HomeMy WebLinkAboutOrdinance 2722 N.C.S. 03/16/20201
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EFFECTIVE DATE ORDINANCE NO. 2722 N.C.S.
OF ORDINANCE
April 16, 2020
Introduced by Seconded by
Mike Healy Dave King
7 AN ORDINANCE OF THE CITY OF PETALUMA, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
8 BETWEEN THE CITY OF PETALUMA AND LOMAS CORONA STATION LLC AND LOMAS SMART LLC
9 CONCERNING DEVELOPMENT OF THE CORONA STATION RESIDENTIAL PROJECT LOCATED AT 890
10 NORTH MCDOWELL BOULEVARD (APN 137-061-019) AND PROPERTY OWNED BY THE SONOMA MARIN
11 AREA RAIL TRANSIT DISTRICT LOCATED AT 315 EAST D STREET (APN 007-131-003)
12 WHEREAS, Government Code §65864, et seq., ("State Development Agreement Law") and
13 Chapter 23, entitled "Development Agreements" ("City Development Agreement Requirements")
14 of the Petaluma Implementing Zoning Ordinance, Ordinance No. 2300 N.C.S, ("IZO"), specifically
15 including IZO Section 23.010, authorize the City of Petaluma ("City") to enter into development
16 agreements which may provide certainty to project applicants that upon approval of a project, the
17 applicant may proceed with the project in accordance with the existing City policies, rules, and
18 regulations, and subject to conditions of approval so as to strengthen the public planning process,
19 encourage private participation in comprehensive planning, and reduce the economic costs of
20 development; and
21 WHEREAS, in accordance with Section 23.020 of the City Development Agreement
22 Requirements, City development agreements are considered a combining zone with the existing
23 district; and
24 WHEREAS, in accordance with Section 23.030 of the City Development Agreement
25 Requirements, the City may enter into a development agreement with any person having a legal or
26 equitable interest in real property for the development of the property, so long as the person's
27 interest entitles him or her to engage in such development; and
28 WHEREAS, the City Development Agreement Requirements provide that development
29 agreement applications shall be made in the same fashion as applications to amend the IZO,
30 subject to the additional requirements specified in the City Development Agreement Requirements;
31 and
32 WHEREAS, such additional City Development Agreement Requirements include, as specified
33 in Section 23.060, a copy of the proposed development agreement, or substantive summary of the
34 terms proposed to be included in the development agreement, a statement signed by the
35 applicant setting out the justification for the agreement, including a statement of special financial
36 or long-term project considerations which make preservation of existing zoning requirements
37 desirable throughout the life the project, and submission of the filing fee as established by City
38 Council resolution, or absent such resolution, the fee for a rezoning application; and
Ordinance No. 2722 N.C.S. Page 1
1 WHEREAS, Lomas Corona Station LLC, the owner of property at 890 North McDowell
2 Boulevard, APN 137-061-019, in Petaluma ("Corona Property") and Lomas SMART LLC, which is in
3 contract to purchase property owned by the Sonoma Marin Area Transit District ("SMART") located
4 at 315 East D Street, APN 007-131-003, in Petaluma ("Downtown SMART Property") are under the
5 same management and ownership, referred to in this ordinance as the "Developer;" and
6 WHEREAS, Developer has submitted applications to the City for approval of development of
7 the Corona Station Residential Project (the "Corona Project") on the Corona Property, including
8 applications for a Zoning Text Amendment ("Corona Zoning Amendment"), a Development
9 Agreement ("Agreement"), a Density Bonus and Development Concession/Incentive ("Corona
10 Density Bonus"), a Tentative Subdivision Map ("Corona Tentative Map"), Conditional Use Permit
11 ("Corona Use Permit"), and Site Plan and Architectural Review ("Corona SPAR") for a 110 unit
12 residential project within the MU 1 B zone with Flood Plain -Combining (FP -C) Overlay, on the Corona
13 Property; and
14 WHEREAS, Developer has also proposed alternative compliance with the City's Inclusionary
15 Housing requirements pursuant to Section 3.040 of the IZO ("Inclusionary Housing Requirements") for
16 the Corona Project in the form of 10% of the residential units in the Corona Project being affordable
17 to persons of moderate income level, and 5% of the residential units being affordable to persons of
18 low income level, and the affordable units provided as single family attached units with an
19 affordability term of at least 99 years ("Corona Alternative Inclusionary Compliance"); and
20 WHEREAS, Developer is also in contract with SMART to purchase the Downtown SMART
21 Property which shall in turn be sold to the Hines company ("Hines") for development of a residential
22 project ("Downtown Project") on the Downtown SMART Property; and
23 WHEREAS, Developer has provided the City conceptual plans for the Downtown Project, but
24 no application has been submitted to the City for the Downtown Project, and the conceptual plans
25 for the Downtown Project indicate a project consisting of 402 residential units and ground floor
26 tenant amenity uses; and
27 WHEREAS, Developer plans to obtain agreement with the City regarding alternative
28 inclusionary housing compliance for the Downtown Project consisting of eleven (11) low income
29 units, two (2) studio units, six (6) one bedroom units, and three (3) two bedroom units, dispersed
30 throughout the Downtown Project (not clustered) and constructed as part of the Downtown Project,
31 conveyance to the City of fee title to 2.5 developable acres located at 1601 Petaluma Boulevard
32 South in Petaluma, A.P.Ns.019-210-039, 019-210-010, and 019-210-038, for development of affordable
33 housing, and payment of housing in -lieu fees of $862,208 ("Downtown Alternative Inclusionary
34 Compliance"), and
35 WHEREAS, Developer plans to use the proceeds from Developer's sale of the Corona Project
36 to purchase the Downtown SMART Property from SMART, and to sell the Downtown SMART Property
37 to Hines, including City -approved alternative inclusionary housing compliance, but otherwise
38 subject to future City approval of subsequent entitlement applications to be submitted by Hines;
39 and
40 WHEREAS, Developer's fee ownership of the Corona Property entitles Developer to engage in
41 the development of the Corona Property in accordance with Section 23.030 of the City
42 Development Agreement Requirements; and
43 WHEREAS, Developer's contractual obligation to purchase the Downtown SMART Property in
44 accordance with the Developer/SMART Agreement entitles the Developer to engage in
45 Development of the Downtown SMART Property in accordance with Section 23.030 of the City
Ordinance No. 2722 N.C.S. Page 2
I Development Agreement Requirements subject to the terms of the Developer/SMART Agreement;
2 and
3 WHEREAS, the agreement between Developer and SMART dated October 12, 2019
4 ("Developer/SMART Agreement") is attached to and made a part of the Agreement, and in
5 accordance with Section 9(a) of the Developer/SMART Agreement, the close of escrow on the
6 purchase of the Downtown SMART Property is required to occur on May 19, 2020; and
7 WHEREAS, Section 2(a) of the Developer/SMART Agreement requires as consideration for
8 purchase of the Downtown SMART Property a payment of $8 million, and in accordance with
9 Section 9(c) of the Developer/SMART Agreement, Developer must deposit into escrow the
10 remainder of the $8 million purchase amount, less a non-refundable $500,000 deposit already given
11 by Developer and closing costs allocable to Developer by May 15, 2020; and
12 WHEREAS, section 9(e), the Developer/SMART Agreement also requires Developer to
13 dedicate to SMART 1.27 acres of land for construction of a SMART station on land at the corner of
14 McDowell Boulevard and Corona Road in Petaluma ("Second Petaluma Station"), and the Corona
15 Tentative Map includes such 1.27 acres of land as a remainder parcel; and
16 WHEREAS, SMART intends to use the proceeds from sale of the Downtown SMART Property for
17 construction of the Second Petaluma Station, with terms regarding construction of the Second
18 Petaluma Station to be the subject of a separate agreement to be executed between SMART and
19 the City ("City/SMART Agreement"); and
20 WHEREAS, among other terms, the City/SMART Agreement will provide for allocation of $2
21 million to the Second Petaluma Station improvements, which will provide traffic relief in Petaluma via
22 commuter use of the Second Petaluma Station to be funded at least in part by City Traffic
23 Development Impact Fees; and
24 WHEREAS, Developer's payment for purchase of the Downtown SMART Property in
25 accordance with the Developer/SMART Agreement, the proceeds of which are to be used to fund
26 construction of the Second Petaluma Station, and Developer's dedication of 1.27 acres of land at
27 McDowell Boulevard and Corona Road for the Second Petaluma Station are critical elements of
28 achieving the Second Petaluma Station and essential consideration regarding the City's review of
29 the Corona Project, the Downtown Project, and the Agreement; and
30 WHEREAS, the City's payment of $2 million at least part of which will be sourced from City
31 traffic impact fee proceeds allocated to the Second Petaluma Station improvements is also a
32 critical element of achieving the Second Petaluma Station and essential consideration for purchase
33 of the Downtown SMART Property and the Agreement; and
34 WHEREAS, SMART indicates that construction work for the second planned Petaluma SMART
35 station must coincide with the construction work on the planned Windsor SMART station scheduled
36 for March 2020, such that Developer's payment for the Downtown SMART Property and dedication
37 of 1.27 acres at Corona Road and Mc Dowell Boulevard must occur by the scheduled closing on
38 the Downtown SMART Property purchase on May 19, 2020 for the Second Petaluma Station
39 construction to proceed approximately concurrently with the Windsor station; and
40 WHEREAS, the justification for entering into the Agreement with the Developer regarding the
41 Corona Station Residential Project and the Downtown Project, as further described below in this
42 ordinance, and the special long-term project considerations that make preservation of existing
43 zoning requirements desirable throughout the life of the Corona Project, or so long as otherwise
44 provided in the Agreement, consist of dedication of land for, and funding of, construction of the
Ordinance No. 2722 N.C.S. Page 3
I Second Petaluma SMART Station on land at McDowell Boulevard and Corona Road in Petaluma, as
2 well as considerations regarding inclusionary housing compliance of the Corona and Downtown
3 projects; and
4 WHEREAS, in accordance with Section 65867 of the State Development Agreement Law and
5 Section 23.070 of the City Development Agreement Requirements, hearings on proposed
6 development agreements shall be held before the City's Planning Commission and the City Council,
7 with mailed and published notice of the Planning Commission and City Council hearings given in
8 accordance with the requirements of the State Development Agreement Law and the City
9 Development Agreement requirements; and
10 WHEREAS, in connection with the development of the Corona Project and Downtown
11 Project, City Staff have prepared the proposed Agreement in accordance with the requirements of
12 the State Development Agreement Law and the City Development Agreement Requirements for
13 the Corona Project, which Agreement is attached to and made a part of this ordinance as Exhibit
14 A; and
15 WHEREAS, in accordance with the State Development Agreement Law and the City
16 Development Agreement Requirements, the Agreement includes provisions setting forth, among
17 other things, the effective date and term of the agreement, applicable fees, applicable rules,
18 regulations, and policies, required infrastructure improvements and other conditions of approval,
19 affordable housing obligations, prevailing wage rules, provisions on amendments, annual review
20 and default, and other provisions; and
21 WHEREAS, the conditions of approval addressed in the Agreement also include conditions
22 requiring the Developer to build the Corona Project to sustainability standards greater than existing
23 code requirements in that the Corona Project shall be all -electric, without any natural gas
24 infrastructure, shall include installation of photovoltaic panels on each residential unit, shall include
25 installation of an electric vehicle charger in each garage, and shall include a gray water valve on
26 each residential unit; and
27 WHEREAS, the conditions of approval addressed in the Agreement also include conditions
28 requiring the Downtown Project to be built to sustainability standards greater than existing code
29 requirements, in that the Downtown Project shall be all -electric, without any natural gas
30 infrastructure; and
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WHEREAS, in accordance with Section 65867.5(b) of the State Development Agreement Law
and Section 23.090 of the City Development Agreement Requirements, the provisions of the
Agreement are consistent with the City's General Plan and Station Area Master Plan in that the
Corona Property has a Mixed Use General Plan land use designation, with a density range of up to
30 units per acre, and is consistent with the Station Area Master Plan ("SAMP") in that the project
introduces residential units adjacent to the future SMART station at a density higher than surrounding
development but in character with residential development in the area, provides bicycle and
pedestrian connectivity improvements as prioritized in the SAMP, and directly furthers the
development of the Corona Station which is a priority in both the General Plan and SAMP, and the
Agreement will not be detrimental to the public health, safety or welfare in that adequate public
facilities exist or will be installed as part of the Corona Project, including roads, sidewalks, water,
sewer, storm drains and other infrastructure, and the Corona Property is physically suitable for the
density and the type of development proposed in that it is a flat, undeveloped lot within the City's
urban growth boundary with direct access to North McDowell Boulevard and Corona Road, and
adjacent to the planned second Petaluma SMART station, and supports efficient land use and
promotes infill at a residential density consistent with the General Plan based on the proposed
density of 26 units per net acre for the Corona Project; and
Ordinance No. 2722 N.C.S. Page 4
1 WHEREAS, the potential environmental impacts of the Corona Project were identified and
2 analyzed in accordance with the requirements of the California Environmental Quality Act ("CEQA")
3 and the CEQA Guidelines, and an Initial Study/Mitigated Negative Declaration ("IS/MND") was
4 prepared to address potential environmental impacts of the Corona Project; and
5 WHEREAS, pursuant to the State Development Agreement Law and the City Development
6 Agreement Requirements, notice of a public hearing before the Planning Commission on the
7 Corona Project Approvals, including the Agreement was mailed to all property owners within a
8 1,000 radius of the Corona Property, and a public hearing notice was published once in the
9 Petaluma Argus Courier on October 17, 2019, twenty-seven days prior to the Planning Commission
10 hearing on the Project and the Development Agreement; and
11 WHEREAS, on November 12, 2019, November 19, 2019, and January 14, 2020, the Planning
12 Commission held public hearing on the Corona Project Approvals, including the Agreement, at
13 which time interested persons had an opportunity to testify either in support or opposition; and
14 WHEREAS, at the November 19, 2019 public hearing on the Corona Project Approvals,
15 including the Agreement, the Planning Commission considered the IS/MND prepared for the Corona
16 Project, and deliberated on the IS/MND and the Corona Project Approvals, including the proposed
17 Agreement, and by a vote of 5-2 adopted Resolution no. 2019-017 recommending approval of the
18 IS/MND, Resolution no. 2019-018 recommending City Council denial of the Agreement, Resolution
19 No. 2019-019 recommending denial of the Corona Density Bonus, and Resolution no. 2019-020
20 recommending denial of the Corona Tentative Map; and
21 WHEREAS, at the January 14, 2020 public hearing on the Corona Zoning Amendment the
22 Planning Commission by a vote of 6-1 adopted Resolution No. 2020-01 denying the Corona Zoning
23 Amendment; and
24 WHEREAS, on January 15, 2020 the applicant submitted an application appealing the
25 Planning Commission's denial of the Zoning Text Amendment; and
26 WHEREAS, pursuant to the State Development Agreement Law and the City Development
27 Agreement Requirements, notice of a public hearing before the City Council on the Project
28 Approvals, including the Agreement, was mailed to all property owners within a 1,000 radius of the
29 Property, and a public hearing notice was published once in the Petaluma Argus Courier on
30 January 16, 2020, 11 days prior to the City Council hearing on the Project Approvals, including the
31 Agreement; and
32 WHEREAS, on January 27, 2020 the City Council held a public hearing on the Project
33 Approvals, including the Agreement, at which time interested persons had an opportunity to testify
34 either in support or opposition to the proposal; and
35 WHEREAS, at the January 27, 2020 public hearing on the Project Approvals, including the
36 Agreement, the City Council considered Planning Commission Resolution no. 2019-017
37 recommending approval of the IS/MND prepared for the Corona Project, Resolution no. 2020-001
38 denying the Corona Zoning Amendment, Resolution no. 2019-018 recommending denial of the
39 Agreement, Resolution no. 2019-019 recommending denial of the Corona Density Bonus, and
40 Resolution no. 2019-020 recommending denial of the Corona Tentative Map, and deliberated on
41 the IS/MND and the Project Approvals sought, including the Agreement; and
42 WHEREAS, following the January 27, 2020 public hearing on the Project Approvals, the City
43 Council continued the hearing to a date certain of February 10, 2020; and
Ordinance No. 2722 N.C.S. Page 5
1 WHEREAS, the February 10, 2020 City Council meeting was cancelled; and
2 WHEREAS, pursuant to the State Development Agreement Law and the City Development
3 Agreement Requirements, notice of a public hearing on February 24, 2020 before the City Council
4 on the Project Approvals, including the Agreement, was mailed to all property owners within a 1,000
5 radius of the Property, and a public hearing notice was published once in the Petaluma Argus
6 Courier on February 13, 2020, 11 days prior to the City Council hearing on the Project Approvals,
7 including the Development Agreement; and
8 WHEREAS, on February 24, 2020 the City Council held a public hearing on the Project
9 Approvals, including the Agreement, at which time interested persons had an opportunity to testify
10 either in support or opposition to the proposal; and
11 WHEREAS, at the February 24, 2020 public hearing on the Project Approvals, including the
12 Agreement, the City Council considered Planning Commission Resolution no. 2019-017
13 recommending approval of the IS/MND prepared for the Project, Resolution no. 2020-001 denying
14 the Corona Zoning Amendment, Resolution no. 2019-018 recommending denial of the Agreement,
15 Resolution no. 2019-019 recommending denial of the Corona Density Bonus, and Resolution no.
16 2019-020 recommending denial of the Corona Tentative Map, and deliberated on the Corona
17 Project IS/MND and the Project Approvals sought, including a resolution approving the IS/MND, an
18 ordinance approving the appeal and introducing the Corona Zoning Amendment, an ordinance
19 introducing the Agreement, a resolution approving the Corona Density Bonus, and a resolution
20 approving the Corona Tentative Map, and considered all of the information contained in the record
21 concerning the proposed Project Approvals including the Agreement, and approved the Project
22 Approvals, including the ordinance introducing the Agreement; and
23 WHEREAS, the City Council has reviewed and considered all of the information contained in
24 the record concerning the proposed Project Approvals including the Agreement;
25 NOW, THEREFORE, be it ordained by the Council of the City of Petaluma as follows:
26 SECTION 1. Recitals Made Findings
27 The above recitals are hereby declared to be true and correct and are incorporated into this
28 ordinance as findings of the City Council.
29 SECTION 2. Findings for Adoption of Development Agreement
30 The City Council has reviewed the proposed Corona Project development applications, including
31 the proposed Agreement, and hereby makes the following findings:
32 A. The Planning Commission has reviewed and considered the Agreement in conjunction with its
33 review of the Corona Project and the Corona Project Approvals at the November 12, 2019 and
34 November 19, 2019 Planning Commission hearings on the Corona Project, and following that
35 hearing, by a vote of 5-2, adopted Resolution no. 2019-017 recommending approval of the
36 IS/MND, Resolution no. 2019-018 recommending denial of the Agreement, Resolution No. 2019-
37 019 recommending denial of the Corona Density Bonus, and Resolution no. 2019-020
38 recommending approval of the Corona Tentative Map.
39 B. The Planning Commission has reviewed and considered the Corona Zoning Amendment at the
40 January 14, 2020 Planning Commission hearing and following that hearing, by a vote of 6-1,
41 adopted Resolution No. 2020-001 denying the Corona Zoning Amendment.
Ordinance No. 2722 N.C.S. Page 6
1 C. The City Council held a duly noticed public hearing regarding the Corona Project Approvals
2 including the Agreement, on January 27, 2020 and on February 24, 2020, in conformance with
3 the notice and other provisions of the State Development Agreement Law, including
4 Government Code Sections 65090 and 65091, and the City Development Agreement
5 requirements.
6 D. The Corona Project application proposes a 110 unit residential development referred to as the
7 Corona Station Residential Project and seeks related land use entitlements for the Corona
8 Project, including applications for the Corona Zoning Amendment, the Agreement, Corona
9 Density Bonus, Tentative Map, Conditional Use Permit, and SPAR on the Corona Property which
10 is within the MU1 B zone with Flood Plain -Combining (FP -C) Overlay
11 E. The potential environmental impacts of the Corona Project were identified and analyzed in
12 accordance with the requirements of the California Environmental Quality Act ("CEQA") and
13 the CEQA Guidelines, and an IS/MND was prepared to address potential environmental
14 impacts of the Project. The Planning Commission adopted Resolution No. 2019-017 on
15 November 19, 2019 recommending approval of the IS/MND.
16 F. The City Council approved the IS/MND for the Corona Project Approvals including the
17 Agreement by adoption of Resolution No. 2020-029 N.C.S. on February 24, 2020
18 G. The proposed Agreement, Exhibit A to this ordinance, is consistent with the City's General Plan
19 and the Station Area Master Plan in accordance with the recitals demonstrating such
20 consistency that are incorporated into this ordinance and would direct the Corona Project's
21 development in an orderly manner that benefits the City.
22 H. Pursuant to the State Development Agreement Law and Section 23.090 of the City
23 Development Agreement Requirements, the following factors, among others, have been taken
24 into consideration, as applicable, with respect to the Agreement: the permitted uses of the
25 Corona Property, the density or intensity of use, the maximum height and size of proposed
26 buildings, provisions for reservation or dedication of land for public purposes, and conditions of
27 approval necessary to ensure construction of a second planned Petaluma SMART station as
28 well as conditions of approval specifying sustainability standards for the Corona Project and
29 alternative inclusionary housing compliance for the Corona Project and the Downtown Project.
30 SECTION 2. Approval of Development Agreement
31 The City hereby approves the Agreement and authorizes the City Manager to execute on behalf of
32 the City a Development Agreement in substantially the same form as attached hereto and
33 incorporated herein as Exhibit A along with such changes to the Agreement deemed necessary or
34 appropriate by the City Manager and approved by the City Attorney to affect the intended
35 purposes of the Agreement.
36 SECTION 3. Compliance with State Law
37 A. The City will comply with all requirements of the State Development Agreement Law, and the
38 City Development Agreement Requirements applicable to the Agreement, including, but not
39 limited to, the requirements of Government Code sections 65856(e) and 66006.
40 B. B. In accordance with Section 65868.5 of the State Development Agreement Law and Section
41 23.130 of the City Development Agreement requirements, no later than 10 days after the City
42 enters into the Agreement, the City Clerk will record the Agreement with the County Recorder.
43 C. C. In accordance with Section 65865.1 of the State Development Agreement Law and Section
44 23.080 of the City Development Agreement Requirements, the City will conduct an annual
45 review of the Agreement to ensure compliance with its terms.
Ordinance No. 2722 N.C.S. Page 7
1 SECTION 4. Severability
2 The City Council hereby declares that every section, paragraph, sentence, clause, and phrase of
3 this ordinance is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is
4 for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not
5 affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses, or
6 phrases.
7 SECTION 5. Effective Date.
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This ordinance shall be in full force and effective 30 days after its adoption and shall be published
and/or posted in the manner required by the City's charter.
INTRODUCED and ordered posted/published, this 24th day of February 2020.
ADOPTED this 16th day of March 2020, by the following vote:
Ayes:
Healy, Kearney, King, Miller
Noes:
Mayor Barrett, Vice Mayor Fischer, McDonnell
Abstain:
None
Absent:
None
Teresa Barrett, Mayor
ATTEST: APPROVED AS TO FORM:
i�
Claire Cooper, CMC, City Cler
-PIR
Eric Danly, City Attorney
Ordinance No. 2722 N.C.S. Page 8
Exhibit 1
1 RECORD WITHOUT FEE
2 PURSUANT TO GOVERNMENT CODE § 6103
3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
4 City of Petaluma
5 City Clerk's Office
6 11 English Street
7 Petaluma, CA 94952
8 SPA
9 CE ABOVE THIS LINE FOR RECORDER'S USE ONLY
10 DEVELOPMENT AGREEMENT
11
by and between
12 the City of Petaluma, a California municipal corporation and charter city,
13
and
14 Lomas Corona Station, LLC and Lomas SMART, LLC, California limited liability companies
15
concerning
16 Property at 890 North McDowell Boulevard, A.P.N. 137-061-019
17 and 315 East D Street, A.P.N. 007-131-003 in Petaluma, California
18 This DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the Effective Date by
19 and between the CITY OF PETALUMA ("City"), a California municipal corporation and charter
20 city, and LOMAS CORONA STATION LLC and LOMAS SMART LLC, which are California
21 limited liability companies. As both companies are under the same management and ownership, and
22 the development projects the companies are pursuing are closely interrelated, both companies are
23 collectively referred to as the "Developer" for purposes of this Agreement. This Agreement,
24 concerns the development of certain real property consisting of a 6.5 acre site located at 890 North
25 McDowell Boulevard, A.P.N. 137-061-019 ("Corona Property") in the City of Petaluma, and the
26 development of certain real property consisting of a 6.4 acre site located at 315 East D Street A.P.N.
27 007-131-003, ("Downtown Smart Property") in the City of Petaluma. City and Developer may
28 each be referred to as a "Party," and collectively the "Parties."
29
RECITALS
30 Developer and City enter into this Agreement on the basis of the following facts, understandings and
31 intentions, and the following recitals are a substantive part of this Agreement:
32 A. Government Code §65864, et seq., ("State Development Agreement Law") and Chapter 23,
33 entitled "Development Agreements" ("City Development Agreement Requirements") of the
Ordinance No. 2722 N.C.S. Page 9
1 Petaluma Implementing Zoning Ordinance, Ordinance No. 2300 N.C.S, ("IZO") specifically
2 including IZO Section 23.010, authorize the City to enter into development agreements which may
3 provide certainty to project applicants that upon approval of a project, the applicant may proceed
4 with the project in accordance with the existing policies, rules, and regulations, and subject to
5 conditions of approval so as to strengthen the public planning process, encourage private
6 participation in comprehensive planning, and reduce the economic costs of development.
7 B. In accordance with Section 23.020 of the City Development Agreement Requirements, City
8 development agreements are considered a combining zone with the existing district.
9 C. In accordance with Section 23.030 of the City Development Agreement Requirements, the City
10 may enter into a development agreement with any person having a legal or equitable interest in real
11 property for the development of the property so long as the person's interest entitles him or her to
12 engage in such development.
13 D. The City Development Agreement Requirements provide that development agreement
14 applications shall be made in the same fashion as applications to amend the IZO, subject to the
15 additional requirements specified in the City Development Agreement Requirements. Such
16 additional City Development Agreement Requirements include, as specified in Section 23.060: a
17 copy of the proposed development agreement, or substantive summary of the terms proposed to be
18 included in the development agreement: a statement signed by the applicant setting out the
19 justification for the agreement, including a statement of special financial or long-term project
20 considerations which make preservation of existing zoning requirements desirable throughout the
21 life of the project; and submission of the filing fee as established by City Council resolution, or
22 absent such resolution the fee for a rezoning application. The justification for this Agreement and
23 special long-term project considerations that make preservation of existing zoning requirements
24 desirable throughout the life of the Corona Project, or so long as otherwise provided in this
25 Agreement, consist of dedication of land for, and funding of, construction of a second Petaluma
26 SMART station on land at McDowell Boulevard and Corona Road in Petaluma ("Second Petaluma
27 Station"), as well as considerations regarding inclusionary housing compliance of proposed
28 development projects on the Corona and the Downtown SMART Properties.
29 E. In accordance with Section 65867 of the State Development Agreement Law and Section 23.070
30 of the City Development Agreement Requirements, hearings on proposed development agreements
31 shall be held before the City's Planning Commission and the City Council, with mailed and
32 published notice of the Planning Commission and City Council hearings given in accordance with
33 the requirements of the State Development Agreement Law and the City Development Agreement
34 requirements.
35 F. Developer owns in fee the Corona Property, as further described in Exhibit A, which is attached
36 hereto and hereby made a part of this Agreement. Developer's fee ownership of the Corona Property
37 entitles Developer to engage in the development of the Corona Property in accordance with Section
38 23.030 of the City Development Agreement Requirements. Developer plans to entitle the Corona
39 Property and then sell it to a residential property developer who will develop the Corona Project.
40 G. Developer has submitted applications to the City for approval of development of the Corona
41 Station Residential Project (the "Corona Project"), including applications for a Zoning Text
42 Amendment ("Corona Zoning Amendment"), this Agreement, a Density Bonus and Development
Ordinance No. 2722 N.C.S. Page 10
I Concession/Incentive ("Corona Density Bonus"), a Tentative Subdivision Map ("Corona
2 Tentative Map"), Conditional Use Permit ("Corona Use Permit"), and Site Plan and Architectural
3 Review ("Corona SPAR") for a 110 unit residential project within the MU1B zone with Flood
4 Plain -Combining (FP -C) Overlay, on the Corona Property. Developer has also proposed alternative
5 compliance with the City's Inclusionary Housing requirements pursuant to Section 3.040 of the IZO
6 ("Inclusionary Housing Requirements") in the form of 10% of the residential units in the Corona
7 Project being affordable to persons of moderate income level, and 5% of the residential units being
8 affordable to persons of low income level, and the affordable units provided as single family
9 attached units with an affordability tern of at least 99 years ("Corona Alternative Inclusionary
10 Compliance"). An Initial Study and Mitigated Negative Declaration ("Corona IS/MND") has been
11 prepared for the Corona Project that will require approval by the City Council in accordance with the
12 requirements of the California Environmental Quality Act ("CEQA"). Together, the approvals
13 required for the Corona Project are referred to as the "Corona Project Approvals".
14 H. Developer is also in contract with the Sonoma Marin Area Rail Transit District ("SMART") to
15 purchase the Downtown SMART Property which shall in turn be sold to the Hines company
16 ("Hines") for development of a residential project ("Downtown Project") on the Downtown
17 SMART Property. Developer plans to obtain agreement with the City regarding inclusionary
18 housing compliance for the Downtown Project, use the proceeds from Developer's sale of the
19 Corona Project to purchase the Downtown SMART Property from SMART, and to sell the
20 Downtown SMART Property to Hines, including City -approved alternative inclusionary housing
21 compliance, but otherwise subject to future City approval of subsequent entitlement applications to
22 be submitted by Hines. The agreement between Developer and SMART dated October 12, 2019
23 ("Developer/SMART Agreement") is attached to this Agreement as Exhibit B. In accordance with
24 Section 9(a) of the Developer/SMART Agreement, the close of escrow on the purchase of the
25 Downtown SMART Property is required to occur on May 19, 2020.
26 I. Developer's contractual obligation to purchase the Downtown SMART Property in accordance
27 with the Developer/SMART Agreement entitles the Developer to engage in development of the
28 Downtown SMART Property in accordance with Section 23.030 of the City Development
29 Agreement Requirements subject to the terns of the Developer/SMART Agreement.
30 J. Developer has provided the City conceptual plans for the Downtown Project, but no application
31 has been submitted to the City for the Downtown Project. The conceptual pians for the Downtown
32 Project indicate a project consisting of 402 residential units and ground floor tenant amenity uses.
33 K. Developer seeks approval of alternative compliance with the City's Inclusionary Housing
34 Requirements for the Downtown Project in the form of a combination of on-site affordable units,
35 off-site land donation and payment of in lieu fees as provided for in the paragraph D of the City's
36 Inclusionary Housing Requirements. Specifically, the Developer seeks approval of alternative
37 compliance in the form of eleven (11) low income units consisting of two (2) studio units, six (6)
38 one bedroom units, and three (3) two bedroom units, dispersed throughout the Downtown Project
39 (not clustered) and constructed as part of the Downtown Project, conveyance to the City of fee title
40 to 2.5 developable acres located at 1601 Petaluma Boulevard South in Petaluma, A.P.Ns.019-210-
41 039, 019-210-010, and 019-210-038, for development of affordable housing, and payment of
42 housing in -lieu fees of $862,208 ("Downtown Alternative Inclusionary Compliance") .
Ordinance No. 2722 N.C.S. Page 11
1 L. Section 2(a) of the Developer/SMART Agreement requires as consideration for purchase of the
2 Downtown SMART Property a payment of $8 million. In accordance with Section 9(c) of the
3 Developer/SMART Agreement, Developer must deposit into escrow the remainder of the $8 million
4 purchase amount, less a non-refundable $500,000 deposit already deposited by Developer plus
5 closing costs allocable to Developer by May 15, 2020. Section 9(e), the Developer/SMART
6 Agreement also requires Developer to dedicate to SMART 1.27 acres of land at the corner of
7 McDowell Boulevard and Corona Road in Petaluma for construction of parking improvements at the
8 Second Petaluma Station. The Corona Tentative Map includes such 1.27 acres of land as a
9 remainder parcel.
10 M. SMART intends to use the proceeds from sale of the Downtown SMART Property for
11 construction of the Second Petaluma Station on land at McDowell Boulevard and Corona Road in
12 Petaluma. Terms regarding construction of the Second Petaluma Station will be the subject of a
13 separate agreement to be executed between SMART and the City ("City/SMART Agreement").
14 Among other terms, the City/SMART Agreement will provide for allocation of $2 million of the $8
15 million Developer must pay SMART for the Downtown SMART Property to the Second Petaluma
16 Station improvements that will provide traffic relief in Petaluma via commuter use of the Second
17 Petaluma Station. The $2 million of the $8 million Developer must pay under the
18 Developer/SMART Agreement that is allocated to Second Petaluma Station improvements will be
19 provided by the City to Developer pursuant to this Agreement at least in part from the proceeds of
20 City traffic impact fees.
21 N. Developer's payment for purchase of the Downtown SMART Property in accordance with the
22 Developer/SMART Agreement, the proceeds of which are to be used to fund construction of the
23 Second Petaluma Station, and Developer's dedication of 1.27 acres of land at McDowell Boulevard
24 and Corona Road for the Second Petaluma Station improvements are critical elements of achieving
25 the Second Petaluma Station and essential consideration regarding the City's review of the Corona
26 Project, the Downtown Project, and this Agreement.
27 O. The City's payment to Developer of $2 million sourced at least in part from City traffic impact
28 fee proceeds allocated to the Second Petaluma Station improvements is also a critical element of
29 achieving the Second Petaluma Station and essential consideration for Developer's purchase of the
30 Downtown SMART Property and this Agreement.
31 P. SMART indicates that construction work for the Second Petaluma Station must coincide with the
32 completion of the construction work on the planned Windsor SMART station scheduled to
33 commence in March, 2020 such that Developer's payment for the Downtown SMART Property and
34 dedication of 1.27 acres at Corona Road and Mc Dowell Boulevard must occur by the scheduled
35 closing on the Downtown SMART Property purchase on May 19, 2020 for the Second Petaluma
36 Station construction to proceed approximately concurrently with the Windsor station.
37 Q. Through this Agreement, the Parties intend to preserve the size and density and other
38 considerations regarding the Corona Project as set forth in the Corona Project Approvals, as defined
39 below, and Downtown Alternative Inclusionary Compliance, as set forth in this Agreement. City and
40 Developer each acknowledge that development and construction of the Corona Project, and the
41 Downtown Project are large-scale undertakings involving major investments by Developer and City,
42 and assurances that the Corona Project, and the Downtown Residential Project can be developed and
43 used in accordance with the terms and conditions set forth herein and the existing rules governing
Ordinance No. 2722 N.C.S. Page 12
I development of the Corona Property and the Downtown SMART Property will benefit both
2 Developer and City.
3 R. This Agreement will eliminate uncertainty in the comprehensive development planning of the
4 Corona Project, and alternative compliance for inclusionaiy housing requirements associated with
5 the Downtown Project and provide that the Corona Property may be developed, constructed,
6 completed and used pursuant to this Agreement, and in accordance with existing policies, rules and
7 regulations of the City, subject to the exceptions and limitations expressed herein. Further this
8 Agreement will (i) secure orderly development, and fiscal benefits for public services,
9 improvements and facilities in the City (namely, funding and land for construction of the Second
10 Petaluma Station improvements); (ii) meet the goals of the City's General Plan; (iii) plan for and
11 concentrate public and private resources for the mutual benefit of both Developer and City; (iv)
12 allow the City and public to obtain the benefits of public ownership and use of the public
13 improvements contemplated herein; and (vi) establish the timing and extent of contributions required
14 from Developer and City for these purposes.
15 S. Prior to and/or in conjunction with approval of this Agreement and/or it taking effect, the City has
16 taken and will take actions ("Project Approvals") in connection with the development of the
17 Corona Project, including the following:
18 i. Initial Study and Mitigated Negative Declaration. The environmental impacts of the Corona
19 Project have properly been reviewed and assessed pursuant to the California Environmental Quality
20 Act, California Public Resources Code Section 21000 et seq.; California Code of Regulations Title
21 14, Section 15000 et seq. ("CEQA Guidelines"); and City's local guidelines promulgated
22 thereunder. On February 24, 2020, pursuant to CEQA, the City Council of City ("City Council")
23 adopted Resolution No. 2020-029 N.C.S. approving the Corona IS/MND, with an effective date of
24 February 24, 2020. As required by CEQA, City also adopted written findings and a Mitigation
25 Monitoring and Reporting Program ("MMRP") for the Corona Project.
26 ii. Development Agreement. On February 24, 2020, the City Council introduced Ordinance 2722
27 N.C.S. for approval of this Agreement. On March 2, 2020, the City Council adopted Ordinance
28 2722 N.C.S. approving this Agreement, with an estimated effective date of April 2, 2020.
29 iii. Zoning Text Amendment. On February 24, 2020 the City Council introduced Ordinance 2721
30 N.C.S. for approval of the Corona Zoning Amendment. On March 2, 2020, the City Council
31 adopted Ordinance 2721 N.C.S., with an estimated effective date of April 2, 2020 amending the text
32 of Section 4.3 of the IZO to conditionally permit single family residential land use in the Mu1B
33 zoning district when adjacent to an existing or future SMART station.
34 iv. Density Bonus. On February 24, 2020, the City Council adopted Resolution No. 2020-030
35 N.C.S., with an estimated effective date of April 2, 2020 approving the Density Bonus and
36 Development Concession/Incentive for the Corona Project.
37 v. Tentative Map. On February 24, 2020 the City Council adopted Resolution No. 2020-031 N.C.S.,
38 with an estimated effective date of April 2, 2020, approving the Tentative Map for the Corona
39 Property.
Ordinance No. 2722 N.C.S. Page 13
1 vi. Subsequent Project Approvals — Corona Final Subdivision Map, Conditional Use Permit and Site
2 Plan and Architectural Review. On , Developer submitted for approval a Final
3 Subdivision Map application for the Corona Project ("Corona Final Map"). It is estimated that on
4 or about , Planning Commission approval will be sought for adoption of a resolution
5 approving the Corona Use Permit, subject to certain conditions of approval, for the Corona Property.
6 It is also estimated that on or about , Planning Commission approval will be sought for
7 adoption of a resolution approving the Corona SPAR for the Corona Project. Subsequent to
8 approval of this Agreement, the City and Developer anticipate that the City will consider for
9 approval the Use Permit, SPAR and Final Subdivision Map for the Corona Project, and applications
10 for additional approvals, entitlements, and permits related to the development and operation of the
11 Downtown Project (the "Subsequent Project Approvals").
IN
AGREEMENT
13 NOW, THEREFORE, pursuant to the authority contained in Section 65864 of the State
14 Development Agreement Law, and the City Development Agreement Requirements in Chapter 23 of
15 the IZO, and in consideration of the mutual representations, covenants and promises of the Parties,
16 the Parties hereto agree as follows:
17 1. DEFINITIONS.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
"Administrative Agreement Amendment" shall have the meaning set forth in Section 7.4(a).
"Administrative ProjectAmendment" shall have the meaning set forth in Section 6.3(a)(i).
"Agreement" shall have the meaning set forth in the introductory paragraph preceding the Recitals.
"Applicable Law" shall have the meaning set forth in Section 3.2.
"Building Permit" means a permit issued by the City for the renovation or construction of a building
or structure, as required by the California Building Standards Code as adopted by the City and
incorporated in the Petaluma Municipal Code by reference.
"CEQA" shall have the meaning set forth in Recital G.
"CEQA Guidelines" shall have the meaning set forth in Recital S.
"Changes in the Law" shall have the meaning set forth in Section 3.6.
"Cure Period" shall have the meaning set forth in Section 8.1.
"City" shall have the meaning set forth in the introductory paragraph preceding the Recitals.
"City Council" shall have the meaning set forth in Recital S.
"City Manager" means the City Manager of the City or his/her designee.
"Consultant Fees" shall have the meaning set forth in Section 5.5.
Ordinance No. 2722 N.C.S. Page 14
1 "Corona IS/MND " shall have the meaning set forth in Recital G.
2 "Corona Project" shall have the meaning set forth in Recital G.
3 "Corona Project Approvals" has the meaning set forth in Recital G and including any approved
4 Subsequent Project Approvals.
5 "Corona Property" shall have the meaning set forth in opening paragraph of this Agreement.
6
7 "Default" shall have the meaning set forth in Section 8.2.
8 "Developer" means Lomas Corona Station, LLC, and Lomas Smart LLC, California limited liability
9 companies, and their permitted successors and assigns.
10 "Downtown SMART Property" shall have the meaning set forth in the opening paragraph of this
11 Agreement.
12 "Effective Date" shall have the meaning set forth in Section 2.1.
13 "Extended Cure Period" shall have the meaning set forth in Section 8.1.
14 "Extended Term" shall have the meaning set forth in Section 2.2(b).
15 "Grading Permit" means a permit to commence grading issued by the City.
16 "Impact Fees" shall have the meaning set forth in Section 5.2.
17
18 "Initial Term" shall have the meaning set forth in Section 2.3(a).
19
20 "Major Agreement Amendment" shall have the meaning set forth in Section 7.4(b).
21
22 "MMRP" shall have the meaning set forth in Recital G.
23
24 "Mortgage" shall have the meaning set forth in Section 9.1.
25
26 "Mortgagee " shall have the meaning set forth in Section 9.1.
27 "New City Laws" shall mean City's laws, rules, regulations, official policies, standards and
28 specifications, including those enacted or imposed by a citizen -sponsored initiative or referendum or
29 by the City Council directly or indirectly in connection with any proposed initiative or referendum,
30 in each case to the extent amended or otherwise imposed following the Effective Date.
31 "Official Policy" shall mean a policy that is approved in accordance with the City's normal practice
32 for adopting policies, that is in writing, and that was adopted prior to the Effective Date of this
33 Agreement or that is approved by the City Council and consistent with federal, state or local laws.
Ordinance No. 2722 N.C.S. Page 15
1 "Party/Parties" shall have the meaning set forth in the introductory paragraph preceding the
2 Recitals of this Agreement.
3 "Planning Commission " shall mean the Planning Commission of the City.
4
5 "Prevailing Wage Laws" shall have the meaning set forth in Section 4.2(a).
6
7 "Processing Fees" shall have the meaning set forth in Section 5.3.
8 "Planning Manager" means the Planning Manager for the City.
9 "State Development Agreement Law " shall have the meaning set forth in Recital A.
10 "Subsequent Project Approvals" shall have the meaning set forth in Recital S.
11 "Subsequent Discretionary Approvals" means all other Subsequent Project Approvals other than
12 Subsequent Ministerial Approvals, including amendments of the project approvals, improvement
13 agreements, architectural review permits, use permits, lot line adjustments, subdivision maps,
14 rezonings, development agreements, permits that are not Subsequent Ministerial Approvals,
15 resubdivisions, and any amendments to, or repealing of, any of the foregoing.
16 "Subsequent Ministerial Approvals" means permits or approvals that are required by Applicable
17 Law and that are to be issued upon compliance with uniform, objective standards and regulations.
18 They include applications for road construction permits or authorizations; grading and excavation
19 permits; building permits, including electrical, plumbing, mechanical, Title 24 Electrical, and Title
20 24 Handicap permits or approvals; certificates of occupancy; encroachment permits; water
21 connection permits; and any other similar permits required for the development and operation of the
22 Project.
23 "Term" shall have the meaning set forth in Section 2.2.
24
25 "Transfer" shall have the meaning set forth in Section 10.1.
26 2. EFFECTIVE DATE AND TERM.
27 2.1 Effective Date. This Agreement shall become effective upon the date that the ordinance
28 approving this Agreement becomes effective (the "Effective Date").
29 2.2 Term. The term ("Term") of this Agreement shall be the Initial Term together with any
30 Extended Term.
31 (a) Initial Term. The Term of this Agreement shall commence upon the Effective Date and shall
32 extend for a period of five (5) years thereafter provided however this Agreement shall terminate with
33 respect to the Corona Property upon the close of escrow on the Downtown SMART Property if the
34 Developer has satisfied the City Benefit Conditions=("Initial Term"). The Initial Term has been
35 established by the City and Developer as a reasonable estimate of the time required for the City to
36 receive the public benefits set forth in Article 6 with respect to the Corona Project and to develop the
37 Downtown Project.
Ordinance No. 2722 N.C.S. Page 16
1 (b) Extended Term. Provided neither City nor Developer have terminated this Agreement, or this
2 Agreement has not expired in accordance with its terms, and Developer has fully complied with all
3 terms of this Agreement, Developer may request in writing that City extend the Initial Term of this
4 Agreement for an additional two-year period ("Extended Term"). Such written request must be
5 delivered to City not earlier than two hundred seventy (270) days nor later than one hundred twenty
6 (120) days prior to the termination date of the Initial Term.
7 (c) City Review of Request for Extended Term. Upon receipt of such request, City shall undertake a
8 review of Developer's good faith compliance with the terms of this Agreement in the same manner
9 as set forth in Section 8.5 for a periodic review of this Agreement. Developer and City shall comply
10 with the provisions of Section 8.5 with respect to such review so that it can be completed prior to the
11 expiration of the Initial Term. If Developer has met all requirements of this Agreement in City's
12 reasonable discretion, City may approve such extension. If the Initial Term of this Agreement is
13 extended in accordance with the provisions of this Section, City shall record an instrument giving
14 notice of the Extended Term and the termination date thereof, provided that if this Agreement has
15 terminated with respect to the Corona Property, such notice shall only be recorded against the
16 Downtown SMART Property.
17 2.3 Expiration. Following the earlier of the expiration of the Term or the close of escrow on the
18 Downtown SMART Property and satisfaction of the City Benefit Conditions in accordance with this
19 Agreement, this Agreement shall be deemed terminated and of no further force and effect with
20 respect to the Corona Property. Following the expiration of the Term, or the earlier completion of
21 development of the Downtown Project, and all of Developer's obligations in connection therewith,
22 or the earlier termination of this Agreement in accordance with its terms, this Agreement shall be
23 deemed terminated and of no further force and effect with respect to the Downtown Project, subject,
24 however, to the provisions of Section 8 below.
25 2.4 Developer Representations and Warranties. Developer represents and warrants to City that, as of
26 the Effective Date:
27 (a) Developer is owner in fee of the Corona Property;
28 (b) Developer is in contract with SMART to purchase the Downtown SMART Property pursuant to
29 the Developer/SMART Agreement, the Developer/SMART Agreement remains in effect and
30 Developer is in compliance in all material respects with the Developer/SMART Agreement
31 (c) Developer: (i) is organized and validly existing under the laws of the State of California; (ii) to
32 the extent required, has qualified and been authorized to do business in the State of California and
33 has complied with all requirements pertaining thereto; and (iii) to the extent required, is in good
34 standing and has all necessary powers under the laws of the State of California to own property;
35 (d) No approvals or consents of any persons are necessary for the execution, delivery or performance
36 of this Agreement by Developer, except as have been obtained;
37 (e) The execution and delivery of this Agreement have been duly authorized by all necessary
38 corporate action; and
Ordinance No. 2722 N.C.S. Page 17
1 (f) This Agreement is a valid obligation of Developer and is enforceable in accordance with its
2 terms.
3 3. DEVELOPMENT OF THE PROPERTY.
4 3.1 Vested Rights. The Corona Property and the Downtown SMART Property are hereby made
5 subject to the provisions of this Agreement. Developer shall have the vested right to develop the
6 Corona Property, and the Corona Project in accordance with and subject to the Corona Project
7 Approvals, the Subsequent Project Approvals, Applicable Law and this Agreement, which shall
8 control the permitted uses, density and intensity of use of the Corona Property and the maximum
9 height and size of buildings on the Corona Property and the alternative inclusionary housing
10 compliance for the Corona Property.
11 Developer shall, subject to obtaining the necessary entitlement for the development of the
12 Downtown SMART Property, have the vested right to develop the Downtown SMART Property in
13 accordance with the Downtown Alternative Inclusionary Compliance.
14 3.2 Applicable Law. City and Developer acknowledge and agree that City is restricted in its
15 authority to limit its police power by contract and that the limitations, reservations and exceptions
16 contained in this Agreement are intended to reserve to City all of its police power that cannot be so
17 limited. Notwithstanding the foregoing reservation of City, it is the intent of City and Developer that
18 this Agreement be construed to provide Developer with the maximum rights afforded by law,
19 including but not limited to, the State Development Agreement Law and the City Development
20 Agreement Requirements. Therefore, the laws, rules, regulations, official policies, standards and
21 specifications of City applicable to the development of the Corona Property and/or the Corona
22 Project shall be (collectively, "Applicable Law"):
23 (a) Those rules, regulations, official policies, standards and specifications of the City set forth in the
24 Corona Project Approvals and this Agreement;
25 (b) With respect to matters not addressed by and not otherwise inconsistent with the Corona Project
26 Approvals and this Agreement, those laws, rules, regulations, official policies, standards and
27 specifications (including City ordinances and resolutions) governing permitted uses, building
28 locations, timing and manner of construction, densities, intensities of uses, heights and sizes, and
29 requirements for on- and off-site infrastructure and public improvements, in each case only to the
30 extent in full force and effect on the Effective Date;
31 (c) New City Laws that relate to hearing bodies, petitions, applications, notices, findings, records,
32 hearings, reports, recommendations, appeals and any other matter of procedure imposed at any time,
33 provided such New City Laws are uniformly applied on a City- wide basis to all substantially similar
34 types of development projects and properties;
35 (d) New City Laws that revise City's uniform construction codes, including City's building code,
36 plumbing code, mechanical code, electrical code, fire code, grading code and other uniform
37 construction codes, as of the date of permit issuance, provided, that such New City Laws are
38 uniformly applied on a City-wide basis to all substantially similar types of development projects and
39 properties;
Ordinance No. 2722 N.C.S. Page 18
1 (e) New City Laws that are necessary to protect physical health and safety of the public, provided,
2 that such New City Laws are uniformly applied on a City-wide basis to all substantially similar types
3 of development projects and properties; and
4 (f) New City Laws that do not apply to the Corona Property and/or the Corona Project due to the
5 limitations set forth above, but only to the extent that such New City Laws are accepted in writing by
6 Developer in its sole discretion.
7 3.3 Regulation by Other Public Agencies. City and Developer acknowledge and agree that other
8 governmental or quasi -governmental entities not within the control of City possess authority to
9 regulate aspects of the development of the Corona Property, the Corona Project, the Downtown
10 SMART Property and the Downtown Project, and that this Agreement does not limit the authority of
11 such other public agencies. City shall cooperate with Developer in Developer's effort to obtain such
12 permits and approvals as may be required by other governmental or quasi -governmental entities in
13 connection with the development of, or the provision of services to, the Corona Property, the Corona
14 Project, Downtown SMART Property and the Downtown Project; provided, however, City shall
15 have no obligation to incur any costs, without compensation or reimbursement, or to amend any City
16 policy, regulation or ordinance in connection therewith.
17 3.4 Life of Project Approvals. The term of any and all Corona Project Approvals shall automatically
18 be extended for the longer of the Term or the term otherwise applicable to such Corona Project
19 Approvals. The term of the Downtown Alternative Inclusionary Compliance shall be the Term of
20 this Agreement. Without limiting the generality of the foregoing, pursuant to the Subdivision Map
21 Act, any vesting or tentative maps heretofore or hereafter approved in connection with development
22 of the Corona Project and the Corona Property shall be extended for the Term (and may be subject to
23 other extensions provided under the Subdivision Map Act).
24 3.5 Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild portions of the
25 Corona Project at any time within the Term should it become necessary due to any casualty,
26 including natural disaster or changes in seismic requirements. Such renovations or reconstruction
27 shall be processed as a Subsequent Project Approval consistent with all prior Project Approvals and
28 Applicable City Law. Any such renovation or rebuilding shall be subject to all design, density and
29 other limitations and requirements imposed by this Agreement, and shall comply with the Project
30 Approvals, Applicable City Law, and the requirements of CEQA.
31 3.6 State and Federal Law. As provided in Section 65869.5 of the State Development Agreement
32 Law, this Agreement shall not preclude the applicability to the Corona Project or the Downtown
33 Project of changes in laws, regulations, plans or policies, to the extent that such changes are
34 specifically mandated and required by changes in State or Federal laws or by changes in laws,
35 regulations, plans or policies of special districts or other governmental entities, other than City,
36 created or operating pursuant to the laws of the State of California ("Changes in the Law"). In the
37 event Changes in the Law prevent or preclude, or render substantially more expensive or time
38 consuming, compliance with one (1) or more provisions of this Agreement, the City and Developer
39 shall meet and confer in good faith in order to determine whether such provisions of this Agreement
40 shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with
41 Changes in the Law. Nothing in this Agreement shall preclude City or Developer from contesting by
42 any available means (including administrative or judicial proceedings) the applicability to the
43 Corona Project or the Downtown Project any such Changes in the Law.
Ordinance No. 2722 N.C.S. Page 19
1 4. DEVELOPMENT STANDARDS.
2 4.1 Compliance with State and Federal Law. Developer, at its sole cost and expense, shall comply
3 with requirements of, and obtain all permits and approvals required by, regional, State and Federal
4 agencies having jurisdiction over the Corona Project and the Downtown Project.
5 4.2 Prevailing Wage Requirements.
6 (a) Developer acknowledges and agrees that all improvements paid for directly or indirectly with
7 public funds will constitute construction, alteration, demolition, installation, or repair work done
8 under contract and paid for in whole or in part out of public funds as provided under California
9 Labor Code Section 1720. Accordingly, if and only to the extent applicable, Developer shall comply
10 with, and cause its contractors and subcontractors to comply with, all State Labor Code requirements
11 and implementing regulations of the Department of Industrial Relations pertaining to "public works"
12 (collectively, "Prevailing Wage Laws"). Developer shall require the contractor(s) for the Corona
13 Project, the Downtown Project, or any portion thereof involving any such publicly financed
14 improvements, to submit, upon request by City or County, as applicable, certified copies of payroll
15 records to City, and to maintain and make records available to City and its designees for inspection
16 and copying to ensure compliance with Prevailing Wage Laws, as applicable. Developer shall also
17 include in each of its contractor agreements with respect to any such publicly financed
18 improvements, a provision in form acceptable to City, obligating the contractor to require its
19 contractors and/or subcontractors to comply with Prevailing Wage Laws, as applicable, and to
20 submit, upon request by City, certified copies of payroll records to City and to maintain and make
21 such payroll records available to City and its designees for inspection and copying during regular
22 business hours at the Property or at another location within City.
23 (b) Developer shall defend (with counsel chosen by the City), indemnify, assume all responsibility
24 for, and hold harmless City and its officers, officials, employees, volunteers, agents and
25 representatives fiom and against any and all present and future liabilities, obligations, orders, claims,
26 damages, fines, penalties and expenses (including attorneys' fees and costs) arising out of or in any
27 way connected with Developer's or its contractors' obligations to comply with all Prevailing Wage
28 Laws, including all claims that may be made by contractors, subcontractors or other third party
29 claimants pursuant to Labor Code sections 1726 and 1781.
30 4.3_Sales Tax Point of Sale Designation. Developer shall request that all persons and entities
31 providing bulk lumber, concrete, structural steel and pre -fabricated building components, such as
32 roof trusses, to be used in connection with the construction and development of, or incorporated into,
33 the Corona Project and/or the Downtown Project, designate City as the sole point-of-sale for
34 purposes of computing sales taxes due under the Bradley -Burns Uniform Local Sales and Use Tax
35 Law (California Revenue and Taxation Code sections 7200 et seq. and implementing regulations) on
36 the sale of such bulk construction and building materials and components. Developer shall not be in
37 default hereunder if such request is not agreed to by such persons and entities providing such
38 materials to the Project.
39 5. FEES AND EXACTIONS.
40 5.1 Development Fees, Taxes and Exactions. Developer shall pay all fees, special assessments,
41 special taxes, exactions and dedications payable due to the development, build out, occupancy and
Ordinance No. 2722 N.C.S. Page 20
1 use of the Corona Property and the Downtown Property pursuant to this Agreement including Impact
2 Fees, Processing Fees, Taxes and Assessments, and Consultant Fees.
3 5.2 Impact Fees. Developer shall pay all development impact fees in effect and applicable to the
4 Corona Project as of the Effective Date ("Impact Fees"). Impact fees shall be paid at the rate in
5 effect as of the Effective Date with annual increases based on the Construction Cost Index from the
6 Engineering News Report. The impact fees for the Downtown Project shall be those in effect and
7 applicable to the Downtown Project when its project approvals are sought.
8 5.3 Processing Fees. City may charge and Developer agrees to pay all processing fees, application,
9 inspection and monitoring fees, and staff and legal fees ("Processing Fees"), for land use approvals,
10 grading and building permits, general plan maintenance fees, and other permits and entitlements,
11 which are in force and effect on a City-wide basis at the time those permits, approvals or
12 entitlements are applied for on any or all portions of the Corona Project and the Downtown Project,
13 and which are intended to cover the actual costs of processing the foregoing.
14 5.4 Taxes and Assessments. City may charge and Developer agrees to pay any new, increased or
15 modified taxes or assessments, imposed as a condition of or in connection with any Subsequent
16 Project Approvals or otherwise, provided such taxes and assessments are equally applied on a City -
17 wide basis and have a uniform effect on a broadly-based class of land, projects, or taxpayers, as
18 applicable, within the City ("Taxes and Assessments").
19 5.5 Consultant Fees. In addition to charging the foregoing Processing Fees, City may, in its sole
20 discretion, contract with one or more outside inspectors, engineers, attorneys or consultants to
21 perform all or any portion of the monitoring, inspection, testing, application processing and
22 evaluation services to be performed in connection with construction and development of the Corona
23 Project and/or the Downtown Project or in connection with the periodic review of the Agreement
24 ("Consultant Fees"). Developer shall pay to City, within 30 days following City's written demand
25 therefore, the full amount of all Consultant Fees. City shall provide copies of consultant bills that
26 City asks Developer to pay pursuant to this paragraph at the same time that the City submits an
27 invoice seeking payment to Developer. In the event that a consultant bill contains attorney-client
28 privileged communications, City may redact those portions of the consultant bill that are privileged.
29 The Consultant Fees shall be in addition to, and not in lieu of, the Processing Fees. The City shall
30 not double -charge Developer through the imposition of both Processing Fees and Consultant Fees.
31 6. BENEFITS TO CITY.
32 The following conditions regarding benefits to City related to the Corona Project and the Downtown
33 Project ("City Benefit Conditions") are essential consideration for this Agreement, without which
34 the City would not have entered this Agreement and/or may have made different decisions regarding
35 the Project Approvals for the Corona Project and the Downtown Alternative Inclusionary Housing
36 Compliance. The City Benefit Conditions in Sections 6.1 and 6.2 must be satisfied by or before May
37 15, 2020, which is the date set forth in the Developer/SMART Agreement for deposit of funds into
38 escrow, provided, however, if the date for deposit of funds in the Developer/SMART Agreement is
39 extended, the date for satisfaction of the City Benefit Conditions shall also be extended. Satisfaction
40 of the City Benefit Conditions is dependent upon in part the City taking certain actions, including
41 entering into the City/SMART Agreement and approving the Corona Final Map, Corona Use Permit
42 and Corona SPAR for the Corona Project. If Developer fails to satisfy the City Benefit Conditions
Ordinance No. 2722 N.C.S. Page 21
1 in Sections 6.1 and 6.2 by the close of escrow on the Downtown SMART Property and the City's
2 condition precedents to the satisfaction of the City Benefit Conditions have been satisfied, then,
3 unless the City and Developer otherwise agree in writing by amendment to this Agreement in
4 accordance with its terms, the City may pursue any of its remedies in accordance with Section 8
5 against Developer and/or any successor owner(s) of the Corona Property. Without limiting
6 Developer's obligations under Section 10.2 of this Agreement, Developer's obligations to satisfy the
7 City Benefit Conditions and the City's remedies for breach of such obligations shall be covenants
8 running with the Corona Property in accordance with Section 10.2 unless and until satisfied.
9 Developer's obligations to satisfy the conditions in sections 6.1 and 6.2 of this Agreement are
10 subject to the City providing the payment specified in Section 6.1(a) into escrow in accordance with
11 that provision. Once the City Benefit Conditions in Sections 6.1 and 6.2 are satisfied, they shall
12 cease to be covenants running with the Corona Property in accordance with Section 10.2 and this
13 Agreement shall terminate with respect to the Corona Property subject, however, to the provisions of
14 Section 8 below.
15 6.1 Payment to SMART. In accordance with Section 9(c) of the Developer/SMART Agreement,
16 Developer is obligated to deposit into escrow $8 million, $2 million of which is to be paid by the
17 City in accordance with subsection (a) below and $500,000 of which has already been deposited, as
18 payment for the Downtown SMART Property, which funds will be used to fund the cost of
19 constructing the Second Petaluma Station in accordance with this section. Developer must cause
20 deposit into escrow for SMART $5.5 million.
21 _(a) If, and only if, City and SMART have executed the City/SMART Agreement providing for
22 allocation of $2 million of the $8 million Developer must pay SMART for the Downtown SMART
23 Property to fund the Second Petaluma Station improvements that will provide traffic relief in
24 Petaluma via commuter use of the Second Petaluma Station, and obligating SMART to construct the
25 Second Petaluma Station without further financial contribution by the City, then, by or before May
26 17, 2020, City will deposit into the escrow established for Developer's purchase of the Downtown
27 SMART Property pursuant to the Developer/SMART Agreement $2 million sourced at least in part
28 from City traffic impact fee proceeds for the Second Petaluma Station improvements. In the event
29 City and SMART are unable to reach agreement on the City/SMART agreement in accordance with
30 this provision, despite City's reasonable efforts to do so, then City's obligation to provide a $2
31 million payment to Developer pursuant to this Agreement is excused, without City liability of any
32 kind, notwithstanding any provision of this Agreement to the contrary, and Developer and/or City
33 may terminate this Agreement in accordance with its terms.
34 (b) To satisfy this condition, Developer's payment to SMART must be at the time and in the manner
35 and in all respects in accordance with the Developer/SMART Agreement. Provided the that the City
36 has approved the Corona Final Map, the Corona Use Permit and the Corona SPAR for the Corona
37 Project, and timely paid into escrow $2 million sourced at least in part from City traffic impact fee
38 proceeds for the Second Petaluma Station improvements, Developer's payment of the purchase price
39 for the Downtown SMART Property in accordance with the Developer/SMART Agreement must
40 occur by or before May 15, 2020. Developer must provide City with verification, reasonably
41 satisfactory to the City, of the deposit of all funds required from Developer under the
42 Developer/SMART Agreement in satisfaction of this condition.
43 6.2 Dedication of 1.27 acres to SMART. Provided that the City has approved the Corona Final Map
44 for the Corona Project, the Developer must dedicate to SMART approximately 1.27 acres of land at
Ordinance No. 2722 N.C.S. Page 22
1 the corner of McDowell Boulevard and Corona road in Petaluma for construction of improvements
2 for the Second Petaluma Station. To satisfy this condition, Developer's dedication to SMART of
3 approximately 1.27 acres of land must be at the time and in the manner and in all respects in
4 accordance with the Developer/SMART Agreement. In any case, Developer's dedication of
5 approximately 1.27 acres of land to SMART must occur by or before May 15, 2020. Developer
6 must provide City with verification reasonably satisfactory to the City, of dedication to SMART of
7 approximately 1.27 acres of land, which verification may be accomplished via a dedication of
8 property pursuant to the Final Subdivision Map.
9 6.3 Project sustainability standards. Developer agrees that the Corona Project will be subject to
10 sustainability standards greater than those in existing code requirements in that the Corona Project
11 shall be all -electric, without any natural gas infrastructure, shall include installation of photovoltaic
12 panels on each residential unit, and shall include installation of an electric vehicle charger in each
13 garage. Developer agrees that the Downtown Project will also be subject to sustainability standards
14 greater than those in existing code requirements in that the Downtown Project shall be all electric,
15 without any natural gas infrastructure.
16 6.4 Alternative inclusionary housing compliance for the Corona Project. In satisfaction of the
17 inclusionary housing requirements prescribed by Section 3.040 of the IZO, the City will accept the
18 Corona Project including a mix of affordable units such that 10% of the residential units are
19 affordable to persons of moderate income level, and 5% of the units are affordable to persons of low
20 income level, with all of the Corona Project affordable units provided as single family attached units
21 with an affordability term of at least 99 years.
22 6.5 Alternative inclusionary housing compliance for the Downtown Project. In satisfaction of the
23 inclusionary housing requirements prescribed by Section 3.040 of the IZO, the City will accept
24 alternative compliance to satisfy the inclusionary housing requirements for the Downtown Station
25 Residential Project including eleven (11) low income units consisting of two (2) studio units, six (6)
26 one bedroom units, and three (3) two bedroom units, dispersed throughout the Downtown Project
27 (not clustered) and constructed as part of the Downtown Project,_donation of 2.5 acres of
28 developable property at 1601 Petaluma Boulevard South, A.P.Ns.019-210-039, 019-210-010, and
29 019-210-03 8, for development of affordable housing, and payment of housing in -lieu fees of
30 $862,208.
31 6.6 Public Improvements. Developer shall construct public improvements that are requirements of
32 the Corona Project Approvals in accordance with the City's standards and specifications and plans
33 and specifications to be approved by City, in City's sole discretion, pursuant to the Project
34 Approvals and the conditions of approval set forth therein.
35 7. COOPERATION AND IMPLEMENTATION.
36 7.1 Subsequent Project Approvals. Developer and City acknowledge and agree that Developer may
37 submit applications for Subsequent Project Approvals. In connection with any Subsequent Project
38 Approval, the City shall exercise its discretion in accordance with Applicable Law, the Corona
39 Project Approvals and the Downtown Alternative Inclusionary Compliance and, as provided by this
40 Agreement.
41 7.2 Processing Applications for Subsequent Project Approvals.
Ordinance No. 2722 N.C.S. Page 23
1 (a) Developer acknowledges that City cannot begin processing applications for Subsequent Project
2 Approvals until Developer submits complete applications on a timely basis. Developer shall use its
3 best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and
4 other information necessary for City to carry out its obligations hereunder; and (ii) cause
5 Developer's planners, engineers, and all other consultants to provide to City in a timely manner all
6 such documents, applications, plans and other materials required under Applicable Law. It is the
7 express intent of Developer and City to cooperate and diligently work to obtain any and all
8 Subsequent Project Approvals.
9 (b) Upon submission by Developer of all appropriate applications and processing fees for any
10 pending Subsequent Project Approval, City shall, as allowed by law, reasonably and diligently,
11 subject to City ordinances, policies and procedures regarding hiring and contracting, commence and
12 complete all steps necessary to act on Developer's currently pending Subsequent Project Approval
13 applications.
14 (d) Nothing herein shall limit the ability of City to require the necessary environmental review,
15 reports, analysis or studies to assist in determining that the requested Subsequent Ministerial
16 Approval is consistent with this Agreement and the Corona Project Approvals. If the City determines
17 that an application for a Subsequent Ministerial Approval is not consistent with this Agreement or
18 the Corona Project Approvals and should be processed as an application for a Subsequent
19 Discretionary Approval rather than a Subsequent Ministerial Approval, the City shall specify in
20 writing the reasons for such determination and may propose a modification which would be
21 processed as a Subsequent Ministerial Approval. Developer shall then either modify the application
22 to conform to this Agreement and the Corona Project Approvals, as the case may be, or the City
23 shall process the application as an application for a Subsequent Discretionary Approval.
24 (e) City shall process Developer's applications for Subsequent Project Approvals to the fullest extent
25 allowed by Applicable Law and Developer may proceed with Subsequent Project Approvals as
26 provided for herein to the fullest extent allowed by Applicable Law.
27 7.3 Amendment of this Agreement. This Agreement may be amended from time to time, in whole or
28 in part, by mutual written consent of the Parties or their successors in interest, as follows:
29 (a) Administrative Agreement Amendments. Any amendment to this Agreement which does not
30 substantially affect (a) the Term of this Agreement; (b) permitted uses of the Corona Property; (c)
31 provisions for the reservation or dedication of land; (d) conditions, terms restrictions or requirements
32 for subsequent discretionary actions; (e) increases in the density or intensity of the use of the Corona
33 Property or the maximum height or size of proposed buildings; (f) the Downtown Alternative
34 Inclusionary Housing Compliance or (g) monetary contributions by Developer, shall be deemed an
35 "Administrative Agreement Amendment" and the City Manager, except to the extent otherwise
36 required by Applicable Law, may approve the Administrative Agreement Amendment without
37 notice and public hearing.
38 (b) Major Agreement Amendments. Any amendment to this Agreement which is determined not to
39 be an Administrative Agreement Amendment as set forth above shall be deemed a "Major
40 Agreement Amendment" and shall require giving of notice and a public hearing before the
41 Planning Commission and City Council in accordance with Applicable Law. The City Manager shall
Ordinance No. 2722 N.C.S. Page 24
I have the authority to determine if an amendment is a Major Agreement Amendment or an
2 Administrative Agreement Amendment.
3 7.4 Mitigation Measures. Developer shall comply with all mitigation measures in the Corona Project
4 MMRP. Developer shall comply with all additional mitigation measures imposed as a result of the
5 Corona IS/MND.
6 7.5 Cooperation in the Event of Legal Challenge.
7 (a) City and Developer, at Developer's sole cost and expense, shall cooperate in the event of any
8 court action instituted by a third party or other governmental entity or official challenging the
9 validity of any provision of this Agreement, any Corona Project Approvals, any Subsequent Project
10 Approvals or the Downtown Alternative Inclusionary Compliance and City shall appear in the action
11 and defend its decision, except that City shall not be required to be an advocate for Developer. To
12 the extent that Developer determines to contest or defend such litigation challenges, Developer shall
13 reimburse City, within ten (10) days following City's written demand therefore, which may be made
14 from time to time during the course of such litigation, all costs incurred by City in connection with
15 the litigation challenge, including City's administrative, legal and court costs, provided that City, it
16 its sole discretion shall determine to either: (a) elect to joint representation by Developer's counsel;
17 or (b) retain an experienced litigation attorney. If Developer defends any such legal challenge,
18 Developer shall indemnify, defend, and hold harmless City and its officials and employees from and
19 against any claims, losses, or liabilities assessed or awarded against City by way of judgment,
20 settlement, or stipulation. Nothing herein shall authorize Developer to settle such legal challenge on
21 terms that would constitute an amendment or modification of this Agreement, any Corona Project
22 Approvals, any Subsequent Project Approvals or the Downtown Alternative Inclusionary
23 Compliance, unless such amendment or modification is approved by City in accordance with
24 applicable legal requirements, and City reserves its full legislative discretion with respect thereto.
25 (b) In addition, City shall have the right, but not the obligation, to contest or defend such litigation
26 challenges in the event the Developer elects not to do so. If the City elects to contest or defend such
27 litigation challenges and is successful, Developer shall be bound by the terms of this Agreement and
28 shall be responsible for the City's reasonable attorneys' fees and costs of such contest or defense.
29 7.6 Indemnity and Hold Harmless. Developer shall indemnify and hold City and its elected and
30 appointed officers, agents, employees, and representatives harmless from and against any and all
31 claims, costs, liabilities and damages (including attorneys' fees and costs), including without
32 limitation bodily injury, death, or property damage, resulting directly or indirectly from the approval
33 or implementation of this Agreement, the development and construction of the Corona Project or the
34 Downtown Project by or on behalf of Developer, or from any operations performed under this
35 Agreement, whether such operations were performed by Developer or any of Developer's
36 contractors, subcontractors, agents, employees, except to the extent such claims, costs and liabilities
37 arise from the active negligence or willful misconduct of City, its elected and appointed officers,
38 agents, employees, representatives, contactors or subcontractors.
39 8. DEFAULT AND REMEDIES.
40 8.1 Breach. Subject to extensions of time under this Agreement or by mutual consent in writing, the
41 failure or delay by either Party to perform any term or provision of this Agreement shall constitute a
Ordinance No. 2722 N.C.S. Page 25
1 breach of this Agreement. In the event of alleged breach of any terms or conditions of this
2 Agreement, the Party alleging such breach shall give the other Party notice in writing specifying the
3 nature of the breach and the manner in which said breach or default may be satisfactorily cured, and
4 the Party in breach shall have thirty (30) days following such notice ("Cure Period") to cure such
5 breach, except that in the event of a breach of an obligation to make a payment, the Party in breach
6 shall have ten (10) days to cure the breach. If the breach is of a type that cannot be cured within
7 thirty (3 0) days, the breaching Party shall, within a thirty (3 0) day period following notice to the
8 non- breaching Party, notify the non -breaching Party of the time it will take to cure such breach
9 which shall be a reasonable period under the circumstances ("Extended Cure Period"); commence
10 to cure such breach; and be proceeding diligently to cure such breach. During the Cure Period or
11 Extended Cure Period, the Party charged shall not be considered in default for purposes of
12 termination or institution of legal proceedings, but the City's right to refuse to issue a permit or
13 Subsequent Project Approval under Section 8.3, shall not be limited by this provision. The failure of
14 any Party to give notice of any breach shall not be deemed to be a waiver of that Party's right to
15 allege any other breach at any other time.
16 8.2 Default. If the breaching Party has not cured such breach within the Cure Period or the Extended
17 Cure Period, if any, such Party shall be in default ("Default"), and the non- breaching Party, at its
18 option, may terminate the Agreement, institute legal proceedings pursuant to this Agreement and
19 shall have such remedies as are set forth in Section 8.4 below.
20 8.3 Withholding of Permits. In the event of a Default by Developer, City shall have the right to
21 refuse to issue any permits or other approvals to which Developer would otherwise have been
22 entitled pursuant to this Agreement. This provision is in addition to and shall not limit any actions
23 that City may take to enforce the conditions of the Project Approvals.
24 8.4 Remedies.
25 (a) In the event of a Default by City or Developer, the non -defaulting Party shall have the right to
26 terminate this Agreement upon giving notice of intent to terminate pursuant to Government Code
27 Section 65868 and regulations of City implementing such section. Following notice of intent to
28 terminate, the matter shall be scheduled for consideration and review in the manner set forth in
29 Government Code Section 65867 and City regulations implementing said section. Following
30 consideration of the evidence presented in said review before the City Council, either Party alleging
31 Default by the other Party may give written notice of termination of this Agreement to the other
32 Party. Termination of this Agreement shall be subject to the provisions of Section 8.8_below.
33 (b) City and Developer agree that in the event of Default by City, the Parties intend that the only
34 remedy shall be termination of this Agreement, declaratory relief or specific performance of this
35 Agreement. The Parties further agree that in the event of Default by Developer, the City's primary
36 remedy would be specific performance of the terms and provisions of this Agreement or termination
37 or expiration of this Agreement. In no event shall either Party be entitled to any actual,
38 consequential, punitive, or special damages. If City issues an Approval pursuant to this Agreement
39 in reliance upon a a specified condition being satisfied by Developer in the future, and if Developer
40 then fails to satisfy such condition, City shall be entitled to specific performance for the purpose of
41 causing Developer or any successor to satisfy such condition or to revoke or repeal or otherwise
42 rescind such approval, or to terminate this Agreement, in the City's sole discretion and in accordance
43 with applicable law.
Ordinance No. 2722 N.C.S. Page 26
1 (c) In addition to any other rights or remedies, either Party may institute legal or equitable action to
2 cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any
3 threatened or attempted violation hereof, or to obtain any other remedies consistent with the purpose
4 of this Agreement except as limited by Section 8.4(b) above. Any such legal action shall be brought
5 in the Superior Court for Sonoma County, California.
6 8.5 Periodic Review.
7 (a) The annual review date for this Agreement shall be the month and day of the Effective Date. No
8 later than 60 calendar days prior to the annual review date, Developer shall submit to the City an
9 accounting of the fees due and paid to the City, any assignments or transfers of the Corona Property
10 and all construction of public improvements under this Agreement or the Downtown Property.
11 Developer shall initiate the annual review by submitting a written request to the Planning Manager.
12 Developer shall submit an application and pay all legally required fees as required by the City and
13 provide evidence as determined necessary by the Planning Manager to demonstrate good faith
14 compliance with the provisions of this Agreement. However, failure to initiate the annual review
15 within 30 days of receipt of written notice to do so from City shall not constitute a Default by
16 Developer under this Agreement, unless City has provided actual notice and opportunity to cure and
17 Developer has failed to so cure.
18 (b) Failure of City to conduct an annual review shall not constitute a waiver by the City of its rights
19 to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense
20 to such enforcement by reason of any such failure to conduct an annual review.
21 8.6 Enforced Delay; Extension of Time of Performance. Subject to the limitations set forth below,
22 performance by either party hereunder shall not be deemed to be in default, and all performance and
23 other dates specified in this Agreement shall be extended, where delays are due to: war; insurrection;
24 strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy;
25 epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority;
26 litigation; unusually severe weather; acts or omissions of the other Party; or acts or failures to act of
27 any other public or governmental agency or entity (other than the acts or failures to act of City which
28 shall not excuse performance by City). An extension of time for any such cause shall be for the
29 period of the enforced delay and shall commence to run from the time of the commencement of the
30 cause but in any event shall not exceed a cumulative total of two (2) years. Developer acknowledges
31 that adverse changes in economic conditions, either of Developer specifically or the economy
32 generally, changes in market conditions or demand, and/or inability to obtain financing or other lack
33 of funding to complete the work of on-site and off-site improvements shall not constitute grounds of
34 enforced delay pursuant to this Section. Developer expressly assumes the risk of such adverse
35 economic or market changes and/or financial inability, whether or not foreseeable as of the Effective
36 Date. -
37 8.7 Resolution of Disputes. With regard to any dispute involving the Project, the resolution of which
38 is not provided for by this Agreement, or Applicable Law, Developer shall, at City's request, meet
39 with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes.
40 Nothing in this Section shall in any way be interpreted as requiring that Developer and City reach
41 agreement with regard to those matters being addressed, nor shall the outcome of these meetings be
42 binding in any way on City or Developer unless expressly agreed to by the parties to such meetings.
Ordinance No. 2722 N.C.S. Page 27
1 8.8 Termination. This Agreement shall terminate upon the earlier of (i) expiration of the Term, or (ii)
2 after all appeals have been exhausted before a final court of judgment, or issuance of a final court
3 order directed to the City to set aside, withdraw, or abrogate the City's approval of this Agreement
4 or any material part thereof. Upon termination of this Agreement as to the Corona Property or the
5 Downtown SMART Property, at the request of Developer, the City shall record a Notice of
6 Termination for each affected parcel in a form satisfactory to the City Attorney in the Office of the
7 Sonoma County Recorder. In the event this Agreement is terminated, neither party shall have any
8 further rights or obligations hereunder, except for those obligations of Developer set forth in
9 Sections 4.2 (Prevailing Wage), 7.5 (Cooperation in the Event of Legal Challenge), and 7.6
10 (Indemnity and Hold Harmless), which sections shall survive the termination of this Agreement.
11 9. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.
12 9.1 Mortgagee Protection. This Agreement shall be superior and senior to all liens placed upon the
13 Property or any portion thereof after the date on which this Agreement or a memorandum thereof is
14 recorded, including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the
15 foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage
16 made in good faith and for value, but all of the terms and conditions contained in this Agreement
17 shall be binding upon and effective against all persons and entities, including all deed of trust
18 beneficiaries or mortgagees ("Mortgagees") who acquire title to the Property or any portion thereof
19 by foreclosure, trustee's sale, deed in -lieu -of foreclosure, voluntary transfer or otherwise.
20 9.2 Mortgagee Obligations. City, upon receipt of a written request from a foreclosing Mortgagee,
21 shall permit the Mortgagee to succeed to the rights and obligations of Developer under this
22 Agreement, provided that all defaults by Developer hereunder that are reasonably susceptible of
23 being cured are cured by the Mortgagee as soon as reasonably possible, provided, however, that in
24 no event shall such Mortgagee personally be liable for any defaults or monetary obligations of
25 Developer arising prior to acquisition of possession of such property by such Mortgagee. The
26 foreclosing Mortgagee shall have the right to find a substitute developer to assume the obligations of
27 Developer, which substitute shall be considered for approval by the City pursuant this Agreement. In
28 any event, a Mortgagee shall not be entitled to devote the Property to any use except in full
29 compliance with the Project Approvals nor to construct any improvements thereon or institute any
30 uses other than those uses or improvements provided for or authorized by the Agreement or the
31 Project Approvals.
32 9.3 Notice of Default to Mortgagee. If City receives notice from a Mortgagee requesting a copy of
33 any notice of default given to Developer and specifying the address for service thereof, City shall
34 endeavor to deliver to the Mortgagee, concurrently with service thereof to Developer, all notices
35 given to Developer describing all claims by the City that Developer has defaulted hereunder. If City
36 determines that Developer is not in compliance with this Agreement, City also shall endeavor to
37 serve notice of noncompliance on the Mortgagee concurrently with service on Developer. Each
38 Mortgagee shall have the right, but not the obligation, during the same period available to Developer
39 to cure or remedy, or to commence to cure or remedy, the condition of default claimed or the areas
40 of noncompliance set forth in City's notice.
41
42
Ordinance No. 2722 N.C.S. Page 28
1 10. ASSIGNABILITY.
2 10.1 Assignment by Developer. Developer may not convey, assign or transfer ("Transfer") any of
3 its interests, rights or obligations under this Agreement without the prior written consent of City
4 prior to satisfaction of the City Benefit Conditions, which consent shall not be unreasonably
5 withheld or delayed. Any Transfer after the satisfaction of the City Benefit Conditions shall not
6 require the consent of the City. Any Transfer of all or a portion of this Agreement shall be
7 documented by an Assignment and Assumption Agreement in a form reasonably acceptable to the
8 City. In no event shall the obligations conferred upon Developer under this Agreement be transferred
9 except through a transfer of all or a portion of the Corona Property and/or the Downtown Property.
10 During the Term, Developer shall provide City with written notice of a Transfer of any interest in
11 this Agreement forty-five (45) days prior to any such Transfer, and if such Transfer requires the City
12 consent, the notice of Transfer shall be accompanied by quantitative and qualitative information that
13 substantiates, to the City's satisfaction, that the proposed transferee has the capability to fulfill the
14 rights and obligations of this Agreement. Within thirty (30) days of such a request and delivery of
15 information, the City Manager shall approve or disapprove any Transfer requiring City approval.
16 Each successor in interest to Developer shall be bound by all of the terms and provisions applicable
17 to the portion of the Property acquired. This Agreement shall be binding upon and inure to the
18 benefit of the Parties' successors, assigns and legal representatives. This Agreement shall be
19 recorded by the City in the Sonoma County Recorder's Office promptly upon execution by each of
20 the Parties.
21 10.2 Covenants Run With The Land. All of the provisions, agreements, rights, powers, standards,
22 terms, covenants and obligations contained in this Agreement shall run with the land and shall be
23 binding upon the Parties and their respective heirs, successors (by merger, consolidation or
24 otherwise) and assigns, devisees, administrators, representatives, lessees and all other persons or
25 entities acquiring the Property, any lot, parcel or any portion thereof and any interest therein,
26 whether by sale, operation of law or other manner, and shall inure to the benefit of the Parties and
27 their respective successors.
28 10.4 Non -Assuming Transferees. Except as otherwise required by a transferor, the burdens,
29 obligations and duties of such transferor under this Agreement shall not apply to any purchaser of
30 any individual house offered for sale. The transferee in a transaction described above and the
31 successors and assigns of such a transferee shall be deemed to have no obligations under this
32 Agreement but shall continue to benefit from the vested rights provided by this Agreement for the
33 duration of the Term hereof. Nothing in this Section shall exempt any property transferred to a non -
34 assuming transferee from payment of applicable fees, taxes and assessments or compliance with
35 applicable conditions of approval.
36 10.5 Foreclosure. Nothing contained in this Section shall prevent a transfer of the Corona Property,
37 or any portion thereof, to a lender as a result of a foreclosure or deed in lieu of foreclosure, and any
38 lender acquiring the Corona Property, or any portion thereof, as a result of foreclosure or a deed in
39 lieu of foreclosure shall talce such Corona Property subject to the rights and obligations of Developer
40 under this Agreement; provided, however, in no event shall such lender be liable for any defaults or
41 monetary obligations of Developer arising prior to acquisition of title to the Corona Property by such
42 lender, and provided further, in no event shall any such lender or its successors or assigns be entitled
43 to a Building Permit or occupancy certificate until all fees due under this Agreement (relating to the
44 portion of the Corona Property acquired by such lender) have been paid to City.
Ordinance No. 2722 N.C.S. Page 29
1 11. GENERAL.
2 11.1 Controlling Law. This Agreement shall be governed by the laws of the State of California,
3 without reference to choice of laws principles.
4 11.2 Construction of Agreement. The language in this Agreement in all cases shall be construed as a
5 whole and in accordance with its fair meaning. Each reference in this Agreement to this Agreement
6 or any of the Corona Project Approvals or Subsequent Ministerial or Discretionary Approvals shall
7 be deemed to refer to the Agreement, Corona Project Approval or Subsequent Ministerial or
8 Discretionary Approval as it may be amended from time to time, whether or not the particular
9 reference refers to such possible amendment. Section headings in this Agreement are for
10 convenience only and are not intended to be used in interpreting or construing the terms, covenants
11 or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for
12 both City and Developer, and no presumption or rule that ambiguities shall be construed against the
13 drafting party shall apply to the interpretation or enforcement of this Agreement. Unless the context
14 clearly requires otherwise, (i) the plural and singular numbers shall each be deemed to include the
15 other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others;
16 (iii) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive;
17 (v) "include," "includes" and "including" are not limiting and shall be construed as if followed by
18 the words "without limitation," and (vi) "days" means calendar days unless specifically provided
19 otherwise.
20 11.3 No Waiver. No delay or omission by the City or Developer in exercising any right or power
21 accruing upon the other Party's noncompliance or failure to perform under the provisions of this
22 Agreement shall impair or be construed to waive any right or power. A waiver by City or Developer
23 of any of the covenants or conditions to be performed by the other Party shall not be construed as a
24 waiver of any succeeding breach of the same or other covenants and conditions.
25 11.4 Agreement is Entire Agreement. This Agreement and all exhibits attached hereto or documents
26 incorporated herein by reference, are the sole and entire agreement between the Parties concerning
27 the Property. The Parties acknowledge and agree that they have not made any representation with
28 respect to the subject matter of this Agreement or any representations inducing the execution and
29 delivery, except representations set forth herein, and each Party acknowledges that it has relied on its
30 own judgment in entering this Agreement. The Parties further acknowledge that all statements or
31 representations that heretofore may have been made by either of them to the other are void and of no
32 effect, and that neither of them has relied thereon in its dealings with the other.
33 11.5 Estoppel Certificate. City or Developer from time to time may deliver written notice to the
34 other Party requesting written certification that, to the knowledge of the certifying Party, (i) this
35 Agreement is in full force and effect and constitutes a binding obligation of the Parties, (ii) this
36 Agreement has not been amended or modified either orally or in writing, or, if it has been amended
37 or modified, specifying the nature of the amendments or modifications, and, (iii) the requesting Party
38 does not have knowledge of default in the performance of its obligations under this Agreement, or if
39 in known default, describing therein the nature and monetary amount, if any, of the default.
40 11.6 Further Documents. Each Party shall execute and deliver to the other all other instruments and
41 documents as may be reasonably necessary to carry out this Agreement.
Ordinance No. 2722 N.C.S. Page 30
1 1 L Time of Essence. Time is of the essence in the performance of each and every covenant and
2 obligation to be performed by the Parties hereunder.
3 11.8 Construction. This Agreement has been reviewed and revised by legal counsel for both the City
4 and Developer and no presumption or rule that ambiguities shall be construed against the drafting
5 Party shall apply to the interpretation or enforcement of this Agreement.
6 11.9 Notices. Except as otherwise expressly provided herein, all notices and demands pursuant to
7 this Agreement shall be in writing and delivered in person, by commercial courier or by first-class
8 certified mail, postage prepaid. Except as otherwise expressly provided herein, notices shall be
9 considered delivered when personally served, upon delivery if delivered by commercial courier, or
10 two (2) days after mailing if sent by mail. Notices shall be sent to the addresses below for the
11 respective Parties; provided, however, that any Party may change its address for purposes of this
12 Section by giving written notice to the other Parties. These addresses may be used for service of
13 process:
14 City:
15 Peggy Flynn
16 City of Petaluma
17 11 English Street
18 Petaluma, California 94952
19 with copy to:
20 Claire Cooper
21 City Clerk
22 City of Petaluma
23 11 English Street
24 Petaluma, California 94952
25 Developer:
26 Todd Kurtin
27 with copy to:
28 The provisions of this Section shall be deemed directive only and shall not detract from the validity
29 of any notice given in a manner that would be legally effective in the absence of this Section.
30 11.10 Developer is an Independent Contractor. Developer is not an agent or employee of City, but is
31 an independent contractor with full rights to manage its employees subject to the requirements of the
32 law. All persons employed or utilized by Developer in connection with this Agreement are
33 employees or contractors of Developer and shall not be considered employees of City in any respect.
Ordinance No. 2722 N.C.S. Page 31
1 11.11 No Joint Venture. It is specifically understood and agreed that the Project is a private
2 development. No partnership, joint venture or other association of any kind between City and
3 Developer is formed by this Agreement.
4 11.12 Nondiscrimination. Developer shall not discriminate, in any way, against any person on the
5 basis of race, color, national origin, gender, marital status, sexual orientation, age, creed, religion or
6 disability in connection with or related to the performance of this Agreement.
7 11.13 No Third Party Beneficiary. This Agreement shall not be construed or deemed to be an
8 Agreement for the benefit of any third party or parties, and no third party or parties shall have any
9 claim or right of action hereunder for any cause whatsoever.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement has been entered into by and between the Parties as of
the Effective Date.
CITY:
City of Petaluma, a California municipal corporation and charter city
By:
Peggy Flynn, City Manager
APPROVED AS TO FORM:
By:
Eric W. Danly, City Attorney
ATTEST:
By:
Claire Cooper, City Clerk
DEVELOPER:
Corona Station, LLC, a California limited liability company
By:
Todd Kul tin
Lomas SMART, LLC, a California limited liability company
By:
Todd Kurtin,
Ordinance No. 2722 N.C.S. Page 32
1 EXHIBIT A
2 PROPERTY LEGAL DESCRIPTION
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Ordinance No. 2722 N.C.S. Page 33
1 EXHIBIT B
2 DEPICTION OF IMPROVEMENTS
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Ordinance No. 2722 N.C.S. Page 34
1 EXHIBIT C
2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
3 PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
0
5 Attention:
R
7 (Space Above For Recorder's Use)
8 PARTIAL ASSIGNMENT AND ASSUMPTION
9 OF DEVELOPMENT AGREEMENT AND CONSENT OF CITY
10 THIS PARTIAL ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT AND
11 CONSENT OF CITY (this "Assignment") is made effective as of , 20 (the
12 "Effective Date"), by and between Lomas SMART, LLC, a California limited liability company
13 ("Assignor") and , a
14
15 RECITALS
("Assignee"), with reference to the following:
16 A. That certain real property described in Exhibit A, attached hereto and incorporated
17 herein by reference, (the "Property"), is subject to that certain development agreement entered by
18 and between the City and Assignor, which was approved pursuant to Ordinance No.
19 Agreement").
20 B. Assignor has now entered into an with Assignee, dated as of (the "Purchase
21 Agreement"), pursuant to which, among other things, Assignor has agreed to transfer and convey to
22 Assignee all of Assignor's rights in and to the portion of the Property described in Exhibit B
23 attached hereto (the "Assigned Property"), and cause Assignor to assign to Assignee certain rights,
24 title and interest in and to the Development Agreement to the extent relating to the Property in
25 accordance with the Development Agreement and entitlements referred to therein is referred to
26 herein as the "Project." That portion of the Property that is not the Assigned Property or has been
27 otherwise assigned by Assignor in accordance with the Development Agreement is referred to herein
28 as the "Remaining Property."
29 NOW, THEREFORE, Assignor and Assignee agree as follows:
30 1. Assignment. For and in consideration of the mutual covenants and agreements contained in this
31 Assignment, and other good and valuable consideration, the receipt and adequacy of which is
32 acknowledged, Assignor assigns to Assignee only the following rights and obligations (referred to
33 herein as the "Assigned Rights and Obligations") as these pertain to the Assigned Property:
Ordinance No. 2722 N.C.S. Page 35
1 1. (a) [insert applicable sections of the DA]; and
2 2. (b) [insert applicable sections of the DA], as to the Assigned Property.
3 Assignee hereby acknowledges that the Assigned Rights and Obligations are subject to the
4 timing and phasing of the development of the Property as set forth in the Development Agreement.
5 2. Remaining Obligations. Assignor acknowledges and agrees that it remains subject to all rights and
6 obligations set forth in the Development Agreement, except the Assigned Rights and Obligations
7 expressly set forth in Section 1 above (the "Remaining Rights and Obligations"). The Remaining
8 Rights and Obligations include without limitation the following:
9 1. (a) Sections [insert applicable sections of the DA]; and
10 2. (b) Sections [insert applicable sections of the DA], as to the Remaining
11 Property.
12 3. Acceptance and Assumption. Assignee hereby accepts the assignment of the Assigned Rights and
13 Obligations from Assignor, and assumes and agrees to perform all of the Assigned Rights and
14 Obligations.
15 4. Further Assurances. Assignor hereby covenants that it will, at any time and from time to time
16 upon written request therefor, execute and deliver to Assignee, its nominees, successors and/or
17 assigns, any new or confirmatory instruments and do and perform any other acts which Assignee or
18 its nominees, successors and/or assigns may request in order to fully transfer possession and control
19 of, and protect the rights of Assignee and its successors and/or assigns in, all the rights, benefits and
20 privileges intended to be transferred and assigned hereby. Assignee hereby covenants that it will, at
21 any time and from time to time upon written request therefor, execute and deliver to Assignor, its
22 nominees, successors and/or assigns, any new or confirmatory instruments and do and perform any
23 other acts which Assignor or its nominees, successors and/or assigns may request in order to fully
24 confirm and vest in Assignor and its successors and/or assigns in, all the obligations, rights, benefits
25 and privileges intended to be transferred by the acceptance and assumption herein.
26 5. Successors. This Assignment shall be binding upon and inure to the benefit of the parties hereto
27 and their respective successors and assigns.
28 6. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed
29 an original, but all of which, taken together, shall constitute one and the same instrument.
30 7. Amendment. This Assignment may only be amended or modified by a written instrument
31 executed by all of the parties hereto with the prior written consent of the City of Rohnert Park.
32 8. Governing Law. The validity, interpretation and performance of this Assignment shall be
33 controlled by and construed under the laws of the State of California.
34 9. Attorneys' Fees. Should any dispute arise between the parties hereto or their legal representatives,
35 successors or assigns concerning any provision of this Assignment or the rights and duties of any
36 person in relation thereto, the party prevailing in such dispute shall be entitled, in addition to such
Ordinance No. 2722 N.C.S. Page 36
I other relief that may be granted, to receive from the other party all costs and expenses, including
2 reasonable attorneys' fees, incurred by the prevailing party in connection with such dispute.
3 10. Entire Agreement. This Assignment, together with the Purchase Agreement, constitutes the
4 entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes
5 all prior understandings or agreements. In the event of any conflict between this Assignment and the
6 Purchase Agreement, the terms of the Purchase Agreement shall govern and control.
7 11. Severability. If any term, covenant, condition or provision of this Assignment, or the application
8 thereof to any person or circumstance, shall to any extent be held by a court of competent
9 jurisdiction or otherwise by law rendered invalid, void or unenforceable, the remainder of the terms,
10 covenants, conditions or provisions of this Assignment, or the application thereof to any person or
11 circumstance, shall remain in full force and effect and shall in no way be affected, impaired or
12 invalidated thereby.
13 12. Notices. All notices shall be in writing and shall be given in the manner prescribed by Section
14 11.9 of the Development Agreement. Pursuant to Section 11.9 of the Development Agreement, the
15 address for Assignee is:
16 14. Authority. Each individual executing this Assignment on behalf of a corporation or other legal
17 entity represents and warrants that: (a) he or she is duly authorized to execute and deliver this
18 Assignment on behalf of said corporation or other legal entity in accordance with and without
19 violating the provisions of its governing documents, and (b) this Assignment is binding upon and
20 enforceable against said corporation or other legal entity in accordance with its terms. Any entity
21 signing this Assignment on behalf of a corporation or other legal entity hereby represents and
22 warrants in its own capacity that it has full authority to do so on behalf of the corporation or other
23 legal entity.
24 IN WITNESS WHEREOF, the parties have entered into this Assignment as of the Effective Date.
0%
26 ASSIGNOR:
27 Lomas SMART, LLC,
28 a California limited liability company
29 By:
30 Name: Tod Kurtin
31
32 By: Name: Its:
33 CONSENT OF CITY
34 ASSIGNEE:
M.
Ordinance No. 2722 N.C.S.
Page 37
1 The City hereby consents to the foregoing Partial Assignment and Assumption of Development
2 Agreement, pursuant to Section 10.1 of the Development Agreement.
3 CITY:
4 City of Petaluma, a California municipal corporation and charter city
5 By:
6 Peggy Flynn, City Manager
7 Approved as to Form:
8 By:
9 Eric Danly, City Attorney
10 Attest:
11 By:
12 Claire Cooper City Clerk
13 [The applicable Exhibit A and B will be inserted into execution version]
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Ordinance No. 2722 N.C.S. Page 38