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 CITY COUNCIL AGENDA ITEM NO. 22



Meeting Date: November 12, 2002

Subject/Title: Approval of Resolution No. ____, Approving and Authorizing Execution of a Disposition and Development Agreement between the Redevelopment Agency and RHS Construction for the Development of Casitas Del Sol within the North Brentwood Redevelopment Project Area 

Submitted by: Howard Sword, Economic Development/Redevelopment Director
Gina Rozenski, Redevelopment Analyst

Approved by: John Stevenson, City Manager


RECOMMENDATION 
By resolution, approve and authorize execution of a Disposition and Development Agreement between the Redevelopment Agency and RHS Construction for the development of a 9-unit subdivision, known as Casitas Del Sol, at 159 Sycamore Avenue within the North Brentwood Redevelopment Project Area. 

PREVIOUS ACTION
On February 8, 2000, the City Council authorized the City Manager to execute an agreement to purchase 159 Sycamore Avenue, CIP Project No. 336-3117. The property was acquired using the Housing Fund of the Redevelopment Agency, and escrow closed in March 2000. Recognizing that the ownership was inadvertently transferred to the City of Brentwood, the City Council, on May 23, 2000, authorized the City Manager to execute a Grant Deed correcting ownership to the Redevelopment Agency.

To facilitate a re-use of the property and further the housing goals of the Agency, on November 14, 2000, the City Council authorized the City Manager to execute an Option to Purchase Agreement with RHS Construction Company to provide for a period of negotiations for the redevelopment of 159 Sycamore Avenue. Rather than an Option to Purchase Agreement, a more appropriate “Agreement to Negotiate Exclusively” between the Redevelopment Agency and RHS Construction was executed on February 2, 2001.

On May 14, 2002, the Redevelopment Agency approved a resolution to execute a First Amendment to the Agreement to Negotiate Exclusively with RHS Construction to extend the negotiation period by an additional four months. 

RHS Construction submitted its application to Community Development Department on May 31, 2001, for the development of 10 detached townhomes of 1400 square feet each on .91 acres. His application was considered complete on July 6, 2001. His application consisted of a rezone from R3 (high density, multi-family residential, 11-20 du/acre) to a Planned Development to dictate development standards, a tentative map and a design review.

On October 2, 2001, the Planning Commission denied the rezone request, effectively denying the application. On October 16, 2001, the Planning Commission reconsidered the application and instructed the applicant to return to the Planning Commission with a redesign. The project returned to a Planning Commission workshop on January 29, 2002, wherein the Planning Commission gave comments on four alternative parcel and street layouts. 

The Developer submitted a redesign of the parcel and internal street layouts, and the Plannning Commission recommended the rezone, adopted development standards, and approved the tentative subdivision map for a 9-lot subdivision on July 2, 2002.

The City Council adopted Ordinance 714 on August 27, 2002, to approve the parcel’s rezone and development standards for this project. 

EXECUTIVE SUMMARY
Under this Disposition and Development Agreement, the Developer will purchase the Agency-owned property (“Site) from the Agency and use the Site for the design and construction of a 9-unit, high density, single family townhome project. The Site currently has an existing, boarded residential structure originally built in the 1940s. The Site was purchased by the Agency on March 20, 2000, for $240,000 using Low/Moderate Housing Funds. Title and escrow fees were approximately $7,665, for a total funding for the Site of $247,665. 

The proposed Project will be nine for-sale single-family residential units on small lots. The Developer has proposed one floor plan with five variations of elevations and colors to provide distinct differences between the homes. The homes will be 1429 square feet each. The Project includes a private drive requiring the establishment of a homeowners association for the maintenance of the common areas and private drive, as well as the private sewer and storm drain. 

The Agency shall sell the Site to the Developer for $200,000, which is considered fair market value for multi-family residential property, based on current land prices in the market area of $5.00 per square foot. The Agency’s interest in redeveloping this Site is to provide new for-sale dwelling units in an area that is predominately affordable rental housing. The Agency is not imposing conditions or requirements on this development, such as affordability covenants, that would impact the financial feasibility of the Project. However, to the extent permitted by law, the Developer shall design a marketing and resale program that gives preferences to persons and households who live and/or work in the City of Brentwood. The high-density project will provide another housing product at a market price not currently available in the City of Brentwood’s predominately single-family housing stock selling at area median prices. 

BACKGROUND
Prior to a sale of property in which a redevelopment agency holds title and acquired in whole or in part with property tax increment funds, the agency must first secure approval of the proposed sale from its local legislative body after a public hearing. A “summary report” that describes and contains specific financing elements of the proposed transaction must be prepared and available for public inspection prior to the public hearing. As reflected in the Summary Report and Table 1, the 2% financial analyses of this project resulted in a net gain to the Agency of:

2% increase NPV $ 
Agency Revenues $909,846 $333,273
Less Agency Costs 247,665 247,665
Net Gain to Agency $662,181 $85,608



To accurately forecast non-housing property tax increment revenues to the Agency, it is necessary to reduce that revenue stream by the annual North Brentwood negotiated pass through payments. This required step causes a reduction of the non-housing tax increment revenues. These reductions are reflected in the above projected revenues.

Even assuming a conservative 2% annual increase of property taxes and reducing the forecasted revenues by the future pass-through payments, the payback to the Agency of $85,608 NPV makes this project financially warranted, and indicates a financially feasible project for the Agency to participate. 

The Agency is entering into this Agreement in order to achieve its objectives of removing obstacles and blighting influences to infill residential development, facilitate and encourage private investment, and provide additional housing opportunities in the area. The Agreement meets the goals set forth in the Agency’s Redevelopment Plan as well as the objectives in the Five-Year Implementation Plan.

The Agency prepared an Initial Study wherein it was determined that the Project qualifies for a categorical exemption as an In-Fill Development under the CEQA Guidelines Section 15332. A Notice of Exemption was prepared, and the Planning Commission found that previous environmental reviews were adequate for all approvals relating to this Project.

A notice was published in the local newspaper on October 30 and November 6, 2002, announcing the availability of the proposed DDA, Summary Report and Initial Study for public review, and announcing the consideration of this Project by both the City Council and Redevelopment Agency at public hearings scheduled for November 12.

FISCAL IMPACT
The $200,000 sales price of the Site will be deposited back into the Housing Fund upon close of escrow. The tax increment revenues generated from this Site will be deposited into the 80% Non-Housing Fund and 20% Housing Fund as appropriate. 

Attachments: 1. Resolution 
2. Disposition & Development Agreement with attachments 
3. Summary Report 
4. Initial Study and Notice of Exemption
















CITY COUNCIL RESOLUTION NO. 

RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD AND ROBERT H. SHERDEL DOING BUSINESS AS RHS CONSTRUCTION

WHEREAS, the Redevelopment Agency of the City of Brentwood (the “Agency”) is carrying out the Merged Area Redevelopment Plan (the “Redevelopment Plan”) ; and

WHEREAS, the Agency has received a proposed Disposition and Development Agreement (the “DDA”) from Robert H. Sherdel, an individual, doing business as RHS Construction, Inc. (the “Developer”) which provides for the sale of certain real property (the “Site”) to the developer for construction of 9 single family townhomes (the “Project”); and

WHEREAS, based on the results of an initial study (the “Initial Study”), the Agency determined that the approval of the proposed DDA by the Agency is categorically exempt from the provisions of the California Environmental Quality Act (“CEQA”) under Section 15332 of the Guidelines for the California Environmental Quality Act (the “Guidelines”); and

WHEREAS, the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et seq.) provides in Section 33431 that any sale or lease of Agency property may be made only after a public hearing of the Agency after publication of notice as provided by law; and

WHEREAS, the Community Redevelopment Law provides in Section 33433 that before any property acquired, in whole or in part, with tax increment monies, is sold or leased for development pursuant to a redevelopment plan, such sale or lease shall first be approved by the legislative body after a public hearing, that notice of the time and place of the hearing shall be published in a newspaper of general circulation in the community for at least two (2) successive weeks prior to the hearing, and that the Agency shall make available for public inspection a copy of the proposed sale or lease and a summary of the financial aspects of the proposal; and

WHEREAS, notice of public hearings by the City Council of the City of Brentwood (the “City Council”) and the Agency was published in the Contra Costa Times/Ledger on October 30 and November 6, 2002; and

WHEREAS, the Agency has prepared a report (the “Report”) pursuant to Section 33433 of the Health and Safety Code containing a copy of the proposed DDA and a summary describing the cost of the DDA to the Agency, the value of the property interest to be conveyed, the purchase price and other information required by said Section 33433, and said report was made available to the public for inspection; and

WHEREAS, on November 12, the Agency and the City Council held public hearings to consider and act on the disposition and development of the Site pursuant to the DDA;



NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF Brentwood DOES HEREBY RESOLVE AS FOLLOWS:

Section 1. The City Council hereby finds and determines that the sale of the Site to the Developer, and development of the Project on the Site pursuant to the DDA will assist in the elimination of blight within the redevelopment project area. This finding is based upon the fact that the Site is being sold for purposes of development on the Site of nine (9) single-family townhomes, in accordance with and in implementation of the Redevelopment Plan. This finding is further based upon the additional facts and information contained in the Report.

Section 2. The City Council hereby finds and determines that the consideration for the Site to be paid by the Developer pursuant to the DDA is not less than the fair market value at its highest and best use in accordance with the Redevelopment Plan. This finding is based upon the facts and information contained in the Report. 

Section 3. The City Council hereby finds and determines that the acquisition and sale of the Site pursuant to the DDA is consistent with the Implementation Plan for the Merged Redevelopment Project. This finding is based on the facts contained in the Report. 

Section 4. Based on the Initial Study, the City Council hereby determines that its’ approval of the proposed DDA is categorically exempt from CEQA under Section 15332 of the Guidelines.

Section 5. The City Council hereby approves the sale of the Site pursuant to the DDA.

PASSED AND ADOPTED this day of , 2002, by the following vote:

AYES:
NOES:
ABSENT:
ABSTAIN:



Michael McPoland, Mayor


ATTEST:


Karen Diaz, City Clerk




















DISPOSITION AND DEVELOPMENT AGREEMENT

By and Between

REDEVELOPMENT AGENCY OF THE
CITY OF BRENTWOOD

and

ROBERT H. SHERDEL, an individual,

doing business as

RHS CONSTRUCTION COMPANY













North Brentwood Redevelopment Project Area
Casitas Del Sol Housing Project


TABLE OF CONTENTS

I. [§100] SUBJECT OF AGREEMENT 1
A. [§101] Purpose of This Agreement 1
B. [§102] The Redevelopment Plan 1
C. [§103] The Project Area 1
D. [§104] The Site 1
E. [§105] Parties to This Agreement 2
1. [§106] The Agency 2
2. [§107] The Developer 2
F. [§108] Deposit 2
II. [§200] DISPOSITION OF THE SITE 3
A. [§201] Sale and Purchase 3
B. [§202] Escrow 3
C. [§203] Conveyance of Title and Delivery of Possession 5
D. [§204] Form of Deed 6
E. [§205] Condition of Title 6
F. [§206] Time for and Place of Delivery of Deed 6
G. [§207] Payment of the Purchase Price and Recordation of Deed 6
H. [§208] Title Insurance 6
I. [§209] Taxes and Assessments 7
J. [§210] Conveyance Free of Possession 7
K. [§211] Inspections; Condition of the Site 7
L. [§212] Preliminary Work by the Developer 9
M. [§213] Submission of Evidence of Equity Capital and Mortgage Financing 9

III. [§300] DEVELOPMENT OF THE SITE 10
A. [§301] Development of the Site by the Developer 10
1. [§302] Scope of Development 10
2. [§303] Basic Concept Drawings 10
3. [§304] Construction Plans, Drawings and Related Documents 10
4. [§305] Approval of Plans, Drawings and Related Documents 11
5. [§306] Cost of Demolition and Construction of Improvements 11
6. [§307] Demolition and Construction Schedule 11
7. [§308] Bodily Injury, Property Damage and Workers’ Compensation Insurance 12
8. [§309] City and Other Governmental Agency Permits 12
9. [§310] Rights of Access 12
10. [§311] Local, State and Federal Laws 12
11. [§312] Antidiscrimination During Construction 12
B. [§313] Taxes, Assessments, Encumbrances and Liens 13
C. [§314] Prohibition Against Transfer of Site, the Buildings or Structures Thereon and Assignment of Agreement 13
D. [§315] Security Financing; Rights of Holders 13
1. [§316] No Encumbrances Except Mortgages, Deeds of Trust, Sales and Leases-Back or Other Financing for Development 13
2. [§317] Holder Not Obligated to Construct Improvements 14
3. [§318] Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure 14
4. [§319] Failure of Holder to Complete Improvements 14
5. [§320] Right of Agency to Cure Mortgage, Deed of Trust or Other Security Interest Default 15
E. [§321] Right of the Agency to Satisfy Other Liens on the Site After Title Passes 15
F. [§322] Certificate of Completion 16
IV. [§400] USE OF THE SITE 17
A. [§401] Uses 17
B. [§402] Obligation to Refrain from Discrimination 17
C. [§403] Form of Nondiscrimination and Nonsegregation Clauses 17
D. [§404] Effect and Duration of Covenants 18
E. [§405] Rights of Access – Public Improvements and Facilities 18
V. [§500] DEFAULTS, REMEDIES AND TERMINATION 19
A. [§501] Defaults – General 19
B. [§502] Legal Actions 19
1. [§503] Institution of Legal Actions 19
2. [§504] Applicable Law 19
3. [§505] Acceptance of Service of Process 19
C. [§506] Rights and Remedies are Cumulative 20
D. [§507] Damages 20
E. [§508] Specific Performance 20
F. [§509] Remedies and Rights of Termination Prior to Conveyance of the Site to the Developer 20
1. [§510] Termination by the Developer 20
2. [§511] Termination by the Agency 21
G. [§512] Option to Repurchase, Reenter and Repossess 22
H. [§513] Right of Reverter 24
VI. [§600] GENERAL PROVISIONS 26
A. [§601] Notices, Demands and Communications Between the Parties 26
B. [§602] Conflicts of Interest 26
C. [§603] Nonliability of Agency Officials and Employees 26
D. [§604] Enforced Delay: Extension of Times of Performance 26
E. [§605] Inspection of Books and Records 27
F. [§606] Plans and Data 27
VII. [§700] SPECIAL PROVISIONS 27
A. [§701] Amendment of Redevelopment Plan 27
B. [§702] Submission of Documents to the Agency and City for Approval 27
C. [§703] Amendments to this Agreement 28
VIII. [§800] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS 28
IX. [§900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY 28

Attachments
Attachment No. 1 Map of the Site
Attachment No. 2 Legal Description of the Site
Attachment No. 3 Schedule of Performance
Attachment No. 4 Scope of Development
Attachment No. 5 Form of Grant Deed 

DISPOSITION AND DEVELOPMENT AGREEMENT


THIS AGREEMENT is entered into as of the day of __________, 2002, by and between the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD (the “Agency”) and ROBERT H. SHERDEL, an individual, doing business as RHS CONSTRUCTION COMPANY (the “Developer”). The Agency and the Developer agree as follows:

I. [§100] SUBJECT OF AGREEMENT

A. [§101] Purpose of This Agreement

The purpose of this Agreement is to effectuate the Redevelopment Plan for the North Brentwood Redevelopment Project (the “Project”) by providing for the disposition and development of certain real property (the “Site”) included within the boundaries of the Project (the “Project Area”).

The development of the Site pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and best interests of the City of Brentwood, California (the “City”), and the health, safety, morals and welfare of its residents and in accord with the public purposes and provisions of applicable federal, state and local laws and requirements.

B. [§102] The Redevelopment Plan

This Agreement is subject to the provisions of the North Brentwood Redevelopment Plan, approved and adopted on July 9, 1991 by Ordinance No. 496, as amended by Ordinance No. 548. The Brentwood Redevelopment Plan, approved and adopted on July 13, 1982 by Ordinance No. 333, as amended by Ordinance Nos. 358, 549 and 621, and the North Brentwood Redevelopment Plan were merged on May 9, 2000 by Ordinance No. 632 (together, hereinafter referred to as the “Merged Area Redevelopment Plan”). The Merged Area Redevelopment Plan, as it now exists and as it may be subsequently amended pursuant to Section 701, is incorporated herein by reference and made a part hereof as though fully set forth herein.

C. [§103] The Project Area

The Project Area is located in the City of Brentwood, California, and the exact boundaries thereof are specifically described in the Merged Area Redevelopment Plan.

D. [§104] The Site

The Site is that portion of the Project Area shown on the Map of the Site (Attachment No. 1) and is more particularly described in the Legal Description of the Site (Attachment No. 2). The address of the Site is 159 Sycamore Avenue, Brentwood, California. The Site is currently owned by the Agency.

E. [§105] Parties to This Agreement

1. [§106] The Agency

The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et seq.). The office of the Agency is located at 150 City Park Way, Brentwood, California 94513. “Agency,” as used in this Agreement, includes the Redevelopment Agency of the City of Brentwood and any assignee of or successor to its rights, powers and responsibilities.

2. [§107] The Developer

The Developer is Robert H. Sherdel, an individual, doing business as RHS Construction Company. The principal office of the Developer is located at 683 Astor Ct., Brentwood, California 94513. Wherever the term “Developer” is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided.

The qualifications and identity of the Developer are of particular concern to the City and the Agency, and it is because of such qualifications and identity that the Agency has entered into this Agreement with the Developer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. This Agreement may be terminated by the Agency pursuant to Section 511 hereof if there is any significant change (voluntary or involuntary) in the membership, management or control of the Developer.

The Developer shall not assign all or any part of this Agreement without the prior written approval of the Agency.

F. [§108] Deposit

The Developer shall, prior to or simultaneously with the execution of this Agreement by the Agency, deliver to the Agency a deposit of cash or certified check satisfactory to the Agency in the amount of TWENTY THOUSAND DOLLARS ($20,000) (the “Deposit”) as security for the performance of the obligations of the Developer to be performed prior to the return of the Deposit to the Developer or its retention by the Agency as liquidated damages.

The Agency shall be under no obligation to pay or earn interest on the Deposit, but if interest is paid thereon, such interest shall become part of the Deposit.

Upon termination of this Agreement by the Agency as provided in Section 511 hereof, the Deposit (including all interest paid thereon) shall be retained by the Agency as liquidated damages or returned to the Developer as provided therein.

Upon termination of this Agreement by the Developer as provided in Section 510 hereof, the Deposit (including all interest paid thereon) shall be returned to the Developer by the Agency as provided therein.

If the Developer is in default with respect to any provision of this Agreement, the Agency may, but shall have no obligation to, use the Deposit or any portion of the Deposit to cure such default or to compensate the Agency for any expense or damage sustained by the Agency and resulting from such default. If this Agreement has not been terminated as a result of such default, the Developer, on demand from the Agency, shall promptly restore such Deposit to the full amount required by this Section 108.

The Deposit shall be credited to the purchase price at the close of escrow.

II. [§200] DISPOSITION OF THE SITE

A. [§201] Sale and Purchase

In accordance with and subject to all the terms, covenants and conditions of this Agreement, the Agency agrees to sell, and the Developer agrees to purchase for development, the Site for the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000) (the “Purchase Price”) paid in cash at close of escrow. 

B. [§202] Escrow

The Agency agrees to open an escrow with North American Title Company, or any other escrow company approved by the Agency and the Developer, as escrow agent (the “Escrow Agent”), in Brentwood, California, within the time established in the Schedule of Performance (Attachment No. 3). This Agreement constitutes the joint escrow instructions of the Agency and the Developer, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary and consistent with this Agreement. The Escrow Agent hereby is empowered to act under this Agreement and, upon indicating its acceptance of the provisions of this Section 202 in writing, delivered to the Agency and to the Developer within five (5) days after the opening of the escrow, shall carry out its duties as Escrow Agent hereunder.

The Developer shall deposit with the Escrow Agent the Purchase Price for the Site in accordance with the provisions of Section 207 of this Agreement.

The Developer shall also pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for the close of escrow:

1. The escrow fee; 

2. The premium for a C.L.T.A. standard title insurance policy and all other premiums for title insurance or special endorsements to be paid by the Developer as set forth in Section 208 of this Agreement; and

3. Any state, county or city documentary transfer tax.

The Agency shall timely and properly execute, acknowledge and deliver a deed conveying to the Developer title to the Site in accordance with the requirements of Section 204 of this Agreement, together with an estoppel certificate certifying that the Developer has completed all acts (except deposit of the Purchase Price) necessary to entitle the Developer to such conveyance, if such be the fact.

The Agency shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for the close of escrow:

1. Costs necessary to place the title to the Site in the condition for conveyance required by the provisions of this Agreement;

2. Cost of drawing the deed;

3. Recording fees;

4. Notary fees; and

5. Ad valorem taxes, if any, upon the Site for any time prior to conveyance of title.

Upon delivery of a deed to the Escrow Agent by the Agency pursuant to Section 206 of this Agreement, the Escrow Agent shall record such deed when title can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law and pay any transfer tax required by law. Any insurance policies governing the Site are not to be transferred.

The Escrow Agent is authorized to:

1. Pay and charge the Agency and the Developer, respectively, for any fees, charges and costs payable under this Section 202. Before such payments are made, the Escrow Agent shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the escrow;

2. Disburse funds and deliver the deed and other documents to the parties entitled thereto when the conditions of this escrow have been fulfilled by the Agency and the Developer; and

3. Record any instruments delivered through this escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement.

All funds received in this escrow shall be deposited by the Escrow Agent with other escrow funds of the Escrow Agent in a general escrow account or accounts with any state or national bank doing business in the State of California. Such funds may be transferred to any other such general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent. All adjustments shall be made on the basis of a thirty (30) day month.

If this escrow is not in condition to close before the time for conveyance established in Section 203 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, terminate this Agreement in the manner set forth in Section 510 or 511 hereof, as the case may be, and demand the return of its money, papers or documents. Thereupon all obligations and liabilities of the parties under this Agreement shall cease and terminate in the manner set forth in Section 510 or 511 hereof, as the case may be. If neither the Agency nor the Developer shall have fully performed the acts to be performed before the time for conveyance established in Section 203, no termination or demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. If any objections are raised within the ten (10) day period, the Escrow Agent is authorized to hold all money, papers and documents with respect to the Site until instructed in writing by both the Agency and the Developer or upon failure thereof by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon as possible. Nothing in this Section 202 shall be construed to impair or affect the rights or obligations of the Agency or the Developer to specific performance.

Any amendment of these escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment, the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment.

All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 601 of this Agreement for notices, demands and communications between the Agency and the Developer.

The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Sections 202 to 208, both inclusive, of this Agreement.

Neither the Agency nor the Developer shall be liable for any real estate commissions or brokerage fees that may arise herefrom. The Agency and the Developer each represent that neither has engaged any broker, agent or finder in connection with this transaction.

C. [§203] Conveyance of Title and Delivery of Possession

Provided that the Developer is not in default under this Agreement and all conditions precedent to such conveyance have occurred, and subject to any mutually agreed upon extensions of time, conveyance to the Developer of title to the Site shall be completed on or prior to the date specified in the Schedule of Performance (Attachment No. 3). The Agency and the Developer agree to perform all acts necessary to conveyance of title in sufficient time for title to be conveyed in accordance with the foregoing provisions.

Possession shall be delivered to the Developer concurrently with the conveyance of title, except that limited access may be permitted before conveyance of title as permitted in Section 212 of this Agreement. The Developer shall accept title and possession on or before said date.

D. [§204] Form of Deed

The Agency shall convey to the Developer title to the Site in the condition provided in Section 205 of this Agreement by grant deed in substantially the form set forth in Attachment No. 5.

E. [§205] Condition of Title

Within the times set forth in the Schedule of Performance (Attachment No. 3), the Agency shall submit a Preliminary Title Report for the Site to the Developer for approval. Developer shall approve or disapprove the Preliminary Title Report within fifteen (15) days from the time of receipt. Failure by the Developer to either approve or disapprove the conditions of title within such time shall be deemed an approval. If the condition of title is not acceptable to Developer, the Agency shall have thirty (30) days to eliminate exceptions to title. If Agency is unable to eliminate exceptions to title, Developer may, either terminate this Agreement pursuant to Section 510, or accept the conditions of title. 

The Agency shall convey to Developer fee simple title to the Site free and clear of all recorded liens, encumbrances, assessments, leases and taxes except as are consistent with this Agreement and as approved by Developer pursuant to this Section 205.

F. [§206] Time for and Place of Delivery of Deed

Subject to any mutually agreed upon extensions of time, the Agency shall deposit the grant deed for the Site with the Escrow Agent on or before the date established for the conveyance of the Site in the Schedule of Performance (Attachment No. 3).

G. [§207] Payment of the Purchase Price and Recordation of Deed

The Developer shall deposit the Purchase Price for the Site and other sums required hereunder with the Escrow Agent prior to the date for conveyance thereof, provided that the Escrow Agent shall have notified the Developer in writing that the grant deed, properly executed and acknowledged by the Agency, has been delivered to the Escrow Agent and that title is in condition to be conveyed in conformity with the provisions of Section 205 of this Agreement. Upon the close of escrow, the Escrow Agent shall file the grant deed for recordation among the land records in the Office of the County Recorder of Contra Costa County, shall deliver the Purchase Price and other required sums to the Agency and shall deliver to the Developer a title insurance policy insuring title in conformity with Section 208 of this Agreement.

H. [§208] Title Insurance

Concurrently with recordation of the grant deed, North American Title Company, or some other title insurance company satisfactory to the Agency and the Developer having equal or greater financial responsibility (“Title Company”), shall provide and deliver to the Developer a title insurance policy issued by the Title Company insuring that title is vested in the Developer in the condition required by Section 205 of this Agreement. The Title Company shall provide the Agency with a copy of the title insurance policy, and the title insurance policy shall be in the amount of the Purchase Price of the Site.

The Developer shall pay the title insurance premium attributable to a C.L.T.A. standard form policy of title insurance and all other premiums for title insurance coverage or special endorsements in the amount of the Purchase Price of the Site.

Concurrently with the recording of the grant deed conveying title to the Site, the Title Company shall, if requested by the Developer, provide the Developer with an endorsement to insure the amount of the Developer’s estimated development costs of the improvements to be constructed upon the Site. The Developer shall pay the entire premium for any such increase in coverage requested by it.

I. [§209] Taxes and Assessments

Ad valorem taxes and assessments on the Site, if any, and taxes upon this Agreement or any rights hereunder, levied, assessed or imposed for any period commencing prior to conveyance of title, shall be borne by the Agency. All such ad valorem taxes and assessments levied or imposed for any period commencing after closing of the escrow shall be paid by the Developer.

J. [§210] Conveyance Free of Possession

Except as otherwise provided in the Scope of Development (Attachment No. 4), the Site shall be conveyed free of any possession or right of possession by any person except that of the Developer and the easements of record, as further described in Section 205, above.

K. [§211] Inspections; Condition of the Site

1. Inspections

Developer has conducted a Phase I Environmental Study and Soils Analysis of the Site and is satisfied with the condition of the Site. No further analysis or studies of the Site are required. 

2. “As Is” 

Developer agrees it will rely solely on its own investigation of the Site and agrees to purchase the Site “as is,” in its current physical condition, with no warranties, express or implied, as to the physical condition thereof, the presence or absence of any latent or patent condition thereon or therein, including, without limitation, any Hazardous Materials (as defined herein) thereon or therein and any other matters affecting the Site. 

3. Developer Indemnity

Developer agrees, from and after the date of recording of the grant deed conveying title to the Site from the Agency to Developer or the commencement of any work on the Site by Developer under this Agreement, to defend, indemnify, protect and hold harmless the Agency and City and their officers, beneficiaries, employees, agents, attorneys, representatives, legal successors and assigns (“Indemnitees”) from, regarding and against any and all liabilities, obligations, orders, decrees, judgments, liens, demands, actions, Environmental Response Actions (as defined herein), claims, losses, damages, fines, penalties, expenses, Environmental Response Costs (as defined herein) or costs of any kind or nature whatsoever, together with fees (including, without limitation, reasonable attorneys’ fees and experts’ and consultants’ fees), whenever arising, unless caused in whole or in part by any of the Indemnitees, resulting from or in connection with the actual or claimed generation, storage, handling, transportation, use, presence, placement, migration and/or release of Hazardous Materials (as defined herein), at, on, in, beneath or from the Site (collectively referred to as “Contamination”). Developer’s defense, indemnification, protection and hold harmless obligations herein shall include, without limitation, the duty to respond to any governmental inquiry, investigation, claim or demand regarding the Contamination, at Developer’s sole cost. 

4. Release and Waiver 

The Developer hereby releases and waives all rights, causes of action and claims Developer has or may have in the future against the Indemnitees arising out of or in connection with any Hazardous Materials (as defined herein), at, on, in, beneath or from the Site, unless the presence of such Hazardous Materials at, on, in, beneath or from the Site is caused in whole or in part by any of the Indemnitees. In furtherance of the intentions set forth herein, Developer acknowledges that it is familiar with Section 1542 of the Civil Code of the State of California which provides as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Developer hereby waives and relinquishes any right or benefit which it has or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or nonstatutory law of any other applicable jurisdiction to the full extent that it may lawfully waive all such rights and benefits pertaining to the subject matter of this Section 211.

5. Definitions

a. As used in this Agreement, the term “Environmental Response Actions” means any and all activities, data compilations, preparation of studies or reports, interaction with environmental regulatory agencies, obligations and undertakings associated with environmental investigations, removal activities, remediation activities or responses to inquiries and notice letters, as may be sought, initiated or required in connection with any local, state or federal governmental or private party claims, including any claims by Developer or Agency.

b. As used in this Agreement, the term “Environmental Response Costs” means any and all costs associated with Environmental Response Actions including, without limitation, any and all fines, penalties and damages.

c. As used in this Agreement, the term “Hazardous Materials” means any substance, material or waste which is (1) defined as a “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant” or any other terms comparable to the foregoing terms under any provision of California law or federal law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; or (6) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property.

6. Materiality 

Developer acknowledges and agrees that the defense, indemnification, protection and hold harmless obligations of Developer for the benefit of the Agency set forth in this Agreement are a material element of the consideration to the Agency for the performance of its obligations under this Agreement, and that the Agency would not have entered into this Agreement unless Developer’s obligations were as provided for herein. Developer further acknowledges and agrees that the provisions of this Section 211 which extend representations, warranties, indemnifications, and/or covenants of Developer to the benefit of the Agency or the City shall not be satisfied, waived or otherwise extinguished by Agency’s issuance of any Certification of Completion under Section 322 of this Agreement.

L. [§212] Preliminary Work by the Developer

Prior to the conveyance of title from the Agency, representatives of the Developer shall have the right of access to the Site at all reasonable times for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement. The Developer shall hold the Agency harmless from any injury or damages arising out of any activity pursuant to this section. The Developer shall have access to all data and information on the Site available to the Agency, but without warranty or representation by the Agency as to the completeness, correctness or validity of such data and information.

Any preliminary work undertaken on the Site by the Developer prior to conveyance of title thereto shall be done only after written consent of the Agency and at the sole expense of the Developer. The Developer shall save and protect the Agency against any claims resulting from such preliminary work, access or use of the Site. Copies of data, surveys and tests obtained or made by the Developer on the Site shall be filed with the Agency. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits from the appropriate governmental agencies.

M. [§213] Submission of Evidence of Equity Capital and Mortgage Financing

If the Developer finances the acquisition and development of the Site and related activities, such financing shall be subject to the approval of the Agency, which approval will not be unreasonably withheld.

No later than the time specified in the Schedule of Performance (Attachment No. 3), the Developer shall submit to the Agency evidence satisfactory to the Agency that the Developer has the equity capital and commitments for mortgage financing necessary for acquisition and development of the Site.


III. [§300] DEVELOPMENT OF THE SITE

A. [§301] Development of the Site by the Developer

1. [§302] Scope of Development

The Site shall be developed as nine (9) single-family townhomes consisting of approximately 1,429 square feet each to be resold as individual units as further provided in the Scope of Development (Attachment No. 4).

2. [§303] Basic Concept Drawings

Basic Concept Drawings are those plans and drawings reviewed and approved as development standards established for the Site by the Planning Commission’s Resolution Nos. 02-41, 02-42, and 02-43, passed and adopted on July 2, 2002, and by City Council Ordinance No. 714, adopted on August 27, 2002. The Site shall be developed as generally established in the Basic Concept Drawings, attached as Exhibit A to the Scope of Development (Attachment No. 4), and related documents except as changes may be mutually agreed upon between the Developer and the City. Any such changes shall be within the limitations of the Scope of Development (Attachment No. 4).

3. [§304] Construction Plans, Drawings and Related Documents

The Developer shall prepare and submit construction plans, drawings and related documents to the City for architectural and site planning review and written approval as and at the times established in the Schedule of Performance (Attachment No. 3). The construction plans, drawings and related documents are hereby defined as those in sufficient detail to obtain a building permit.

The Developer shall also prepare and submit to the City for its approval final landscaping and finish grading plans for the Site. Such final plans shall be prepared and submitted within the times established in the Schedule of Performance (Attachment No. 3), subject to extensions as are authorized herein or as mutually agreed to by the parties hereto.

The City and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the City can receive prompt and speedy consideration.

If any revisions or corrections of plans approved by the City shall be required by any government official, agency, department or bureau having jurisdiction, or any lending institution involved in financing, the Developer and the Agency shall cooperate in efforts to obtain a waiver of such requirements or to develop a mutually acceptable alternative.

4. [§305] Approval of Plans, Drawings and Related Documents


Except as specially set forth in this Agreement to the contrary, City approval of all plans and drawings, including any changes therein, shall be deemed to be Agency approval. City approval of the plans and drawings referred to in Section 304 hereof shall not relieve the Developer of any obligation to submit plans and submission of or any permits required by other public agencies.

The Agency shall cause the City to approve or disapprove the plans, drawings and related documents referred to in Section 304 of this Agreement within the times established in the Schedule of Performance (Attachment No. 3). The Agency shall cause the City to state in writing the reasons for disapproval and the changes which the City requests be made. Such reasons and such changes must be consistent with the Scope of Development (Attachment No. 4) and any items previously approved or deemed approved hereunder by the City. The Developer, upon receipt of a disapproval shall revise such plans, drawings and related documents and resubmit them to the City as soon as reasonably possible after receipt of the notice of disapproval, provided that in no case shall the required changes be inconsistent with the Scope of Development (Attachment No. 4) and any previously approved items. 

5. [§306] Cost of Demolition and Construction of Improvements

The cost of demolition, construction and development of the Site and constructing all improvements thereon shall be borne by the Developer.

6. [§307] Demolition and Construction Schedule

After the conveyance of title to the Site, the Developer shall promptly begin and thereafter diligently prosecute to completion the construction of the improvements and the development of the Site, including demolition of existing vacant residential structure prior to construction. The Developer shall begin and complete all construction and development within the times specified in the Schedule of Performance (Attachment No. 3) or such reasonable extension of said dates as may be granted by the Agency or as provided in Section 604 of this Agreement. The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency.

During the period of construction, but not more frequently than once a month, the Developer shall submit to the Agency a written progress report of the construction when and as requested by the Agency. The report shall be in such form and detail as may reasonably be required by the Agency and shall include a reasonable number of construction photographs taken since the last report submitted by the Developer.

7. [§308] Bodily Injury, Property Damage and Workers’ Compensation Insurance

Prior to the demolition or commencement of construction on the Site or any portion thereof, the Developer shall furnish or cause to be furnished to the Agency duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least ONE MILLION DOLLARS ($1,000,000) for any person, FIVE MILLION DOLLARS ($5,000,000) for any occurrence and FIVE HUNDRED THOUSAND DOLLARS ($500,000) property damage, naming the Agency and the City as additional or coinsureds. The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that any contractor with whom it has contracted for the performance of work on the Site carries workers’ compensation insurance as required by law. The obligations set forth in this Section 308 shall remain in effect only until a Final Certificate of Completion has been issued covering the entire Site as hereinafter provided in Section 322.

8. [§309] City and Other Governmental Agency Permits

Before commencement of demolition, construction or development of any buildings, structures or other work of improvement upon the Site, the Developer shall, at its own expense, secure or cause to be secured any and all permits that may be required by the City or any other governmental agency affected by such demolition, construction, development or work. The Agency shall provide all assistance deemed appropriate by the Agency to the Developer in securing these permits.

9. [§310] Rights of Access

For the purposes of assuring compliance with this Agreement, representatives of the Agency and the City shall have the reasonable right of access to the Site without charges or fees and at normal construction hours during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the improvements. Such representatives of the Agency or the City shall be those who are so identified in writing by the Executive Director of the Agency. The Agency and the City shall indemnify the Developer and hold it harmless from any damage caused or liability arising out of this right to access.

10. [§311] Local, State and Federal Laws

The Developer shall carry out the construction of the improvements in conformity with all applicable laws, including all applicable federal and state labor standards.

11. [§312] Antidiscrimination During Construction

The Developer, for itself and its successors and assigns, agrees that in the construction of the improvements provided for in this Agreement, the Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry or national origin.

B. [§313] Taxes, Assessments, Encumbrances and Liens

The Developer shall pay when due all real estate taxes and assessments assessed and levied on the Site for any period subsequent to conveyance of title to or delivery of possession of the Site. Prior to the issuance of a Certificate of Completion, the Developer shall not place or allow to be placed on the Site any mortgage, trust deed, encumbrance or lien unauthorized by this Agreement. The Developer shall remove or have removed any levy or attachment made on the Site (or any portion thereof), or shall assure the satisfaction thereof, within a reasonable time, but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax, assessment, encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto.

C. [§314] Prohibition Against Transfer of Site, the Buildings or Structures Thereon and Assignment of Agreement

After conveyance of title and prior to the issuance by the Agency of a Partial Certificate of Completion pursuant to Section 322, the Developer shall not, except as expressly permitted by this Agreement, sell, transfer, convey, assign or lease the whole or any part of the Site or the buildings or improvements thereon without the prior written approval of the Agency. This prohibition shall not apply to individual units offered for resale by Developer subsequent to the issuance of the Partial Certificate of Completion for the Site. This prohibition shall not be deemed to prevent the granting of easements or permits to facilitate the development of the Site or to prohibit or restrict the resale of any unit when said improvements are completed.

In the absence of specific written agreement by the Agency, no such transfer, assignment or approval by the Agency shall be deemed to relieve the Developer or any other party from any obligations under this Agreement until completion of development as evidenced by the issuance of a Final Certificate of Completion pursuant to Section 322.

D. [§315] Security Financing; Rights of Holders

1. [§316] No Encumbrances Except Mortgages, Deeds of Trust, Sales and Leases-Back or Other Financing for Development

Notwithstanding Sections 313 and 314 of this Agreement, mortgages, deeds of trust, sales and leases-back or any other form of conveyance required for any reasonable method of financing are permitted before issuance of a Partial Certificate of Completion, but only for the purpose of securing loans of funds to be used for financing the acquisition of the Site, the construction of improvements on the Site and any other expenditures necessary and appropriate to develop the Site under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust, sale and lease-back or other form of conveyance for financing if the Developer proposes to enter into the same before issuance of a Partial Certificate of Completion. The Developer shall not enter into any such conveyance for financing without the prior written approval of the Agency (unless such lender shall be one of the ten (10) largest banking institutions doing business in the State of California, or one of the ten (10) largest insurance lending institutions in the United States qualified to do business in the State of California), which approval the Agency agrees to give if any such conveyance is given to a responsible financial or lending institution or other acceptable person or entity. Such lender shall be deemed approved unless rejected in writing by the Agency within ten (10) days after notice thereof to the Agency by the Developer. In any event, the Developer shall promptly notify the Agency of any mortgage, deed of trust, sale and lease-back or other financing conveyance, encumbrance or lien that has been created or attached thereto prior to completion of the construction of the improvements on the Site whether by voluntary act of the Developer or otherwise. The words “mortgage” and “deed of trust,” as used herein, include all other appropriate modes of financing real estate acquisition, construction and land development.

2. [§317] Holder Not Obligated to Construct Improvements

The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion, nor shall any covenant or any other provision in the grant deed for the Site be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Agreement.

3. [§318] Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure

Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the improvements, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement who has previously made a written request to the Agency therefor. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within ninety (90) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the security interest debt and the lien on its security interest. In the event there is more than one such holder, the right to cure or remedy a breach or default of the Developer under this Section 318 shall be exercised by the holder first in priority or as the holders may otherwise agree among themselves, but there shall be only one exercise of such right to cure and remedy a breach or default of the Developer under this Section 318. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer’s obligations to the Agency by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvements shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency.

4. [§319] Failure of Holder to Complete Improvements

In any case where, six (6) months after default by the Developer in completion of construction of improvements under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon the Site has not exercised the option to construct, or if it has exercised the option and has not proceeded diligently with construction, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If the ownership of the Site has vested in the holder, the Agency, if it so desires, shall be entitled to conveyance of the Site from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following:

a. The unpaid mortgage, deed of trust or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings);

b. All expenses with respect to foreclosure;

c. The net expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site;

d. The costs of any authorized improvements made by such holder; and

e. An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency.

5. [§320] Right of Agency to Cure Mortgage, Deed of Trust or Other Security Interest Default

In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to the Site prior to the completion of development, and the holder has not exercised its option to complete the development, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to mortgages, deeds of trust or other security interests executed for the sole purpose of obtaining funds to purchase and develop the Site as authorized herein.

E. [§321] Right of the Agency to Satisfy Other Liens on the Site After Title Passes

After the conveyance of title and prior to the issuance of a Partial Certificate of Completion for construction and development, and after the Developer has had a reasonable time to challenge, cure or satisfy any liens or encumbrances on the Site, the Agency shall have the right to satisfy any such liens or encumbrances, provided, however, nothing in this Agreement shall require the Developer to pay or make provision for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site to forfeiture or sale.

F. [§322] Certificate of Completion

Promptly after completion of all construction and development to be completed by the Developer upon the Site, the Agency shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer. The Agency may furnish the Developer with partial Certificates of Completion as to individual townhomes in order to permit sale of the townhomes. A Certificate of Completion shall be in such form as to permit it to be recorded in the Office of the County Recorder of Contra Costa County.

A Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of construction as required by this Agreement upon the Site or the applicable portion thereof and of full compliance with the terms hereof as to the Site or applicable portion thereof, including the Marketing and Resale Agreement as more particularly described in the Scope of Development (Attachment No. 4). After issuance of such Final Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site (or portion thereof) covered by said Final Certificate of Completion shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that such party shall be bound by any covenants contained in the deed, lease, mortgage, deed of trust, contract or other instrument of transfer in accordance with the provisions of Sections 401-405 of this Agreement. Except as otherwise provided herein, after the issuance of a Certificate of Completion for the Site (or portion thereof), neither the Agency, the City nor any other person shall have any rights, remedies or controls with respect to the Site (or portion thereof) that it would otherwise have or be entitled to exercise under this Agreement as a result of a default in or breach of any provision of this Agreement, and the respective rights and obligations of the parties with reference to the Site (or portion thereof) shall be as set forth in the grant deed of the Site from the Agency to the Developer, which shall be in accordance with the provisions of Sections 401-405 of this Agreement.

The Agency shall not unreasonably withhold any Certificate of Completion. If the Agency refuses or fails to furnish a Certificate of Completion for the Site after written request from the Developer, the Agency shall, within ten (10) days after receipt of such written request, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain the Agency’s opinion of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for landscaping, the Agency will issue its Certificate of Completion upon the posting of a bond by the Developer with the Agency in an amount representing a fair value of the work not yet completed. If the Agency shall have failed to provide such written statement within said ten (10) day period after such Agency meeting, the Developer shall be deemed entitled to the Certificate of Completion.

Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a mortgage securing money loaned to finance the improvements or any part thereof. Such Certificate of Completion is not notice of completion as referred to in California Civil Code Section 3093.


IV. [§400] USE OF THE SITE

A. [§401] Uses

The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest that during construction and thereafter, the Developer and its successors and assignees shall devote the Site to the uses specified in the Redevelopment Plan, the grant deed and this Agreement for the periods of time specified therein. The foregoing covenant shall run with the land. 

B. [§402] Obligation to Refrain From Discrimination

The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. The foregoing covenants shall run with the land.

C. [§403] Form of Nondiscrimination and Nonsegregation Clauses

The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of race, color, creed, religion, sex, marital status, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:

1. In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises herein conveyed, nor shall the grantee, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”

2. In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:

That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased, nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the premises herein leased.”

3. In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises.”

D. [§404] Effect and Duration of Covenants

Except as otherwise provided, the covenants contained in this Agreement and the grant deed shall remain in effect until July 9, 2031 (the termination date of the Redevelopment Plan). The covenants against discrimination shall remain in effect in perpetuity. The covenants established in this Agreement and the grant deed shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City and any successor in interest to the Site or any part thereof.

The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. This Agreement and the covenants shall run in favor of the Agency without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site, any parcel or subparcel, or in the Project Area. The Agency shall have the right, if this Agreement or the covenants are breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and the covenants may be entitled.

E. [§405] Rights of Access – Public Improvements and Facilities

The Agency, for itself and for the City and other public agencies, at their sole risk and expense, reserves the right to enter the Site or any part thereof at all reasonable times and with as little interference as possible for the purposes of construction, reconstruction, maintenance, repair or service of any public improvements or public facilities located on the Site. Any damage or injury to the Site resulting from such entry shall be promptly repaired at the sole expense of the public agency responsible for the entry.


V. [§500] DEFAULTS, REMEDIES AND TERMINATION

A. [§501] Defaults – General

Subject to the extensions of time set forth in Section 604, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default.

The injured party shall give written notice of default to the party in default specifying the default complained of by the injured party. Except as required to protect against further damages and except as otherwise expressly provided in Sections 507 and 508 of this Agreement, the injured party may not institute proceedings against the party in default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default.

Except as otherwise expressly provided in this Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies or deprive such party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies.

B. [§502] Legal Actions

1. [§503] Institution of Legal Actions

In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, or recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Contra Costa, State of California, in an appropriate municipal court in that county or in the appropriate Federal District Court in the State of California.

2. [§504] Applicable Law

The laws of the State of California shall govern the interpretation and enforcement of this Agreement.

3. [§505] Acceptance of Service of Process

In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director of the Agency or in such other manner as may be provided by law.

In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the Developer or in such other manner as may be provided by law and shall be valid whether made within or without the State of California.

C. [§506] Rights and Remedies are Cumulative

Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the other party.

D. [§507] Damages

If the Developer or the Agency defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured or commenced to be cured by the defaulting party within thirty (30) days after service of the notice of default, the defaulting party shall be liable to the other party for any damages caused by such default.

E. [§508] Specific Performance

If the Developer or the Agency defaults under any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured by the defaulting party within thirty (30) days of service of the notice of default, the nondefaulting party, at its option, may institute an action for specific performance of the terms of this Agreement.

F. [§509] Remedies and Rights of Termination Prior to Conveyance of the Site to the Developer

1. [§510] Termination by the Developer

In the event that prior to conveyance of title to the Site to the Developer:

a. The Agency does not tender conveyance of the Site or possession thereof in the manner and condition and by the date provided in this Agreement, and any such failure is not cured within thirty (30) days after written demand by the Developer; or

b. Within the time provided for in Section 205, Developer disapproves the conditions of title and Agency is unable to eliminate exceptions; or

c. Within the time provided for in the Schedule of Performance (Attachment No. 3), Developer fails to obtain financing for acquisition of the Site.

then this Agreement may, at the option of the Developer, be terminated by written notice thereof to the Agency. Upon such termination, neither the Agency nor the Developer shall have any further rights against or liability to the other under this Agreement, and the Agency shall return the Deposit to the Developer as provided in Section 108.

2. [§511] Termination by the Agency

In the event that prior to conveyance of title to the Site to the Developer:

a. The Developer transfers or assigns or attempts to transfer or assign this Agreement or any rights herein or in the Site or the buildings or improvements thereon in violation of this Agreement; or

b. There is any significant change in the ownership or identity of the Developer or the parties in control of the Developer or the degree thereof contrary to the provisions of Section 107 hereof; or

c. The Developer does not submit evidence that it has the necessary equity capital and mortgage financing for acquisition and development of the Site in satisfactory form and in the manner and by the date provided in this Agreement; or

d. The Developer fails to submit to the City construction plans, drawings and related documents as required by this Agreement; or

e. The Developer does not pay the Purchase Price and take title to the Site under tender of conveyance by the Agency pursuant to this Agreement; or

f. The Developer is in breach or default with respect to any other obligation of the Developer under this Agreement; and

g. If any default or failure referred to in subdivision a., b., d., or e. of this section shall not be cured within thirty (30) days after the date of written demand by the Agency;

then this Agreement, and any rights of the Developer or any assignee or transferee in this Agreement pertaining thereto or arising therefrom with respect to the Agency, may, at the option of the Agency, be terminated by the Agency by written notice thereof to the Developer.

In the event of termination pursuant to subparagraph c. of this Section 511, neither the Agency nor the Developer shall have any further rights against or liability to the other under this Agreement, and the Agency shall return the Deposit to the Developer as provided in Section 108.

IN THE EVENT OF TERMINATION UNDER SUBPARAGRAPH a., b., d., or e. OF THIS SECTION 511, THE DEPOSIT MAY BE RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES AND AS ITS PROPERTY WITHOUT ANY DEDUCTION, OFFSET OR RECOUPMENT WHATSOEVER. IF THE DEVELOPER SHOULD DEFAULT UPON ITS OBLIGATIONS, MAKING IT NECESSARY FOR THE AGENCY TO TERMINATE THIS AGREEMENT AND TO PROCURE ANOTHER PARTY OR PARTIES TO REDEVELOP THE SITE IN SUBSTANTIALLY THE MANNER AND WITHIN THE PERIOD THAT SUCH SITE WOULD BE REDEVELOPED UNDER THE TERMS OF THIS AGREEMENT, THEN THE DAMAGES SUFFERED BY THE AGENCY BY REASON THEREOF WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE CONSIDERATION THAT SUCH PARTY WOULD PAY FOR THE SITE; THE EXPENSES OF CONTINUING THE OWNERSHIP AND CONTROL OF THE SITE; OF INTERESTING PARTIES AND NEGOTIATING WITH SUCH PARTIES; POSTPONEMENT OF TAX REVENUES THEREFROM TO THE COMMUNITY; AND THE FAILURE OF THE AGENCY TO EFFECT ITS PURPOSES AND OBJECTIVES WITHIN A REASONABLE TIME, RESULTING IN ADDITIONAL IMMEASURABLE DAMAGE AND LOSS TO THE AGENCY AND THE COMMUNITY. IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM, THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE DEPOSIT HELD BY THE AGENCY AT THE TIME OF THE DEFAULT OF THE DEVELOPER, AND THE AMOUNT OF SUCH DEPOSIT SHALL BE PAID TO THE AGENCY UPON ANY SUCH OCCURRENCE AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY. IN THE EVENT THAT THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW.

THE DEVELOPER AND THE AGENCY SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES HERE:

By: 

By: 

G. [§512] Option to Repurchase, Reenter and Repossess

The Agency shall have the right at its option to repurchase, the Site with all improvements thereon, if after conveyance of title to the Site and prior to the issuance of the Certificate of Completion therefor, the Developer shall:

1. Fail to commence construction of approved improvements on the Site by the time set forth in the Schedule of Performance (Attachment No. 3), for any reason whatsoever; for purposes of this provision, the Developer shall be deemed to “commence construction” when and only when the Developer has commenced rough grading on the Site pursuant to a permit issued by the City for the construction of the improvements provided for herein, the final plans and specifications for which had been approved by the City; or

2. Once construction has been commenced in accordance with subparagraph 1 above, fail to diligently prosecute construction of the improvements through completion, where such failure has not been cured within three (3) months after written notice thereof from the Agency; or

3. Abandon or substantially suspend construction of the improvements for a period of three (3) months after written notice of such abandonment or suspension from the Agency; or

4. Without the prior written consent of Agency, directly or indirectly, voluntarily or involuntarily sell, assign, transfer, dispose of or further encumber or agree to sell, assign, transfer, dispose of or further encumber or suffer to exist any other lien against all or any portion of or any interest in the Site, except for any sale or transfer that is expressly permitted by the terms of this Agreement. For the purpose of this paragraph, the terms “sell” and “transfer” shall include, in addition to the common and ordinary meaning of those terms and without limiting their generality, transfers made to subsidiary or affiliated entities, and any “change in ownership” as that term is used from time to time in California real property taxation law, irrespective of the fact that the Site may be exempt from such transaction during the period when owned by Agency.

This option shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit:

1. Any mortgage, deed of trust or other security instrument permitted by this Agreement; or

2. Any rights or interests provided in this Agreement for the protection of the holder of such mortgages, deeds of trust or other security instruments.

To exercise its right to repurchase, reenter and take possession with respect to the Site, the Agency shall pay to the Developer in cash an amount equal to:

1. The cash Purchase Price for the Site paid by the Developer; plus

2. The costs actually incurred by the Developer for on-site labor and materials for the construction of the improvements existing on the Site at the time of the repurchase, reentry and repossession, exclusive of amounts financed; less

3. Any gains or income withdrawn or made by the Developer from the Site or the improvements thereon; and less

4. The amount of liens on the Site, and any unpaid assessments against the Site.

H. [§513] Right of Reverter

The Agency shall have the additional right, at its option, to terminate the estate conveyed to the Developer, to reenter and take possession of the Site with all improvements thereon and to revest in the Agency the estate theretofore conveyed to the Developer, if after conveyance of title to the Site and prior to issuance of the Certificate of Completion, the Developer shall:

1. Fail to commence construction of approved improvements on the Site by the time set forth in the Schedule of Performance (Attachment No. 3), for any reason whatsoever; for purposes of this provision, the Developer shall be deemed to “commence construction” when and only when the Developer has commenced rough grading on the Site pursuant to a permit issued by the City for the construction of the improvements provided for herein, the final plans and specifications for which had been approved by the City; or

2. Once construction has been commenced in accordance with subparagraph 1 above, fail to diligently prosecute construction of the improvements through completion, where such failure has not been cured within three (3) months after written notice thereof from the Agency; or

3. Abandon or substantially suspend construction of the improvements for a period of three (3) months after written notice of such abandonment or suspension from the Agency; or

4. Without the prior written consent of Agency, directly or indirectly, voluntarily or involuntarily sell, assign, transfer, dispose of or further encumber or agree to sell, assign, transfer, dispose of or further encumber or suffer to exist any other lien against all or any portion of or any interest in the Site, except for any sale or transfer that is expressly permitted by the terms of this Agreement. For the purpose of this paragraph, the terms “sell” and “transfer” shall include, in addition to the common and ordinary meaning of those terms and without limiting their generality, transfers made to subsidiary or affiliated entities, and any “change in ownership” as that term is used from time to time in California real property taxation law, irrespective of the fact that the Site may be exempt from such transaction during the period when owned by Agency.

The interest created pursuant to this Section 513 shall be a “Power of Termination” as defined in California Civil Code Section 885.010, and shall be separate and distinct from Agency’s option to repurchase the Site under the same or similar conditions specified in Section 512 above. The Agency’s Power of termination shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit:

1. Any mortgage, deed of trust or other security instrument permitted by this Agreement; or

2. Any rights or interest provided in this Agreement for the protection of the holder of such mortgages, deeds of trust or other security instruments.

The grant deed shall create the Agency’s Power of Termination upon the terms and conditions of this Section 513.

Upon the revesting in the Agency of title to the Site or any part thereof as provided in this Section 513, the Agency shall, pursuant to its responsibilities under state law, use its best efforts to resell the Site or part thereof as soon and in such manner as the Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the improvements, or such other improvements in their stead, as shall be satisfactory to the Agency and in accordance with the uses specified for the Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the proceeds thereof shall be applied:

1. First, to reimburse the Agency on its own behalf or on behalf of the City for all costs and expenses incurred by the Agency, including, but not limited to, salaries to personnel in connection with the recapture, management and resale of the Site or part thereof (but less any income derived by the Agency from the Site or part thereof in connection with such management); all taxes, assessments and water and sewer charges with respect to the Site or part thereof (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership, then such taxes, assessments or charges [as determined by the County assessing official] as would have been payable if the Site were not so exempt); any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site or part thereof; and any amounts otherwise owing the Agency by the Developer; and

2. Second, to reimburse the Developer the sum of the following: (a) the cash Purchase Price for the Site paid by the Developer; plus (b) any cash payments previously made by the Developer for the development of the Site and for the improvements existing on the Site at the time of the reentry and repossession, exclusive of amounts financed; less (c) any gains or income withdrawn or made by the Developer from the Site or the improvements thereon; and less (d) the amount of any unpaid assessments against the Site.

Any balance remaining after such reimbursements shall be retained by the Agency as its property.

As set forth above, this section is intended to create and reserve in the Agency a “Power of Termination “under California law, and not a forfeiture prohibited by California law. To the extent that a court of competent jurisdiction determines that this Section does involve a forfeiture, however, the terms and provisions of this Section shall be strictly construed to minimize or eliminate any such forfeiture in light of the fact that the Agency will convey the Site to the Developer for development, and not for speculation in undeveloped land.

VI. [§600] GENERAL PROVISIONS

A. [§601] Notices, Demands and Communications Between the Parties

Formal notices, demands and communications between the Agency and the Developer shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer as set forth in Section 105 hereof. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail.

B. [§602] Conflicts of Interest

No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement that affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.

The Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement.

C. [§603] Nonliability of Agency Officials and Employees

No member, official or employee of the Agency shall be personally liable to the Developer in the event of any default or breach by the Agency or for any amount that may become due to the Developer or on any obligations under the terms of this Agreement.

D. [§604] Enforced Delay: Extension of Times of Performance

In addition to the specific provisions of this Agreement, performance by any party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts of another party; acts or the failure to act of any public or governmental agency or entity (except that acts or the failure to act of the Agency shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other parties more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by the Agency and the Developer.

E. [§605] Inspection of Books and Records

The Agency has the right, upon not less than seventy-two (72) hours notice, at all reasonable times, to inspect the books and records of the Developer pertaining to the Site as pertinent to the purposes of this Agreement.

The Developer also has the right, upon not less than seventy-two (72) hours notice, at all reasonable times, to inspect the books and records of the Agency pertaining to the Site as pertinent to the purposes of this Agreement.

F. [§606] Plans and Data

Where the Developer does not proceed with the purchase and development of the Site, and when this Agreement is terminated pursuant to Section 511 hereof for any reason, the Developer shall deliver to the Agency and City any and all plans and data concerning the Site, and the Agency or any other person or entity designated by the Agency shall be free to use such plans and data, including plans and data previously delivered to the Agency and City, for any reason whatsoever without cost or liability therefor to the Developer or any other person.

VII. [§700] SPECIAL PROVISIONS

A. [§701] Amendment of Redevelopment Plan

Pursuant to provisions of the Redevelopment Plan for modification or amendment thereof, the Agency agrees that no amendment that changes the uses or development permitted on the Site or changes the restrictions or controls that apply to the Site or otherwise directly affect the use of the Site shall be made or become effective without the prior written consent of the Developer. Amendments to the Redevelopment Plan applying to other property in the Project Area shall not require the consent of the Developer.

B. [§702] Submission of Documents to the Agency and City for Approval

Whenever this Agreement requires the Developer to submit plans, drawings or other documents to the Agency and City for approval, which shall be deemed approved if not acted on by the Agency and City within a specified time, said plans, drawings or other documents shall be accompanied by a letter stating that they are being submitted and will be deemed approved unless rejected by the Agency and City within the stated time. If there is no time specified herein for such Agency or City action, the Developer may submit a letter requiring Agency or City approval or rejection of documents within thirty (30) days after submission to the Agency and City or such documents shall be deemed approved.

C. [§703] Amendments to this Agreement

The Developer and the Agency agree to mutually consider reasonable requests for amendments to this Agreement that may be made by any of the parties hereto, lending institutions or bond counsel or financial consultants to the Agency, provided such requests are consistent with this Agreement and would not substantially alter the basic business terms included herein.

VIII. [§800] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS

This Agreement is executed in four (4) duplicate originals, each of which is deemed to be an original. This Agreement comprises pages 1 through 28, inclusive, and Attachment Nos. 1 through 5, attached hereto and incorporated herein by reference, all of which constitute the entire understanding and agreement of the parties.

This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof.

All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency and the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer.

IX. [§900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY

This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within forty-five (45) days after the date of signature by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to further extensions of time for the authorization, execution and delivery of this Agreement. The effective date of this Agreement shall be the date when this Agreement has been signed by the Agency.

, 2002 REDEVELOPMENT AGENCY OF THE
CITY OF BRENTWOOD

By: 
John Stevenson, Executive Director

By: 
Karen Diaz, Secretary

“AGENCY”


, 2002 
ROBERT H. SHERDEL, doing business as RHS CONSTRUCTION COMPANY

“DEVELOPER”

ACKNOWLEDGEMENTS

ATTACHMENT NO. 1

MAP OF THE SITE


[To Be Inserted.]







































ATTACHMENT NO. 2
LEGAL DESCRIPTION OF THE SITE





The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:

PORTION OF THE SOUTHWEST ¼ OF SECTION 7, TOWNSHIP 1 NORTH, RANGE 3 EAST, MOUNT DIABLO BASE AND MERIDIAN, AS THE SAID SECTION IS SHOWN ON THE MAP OF RANCHO LOS MEDANOS PREPARED BY ELAM C. BROWN, SURVEYOR, DATE JANUARY 11, 1912, ACCOMPANYING AND FORMING A PART OF THE FINAL REPORT OF THE REFEREES IN PARTITION OF THE ACTION ENTITLED CHARLES E. STANFORD, PLAINTIFF VS. T.I. BERGIN, ET AL, DEFENDANTS, NO. 2892, SUPERIOR COURT, CONTRA COSTA COUNTY, CALIFORNIA, A CERTIFIED COPY OF SAID MAP HAVING BEEN FILED JANUARY 9, 1913 IN THE OFFICE OF THE RECORDER OF THE COUNTY OF CONTRA COSTA, MAP BOOK 9, PAGE 202, DESCRIBED AS FOLLOWS:


BEGINNING ON THE SOUTH LINE OF SAID SECTION 7 AT THE EAST LINE OF THE PARCEL OF LAND DESCRIBED IN THE DEED TO RUSSELL A. PARTRIDGE, ET US, RECORDED SEPTEMBER 29, 1947, BOOK 1133, OFFICIAL RECORDS, PAGE 320; THENCE FROM SAID POINT OF BEGINNING NORTH 0° 30’ EAST ALONG SAID EAST LINE, 225.6 FEET TO THE NORTHEAST CORNER OF SAID PARTRIDGE PARCEL, 1133 OFFICIAL RECORDS 320; THENCE NORTH 89° 42’ EAST TO THE EAST LINE OF THE PARCEL OF LAND DESCRIBED AS PARCEL TWO IN THE DEED TO MYRTLE L. DAVIS, RECORDED AUGUST 4, 1950, BOOK 1608, OFFICIAL RECORDS, PAGE 320, THENCE SOUTH 0° 32’ WEST ALONG SAID EAST LINE OF THE SOUTH LINE OF SAID SECTION 7; THENCE SOUTH 89° 42’ WEST ALONG SAID SOUTH LINE, 175.8 FEET TO THE POINT OF BEGINNING.

EXCEPTING THEREFROM:

THE 33 FEET IN WIDTH STRIP OF LAND AS RESERVED IN THE DEED FROM KIRKMAN NURSERIES TO C.M. SMITH DATED FEBRUARY 6, 1924 AND RECORDED APRIL 21, 1925 IN VOLUME 490 OF DEEDS, AT PAGE 173.


ASSESSOR’S PARCEL NUMBER: 016-150-002





ATTACHMENT NO. 3

SCHEDULE OF PERFORMANCE




ACTION
DATE
1. Execution and Delivery of Agreement by Developer. The Developer shall execute and deliver this Agreement to the Agency.
Not later than November 1, 2002
2. Deposit. The Developer shall deliver the Deposit to the Agency. (§ 108.)
Upon execution of this Agreement, but not later than November 8, 2002.

3. Execution of Agreement by Agency. The Agency and City Council shall hold a public hearing to authorize execution of this Agreement by the Agency, and if so authorized, the Agency shall execute and deliver this Agreement to the Developer. (§ 900.)
Within 45 days after the Developer executes this Agreement and delivers it to the Agency.
4. Opening of Escrow. The Agency shall open an escrow for conveyance of the Site to the Developer. (§ 202.)
Within 30 days after execution of this Agreement by the Agency.
5. Condition of Title. The Developer shall notify Agency of approval or disapproval of the conditions of title. (§ 205.)
Within 15 days of receipt from Agency of the Preliminary Title Report.
6. Submission – Evidence of Equity Capital and Mortgage Financing. The Developer shall submit to the Agency for review and approval evidence of equity capital and mortgage financing necessary for acquisition and development of the Site. (§ 213.)
Within 30 days after the opening of escrow but, in any event, prior to the date set forth herein for the close of escrow.
7. Approval – Evidence of Equity Capital and Mortgage Financing. The Agency shall approve or disapprove the Developer’s evidence of equity capital and mortgage financing. (§ 213.)
Within 30 days after receipt thereof by the Agency.
8. Deposit of Purchase Price and Other Required Sums. The Developer shall deposit the Purchase Price and other required sums into escrow. (§ 207.)
Prior to the date set forth herein for the close of escrow.
9. Deposit of Grant Deed. The Agency shall deposit the grant deed into escrow. (§ 206.)
Prior to the date set forth herein for the close of escrow.
10. Submission – Basic Concept Drawings. The Developer shall prepare and submit to the City for review and approval Basic Concept Drawings and related documents containing the overall plan for development of the Site. (§ 303.)
Completed.
11. Approval – Basic Concept Drawings. The City shall approve or disapprove the Developer’s Basic Concept Drawings and related documents. (§ 303.)
Completed.
12. Submission – Final Construction Drawings and Landscaping and Grading Plans. The Developer shall prepare and submit to the Agency and City for review and approval by City Final Construction Drawings and Landscaping and Grading Plans for the Site. (§ 304.)
Within 60 days after execution of this Agreement by the Agency.
13. Approval – Final Construction Drawings and Landscaping and Grading Plans. The City shall approve or disapprove the Developer’s Final Construction Drawings and Landscaping and Grading Plans. (§ 305.)
Within 30 days after receipt thereof by the City.
14. Close of Escrow. The Agency shall convey title to the Site to the Developer, and the Developer shall accept such conveyance. (§ 203.)
Within 30 days after approval by the City of Final Construction Drawings and Landscaping and Grading Plans, but in no event later than March 12, 2003.

15. Submission – Certificates of Insurance. The Developer shall furnish to the Agency duplicate originals or appropriate certificates of bodily injury and property damage insurance policies. (§ 308.)
Prior to the date set forth herein for the commencement of construction of the Developer’s improvements on the Site.
16. Governmental Permits. The Developer shall obtain any and all permits required by the City or any other governmental agency. (§ 309.)
Prior to the date set forth herein for the commencement of construction of the Developer’s improvements on the Site.
17. Commencement of Construction of Developer’s Improvements. The Developer shall commence construction of the improvements to be constructed on the Site. (§ 307.)
Within 30 days after conveyance of the Site by the Agency to the Developer.
18. Completion of Construction of Developer’s Improvements. The Developer shall complete construction of the improvements to be constructed on the Site. (Section 307)
Within 12 months after commencement thereof by the Developer.
19. Issuance – Partial Certificate of Completion. The Agency shall furnish the Developer with a Partial Certificate of Completion. (§ 322.)
Promptly after completion of all construction required to be completed by the Developer on the applicable portion of the Site and upon written request therefor by the Developer.

20. Marketing and Resale Program. Developer shall develop and submit to Agency for approval a Marketing and Resale Program for the sale of the townhomes to individuals. (Attachment No. 4) Within 30 days after approval by the City of the Final Construction Drawings and Landscaping and Grading Plans. 

21. Issuance – Final Certificate of Completion. The Agency shall furnish the Developer with a Final Certificate of Completion. (§ 322.) Promptly after conveyance of all units by Developer to third-party purchasers and upon written request therefor by the Developer.


ATTACHMENT NO. 4

SCOPE OF DEVELOPMENT




I. PRIVATE DEVELOPMENT

A. General

The Developer agrees that the Site shall be developed and improved in accordance with the provisions of this Agreement and the plans, drawings and related documents approved by the Agency pursuant hereto. The Developer and its supervising architect, engineer and contractor shall work with City staff to coordinate the overall design, architecture and color of the improvements on the Site.

B. Developer’s Improvements

The Developer shall construct, or cause to be constructed, on the Site nine (9) single-family townhomes consisting of approximately 1,429 square feet each. On-Site Improvements shall include, but not be limited to, private driveways, street lights, internal walkways, landscaping, extended water and sewer lines from existing street laterals, on-site storm drainage system and sidewalk, curb and gutters along Sycamore Avenue and Barbara Street frontages (the “Developer’s Improvements”). Developer’s Improvements shall be approved by and consistent with the Planning Commission’s conditions of approval as set forth in Planning Commission Resolution Numbers 02-41, 02-42, and 02-43, passed and adopted on July 2, 2002.

C. Architecture and Design

The Developer’s Improvements shall be of high architectural quality, shall be well landscaped and shall be effectively and aesthetically designed. The shape, scale of volume, exterior design and exterior finish of the building must be consonant with, visually related to, physically related to and an enhancement of adjacent buildings within the Project Area. The Developer’s plans submitted to the City shall describe in detail the architectural character intended for the Developer’s improvements. Developer’s Improvements shall be approved by and consistent with the Planning Commission’s conditions of approval as set forth in Planning Commission Resolution Numbers 02-41, 02-42, 02-43, passed and adopted on July 2, 2002.

D. Landscaping

Landscaping shall embellish all open spaces upon the Site to integrate the Developer’s Improvements with adjacent sites within the Project Area. Landscaping includes such materials as paving, trees, shrubs and other plant materials, landscape containers, topsoil preparation, automatic irrigation and landscape and pedestrian lighting. Landscaping shall carry out the objectives and principles of the Agency’s desire to accomplish a high quality aesthetic environment.

E. Covenants, Conditions and Restriction.

The Developer shall cause to be formed a Homeowner’s Association and a street lighting and landscape maintenance district as approved by and consistent with the Planning Commission’s conditions of approval as set forth in Planning Commission Resolution Numbers 02-41, 02-42, and 02-43, passed and adopted on July 2, 2002.

F. Applicable Codes

The Developer’s Improvements shall be constructed in accordance with the Uniform Building Code (with City modifications) and the Municipal Code.

II. SITE CLEARANCE AND PREPARATION

The Developer shall perform, or cause to be performed, at its sole cost and expense, the following work:

A. On-Site Demolition and Clearance

1. On the Site, demolish or salvage, clear, grub and remove (as may be needed and called for in the approved plans) all on-site buildings, pavements, walks, curbs, gutters and other improvements; and

2. Remove, plug and/or crush in place utilities, such as storm sewers, sanitary sewers, water systems, electrical overhead and underground systems and telephone and gas systems located on the Site, as may be required following any necessary relocation of the utilities.

B. Compaction, Finish Grading and Site Work

The Developer shall compact, finish grade and do such site preparation as is necessary for the construction of the Developer’s improvements on the Site.

III. PUBLIC IMPROVEMENTS

The Agency is not providing any public improvements on the Site.

IV. CONVEYANCE OF UNITS BY DEVELOPER

Upon completion of each unit, Developer shall obtain a Partial Certificate of Completion from Agency. Each Partial Certificate of Completion shall release that unit from this Agreement and make available that unit for resale by Developer to a third-party purchaser. Upon conveyance of all units, Developer shall be entitled to a Final Certificate of Completion for the entire Site.




V. Marketing and resale program

To the extent permitted by law, Developer shall design a marketing and resale program that gives preferences to persons and households who meet the following criteria: (1) Persons who live and work in the City of Brentwood; (2) Persons who live in the City of Brentwood; and (3) Persons who work in the City of Brentwood. The units must be owner-occupied. The marketing and resale program shall remain in effect for each individual unit for a period of six (6) months from the time of issuance of the Partial Certificate of Completion issued for that unit. If Developer is unable to sell the unit after this six month period, the unit may be sold to the general public. The marketing and resale program shall be subject to the approval of the Agency.

Developer shall provide monthly reports to Agency describing marketing efforts conducted during prior month, including number of units eligible for purchase, number of applications received listed by preference category, number of any sales closed listed by preference category and the date which each unit became eligible for purchase by the general public.


EXHIBIT A

BASIC CONCEPT PLANS

[TO BE INSERTED] 
ATTACHMENT NO. 5

FORM OF GRANT DEED




RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

REDEVELOPMENT AGENCY OF THE
CITY OF BRENTWOOD
Attn: Executive Director
150 City Park Way
Brentwood, California 94513


GRANT DEED


For valuable consideration, the receipt of which is hereby acknowledged,

THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body, corporate and politic, of the State of California (herein called “Grantor”), acting to carry out the Merged Area Redevelopment Plan (herein called “Merged Area Redevelopment Plan”) for the Merged Area Redevelopment Project, under the Community Redevelopment Law of the State of California, hereby grants to ROBERT H. SHERDEL, an individual, doing business as RHS CONSTRUCTION COMPANY (herein called “Grantee”), the real property (the “Site”) legally described in the document attached hereto, labeled Exhibit A, and incorporated herein by this reference.

1. The Site is conveyed subject to the Merged Area Redevelopment Plan and pursuant to a Disposition and Development Agreement (the “DDA”) entered into by and between the Grantor and the Grantee and dated , 2002. The Site is also conveyed subject to easements of record.

2. The Grantee hereby covenants and agrees, for itself and its successors and assigns, that during construction and thereafter, the Grantee shall not use the Site for other than the uses specified in the Redevelopment Plan.

3. Prior to the issuance of a Certificate of Completion by the Grantor as provided in Section 322 of the DDA, the Grantee shall not, except as permitted by the DDA, sell, transfer, convey, assign or lease the whole or any part of the Site without the prior written approval of the Grantor. This prohibition shall not apply to the Units offered for resale by Developer subsequent to the issuance of the Certificate of Completion with respect to the improvements upon the Site. This prohibition shall not be deemed to prevent the granting of easements or permits to facilitate the development of the Site or to prohibit or restrict the resale of any Units when said improvements are completed.

4. Option To Repurchase. Grantee hereby grants to Grantor the option to repurchase the Site hereby conveyed and all improvements subsequently constructed thereon upon the terms and provisions more fully set forth in Section 512 of the DDA, which provisions are incorporated herein by this reference thereto. As more fully provided in such Section 512:

a. The term of the option shall commence upon the recordation of this Grant Deed and shall continue until the date a Certificate of Completion of construction upon the Site has been issued.

b. The option shall be exercisable by Grantor in each and every one of the following circumstances:

(1) Grantee’s failure to submit, construction plans, drawings and related documents and obtain all other approvals required for the development of the Site as required by the DDA, where such failure has not been cured within thirty (30) days after the date of written demand by the Grantor;

(2) Grantee’s failure to commence construction of approved improvements on the Site by the date set forth in the Schedule of Performance, for any reason whatsoever. For purposes of this provision, Grantee shall be deemed to “commence construction” when and only when Grantee has commenced rough grading on the Site pursuant to a permit issued by the City for the construction of nine (9) single-family townhomes consisting of approximately 1,429 square feet, the final plans and specifications for which had been approved by Grantor pursuant to the process described in the DDA.

(3) Once construction has been commenced in accordance with subparagraph 4(b)(2) above, the abandonment or substantial suspension of construction by Grantee, or Grantee’s failure to diligently prosecute construction of the office building and related improvements through completion, as required by the DDA, where such abandonment, suspension or failure has not been cured within three (3) months after written notice thereof from the Grantor.

(4) If, at any time, Grantee shall, without the prior written consent of Grantor, directly or indirectly, voluntarily or involuntarily sell, assign, transfer, dispose of or further encumber or agree to sell, assign, transfer, dispose of or further encumber or suffer to exist any other lien against all or any portion of or any interest in the Site. For the purpose of this paragraph, the terms “sell” and “transfer” shall include, in addition to the common and ordinary meaning of those terms and without limiting their generality, transfers made to subsidiary or affiliated entities, and any “change in ownership” as that term is used from time to time in California real property taxation law, irrespective of the fact that the Site may be exempt from such transaction during the period when owned by Grantor.

c. Grantor’s option shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit:

(1) Any mortgage, deed of trust or other security instrument permitted by the DDA; or

(2) Any rights or interests provided in the DDA for the protection of the holder of such mortgages, deeds of trust or other security instruments.

5. Conditions Subsequent; Power of Termination; Right of Reentry. Each of the provisions of subsections 5(a)(1) through 5(a)(4) below is expressly declared to be a condition subsequent for the benefit of Grantor. Subject to the provisions of Section 513 of the DDA, in the event any such condition should occur prior to the issuance of a Certificate of Completion by Grantor, Grantor shall have the power to terminate the fee simple estate conveyed by this deed, and to reenter and take possession and title to the Site, including without limitation, all improvements thereon. The interest created in Grantor by this paragraph 5 is a “Power of Termination” as defined in California Civil Code Section 885.010, and is separate and distinct from Grantor’s option to repurchase the Site under the same or similar conditions specified in paragraph 4 above.

a. Grantor shall have the right to exercise its “Power of Termination” in each and every one of the following circumstances:

(1) Grantee’s failure to submit construction plans, drawings and related documents and obtain all other approvals required for the development of the Site as required by the DDA, where such failure has not been cured within thirty (30) days after the date of written demand by the Grantor;

(2) Grantee’s failure to commence construction of approved improvements on the Site by the date set forth in the Schedule of Performance, for any reason whatsoever. For purposes of this provision, Grantee shall be deemed to “commence construction” when and only when Grantee has commenced rough grading on the Site pursuant to a permit issued by the City for the construction of nine (9) single-family townhomes consisting of approximately 1,429 square feet each, the final plans and specifications for which had been approved by Grantor pursuant to the process described in the DDA.

(3) Once construction has been commenced in accordance with subparagraph 5(a)(2) above, the abandonment or substantial suspension of construction by Grantee, or Grantee’s failure to diligently prosecute construction of the residential units and related improvements through completion, as required by the DDA, where such abandonment, suspension or failure has not been cured within three (3) months after written notice thereof from the Grantor.

(4) If, at any time, Grantee shall, without the prior written consent of Grantor, directly or indirectly, voluntarily or involuntarily sell, assign, transfer, dispose of or further encumber or agree to sell, assign, transfer, dispose of or further encumber or suffer to exist any other lien against all or any portion of or any interest in the Site, except those units conveyed to third-party purchasers subsequent to the issuance of a Certificate of Completion. For the purpose of this paragraph, the terms “sell” and “transfer” shall include, in addition to the common and ordinary meaning of those terms and without limiting their generality, transfers made to subsidiary or affiliated entities, and any “change in ownership” as that term is used from time to time in California real property taxation law, irrespective of the fact that the Site may be exempt from such transaction during the period when owned by Grantor.

b. The “Power of Termination” contained in this Section 5 shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit:

(1) Any mortgage, deed of trust or other security instrument permitted by the DDA;

(2) Any rights or interests provided in the DDA for the protection of the holder of such mortgages, deeds of trust or other security instruments.

6. The Grantee covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Grantee itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Site.

All deeds, leases or contracts made relative to the Site, the improvements thereon or any part thereof shall contain or be subject to substantially the following nondiscrimination clauses:

a. In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises herein conveyed, nor shall the grantee, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”

b. In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:

That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased, nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased.”

c. In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises.”

7. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted by the DDA, provided, however, that any successor of Grantee to the Site shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such successor’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise.

8. Except as otherwise provided, the covenants contained in paragraph 2 of this Grant Deed shall remain in effect until July 9, 2031 (the termination date of the North Brentwood Redevelopment Plan). The covenants against discrimination contained in paragraph 6 of this Grant Deed shall remain in perpetuity. The covenants contained in paragraphs 3, 4, and 5 shall remain in effect until issuance of a Certificate of Completion pursuant to Section 323 of the DDA.

9. The covenants contained in paragraphs 2, 3, 4, 5, and 6 of this Grant Deed shall be binding for the benefit of the Grantor, its successors and assigns, the City of Brentwood and any successor in interest to the Site or any part thereof, and such covenants shall run in favor of the Grantor and such aforementioned parties for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. The Grantor and such aforementioned parties, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor, its successors and such aforementioned parties.

10. In the event of any express conflict between this Grant Deed or the DDA, the provisions of this Grant Deed shall control.

11. Any amendments to the Merged Area Redevelopment Plan that change the uses or development permitted on the Site or change the restrictions or controls that apply to the Site or otherwise affect the Site shall require the written consent of the Grantee. Amendments to the Merged Area Redevelopment Plan applying to other property in the Project Area shall not require the consent of the Grantee.


IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized this day of , 2003.

, 2003 REDEVELOPMENT AGENCY OF THE
CITY OF BRENTWOOD


By: 
John Stevenson, Executive Director

By: 
Karen, Diaz, Secretary

“GRANTOR”
APPROVED:



Counsel for Grantor


The provisions of this Grant Deed are hereby approved and accepted.


, 2003 ROBERT H. SHERDEL, doing business as 
RHS CONSTRUCTION COMPANY


By: 

Title: 

“GRANTEE”

ACKNOWLEDGMENTS


EXHIBIT A

LEGAL DESCRIPTION OF THE SITE




The land referred to herein is situated in the State of California, County of Contra Costa, City of Brentwood, and is described as follows:

PORTION OF THE SOUTHWEST ¼ OF SECTION 7, TOWNSHIP 1 NORTH, RANGE 3 EAST, MOUNT DIABLO BASE AND MERIDIAN, AS THE SAID SECTION IS SHOWN ON THE MAP OF RANCHO LOS MEDANOS PREPARED BY ELAM C. BROWN, SURVEYOR, DATE JANUARY 11, 1912, ACCOMPANYING AND FORMING A PART OF THE FINAL REPORT OF THE REFEREES IN PARTITION OF THE ACTION ENTITLED CHARLES E. STANFORD, PLAINTIFF VS. T.I. BERGIN, ET AL, DEFENDANTS, NO. 2892, SUPERIOR COURT, CONTRA COSTA COUNTY, CALIFORNIA, A CERTIFIED COPY OF SAID MAP HAVING BEEN FILED JANUARY 9, 1913 IN THE OFFICE OF THE RECORDER OF THE COUNTY OF CONTRA COSTA, MAP BOOK 9, PAGE 202, DESCRIBED AS FOLLOWS:


BEGINNING ON THE SOUTH LINE OF SAID SECTION 7 AT THE EAST LINE OF THE PARCEL OF LAND DESCRIBED IN THE DEED TO RUSSELL A. PARTRIDGE, ET US, RECORDED SEPTEMBER 29, 1947, BOOK 1133, OFFICIAL RECORDS, PAGE 320; THENCE FROM SAID POINT OF BEGINNING NORTH 0° 30’ EAST ALONG SAID EAST LINE, 225.6 FEET TO THE NORTHEAST CORNER OF SAID PARTRIDGE PARCEL, 1133 OFFICIAL RECORDS 320; THENCE NORTH 89° 42’ EAST TO THE EAST LINE OF THE PARCEL OF LAND DESCRIBED AS PARCEL TWO IN THE DEED TO MYRTLE L. DAVIS, RECORDED AUGUST 4, 1950, BOOK 1608, OFFICIAL RECORDS, PAGE 320, THENCE SOUTH 0° 32’ WEST ALONG SAID EAST LINE OF THE SOUTH LINE OF SAID SECTION 7; THENCE SOUTH 89° 42’ WEST ALONG SAID SOUTH LINE, 175.8 FEET TO THE POINT OF BEGINNING.

EXCEPTING THEREFROM:

THE 33 FEET IN WIDTH STRIP OF LAND AS RESERVED IN THE DEED FROM KIRKMAN NURSERIES TO C.M. SMITH DATED FEBRUARY 6, 1924 AND RECORDED APRIL 21, 1925 IN VOLUME 490 OF DEEDS, AT PAGE 173.


ASSESSOR’S PARCEL NUMBER: 016-150-002











SUMMARY REPORT PURSUANT TO
SECTION 33433 OF THE
CALIFORNIA COMMUNITY REDEVELOPMENT LAW
ON A DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD
AND
ROBERT H. SHERDEL, dba RHS CONSTRUCTION


I. INTRODUCTION

The California Health and Safety Code, Section 33433, requires that if a redevelopment agency wishes to sell or lease property to which it holds title and if that property was acquired in whole or in part with property tax increment funds, the agency must first secure approval of the proposed sale or lease agreement from its local legislative body after a public hearing. A copy of the proposed sale or lease agreement and a summary report that describes and contains specific financing elements of the proposed transactions shall be available for public inspection prior to the public hearing. As contained in the Code, the following information shall be included in the summary report:

1. The cost of the agreement to the redevelopment agency, including land acquisition costs, clearance costs, relocation costs, the costs of any improvements to be provided by the agency, plus the expected interest on any loans or bonds to finance the agreement;

2. The estimated value of the interest to be conveyed or leased, determined at the highest and best use permitted under the redevelopment plan;

3. The estimated value of the interest to be conveyed in accordance with the uses, covenants, and development costs required under the proposed agreement with the agency, i.e., the reuse value of the property;

4. An explanation of why the sale or lease of the property will assist in the elimination of blight, as required by Section 33433; and

5. The purchase price or present value of the lease payments which the lessor will be required to make during the term of the lease. If the sale price or total rental amount is less than the fair market value of the interest to be conveyed, determined at the highest and best use consistent with the redevelopment plan, then the agency shall provide as part of the summary an explanation of the reasons for the difference.

This report outlines the significant parts of the proposed Disposition and Development Agreement (“Agreement”) by and between the Redevelopment Agency of the City of Brentwood (“Agency”) and Robert H. Sherdel, doing business as RHS Construction (“Developer”). Under this Agreement, the Developer will purchase Agency-owned property (“Site) from the Agency and use the Site for the design and construction of a 9-unit, high density, single family home project. The purpose of this analysis is to determine the cost of the Agreement to the Agency.



This report is based on information in the proposed Agreement and is organized into the following five sections.

Summary of the Proposed Agreement – This section includes a description of the Site, the proposed project (“Project”) and the major responsibilities of the Agency and the Developer.

Cost of the Agreement to the Agency – This section outlines the cost of the Agreement to the Agency, and presents the terms of the land conveyance to the Developer by the Agency. 

Estimated Value of the Interest to be Conveyed – This section summarizes the value of the property to be conveyed to the Developer.

Consideration Received and Reasons Therefor – This section describes the purchase or lease price to be paid by the Developer to the Agency. It also contains a comparison of the price and the fair market value at the highest and best use consistent with the redevelopment plan for the interests conveyed.

Elimination of Blight – This section includes an explanation of why the sale or lease of the property will assist in the elimination of blight and the supporting facts and materials.

Conformance with AB 1290 Five-Year Implementation Plan – This section describes how the Agreement is in conformance with the Agency’s Five-Year Implementation Plan.


SUMMARY OF THE PROPOSED AGREEMENT

The following summarizes the proposed Agreement for this Project.

Description of the Site and the Proposed Development

The .91-acre, or 39,640 square feet, Site is located at 159 Sycamore Avenue in Brentwood. The Site currently has an existing, boarded residential structure originally built in the 1940s. The Site was purchased by the Agency on March 20, 2000, for $240,000 using Low/Moderate Housing Funds. Title and escrow fees were approximately $7,665, for a total funding for the Site of $247,665

The proposed Project will be nine for-sale single-family residential units on small lots. The Property is zoned R3 for high density, multi family residential allowing 11-20 dwelling units per acre. The Developer has received City approvals to change the zoning from R3 to PD-50, which includes the adoption of specific development standards for this planned development, including zero-lot line standards and smaller-than-average setback requirements. The minimum lot sizes are 3000 square feet. 

The Developer has proposed one floor plan with five variations of elevations and colors to provide distinct differences between the homes. The homes will be 1429 square feet each. The Project includes a private drive requiring the establishment of a homeowners association for the maintenance of the common areas and private drive, as well as the private sewer and storm drain. 

The Agency is not imposing affordability restrictions as a requirement for this Project. The Agency’s interest in redeveloping this Site is to provide new for-sale dwelling units in an area that is predominately affordable rental housing. However, to the extent permitted by law, the Developer shall design a marketing and resale program that gives preferences to persons and households who live and/or work in the City of Brentwood. The high-density project will provide another housing product at a market price not currently available in the City of Brentwood’s predominately single-family housing stock selling at area median prices. 


Agency’s Responsibilities

The Agency’s responsibilities under the proposed Agreement are as follows:

• Deliver the preliminary title report to Developer prior to close of escrow.
• Approve or disapprove the Developers evidence of equity capital and mortgage financing prior to close of escrow.
• Sell the Site to the Developer for $200,000 (the “Purchase Price”).
• Pay the portion of escrow fees, charges and costs specified in the Agreement.


Developer’s Responsibilities

The Developer’s responsibilities under the proposed Agreement are as follows:

• Approve or disapprove the conditions of title.
• Submit evidence of equity capital and mortgage financing for Agency review and approval.
• Deposit 10% of the Purchase Price at the time of execution of the Agreement.
• Deposit the Purchase Price, less the deposit, into escrow, and pay the portion of title and escrow fees, charges and costs specified in the Agreement.
• Fund and undertake demolition, site clearance, and site preparation.
• Develop the project as specified in the DDA and in compliance with the City’s conditions of approval as adopted by the Planning Commission’s Resolution Nos. 02-41, 02-42, and 02-43.
• Pay all hard and soft costs of constructing the project.
• Commence construction of the Project within 30 days after obtaining possession of the Site.
• Complete construction of improvements within 12 months after commencement.
• Develop a marketing and resale program that gives preference to persons and households who live and/or work in the City of Brentwood.


III. COST OF THE AGREEMENT TO THE AGENCY

This section presents the total cost of the DDA to the Agency, as well as the net cost or net gain of the Project after consideration of the Project revenues. The project can either result in a net cost when the expenditures exceed receipts, or a net gain when revenues created by the implementation of the Agreement exceed expenditures. 

A. Gross Costs to the Agency

The estimated Agency costs for this Agreement are as follows:

Nominal $ NPV 
Land Acquisition Costs $240,000 $240,000
Title and Escrow Fees 7,665 7,665

Total Agency Costs $247,665 $247,665

B. Gross Revenues to Agency

The Agency will receive Property Tax Increment from the Project based on the increased valuation in the project area. If the Project is built out and sold at an estimated sale price of $265,000 per unit, the Project is estimated to generate the following revenues to the Agency:

Nominal $ NPV
Sale of 159 Sycamore Avenue $200,000 $200,000
80% Tax Increment Revenue (see Table 1) 414,148 77,756
20% Housing Set-Aside Revenue (see Table 1) 295,698 55,517

Total Agency Revenues $909,846 $333,273

C. Net Gain to Agency

As a result of Agency revenues exceeding Agency costs, the Agreement is estimated to generate a net gain to the Agency as summarized below:

Nominal $ NPV
Agency Revenues $909,846 $333,273
Less Agency Costs 247,665 247,665

Net (Cost) Gain to Agency $662,181 $85,608


IV. VALUE OF THE INTEREST TO BE CONVEYED

A. Reuse Value

A reuse value of the Site is a direct function of the specific development program and economics as specified in the terms and conditions of the Agreement. In this case, the land payment from the Developer of $200,000 for the .91-acre Site is consistent with the price range of other sites in similar locations in Brentwood for multi-family residential development. In addition to requiring the Developer to fund $200,000 for site acquisition costs, the Agreement requires the developer to design and construct a high-quality, high-density, single family residential project. In addition, the Developer shall design a marketing and resale program that gives preferences to persons and households who live and/or work in the City of Brentwood.

The Agency is not imposing specific development conditions or requirements, such as affordability covenants to run with the land, that would impact the financial feasibility of the Project. Thus, there are no cost burdens imposed on this Project; consequently, the reuse value of the Site does not reduce the fair market value of the development opportunity. 

B. Estimated Value at Highest and Best Use

The City of Brentwood’s Right of Way Department has estimated the value of the interest conveyed to the Developer at its highest and best use allowed under the North Brentwood Redevelopment Plan. The highest and best use was determined to be multi-family residential and the fair market value to be $200,000 based on estimated current land prices in the market area of $5.00 per square foot, which equates to $22,222 per unit/parcel.

Most comparable sales in determining fair market value of multi-family residential property in the Brentwood competitive markets were considered. Only one recent sale of high density, multi-family in East Contra County was found at $6.11 square foot. This comparable required a downward adjustment to allow for its location on a corner of a major thoroughfare and its higher allowed density. Older sales were considered and adjusted upward to reflect current market conditions. Two of the older comparable sales utilized were located at 180 Sycamore Avenue and 160 Sycamore Avenue, which are located across the street from the subject Site and have the same R-3 zoning. After adjustments for time, location and allowed density, the adjusted value range per square foot for high density, multi-family was estimated at $4.00 to $5.25/square foot. 

V. CONSIDERATION RECEIVED AND REASONS THEREFOR

Under the provisions of the Agreement, the Agency will be responsible for conveying the Site to the Developer for the purpose of constructing the nine-unit, for-sale, single family residential project in consideration for a land payment of $200,000 which is the fair market value of the interests to be conveyed. In conclusion, the Agency is entering into this Agreement for an amount equal to the fair market value at the highest and best use of the Site.



VI. ELIMINATION OF BLIGHT

The completion of the proposed Project will accomplish a number of the Agency’s objectives:

• The project will replace a dilapidated and abandoned structure with a high-quality neighborhood.

• The project will help address the area’s need for workforce housing through the provision of the marketing and resale program to families and households that live and/or work in the City of Brentwood.

• The project will provide additional home ownership opportunities in the area, enhancing the overall housing market.

• The project will eliminate blight by creating a catalyst to stimulate additional private investment in the Project Area. The elimination of blight and the stimulation of economic growth within the Project Area are consistent with the Redevelopment Plan.

Thus, the Agency is entering into this Agreement in order to achieve its objectives of removing blight, stimulating economic growth, and providing additional housing opportunities in the area.


VII. CONFORMANCE WITH THE FIVE-YEAR IMPLEMENTATION PLAN

The five-year goals identified the Agency’s Five-Year Implementation Plan for the North Brentwood Redevelopment Project Area are to remove obstacles and blighting influences to infill residential development and to facilitate and encourage private investment and economic growth opportunities by using the Agency’s financial and administrative resources to help improve the economic base of the Project Area and the community. To that end, the Agency plans to convey the Site to the Developer for construction of the Project, while collecting additional tax increment to the Agency through the increased tax base the Project will generate. 















grozenski\159 Sycamore\33433 Report




INITIAL STUDY


BACKGROUND

1. Project Title: Casitas Del Sol – Subdivision 8539

2. Lead Agency Name and Address: Brentwood Redevelopment Agency
150 City Park Way
Brentwood, CA 94513

3. Contact Person and Phone Number: Gina Rozenski
925-240-2504

Project Location: 159 Sycamore Avenue
Northwest corner of Sycamore Avenue and Barbara Street
City of Brentwood
Contra Costa County

5. Project Sponsor’s Name and Address: Mr. Robert Sherdel
RHS Construction
683 Astor Court
Brentwood, CA 94513

6. General Plan Designation: High Density (11-20 du/acre)

7. Zoning: High Density Multi-Family Residential 

8. Project Description Summary:

The proposed project consists of the following requested entitlements:

• Rezone from High Density Multi-Residential (R-3) to Planned Development (PD) and adoption of the Planned Development standards.
• Vesting Tentative Subdivision Map to subdivide .91 acres into nine (9) single-family lots. 
• Design Review of proposed 1429 square foot single-family townhomes on minimum 3,000 square foot lots.


SOURCES

The following documents are referenced information sources utilized by this analysis:

1. City of Brentwood Draft General Plan Update, June, 2001;
2. City of Brentwood General Plan Update Draft EIR, June, 2001;
3. City of Brentwood General Plan Update EIR Responses to Comments, September, 2001;
4. City of Brentwood General Plan 1993-2010, June 1993;
5. City of Brentwood General Plan EIR, June 1993;
6. North Brentwood Redevelopment Plan, 1991.
7. North Brentwood Redevelopment Plan EIR, 1991.
III. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED

The environmental factors checked below would be potentially affected by this project.

 Aesthetics  Agriculture  Air Quality
 Biological Resources  Cultural Resources  Geology/Soils
 Hazards & Hazardous Materials  Hydrology/Water Quality  Land Use & Planning
 Energy & Mineral Resources  Noise  Population & Housing
 Public Services  Recreation  Transportation & Circulation
 Utilities/Service Systems  Mandatory Findings of Significance

DETERMINATION
On the basis of this initial study:

 I find that the Proposed Project COULD NOT have a significant effect on the environment. The project qualifies for a categorical exemption as In-Fill Development under the CEQA Guidelines Section 15332, and a NOTICE OF EXEMPTION will be prepared.

 I find that although the Proposed Project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the applicant. A MITIGATED NEGATIVE DECLARATION will be prepared.

 I find that the Proposed Project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required.

 I find that the proposed project MAY have a “potentially significant impact” or “potentially significant unless mitigated” on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed.

 I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required.


________________________________ 
Signature Date

Gina Rozenski City of Brentwood_________________
Printed Name For


BACKGROUND AND INTRODUCTION

This Initial Study provides an environmental analysis pursuant to the California Environmental Quality Act (CEQA) for the proposed Casitas Del Sol project - Subdivision 8539 (Project). Pursuant to Sections 15162 and 15168 (c) of the CEQA Guidelines, the Brentwood Redevelopment Agency finds that the Project is within the scope of the development levels evaluated in the Program EIR prepared for the 1993 City of Brentwood General Plan and within the scope of the Brentwood Redevelopment Project EIR. Based on this evidence, the Brentwood Redevelopment Agency finds that the Project will not have any significant environmental impacts that were not studied in these EIRs. In addition, this Project qualifies for a categorical exception as In-Fill Development under the CEQA Guidelines Section 15332 as follows:

1. The Project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.

Casitas Del Sol is a high density residential project that complies with the existing general plan and zoning of R-3 high density, multi-family designation. 

2. The Project occurs within the city limits on a project site of no more than five acres substantially surrounded by urban uses.

The site is .91 acres within the city limits and was previously used for one single-family residential unit. The site is immediately adjacent to single-family units and apartment complexes, and is located one block from Brentwood Boulevard/Highway 4, a major north/south arterial.

3. The Project site has no value as habitat for endangered, rare or threatened species.

As noted above, the .91 acre site was previously used as a single-family residential parcel and no significant new information indicating a change of use from residential to habitat has been presented or observed.

4. Approval of the Project will not result in any significant effects relating to traffic, noise, air quality, or water quality.

The 9-unit Project, as conditioned, is not likely to cause significant effects relating to traffic, noise, air quality or water quality in an area that is already considered urban, nor is it likely the Project will cause serious health problems or violations of existing environmental requirements. 

5. The Project site can be adequately served by all required utilities and public services.

The availability of public facilities and utilities is adequate to serve the proposed use.

Based on the Project complying with each of the conditions set forth above, the Brentwood Redevelopment Agency determines that the Project qualifies for a categorical exception as an In-Fill Development under the CEQA Guidelines Section 15332. Therefore, the environmental review is adequate for all approvals relating to this Project. A Notice of Exemption for this Project is attached to this Initial Study and incorporated herein.

The Brentwood Redevelopment Agency further finds that no significant new information with the meaning of Public Resources Code Section 21092.1 and CEQA Guidelines Section 15088.5 has been presented to the Agency, which would necessitate recirculation of the EIRs for public review. The City of Brentwood and Brentwood Redevelopment Agency have considered all verbal and written comments relating to the EIRs and finds no significant new information has arisen.

PROJECT DESCRIPTION

The proposed Project site is .91 acres located at 159 Sycamore Avenue, on the northwest corner of Sycamore Avenue and Barbara Street. The Project will be nine for-sale single-family residential units on small lots. The Developer has proposed one floor plan with five variations of elevations and colors to provide distinct differences between the homes. The homes will be 1429 square feet each, on minimum 3000 square foot lots. The Project includes a private drive requiring the establishment of a homeowners association for the maintenance of the common areas and private drive, as well as the private sewer and storm drain. 

The site is physically suitable for the type and the density of development proposed because the project design is intended to provide a housing type that is needed for first-time home buyers who desire urban amenities within walking distance.

The site is currently owned by the Brentwood Redevelopment Agency, and the Agency shall sell the site to the Developer. The Agency’s interest in redeveloping this site is to provide new for-sale dwelling units in an area that is predominately affordable rental housing. To the extent permitted by law, the Developer shall design a marketing and resale program that gives preferences to persons and households who live and/or work in the City of Brentwood. The high-density project will provide another housing product at a market price not currently available in the City of Brentwood’s predominately single-family housing stock selling at area median prices. 
























NOTICE OF EXEMPTION


TO: ____ Office of Planning and Research FROM: City of Brentwood
1400 Tenth Street Community Development Dept.
Sacramento, CA 95814 150 City Park Way
Brentwood, CA 94513

X County Clerk
County of Contra Costa
725 Court Street, Courthouse
Martinez, CA 94553


Project Title: RHS Construction Tentative Subdivision Map, Rezone and Design Review; TSM 8539/RZ 01-09/DR 01-29 

Project Location: Northwest corner of Sycamore Avenue and Barbara Street

Project Location - City: City of Brentwood County: Contra Costa

Description of Nature and Purpose of Project: A tentative subdivision map to split an existing 0.91 acre parcel into 9 lots for single family residential use and associated rezone and design review.

Name of Public Agency Approving Project: City of Brentwood.

Name of Person or Agency Carrying Out Project: City of Brentwood

Exempt Status: Categorical Exemption, Section 15332 In-Fill Development 

Reason Why Project is Exempt: This project entails the division of one parcel into 9 parcels for future development. The project is in compliance with the current General Plan and zoning ordinance requirements. The proposed development occurs within the city limits of Brentwood and is less than 5 acres in size and surrounded by urban uses. The project site has no value as habitat for endangered, rare or threatened species and does not result in any significant effects relating to traffic, noise, air quality or water quality, and can be served by all required utilities and public services.

Contact Person: Debbie Hill, Assistant Planner

Telephone: (925) 516-5405




_________________________ _____________
Signature Date
City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov