance of a building permit, the project sponsor shall develop a plan to
facilitate sanitary sewer improvements. The plan shall include a schedule for implementing
sanitary sewer upgrades that would occur within the development site and/or contribution of
a fair share fee toward those improvements, as determined by the City Engineer. The plan
shall be reviewed by the City Engineer.
53. that prior to issuance of a building permit, the development plans shall be reviewed by the Fire
Marshal to determine if fire flow requirements would be met given the requirements of the proposed
project, and the size of the existing water main(s). If the Fire Marshal determines improvements are
needed for fire protection services, then the following shall apply:
that prior to issuance of a building permit the project sponsor shall be required to provide a
plan to supply adequate water supply for fire suppression to the project site, consistent with the
Fire Marshal's requirements. The plan shall be reviewed by the Fire Marshal. The project
sponsor shall be responsible for implementation of the plan including installation of new water
mains, and/or incorporation of fire water storage tanks and booster pumps into the building
design, or other measures as determined by the Fire Marshal.
54. that if evidence of an archeological site or other suspected cultural resource as defined by CEQA
Guidelines Section 15064.5, including darkened soil representing past human activity ("midden"),
that could conceal material remains (e.g., worked stone, worked bone, fired clay vessels, faunal
bone, hearths, storage pits, or burials) is discovered during construction-related earth-moving
activities, all ground-disturbing activity within 100 feet of the resources shall be halted and the City of
Burlingame shall be notified. The project sponsor shall hire a qualified archaeologist to conduct a
field investigation. The City of Burlingame shall consult with the archeologist to assess the
significance of the find. Impacts to any significant resources shall be mitigated to a less-than
significant level through data recovery or other methods determined adequate by a qualified
archaeologist and that are consistent with the Secretary of the Interior's Standards for Archeological
Documentation. Any identified cultural resources shall be recorded on the appropriate DPR 523 (A-
J) form and filed with the NWIC;
EXHIBIT "A"
Conditions of Approval for Categoricai Exemption and Design Review Amendment.
150 Park Road
Effective March 19, 2010
Page 9
55. that should a unique paleontological resource or site or unique geological feature be identified at the
project construction site during any phase of construction, the project manager shall cease all
construction activities at the site of the discovery and immediately notify the City of Burlingame. The
project sponsor shall retain a qualified paleontologist to provide an evaluation of the find and to
prescribe mitigation measures to reduce impacts to a less-than-significant level. Work may proceed
on other parts of the project site while mitigation for paleontological resources or geologic features is
carried out. The project sponsor shall be responsible for implementing any additional mitigation
measures prescribed by the paleontologist and approved by the City; and
56. that if human remains are discovered at any project construction site during any phase of
construction, all ground-disturbing activity within 100 feet of the resources shall be halted and the
City of Burlingame and the County coroner shall be notified immediately, according to Section
5097.98 of the State Public Resources Code and Section 7050.5 of California's Health and Safety
Code. If the remains are determined by the County coroner to be Native American, the Native
American Heritage Commission (NAHC) shall be notified within 24 hours, and the guidelines of the
NAHC shall be adhered to in the treatment and disposition of the remains. The project sponsor shall
also retain a professional archaeologist with Native American burial experience to conduct a field
investigation of the specific site and consult with the Most Likely Descendant, if any, identified by the
NAHC. As necessary, the archaeologist may provide professional assistance to the Most Likely
Descendant, including the excavation and removal of the human remains. The City of Burlingame
shall be responsible for approval of recommended mitigation as it deems appropriate, taking account
of the provisions of State law, as set forth in CEQA Guidelines section 15064.5(e) and Public
Resources Code Section 5097.98. The project sponsor shall implement approved mitigation, to be
verified by the City of Burlingame, before the resumption of ground-disturbing activities within 100
feet of where the remains were discovered.
,�`���` d� ���;� ; CITY OF BURL1hlGAME
'���`�� � � �' CpMMUNITY QEVELOPMENT DEPARTMENT
�� �;:�E , �. � �
����� _��_�;-�"%�� 501 PRIMROSE F�QAD
'r� � BURI�INGAME, ��94010
PH'. {650} 558-T250 • �AX: (650j 696-3791i
www.burlingame_org
Site: 150 PARK ROAD (LOT f}
Ths City of Burlingame Planning tommission announces the following
public heoring on MONDAY, MARtN 9, 2020 at 7:00 P.M. in the
City Hall Council Chambers, 501 Primrose Road, Burlingame, CA:
Appiitation for Design Review Amendment for design changes to n,
previously approved 132-unit affordable workforce and senior
apartment devefopment at
150 PARK ROAD (LOT F) zoned HMU 8� R-4. APN 024.224.270
Mailed: Februnry 28, 2020
(Please refer fo other side)
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TABLE OF CONTENTS
Page
AMENDED AND RESTATED DISPOSITION
AND DEVELOPMENT AGREEMENT
by and between the
CITY OF BURLINGAME,
a California municipal corporation
and
PACIFIC WEST COMMUNITIES, INC.,
an Idaho corporation,
regarding
The Village at Burlingame Development
Dated: ���� 2019
2.
3.
DEFINITIONS; REPRESENTATIONS AND WARRANTIES; CHANGE IN
OWNERSHIP, MANAGEMENT AND CONTROL ...............................................4
1.1 Definitions .................................................................................................4
1.2 Representations and Warranties ............................................................ 10
1.3 Change in Ownership, Management and Control of Developer .............. 12
1.4 Amendment and Restatement of Original DDA. The Original DDA is
hereby amended and restated in its entirety by this Agreement . ............14
PURCHASE AND SALE ...................................................................................14
2.1 Purchase and Sale ................................................................................. 14
2.2 Purchase Price; Note and Deed of Trust; Developer Deposit ................. 14
2.3 City Expense Deposit .............................................................................. 15
2.4 City Conditions Precedent to Closing .....................................................15
2.5 Developer Conditions Precedent to Closing ........................................... 17
2.6 Escrow ....................................................................................................18
2.7 Closing ....................................................................................................19
2.8 Delivery of Documents and Closing Funds ............................................. 20
2.9 Review of Title ........................................................................................ 21
2.10 Title Insurance ........................................................................................ 21
2.11 Property Taxes and Assessments .......................................................... 22
2.12 Documents ..............................................................................................22
2.13 AS-IS CONVEYANCE ............................................................................ 22
2.14 Independent Investigation ....................................................................... 23
2.15 Disclaimers .............................................................................................24
2.16 Waivers, Release a�d Indemnification .................................................... 24
ENTITLEMENT AND IMPLEMENTATION OF THE DEVELOPMENT ............. 25
3.1 Schedule of Performance ....................................................................... 25
3.2 California Environmentai Quality Act — CEQA ........................................ 25
3.4 Affordable Housing Covenant .................................................................26
�!
4.
5.
TABLE OF CONTENTS
(continued)
Page
3.5 Permits for the Development .................................................................. 26
3.6 Garage Development; Plans & Specifications; Garage Development
Agreement; and City's Garage Contribution ...........................................26
3.7 Construction of Housing Development; Cost of Housing
Development........................................................................................... 27
3.8 Sources and Uses .................................................................................. 27
3.9 Insurance Requirements ......................................................................... 28
3.10 Rights of Access ..................................................................................... 29
3.11 Compliance With Applicable Laws ..........................................................29
3.12 Final Completion of Development; Certifcate of Completion .................. 30
3.13 Liens and Stop Notices ........................................................................... 30
3.14 Right of City to Satisfy Other Liens After any Closing ............................. 31
3.15 Mortgage, Deed of Trust, Sale and Lease-Back Financing ..................... 31
3.16 Covenants Regarding Operation, Management and Maintenance
Priorto Closing ....................................................................................... 32
COVENANTS, RESTRICTIONS AND AGREEMENTS . ...................................33
4.1 Uses ........................................................................................................33
4.2 Taxes and Assessments ......................................................................... 33
4.3 Effect and Duration of Covenants ........................................................... 33
4.4 Sales Tax Point of Sale Designation ....................................................... 33
4.5 Repurchase At Expiration of Affordable Housing Covenant .................... 34
DEFAULTS AND REMEDIES ........................................................................... 34
5.1 Default Remedies - General ................................................................... 34
5.2 Default Resolution and Legal Actions ..................................................... 35
5.3 Termination .............................................................................................37
5.4 City Option to Repurchase, Reenter and Repossess . ............................ 37
5.5 Rights and Remedies Are Cumulative .................................................... 39
5.6 Inaction Not a Waiver of Default ............................................................. 39
�
TABLE OF CONTENTS
(continued)
Page
6. GENERAL PROVISIONS .................................................................................. 39
6.1 Notices, Demands and Communications Between the Parties ............... 39
6.2 Enforced Delay; Extension of Times of Performance ............................. 40
6.3 Successors and Assigns ......................................................................... 41
6.4 Relationship Between City and Developer .............................................. 41
6.5 City Approvals and Actions ..................................................................... 42
6.6 Counterparts ...........................................................................................42
6.7 I ntegrati on ............................................................................................... 42
6.8 Brokerage Commissions .........................................................................42
6.9 Titles and Captions ................................................................................. 42
6.10 I nterpretation ........................................................................................... 42
6.11 Modifications ...........................................................................................42
6.12 Severability .............................................................................................43
6.13 Computation of Time ...............................................................................43
6.14 LegalAdvice ...........................................................................................43
6.15 Time of Essence ..................................................................................... 43
6.16 Cooperation ............................................................................................ 43
6.17 Conflicts of Interest ................................................................................. 43
6.18 Time for Acceptance of Agreement by City ............................................. 44
6.19 Developer's Indemnity ............................................................................ 44
6.20 Cooperation in the Event of Legal Challenge to Development
Approvals................................................................................................ 44
6.21 Non-liability of Officials and Employees of City ....................................... 45
6.22 Legal Fees ..............................................................................................45
6.23 Applicable Law; Venue ........................................................................... 45
6.24 Survival ...................................................................................................45
6.25 Memorandum of Agreement ................................................................... 46
�
LIST OF EXHIBITS
Exhibit A Legal Description — Lot F(Housing Property)
Exhibit B Legal Description — Lot N(Garage Property)
Exhibit C Form of Grant Deed (With Covenants)
Exhibit D Schedule of Performance
Exhibit E Form of Certificate of Completion
EXHIBIT F Garage DevelopmentAgreement
EXHIBIT G Form of Promissory Note
EXHIBIT H Form of Deed of Trust
EXHIBIT I Form of Affordable Housing Covenant
EXHIBIT J Memorandum of Agreement
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
The Villages at Burlingame Development
THIS AMENDED AND RESTATED D SPOSITION AND DEVELOPMENT
AGREEMENT ("AgreemenY') dated as of this ���day of �c,rt;�1r?�9 , 2019 ("Date
of AgreemenY'), is entered into by and between the CITY OF BURLINGAME, a Caiifornia
municipal corporation (°City"), and PACIFIC WEST COMMUNITIES, INC., an Idaho
corporation ("Developer"). City and Developer are sometimes referred to herein
individually as a"Party" or collectively as the "Parties".
RECITALS
A. City is the owner of certain real property bound by Park Road and Lorton
Avenue, referred to as Lot F(APN 029224270;) ("Housing Property"), and real property
bound by Lorton Avenue and Highland Avenue, referred to as Lot N(APN 029231240;
029231060) ("Garage Property"). The Housing Property is more particularly described
in the legal description attached hereto as Exhibit A, and the Garage Property is more
particularly described in the legal description attached hereto as Exhibit B. The Housing
Property and Garage Property are both currently developed as surface parking lots
available to the public. The Housing Property and Garage Property are sometimes
collectively referred to herein as the "Property".
B. In December 2014, City issued a Request for Proposals ("RFP") seeking
qualified developers interested i� developing the Property with affordable housing and
underground and/or structured parking.
C. Eight prospective developers submitted development proposals in
response to the RFP. The City invited three of the eight developers to present their
development plans to the City Councii and community on March 26, 2015. At the
conclusion of the March 26"' meeting, the City Council provided feedback to the three
development teams and the three teams subsequently presented revised concepts to
the City Council at a public meeting on June 9, 2015. At the June 9, 2015 meeting, two of
the three participants, including Developer, were invited to present further refined
proposals to the City Council.
D. On or about July 6, 2015, City Council considered the proposals submitted
by the two proponents and selected Developer as the preferred deveioper with whom to
exclusively negotiate regarding the potential development of the Property with affordable
housing and underground and/or structured parking, consistent with the requirements of
the Burlingame Downtown Specific Plan ("Specific Plan").
E. City and Developer thereafter entered into an Agreeme�t to Negotiate
Exclusively ("ANE"), approved by the City Council on April 4, 2016, in order to set forth
the terms under which City and Developer would exclusively negotiate the terms and
conditions of a proposed disposition and development agreement providing for
LIST OF EXHIBITS
conveyance via fee sale or ground lease of the Housing Property from City to Developer
and development of the Property.
F. During the course of the ANE negotiations, Developer proposed on the
Housing Property a multi-family affordable housing rental project. As approved by the
Planning Commission, the housing rental project wiil include approximately 132 units,
inciuding approximately 78 workforce housing units (6 of which would be at affordable
rents to households earning up to 50% of area median income ("AMI"), adjusted for
household size appropriate to the unit, 60 of which would be at rents affordabie to
househoids earning up to 60% of AMI, and 11 workforce units for households earning up
to 110% of AMI, one of which may function as a manager rental unit) and 54 senior age
restricted units (6 of which would be at affordable rents to households earning up to 50%
of AMI, and 48 of which would be affordab�e to senior households earning up to 60% of
AMI, adjusted for household size appropriate to the unit).
G. As replacement for the lost surface parking, the City required that
Developer construct a parking garage on the Garage Property. Developer proposed a
five level approximately 138,950 sq ft cast-in-place concrete parking structure. As
approved by the Planning Commission, the garage will include approximately 368
parking stalls (22 of which will have infrastructure for future installation of electric vehicle
chargers) to replace, at a greater than 1-to-1 ratio, the existing surface parking spaces
located on the Property, together with appurtenant on-site and off-site improvements,
inciuding hardscape and landscaping, all to be developed in a manner consistent with
the Specific Pian (the "Garage DevelopmenY'). Collectively the Housing Development
and Garage Development are sometimes referred to herein as the "DevelopmenY'.
H. Following conclusion of negotiations under the ANE, City and Developer
entered into a Disposition and Development Agreement, dated June 13, 2016 (the "2016
DDA") providing for City's disposition of a fee or ground lease interest in the Housing
Property to Developer; Developer's design of the Garage Development, including
preparation of plans and specifications necessary for City to publicly bid the construction
of the Garage Development in accordance with the Public Contract Code; Developer's
provision of funds to City for the construction of the Garage Development on the Garage
Property; and Developer's construction of the Housing Development on the Housing
Property, all as provided therein.
I. Pursuant to the terms of the Original DDA Developer has previously
prepared and submitted to City and City has approved conceptual design specifications
for both the Housing Development and the Garage Development prepared by Pacific
West Communities, Inc., dated November 26, 2018 ("Conceptual Design of
DevelopmenY').
J. Following approval of the Conceptual Design of Development, Developer
submitted to the City and City approved Developer's applications for certain land use
entitlements, as included in Planning Commission staff reports on December 10, 2018,
with clarifications on July 8, 2019 and September 9, 2019 (collectively the
"Development Approvals") needed for the Development and in connection therewith
determined that the Development is categorically exempt from review under CEQA
pursuant to CEQA Guidelines Section 15332 (Class 32 Infill Exemption) and that �o
circumstances exist which would otherwise nullify the Class 32 CEQA exemption
determination.
K. Section 2.3 of the 2016 DDA provided that City's obligation to accept and
process an application submitted by Developer, and Developer's right to submit an
application to City, to secure all necessary land use entitlements required by Applicable
Laws to undertake and construct the Development on the Property was subject to the
fulfiilment or waiver by City of certain Conditions Precedent to Deve�opment Application
(as defined in the Original DDA). As of the date of this Agreement, ali such Conditions
Precedent to Development Application have been met.
L. Subsequent to satisfaction of such Conditions Precedent to Development
Application, the City and Developer entered into that certain First Amendment to
Disposition and Development Agreement, dated July 30, 2019, (the "First
AmendmenY'), which amended the 2016 DDA to provide that Developer would
purchase the Housing Property, subject to certain rights of the City to repurchase said
property upon occurrence of certain events, and that the Parties no longer desired the
option of a ground lease for the Housing Property. The 2016 DDA, as amended by the
First Amendment, is referred to herein as the "Original DDA".
M. The Parties now desire to provide an additional refined mix of affordable
units within the Housing Development and provide for Developer to construct the Garage
Development, primarily at Developer's expense (with a limited contribution of City funds)
in lieu of Developer designing the Garage Development and previding funding to City to
bid the Garage Development as a public works project. To implement the above
changes in the method of delivery of the Garage Development, City and Developer now
desire to amend and restate the Original DDA in its entirety to provide for the terms and
conditions of the Developer's construction of the Garage Development and the
conveyance of the Housing Property, to extend the Outside Date for closing of escrow
and make certain other changes ail as set forth herein.
N. As provided in the Development Approvals, Developer is entitied to
construct the Housing Development with 132 residential units; 12 units shall be at
affordable rents targeted to househoids earning up to 50% of AMI, 108 units shall be at
affordabie rents targeted to households earning up to 60% of AMI, 11 units shall be at
affordabie rents targeted to households earning up to 110% of AMI, of which one unit
shall be an onsite property manager's unit. Developer has since refined this mix with
deeper affordability in order to qualify for the California Housing Finance Agency's
Mixed-Income Program. The Developer now proposes to construct the following: 82
units would be at affordable rents targeted to households earning up to 50% AMI, 35
units would be at affordable rents targeted to households earning up to 80% AMI, 14
units would be at affordable rents targeted to households earning up to 120% AMI, of
which one unit would be an unrestricted onsite property manager's unit.
O. The execution and performance of this Agreement is in the vital and best
interests of the City and the health, safety and welfare of the City's residents, and is in
accord with the provisions of applicabie federal, state and Iocal law.
AGREEMENT
NOW, THEREFORE, City and Developer hereby agree as follows:
DEFINITIONS: REPRESENTATIONS AND WARRANTIES: CHANGE IN
OWNERSHIP. MANAGEMENT AND CONTROL.
1.1 Definitions. Capitalized terms used in this Agreement and not othervvise
defined, shall be as defined in this Section 1.1 as follows:
"2016 DDA" is defined in Recital H.
"Affiliate of Developer" means an entity or entities in which Developer or
Developer's Principai retains more than ffty percent (50%) in the aggregate, directly or
indirectly, of the ownership or beneficial interest therein and in which Developer or
Developer's Principai retains control of such entity or entities. 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.
"Affordable Housing Covenant" means the Affordabie Housing Govenant
between City and Developer governing the Housing Development substantially in the
form attached hereto as Exhibit I.
"Agreed Extension of Performance" is defined in Section 6.2.
"AgreemenY' means this Amended and Restated Disposition and Development
Agreement between City and Developer.
"AMI" means area median income, and as referenced in California Health and
Safety Code §50053, means the median household income (adjusted for household size
appropriate to the unit) of the Metropolitan Statistical Area in which San Mateo County is
Iocated, as established pursuant to California Health and Safety Code §50093, as
amended; provided, however, that so long as the Housing Development shall be
encumbered by a CTCAC Regulatory Agreement, AMI shall be determined in accordance
with said Regulatory Agreement.
"ANE" means the Agreement to Negotiate Exclusively as described in Recital E.
"Appiicable Laws" means, collectively: (i) all State and Federal laws and
regulations applicable to the Property and the Development as enacted, adopted and
amended from time to time, inciuding Environmental Laws; (ii) all City policies, standards
and specifcations set forth in this Agreement and the Development Approvals, including
the specific conditions of approvai adopted with respect to the Development Approvals;
(iii) with respect to matters not addressed by this Agreement or the Development
Approvals but governing permitted uses of the Property, building locations, sizes,
densities, intensities, design and heights, site design, setbacks, lot coverage and open
space, and parking, those City ordinances, rules, regulations, official policies, standards
and specifications in force and effect on the Closing; and (iv) wiih respect to all other
matters, including building, plumbing, mechanical and electrical codes, those City
ordinances, rules, regulations, official policies, standards and specifications in force and
effect as may be enacted, adopted and amended from time to time, including ordinances,
resolutions, orders, rules, official policies, standards, specifications, guidelines or other
regulations, which are promulgated or adopted by the City (including but not limited to any
City agency, body, department, officer or employee) or ils electorate (through the power
of initiative or otherwise) after the Date of Agreement, except those in conflict with this
Agreement.
As-Is Condition" is defined in Section 2.13.
"CEQA" means the California Environmental Quality Act, California Public
Resources Code §§21000 et seq. and State CEQA Guidelines, California Code of
Regulations Title 14 §§15000 ef seq.
"Certificate of Completion" means the document to be executed and recorded by
City upon Final Completion, as provided in Section 3.12, in the form attached hereto as
Exhibit E and incorporated herein by this reference.
"City" means the City of Burlingame, a California municipal corporation.
"City Conditions Precedent to Closing" is defined in Section 2.4.
"City Council" means the City Council of the City of Burlingame.
"City Expense DeposiY' is defined in Section 2.3.
"City Expenses" is defined in 5ection 2.3.
"City Manager" means the City Manager of the City.
"City Parties" and "City Party" are defned in Section 2.13.
"City's Actuai Knowledge" or words to such effect shall mean the present, actuai
knowiedge of Syed Murtuza, Public Works Director, excluding constructive knowiedge or
duty of inquiry, existing as of the Date of Agreement.
Claims" means liabilities, obligations, orders, ciaims, damages, governmental
fines or penalties, and expenses of defense with respect thereto, including reasonable
attorneys' fees and costs.
"Close of Escrow" is defined in Section 2.7.
"Closing" is defined in Section 2.7.
"Closing Default" is defined in Section 5.2.3.
"Commence Construction", "Commenced Construction", or "Commencement
of Construction" or similar phrases shall be deemed to have occurred when the
Developer has commenced the demolition of existing improvements located on, and
grading of, the Property preparatory to the construction of the Housing Development or
the Garage Development, as applicable, in accordance with the Development Approvals,
and such dates shall be memorialized in writing by the Parties.
"Conceptual Design of DevelopmenY' is defined in Recital I.
"Condition of Title" is defined in Section 2.9.
"Control" is defined in Section 1.3.2.
"Date of AgreemenY' means the date first set forth above.
"Day-to-Day ManagemenY' means active, day-to-day management
responsibilities for the activities of Developer.
"Deed of TrusY' means that certain deed of trust securing the payment of the Note,
to be recorded against the Housing Property, and in the form attached hereto as
Exhibit H.
"Default" is defined in Section 5.1.
"Developer" means PACIFIC WEST COMMUNITIES, INC., an Idaho corporation.
"Developer DeposiY' means the $100,000 good faith deposit to be provided by
Developer pursuant to Section 2.2, to be credited against the Purchase Price at the
Closing defined in Section 2.7.
"Developer Conditions Precedent to Closing" is defined in Section 2.5.
"Developer's Principal" or "Principal" is Caleb Roope.
"DevelopmenY' as referenced in Recital G, means the Housing Development and
Garage Development, described in Recital F and Recital G respectively.
"Development Agreements" means this Agreement, the Grant Deed (Exhibit C),
the Garage Development Agreement, the Note (Exhibit G), the Deed of Trust (Exhibit H),
and the (Exhibit I).
"Development Approval Challenges" is defined in Section 6.20.
"Development Approvals" is defined in Recital J.
"Documents" is defined in Section 2.12.
"Environmental Laws" means, coliectively: (i) the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601, et seq., (ii)
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq., (iii)
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et seq.,
(iv) the Federal Water Poilution Control Act, as amended, 33 U.S.C. § 1251, et seq., (v)
the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq., (vi) the Toxic Substances
Control Act, as amended, 15 U.S.C. § 2601, et seq., (vii) the Clean Water Act, as
amended, 33 U.S. Code § 1251, et seq., (viii) the Oil Pollution Act, as amended, 33
U.S.C. § 2701, et seq., (ix) California Health 8 Safety Code § 25100, et seq. (Hazardous
Waste Controi), (x) the Hazardous Substance Account Act, as amended, Health & Safety
Code § 25300, et seq., (xi) the Unified Hazardous Waste and Hazardous Materials
Management Regulatory Program, as amended, Health & Safety Code § 25404, et seq.,
(xii) Health & Safety Code § 25531, et seq. (Hazardous Materials Management), (xiii) the
California Safe Drinking Water and Toxic Enforcement Act, as amended, Health & Safety
Code § 25249.5, et seq., (xiv) Health & Safety Code § 25280, et seq. (Underground
Storage of Hazardous Substances), (xv) the California Hazardous Waste Management
Act, as amended, Heaith & Safety Code § 25170.1, et seq., (xvi) Health & Safety Code §
25501, et seq., (Hazardous Materials Response Plans and Inventory), (xvii) Health &
Safety Code § 18901, et seq. (California Building Standards), (xviii) the Porter-Cologne
Water Quality Control Act, as amended, California Water Code § 13000, et sep., (xix)
Caiifornia Fish and Game Code §§ 5650-5656, (xx) the Polanco Redevelopment Act, as
amended, Health & Safety Code § 33459, et seq., (xxi) Health & Safety Code § 25403, et
seq. (Hazardous Materials Release Cleanup), and (xxii) any other federal, state or local
laws, ordinances, rules, regulations, court orders or common Iaw related in any way to the
protection of the environment, health or safety.
"Escrow" is defined in Section 2.6.
"Escrow AgenY' means Commonwealth Land Title Insurance Company.
"Exceptions" is defined in Section 2.9.
"Final Completion" or "Finally Complete" shail be deemed to have occurred
when Developer has completed all of its obligations under this Agreement related to the
Development.
"FIRPTA" is defined in Section 1.2.1(f).
"First AmendmenY' is defined in Recital L.
"Force Majeure Delay" is defined in Section 6.2.
"Garage DevelopmenY' is defined in Recital G.
"Garage Development Contractor" is defined in Section 3.6.
"Garage Development AgreemenY' means the agreement negotiated between
the Parties to provide for the construction of the Garage Development by Developer for
the benefit of City.
"Garage Propert�i' is defined in Recital A and legally described in Exhibit B.
"Grant Deed" means the grant deed for the conveyance of the Housing Property
from City to Developer substantially in the form attached hereto as Exhibit C and
incorporated herein by this reference, to be executed and recorded at Closing.
"Hazardous Materiais" means any substance, material, or waste which is or
becomes regulated by any local governmental authority, the State of California, or the
United States Government under any Environmental Laws, including any material or
substance which is defined as "hazardous," "extremely hazardous," "hazardous waste,"
"extremeiy hazardous waste," "restricted hazardous waste," "hazardous substance" or
"hazardous material" u�der any Environmental Laws, including petroleum, or any fraction
thereof, friable asbestos, and polychlorinated biphenyls.
"Housing Development" means a muiti-family affordable housing rental project of
132 units, 12 of which shali be at affordabie rents targeted to households earning up to
50% of AMI, 108 of which shall be at affordable rents targeted to househoids earning up
to 60% of AMI, and 11 of which shall be at affordable rents targeted to households
eaming up to 110°/o of AMI, with 1 unit designated as an onsite property manager's unit,
or, if approved by the Planning Commission 82 units at affordable rents targeted to
households earning up to 50°/o AMI, 35 units at affordable rents targeted to households
earning up to 80% AMI, 14 units at affordable rents targeted to households eaming up to
120% AMI, of which one unit would be an unrestricted onsite property manager's unit.
The latter proposal will require amendment of the original entitlements, and either mix of
affordabiiity is accepiable to the Council. These units shall be built together with a pocket
park on the panhandle portion of Housing Property, with sufficient parking for the
multi-family residential component, together with appurtenant on-site and off-site
improvements, inciuding hardscape and landscaping, ail to be developed in a manner
consistent with the Development Approvals.
"Housing Development Contractor° means the contractor selected by the
Developer to construct to the Housing Development.
"Initial Litigation Challenge" is defined in Section 6.20.
"Maximum City Contribution" is defined in Section 7.4 of the Garage
Development Agreement.
"Memorandum of Agreement" means the Memorandum of Agreement in the
form attached hereto as Exhibit J.
"Municipal Code" means the City of Burlingame Municipal Code.
"Note" means that certain Promissory Note in the amount of the Purchase Price,
executed by Developer in favor of City, in the form attached hereto as Exhibit G.
"Notice" means a written notice in the form prescribed by 5ection 6.1.
"Organizational Documents" is defined in Section 1.2.2.
"Originai DDA" is defined in Recital L.
"Outside Date" is June 30, 2020
"Parties" means the City and Developer.
"Party" means the City or Developer.
"Permitted Transfer" is defined in Section 1.3.3.
"Prevailing Wage Law" is defined in Section 3.11.
"Property" means the Housing Property and the Garage Property, as legally
described in Exhibit A and Exhibit B respectively.
"Purchase Price" is defined in Section 22.
"Released Claims" is defined in Section 2.16.
"Reports° is defined in Section 2.12.
"Request to Resolve Dispute" is defined in Section 5.2.1.
"RFP" means the Request for Proposals described in Recital B.
"Schedule of Performance" means the Schedule of Perforrnance attached hereto
as Exhibit D and incorporated herein by this reference, setting out the dates and/or time
periods by which certain obligations set forth in this Agreement must be accomplished.
"Housing Property" is defined in Recital A and legaily described in Exhibit A. "Site Condition" is defined in Section 2.14.
"Sources and Uses" is defined in Section 3.8.
"Specific Plan" means the Burlingame Downtown Specific Plan described in
Recital D.
"Subsequent Sources and Uses" is defined in Section 3.8.
"Substantial Compietion" or "Substantially Complete" shall be deemed to have
occurred when (i) Developer has provided adequate evidence to the City Manager that
ninety percent (90%) of the contract price for the construction of the Housing
Development (including all change orders) has been expended and (ii) the life safety
systems within the Housing Development have been installed and are fully functional.
"Title Compa�y" means Commonwealth Land Title Insurance Company.
"Title Policy" is defined in Section 2.10.
"Title Reports" is defined in Section 2.9.
"Transfer" means any assignment or transfer of this Agreement or the Housing
Property or any portion thereof or any interest therein and as further defned in Section
1.3.2.
"Unrecorded Agreements" is defined in Section 2.12.
1.2 Representations and Warranties.
1.2.1 Citv Representations and Warranties. City represents and warrants
to Developer as follows:
(a) Authoritv. City is a California municipal corporation with full
right, power and lawful authority to perform its obligations hereunder, and the execution,
delivery, and performance of this Agreement by City has been fully authorized by all
requisite actions on the part of the City.
(b) No Conflict. City's execution, delivery and performance of its
obligations under this Agreement will not constitute a default or a breach under any
co�tract, agreement or order to which City is a party or by which City is bound.
(c) No Litiqation or Other Proceedinq. To City's Actual
Knowledge, no litigation or other proceeding (whether administrative or otherwise) is
outstanding or has been threatened which would prevent, hinder or delay the ability of
City to pertorm its obligations under this Agreement, or that would adversely affect the
Property or the Development as contemplated by this Agreement.
(d) Right to Possession. No person or entity other than City has
the right to use, occupy, or possess the Property, or any portion thereof. Excepting the
continued use prior to Closing of all or a portion of the Property for pubiic parking and
occasional use as a farmer's market and other City sponsored events or activities, City
shall not enter into any lease or other agreement respecting use, occupancy, or
possession of the Property or any portion thereof without the written consent of
Developer. The foregoing notwithstanding, on no less than 48 hours prior notice from
Developer, City shall provide the PropeRy to Developer free of any use, occupancy or
possession by any person or entity in order for Developer to undertake activities
contemplated by this Agreement. Furthermore, City shall deliver the Housing Property to
Developer free of any use, occupancy or possession by any person or entity at Closing
and City shail have no right thereafter to use any portion of the Housing Property for any
use.
(e) Condition of Proaertv. City owns fee title to the Property free
and clear of all claims, liens or encumbrances other than as set forth in the Preliminary
Title Report issued by Title Company. City has no notice of any pending or threatened
action or proceeding arising out of the condition of the Property or any alleged violation of
any federal, state or local laws, including without Iimitation all Environmental Laws.
Except as otherwise disclosed by Documents provided by City to Developer and the
results of Developer's independent investigation of the Property pursuant to Section 2.14,
to City's Actual Knowledge, the Property is in compliance with all federal, state or local
laws, including without iimitation all Environmental Laws.
(f) FIRPTA. The City is not a"foreign person" within the
parameters of the Foreign Investment In Real Property Tax Act of 1980 ("FIRPTA") or any
similar state statute, or is otherwise exempt from the provisions of FIRPTA or any simiiar
state statute, or has otherwise complied with and will comply with all the requirements of
FIRPT/� or any similar state statute.
(g) Zoninq; Condemnation. The City has not instituted or taken,
and will not institute or take, any action which would result in a change in zoning or
condemnation of the Property or otherwise result in Developer being unable to develop
and operate the Housing Development.
Until the recording of the Grant Deed, City shall, upon learning of any
fact or condition which would cause any of the warranties and representations in this
Section 1.2.1 not to be true, immediately give written Notice of such fact or condition to
Developer.
1.2.2 Developer's Representations and Warranties. Developer represents
and warrants to City as follows:
(a) Authoritv. Developer is an Idaho corporation duly organized
and in good standing under the laws of the State of Idaho and qualified to do business in
the State of California. Prior to execution of this Agreement, Developer has provided to
City its Articles of Incorporation, By-Laws, and Operating Agreement ("Organizational
Documents"). The Organizational Documents provided by Developer to City are true
10 ��
and complete copies of the originals, as may be amended from time to time. Developer
has full right, power and lawful authority to undertake all of its obligations hereunder and
the execution, performance and delivery of this Agreement by Developer has been fuliy
authorized by all requisite company actions on the part of Developer.
(b) No Gonflict. Developer's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a
breach under any contract, agreement or order to which Developer or any Principal is a
party or by which Developer or any Principal is bound.
(c) No Litiqation or Other Proceedinq. To Developer's current
actual knowledge, no litigation or other proceeding (whether administrative or othervvise)
is outstanding or has been threatened which would prevent, hinder or delay the ability of
Developer to perform its obligations under this Agreement.
(d) No Developer Bankruptcv. Developer is not the subject of any
bankruptcy proceeding, and no general assignment or general arrangement for the
benefit of creditors or the appointment of a trustee or receiver to take possession of all or
substantialiy all of Developer's assets has been made.
Until the recording of the Certificate of Completion pursuant to
Section 3.12 of this Agreement, Developer shall, upon learning of any fact or condition
which would cause any of the warranties and representations in this Section 1.2.2 not to
be true, immediately give written Notice of such fact or condition to City. The foregoing
representations and warranties shall survive Closing and continue until recording of the
Certificate of Completion pursuant to Section 3.12.
1.3 Change in Ownership Manaqement and Control of Deveioqer. The
qualifications and identity of Developer are of particular concern to City. It is because of
those unique qualifications and identity that City has entered into this Agreement with
Developer.
1.3.1 Until Final Comoletion of Develooment. Until Final Completion of the
Development, as evidenced by execution and recording of the Certificate of Completion
as provided by Section 3.12, Developer shall not Transfer the Housing Property or any
rights or obligations under this Agreement. After recording of the Certificate of
Completion, Developer may Transfer the Housing Property, subject to the terms of the
Grant Deed, Garage Development Agreement and Affordable Housing Covenant, without
the consent or approval of the City.
1.3.2 Additional Matters. Except for Permitted Transfers as provided in
Section 1.3.3, the term "Transfer" for the purposes of this Section 1.3.2 shall inciude any
significant change in the Control of Developer by any method or means. The term
"Control" as used in the immediately preceding sentence and Sections 1.3.3 and 1.3.4
below, shall mean the power to direct the Day-to-Day Management of Developer, and
with respect to a corporation or limited liability company, control is the right to exercise,
directly or indirectly, more than 50% of the voting rights attributable to the controlled
corporation or limited liability company, and, with respect to any individual, partnership,
trust, other entity or association, control is the possession, indirectly or directly, of the
power to direct or cause the direction of the Day-to-Day Management of the controlled
entity. Notwithstanding the foregoing and anything else set forth herein, a transfer or
change in control resulting from the death or disability of Caleb Roope shall not constitute
a Transfer or otherwise give rise to a default hereunder if: Caleb Roope's estate or
personal representative accepts liability hereunder and the relevant entity is to be
managed pursuant to Caleb Roope's emergency succession plan, dated September 13,
2018 (as amended or restated from time to time, which amendments and restatement
shall be subject to City approval not to be unreasonably withheld, conditioned or
delayed).
1.3.3 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, each of following Transfers are permitted and shall not require
City consent under this Section 1.3.3 (each, a"Permitted Transfer°):
(a) An assignment of this Agreemeni to a limited partnership in
which the Developer or an Affiliate controlled by Developer's Principal, is an
administrative general partner, provided that Developer's Principal retains Control of the
administrative general partner;
(b) Permanent financing of the Housing Development following
its Substantial Compietion as provided in Section 3.15.1;
(c) Dedications and grants of easements and rights of way over,
across, on or upon the Housing Property required in accordance with the Development
Approvals; or
(d) The leasing of the Housing Property or portion thereof to an
Affiliate of Developer or third-party tenants, for uses permitted by this Agreement, the
Development Approvals, and Applicable Laws; or
(e) Admission of new or additional equity partners provided that
Developer's Principal retains Control of the administrative general partner of Developer;
or
(f) Recordation of regulatory agreements in favor of CDLAC and
CTCAC.
1.3.4 Subsepuent Equitv Transfers. Until Final Completion of the
Development, any proposed admission of new equity partner(s) resulting in a change in
Control of Developer shall be subject to the prior review and approval by the City
Manager, which approval may be granted, withheld, conditioned or delayed, in the City
Manager's sole discretion.
12 13
1.4 Amendment and Restatement of Oriqinal DDA. The Original DDA is hereby
amended and restated in its entirety by this Agreement.
PURCHASE AND SALE.
2.1 Purchase and Sale . Subject to the terms, covenants and conditions of this
Agreement, Developer shall purchase from City and City shall sell to Developer the
Housing Property with the conveyance to be effectuated via delivery and recordation of
the Grant Deed.
2.2 Purchase Price: Note and Deed of Trust; Develoqer Deposit. The total
purchase price for the Housing Property shall be equal to the appraised fair market value
of the Housing Property based on its highest and best use in accordance with Applicable
�aws as of the Date of Agreement without factoring in any costs associated with
Developer's obligation to design and construct the Garage Development ("Purchase
Price"). Prior to the Date of Agreement, the Parties have retained Jeffrey Enright of
Kidder Mathews to prepare the fair market value appraisal. If, upon receipt of the Kidder
Mathews appraisal, the Parties mutuaily agree that the value as shown in the Kidder
Mathews appraisal represents the current fair market value of the Housing Property, as
defined above, then the City Manager and Developer shall memorialize their agreement
by executing an amendment to this Agreement setting forth the agreed upon Purchase
Price dollar amount. If City and Developer have not agreed upon the fair market value
Purchase Price dollar amount within 10 business days following receipt of Kidder
Mathews' final appraisal report, then City may retain its own MAI appraiser to prepare a
fair market value appraisal of the Housing Property and, upon completion of same, City
shall furnish such appraisal to Developer. If the City appraiser's valuation varies from the
r�idder Mathews valuation by 5% of the Kidder Mathews valuation or less, the Purchase
Price amount shall be the average of the two valuations. If the City appraiser's valuation
varies from the Kidder Mathews valuation by more than 5%, the two appraisers shall,
within 10 days after submission of the City appraiser's report, appoint a third MAI licensed
appraiser with at least 10 years' experience appraising similar properties in San Mateo
County who has not acted in any capacity for or against either Party. If the two appraisers
are unable to agree on the selection of a third appraiser in a timely manner, then either
City or Developer may request such appointment by the presiding judge of the Superior
Court of Mateo County. Such third appraiser shall, within 30 days after appointment,
make a determination of fair market value of the Housing Property and said third
appraiser shali select the opinion of fair market value as determined by the one valuation
determination, compieted by the two appraisers, which most ciosely matches the third
appraiser's opinion of fair market value, as defined above. The fair market value
Purchase Price of the Housing Property shall be the fair market valuation selected by said
third appraiser. All fees and costs of the third appraiser in connection with the
determination of fair market value shall be paid one-half by City and one-half by
Developer.
Note shall be substantially in the form attached hereto as Exhibit G, and shall be secured
by a deed of trust ("Deed of Trust") recorded against the Housing Property, substantiaily
in the form attached hereto as Exhibit H.
Concurrent with the opening of Escrow in accordance with Section 2.6, Developer
shall deposit One Hundred Thousand and 00l100 Doilars ($100,000.00) into Escrow with
the Escrow Agent ("Developer DeposiY'). At Closing, Developer shall be entitled to a
credit in the amount of the Developer Deposit as against the Purchase Price. in the event
that this Agreement is terminated prior to Closing and Developer is not in Default as
provided in this Agreement, Developer shall be entitled to a refund of the Developer
Deposit.
2.3 City Expense Deposit. Concurrent with the execution of the 2016 DDA,
Developer deposited with City a sum of Eighty Thousand Dollars ($80,000.00) ("City
Expense Deposit")to pay City's actual, reasonable out of pocket expenses incurred in
carrying out its obligations under the ANE and the 2016 DDA, including the costs of City's
economic/financial consuitant and special legal counsel fees and costs incurred by City in
connection with the negotiation, drafting and consideration, as applicable, of the ANE, the
2106 DDA, and related documents and agreements ("City Expenses"). If the balance of
the City Expense Deposit drops below Ten Thousand Dollars ($10,000.00) at any time,
City shail notify Developer in writing and Developer shall augment the City Expense
Deposit by depositing with City an additionai sum of Twenty Five Thousand Doilars
($25,000.00}. The cost of City staff time, including City Attorney work, shall be borne by
the City.
2.4 Citv Conditions Precedent to Closinq. City's obligation to proceed with the
disposition of the Housing Property to Developer pursuant to the terms of this Agreement
is subject to the fulfiliment or waiver by City of each and all of the conditions precedent
described below ("City Conditions Precedent to Closing"). The City Conditions
Precedent to Closing are solely for the benefit of City and shall be fulfilled or waived within
the time periods provided for herein, and in any event, no Iater than the Outside Date.
2.4.1 No Default. Developer shall not be in Default under this Agreement,
and no event shali have occurred, which with the passage of time or giving of Notice, or
both, would constitute a Default by Developer hereunder subject to a right to cure by
Developer.
2.4.2 Reserved
2.4.3 Execution and Delivery of Documents bv Developer. Developer
shall have executed (and, where appropriate, acknowledged) and delivered into Escrow
the Grant Deed, Affordable Housing Covenant, Note, Deed of Trust, Garage
Development Agreement, and all other documents that Developer is required to deliver
into Escrow pursuant to Section 2.8.1.
Payment of the Purchase Price, as applicabie, at Closing shall be made in the form
of a promissory note ("Note") in the amount of the Purchase Price in favor of City. The
2.4.4 Delivery of Funds. Developer shall have delivered into Escrow the
Purchase Price as evidenced by the Note and Deed of Trust, less the Developer Deposit,
and such other funds, including escrow costs, recording fees and other closing costs as
are necessary to comply with Developer's obiigations under this Agreement.
2.4.5 Subsequent Sources and Uses. City shall have approved the
Developer's Subsequent Sources and Uses pursuant to Section 3.8.
2.4.6 Evidence of Availabie Funds. City shall have received from
Developer reasonable evidence that Developer has, or at Closing, will have, all funds
necessary for the Purchase Price, Housing Development construction costs, and the
Garage Development construction costs, as identified in the Sources and Uses, in ready
and available funds (which may be Developer's own funds and/or third party equity or
debt financing proceeds). Developer expressly acknowledges that Closing will not occur
uniess and until the condition above has been satisfied.
2.4.7 Ectuitv Fundinq/Construction Loa�. Developer shall have delivered
to City evidence that the equity commitments or acquisition and/or construction Ioan(s), if
any, described in the Sources and Uses, shall have closed or shall be ready to close
concurrently with the Closing.
2.4.8 Garaqe Development Plans and Specifications. Developer sha�l
have prepared, and City shali have approved, a complete set of plans and specifications
for the Garage Development in accordance with App�icable Laws.
2.4.9 Housinq Development Construction Permits. Developer shall have
submitted complete applications to City for demolition, grading and building permits
necessary for Developer to develop and construct the Housing Development, and ail plan
check fees, permit fees and development impact fees for said permits shall have been
paid by Developer. The City shall have reviewed, approved, and issued permits for
demolition, grading, and foundation work (such as may be required). Additionally,
Developer shall have submitted a complete set of plans for the remaining required
building permits at Ieast ninety (90) days prior to ciosing, and the Community
Development Director shall have determined that those plans are complete and that, with
reasonabie revisions, are such as may suppoR issuance of permits.
2.4.10 Develooment Approvals. The Development Approvals shall be final.
As of the date of execution, no legal challenges have been filed or are pending.
2.4.11 Insurance Poiicies. Deveioper shall have submitted to City evidence
that the insurance poiicies required by Section 3.9 have either been issued or will be
ready to issue prior to Commencement of Construction.
2.4.12 Site Condition. Deveioper shall have accepted in accordance with
Section 2.14 lhe Site Condition of the Property in its "As-Is" Condition.
2.4.13 Housinq Develooment Construction Contract. Developer shall have
provided City, and City shall have approved a copy of an un-redacted construction
contract for the Housing Development.
2.4.14 Garaqe Develooment Construction Contract. Deveioper shall have
provided City an un-redacted copy of, and City shall have approved, Developer's
construction contract with its general contractor for construction of the Garage
Development. The construction contract shall provide for assignment to the City in event
of Developer default in constructing the Garage Development.
2.4.15 Securitv for Garaqe Development. Developer shall have furnished
faithful performance bonds and labor and material bonds for the constructio� of the
Garage Deveiopment, each in amount equal to 120% of the totai estimated hard and soft
cost of constructing the Garage Development in a form acceptable to the City. If any of the
security instruments is a surety bond, the surety issuing said bond shall be admitted in the
State of California and have a financial rating from A.M. Best Company of A-VIII or better.
In addition, the surety bond, whether issued by individual or corporate surety, shall,
among other required terms and conditions, contain conditions that (i) death of the named
principal shali not operate as a release of the obligation of the surety and (ii) no extension
of time, change, alteration, modification, deletion, or addition to the Garage Development
plans and specifications, or of the work (including services) req�ired thereunder, or any
City action to perform work, protect work, mitigate damages, or advance critical work to
mitigate schedule deiay shall release or exonerate surety on the bond or in any way affect
the obligations of surety on the bond, unless such action is a City default, and surety
waives notice of same.
2.4.16.Proqress on Garaae Develooment Construction. Developer shall
have Commenced Construction of the Garage Development as evidenced by demolition
of the existing improvements and commencement of grading activities.
2.5 Develooer Conditions Precedent to Closinq. Developer's obligation to
proceed with the acquisition of the Housing Property from City is subject to the fulfillment
or waiver by Developer of each and all of the conditions precedent described below
("Developer Conditions Precedent to Closing"). The Developer Conditions Precedent
to Closing are solely for the benefit of Developer and shail be fulfiiled or waived, if
applicable, within the time periods provided for herein, and in any event, no later than the
Outside Date.
2.5.1 No Default bv Citv. City shall not be in Default under this Agreement,
and no event shall have occurred, which with the passage of time or giving of Notice, or
both, would constitute a default by City hereunder subject to a right to cure by City.
2.5.2 Reserved.
2.5.3 Execution and Delivery of Documents bv Citv. City shall have
executed (and, where appropriate, acknowledged) and delivered into Escrow the Grant
Deed, Affordable Housing Covenant, the Garage Development Agreement, and all other
documents that City is required to deliver into Escrow pursuant to Section 2.8.2.
2.5.4 Develoqment Approvals. The Development Approvals shall be final.
As of the date of execution, no legal chalienges have been filed or are pending.
2.5.5 Development Construction Permits. City shall have reviewed and
approved the demolition, grading and building permits necessary for Developer to
develop and construct the Garage Deveiopment, and City shall have issued said permits.
2.5.6 No Leases or Parties in Possession. City shall have demonstrated to
Developer the ability to deliver to Developer, as applicable, fee title to the Housing
Property free and clear of any tenants, lessees, licensees or any third party occupa�ts or
parties in possession.
2.5.7 Condition of Title; Title Policv. Developer shail have accepted the
Condition of Title with respect to the Housing Property in accordance with Section 2.9.
The Title Company shall, upon payment of Title Company's regularly scheduled
premium, be irrevocably committed to issue the Title Policy pertaining to the Housing
Property upon recordation of the Grant Deed subject only to the Condition of Title.
2.5.8 Site Condition. Developer shall have accepted in accordance with
Section 2.14 the Site Condition of the Property in its "As-Is" Condition.
2.5.9 No Material Adverse Chanqe. There shall not have occurred
between the Date of Agreement and the Closing a material adverse change to the Site
Condition of the Property or Condition of Titie of the Housing Property.
2.5.10 Equitv Fundinq/Construction loan. Developer shall have secured all
necessary equity commitments and acquisition and construction loans, if any, for the
Purchase Price, Housing Development construction costs, and the Garage Development
construction costs, as identified in the Sources and Uses.
2.6 Escrow. Within three (3) calendar days of the Date of Agreement, the
parties shali open an escrow with Escrow Agent for the conveyance of the Housing
Property to Developer ("Escrow").
2.6.1 Costs of Escrow. Escrow Agent shall charge: (i) Developer for the
following: the recording cost of the Grant Deed, Affordable Housing Covenant and other
closing documents, Developer's share of proration's, the cost of the premium for the
owner's title policy, including the cost of endorsements and survey, if any, and one half of
the escrow fees charged by the Escrow Agent; and (ii) City for one half of escrow fees
charged by Escrow Agent and City's share of proration's.
2.6.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and City with respect to the conveyance of the Housing
Property to Deveioper, and the Escrow Agent to whom these instructions are delivered is
hereby empowered to act under this Agreement. Insurance policies for fire or casualty
are not to be transferred. All funds received in the Escrow shall be deposited in
interest-bearing accounts for the benefit of the depositing Party in any state or nationai
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 2.7 below. Escrow Agent is
instructed to release City's and Deveioper's escrow closing statements to the respective
Parties.
2.6.3 Authoritv of Escrow Aqent. Escrow Agent is authorized to, and shall:
(a) Pay and charge Developer for the premium for the Title
Policy, including any endorsements requested by Developer.
(b) Pay and charge Developer and City for escrow fees, charges,
and costs as provided in Section 2.6.1.
(c) Record the Grant Deed, Affordable Housing Covenant and
Deed of Trust when the City Conditions Precedent and Developer Conditions Precedent
have been fulfilled or waived in writing by City and Developer, as applicable. Immediately
following recordation of the Grant Deed, Escrow Agent shall first record the Affordable
Housing Covena�t and Deed of Trust, in that order, and thereafter any other recordable
documents delivered into Escrow for the Ciosing.
(d) Do such other actions as necessary, including obtaining and
issuing the Title Policy, to fulfill its obligations under this Agreement.
(e) Direct City and Developer to execute and deliver any
instrument, affidavit, and statement, and to perform any act, reasonably necessary to
comply with the provisions of FIRPTA, if appiicable, and any similar State act and
regulations promulgated thereunder.
(f) 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.
2.7 Closinq. The Escrow for conveyance of the Housing Property shall close
("Close of Escrow") within 30 days after the satisfaction, or waiver by the appropriate
Party, of the Ciry Conditions Precedent to Closing and Developer Conditions Precedent
to Closing, which shall occur in no event later than the Outside Date. If Closing does not
occur on or before the Outside Date, then this Agreement shall automatically terminate.
�g 19
For purposes of this Agreement, "Closing" shall mean the time and day the Grant Deed is
recorded with the San Mateo County Recorder.
2.8 Delivery of Documents and Closina Funds.
2.8.1 At or before Closing, Developer shall deposit into Escrow the
foliowing items:
(a) Funds in an amount necessary to consummate the Closing,
including the Purchase Price and Escrow costs set forth in Sections 2.2, 2.4.4 and 2.6.1,
respectively; and
(b) one original executed and acknowledged Grant Deed; and
(c) one original executed and acknowledged Affordable Housing
Covenant; and
(d) one original executed Note; and
(e) one original executed and acknowledged Deed of Trust; and
(f) two original executed counterparts of the Garage
Development Agreement; and
(g) one original executed Preliminary Change of Ownership
Report for the Housing Property.
2.8.2 At or before Closinc�, City shall deposit int� Escrow the foilowing
items:
(a) one original executed and acknowledged Grant Deed; and
(b) one original executed and acknowledged Affordabie Housing
Covenant; and
(c) two original executed counterparts of the Garage
Development Agreement; and
(d) one duly executed non-foreign certification for the Housing
Property in accordance with the requirements of Section 1445 of the Internal Revenue
Code of 1986, as amended; and
(e) one duly executed California Form 593-W Certificate for the
Housing Property or comparable non-foreign person affidavit; and
(f) any documents to be recorded as part of Developer's
financing of the Development which City has approved in writing pursuant to Section 3.8,
along with a Request for Notice of Default executed by City.
2.8.3 At Closing, City and Developer shail 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 Housing Property in
accordance with the terms hereof.
2.9 Review of Title. Within thirty (30) days of the Date of Agreement,
Developer, at its expense, shall prepare and submit to Title Company an ALTA survey of
the Property. The City shall cause the Title Company to deliver to Developer a standard
preliminary title report or reports (the "Title Report(s)") with respect to the title to the
Housing Property and Garage Property, together with legible copies of the documents
underlying the exceptions ("Exceptions") set forth in the Title Reports, within thirty (30)
days from the date of Title Company's receipt of the ALTA survey. The Developer shall
have the right to reasonably approve or disapprove the Exceptions; provided, however,
that the Developer hereby approves the lien of any non-delinquent property taxes and
assessments, if any (to be prorated at Close of Escrow).
Developer shail have sixty (60) days from the date of its receipt of the AITA
survey, Title Report and all Exceptions related to the Housing Property to give written
notice to City and Escrow Agent of Oeveloper's approval or disapprovai of any of such
Exceptions set forth in the Title Report or ALTA survey, in its sole discretion. Developer's
failure to give written approval or disapproval of the Housing Property Title Report within
such time limit shall be deemed Developer's disapproval of the Titie Report. If Developer
notifies City of its disapproval of any Exceptions in the Housing Property Title Report, City
shall have the right, but not the obligation, to remove any disapproved Exceptions within
thirty (30) days after receiving written notice of Developer's disapproval or provide
assurances satisfactory to Developer that such Exception(s) will be removed on or before
the Closing. If City cannot or does not elect to remove any of the disapproved Exceptions
within that period, Developer shall have thirty (30) days after the expiration of such thirty
(3D) day period to either give the City written notice that Developer elects to proceed with
the purchase of the Housing Property subject to the disapproved Exceptions not removed
by the City or to give the City written notice that the Developer elects to terminate this
Agreement. The Exceptions to title to the Housing Property approved by Developer as
provided herein shail hereinafter be referred to as the "Condition of Title" of the Housing
Property. Except for the Grant Deed and the Affordable Housing Covenant which
Developer hereby expressly pre-approves, the Developer shall have the right to approve
or disapprove any further Exceptions reported by the Title Company after the Developer
has approved the Condition of Title for the Housing Property (which are not created by
Developer). The City shall not voluntarily create any new exceptions to title following the
date of this Agreement.
2.10 Titie Insurance. Concurrently with the recordation of the Grant Deed
conveying the fee interest in the Housing Property to Developer, there shall be issued to
zo Z�
Developer, an ALTA owner's policy of title insurance ("Title Policy"), together with such
endorsements as are requested by the Devefoper, issued by the Title Company insuring
that the Condition of Title is as approved by Developer pursuant to Section 2.9 of this
Agreement. The Title Company shall provide the City with a copy of the Title Policy.
Developer shall pay the premium for the Title Policy in the amount of the Purchase Price,
including the additional incremental cost of an ALTA policy or any endorsements
requested by the Developer. Nothing herein shali be deemed to obligate the City to pay
for any premium or other charge necessary for the issuance of said Title Policy.
2.11 Propertv Taxes and Assessments. Ad valorem taxes and assessments
levied, assessed or imposed on the Housing Property for any period prior to the Closing,
if any, shall be paid by City. Ad valorem taxes and assessments levied, assessed or
imposed on the Housing Property acquired by Developer or any other improvements
thereon, for the period after the Closing shall be paid by Developer.
2.12 Documents. City represents and warrants that, to the best of the City'
Actual Knowledge, as of the Date of Agreement, City has furnished Developer with copies
or provided Developer with access to any and all material existing surveys, inspection
reports, environmental and/or hazardous material reports, and any other data, reports,
studies, agreements, correspondence and other writings, including that certain
Preliminary Report issued by Title Company, effective April 15, 2016, Order No.
54075049098, as may be subsequently amended and supplemented (collectively,
"Reports"), pertaining to the physical, environmental and/or title condition of the Property,
and the use and development of the Property, which are in City's possession or control.
City also represents and warrants that, to the best of the City' Actual K�owledge, as of the
Date of Agreement, City has furnished Developer with copies of any and all unrecorded
leases, service contracts, licenses and/or other unrecorded agreements ("Unrecorded
Agreements") (collectively, the Unrecorded Agreements and Reports are referred to
herein as the "Documents") affecting the Property, or portion thereof. City shall notify
Developer in writing of any material changes to any Documents of which City becomes
aware of before Closing. City makes no representation or warranty regarding the
completeness or accuracy of any Documents provided to Developer. City shall terminate
any and all Unrecorded Agreements, if any, prior to Closing.
2.13 AS-IS CONVEYANCE. SUBJECT TO SATISFACTION OR WAIVER BY
DEVELOPER OF THE DEVELOPER CONDITIONS PRECEDENT, DEVELOPER
SPECIFICALLY ACKNOWLEDGES AND AGREES THAT CITY IS SELLING AND
DEVELOPER IS PURCHASING AS OF THE CLOSING THE HOUSING PROPERTY ON
AN "AS IS WITH ALL FAULTS" BASIS, CONDITION AND STATE OF REPAIR
INCLUSIVE OF ANY AND ALL FAULTS AND DEFECTS, LEGAL, PHYSICAL, OR
ECONOMIC, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE
CLOSING ("'AS-IS' CONDITION") AND DEVELOPER IS UNDERTAKING THE
GARAGE DEVELOPMENT BASED ON THE AS-IS CONDITION OF THE GARAGE
PROPERTY AND, EXCEPT AS PROVIDED IN SECTION 1.2.1, DEVELOPER IS NOT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES FROM CITY OR ANY OF
CITY'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES,
REPRESENTATIVES OR ATTORNEYS (EACH, A "CITY PARTY" AND
COLLECTIVELY, "CITY PARTIES") AS TO ANY MATTERS CONCERNING THE SITE
CONDITION OF THE HOUSING PROPERTY OR GARAGE PROPERTY.
2.14 Independent Investiqation. In accordance with the terms of the ANE and
this Agreement, prior to the Date of Agreement and through Closing, City has provided
Developer a right of access to the Property for purposes of physical investigation,
including but not limited to, soil and groundwater testing, environmental audits, storm
water retention analysis, and adequacy of utilities including water, sewer, gas and
electricity. Developer acknowledges, agrees, represents, and warrants that Developer
has been given a full opportunity to obtain, review, inspect and investigate each and
every aspect of the Property, either independently or through agents of the Developer's
choosing, including the following (herein collectively referred to as the "Site Condition"):
(a) The size and dimensions of the Property.
(b) The availability and adequacy of water, sewage, fire
protection, and any utilities serving the Property.
(c) All matters relating to title including extent and conditions of
title to the Property, taxes, assessments, and liens.
(d) All legal and governmental laws, statutes, rules, reguiations,
ordinances, limitations on title, restrictions or requirements concerning the Property
including zoning, use permit requirements and buiiding codes.
(e) Natural hazards, including flood plain issues, currently or
potentially concerning or affecting the Property.
(f) The physical, legal, economic and environmental condition of
the Property, and all other matters concerning the conditions, use or sale of the Property,
including any permits, licenses, agreements, and liens, zoning reports, engineers' reports
and studies and similar information relating to the Property. Such examination of the
condition of the Property has included examinations of the soil, geology, groundwater, the
presence of known or unknown faults, and for the release, presence or absence of known
or unknown Hazardous Materials in, on, or under the Property as Developer deemed
necessary or desirable.
(g) Any easements and/or access rights affecting the Property.
(h) Any contracts and other documents or agreements affecting
the Property.
Developer shall, within thirty (30) days of the Date of Agreement complete its
investigation of the Site Condition of the Property and notify City in writing that either (i)
Deveioper has determined that the Site Condition of the Property is inadequate for the
Development or that any remedies needed to make the Property adequate for the
Development are economically infeasible, or (ii) Developer has determined that the
Property is adequate for the Development and therefore accepts the Site Condition of the
Property in its "As-Is" Condition. Developer's failure to give written approval or
disapproval of the Site Condition within such time limit sha�l be deemed Developer's
disapproval of the Site Condition. If Developer notifies City of its disapprovai of the Site
Condition or is deemed to have disapproved the Site Condition, City shall have the right,
but not the obligation, to remedy any disapproved Site Condition within thirty (30) days
thereafter or provide assurances satisfactory to Developer that such Site Condition will be
remedied on or before the Closing. If City cannot or does not elect to remedy any
disapproved Site Condition within that period, Developer shail have thirty (30) days after
the expiration of such thirty (30) day period to either give the City written notice that
Developer elects to proceed with the purchase of the Housing Property, construction of
the Housing Development and construction of the Garage Development, subject to the
disapproved Site Condition not remedied by the City, or to give the City written notice that
the Developer elects to terminate this Agreement.
2.15 Disclaimers. Developer acknowledges and agrees that except as expressiy
set forth in Section 1.2.1 of this Agreement: (i) neither City, nor any City Party, has made
any representations, warranties, or promises to Developer, or to anyone acting for or on
behalf of Developer, concerning the condition of the Property or any other aspect of the
Property; (ii) the condition of the Property has been or will be independentiy evaluated by
Oeveloper prior to the Ciosing; and (iii) any information, including any engineering
reports, architecturai reports, feasibiiity reports, marketing reports, title reports, soils
reports, environmentai reports, analyses, data or other similar reports or information of
whatever type or kind, 'rf any, which Developer has received or may hereafter receive from
City or any City Party were and are furnished without warranty of any kind, and on the
express condition that Developer has made its own independent verification of the
accuracy, reliability and completeness of such information and that Developer may rely
on the foregoing at its own peril and knowingly assumes such risk.
2.16 Waivers, Release and Indemnification. Except with respect to the express
representations, warranties and covenants of the City hereunder, Developer hereby
waives, releases and discharges forever the City and City Parties from all prese�t or
future claims, demands, suits, Iegal and administrative proceedings and from all liabilities,
obiigations, losses, damages, deficiencies, fines, penalties, costs and other expenses,
including reasonable attorneys' fees and court costs, arising out of or in any way
connected with the As-Is Condition of the Housing Property and Garage Property,
whether discovered before or after the Closing, and whether existing or created on the
Housing Property or Garage Property before or after the Closing ("Released Claims").
Developer acknowledges that it is aware of and familiar with the provisions of
California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR OR RELEASING PARTY DOES NOT
Deveioper acknowledges that it is aware of and familiar with the provisions of
California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY."
As related to this Section 2.16, Developer hereby waives and relinquishes all rights
and benefits which it may have under California Civil Code Section 1542.
INITIALS: DEVELOPER: _ L
Developer shall defend, indemnify, and hold the City harmless from ali Released Claims,
whether such Released Ciaims shall accrue or be discovered before or after the Closing
or the expiration or termination of this Agreement. Insurance limits shali not operate to
limit Developer's indemnity obligations under this Agreement. Developer's obligations
under this Section 2.16 shall survive the Closing and the expiration or termination of this
Agreement.
ENTITLEMENT AND IMPLEMENTATION OF THE DEVELOPMENT.
3.1 Schedule of Performance. Within the times set forth in the Schedule of
Pertormance attached hereto as Exhibit D, Developer shall use its best efforts to apply for
and secure all required permits, entitiements and governmental approvals as set forth
herein, and thereafter Developer shall commence and complete construction of the
Housing Development and Garage Development, and satisfy all of Developer's
obligations under this Agreement within the times established therefor in the Schedule of
Pertormance, as tne same shall be extended by Force Majeure Delays or Agreed
Extensions of Performance pursuant to Section 6.2. The Schedule of Performance is
subject to revision in writing from time to time as may be agreed to in the sole discretion of
Developer and the City Manager, or his or her designee. However, as provided in Section
6.2, in no event may Force Majeure Delays or Agreed Extension of Pertormance extend
the Outside Date.
3.2 California Environmental Qualitv Act — CEQA. Developer acknowiedges
that while City is entering into this Agreement in its proprietary capacity as owner of fee
title to the Property, City nevertheless retains full and complete discretion in its regulatory
capacity in its consideration and action on any applications for perrnits or approvals for
the proposed Development. If any additional environmentai documents are required for
the Development under CEQA, then City, at Developer's expense, shall prepare such
documents. Developer shall cooperate with the City in preparing such additional
environmental documents, if any, by supplying necessary technical data and other
zs
Development to the contractor selected by Developer and approved by the City ("Garage
Development Contractor").
3.4 Affordable Housinq Covenant. Within the time set forth in the Schedule of
Performance, Developer and City shali use good faith efforts to finalize the terms of the
affordable housing covenant governing the Housing Development, which shall be
substantially in the form attached hereto as Exhibit I("Affordable Housing CovenanY').
3.5 Permits for the Development. Within the times set forth in the Schedule of
Performance, Developer shall (i) submit complete applications to City and any other
governmental agency having jurisdiction over the Development, for aIl demolition,
grading, building and any other permits necessary for development and construction of
the Housing Development and Garage Development, including any encroachment or
right of entry permits for performance of off-site utility improvements required by the
Development Approvals, (ii) pay all plan check fees, permit fees, and development impact
fees, and (iii) be ready to pull ail permits to be issued by the City or other govemmental
agency for the Development. The City shall not be obligated to issue any building permits
for the Housing Development until such time as City has issued all required building
permits for the construction of the Garage Development and City shall not be obligated to
issue any certificate of occupancy for the Housing Development until such time as
Developer has substantially completed, and City has accepted, the Garage
Development.
3.6 Garaqe Development Plans & Specifications� Garaqe Develooment
Aqreement; and Citv's Garaqe Contribution. Within the times set forth in the Schedule of
Performance, Developer shail prepare and submit to City, and obtain City approval of, a
complete set of plans and specifications sufficient to obtain a building permit for the
Garage Development and for the award of a contract therefor. Developer and City shall
cooperate and coordinate in the preparation and development of any bidding package for
the Garage Development.
Within the times set forth in the Schedule of Performance, Developer shall obtain
bids for the construction of the Garage Development, and upon selection of a contractor,
present a guaranteed maximum price contract for the construction of the Garage
Development for the City's prior approval. The Parties shall confirm that the amount of
the proposed construction contract is consistent with the costs assumed in the
Subsequent Sources and Uses. Within 30 days of Developer's selection of the contractor
and proposal of a contract found to be consistent with the bids and the Subsequent
Sources and Uses, Developer and City shall enter into an agreement in forrn substantially
similar to Exhibit F("Garage Development Agreement") governing the respective duties
of the Parties relating to the Developer's construction of the Garage Development,
including Developer's duty to furnish faithful performance, labor and material, and
warranty security, and to provide construction management and oversight for the Garage
Development, City's agreement to fund the Maximum City Contribution (as defined in the
Garage Development Agreement), and City duties reiating to acceptance of the Garage
Development. Within the time set forth in the Schedule of Performance, Developer shail
award a guaranteed maximum price contract for the construction of the Garage
Except as otherwise expressly set forth below with respect to City's obligation to
fund the Maximum City Contribution, Developer shall be solely responsible for paying
when due all hard and soft costs of designing, constructing and developing the Garage
Development, including costs of any and all change orders (other than City-initiated
change orders, the costs of which shali be borne by City as provided in the Garage
Development Agreement) needed to complete construction of the Garage Development
in accordance with the approved plans and specifications, including any such change
orders based on differing site conditions or errors or inaccuracies in the plans and
drawings. Developer shall consult with City in the evaluation of and response to any
requests for information or change orders submitted to Developer by the Garage
Development Contractor. The Garage Development Agreement shall require Developer
to fund such change orders, but excluding any change orders instituted at the direction of
the City subsequent to the award of the construction contract.
3.7 Construction of Housinp Develooment Cost of Housinq Deve�ooment.
Within the times set forth in the Schedule of Performance, the Developer shail construct
and develop the Housing Development in accordance with the Development Approvals.
All such work related to the Housing Development shall be performed by licensed
contractors. AII costs of site preparation (including demolition and removal of all
structures or improvements on the Housing Property), planning, designing, constructing
and developing the Housing Development, shall be borne solely by Developer.
3.8 Sources and Uses. Prior to the Date of Agreement, Developer has
prepared and submitted to City and City has approved a preliminary budget for the
Development ("Sources and Uses"). Developer shall update and submit to City for
review and approval updated versions of the Sources and Uses of funds no later than (i)
thirty (30) days following the Date of Agreement and (iii) no less than five (5) days
following Developer's receipt of final loan documents evidencing construction financing
for the Housing Development and, in any event, prior to Closing (each a"Subsequent
Sources and Uses"}. The Subsequent Sources and Uses shall (a) identify reasonably
anticipated and estimated costs of purchasing the Housing Property, developing the
Housing Development, and developing the Garage Development, and (b) identify the
anticipated sources of such funds. The Subsequent Sources and Uses shall include all
estimated "hard" and °sofY' costs and contingencies, firm bids or accepted contracts (and
so noted in a footnote), shall identify the anticipated source of funds (e.g. Oeveloper's
Principais' capital contributions, third party loans, third party equity, etc.), and shall be
accompanied by evidence reasonably satisfactory to City that upon Closing and
thereafter, Developer shall have sufficient funds to meet all budgei requirements for the
Development. Developer acknowledges that the budget for the cost of constructing the
Garage Development shall assume payment of prevailing wages in accordance with
Prevailing Wage Law and include a 5% contingency.
Citys approval of the Subsequent Sources and Uses shali not be unreasonably
withheld, conditioned or delayed. Except as otherwise provided in the Schedule of
Performance, City shall complete its review of each Subsequent Sources and Uses,
notify Developer of its approval or disapproval, and its reasons for said disapproval, within
thirty (30} days of Developer's submittal. Failure of City to notify Developer of the
approval or disapproval of its Subsequent Sources and Uses within said thirty (30) day
period shall be deemed to be approval of said Subsequent Sources and Uses.
3.9 Insurance Requirements. Prior to Commencement of Construction and
until the completion of construction of the Housing Development and the Garage
Development, as evidenced by City's issuance of a certificate of occupancy for the
Housing Development in accordance with Applicable Laws and acceptance of the
Garage Development, Developer shall take out and maintain or shall cause its Housing
Development Contractor and its Garage Development Contractor to take out and
maintain, a commerciai general Iiabiiity policy with a minimum limit of Two Million Dollars
($2,000,000) per occurrence for bodily injury, personal injury and property damage, or
such other higher policy limits as may be required by Developer's lenders or other
institutions providing financing to Developer for the Housing Development or Garage
Development, as applicable. Coverage shall be at least as broad as insurance Services
Office Commerciai General Liability coverage (occurrence Form CG 0001). If commercial
general liability insurance or other form with a general aggregate is used, the general
aggregate limit shall be at least Five Million Dollars ($5,000,000), inclusive of any
umbrella policy. Developer and each of its contractors shall also take out and maintain a
comprehensive automobile liability policy in an amount not iess than One Miliion Dollars
($1,000,000). The coverage amounts referenced above are minimums and shail not be
deemed to limit the coverage available to the City and City Parties as additional insureds
under the policies. Rather, the entirety of the policy limits shall be available to City and
City Parties.
Starting at the commencement of framing the Housing Development and until
issuance of a certificate of occupancy for the Housing Development in accordance with
Applicable Laws, Developer shall aiso obtain and maintain builder's all-risk insurance in
an amount not less than the full insurable cost of the improvements to be constructed, or
caused to be constructed, on a repiacement cost basis, or such other greater policy limits
as may be required by Developer's lenders or other institutions providing financing for the
Housing Development. Starting at the commencement of demolition on the Garage
Property for the Garage Development and until the completion of construction for the
Garage Development i� accordance with Applicabie Laws, Developer shall also obtain
and maintain builder's all-risk insurance in an amount not less than the full insurable cost
of the improvements to be constructed, or caused to be constructed, on a replacement
cost basis, or such other greater policy limits as may be required by Developer's lenders
or other inslitutions providing financing for the Garage Development.
Further, Developer shall furnish or cause to be furnished to City evidence
reasonably satisfactory to City that Developer and any contractor with whom it has
contracted for the performance of work on the Property or otherwise pursuant to this
Agreement carries workers' compensation insurance as required by law.
Companies writing the insurance required hereunder shall be licensed to do
business in the State of California. Insurance is to be placed with insurers with a current
A.M. BesYs rating of no less than A:VII unless otherwise agreed by City in its sole
discretion. The commercial general liability and comprehensive automobile liability
insurance policies hereunder shall name City and City Parties as additional insureds with
respect to liability arising out of work or operations perFormed by or on behalf of the
Developer on or about the Housing Property or Garage Property, including materials,
parts or equipment furnished in connection with such work or operations.
Developer shall furnish City with certificates of insurance evidencing the required
insurance coverage and duly executed endorsements evidencing such additionai insured
status. To the extent provided by the insurance carrier, the insurance policies shall be
endorsed to notify City of any material change, cancellation or termination of the
coverage at least 30 days in advance of the effective date of any such material change,
cancellation or termination. Coverage provided hereunder by Developer shall be primary
insurance and shall not be contributing with any insurance, self-insurance or joint
seif-insurance maintained by City or any City Party, and the policy shall so provide. Any
insurance, self-insurance orjoint self-insurance maintained by City or any City Party shall
be excess of and sha�l not contribute with the insurance required to be maintained by
Developer. The insurance policies shall contain a waiver of subrogation for the benefit of
City and any City Party. The required certificates and endorsements for the Housing
Development a�d Garage Development shall be furnished by the Developer to City prior
to the Commencement of Construction of either the Housing Deveiopment or the Garage
Development.
Any deductibles or self-insured retentions must be declared to and approved by
City (which shali not be unreasonably withheld, conditioned or delayed), which may
require Developer to provide proof of its ability to pay losses and costs of related
investigation, claim administration, and defense expenses within the retention.
3.10 Ric7hts of Access. City representatives shall have the right of access to the
Housing Property and Garage Property, without charges or fees, at reasonable times and
after prior arrangement with Developer, so long as such representatives comply with all
safety rules of Developer and its contractors and insurers and do not unreasonably
interfere with the progress of construction of the Housing Development or the Garage
Development. Nothing herein shall be deemed to limit the ability of City to conduct code
enforcement and other administrative inspections of any portion of the Housing Property,
Garage Property, or Housing Development or Garage Development at any time in
accordance with Applicable Laws.
3.11 Compliance With Applicable Laws. Developer shall carry out, and shall
ensure that its contractors and subcontractors carry out the Development in conformity
with all Applicable Laws, including all applicable state labor laws and standards, including
the City zoning and development standards; building, plumbing, mechanical and
electrical codes; all other provisions of the Municipal Code; and all applicable disabled
and handicapped access requirements, including the Americans With Disabilities Act, 42
28 29
U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government
Code Section 11135, et seq., the Unruh Civil Rights Act, Civil Code Seciion 51, et seq.,
and, to the extent applicable to ail or a portion of the Development, the requirements of
Labor Code §1720 et seq. ("Prevaiiing Wage Law"). More specific requirements
governing Developer's obligation to compiy with Prevailing Wage Laws in connection with
construction of the Garage Development are set forth in the Garage Development
Agreement. Developer acknowledges and agrees that City has made no representations
regarding the applicability or non-applicability of Prevailing Wage Law to the Housing
Development and that Developer shall be solely responsible for determining whether
Developer and its contractors and subcontractors must comply with Prevailing Wage Law
in connection with construction and development of the Housing Development.
Developer shall defend, indemnify and hold City harmless from and against any
and all Claims arising out of Developer's failure to comply with, and require its contractors
and subcontractors to comply with, the Prevailing Wage Law, regardless of whether such
Ciaims are a result of City's actual or alleged failure to identify all or part of the
Development as a"public work" as provided in the Prevailing Wage Law. Developer
hereby waives, releases and discharges City from any and all present and future Claims
arising out of or in any way connected with Developer's obligation to comply with, and
require its contractors and subcontractors to comply with, all State labor laws, standards
and requirements, including Prevailing Wage Law, regardless of whether or not resulting
in whole or in part from City's actual or alleged failure to identify all or part of the
Development as a"public work" as provided in the Prevaiiing Wage Law.
3.12 Final Completion of Development Certificate of Completion. Following
Final Completion of the Development, any Party then owning or thereafter purchasing,
leasing or otherwise acquiring any interest in the Housing Property shall not (because of
such ownership, purchase, lease or acquisition) incur any obligation or liability under this
Agreement with respect to the Development. Except as otherwise provided herein, after
Final Completion of the Development, neither City nor any other person shall have any
rights, remedies or controls with respect to the Housing Property that it would othervvise
have or be entitled to exercise under this Agreement as a resuit of a default in or breach of
any provision of this Agreement, and the respective rights and obligations of the Parties
with reference to the Housing Property shail be as set forth in the Grant Deed and
Affordable Housing Covenant. Upon Final Completion of the Development, City shall
execute and record a Certificate of Completion relating to the Development of the
Property, substantially in the form attached as Exhibit E to this Agreement.
3.13 Liens and Stop Notices. Developer shail not allow to be placed on the
Property, or any part thereof, any lien or stop notice arising from any work or materials
performed or provided or alleged to have been perFormed or provided by Developer's
contractors, subcontractors, agents or representatives. If a claim of a lien or stop notice is
given or recorded affecting the Property, Developer shall within 60 days of Developer
becoming aware of such recording or service: (i) pay and discharge the same; or (ii)
effect the release thereof by recording and delivering to the City Manager a surety bond in
sufficient form and amount; or (iii) such other security as may be deemed acceptable by
the City Manager.
3.14 Riqht of Citv io Satisfv Other Liens After anv Closinq. After Closing, and
provided the requirements set forth in Section 3.13 have not been met by Developer, City
shall have the right, but not the obligation, upon not less than ten (10) days prior written
notice to Developer, to satisfy any such liens or stop notices. In such event, Developer
shall be liable for and City shall be entitled to reimbursement by Developerfor the amount
reasonably paid by the City to discharge such lien or satisfy such stop notice.
3.15 Mortqaqe Deed of Trust Sale and Lease-Back Financinp.
3.15.1 No Encumbrances Exceot Mortqaqes, Deeds of Trust for
Develooment. Prior to Final Completion of the Development, mortgages and deeds of
trust will be permitted on the Nousing Property only to the extent otherwise provided in
this Agreement, and only for the purpose of financing the acquisition and/or construction
of the Development improvements (including but not limited to, design, planning,
permitting, remediation, site preparation and horizontal and vertical construction) on the
Housing Property owned by Developer and the Garage Property owned by City. In no
event, however, shall any mortgage or deed of trust be permitted on the Garage Property
for any reason or purpose. Following Final Completion of the Development, mortgages
and deeds of trust shall be permitted on the Housing Property for any purpose, and City
shall have no approval or disapproval rights with respect thereto. City shall subordinate its
Deed of Trust to any construction or permanent mortgages or deeds of trust on the
Housing Property and/or Housing Development. Notwithstanding any other provision of
this Section 3.15 to the contrary, following the Substantial Completion of the Housing
Development, Developer shall be permitted to obtain, without the consent or approval of
the City, permanent financing to be secured by the Housing Development and the
Housing Property. The words "mortgage" and "deed of trusf' as used herein shall include
other appropriate modes of financing real estate acquisition, construction, and land
development.
3.15.2 Holder Not Obliqated to Construct Imorovements. Neither the holder
of any mortgage or deed of trust on the Housing Property nor any person or entity,
including any deed of trust beneficiary or mortgagee, who acquires title or possession to
Developer's interest in the Housing Property, by foreclosure, trustee's sale, deed in lieu of
foreclosure or otherwise, shall be obligated by the provisions of this Agreement to
construct or complete the Housing Development improvements or to guarantee such
construction or completion. Nothing in this Agreement shall be deemed to or be
construed to permit or authorize any such holder, person or entity to devote the Housing
Property or portion thereof to any uses or to construct any improvements thereon other
than those uses and Housing Development improvements provided for or authorized by
this Agreement, the Development Approvals, the Grant Deed, the Affordable Housing
Covenant, or as otherwise agreed to by the City.
30
3.15.3 Notice of Default to Mortqaqee or Deed of Trust Holders; Riqht to
Cure. With respect to any mortgage or deed of trust granted by Deveioper on Developer's
interest in the Housing Property, whenever City shall deliver any Notice or demand to
Developer with respect to any breach or Default by Developer hereunder, City shall at the
same time deliver to the Iimited partners of any limited partnership holding title to the
Housing Property ("Limited Partner(s)") and to each holder of record of any mortgage or
deed of trust on Developer's interest in the Housing Property a copy of such Notice or
demand. No Notice of Default shall be effective as to the holder unless such Notice is
given. Each such Limited Partner and holder shall (insofar as the rights of City are
concerned) have the right, at its option, within sixty (60) days after the receipt of the
Notice, to cure or remedy or commence to cure or remedy any such Default and to add
the cost thereof to the mortgage debt and the lien of its mortgage. If such breach or
Default cannot reasonabiy be cured within such sixty (60) day period, then such holder or
Limited Partner shall have a reasonable period of time following the expiration of such
sixty (60} day period to cure or remedy such breach or Default so long as such holder or
Limited Partner commences such cure or remedy within the initial sixty (60) day period
and diligently prosecutes such cure or remedy to completion. In the event possession of
the Housing Property is required to effectuate such cure or remedy, the holder shall be
deemed to have timely cured or remedied if it commences the proceedings necessary to
obtain possession thereof within sixty (60) days, diligently pursues such proceedings to
completion, and, after obtaining possession, diligently completes such cure or remedy
(the foregoing time periods being subject to extension during the period that such holder
is preciuded from taking or pursuing any such action as a consequence of any bankruptcy
stay or other court order). Nothing in this Agreement shall preclude or prevent any
Limited Partner or holder of record of any mortgage or deed of trust on Developer's
interest in the Housing Property from curing or remedying any breach or Default by
Developer hereunder, and City agrees to accept any such cure or remedy undertaken by
any such Limited Partner or holder of record of any mortgage or deed of trust on the
Housing Property.
3.16 Covenants Reqardinq Oqeration, Manaqement and Maintenance Prior to
Closinq. From the Date of Agreement until the Closing or earlier termination of this
Agreement, City shali operate, manage and maintain the Housing Property in a manner
generaily consistent with the manner in which City has operated, managed and
maintained the Housing Property prior to the date hereof. Notwithstanding the foregoing,
from and after the Date of Agreement, excepting the continued use of all or a portion of
the Housing Property for public parking and occasional use as a farmer's market and
other City sponsored events or activities, City shall not: (a) cause nor voluntarily permit,
any new lien, encumbrance or any other matter to cause the condition of titie to be
changed, without Developer's prior written consent, other than liens or other
assessments, bonds, or special district liens inciuding without limitation, Community
Facility Districts, that arise by reason of any registered voter or property owner approval;
(b) enter into any agreements with any governmental agency, utility company or any
person or entity regarding the Housing Property, which would remain in effect after the
Closing (other than to implement any matter described in (a) above), without obtaining
Developer's prior written consent; or (c) amend any existing licenses, agreements or
leases, or enter into any new licenses, agreements or leases, that would give any person
or entity any right of possession to any portion of the Housing Property, or which would
remain in effect after the Closing.
COVENANTS. RESTRICTIONS AND AGREEMENTS.
4.1 Uses. Subject to such revisions as shall be required by the City's review
and approval of the Affordable Housing Covenant, Developer shall use the Housing
Property in accordance with the Development Approvals, inclusive of a pocket park on
the panhandle portion of Housing Property, with sufficient parking for the multi-family
residential component in accordance with Applicable Laws.
4.2 Taxes and Assessments. After the Closing, it shall be Developer's
responsibility to pay prior to delinquency all ad valorem real estate taxes and
assessments on the Housing Property and the Housing Development, subject to
Developer's right to contest in good faith any such taxes and assessments.
4.3 Effect and Duration of Covenants. The covenants established in this
Agreement, the Grant Deed and Affordable Housing Covenant shall, without regard to
technical classification and designation, be binding upon and inure for the benefit and in
favor of the Parties hereto and their successors and assigns. The Parties are deemed the
beneficiaries of the terms and provisions of this Agreement, the Grant Deed and
Affordable Housing Covenant and of the covenants running with the land for and in their
own right and for the purposes of protecting the interests of the Parties, in whose favor
and for whose benefit this Agreement, the Grant Deed and Affordable Housing Covenant
and the covenants running with the land have been provided. This Agreement, the Grant
Deed and Affordable Housing Covenant and the covenants therein shall run in favor of
the City without regard to whether the City has been, remains, or is an owner of any land
or interest in the Housing Property. Subject to the limitations on remedies set forth in
Section 5 hereto, the Pa�ties shall have the right, if this Agreement, the Grant Deed or
Affordable Housing Covenant or the covenants therein are breached, to exercise all rights
and remedies and to maintain any actions or suits at law or in equity or other proper
proceedings to enforce the curing of such breaches to which it may be entitled under the
terms of this Agreement, the Gra�t Deed or Affordable Housing Covenant.
4.4 Sales Tax Point of Sale Desiqnation. Developer shall use commercially
reasonable efforts to the extent allowed by law to require all persons and entities
providing bulk lumber, concrete, structural steel and pre-fabricated building components,
such as roof trusses, to be used in connection with the construction and development of,
or incorporated into, the Development, to (a) obtain a use tax direct payment permit; (b)
elect to obtain a subcontractor permit for the job site of a contract valued at Five Million
Dollars ($5,000,000) or more; or (c) otherwise designate the Property as the place of use
of material used in the construction of the Deveiopment in order to have the local portion
of the sales and use tax distributed directly to City instead of through the county-wide
pool. Developer shall instruct its generai contractor(s) for the Development to, and cause
such general contractor(s} to instruct its/their subcontractors to, cooperate with City to
ensure the local sales/use tax derived from construction of the Development is allocated
to City to the fullest extent possible. To assist City in its efforts to ensure that such local
sales/use tax is so allocated to City, Developer shall provide City with such information as
shall be reasonably requested by City regarding subcontractors working on the
Development with contracts in excess of the amount set forth above, inciuding a
description of all applicable work and the dollar value of such subcontracts. City may use
such information to contact each subcontractor who may qualify for local allocation of use
taxes to City.
4.5 Repurchase At Expiration of Affordable Housinp Covenant. City shall have
the additional right to repurchase the Housing Property and all improvements to be
constructed thereon at the expiration of the Affordable Housing Covenant byforgiving any
unpaid balance on the Promissory Note provided by Developer to City at the time of
Developer's purchase of the Housing Property. If such Promissory Note has been repaid
in full, City may repurchase the Housing Property, and all improvements thereon, at the
expiration of the Affordable Housing Covenant for the then appraised fair market value of
the Housing Property, including improvements thereon, based on the continuing use of
such property and improvements as an affordable housing development with levels of
affordability wnsistent with those set forth in the Affordable Housing Covenant. Such
right to repurchase shall be subordinate and subject to and be limited by and shall not
defeat, render invalid or limit: (i) any mortgage, deed of trust (including, without limitation,
any assignment of rents and leases) or other security instrument made by an Institutional
Lender (defined below); or (ii) any rights or interests provided in this Agreement for the
protection of the holder of such mortgages, deeds of trust or other security instruments.
As used herein "Institutional Lender" means any one or more of the following, who is not
an affiliate of the Developer: a savings bank, a savings and loan association, a
commercial bank or trust company or branch thereof, an insurance company, a
governmental agency, a real estate investment trust, an employees' welfare, benefit,
pension or retirement fund or system, or an investment banking, merchant banking or
brokerage firm. City shall provide notice to Developer of its intent to exercise its
repurchase option under this provision at least one hundred eighty (180) days prior to the
expiration of the Affordable Housing Covenant.
DEFAULTS AND REMEDIES.
5.1 Default Remedies - General. Subject to the extensions of time set forth in
Section 6.2 of this Agreement (except as to the Outside Date for Closing), failure by the
Deveioper or City to perform any action or covenant required by this Agreement within the
time periods provided herein following notice and failure to cure as described hereafter,
constitutes a"DefaulY' under this Agreement. A Party claiming a Default shall provide a
written notice of default to the other Party specifying the defauit complained of. Except as
otherwise expressly provided in this Agreement, the claimant shall not institute any
proceeding against any other Party and the other Party shall not be in default if such Party
within thirty (30) days from receipt of such notice of default, commences to cure, correct
or remedy such failure or delay and completes such cure, correction or remedy with
diligence and within a reasonable period of time considering the nature of the default.
Notwithstanding the foregoing, any monetary default shail be cured within ten (10) days
from receipt of such notice of default.
5.2 Default Resolution and Leqal Actions.
5.2.1 Informal Default Resolution. If, foliowing notice and an opportunity to
cure pursuant to Sectio� 5.1 a Default remains outstanding, before institution of legal
action, the Parties shall attempt to resolve the Default in accordance with this Section
5.2.1 as a condition precedent to the filing of any action at law or equity. It is the express
intent of the Parties to attempt to resolve all Defauits arising out of or relating to this
Agreement or a breach thereof by reasonable, business-like negotiations between the
Parties without resorting to litigation. However, unless the Parties agree otherwise, and
regardless of the size or nature of the Default, the Parties shali not cease or delay
performance of their obligations under this Agreement while the Default remains
outstanding.
City or Developer may call a meeting for resolution of any outstanding Defauit.
The meeting shall be held on a date within three (3) working days of the date of a written
request by a�y Party, which written request shall specify the nature of and extent of the
Default to be resolved and any proposed resolution thereof ("Request to Resolve
Dispute"). Unless otherwise agreed to amongst the Parties, the meeting shall be held at
the administrative offices of the City.
The meeting shali be attended by representatives of the City and Developer and
their respective consuitants, contractors, subcontractors or other parties with information
relevant to the nature, extent anc� resolution of the Default. The Parties' representatives
attending the meeting shall have all requisite authority to resolve and settle the Default.
The Parties shall consider retaining the services of a mediator to help resolve and settle
the Default; however, each Party reserves its discretion whether to engage the services of
a mediator. Failure of either Party to agree to the use of a mediator shall not excuse the
other Party from its obligation to attend the meeting in an attempt to resolve and settle the
Default. The meeting shall be subject to California Evidence Code Section 1152 and the
parties hereby agree that any and all information or communications shared or disclosed
during said meeting shall be subject to said provision.
If the Default remains outstanding sixty (60) calendar days after the date of the
Request to Resolve Dispute, then either Party may, in addition to any other rights or
remedies, institute any action at law or in equity to cure, correct, prevent or remedy the
Default. The Parties agree that any applicable statute of limitation period that has not
otherwise expired shall be tolled during the sixty (60) calendar day period.
5.2.2 Institution of Leqal Actions. Except as otherwise speciflcally
provided herein, upon the occurrence of a Default, the non-defaulting Party shali have the
right, in addition to any other rights or remedies, to institute any action at law or in equity to
cure, correct, prevent or remedy any Default, or to recover actual damages for any
35
5.2.2 Institution of Leqal Actions. Except as otherwise specifically
provided herein, upon the occurrence of a Default, the non-defaulting Party shall have the
right, in addition to any other rights or remedies, to institute any action at law or in equity to
cure, correct, prevent or remedy any Default, or to recover actual damages for any
Default, or to obtain any other remedy consistent with the purpose of this Agreement.
Such legal actions rnust be instituted in the 5uperior Court of the County of San Mateo,
State of California, or in the Federal District Court for the Northern District of the State of
California. Notwithstanding anything herein to the contrary, neither Party shall have the
right to recover any consequential or special damages in the event of a Default by the
other Party.
5.2.3 Liquidated Damaqes in the Event of Deveioper Failure to Close
Escrow on the Housinq Propertv. SUBJEGT TO NOTICE AND EXPIRATION OF
APPLICABLE CURE PERIODS AND ANY PERMIITED EXTENSIONS OF TIME AS
PROVIDED IN THIS AGREEMENT, IF DEVELOPER FAILS TO CLOSE ESGROW AS
REQUIRED UNDER THIS AGREEMENT (A "CLOSING DEFAULT"), THE CITY MAY
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 THIS AGREEMENT, IN THE EVENT
OF A CLOSING DEFAULT, CITY SHALL BE ENTITLED TO RETAIN DEVELOPER'S
DEPOSIT. THE DEVELOPER'S DEPOSIT SHALL SERVE AS LIQUIDATED DAMAGES
TO THE CITY FOR A CLOSING DEFAULT. THE VALUE OF THE DEVELOPER'S
DEPOSIT CONSTITUTES A REASONABLE ESTIMATE OF THE DAMAGES THAT THE
CITY WOULD INCUR IN THE EVENT OF A CI.OSING DEFAULT. RETENTION OF THE
DEVELOPER'S DEPOSIT SHALL BE THE CITY'S SOLE AND EXCLUSIVE REMEDY
AGAINST DEVELOPER IN THE EVENT OF A CLOSING DEFAULT, AND THE CITY
WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST
DEVELOPER ON ACCOUNT OF A CLOSING DEFAULT, INCLUDING WITHOUT
LIMITATION, SPECIFIC PERFORMANCE AND MONETARY DAMAGES. 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 CITY PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE
CALIFORNIA CIVIL CODE. CITY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 3389. BY PLACING ITS INITIALS BELOW, DEVELOPER AND CITY
SPECIFICALLY CONFIRM 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: , �{CT _�
CITY DEVELOPER
5.2.4 Acceptance of Service of Process. In the event that any legal action
is commenced by Developer against City, service of process on City shall be made by
personal service upon the City Clerk of City or in such other manner as may be provided
by law. In the event that any legal action is commenced by City against Developer,
service of process on Developer shall be made in any manner as may be provided by law.
5.3 Termination. In addition to the termination of this Agreement provided for
under Sections 2.7, 2.9, and 2.14 above, this Agreement may be terminated: (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 City Condition Precedent to Closing set forth
in Section 2.4 which is not waived by the City, or (iii) if there is a failure of an express
Developer Condition Precedent as set forth i� Section 2.5 which is not waived by
Developer. If requested by City, upon termination of this Agreement, Developer shall
promptly execute and deliver to City a quitclaim deed, in recordable form, as to the
Property.
Upon termination of this Agreement by City or Developer pursuant to Sections 2.9
or 2.14, Developer shall be entitled to a refund of the Deposit and unexpended portio� of
the City Expense Deposit, if any, and neither Party shall have any further liability, claim or
obligation to the other. Accordingly, by initialing in the space provided below, as of the
Date of Agreement, the Parties expressly waive and release each other from any and all
manner of Claims or other compensation whatsoever, in law or equity, of whatever kind or
nature, whether known or unknown, direct or indirect, foreseeable or unforeseeable,
absoiute or contingent, now existing or which may in the future arise, including but not
limited to claims for specific pertormance, equitable estoppel, lost business opportunities
or economic advantage, and any and all form of damages such as compensatory,
special, consequential or punitive, as a result of City or Developer terminating this
Agreement as provided by Sections 2.9 or 2.14, specifically including any and all rights
under California Civil Code Section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITN
THE DEBTOR OR RELEASED PARTY."
INITIALS:
DEVELOPER_� CITY I.jlC—�
5.4 City Oqtion to Requrchase Reenter and Repossess.
5.4.1 As to Housinq Propertv. If City conveys fee title to the Housing
Property to Developer, then foliowing the Closing and subject to notice and opportunity to
cure under Section 5.1 and applicable Force Majeure Delay under Section 6.2, City shall
have the additional right, at its option, to repurchase, reenter and take possession of the
Housing Property if after conveyance of title to the Housing Property, Developer shall:
36 37
(b) Abandon or substantially suspend construction of the
Housing Development for a period of 180 consecutive days after Commencement of
Construction, as extended by Force Majeure Delay(s); or
(c) Fail to Finally Complete the Housing Development within
thirty six (36) months of Commencement of Construction of the Housing Development, as
extended by Force Majeure Delay(s).
5.4.2 Such rights to repurchase, reenter and repossess, to the extent
provided in this Agreement and Grant Deed, shall be subordinate and subject to and be
limited by and shali not defeat, render invalid or limit:
(a) Any mortgage, deed of trust or other security instrument
permitted by this Agreement (including, without limitation, any assignment of rents and
leases); or
(b) Any rights or interests provided in this Agreement for the
protection of the Limited Partners or the holder of such mortgages, deeds of trust or other
security instruments.
5.4.3 To exercise its right to repurchase, reenter and take possession with
respect to the Housing Property, City shall return the Note and cancel the Deed of Trust,
and pay to Developer in cash an amount equal to:
(a) The actual hard costs incurred by Developer and paid to
unaffiliated third parties for labor and materials for the construction of the improvements
existing on the Housing Property at the time of the repurchase, reentry and repossession;
plus
(b) The actual soft costs incurred by Developer and paid to
unaffiliated third parties in connection with the design and permitting of the improvements
existing on the Housing Property at the time of the repurchase, reentry and repossession
and/or contemplated to be developed on the Housing Property; plus
(c) All other reasonable costs and expenses incurred by
Developer and paid to unaffiliated third parties in connection with this Agreement and/or
the design, permitting, construciion, leasing and/or financing of the improvements
existing on the Housing Property at the time of the repurchase, reentry and repossession
andlor contemplated to be developed on the Housing Property; less
(d) Any actual income withdrawn or made by Developer from the
Housing Property or the improvements thereon; less
(e) The total outstanding amount of any mortgages, deeds of
trust or other liens encumbering the Housing Property that are superior to City's
repurchase option at the time of the repurchase, reentry and repossession.
In order to exercise such purchase option, City shall, subject to the instruments
and provisions described above, give Developer Notice of such exercise and Developer
shall, within 60 days after Developer's receipt of such Notice, provide City with a detailed
accounting of all of Developer's costs incurred as provided above. City shali have the right
to withdraw its notice of exercise following review of such costs. If City does not withdraw
its notice of exercise following review of such costs, then City, within 30 days thereafter,
shall through an escrow established for such repurchase pay to Developer in cash all
sums owing pursuant to this Section 5.4.3, if any, and Deveioper shall thereupon execute
and deliver to City a grant deed transferring to City all of Developer's interest in the
Housing Property for which City's repurchase option applies. If Developer conveys any
portion of the Housing Property to City pursuant to the terms of this Section 5.4.3, then
City shall be charged with alI knowledge it had regarding the Housing Property before
execution of this Agreement and any information provided to it by the Developer up to and
inciuding the time of conveyance pursuant to this Section 5.4.3.
City acknowledges that it shall use its independent judgment and make its own
determination as to the scope and breadth of the due diligence investigation which it shall
make relative to the Housing Property, or applicable portion thereof, to be reacquired by
the City pursuant to City's exercise of its repurchase option.
5.5 Riqhts and Remedies Are Cumulative. Except as specified otherwise in this
Agreement, the rights and remedies of the Parties are cumulative, and the exercise by
either Party of one or more of such rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or remedies for the same default or any
other default by the other Party, except as otherwise expressly provided herein.
5.6 Inaction Not a Waiver of Default. Except as specified otherwise in this
Agreement, any failures or delays by either Party in asserting any of its rights and
remedies as to any Default shall not operate as a waiver of any Default or of any such
rights or remedies, or deprive either such Party of its right to institute and maintain any
action or proceeding which it may deem necessary to protect, assert or enforce any such
rights or remedies.
6. GENERAL PROVISIONS.
6.1 Notices, Demands and Communications Between the Parties. Any
approval, disapproval, demand, document or other notice ("Notice") which either Party
may desire to give to the other Party under this Agreement must be in writing and shall be
given by certified mail, return receipt requested and postage prepaid, personal delivery,
or reputable overnight courier (but not by facsimile or email), to the Party to whom the
Notice is directed at the address of the Party as set forth below, or at any other address as
that Party may later designate by Notice.
To City: City of Burlingame
Office of the City Manager
501 Primrose Road
38 39
Burlingame, CA 94010
Attention: City Manager
Telephone: (650) 558-7204
With a copy to:
To Developer:
City of Burlingame
Office of City Attorney
501 Primrose Road
Burlingame, CA 94010
Attention: City Attorney
Telephone: (650) 558-7204
Burke, Williams & Sorensen, LLP
19D1 Harrison Street, Suite 900
Oakiand, CA 94612
Attention: Gerald J. Ramiza
Telephone: (510) 273-8723
Pacific West Communities, Inc.
430 E. State Street, Suite 100
Eagle, Idaho 83616
Attention: Caleb Roope, President
With a copy to:
Katten Muchin Rosenman, LLP
525 W. Monroe Street
Chicago, IL 60661-3693
Attention: David Cohen
Telephone:{312) 902-5284
Any Notice shall be deemed received on the date of delivery if delivered by
personal service, on the date of delivery or refused delivery as shown by the return receipt
if sent by certified mail, and on the date of delivery or refused delivery as shown by the
records of the overnight courier if sent via nationally recognized overnight courier.
Notices sent by a Party's attorney on behalf of such Party shall be deemed delivered by
such Party.
6.2 Enforced Delav; Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by either Party hereunder shall not be deemed
to be in Default, and all performance and other dates specified in this Agreement (other
than the Outside Date for Closing) shall be extended, where delays or Defaults (other
than monetary defaults which shall not be subject to Force Majeure Delay) are due to
causes beyond the control or without the fault of the Party claiming an extension of time to
perform, which may include the following: war; insurrection; strikes; lockouts; riots;
floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority; environmental conditions, pre-existing or discovered, delaying the
construction or development of the Property, or any portion thereof following Ciosing;
litigation; unusually severe weather; inability to secure necessary labor, materials or
tools; acts or omissions of the other party; acts or failures to act of any other public or
governmental agency or entity when the delay is not primarily caused by the actions of
Developer and/or its agents or consuitants through the submission of patentiy
substandard plans, specifications or other documents (other than the acts or failures to
act of the City which shall not excuse performance by the City) (each a"Force Majeure
Dela�').
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 thirty (30)
days of the commencement of the cause.
If Notice is sent after such 30 day period, then the extension shall commence to
run no sooner than 30 days prior to the giving of such Notice. Any Notice claiming an
extension of time for an alleged Force Majeure Delay shall be supported by reliable
information and documentation provided as part of the Notice; further, the Party claiming
the extension of time shall regularly update the other Party, no less frequently than once
every thirty (30) days, as to the continued justification of the alleged Force Majeure Delay,
supported by reliable information and documentation. Notwithstanding any provision of
this Agreement to the contrary, the lack of funding to commence and/or complete the
Development shall not constitute grounds of Force Majeure Delay pursuant to this
Section 6.2.
Times of performance under this Agreement may also be extended in writing by
the City and Developer as agreed to in the sole discretion of each Party ("Agreed
Extension of Performance"). The City Manager may agree to no more than a
cumulative total of one hundred eighty (180) calendar days of extension of time for
performance under this Agreement as an Agreed Extension of Performance. In no event
shall a Force Majeure Delay or Agreed Extension of Performance extend the Outside
Date for Ciosing.
6.3 Successors and Assiqns. Subject to the restrictions on Developer transfers
set forth in Section 1.3 above, all of the terms, covenants and conditions of this
Agreement shall be binding upon Developer and City and their respective successors and
assigns. Whenever the term "Developer" is used in this Agreement, such term shall
include any permitted successors and assigns as herein provided.
6.4 Relationship Between Citv and Developer, It is hereby acknowledged that
the relationship between City and Developer is not that of a partnership or joint venture
and that City and Developer 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, City shall have no rights, powers, duties or obligations with respect to the
development, operation, maintenance or management of the Housing Development and
City's obligations and duties with respect to the Garage Development shall be limited to
4� 41
funding the Maximum City Contri6ution (as defined in the Garage Development
Agreement).
6.5 Citv Apqrovals and Actions. Whenever a reference is made herein to an
action or approval to be undertaken by City, the City Manager or his or her designee is
authorized to act on behalf of City, unless specifically provided otherwise or the context
requires otherwise.
6.6 Counterparts. This Agreement may be signed in muitiple counterparts,
each of which shall be deemed to be an original.
6.7 Inteqration. This Agreement, including the exhibits hereto, and the other
Development Agreements contain the entire understanding between the Parties relating
to the transactions contemplated by this Agreement. All prior or contemporaneous
agreements, understandings, representations and statements, oral or written, other than
the other Development Agreements, are merged in this Agreement and shall be of no
further force or effect. Each Party is entering this Agreement based solely upon the
representations set forth herein and upon each Party's own independent investigation of
any and all facts such Party deems material.
6.8 Brokeraqe Commissions. City and Developer each represents to the other
that it has not engaged the services of any finder or broker and that it is not liable for any
real estate commissions, broker's fees, orfinder's fees which may accrue by means of the
conveyance of the Housing Property as described in this Agreement, or the negotiation
and execution of this Agreement. Each Party shall indemnify, defend, protect and hold
the other Party harmless from any and alI Claims based upon any assertion that such
commissions or fees are allegedly due from the Party making such representations.
6.9 Titles and Caqtions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or of any
of its terms. References to section numbers are to sections in this Agreement, unless
expressly stated otherwise. References to specific section numbers shall include all
subsections which follow the referenced section.
6.10 Interpretation. As used in this Agreement, masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to inciude the others
where and when the context so dictates. The words "include" and "including" shall be
construed as if followed by the words "without limitation." The Parties acknowledge that
each Party and his, her or its counsel have reviewed and revised this Agreement and that
the rule of construction to the effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of this Agreement or any
document executed and delivered by either Party in connection with this Agreement.
6.11 Modifications. Any alteration, change or modification of or to this
Agreement or the exhibits hereto in order to become effective, shall be made in writing
and in each instance signed on behalf of each Party. City, acting by and though its City
Manager upon the approval of the City Attorney, may approve alterations, changes or
modifications to this Agreement and the exhibits hereto without further approval of the
City Council as may be requested by Developer's construction lender or lenders, or as
otherwise agreed to by the Parties, provided such alterations, changes or modifications
do not materially increase or decrease the legal, equitable orfinancial obligations or rights
of the City hereunder, or change the methodology for determining the amount of the
Purchase Price as provided in Section 2.2 herein.
6.12 Severabilitv. If any term, provision, condition or covenant of this Agreement
or its application to any Party or circumstances shali be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which
it is held invalid or unenforceabie, shall not be affected, and shail be valid and enforceable
to the fullest extent permitted by law.
6.13 Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day, and including the last day, unless the
last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term
"holiday" shall mean all holidays as specified in Sections 6700 and 6701 of the Califomia
Government Code. If any act is to be done by a particular time during a day, that time
shall be Pacific Time Zone time.
6.14 Leqal Advice. Each Party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matters set forth in
this Agreement, or have knowingly chosen not to consult Iegai counsel as to the matters
set forth in this Agreement; and, they have freely signed this Agreement without any
reliance upon any agreement, promise, statement or representation by or on behaif of the
other Party, or its respective agents, empioyees, or attorneys, except as specifically set
forth in this Agreement, and without duress or coercion, whether economic or otherwise.
6.15 Time of Essence. Time is expressly made of the essence with respect to
the performance by City and Developer of each and every obiigation and condition of this
Agreement.
6.16 Cooperation. Each Party agrees to cooperate with the other in this
transaction and, in that regard, shall execute any and all documents which may be
reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this
Agreement.
6.17 Conflicts of Interest. No City member, o�cial or employee of City shall have
any personal interest, direct or indirect, in this Agreement, nor shall any such member,
official or employee participate in any decision relating to the Agreement which affects his
or her personal interests or the interests of any corporation, partnership or association in
which he or she is directly or indirectly interested.
43
6.18 Time for Acceptance of Apreement bv CitV. This Agreemeni, when
executed by Developer and delivered to City, must be authorized, executed and delivered
by City on or before ninety (90) days after signing and delivery of this Agreement by
Developer or this Agreement shall be void, except to the extent that Developer shall
consent in writing to a further extensio� of time for the authorization, execution and
delivery of this Agreement. Developer hereby acknowiedges that the authorization,
execution and delivery of this Agreement by City, requires the approval of the City
Council.
6.19 Developer's Indemnity. Developer shall defend (with counsel reasonably
acceptable to City), indemnify, assume all responsibility for, and hold City and City
Parties, harmless from, all Claims arising directly or indirectly from the approval of this
Agreement or any of Deveioper's acts, omissions, negligence or wiliful misconduct in
connection with this Agreement or the Development, whether such acts, omissions,
negligence or willful misconduct be by Developer or by anyone directly or indirectly
employed or contracted with by Developer, and whether such Claims shall accrue or be
discovered before or after expiration or termination of this Agreement, Closing or Final
Completion. Developer's indemnity obligations under this Section 6.19 shall not extend
to Claims occasioned by the sole negligence or willful misconduct of City or City Parties.
Insurance limits shall not operate to limit Developer's indemnity obligations �nder this
Agreement. Notwithstanding anything to the contrary in this Section 6.19, any Claims
related to (i) the "As-Is" Condition of the Housing Property shall be controiled exclusively
by Section 2.16, (ii) State labor laws, standards and requirements, including Prevailing
Wage Law, shall be controlled exclusively by Section 3.11 and applicable provisions of
the Garage Development Agreement, (iii) brokerage commissions shail be controlled
exclusively by Section 6.8, and (iv) Development Approval Challenges shail be controlled
exciusively by Section 6.20.
6.20 Cooperation in the Event of Leqal Challenqe to Development Aqqrovals.
City and Developer may cooperate in the defense of any court action or
proceeding instituted by a third party or other governmental entity or offcial challenging
the validity of this Agreement, any Development Approvals or any related CEQA
determinations or documents ("Development Approval Challenges"), and the Parties
shall keep each other informed of all deveiopments relating to such defense, subject only
to confidentiality requirements that may prevent the communication of such information.
If Developer elects, in its sole discretion, to contest or defend a challenge, then Developer
shall take the lead role, represented by counsel of Developer's choice, and shall
reimburse City for any of City's reasonable costs related to the challenge, and indemnify,
defend and hold the City harmless from any damages, including attorneys' fees,
awarded. The foregoing notwithstanding, the City may choose not to defend any such
proceeding challenging the validity of any provision of the Development Approvals or any
related CEQA determinations or documents. If City elects to defend a Development
Approval Challenge, then Developer shall reimburse City for all costs, fees and
expenses, including its reasonable attorney fees and necessary consultants or experts,
expended by City in defense of said Development Approval Challenge. Any proposed
settlement will be subject to City's and Developer's approval, each in its sole
discretion. In addition, City shall have the right, but not the obligation; to contest or
defend any Development Approval challenge, at its sole expense, in the event that
Developer elects not to do so.
6.20.1 Meet and Confer. If a Development Approval Challenge is filed,
upon receipt of the complaint, the Parties will have 20 days to meet and confer regarding
the merits of such Deveiopment Approval Challenge and to determine whether to defend
against the Development Approval Challenge, which period may be extended by the
Parties' mutual agreement so long as it does not impact any litigation deadlines. The City
and Developer mutually commit to meet all required litigation timelines and deadlines.
The Parties may enter a joint defense agreement, which will include among other things,
provisions regarding confidentiality. The City Manager is authorized to negotiate and
enter such joint defense agreement in a form acceptable to the City Attorney. Such joint
defense agreement shall also provide that any proposed settlement of a Development
Approval Challenge shall be subject to City's and Developer's approval, each in its sole
discretion. If the terms of the proposed settlement would constitute an amendment or
modification of this Agreement, a Development Approval or CEQA determination or
document, the settlement shall not become effective unless such amendment or
modification is approved by Developer and by City in accordance with Appiicable Laws,
and City reserves its full legislative discretion with respect thereto.
6.21 Non-liability of Officials and Employees of Citv. No member, official or
employee of City shall be personally liabie to Developer, or any successor in interest, in
the event of any Default or breach by City or for any amount which may become due to
Developer or its successors, or on any obligations under the terms of this Agreement.
Developer hereby waives and releases any Claims it may have against the members,
officials or employees of City with respect to any Default or breach by City or for any
amount which may become due to Developer or its successors under the terms of this
Agreement.
6.22 Leqal Fees. If any Party to this Agreement brings any action or suit against
another Party regarding any matter relating to or arising out of this Agreement, then each
Party shall bear its own fees, costs and expenses incurred therein, including any and all
attorneys' fees.
6.23 Applicable Law: Venue. The laws of the State of California, without regard
to conflict of laws principles, shall govern the interpretation and enforcement of this
Agreement. The exclusive venue for any disputes or legal actions shall be the Superior
Court of California in and for the County of San Mateo or the United States District Court,
Northern District of California.
6.24 Survival. The Parties' indemnification obligations under Sections 2.16,
3.11, 6.8, 6.19 and 6.20 shall survive Closing and termination of this Agreement.
45
6.24 Survival. The Parties' indemnification obligations under Sections 2.16,
3.11, 6.8, 6.19 and 6.20 shall survive Closing and termination of this Agreement.
6.25 Memorandum of Aqreement. Concurrently with the Closing, the Parties
shail execute, acknowledge and record in the Official Records of the San Mateo County
Recorder a memorandum of this Agreement ("Memorandum of AgreemenP') with
respect to the Housing Property only, in the form attached hereto as Exhibit J.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
CITY:
CITY OF BURLINGAME, a California municipal corporation
/
By: . "� �
,� � ;� �__
Lisa K. Goldman, City Manager
APPROVED AS T FORM:
c'_, �
Kathleen A. Kane, City Attorney
ATTEST�
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� C
e ghan f-6a �el� r, City Cler —�
DEVELOPER:
PACIFIC WEST COMMUNITIES, INC., an Idaho corporation,
By �- -
Caleb Roope, President