No preview available
HomeMy WebLinkAboutCED Exclusive Negotiating Agreement; Affordable Housing Residential DevelopmentEXCLUSIVE NEGOTIATING AGREEMENT This Exclusive Negotiating Agreement ("Agreement") is entered into by and between the City of San Rafael, a municipal corporation ("City"), and Abode Housing Development, a California nonprofit public benefit corporation ("Developer"), as of the Effective Date indicated under City's signature block, below. City and Developer are sometimes referred to individually herein as a "Party", and collectively as the "Parties". RECITALS A. City owns that certain real property designated as Assessor Parcel Number 014- 123-06 ("Property") as depicted on the "Site Map" attached hereto as Exhibit A. The Property is improved with a commercial building currently used as storage for the City's police and fire departments. B. On December 8, 2023, the City issued a Request for Proposals ("RFP") seeking a developer to develop an affordable housing project on at least eighty percent (80%) of the Property. The RFP was distributed to private developers as well as housing sponsors (as defined in Health and Safety Code Section 50074) that have notified the California Department of Housing and Community Development of their interest in surplus land. C. City received three (3) proposals, including Developer's which contemplates development of the Property as a residential development consisting entirely of affordable housing units, half of which will be affordable to households with incomes that do not exceed 60% of the area median income ("AMI") and half of which will be available to persons experiencing homelessness or to very low income households, which are defined as households with incomes less than 50% ofAMI (the "Project"). D. On May 20, 2024, the City Council of City by Resolution No. 15286, selected Developer as City's preferred developer and directed the City Manager to enter into an exclusive negotiating agreement with Developer. E. City and Developer now desire to enter into this Agreement setting forth the terms under which City and Developer will diligently and in good faith endeavor to accomplish the following: (1) during a Preliminary Stage (defined below) of negotiations, for Developer to (i) conduct certain due diligence and site planning work, including environmental investigations, to determine whether the proposed Project is feasible from a financial, design and operational perspective, and (ii) attempt to agree upon a Term Sheet with City setting forth the key terms of a Disposition and Development Agreement ("DDA") (defined below) with respect to the Property and proposed Project; and (2) if, and only if, the Parties memorialize their successful completion of the Preliminary Stage of the negotiations via a Preliminary Stage Feasibility Confirmation, the Parties will proceed to a DDA Stage of negotiations during which the Parties would negotiate and draft a comprehensive DDA setting forth the terms under which City would transfer the Property to Developer and Developer would develop the proposed Project on the Property and Developer and its successors and assigns, at its and their expense, would agree to operate the Project and rent the residential units therein to income eligible households at affordable rents in accordance with terms to be set forth in the DDA and a recorded Affordable Housing Covenant. 4884-1052-6128 v7 AGREEMENT City and Developer agree as follows: NEGOTIATION PERIOD. 1.1 Good Faith Negotiations. City and Developer, acknowledging that time is of the essence, agree for the Negotiation Period set forth in Section 1.2 below, to negotiate diligently and in good faith and endeavor to perform the tasks and due diligence necessary for successful completion of the Preliminary Stage, and if the Preliminary Stage conditions are satisfied, for the Parties to endeavor to complete the DDA Stage tasks which, if successfully concluded, would culminate in presentation of a comprehensive DDA to the City Council for its consideration and potential approval. City agrees, for the Negotiation Period, not to negotiate with, solicit offers or proposals regarding, or respond to inquiries from (other than to notify the inquiring party, person or entity that City is subject to an agreement to negotiate exclusively), any other person or entity regarding the conveyance of the Property and/or the development of the Property or any portion thereof. A DDA resulting from the negotiations hereunder shall become effective only if and after such DDA has been considered and approved by the City Council at a duly noticed public meeting called for such purpose. If a DDA is executed by City and Developer, the DDA shall thereafter govern the rights and obligations of the Parties. 1.2 Neizotiation Period Stases and Duration. a. The negotiations shall be conducted in two stages, the combined duration of which shall not exceed twelve (12) months, plus extensions, if any, as provided in subsection (b) below ("Negotiation Period"). The "Preliminary Stage" of the Negotiation Period shall commence on the Effective Date and expire six (6) months thereafter, subject to potential extension as provided in subsection (b) below, or on the date the Parties execute a Preliminary Stage Feasibility Confirmation (defined below) whichever is earlier. During the Preliminary Stage, the Parties shall work together in good faith to (i) enable Developer, at its expense, to assess whether the proposed Project is feasible from a technical, financial, and operational perspective, and develop a preliminary site plan for the Project; and (ii) negotiate a proposed DDA Term Sheet (defined below). If, on or before expiration of the Preliminary Stage, either Party determines in its sole and absolute discretion that the proposed Project is impractical or infeasible or otherwise does not meet its needs and objectives, or if either Party determines that the key terms of a DDA Term Sheet as proposed by the other Party are unacceptable to such Party, then the Party making such determination may terminate this Agreement by written notice to the other Party. If, however, on or before expiration of the Preliminary Stage each Party determines in its sole and absolute discretion that the proposed Project appears to be feasible and is likely to meet such Party's needs and objectives and that the DDA Term Sheet is acceptable to such Party, then the Parties shall memorialize the achievement of such milestones in writing ("Preliminary Stage Feasibility Confirmation") and, in such event, the Parties shall proceed to the DDA Stage (defined below) of the Negotiation Period. If the Parties have not executed a Preliminary Stage Feasibility Confirmation by the expiration of the Preliminary Stage (as it may be extended as provided for in subsection (b) below), then this Agreement shall terminate and neither Party shall have any further rights or obligations under this Agreement, except for those obligations which by their terms survive expiration or termination hereof. The "DDA Stage" of 4884-1052-6128 v7 the Negotiation Period shall commence, if at all, on the effective date of the Preliminary Stage Feasibility Confirmation and expire six (6) months thereafter, subject to potential extension as provided in subsection (b) below. During the DDA Stage, the Parties will endeavor to negotiate and draft a comprehensive DDA, including an Affordable Housing Covenant, and undertake the other DDA Stage tasks described in the Schedule of Performance attached hereto as Exhibit B. b. Extensions. The Preliminary Stage and/or DDA Stage of the Negotiation Period may each be extended from time to time if the City Manager determines in his or her sole discretion that the Parties have made substantial progress toward meeting the performance milestones identified in this Agreement and in the Schedule of Performance to merit such extension. However, the cumulative total of all such extensions granted by the City Manager shall not exceed one hundred and twenty (120) days. 2. Negotiation Period Tasks and Milestones 2.1 Preliminary Stage Tasks. During the Preliminary Stage of the Negotiation Period, Developer and City will undertake the tasks set forth in the Schedule of Performance attached hereto as Exhibit B, including endeavoring to negotiate and draft a mutually acceptable term sheet ("Term Sheet") setting forth the key terms for inclusion in the proposed DDA. The Term Sheet will address, among other things, the following: a. Transfer value of the Property and the existing improvements thereon based on an appraisal methodology agreeable to the Parties; b. Transfer method (e.g. ground lease or fee transfer); C. Details of the proposed Project land use and operational characteristics, generally consisting of affordable housing units, which may potentially include permanent supportive housing for persons experiencing homelessness; d. Details of the proposed Project structures, in plan and elevation, along with conceptual renderings; e. Agreed -upon timelines for entitlements and documentation necessary for commencement of construction; f. Conditions precedent for close of escrow, including identification of all land use approvals, building permits, and construction contracts with a general contractor that Developer will have to obtain; g. Financing details, including any debt and equity financing that Developer may have to obtain, and appropriate evidence of debt and equity commitments that Developer will need to provide to City's financial consultant prior to City's consideration of a DDA for approval and prior to closing; h. City remedies, including reverter rights, if Developer fails to timely commence or complete construction of the proposed Project by specified dates; 4884-1052-6128 v7 i. The terms of the affordable housing covenant to be recorded against the Property, including the City's remedies if Developer or its successors or assigns fails to continuously operate and maintain the Project as affordable rental housing following initial construction thereof; j. Outline of the City entitlement process to be administered and processed separately from the DDA, the costs of which will be borne exclusively by Developer; k. Developer's review of a title report for the Property, to be obtained by Developer from a mutually agreeable title company, and resolution of any title objections; and Developer's due diligence investigations of the Property. 2.2 DDA Stage. If the Parties proceed to the DDA Stage of the Negotiation Period, then City and Developer, in addition to undertaking the other DDA Stage tasks as set forth in the Schedule of Performance, will endeavor to negotiate and draft a mutually acceptable DDA, including ancillary agreements, to be considered for approval by the City Council prior to expiration of the Negotiation Period. 3. Costs Associated With the Negotiation Period Tasks. Developer shall be solely responsible for the costs associated with preparing site plans, drawings, plans, or other graphic materials; conducting project financial feasibility analysis; obtaining a title report; undertaking physical and environmental investigations of the Property and improvements thereon, including an updated Phase 1 report (and, if recommended by the Phase 1, a Phase 2 report or other subsurface soil and/or ground water investigations); any CEQA analysis required for the proposed Project; and any and all land use entitlement and permitting costs. Except as otherwise provided above, each Party shall be responsible for bearing its own internal costs associated with the Negotiation Period including, without limitation, attorneys' fees and staffing costs. 4. Right of Entry and City Materials. 4.1 Right of Entry. City shall provide Developer reasonable access to all portions of the Property and improvements thereon for the purpose of obtaining data and making surveys and tests necessary to evaluate the development potential of the Property and otherwise to conduct the land use due diligence relating to the Project as contemplated hereunder, including, without limitation, the right to make borings to investigate the soils and environmental condition of the Property with the City's prior approval and in exchange for appropriate Developer obligations to indemnify City and add City as an additional insured on Developer's or Developer's consultants insurance policies. Said right of access, and the associated insurance and indemnity requirements for invasive testing, shall be memorialized via an access agreement in a form reasonably acceptable to City. 4.2 City Materials. City will provide Developer the Phase 1 Environmental Site Assessment prepared by the ECA Group Environmental Consultants on August 23, 2023 and a title report for the Property and any other engineering, environmental reports and related data that Developer requests and that are in City's possession, custody or control (collectively, "City Materials"). Any City Materials provided to Developer will be furnished without warranty of any kind and on the express condition that Developer will make its own independent verification 4884-1052-6128 v7 of the accuracy, reliability and completeness of such information as Developer deems appropriate, and that Developer will not rely on the City Materials. 5. DEVELOPER INVESTIGATIONS AND STUDIES. At no cost to City, Developer shall make available to City any reports prepared in connection with Developer's investigation, testing, or studies of the Property, including (i) all environmental reports, appraisals, geotechnical reports, surveys, marketing reports, lot studies and improvement plans; (ii) design concepts and draft land use and infrastructure plans and any other permits and approvals for any other land use entitlements; and (iii) any other relevant information or documentation relative to entitlement, approval or development of the Project ("Third Party Materials") by Developer or by any engineer, appraiser, or any other consultant retained by Developer or any of the Developer Parties as defined below (each, a "Consultant"). Once delivered to City, the Third Party Materials shall become the property of the City. At no cost to City, every report prepared by any Consultant performing an investigation or study of the Property shall name the City as an "intended user" or state that it was prepared for the City's use. Developer shall further include contractual language in all contracts with the Consultants producing such Third Party Materials by which those Consultants consent to future use of such Third Party Materials by City and its designees without payment by City or its designees. The provisions of this Section 5 shall survive the expiration or termination of this Agreement and shall apply whether or not the Parties proceed to the DDA Stage or enter into a DDA. 6. ADDITIONAL DEVELOPER RESPONSIBILITIES 6.1 Full Disclosure. Developer shall provide to City (a) the names of its principals, officers and/or those with managerial authority, joint venturers, negotiators, development managers, consultants and directly -involved managerial employees (collectively, "Developer Parties"); and (b) all other material information concerning Developer reasonably requested by City. Any material change in the identity of the Developer Parties shall be subject to the approval of City, which shall not be unreasonably withheld. 6.2 Project Cost and Revenue Documentation. Upon request by City, Developer shall provide City or its designees with development and operating assumptions related to Project costs and revenues by category, including detailed information regarding extra- ordinary Project costs of individual Project components and full disclosure regarding the potential methods of financing to be used in the acquisition of the Property and development of the proposed Project. Developer acknowledges that detailed information regarding such development and operating assumptions will be necessary in order for City and its financial consultants to evaluate the financial terms of the proposed DDA. 6.3 Progress Reports. Developer shall keep City advised as to the status of all work to be undertaken by or on behalf of Developer as described in the Schedule of Performance. Within ten (10) days following City's request, which may be made from time to time during the Negotiation Period, Developer shall submit to City a written progress report advising City on the status of all work being undertaken by or on behalf of Developer. 4884-1052-6128 v7 7. CITY'S RESPONSIBILITIES 7.1 City Assistance and Cooperation. City shall cooperate with Developer by providing full disclosure regarding City's current actual knowledge of the existing condition of the Property or the improvements thereon. City shall share the City Materials with Developer. GENERAL PROVISIONS 8.1 No Brokerage Fees. City shall not be liable for any real estate commission or brokerage fees which may arise from the proposed transfer of the Property or any portion thereof or interest therein. Developer represents and warrants to City that it has not engaged any broker, agent or finder in connection with the acquisition or development of the Property. Developer further agrees to indemnify, defend and hold City harmless from any claim by any other broker, agent or finder retained by, or alleged to have been retained by, Developer. Developer's indemnity obligations under this Section 8.1 shall survive expiration or termination of this Agreement. 8.2 Notices. Any approval, disapproval, demand or other notice which either Party may desire to give to the other Party under this Agreement must be in writing and may be given by any commercially acceptable means, including personal delivery, or overnight courier, to the Party to whom the notice is directed at the address of the Party as set forth below, or at any other address as that Party may later designate by notice. To City: City of San Rafael 1400 Fifth Avenue, Room 203 San Rafael, CA 94901 Attention: Cristine Alilovich, City Manager With copies to: City of San Rafael 1400 Fifth Avenue, Room 203 San Rafael, CA 94901 Attention: Robert Epstein, City Attorney Burke, Williams & Sorensen, LLP 1999 Harrison Street, Suite 1650 Oakland, CA 94612-3520 Attention: Gerald J. Ramiza, Esq. To Developer: Abode Housing Development 40849 Fremont Blvd. Fremont, CA 94538 Attn: Jon White Any notice shall be deemed received on the date of delivery if delivered by personal service, three (3) business days after mailing if sent by first class mail, and on the date of delivery or refused delivery as shown by the records of the overnight courier if sent via overnight courier. 4884-1052-6128 v7 8.3 Limitations of this Agreement. By its execution of this Agreement, City is not committing itself to or agreeing to undertake: (i) disposition of the Property to Developer; or (ii) any other acts or activities requiring the subsequent independent exercise of discretion by City or any agency or department thereof. This Agreement does not constitute a disposition of property by City. Execution of this Agreement by City is merely an agreement to enter into a period of exclusive negotiations according to the terms hereof, reserving final discretion and approval by City as to any DDA, including affordable housing covenant, and all proceedings and decisions in connection therewith. In addition, nothing in this Agreement shall be construed to limit the application of CEQA to any DDA or the proposed Project or control the actions of City in meeting its CEQA obligations. In fulfilling its obligations under CEQA, City shall act independently, reserving full and complete discretion with respect to any such CEQA approvals without reference to this Agreement. City shall not be liable, in any respect, to Developer for its action or inaction in fulfilling its CEQA obligations. City will not consider the approval of any DDA or the proposed Project, unless and until it has fully reviewed and considered the environmental impacts in accordance with CEQA. City is not, and shall not be considered to be, obligated by this Agreement, or otherwise, to approve the proposed Project or any DDA, or any changes to the foregoing, or any other agreement. After CEQA review, City is not obligated, by this Agreement or otherwise, to adopt findings of overriding considerations for approval of or to take any other action in support of the proposed Project or any DDA or any changes to the foregoing, nor is City precluded from rejecting the DDA and/or proposed Project or from imposing mitigation measures as a condition of approval, which measures mitigate or avoid direct or indirect environmental effects of the proposed Project. If City rejects the DDA or proposed Project, this Agreement shall automatically terminate and, except for those obligations which by their terms survive termination hereof, neither Party shall have any further rights or obligations hereunder. 8.4 Integration. This Agreement contains the entire understanding between the Parties relating to the matters set forth herein. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. 8.5 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party. 8.6 Severabi I itv. If any term, provision, condition or covenant of this Agreement or its application to any Party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 8.7 No Assi n�. The qualifications and identity of Developer are of particular concern to City. It is because of those unique qualifications and identity that City has entered into this Agreement with Developer. Accordingly, except as otherwise expressly provided below, Developer may not transfer or assign any or all of its rights or obligations under this Agreement except with the prior written consent of the City, which consent shall be granted 4884-1052-6128 0 or withheld in the City's sole absolute discretion, and any such attempted transfer or assignment without the prior written consent of City shall be void. 8.8 Successors and Assigns. Subject to the limitations on assignment set forth in Section 8.7 above, this Agreement shall be binding upon, and inure to the benefit of, the Parties, their heirs, executors, personal representatives, nominees, successors and assigns. 8.9 Indemnity. Developer shall indemnify, defend (with counsel reasonably acceptable to City), protect and hold City, and its officers, employees, elected officials, agents and representatives, harmless from, all third -party claims, demands, damages, defense costs or liability of any kind or nature arising directly or indirectly from the implementation of this Agreement, including any Property investigation and/or acquisition activities under Section 4 above, including damages to property or injuries to persons, accidental death, and reasonable attorneys' fees and costs, whether such activities or performance thereof be by Developer or its employees, agents, contractors or subcontractors and whether such damage shall accrue or be discovered before or after expiration or termination of this Agreement. Developer's indemnity obligations under this Section 8.9 shall not extend to claims, demands, damages, defense costs or liability for property damage, bodily injury or death, to the extent (i) occasioned by the sole negligence or willful misconduct of City or its officers, employees, elected officials, agents or representatives; or (ii) related to the discovery or disturbance by Developer or its contractors, subcontractors or agents during due diligence of any pre-existing hazardous materials or hazardous substances on the Property. Developer's obligations under this Section 8.9 shall survive the expiration or other termination of this Agreement. 8.10 Confidentiality. Any information provided by Developer to City, including financial statements, pro formas and other financial projections (whether in written, graphic, electronic or any other form), that is clearly marked as "CONFIDENTIAL / PROPRIETARY INFORMATION" ("Confidential Information") shall be subject to the provisions of this Section 8.10. Subject to the terms of this Section, City shall use good faith diligent efforts to prevent disclosure of the Confidential Information to any third parties, except as may be required by the California Public Records Act (Government Code Section 6253 et seq.) or other applicable local, state or federal law (collectively, "Public Disclosure Laws"). Notwithstanding the preceding sentence, City may disclose Confidential Information to its officials, employees, agents, attorneys and advisors, but only to the extent necessary to carry out the purpose for which the Confidential Information was disclosed. Developer acknowledges that City has not made any representations or warranties that any Confidential Information received from Developer will be exempt from disclosure under any Public Disclosure Laws. In the event the City's legal counsel determines that the release of the Confidential Information is required by Public Disclosure Laws, or order of a court of competent jurisdiction, City shall notify Developer of City's intention to release the Confidential Information. If the City Attorney, in his or her discretion, determines that only a portion of the requested Confidential Information is exempt from disclosure under the Public Disclosure Laws, City may redact, delete or otherwise segregate the Confidential Information that will not be released from the non-exempt portion to be released. Developer further acknowledges that in connection with City Council's consideration of any DDA as contemplated by this Agreement, 4884-1052-6128 v7 City will need to present a summary of Developer's financial projections, including anticipated costs of development, anticipated project revenues, and returns on cost and investment. If any litigation is filed seeking to make public any Confidential Information, City and Developer shall cooperate in defending the litigation, and Developer shall pay City's reasonable out-of-pocket costs of defending such litigation and shall indemnify City against all costs and attorneys' fees awarded to the plaintiff in any such litigation. Alternatively, Developer may elect to disclose the Confidential Information rather than defend the litigation. Developer's obligations under this Section 8.10 shall survive the expiration or termination of this Agreement. The restrictions set forth herein shall not apply to Confidential Information to the extent such Confidential Information: (a) is now, or hereafter becomes, through no act or failure to act on the part of City or its representatives, generally known or available; (b) is known by the City at the time of receiving such information as evidenced by City's public records; (c) is hereafter furnished to City by a third party, as a matter of right and without restriction on disclosure; (d) is independently developed by City without any breach of this Agreement and without any use of or access to Developer's Confidential Information as evidenced by City's records; (e) is not clearly marked "CONFIDENTIAUPROPRIETARY INFORMATION" as provided above (except where Developer notifies City in writing, prior to any disclosure of the Confidential Information, that omission of the "CONFIDENTIAUPROPRIETARY INFORMATION" mark was inadvertent), or (f) is the subject of a written permission to disclose provided by Developer to City. 8.11 Waiver of Lis Pendens. It is expressly understood and agreed by the Parties that no lis pendens shall be filed against any portion of the Property with respect to this Agreement or any dispute or act arising from it. The provisions of this Section shall survive the expiration or other termination of this Agreement. 8.12 Counterparts. This Agreement may be signed in multiple counterparts which, when signed by both parties, shall constitute a binding agreement. 8.13 lntcrpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both Parties. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or any of its terms. 8.14 ALithorit\. Developer and each person executing this Agreement on behalf of Developer does hereby covenant and warrant that (a) Developer is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Developer has and is duly qualified to do business in California, (c) Developer has full corporate, partnership, trust, association or other power and authority to enter into this Agreement and to perform all of Developer's obligations hereunder, and (d) each person (and all of the persons if more than one signs) signing this Agreement on behalf of Developer is duly and validly authorized to do so. City and each person executing this Agreement on behalf of City does hereby covenant and warrant that (i) City is a municipal 9 4884-1052-6128 v7 corporation duly established and validly existing under the laws of the State of California, (ii) City has full power and authority to enter into this Agreement and to perform all of City's obligations hereunder, and (iii) each person (and all of the persons if more than one signs) signing this Agreement on behalf of City is duly and validly authorized to do so. 8.15 Limitation of Remedies. In the event of an uncured default by either Party under this Agreement, the non -defaulting Party's exclusive remedy is to terminate this Agreement. In no event shall either Parry have the right, and each Party expressly waives the right, to seek monetary damages of any kind (including but not limited to actual damages, economic damages, consequential damages, or lost profits) in the event of a default by the other Party under this Agreement. 8.16 Gcwernin, La%%. This Agreement, and the interpretation and enforcement thereof, shall be governed by the laws of the State of California without regard to conflicts of law principles. 1Signature Page Follows] 10 4884-1052-6128 v7 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the dates set opposite their signatures. The effective date of this Agreement shall be the date this Agreement is signed by City. DATED: 09/23 "Effective Date" ATTEST: 0-1-4 1." :So 21, 202464 34 PDT Lindsay Lara, City Clerk APPROVED AS TO FORM: 2024 By: RdderF F E/ssfa�i Rnbcrt F. Epstein ;Sep 2., 2024 10:25 PDT) Robert Epstein, City Attorney DATED: 09/20 4884-1052-6128 v7 .2024 CITY: CITY OF SAN RAFAEL, a California municipal corporation By: Cristine Alilovich (Sep 23, 20241327 EDT) Cristine Alilovich, City Manager DEVELOPER: ABODE HOUSING DEVELOPMENT, a California nonprofit public benefit corporation By: j08autah whlt2 Jonathan White (Sep 20, 202410:22 PDT) Name: Jonathan White Title: Chief Real Estate Officer EXHIBIT A 519 4`" Street outlined in yellow. EXHIBIT A A -I 4884-1052-6128 0 EXHIBIT B SCHEDULE OF PERFORMANCE Preliminary Stage I (6 months) 1. Within 30 days of Developer obtains a title report and retains a consultant qualified to the Effective Date perform a Phase I Assessment and (if necessary) a Phase 11 Assessment of the Property 2. Promptly Developer and City commence negotiation and drafting of Term following Sheet Effective Date 3 Within 120 days Developer's Consultants shall submit to City a Project description after the Effective and planning/zoning analysis so that City may determine whether Date any CEQA exemption may apply to the proposed Project or, if applicable, undertake an Initial Study pursuant to CEQA to determine whether any CEQA documentation is needed for consideration of approval of the Project 4 Prior to expiration Developer and City reach agreement on principal business terms of of Preliminary a proposed DDA as evidenced by a non -binding Term Sheet. Stage 5 Prior to expiration Developer and City memorialize successful completion of all of Preliminary Preliminary Stage tasks by executing a Preliminary Stage Feasibility Stage Confirmation or Agreement terminates as provided in Section 1.2. DDA Stage* (6 months) *DDA Stage applicable only if Developer and City have memorialized successful completion of all Preliminary Stage tasks. 6. Within 30 days Developer shall submit a financing plan, which shall include: following a) Development cost estimate and an updated operating budget commencement of the DDA stage b) Proposed resident income mix, including the location and type of permanent supportive housing for persons experiencing homelessness and any facilities associated therewith c) Sources and uses d) Application requirements and target dates e) Site access or control documents required f) Federal, state and local subsidies or funding EXHIBIT B B-1 4884-1052-6128 v7 7. Within 30 days Developer shall submit a proposed Project schedule, including following deadlines for commencement a) Project approvals & entitlements of the DDA stage b) Proposed project funding c) Building permitting d) Construction e) Occupancy 8. Within 30 days City shall commission an appraisal of the Property based on following mutually acceptable appraisal valuation instructions, with the costs commencement of such appraisal paid by the City. of the DDA stage 0 Prior to expiration Developer and City negotiate and draft a proposed DDA of DDA Stage and, in any event, prior to City Council's consideration of a r)rn e EXHIBIT B B-2 4884-1052-6128 v7 RIGHT OF ENTRY AGREEMENT This RIGHT OF ENTRY AGREEMENT (this "Agreement") is made by and between the City of San Rafael, a California municipal corporation ("City"), and Abode Housing Development, a California nonprofit public benefit corporation ("Developer"), as of the Effective Date indicated under City's signature block, below. City and Developer are sometimes referred to herein individually as a "Party" and collectively as the "Parties". RECITALS A. City is the fee owner of certain real property located at 519 4th Street in downtown San Rafael, County of Marin, designated as Assessor Parcel Number 014-123-06 and more particularly described in Exhibit A and depicted in Exhibit B attached hereto (the "Property"). The Property is improved with a commercial building currently used for storage for the City's police and fire departments. B. City and Developer entered into that certain Exclusive Negotiating Agreement dated as of the Effective Date herein (the "ENA"). The purpose of the ENA is to establish procedures and standards for the negotiation by City and Developer of a proposed Disposition and Development Agreement ("DDA") pursuant to which Developer would acquire a fee or ground leasehold interest in the Property and redevelop the Property with a residential development consisting entirely of affordable housing units, half of which will be affordable to households with incomes that do not exceed 60% of the area median income and half of which will be available to persons experiencing homelessness or to very low income households, which are defined as households with incomes less than 50% of the area median income (collectively, the "Project"). C. In accordance with the ENA, Developer anticipates expending funds to prepare plans and conduct certain studies that are needed to assess the feasibility of the Project and suitability of the Property and requires a grant of entry to the Property in order to undertake such studies and investigations. Developer acknowledges and agrees that this Agreement in itself does not obligate the City Council to approve and authorize the DDA with Developer, nor does it grant Developer the right to develop the Project. D. City desires to grant to Developer temporary, non-exclusive rights of access to the Property to undertake its investigation activities in connection with the proposed Project. E. The Parties further desire hereby to set forth their respective rights and obligations in connection therewith. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 4893-4302-7890 v4 OAK Right of Access. a. Grant. City hereby grants to Developer, its agents, employees, representatives, contractors and subcontractors (each, a "Developer Party"), a temporary, non- exclusive, right of access ("Temporary Access") to enter upon, exit from, traverse, and otherwise gain access to the Property for purposes of performing the Work (defined below) as described in this Agreement. The Temporary Access may be used by Developer, at its sole cost and expense, to enter the Property to perform inspections, investigations, studies and tests of the Property (the "Work") as Developer deems necessary to evaluate the suitability and development potential of the Property, all pursuant to the terms and conditions specified in Exhibit C attached hereto (the "Work Plan") as to where, when and how such Work will be undertaken. All costs of such Work, including but not limited to a Phase 1 environmental assessment and (if recommended by the Phase 1 environmental assessment) a Phase 2 environmental assessment, shall be paid and borne by Developer at its sole cost and expense. Except as otherwise approved by the City, all Work shall be performed between the hours of 8:30 am and 5:00 pm. b. On -Site Work Notice. Developer shall notify City in writing at least seventy-two (72) hours before performing any Work on the Property described and permitted in the Work Plan, providing such information as required by the Work Plan and including without limitation the identity of the contractor or consultant doing the Work and the appropriate evidence of insurance. In the event Developer desires to conduct any investigation on the Property other than what is described in the Work Plan, or desires to revise any detail of Work from what is described in the Work Plan, Developer shall submit a request for such new work or change to City in writing for review and approval in City's reasonable discretion. C. Documentation. Copies of any and all test results, data, surveys, reports, studies, and maps prepared by Developer or on behalf of Developer by Developer Parties ("Work Product"), shall be provided to City within 2 business days following receipt by Developer. City may use any Work Product for its purposes as it deems appropriate, at no cost, expense or liability to Developer or any Developer Party. Developer acknowledges and agrees that any engineering, environmental or other reports and related data (collectively, "City Reports"), if any, provided by City regarding the Property will be and are furnished without warranty of any kind and on the express condition that Developer will make its own independent verification of the accuracy, reliability and completeness of such information as Developer deems appropriate, and that Developer will not rely on the City Reports. d. Treatment of City Property. All asphalt or concrete material removed as a result of Work, if any, shall be disposed off -site at an appropriate disposal facility at the sole cost and expense of Developer. All excavated soils, if any, will be stockpiled at a suitable off -site location, tested for purposes of characterizing the soil for off -site disposal, and appropriately disposed of, all by Developer at its sole cost and expense. Any excavation areas will be backfilled with the native excavated soils or clean fill material, and any area from which asphalt or concrete is removed shall be restored with the same material as removed. If required and directed by any local, state or federal governmental agency, Developer shall transport and dispose of excavated soils impacted with hazardous materials, and shall sign all manifests for the disposal of any such soils as the "generator" thereof. 4893-4302-7890 v4 OAK e. Term of Temporary Access. The term of the Temporary Access and this Agreement shall commence upon the Effective Date (as noted below on the signature page) and, unless sooner terminated as provided below, shall expire on April 30, 2026 (the "Termination Date"), and any Work desired by Developer shall be completed and the Property restored pursuant to Section l.d by the Termination Date. The foregoing notwithstanding, the term of the Temporary Access and this Agreement shall terminate prior to the Termination Date (i) on no less than three calendar (3) days' prior written notice from City to Developer, (ii) upon termination of the ENA without City and Developer having entered into a DDA, or (iii) upon termination of a DDA that City and Developer may enter into without conveyance of the Property to Developer. Developer shall provide written notice to City upon completion of the Work as provided herein. f. No Unreasonable Interference by City. Except as qualified in the Work Plan and this Agreement, City shall not obstruct, use, or knowingly permit use of the Property in any manner that will unreasonably interfere with the Work or the other rights expressly granted to Developer hereunder (collectively, "Access Rights"). g. Rights Retained by City. Developer acknowledges that there are offices in the building on the Property and City's operations must continue without unreasonable interruption or interference by Developer, subject only to Developer's rights pursuant to the Work Plan and this Agreement. City shall have the right to use the Property for any purposes not inconsistent with the express rights granted to the Developer hereunder. Developer shall take all actions reasonably requested by City to enable City to make full use of the Property, except to the extent that such use by City would be inconsistent with the express rights granted to Developer hereunder. 2. Work. a. Conduct of Work, Repair and Restoration. i. Developer shall undertake the Work using methods and materials selected by Developer at its sole cost and expense, and in accordance with applicable laws. All Work shall be conducted and in a manner and timetable determined in Developer's reasonable discretion but shall be completed prior to expiration or termination of the term of the Temporary Access and this Agreement provided above in Section Le. ii. During any Work, Developer shall cordon off parking spaces and portions of the Property, as needed and as allowed by the Work Plan, and take such other actions as may be specified in the Work Plan or reasonably requested by City to ensure the safety of the City's employees, contractors and invitees; members of the public; and vehicles operated or parked on the Property by City's employees, contractors or invitees. iii. In addition to restoration of the Property following any Work pursuant to Section l.d, Developer shall promptly repair damage to the Property to the extent caused by Developer or a Developer Party, so as to restore damaged areas to as near to the same condition in which they existed immediately prior to such damage, to the reasonable satisfaction of City. 4893-4302-7890 v4 OAK 3 b. Permits and Licenses; Compliance with Law. In connection with its obligations hereunder, Developer (i) shall comply with all applicable legal requirements, including all federal, state, and local laws (including City ordinances and resolutions, and requirements of other agencies with authority), whether or not said laws are expressly stated herein, and (ii) shall, at its sole cost and expense, obtain and maintain all necessary permits and licenses. C. Liens. Developer shall pay, when due, all persons furnishing labor or materials in connection with any work to be performed by or on behalf of Developer or a Developer Party related to the Work and on or about the Property, and shall keep the Property free and clear of any related mechanics' liens. If any lien is filed, Developer shall cause such lien to be released and removed within ten (10) days after the date of filing, and if Developer fails to do so, City may take such action as may be necessary to remove such lien, without the duty to investigate the validity of the lien (unless Developer has commenced an action to contest, dispute or defend the claims of lienholders and has provided City with written notice of the pendency of the action, in which case Developer shall bond over or otherwise cause such lien to be removed of record pending resolution of the work dispute), and Developer shall reimburse City for reasonable actual amounts expended in connection with removing such lien together with interest thereon at the Local Agency Investment Fund interest rate established by the State of California, from the date of expenditure. 3. IRSUrMICe. Prior to commencing any portion of the Work, Developer shall obtain and maintain, or cause a Developer Party to obtain and maintain, in full force for the entire term of this Agreement, at no expense to City, insurance for the Work against claims which may arise out of or result from performance of the Work by Developer or a Developer Party, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. All policies shall be written on an occurrence basis. All insurance shall be written by companies that are authorized to write business in the State of California and have, at all times, a Best's rating of "A- VIII" (A minus VIII) or better by AM Best & Company, and with coverage and policy limits as follows (unless otherwise specified herein): (i) Commercial General Liability insurance written on Insurance Services Office ("ISO") Commercial General Liability Coverage "occurrence" form CG 00 01 or another Commercial General Liability "occurrence" form providing equivalent coverage and including Broad Form Comprehensive General Liability coverage, blanket contractual liability coverage, Independent Contractors coverage, coverage for bodily injury (including death), property damage (including loss of use thereof) and products and completed operations with limits of not less than $5,000,000 per occurrence. Limits may be provided in a "layered" program utilizing primary, umbrella or excess liability policies and shall be maintained for at least one year following completion of the Work; (ii) Comprehensive auto liability for all owned, hired and non -owned vehicles brought onto the Property with combined single limits of not less than $2,000,000 per occurrence; (iii) Worker's Compensation insurance as required by the State of California; 4893-4302-7890 v4 OAK (iv) Employer's liability insurance on all employees, for occupational accidents or disease, with limits of not less than $1,000,000 per occurrence; and (v) Pollution Legal Liability insurance in amounts no less than $1,000,000, providing coverage for all pollution conditions, which includes, but is not limited to, the remediation of soil, groundwater, or other contaminants. Developer shall name City, or cause City to be named, as an additional insured under the policies required in Section 3(1), 3(ii) and 3(v) above. All policies shall provide for (a) at least thirty (30) days written notice to City prior to cancellation, and (b) at least ten (10) days written notice to City for cancellation due to non-payment of applicable premiums. All policies of insurance shall contain full waivers of subrogation in favor of City. Developer or a Developer Party's insurance coverage shall be the primary insurance with respect to any other insurance or self-insurance programs maintained by City and such other insurance or self-insurance programs shall be excess and non-contributory. Prior to commencement of the Work, Developer shall deliver to City a certificate of insurance evidencing the coverage provided by each policy and provide replacement certificates fifteen (15) days prior to the expiration of any required coverage. Developer shall include each Developer Party as insured under its policies or shall furnish separate certificates and endorsements for each Developer Party. All coverage for each Developer Party shall be subject to all of the requirements stated herein. 4. Assumption of Risk and Releases. Each person entering the Property under this Agreement shall do so at its own risk. On behalf of itself, each Developer Party, and their agents, representatives, assigns, heirs, spouses, successors -in -interest, executors, administrators, employees, contractors, subcontractors, material suppliers and vendors (collectively, "Releasors"), Developer assumes all risk of entering the Property and agrees that City is irrevocably and unconditionally released and shall not be liable in any manner for injury to or death of Releasors or for damage to property of Releasors arising from any cause. This release applies to all potential future claims and Developer on behalf of itself and the Releasors agrees to waive any and all rights pursuant to Section 1542 of the California Civil Code, which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." Developer shall include within each of its contracts and subcontracts, and within any other agreements with vendors or suppliers who will be entering the Property, an assumption of risk and a release in favor of City substantially identical to this Section 4. 5. Indemnification. Developer agrees, on behalf of itself and its Releasors, that City and its elected and appointed officials, officers, employees, agents, contractors, representatives, volunteers, successors and assigns (collectively including City, the "Indemnified Parties") shall 4893-4302-7890 v4 OAK not be liable for any bodily injury, sickness, disease or death of any person or damages to any property or any person pursuant to this Agreement and that Developer shall be responsible for any liability, cost, expenses or claim associated with injuries to or death of any person or damage to property related directly or indirectly to any act or failure to act, whether by an Indemnified Party or any Releasor, arising from the activities under this Agreement, including, without limitation, performance of the Work. Developer agrees on behalf of itself and its Releasors to indemnify, defend (with counsel reasonably acceptable to City), protect and hold harmless the Indemnified Parties, from and against any and all actions, claims and liability for any loss or damage, including, but not limited to, bodily injury, sickness, disease or death of any person or damage to any property, tangible or intangible, arising directly or indirectly from this Agreement and activities under color of this Agreement, including but not limited to entry upon the Property or performance of the Work by any Releasor, and from all costs and expenses, including reasonable attorneys' fees, arising therefrom, whether such loss or damage shall accrue or be discovered before or after expiration or termination of this Agreement. Developer's indemnity obligations under this Section 5 shall not extend to claims, demands, damages, defense costs or liability for property damage, bodily injury or death, to the extent (i) occasioned by the active negligence or willful misconduct of an Indemnified Party, or (ii) related to the discovery or disturbance by Developer or a Developer Party during the Work of any pre-existing hazardous materials or hazardous substances on the Property. The terms of this Section 5 shall survive expiration or termination of this Agreement. 6. No Merger: Amendment. The rights granted hereunder shall not be terminated or extinguished by nonuse, abandonment, merger, or any other manner. This Agreement, including any changes or additions to the Work Plan, may be modified only by the written consent of the Parties, evidenced by a document that has been fully executed. Notwithstanding any of the foregoing, City has the right to unilaterally terminate Developer's right to enter the Property pursuant to this Agreement via written notice that has been executed by City, but no such termination shall affect the rights of City, or the obligations or liability of Developer, hereunder, for any Work undertaken by Developer before the date of such termination. 7. Waiver. No waiver of or failure to enforce any breach of any of the terms, covenants, agreements, restrictions or conditions of this Agreement shall be construed to be a waiver of any succeeding breach of the same or other terms, covenants, agreements, restrictions or conditions hereof. 8. Counterparts. The Parties hereto agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement, binding all of the Parties hereto, notwithstanding all of the Parties are not signatory to the original or the same counterparts. 9. Legal and Equitable Relief. Each Party shall have the right (but not the obligation) to prosecute any proceedings at law or in equity against any other Party, or any other person or entity, violating or attempting to violate or defaulting in the performance of any of the provisions contained in this Agreement in order to prevent such Party, person or entity from violating or attempting to violate or defaulting in the performance of any of the provisions of this Agreement or to recover damages for any such violation or default. It is agreed that damages would be an inadequate remedy for violation of this Agreement by any Party and, therefore, 4893-4302-7890 v4 OAK 6 injunctive or other appropriate equitable relief shall be available to the other Party. The remedies available under this Section 9 shall include, by way of illustration but not limitation, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions enjoining any such violation or attempted violation or default, and actions for specific performance of this Agreement. The result of every action or omission whereby any covenant, condition or restriction herein contained is violated in whole or in part is hereby declared to be and to constitute a nuisance, and every remedy allowed by law or equity against any Party, either public or private, shall be applicable against every such result and may be exercised by any Party. 10. Venue; Governing Law; Attorneys' Fees. In the event that any action is brought by either Party hereto as against the other Party for the enforcement or declaration of any right or remedy in or under this Agreement or for the breach of any covenant or condition of this Agreement, venue shall be in the Superior Court of the County of Marin, State of California, and the prevailing Party shall be entitled to recover, and the other Party agrees to pay (in addition to any other relief that may be granted) all fees and costs to be fixed by the court therein including, but not limited to, reasonable attorneys' fees. This Agreement, and the interpretation and enforcement thereof, shall be governed by the laws of the State of California without regard to its conflicts of law principles. 11. Notices. Any notice to be given or other document to be delivered by either Party to the other hereunder shall be in writing and may be given by personal delivery, first-class mail or overnight courier, to the Party to whom it is directed at the address of the Party as set forth below, or at any other address as that Party may later designate by written notice. Any notice shall be deemed received (a) on the date of delivery if delivered by personal service, three (3) business days after mailing if sent by first class mail, and on the date of delivery or refused delivery as shown by the records of the overnight courier if sent by overnight courier. If to Developer: Abode Housing Development 40849 Fremont Blvd. Fremont, CA 94538 Attn: Jon White If to City: City of San Rafael 1400 Fifth Avenue, Room 203 San Rafael, CA 94901 Attn: Cristine Alilovich, City Manager With a copy to: City of San Rafael 1400 Fifth Avenue, Room 202 San Rafael, CA 94901 Attn: Robert Epstein, City Attorney And with a copy to: Burke, Williams & Sorensen LLP 1999 Harrison Street, Suite 1650 Oakland, CA 94612-3520 Attn: Gerald J. Ramiza 4893-4302-7890 v4 OAK 12. Relationship between the Parties; Authority; Binding Effect. This Agreement does not create any partnership or agency between the Parties, each of which is, and at all times shall remain, solely responsible for all acts of its officials, employees, agents, contractors and any subcontractors, including any negligent acts or omissions. Neither Party is an agent of the other, and has no authority to act on behalf of or to bind the other Party to any obligation whatsoever. Each Party to this Agreement represents and warrants that the person executing this Agreement on behalf of such Party is duly and validly authorized to do so on behalf of the entity it purports to bind. Subject to the limitations on assignment set forth in Section 14, each of the terms, covenants and conditions of this Agreement shall extend to, be binding on and shall inure to the benefit of the Parties and each of their respective heirs, executors, personal representatives, nominees, successors and assigns and all those taking by, under or through it or them. 13. No Third Party Beneficiaries. Notwithstanding anything in this Agreement to the contrary, nothing herein is intended to create any third party benefit and there are no third party beneficiaries of this Agreement or the Access Rights. 14. Assignment. Developer shall not assign its rights, obligations and responsibilities under this Agreement, in whole or in part, except with the written consent of City which may be granted or denied in its sole discretion. Any attempted assignment without such prior consent shall be invalid and void. The terms of Section 8.7 of the ENA shall apply regarding assignment of this Agreement. 15. Entire Agreement; Interpretation. The recitals above and exhibits attached hereto are incorporated herein by reference and comprise part of this Agreement. This Agreement together with the ENA constitutes the entire agreement between the Parties with respect to the subject matter hereof and no prior oral or written understanding shall be of any force or effect with respect to the matters covered herein. In the event of a conflict between the terms in this Agreement and the ENA, this Agreement shall govern. The titles to the sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both Parties. 16. Severability. If any term, provision, condition or covenant of this Agreement or its application to any Party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. [Signatures Appear On Next Page] 4893-4302-7890 v4 OAK 8 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date noted below. CITY: CITY OF SAN RAFAEL, a California municipal corporation By: Cristine Alilovich(Sep 23, 202418:27 EDT) Cristine Alilovich, City Manager Date: 09/23/2024 "Effective Date" APPROVED AS TO FORM: By: Rouen F. Epstein (Sep 2.2024 30:25 PDT Robert Epstein, City Attorney 4893-4302-7890 0 OAK DEVELOPER: ABODE HOUSING DEVELOPMENT, a California nonprofit public benefit corporation �7oiia6hah Whi'M By: Jonathan White (Sep 20, 202410:22 PDT) Name: Jonathan White Its: Chief Real Estate Officer Date: 09/20/2024 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Lots 5 and 6, "Forrest Park, Subdivision of Block 56, Coleman Addition, San Rafael, Cal." filed April 9, 1924 in Volume 5 of Maps at Page 31, Marin County Records. 4893-4302-7890 v4 OAK Exhibit A EXHIBIT B MAP OF PROPERTY (property highlighted in yellow) -�•. L - I �� J5C ,11117 ! ` 1$ tTly 930 f a.3 ST 523 •.� ► ! 519 5� �fl 5'15.157 l; 11 � • _ � � 97. 1 161 �• 5380 ;� gtl, f 529 4893-4302-7890 v4 OAK Exhibit B r. EXHIBIT C WORK PLAN Capitalized, undefined terms used in this Exhibit C have the meanings given to them in the Right of Entry Agreement by and between City and Developer, to which this Exhibit C is attached ("Right of Entry Agreement"). Developer will contract directly with design professionals and development consultants to perform evaluation and due diligence work necessary for real estate predevelopment, which may include the following: Inspections and evaluations by architects, mechanical, electrical and plumbing (MEP) engineers, structural engineers, civil engineers, landscape architects, and landscaping service consultants during the Preliminary Stage of the ENA. Contractor visit for initial construction pricing during the Preliminary Stage of the ENA. Phase 1 environmental assessment and (if recommended by the Phase 1 environmental assessment) Phase 2 environmental assessment. A Phase 2 environmental assessment may include subsurface boring for contaminant detection, and destructive testing of existing structures. Developer shall retain the consultant to perform the Phase 1 environmental assessment and Phase 2 environmental assessment by the deadline specified in the ENA. The Phase 1 environmental assessment and the Phase 2 environmental assessment shall be completed by the expiration of the Preliminary Stage of the ENA. 4. Similar activities to those described above after expiration of the Preliminary Stage of the ENA as may be necessary for Developer to refine its construction, architectural, entitlement, and landscaping plans. All Work shall be performed on Monday through Friday, during the business hours of 8:30am — 5:00pm. Prior to any entry onto the Property by a Developer Party, Developer shall: • Provide notice pursuant to Sections Lb and 11 of the Right of Entry Agreement, with a courtesy copy to Stacey Laumann at Stacey.Laumann(a,citvofsanrafael.ort,. Notice must: • Specifically describe the activities to be undertaken; • Include names of all persons that will enter the Property and a phone number for at least one person; • Include certificate(s) of insurance evidencing the coverage required by Section 3 of the Right of Entry Agreement. • Await City's response to Developer's notice. City shall respond at least twenty-four (24) hours before Developer's proposed entry date, and City shall not unreasonably withhold, condition, or delay approval. However, it shall be reasonable for City to propose alternative dates within three (3) business days after Developer's proposed entry date. 4893-4302-7890 v4 OAK Exhibit C RESOLUTION 15286 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DETERMINING AND DECLARING THE CITY -OWNED SITE LOCATED AT 519 4T" STREET (APN 014-123-06) TO BE EXEMPT SURPLUS LAND PURSUANT TO GOVERNMENT CODE SECTION 54221(f)(1)(A), AND AUTHORIZING THE CITY MANAGER TO ENTER INTO AN EXCLUSIVE NEGOTIATING AGREEMENT WITH ABODE HOUSING DEVELOPMENT WHEREAS, the City of San Rafael (the "City") is the owner of that certain real property within the City limits at 519 4th Street, consisting of approximately 0.304 acre, designated as APN 014-123-06 (the "Property"); and WHEREAS, the Property is located within the Downtown San Rafael Precise Plan Area and is currently improved with a commercial building used as storage for the City's police and fire departments; and WHEREAS, on December 8, 2023, the City issued a Request for Proposals ("RFP") seeking a developer to develop an affordable housing project on at least eighty percent (80%) of the Property. The RFP was distributed to private developers as well as housing sponsors (as defined in Health and Safety Code Section 50074) that have notified the California Department of Housing and Community Development of their interest in surplus land; and WHEREAS, City received three (3) proposals, one of which was submitted by Abode Housing Development, a California nonprofit public benefit corporation ("Abode"); and WHEREAS, Abode's proposal contemplates development of the Property exclusively with affordable housing units, half of which will be affordable to households with incomes that do not exceed 60% of the area median income ("AMI") and half of which will be available to persons experiencing homelessness or to very low income households (households with incomes less than 50% of AMI) (the "Project"); and WHEREAS, City staff has reviewed the proposals, interviewed the three (3) respondents, determined that Abode has demonstrated the highest level of skill, experience, and financial capacity and that Abode's proposed Project would best advance City's goals for development of the Property; and WHEREAS, the Surplus Land Act (Government Code Section 54220 et. seq.) ("Act") requires local agencies, including charter cities, to follow certain procedures to dispose of "surplus land" or declare land to be "exempt surplus land" at a regular public meeting prior to disposition; and 4873-5218-5190 v5 WHEREAS, pursuant to Government Code Section 54221(f)(1)(A), surplus land that is transferred pursuant to Government Code Section 37364 for development as affordable housing qualifies as "exempt surplus land"; and WHEREAS, Government Code Section 37364 authorizes local agencies to sell, lease, or otherwise dispose of real property to provide housing affordable to persons and families of low- or moderate -income provided that (i) at least 80% of the area of the property will be used for development of housing, and (ii) at least 40% of the housing units developed on the property will be affordable to households whose income is not greater than 60% of AMI (75% of the upper limit for "lower income households"), of which at least one-half will be affordable to households of very low-income (50% AMI); and WHEREAS, City desires to enter into an Exclusive Negotiating Agreement, in substantially the form included in the staff report accompanying this resolution ("ENA") with Abode for the purpose of negotiating the terms of a proposed Disposition and Development Agreement ("DDA") and affordable housing covenant ("Affordable Housing Covenant") for the Property and the Project, conducting predevelopment site analysis and project scoping, and determining a preliminary site plan for the Project; and WHEREAS, a DDA, if approved by the City Council and entered into by the parties, will require the Property to be developed and operated for residential uses consistent with the affordability requirements set forth in Government Code Section 37364. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Rafael that: 1. The City Council adopts the recitals set forth above as findings of fact. 2. The City Council has determined, and hereby affirms, that a DDA, if approved by the City Council and entered into by the parties, will require recordation of an Affordable Housing Covenant ensuring that the Property will be developed for and used to provide affordable housing, including housing affordable to persons and families of low- and very low-income in a manner consistent with the affordability requirements set forth in Government Code Section 37364, that this use is in the City's and community's best interests, and that development of the Property and the Project in accordance with requirements to be set forth in a DDA and an Affordable Housing Covenant will satisfy the requirements of Government Code Section 37364. 3. The City Council further makes the following findings, pursuant to Government Code Section 37364: 4873-5218-5190 v5 a. As will be more particularly set forth in the proposed DDA, (i) not less than 80% of the Property will be required to be developed for housing, and (ii) within the Project overall, at least 40% of any housing units developed on the Property will be affordable to households whose income is not greater than 60% AMI (75% of the upper limit for "lower income households"), of which at least one-half will be affordable to households of very low-income (50% AMI). b. The proposed DDA will require recordation of a separate Affordable Housing Covenant with a term of not less than 55 years against the Property, to ensure the affordable residential units within the Project are restricted for occupancy at affordable rents by eligible households with household incomes consistent with the requirements of Government Code Section 37364. 4. Based upon the foregoing, the City Council hereby determines and declares the Property to be exempt surplus land under Government Code Section 54221(f)(1)(A) as property proposed to be transferred pursuant to Government Code Section 37364. The City Council further hereby directs City staff to send a notification to HCD that the City Council has declared the Property exempt surplus land by this resolution. 5. The City hereby authorizes the City Manager to enter into an ENA with Abode in substantially the form attached to the staff report, subject to minor conforming changes as approved by the City Attorney. I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday the 20th day of May 2024, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Hill, Kertz, Llorens Gulati & Mayor Kate NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None LINDSAY LARA, City Clerk 4873-5218-5190 v5 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Community & Economic Development Project Manager: Stacey Laumann for Micah Hinkle Extension: Contractor Name: Abode Housing Development Contractor's Contact: Cyrus Hoda, Sr. Project Manager Contact's Email: choda@abode.org O FPPC: Check if Contractor/Consultant must file Form 700 Step J RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT a. Email PINS Introductory Notice to Contractor DATE n/a Check/Initial _. 1 Project Manager 4/5/2024 b. Email contract (in Word) and attachments to City ND Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager 8/28/2024 b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor ❑X 3 Department Director Approval of final agreement form to send to contractor Forward three (3) originals of final agreement to 4 Project Manager contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ❑ N/A agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 5/20/2024 Date of City Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 8/29/2024 SL Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) Agreement executed by City Council authorized 9 ^City Manager / Mayor official 10 City Clerk 1 Attest signatures, retains original agreement and forwards copies to Project Manager San Rafael -Abode Housing Development 519 4th Street ENA and Right of Entry Final Audit Report 2024-09-23 Created: 2024-09-16 By: Laraine Gittens (laraine.gittens@cityofsanrafael.org) Status: Signed Transaction ID: CBJCHBCAABAAZV9aTSXOnXzm4jgbQ6do3TgVBiMxp4R3 "San Rafael -Abode Housing Development 519 4th Street ENA a nd Right of Entry" History Document created by Laraine Gittens (laraine.gittens@cityofsanrafael.org) 2024-09-16 - 11:17:07 PM GMT E'-► Document emailed to jwhite@abode.org for signature 2024-09-16-11:23:58 PM GMT Email viewed by jwhite@abode.org 2024-09-17 - 0:03:15 AM GMT 6© Signer jwhite@abode.org entered name at signing as Jonathan White 2024-09-20 - 5:22:57 PM GMT 00 Document e-signed by Jonathan White (jwhite@abode.org) Signature Date: 2024-09-20 - 5:22:59 PM GMT - Time Source: server C7� Document emailed to rob.epstein@cityofsanrafael.org for signature 2024-09-20 - 5:23:01 PM GMT Email viewed by rob.epstein@cityofsanrafael.org 2024-09-21 - 5:24:22 PM GMT 6© Signer rob.epstein@cityofsanrafael.org entered name at signing as Robert F. Epstein 2024-09-21 - 5:25:04 PM GMT 6p Document e-signed by Robert F. Epstein (rob.epstein@cityofsanrafael.org) Signature Date: 2024-09-21 - 5:25:06 PM GMT - Time Source: server C'4 Document emailed to Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) for approval 2024-09-21 - 5:25:08 PM GMT IQ Adobe Acrobat Sign Email viewed by Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) 2024-09-23 - 2:35:23 PM GMT 6o Document approved by Brenna Nurmi (brenna.nurmi@cityofsanrafael.org) Approval Date: 2024-09-23 - 2:35:29 PM GMT - Time Source: server P—+ Document emailed to cristine.alilovich@cityofsanrafael.org for signature 2024-09-23 - 2:35:31 PM GMT Email viewed by cristine.alilovich@cityofsanrafael.org 2024-09-23 - 10:26:38 PM GMT 6© Signer cristine.alilovich@cityofsanrafael.org entered name at signing as Cristine Alilovich 2024-09-23-10:27:08 PM GMT i;t Document e-signed by Cristine Alilovich (cristine.alilovich@cityofsanrafael.org) Signature Date: 2024-09-23 - 10:27:10 PM GMT - Time Source: server E'y Document emailed to brenna.nurmi@cityofsanrafael.org for signature 2024-09-23 - 10:27:13 PM GMT Email viewed by brenna.nurmi@cityofsanrafael.org 2024-09-23-10:33:53 PM GMT 6© Signer brenna.nurmi@cityofsanrafael.org entered name at signing as Brenna Nurmi (for) 2024-09-23 - 10:34:08 PM GMT 66 Document e-signed by Brenna Nurmi (for) (brenna.nurmi@cityofsanrafael.org) Signature Date: 2024-09-23 - 10:34:10 PM GMT - Time Source: server fd Agreement completed. 2024-09-23 - 10:34:10 PM GMT a Adobe Acrobat Sign