HomeMy WebLinkAboutCC Resolution 9911 (Shamrock Center)CITY COUNCIL OF THE CITY OF SAN RAFAEL
RESOLUTION NO. 9 911
RESOLUTION AUTHORIZING AN OWNER PARTICIPATION,
DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE
SAN RAFAEL REDEVELOPMENT AGENCY AND LA TERRA
TRIFOGLIOL.L.C. (RE: SHAMROCK CENTER)
WHEREAS, the City Council of the City of San Rafael (the "City Council") adopted the
Redevelopment Plan for the Central San Rafael Redevelopment Project Area (the
"Redevelopment Plan"); and
WHEREAS, the San Rafael Redevelopment Agency (the "Agency") is the owner of
certain real property (the "Property") located in the area governed by the Redevelopment Plan
and referred to as assessor parcel number (APN 013-021022); and
WHEREAS, Agency staff have prepared a proposed Owner Participation, Disposition
and Development Agreement (the "DDA") between the Agency and La Terra Trifoglio L.L.C.
(the 'Developer") which stipulates that the Agency will sell the Property to the Developer for
the purpose of the development of the a retail center totaling approximately 60,000 square feet of
space; and
WHEREAS, the purpose of the DDA is more particularly set forth in the DDA and in the
Summary as required by Section 33433 of the Community Redevelopment Law (the
"Summary"); and
WHEREAS, the consideration under the DDA for the disposition of the Property is not
less than the fair market value of the Property at its highest and best use; and
WHEREAS, the disposition and development of the Property as contemplated by the
DDA will assist in the elimination of blight in the area governed by the Redevelopment Plan by
replacing older blighting uses and buildings with new buildings for retail use.
WHEREAS, the Agency has placed on file a copy of the DDA and the Summary and has
made the DDA and the Summary available for public inspection and copying pursuant to Section
33433 of the Law; and
WHEREAS, by staff report accompanying this Resolution and incorporated herein by
this reference, the City Council has been provided with additional information upon which the
actions set forth in this Resolution are based; and
WHEREAS, the City Council and the Agency have conducted a duly noticed public
hearing on the DDA pursuant to Health & Safety Code Section 33433 for the purpose of
receiving the input and comments of the public on the DDA; and
WHEREAS, the City Council has made certain findings pursuant to Section 33433 of the
Law and approved the DDA and its execution and implementation by the Agency following
consideration of the DDA at the above -referenced public hearing; and
WHEREAS, a negative declaration has been prepared and approved for the development
of the Property; and
WHEREAS, the Agency has adopted an Implementation Plan pursuant to the Law (the
"Implementation Plan") and the disposition and development contemplated by the DDA is
consistent with the Implementation Plan.
NOW THERFORE IT IS HEREBY RESOLVED, as follows:
Section 1. That, based on the staff report, the Section 33433 summary, and evidence
submitted at the public hearing on the DDA, the City Council hereby finds:
a) The disposition and development of the Property pursuant to the DDA will assist in
the elimination of blight in the Project Area.
b) The disposition and development of the Property pursuant to the DDA is consistent
with the Implementation Plan.
c) The consideration under the DDA for the disposition of the Property is not less than
the fair market value of the Property at its highest and best use.
Section2. The City Council hereby approves the DDA.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a special joint meeting of
the City Council and the San Rafael Redevelopment Agency held on the 15"' day of September,
1997, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
Mkk M. LEONCt I, City Clerk
CITY OF SAN RAFAEL
REDEVELOPMENT AGENCY
INTERDEPARTMENTAL MEMORANDUM
DATE: November 4, 1997
TO: Jeanne Leoncini, City Clerk
FROM: Nancy Mackle, Senior Development Specialist
SUBJECT: Shamrock DDA (Agency Reso. 97-38, Council Reso. 9911)
For your files, attached is the original executed Owner Participation, Disposition and
Development Agreement with La Terra Trifoglio for the Shamrock development
X
-Recorded at the request of
98-0253181'
8 —0253 1 8I
I Rec Fee 145.00
PACIFIC COAST TITLE COMPANY I Check 145.00
Recorded I
After recordation return to: Official Records I
County of I
SAN RAFAEL REDEVELOPMENT AGENCY MARIN I
1313 Fifth Street JOAN C THAYER I
San Rafael, CA 94901 Recorder I
8:00am 17-Apr-98 I PCTC AS 47
Escrow No. 107589
OWNER PARTICIPATION, DISPOSITION AND DMLOPMENT AGREEMENT
by and between
THE SAN RAFAEL REDEVELOPMENT AGENCY
and
LA TERRA TRIFOGLIO L.L.0
(Shamrock Site)
OWNER PARTICIPATION,
DISPOSITION AND DEVELOPMENT
AGREEMENT
THIS OWNER PARTICIPATION, DISPOSITION AND DEVELOPMENT
l
AGREEMENT made on or as of this qC 'ft day ofO-
1997, by and between the San Rafael Redevelopment Agency
(hereinafter "Agency"), a public body, corporate and politic, and
La Terra Trifoglio L.L.C. ("Developer"), a California limited
liability corporation, with reference to the following facts:
A. Pursuant to its authority granted under California law,
the Agency has the responsibility to carry out the Amended and
Restated Central San Rafael Redevelopment Plan, which was adopted
by Ordinance No. 1572 of the City Council of the City of San
Rafael on October 16, 1989. The redevelopment plan as described
and as thereafter from time to time amended is referred to in
this Agreement as "the Redevelopment Plan" and is incorporated
into this Agreement by reference.
B. Developer owns certain real property within the City of
San Rafael described in the attached Exhibit A-1 (the "Developer
Parcel") formerly used as a concrete plant.
C. Developer has closed and demolished the concrete plant
on the Developer Parcel and desires to redevelop the Developer
Parcel; the Agency desires to accommodate that redevelopment.
The Agency has entered into an agreement to purchase real
141\01\56025.01 - 1
I
Section One: DEFINITIONS AND EXHIBITS
1.01 Definitions.
The following capitalized terms shall, for purposes of this
Agreement, have the meaning set forth in this Section 1.01.
(a) "Agency" means the San Rafael Redevelopment
Agency, a public body, corporate and politic, formed and existing
under the Community Redevelopment Law.
(b) "Agency Parcel" means that real property in San
Rafael, Marin County, California more particularly described in
the attached Exhibit A-2.
(c) "Agreement" means this Owner Participation,
Disposition and Development Agreement between the Agency and
Developer.
(d) "Certificate of Completion" means the certificate
the Agency will provide pursuant to Section 4.08.
city.
(e) "City" means the City of San Rafael, a charter
(f) "Construction Plans" has the meaning set forth in
Section 2.04.
(g) "Deposit" means the deposit in the amount of Fifty
Thousand Dollars ($50,000) that the Developer makes with the
Agency pursuant to Section 7.03.
(h) "Developer" means La Terra Trifoglio, a California
limited liability company, and its successors and assigns as
permitted under this Agreement.
141\01\56025.01 -3-
M "Developer Parcel" means that real property in San
Rafael, Marin County, California more particularly described in
the attached Exhibit A-1.
(j) "Financing Plan" has the meaning set forth in
Section 2.05.
(k) "Grant Deed" means the Grant Deed and Declaration
of Restrictions attached to this Agreement as Exhibit C pursuant
to which the Agency will convey the Agency Parcel to Developer
and impose certain restrictions on the Developer Parcel.
(1) "Improvements" has the meaning set forth in
Section 2.03.
(m) "Project Plan" means the plan for development of
the Property with the Improvements prepared by the Developer and
attached to this Agreement as Exhibit B.
(n) "Property" means the Developer Parcel and the
Agency Parcel.
(o) "Redevelopment Plan" means the Amended and
Restated Central San Rafael Redevelopment Plan which was adopted
by Ordinance No. 1572 of the City Council of the City on October
16, 1989.
5.02.
(p) "Transfer" has the meaning set forth in Section
1.02 Exhibits.
The following exhibits are attached to this Agreement and
are incorporated in this Agreement:
Exhibit A-1 Developer Parcel
Exhibit A-2 Agency Parcel
141\01\s6025.01 -4-
Exhibit B Project Plan
Exhibit C Grant Deed and Declaration of
Restrictions
Exhibit D Title Exceptions
Section Two: DEVELOPER PRE -DISPOSITION REQUIREMENTS
2.01 Description of the ProDerty.
The Developer Parcel is more particularly described in the
attached Exhibit
A-1. The Agency
Parcel
ib
more particularly
described in the
attached Exhibit
A-2.
The
Developer Parcel and
Agency Parcel are referred to collectively in this Agreement as
the "Property."
2.02 Prosect Plan.
Prior to execution of this Agreement, Developer submitted to
the Agency and by execution of this Agreement the Agency approves
the Developer's plan for redevelopment of the Property (the
"Project Plan"). The Project Plan is attached hereto as Exhibit
B and contemplates redevelopment of the Property with new
buildings containing approximately 60,000 square feet for retail
use and the provision of parking and other site improvements,
including landscaping and walkways to serve those buildings. The
improvements on the Property contemplated by the Project Plan
together with any off-site improvements required as to be
constructed as a condition of the City permits and approvals
described in Section 2.03 below are referred to in this Agreement
as the "Improvements".
141\01\56025.01 -5-
2.03 Citv ADDrovals.
Within thirty (30) days following execution of this
Agreement, the Developer shall apply to the City for all permits
and approvals (other than building permits) necessary to carry
out the Project Plan and shall thereafter diligently pursue and
obtain those permits and approvals. Developer shall provide to
the City all information and data requested by the City so that
the applications for permits and approvals may be deemed
complete. All submissions to the City shall be consistent with
the Project Plan. The Agency shall render all reasonable
assistance to Developer to obtain such permits and approvals.
2.04 Construction Plans.
No later than two hundred seventy (270) days following the
date the City approves the permits and approvals referred to in
Section 2.03 above, Developer shall complete its Construction
Plans to carry out the Project Plan and construct the
Improvements and apply to the City for building permits necessary
for construction of the Improvements. As used herein
"Construction Plans" means all construction documentation upon
which the Developer and its contractors, shall rely in
undertaking the Improvements and shall include, but not
necessarily be limited to, final architectural drawings and
specifications, final elevations, building plans and
specifications (also known as "working drawings"), furniture,
fixtures and equipment plans and specifications and a time
schedule for construction. The Construction Plans shall be based
141\01\56025.01 -6-
upon the Project Plan and shall not materially deviate therefrom
without the express written consent of the Agency. After
applying for the building permits, Developer shall thereafter
diligently pursue and obtain such permits.
Any change in the Construction Plans required by the City as
a condition of obtaining a building permit shall be deemed
approved by the Agency. However, Developer shall not make any
other material change in the Construction Plans without first
obtaining the approval of the Agency pursuant to Section 4.02
below. Developer shall be deemed to have satisfied the condition
set forth in this Section 2.04 if the City certifies to the
Agency that it has reviewed and approved the Construction Plans
and is prepared to issue building and demolition permits to
Developer upon Developer's payment of the fees payable upon
issuance of those permits and the approved Financing Plan
provides sufficient funds to pay those fees no later than ten
(10) days prior to the date Developer is required to commence
construction pursuant to Section 4.04 below.
2.05 Financing Plan.
(a) No later than the date the Developer is required
to apply for permits pursuant to Section 2.04 above, it shall
also submit its Financing Plan to the Agency for review and
approval. The Financing Plan shall include a cash flow
projection taking into account the cost of acquiring the Agency
Parcel and construction of the Improvements (including fees
payable upon issuance of permits), evidence of firm commitments
141\01\56025.01 - %
of construction loan and/or equity funds necessary to pay the
costs indicated in the cash flow project when due. The Agency
shall approve or disapprove the Financing Plan in writing. If
the Financing Plan is disapproved, Developer shall submit a
revised Financing Plan within sixty (60) days following the
Agency disapproval of the initial Financing Plan. The Agency
shall approve the Financing Plan if it is consistent with the
terms of this Agreement and, in the reasonable determination of
the Agency, provides for sufficient funds to pay the costs to
construct the Improvements and acquire the Agency Parcel.
(b) As an additional condition to the close of escrow,
the Agency may request that Developer provide to the Agency
evidence reasonably satisfactory to the Agency that the funds
identified in the approved Financing Plan will in fact be
available for the purposes and at the times indicated in the
Financing Plan.
Section Three: DISPOSITION OF PROPERTY
3.01 Sale of Property.
Assuming Developer's predisposition conditions as set forth
in Section One above have been satisfied, the Agency shall sell
the Agency Parcel to Developer and Developer shall purchase the
Agency Parcel from the Agency.
3.02 Openinq Escrow.
To accomplish the conveyance of the Agency Parcel, the
parties shall, upon execution of this Agreement, establish an
141\01\56025.01 - 8
escrow with a title company agreeable to Agency and Developer.
The parties shall execute and deliver all written instruments to
that escrow holder to accomplish the terms hereof, so long as
such instructions are consistent with this Agreement.
3.03 Close of Escrow.
The escrow shall close within thirty (30) days following the
date on which Developer has satisfied all the conditions set
forth in Section One. Upon the close of escrow the Agency shall
convey the Agency Parcel to Developer by grant deed (the "Grant
Deed"). The Grant Deed shall be substantially in the form and
substance as is set forth in the Grant Deed and Declaration of
Restrictions attached hereto as Exhibit C. As is set forth in
Section 9.01 below, the Grant Deed also imposes certain
restrictions on the Developer Parcel.
3.04 Purchase Price.
The purchase price for the Agency Parcel be Five
FiFTr
Hundred Forty -Eight Thousand Dollars ($548,080) z-ttbj C�.It t-
hdj tmerit- a c fig l -wa : Thz ASeTmy i6-btcdiYd :y a uu.LVCy uL une
`SerL"Yf Par oal. The l.c nriJu Stead- X9 that it
li LL-LeLC1 \J1 .i. qt trre f Tr In the gancy T1m -E-3 uu
Ly L1: �;:�v�y ««It-t7F,li�d by -T ;tom
r{). The purchase price shall be paid in cash at the
close of escrow, with Developer receiving credit against the
purchase price for the amount of the Deposit.
141\01\56025.01 -9-
3.05 Condition of Title.
Upon close of escrow, the Agency Parcel shall be free and
clear of all liens, encumbrances, clouds and conditions, rights
of occupancy or possession, except:
(i) the conditions and effect of the Redevelopment
Plan;
(ii) applicable building and zoning laws and
regulations;
(iii) the provisions of this Agreement;
(iv) conditions, covenants, restrictions or easements
of record as otherwise approved by Developer in
writing; and
(v) the exceptions noted in the attached Exhibit D.
3.06 Condition of Property.
Developer acknowledges that it will purchase the Agency
Parcel in an "as is" condition and that Developer shall be solely
responsible for and shall bear all the costs of demolition,
construction, reconstruction, rehabilitation, site preparation,
correction of any soils, subsurface or structural conditions on
the Agency Parcel (including, but not limited to removal,
remediation, monitoring or mitigation of any hazardous or toxic
materials or conditions) and for otherwise putting the Agency
Parcel in a condition suitable for use and development in
accordance with this Agreement. The Developer acknowledges that
the Agency will have acquired the Agency Parcel just prior to
141\01\s6025.01 —10—
conveyance to Developer and will not have occupied or made use of
the Agency Parcel for any purpose.
3.07 Costs of Escrow and Closing.
Ad valorem taxes, if any, shall be prorated as of the date
of the close of escrow. The lien of any bond or assessment shall
be assumed by Developer and assessments payable thereon shall be
prorated as of the date of the conveyance. Developer shall bear
the cost of title insurance for the conveyance of the Agency
Parcel and shall pay any transfer tax on the conveyance of the
Agency Parcel to Developer. The Agency shall bear the cost of
title company document preparation and recordation fees. All
other costs of escrow (including the fee of escrow holder), if
any, shall be evenly borne by the parties.
Section Four: CONSTRUCTION OF IMPROVEMENTS
4.01 Construction Pursuant to Plans.
Unless modified by operation of Section 4.02, all works of
construction and development on the Property shall be done in
accordance with the Construction Plans approved pursuant to
Section 2.04 above.
4.02 Chanqe in Construction Plans.
After the City has approved the Construction Plans, if the
Developer desires to make any material change in the Construction
Plans, the Developer shall submit the proposed change to the
Agency for its approval. If the Construction Plans, as modified
by any proposed change, conform to the requirements of this
i+l\oi\ssozs.oi —11—
Agreement, the Agency shall approve the change by notifying the
Developer in writing.
Unless the proposed change is rejected by the Agency within
ten (10) days, it shall be deemed approved. If rejected within
such time period, the previously approved Construction Plans
shall continue to remain in full force and effect. The Developer
also must submit material changes in the Construction Plans to
the City for its approval.
4.03 Construction Plans Must Be ADDroved.
Notwithstanding any other provision of this Agreement, the
Developer shall not commence the construction of the Improvements
until it has first received the written approval by the City of
the Construction Plans as provided in Section 2.04 above.
4.04 Commencement of Improvements.
The Developer for itself, its successors and assigns, hereby
covenants and agrees to commence the construction of the
Improvements within thirty (30) days after the close of escrow.
4.05 Completion of the Improvements.
The Developer, for itself, its successors and assigns,
hereby covenants and agrees diligently to prosecute the
construction of the Improvements to completion within two (2)
year following the date of this Agreement.
4.06 Eaual ODDortunity.
During the construction of the Improvements, Developer shall
not discriminate on the basis of race, religion, sex, or national
origin in the hiring, firing, promoting or demoting of any person
141\01\56025.01 - 12 -
engaged in the construction work and shall require its
contractors and subcontractors to refrain from discrimination on
such basis.
4.07 Prevailina Wacres. Developer shall pay and assure
that its contractors and subcontractors pay prevailing wages in
the construction of the Improvements as those wages are
determined pursuant to Sections 1770 et sect. of the California
Labor Code.
4.08 Certificate of Completion.
Promptly after completion of the construction of the
Improvements in accordance with those provisions of this
Agreement relating solely to the obligations of Developer to
carry out the construction of the Improvements (including the
dates for beginning and completion thereof), the Agency will
provide an instrument so certifying (the "Certificate of
Completion"). The Certificate of Completion shall be conclusive
determination that the covenants in this Agreement with respect
to the obligations of Developer, its successors and assigns, to
carry out the construction of the improvements and the dates for
the beginning and completion thereof have been met. The
Certificate of Completion shall be in such form as will enable it
to be recorded among the official records of Marin County. Such
certification and determination shall not constitute evidence of
compliance with or satisfaction of any obligation of Developer to
any holder of a deed of trust and shall not be deemed a notice of
completion under the California Civil Code.
141\01\56025.01 -13 -
Section Five: CHANGES IN DEVELOPER
5.01 Changes Onlv Pursuant To This Aareement.
The qualifications, experience and expertise of Developer is
of particular concern to the Agency. It is because of these
qualifications, experience and expertise that the Agency has
entered into this Agreement. No voluntary or involuntary
successor in interest to Developer shall acquire any rights or
powers under this Agreement, except as hereinafter provided.
5.02 Prohibition Acrainst Transfers.
Prior to the time the Developer obtains a Certificate of
Completion pursuant to Section 4.08 above, the Developer shall
not voluntarily or involuntarily make or attempt any total or
partial sale, transfer, conveyance, assignment or lease
("Transfer") of the whole or any part of the Property or the
buildings or structures thereon or of this Agreement without the
prior written approval of the Agency, which approval may be
granted or withheld in the Agency's sole discretion. In
addition, the owners of Developer shall not undertake a Transfer
of their interest in Developer without the prior written approval
of the Agency, which approval may be granted or withheld in the
Agency's sole discretion.
In the absence of specific written agreement by the Agency,
no Transfer by Developer or its owners shall be deemed to relieve
the Developer, its partners or any other party from any
obligations under this Agreement.
141\01\S6025.01 -14-
Section Six: GENERAL REMEDIES DURING DEVELOPMENT
6.01 Scope of Remedies.
The following shall govern the parties' remedies for breach
or failure of the Agreement.
6.02 No Fault of Parties.
The following events constitute a basis for a party,
otherwise allowed by this Agreement, to terminate this Agreement
without the fault of the other:
(a) The Developer, despite good faith efforts, is unable to
obtain any permits or approvals from the City necessary
to construct the Improvements substantially in
conformance with the Project Plan;
(b) The Agency, despite good faith efforts, is unable to
complete acquisition of the Agency Parcel.
Upon the happening of any of the above-described event, and
at the election of either party, this Agreement may be terminated
by written notice to the other party. Thereafter, neither party
shall have any rights against or liability to the other except as
provided in Sections Seven.
6.03 Fault of Actencv.
Except as to events constituting a basis for termination
under Section 6.02, the following events each constitute a basis
for Developer to take action against the Agency:
(a) The Agency fails to convey to Developer the Agency
Parcel within the manner and form herein called for and
141\01\56025.01 -15 -
the Developer is otherwise entitled by this Agreement
to such conveyance; or
(b) The Agency breaches any other material provisions of
this Agreement.
Upon the happening of any of the above-described events, the
Developer shall first notify the Agency in writing of its
purported breach or failure, giving the Agency sixty (60) days
from receipt of such notice to cure or begin to cure such breach
or failure. In the event Agency does not then so cure or begin
to cure within said sixty days and thereafter diligently
prosecute the cure to completion, then the Developer thereafter
shall be afforded all of its rights at law or in equity by taking
any or all of the following remedies: (i) terminating in writing
this Agreement; (ii) prosecuting an action for specific
performance; (iii) prosecuting an action for damages, and (iv)
any remedy available under Section Seven.
6.04 Fault of Developer.
Except as to events constituting a basis for termination
under Section 6.02, the following events each constitute a basis
for the Agency to take action against the Developer:
(a) The Developer refuses to accept from the Agency the
conveyance of the Agency Parcel within the time
periods, and under such terms as herein called for;
(b) The Developer does not attempt in good faith to procure
in a timely manner a building permit or other approvals
for the construction of the Improvements or abandons
141\01\56025.01 -16-
any further attempts when there is a reasonable
likelihood that such permit or other approvals would
otherwise be issued by the proper authority in a timely
manner;
(c) The Developer fails to apply for City approvals within
the time specified in Section 2.03;
(d) The Developer fails to complete Construction Plans or
fails to apply for a building permit within the time
specified in Section 2.04;
(e) The Developer fails to submit a Financing Plan in the
time specified in Section 2.05 or fails to obtain
Agency approval of a Financing Plan;
(f) The Developer fails to submit the evidence required by
subsection (b) of Section 2.05 or fails to obtain
Agency approval of that evidence;
(g) The Developer or its owners voluntarily or
involuntarily undertakes a Transfer not permitted by
this Agreement;
(h) The Developer fails to commence or complete the
construction of the Improvements within the times
specified in this Agreement or any extensions thereof
or abandons the construction of the Improvements for a
period of more than thirty (30) days; or
(i) The Developer breaches any other material provision of
this Agreement.
141\01\56025.01 -17-
Upon the happening of any of the above-described events, the
Agency shall first notify the Developer in writing of its
purported breach, failure or act above-described, giving the
Developer sixty (60) days from receipt of such notice to cure or
begin to cure such breach, failure, or act. In the event
Developer does not then so cure or begin to cure within said
sixty days and thereafter diligently prosecute the cure to
completion, the Agency thereafter shall be afforded all of its
rights at law or in equity by taking any or all of the following
remedies: (i) terminating in writing this Agreement; (ii)
prosecuting an action for damages; (iii) prosecuting an action
for specific performance; and (iv) the remedies specified in
Section Seven.
Section Seven: SPECIFIC REQUIREMENTS REGARDING REMEDIES
7.01 Deposit.
Prior to execution of this Agreement, the Developer
deposited with the Agency the sum of Fifty Thousand Dollars
($50,000) (the "Deposit)" to assure performance under this
Agreement. The Agency shall invest the Deposit in an interest
bearing account.
7.02 Disposition of DeDosit.
At the close of escrow, the Deposit and the interest earned
thereon shall be applied to the purchase price Developer is to
pay for the Agency Parcel.' If this Agreement is terminated prior
to the close of escrow pursuant to Section 6.02 or Section 6.03,
then the Agency shall promptly return the Deposit and the
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interest earned thereon to the Developer. If this Agreement is
terminated prior to the close of escrow pursuant to Section 6.04,
then the Agency shall be entitled to retain the Deposit and the
interest earned thereon as liquidated damages for Developer's
breach or default, it being the agreement and understanding of
the parties as indicated by their initials below that it would be
extremely difficult to determine the actual damages to the Agency
in such an event and, as a result, the parties have agreed to
liquidated,da,ages
Section Eight:
n 11pit—of—ikctual damages.
gency
TY FINANCING INTERESTS
8.01 No Encumbrances ExceDt for Development Purposes.
Notwithstanding any other provision of this Agreement,
mortgages and deeds of trust, or any other reasonable method of
security, are permitted to be placed upon the Property prior to
issuance of a Certificate of Completion, but only for the purpose
of securing loans of funds to be used for financing the
Improvements, acquisition of the Agency Parcel and any other
expenditures necessary and appropriate to develop the Agency
Parcel under this Agreement, and costs and expenses incurred or
to be incurred by the Developer in furtherance of this Agreement
and only if approved by the Agency, which approval shall not be
unreasonably withheld, provided the mortgage deed of trust or
other means of security is consistent with the approved Financing
141\01\56025.01 _19-
Plan and permits the restrictions placed on the Developer Parcel
pursuant to the Grant Deed to have priority over such mortgage
deed of trust or other means of security. Prior to the close of
escrow, 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 or will be created
or attached to the relevant Property or portion thereof. The
words "mortgage" and "deed of trust" as used in this Agreement
include all other appropriate modes of financing real estate
acquisition, construction, and land development. Mortgages,
deeds of trust and other reasonable methods of security permitted
by this Section Eight are collectively referred to herein as a
"Security Financing Interest."
8.02 Holder Not Obligated to Construct.
The holder of any Security Financing Interest authorized by
this Agreement is not obligated to construct or complete any
improvements or to guarantee such construction or completion; nor
shall any covenant or any other provision in conveyances from the
Agency to Developer evidencing the realty comprising the Agency
Parcel or any part thereof be construed so to obligate such
holder. However, nothing in this Agreement shall be deemed to
permit or authorize any such holder to devote the Property or any
portion thereof to any uses, or to construct any improvements
thereon, other than those uses of improvements provided for or
authorized by this Agreement.
141\01\56025.01 -20-
8.03 Notice of Default and Ricfht to Cure.
Whenever the Agency pursuant to its rights set forth in
Section Seven of this Agreement delivers any notice or demand to
the Developer with respect to the commencement, completion, or
cessation in the construction of the Improvements, the Agency
shall at the same time deliver to each holder of record of any
Security Financing Interest creating a lien upon the Property or
any portion thereof a copy of such notice or demand. Each such
holder shall (insofar as the rights of the Agency are concerned)
have the right, but not the obligation, 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 or breach
affecting the Property and to add the cost thereof to the
security interest debt and the lien on its security interest.
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 such improvements or construction already
made) without first having expressly assumed in writing the
Developer's obligations to the Agency relating to the
Improvements under this Agreement. The holder in that event must
agree to complete the Improvements in the manner provided in this
Agreement, and submit evidence satisfactory to the Agency that it
has the qualification and financial responsibility necessary to
perform such obligations. Any such holder properly completing
the Improvements pursuant to this paragraph shall assume all
141\01\56035.01 -21-
rights and obligations of Developer under this Agreement and
shall be entitled, upon written request made to the Agency, to a
Certificate of Completion from the Agency.
8.04 Failure of Holder to Complete Improvements .
In any case where six months after default by the Developer
in completion of the Improvements under this Agreement, the
holder of record of any Security Financing Interest, having first
exercised its option to construct, has not proceeded with
construction, the Agency shall be afforded those rights against
such holder it would otherwise have against Developer under this
Agreement.
8.05 Riqht of Agencv to Cure.
In the event of a default or breach by the Developer of a
Security Financing Interest prior to the completion of the
Improvements, and the holder has not exercised its option to
complete the construction of the Improvements, the Agency may
cure the default, prior to the 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 relevant Property or any portion thereof to the extent
of such costs and disbursements.
8.06 Holder to be Notified.
The Developer, for itself, its successors and assigns hereby
warrants and agrees that each term contained herein dealing with
Security Financing and rights of holders shall be either inserted
141\01\56025.01 -22-
into the relevant deed of trust or mortgage or acknowledged by
the holder prior to its coming into any security right or
interest in the Property.
Section Nine: CONTINUING COVENANTS
9.01 Nature of Obliqations.
The covenants set forth in this Section Nine shall be
continuing covenants of Developer and its successors and assigns
with respect to the Property and shall be contained in the Grant
Deed conveying the Agency Parcel from the Agency to Developer
which Grant Deed also constitutes a declaration of restrictions
on the Developer Parcel.
9.02 Prohibition on Discrimination.
Developer covenants for itself and its successors and
assigns that:
(i) There shall be no discrimination against or
segregation of a person or of a group of persons
on account of race, color, creed, religion, sex,
sexual orientation, marital status, ancestry, or
national origin in the sale, lease, sublease,
transfer, use occupancy, tenure or enjoyment of
the Property nor shall the grantee or any person
claiming under or through the grantee establish or
permit any such practice or practices of
discrimination or segregation with reference to
the selection, location, number, use or occupancy
141\01\56025.01 -23-
of tenants, lessees, subtenants, sublessees or
vendees in the Property. The foregoing covenant
shall run with the land; and
(ii) In the sale, lease or occupancy of the Property,
Developer shall not effect or execute any
agreement, lease, conveyance of other instrument
whereby the Property, or any part thereof, is
restricted upon the basis of race, color, creed,
religion sex, sexual orientation, marital status,
ancestry, or national origin. Developer, its
successors and assigns, shall comply with all
state and local laws, in effect from time to time,
prohibiting discrimination or segregation by
reason of race, color, creed, religion, sex,
sexual orientation, marital status, ancestry, or
national origin.
9.03 Restrictions on Use.
Developer, for itself and its successors and assigns,
covenants and agrees that the Property shall be used only for
purposes permitted under the Redevelopment Plan.
Section Ten: GENERAL PROVISIONS
10.01 Notices.
Formal notices, demands, and communications between the
Agency and the Developer shall be sufficiently given if and shall
not be deemed given unless dispatched by registered or certified
141\01\56025.01 -24-
mail, postage prepaid, return receipt requested, delivered
personally, or sent by reputable overnight delivery service or
sent by facsimile transmission with a copy mailed by first class
United States mail to the principal office of the Agency and the
Developer as follows:
Agency: San Rafael Redevelopment Agency
1313 Fifth Avenue
San Rafael, California 94901
Attn: Director of Economic Development
Developer: La Terra Trifoglio, L.L.C.
181 Lynch Creek Way
P.O. Box 808044
Petaluma, CA 94975-8044
•Attn: Eugene B. Ceccotti
With Copies
To: Matthew Cappiello
50 California Street
Suite 1400
San Francisco, CA 94111
Such written notices, demands and communications may be sent
in the same manner to such other addresses as the affected party
may from time to time designate by notice as provided in this
Section 10.01.
10.02 Conflict of Interests.
No member, official or employee of the Agency shall make any
decision relating to the Agreement which affects his or her
personal interests or the interests of any corporation,
partnership or association in which he is directly or indirectly
interested, except as may be required by law.
141\01\56025.01 -25-
10.03 Non -Liability of Agencv Officials, Emplovees and
Aqents.
No member, official, employee or agent of the Agency or City
of San Rafael shall be personally liable to the Developer, or any
successor in interest, in the event of any default or breach by
the Agency or for any amount which may become due to the
Developer or successor or on any obligation under the terms of
this Agreement.
10.04 Enforced Delay.
In addition to specific provisions of this Agreement,
performance by either 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 or soils conditions which
will necessitate delays; inability to secure necessary labor,
materials or tools; delays of any contractor, sub -contractor or
supplier; acts of the other party; acts or failure to act or any
public or governmental agency or entity (other than the acts or
failure to act of the Agency or the City); or any other causes
(other than lack of funds of Developer or Developer's inability
to finance any obligation under this Agreement) beyond the
control or without the fault of the party claiming an extension
of time to perform. The party claiming such extension shall send
written notice of the extension to the other within thirty (30)
141\01\56025.01 -26-
days from the commencement of the cause. Times of performance
under this Agreement may also be extended in writing by the
Agency and the Developer.
10.05 Hold Harmless.
If any person shall assert any claim against the Agency or
the City or their respective officers, employees, agents or
contractors on account of injury to person or property alleged to
have been caused by reason of the acts of Developer, its agents,
employees, representatives, contractors or subcontractors, or
with respect to the Property or construction thereon or use
thereof, the Agency shall notify the Developer who shall defend
at its own expense any suit based upon such claim; and if any
judgment or claim against the Agency or City or their respective
officers, employees, agents or contractors shall be allowed, the
Developer shall pay or satisfy such judgment or claim and pay all
reasonable costs and expenses in connection therewith. The
foregoing indemnity shall not apply to any claim for injury to
person or property arising from the gross negligence or willful
misconduct of the Agency or City of San Rafael or their
respective officers, employees, agents or contractors.
10.06 Indemnification Regardincr Tenants.
Developer shall indemnify and hold the Agency and City
harmless against any claim made by any owner, any occupant or
tenant in or of the Developer Parcel for benefits under the
Relocation Law, for compensation under the Eminent Domain Law, or
for compensation for inverse condemnation or unreasonable
141\01\56025.01 -27-
precondemnation activity which claim arises in whole or in part
out of the sale or conveyance of the Developer Parcel or the
relocation of a person or entity from the Developer Parcel.
10.07 Liability Insurance.
Prior to issuance of a Certificate of Completion, Developer
shall maintain general liability insurance with limits of not
less than $2,000,000 each occurrence and $4,000,000 combined
single limit bodily injury and property damage. Such insurance
shall name the Agency and the City as additional insureds.
10.08 Rights and Remedies Cumulative. Except as
otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and the exercise or
failure to exercise one or more of such rights or remedies by
either party shall not preclude the exercise by it, at the same
time or different times, of any right or remedy for the same
default or any other default by the other party.
10.09 Real Estate Commissions. The Agency shall not be
responsible to the Developer for any real estate commissions or
brokerage fees in connection with this Agreement or the
transactions contemplated by this Agreement incurred by Developer
or arising from Developer's actions. Developer shall not be
responsible to the Agency for any real estate commissions or
brokerage fees in connection with this Agreement or the
transactions contemplated by this Agreement incurred by the
Agency or arising from the Agency's actions.
1*1\01\56025.01 -28-
10.10 Applicable Law.
This Agreement shall be interpreted under and pursuant to
the laws of the State of California.
10.11 Severabilitv.
If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions
shall continue in full force and effect unless the rights and
obligations of the parties have been materially altered or
abridged by such invalidation, voiding or unenforceability.
10.12 Legal Actions.
In the event any legal action is commenced to interpret or
to enforce the terms of this Agreement or to collect damages as a
result of any breach thereof, the party prevailing in any such
action shall be entitled to recover against the party not
prevailing all reasonable attorney's fees and costs incurred in
such action.
10.13 Binding Effect.
This Agreement shall be binding upon and inure to the
benefit of the heirs, administrators, executors, successors in
interest and assigns of each of the parties hereto except that
there shall be no transfer of any interest in this Agreement by
any of the parties hereto except pursuant to the terms of this
Agreement. Any reference in this Agreement to a specifically
named party shall be deemed to apply to any successor, heir,
administrator, executor or assign of such party who has acquired
141\01\56025.01 -29-
an interest in compliance with the terms of this Agreement, or
under law.
10.14 Parties Not Co -Venturers.
Nothing in this Agreement is intended to or does establish
the Agency and Developer as partners, co -venturers, or principal
and agent with one another.
10.15 Time of the Essence.
In all matters under this Agreement, the parties agree that
time is of the essence.
10.16 Complete Understandina of the Parties.
This Agreement consists of the text of the Agreement and the
attached exhibits and constitutes the entire understanding and
agreement of the parties with respect to the subject matters of
this Agreement.
WHEREFORE, the parties have executed this Agreement on the
date first noted above.
SAN RAFAEL REDEVELOPMENT AGENCY, a
public body, corporate and politic
ATTE T - ` Rod Gould
r
y �e ne . c Leon.ci:ni y
its
Agency Secretary Executive Director
LA TERRA TRIFOGLIO, L.L.C., a
Califo, to .a limited liability
Eugene B. cohti
141\01\56025.01 -30-
CALIFORNIA ALL-PURPO, _ ACKNOWLEDGMENT
State of Cal i forni a
County of Marin
On Mon., Sept. 29, 1997
Date
personally appeared Rod Gould
®(personally known to me – OR –
before me, Nancy Eurman, Notary Public
Name and Title of Officer (e.g.. "Jane Doe, Notary Pub
Name(s) of Signer(s)
proved to me on the basis of satisfactory evidence to be the person
whose name,* is/A-e subscribed to the within instrument
and acknowledged to me that he/she/thy executed the
} _ same in his/hsr/th-eir authorized capacity(tes), and that by
r
NANCY EURMAN his/tier/their signature() on the instrument the person( -4
0 COMM, 01086576 D or the entity upon behalf of which the persona) -acted,
QNOT SPUN IC-CACOUli1fLLIIFORNIA rj executed the instrument.
My Comm, Expifee Feb. 4, 2000
WITNESS my hand and official seal.
Signature of Notary Public 1
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
OWNER PARTICIPATION DISPOSITION AND DEVELOPMENT AGREEMENT
Title or Type of Document: BET. SR REDEVEL . AGENCY & LA TERRA TRI FOGLI O L.L.C.
Document Date: None yet. Number of Pages: 45 pages
Signer(s) Other Than Named Above: Eugene B. Ceccotti , Developer
Capacity(les) Claimed by Signer(s)
Signer's Name: Rod Gould
" Individual
L__� Corporate Officer
Title(s):
❑ Partner — Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other: Top of thumb here
Signer Is Representing:
San Rafael Redevel. K
Agency
Signer's Name:
Individual
Corporate Officer
Title(s):
❑ Partner —. Limited
❑ Attorney -in -Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
1994 Nat onal Notary Association • 8236 Remmel Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 V Prod. No. 5907
General
Top of thumb here
Reorder Call Toll -Free 1-800.876-6827
CALIFORNIA ALL-PURPO: ACKNOWLEDGMENT
State of California
County of Marin
On October 17, 1997 before me,
Date
personally appeared EUGENE B. CECCOTTI
Toni L. Esposti, Notary Public
Name and Title of Officer (e.g., "Jane Doe Notary Public
Name(s) of Signer(s)
FX personally known to me – OR –' proved tome on the basis of satisfactory evidence to be the person (s)
whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
______ _ his/her/theirsignature(s) on the instrument theperson(s),
° • TONI L. ESPOSTI < or the entity upon behalf of which the person(s) acted,
• Comm, # 1153996 +�pp executed the instrument.
` • NOTARY PUBLIC • CALIFORNIA Ul
Marin County WITNESS my hand and official seal.
• My Comm. Expires Sept. 26, 2001 4
Signature of Notaryblic
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
OWNER PARTICIPATION DISPOSITION AND DEVELOPMENT AGREEMENT
Title or Type of Document: BET. SR REDEVEL. AGENCY & LA TERRA TRIFOGLIO L.L.C.
Document Date: October 17, 1997
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer
Title(s):
❑ Partner — Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee _ _ _
❑ Guardian or Conservator �I `
❑ Other: Top of thumb here
Signer Is Representing:
Number of Pages:
Signer's Name:
Individual
Corporate Officer
Title(s):
❑ Partner — Limited " . General
❑ Attorney -in -Fact
❑ Trustee _ _ _
❑Guardian or Conservator � ° ,
❑ Other: Top of thumb here
Signer Is Representing:
t
r.
0 1994 National Notary Association • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309.7184 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827
Exhibit A —1
Legal Description of Developer Parcel
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SHAMROCK MATERIALS, INC
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' 08'49'29"
R=%45.85'
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50.00' BEGINNING
PARCEL TWO
A = 1722'43" 54' R/W
R = 595.85'
L = 180.73'It
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II S 57144' W
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Q 35.27'
o = 0917'21" , : ' Ni '6
R = 473.00'
08'45'00" L = 2.39' /
R 570.85'
L = 7.18'
__ ��� = 031.9'39"
R 473.0018 R zzi 73.00' ( `
/.t' = 27.4y
L 25.08 '----- /
.J �f
C S 11CSW/STUBER—STROEH 09/05/97 I L:\410500\A2
[St]2 ENGINEERING GROUP, INC. SAN RAPAEL REDE'VELOPME14T AGE11CY
CONSULTING ENGINEERS EXHIBIT A-2
790 DeLong Ave., Novato, CA. 94945-3246 THE AGENCY PARCEL
(415) 892-4763 FAX (415) 892-4502
O 1995 CITY OF SAN RAFAEL COUNTY OF MARIN CALIFORNIA
AA -830
r%^+njFnn\e'3 Fr; San F j7 - n7 7F IC107
Date: September 5, 1997
File: 4.1015.00
EXHIBIT A-2
THE AGENCY PARCEL
PARCEL ONE
Beginning at the intersection of the westerly line of Irwin Street with the northerly
line of the parcel described in the deed to E.M. Burke recorded July 13, 1946. in
Book 523 Official Records, Page 297, Marin County, California.
thence along said northerly line, on a curve to the left, whose radius point bears South
42°48'14" West 468.43 feet, through a central angle of 38°46'15", an arc length of
316.98 feet to the most northerly corner of the parcel conveyed to La Terra. Inc. by
deed recorded May 17. 1956, in Book 1029 Official Records. Page 146. Marin
County Records;
thence leaving said northerly line of Burke, and along said northerly line of La Terra
Inc., on a curve to the left, whose radius point bears South 04°01'59" West 468.43
feet, through a central angle of 40'18'00", an arc length of 329.48 feet;
thence South 52'14'54" West 35.27 feet to the northeasterly line of Lincoln Avenue;
thence leaving said northerly line of La Tensa, Inc., and along said northeasterly line
of Lincoln Avenue on a curve to the right, whose radius point bears North 4j"2442"
East 473.00 feet, through a central angle of 00'17'21", an arc length of 2.39 feet to
the southerly line of the parcel granted to the San Francisco and North Pacific
Railway Company and the North Pacific Coast Railroad Company September 24,
1891, in Book 18 of Deeds, Page 130, Marin County Records;
thence along said southerly line on a curve to the left, whose radius point bears North
40°18'57" West 595.85 feet, through a central angle of 17°22'43", an arc length of
180.73 feet to the southwest corner of the parcel conveyed to Rice Supply, Inc. by
grant recorded July 1, 1952, in Book 750 Official Records, Page 378, Marin County
Records;
thence along the southerly line of said Rice Parcel, along a curve to the right, whose
radius point bears South 20'54'41 " East 528.43 feet, through a central angle of
43'57'05", an arc length of 405.36 feet to the southeasterly corner of said Rice
Parcel;
F(DATA%WP60W%DM9-5-97015 Page 1
thence leaving said southerly line of Rice Supply, Inc. (750 °R 378), and along a
southeasterly extension of the northeasterly line of said Rice property South
40"18'06" East 174.47 feet to the westerly line of Irwin Street:
thence along said westerly line of Irwin Street, South 08'08'54" West 9.63 feet to the
Point of Beginning.
Containing 0.71 acres.
Bearings are based on California Coordinate Grid System Zone 3.
END OF DESCRIPTION
�,a D
J0 G. STUBER ;1
3303
N�A License expires �Q
9� 6-30-00 n/2�
SOF CA`\%'G�
F %DATA%WPWW%bFS9-5-97 015 Page 2
Date: September 5, 1997
File: 4.1015.00
EXHIBIT A-2
THE AGENCY PARCEL
PARCEL TWO
Beginning at a point on the easterly line of the parcel granted to the San Francisco
and North Pacific Railway Company and the North Pacific Coast Railroad Company
September 24. 1891, in Book 18 of Deeds. Page 130, Marin County Records. said
point also being the southwest comer of the parcel conveyed to Rice Supply. Inc. by
grant recorded July 1, 1952, in Boob 750 Official Records, Page 378. Marin County
Records;
thence along said easterly line (18 Deeds 130), along a curve to the right. whose
radius point bears North 57°41'40" West 595.85 feet, through a central angle of
17°22'43", an arc length of 180.73 feet to the northeasterly line of Lincoln Avenue:
thence along said northeasterly line, on a curve to the right, whose radius point bears
North 43 °42'03" East 473.00 feet, through a central angle of 03 °02'18", an arc length
of 25.08 feet;
thence leaving said northeasterly line of Lincoln Avenue, along a curve to the left,
whose radius point bears North 40°07'11" West 570.85 feet, through a central angle
of 08 °45'01 ", an arc length of 87.18 feet;
thence North 48°52'11" West 25.00 feet;
thence along a curve to the left, whose radius point bears North 48°52'11" West
545.85 feet, through a central angle of 08'49'29", an arc length of 84.07 feet;
thence South 57°41'40" East 50.00 feet to the Point of Beginning.
Containing 0.15 acres
Bearings are based on California Coordinate Grid System Zone 3.
END OF DESCRIPTION
F \DATA%WP60\4\DES\9-5-97 015 Page 3
Exhibit C
(Grant Deed and Declaration of Restriction)
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
San Rafael Redevelopment Agency
1313 Fifth Avenue
San Rafael, CA 94901
Attn: Executive Director
GRANT DEED AND DECLARATION OF RESTRICTIONS
THE SAN RAFAEL REDEVELOPMENT AGENCY, a public body,
corporate and politic, herein called "Grantor", acting to carry
out a redevelopment plan under the Community Redevelopment Law of
California, hereby grants to La Terra Trifoglio, L.L.C., a
California limited liability company, herein called "Grantee",
the real property situated in the City of San Rafael, County of
Marin, State of California, more particularly described in
Exhibit A-2 attached hereto (the "Agency Parcel") and imposes on
the real property owned by Grantee situated in the City of San
Rafael, County of Marin, State of California, more particularly
described in Exhibit A-1 attached hereto (the "Developer Parcel")
the conditions, covenants, and restrictions set forth below. The
Developer Parcel and Agency Parcel are referred to collectively
as the "Property".
SUBJECT, however, to easements of record, the Amended and
Restated Redevelopment Plan for the Central San Rafael
Redevelopment Project, hereinafter called the "Plan", which is
dated October 16, 1989, and was adopted by Ordinance No. 1572 of
the City Council of the City of San Rafael on October 16, 1989,
and recorded as Document Number 89-62452 in the Official Records
of Marin County, and is incorporated and made a part of this
Grant Deed with the same force and effect as though set forth in
full herein, and the Owner Participation, Disposition and
Development Agreement by and between Grantor and Grantee, dated
as of , 199_ and recorded in the Official
Records of Marin County on the same date as this Grant Deed,
hereinafter referred to as the "Agreement", which Agreement is
incorporated and made a part of this Grant Deed and Declaration
of Restrictions with the same force and effect as though set
forth in full herein, and the certain conditions, covenants and
restrictions as follows:
1. (a) Grantee herein covenants by and for itself, its
successors and assigns that:
141\01\56025.01 -34-
M There shall be no discrimination against or
segregation of a person or of a group of persons on
account of race, color, creed, religion, sex, sexual
orientation, marital status, ancestry, or national
origin in the sale, lease, sublease, transfer, use
occupancy, tenure or enjoyment of the Property nor
shall the Grantee or any person claiming under or
through the Grantee 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 Property. The foregoing
covenant shall run with the land; and
(ii) In the sale, lease or occupancy of the
Property, Grantee shall not effect or execute any
agreement, lease, conveyance of other instrument
whereby the Property, or any part thereof, is
restricted upon the basis of race, color, creed,
religion sex, sexual orientation, marital status,
ancestry, or national origin. Grantee, its successors
and assigns, shall comply with all state and local
laws, in effect from time to time, prohibiting
discrimination or segregation by reason of race, color,
creed, religion, sex, sexual orientation, marital
status, ancestry, or national origin.
2. Grantee, for itself and its successors and assigns
covenants and agrees that the Property shall be used only for
purposes permitted under the Redevelopment Plan.
3. It is intended and agreed that the agreement and
covenants provided in Sections 1 and 2 above shall be covenants
running with the land. In any event, and without regard to
technical classification or designation, legal or otherwise,
specifically provided in this Grant Deed and Declaration of
Restrictions, such agreement and covenants shall be, to the
fullest extent permitted by law and equity, binding for the
benefit and in favor of and enforceable by Grantor, its
successors and assigns, and against the Grantee and successor in
interest to the Grantee of the Property or any part thereof or
any interest therein, and any party in possession or occupancy of
any part thereof. It is intended and agreed that the Grantor
shall be deemed a beneficiary of the agreements and covenants
provided in Sections 1 and 2 above both for and in its own right
and also for the purpose of protecting the interests of the
community and such other parties, public or private, who benefit
from such agreements and covenants. The agreements and covenants
provided in Sections 1 and 2 above shall run in favor of Grantor
for the entire period during which such agreements and covenants
shall be in force and effect, without regard to whether Grantor
has at any time been, remains, or is an owner of any land or
141\01\56025.01 -35-
interest therein to, or in favor of, which such agreements and
covenants related. Grantor shall have the right, in the event of
any breach of any such agreement or covenant, to exercise all 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 of agreement or covenant, to which it or other
beneficiaries of such agreement or covenant may be entitled,
either by operation of the Agreement or by operation of law or in
equity.
4. It is intended and agreed that:
(a) The covenants and agreements set forth in Section
1 above shall remain in full force and effect in perpetuity.
(b) The covenants and agreements set forth in Section
2 above shall remain in full force and effect for so long as the
Redevelopment Plan remains in effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Grant Deed this day of , 199.
GRANTOR:
SAN RAFAEL REDEVELOPMENT
AGENCY, a public body corporate and politic
By: , its
GRANTEE:
LA TERRA TRIFOGLIO, L.L.C., a California
limited liability company
By its managing member:
Eugene B. Ceccotti
141\01\5602s.01 —36—
• Exhibit D
(Title Exceptions)
SUBJECT TO:
1. PROPERTY Taxes, including any assessments collected with taxes, to be levied for
the fiscal year 1997-98, which are a lien not yet payable.
2. THE LIEN of Supplemental Taxes, if any assessed pursuant to the provisions of
Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code of the
State of California.
3. ANY ADVERSE Claim based upon the assertion that some portion of said land is
tide or submerged lands, or has been created by artificial means or has accreted
to such portion so created.
4. AN EASEMENT for roadway, utility and incidental purposes in favor of the City of
San Rafael, affecting that portion of the herein described property, known as
Lincoln Avenue.
5. EASEMENT for Water Pipeline purposes together with appurtenances and rights
incidental thereto as conveyed, by Northwestern Pacific Railroad Company, a
corporation to Marin Municipal Water District, a body politic & corporate by
instrument recorded October 18, 1965 in Book 1990 of Official Records at Page
636, Marin County Records.
Affects the Southwesterly portion.
TAX Figures for the fiscal year 1996-97 are not available at this time by reason
that title is vested in Southern Pacific Transportation Company, a Delaware
Corporation.
Title of the Vestees herein was acquired 24 months or more preceding the date
hereof.
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