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MASTER DEVELOPMENT AGREEMENT
Orbisonia Heights Transit Oriented Development Project
This Master Development Agreement (the "Agreement") is dated _________________
___, 2022, and is between the County of Contra Costa, a political subdivision of the State of
California (the "County") and Pacific West Communities Inc., an Idaho corporation
("Developer").
RECITALS
A. Defined terms used but not defined in these recitals are as defined in Article 1 of
this Agreement.
B. The County has succeeded to the housing assets of the former Contra Costa
County Redevelopment Agency (the "Former Agency") in accordance with California Health
and Safety Code Section 34176. In its capacity as housing successor, the County owns
approximately forty-four (44) parcels of real property consisting of approximately 7.767 acres,
located near West Leland Road and Bailey Road, in the unincorporated area of Bay Point,
commonly referred to as the Orbisonia Heights Site (the "Property"). The Property is located
within the Bay Point Redevelopment Project Area (the "Project Area") and is more particularly
described in Exhibit A attached to and incorporated into this Agreement.
C. The Property has been identified as a "housing asset" pursuant to California
Health and Safety Code Section 34176. The Oversight Board of the Contra Costa County
Successor Agency and the California Department of Finance have approved such identification.
The Former Agency acquired the Property using the Former Agency's low and moderate housing
fund, which was established pursuant to California Health and Safety Code Section 33334.2.
D. The County issued a Request for Qualifications/Request for Proposals (the
"RFP") in March 2017 for a developer to develop the Property. The County desires the Property
to be developed as a moderately high density residential mixed-use community with
neighborhood-serving commercial (i.e., a community that includes businesses that support the
residents of the community, such as grocery stores, pharmacies, childcare facilities, a library,
health care services, and other services that increase social resilience). The County also desires
the development of the Property to take advantage of the area's proximity to the Pittsburg/Bay
Point BART Station and Ambrose Park, consistent with the Pittsburg/Bay Point BART Station
Specific Plan (the "Specific Plan").
E. After evaluating responses to the RFP, the County selected Developer as the
developer of the Property. The County and Developer entered into an Exclusive Negotiating
Rights Agreement dated September 12, 2017 (the "Original ENRA"). The Original ENRA was
replaced by an Exclusive Negotiating Rights Agreement dated March 9, 2021 (the "ENRA"),
pursuant to which the County and Developer began preliminary negotiations of this Agreement.
Pursuant to the ENRA, the County and Developer are entering into this Agreement to facilitate
the sale of the Property to Developer and the development of the Property.
F. Developer has proposed to develop a mixed-use project on the Property consisting
of approximately 384 multi-family residential rental units (each a "Unit", and together, the
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"Housing Improvements") and approximately 40,000 square feet of commercial space (the
"Commercial Improvements"). Together, the Housing Improvements and the Commercial
Improvements are the "Development". The Development, as well as all landscaping, roads and
parking spaces on the Property and any additional improvements on the Property, are the
"Improvements". A conceptual site plan of the Development showing the basic physical
characteristics, massing, and layout of the Improvements is attached to this Agreement as Exhibit
B (the "Conceptual Site Plan").
G. As shown on Exhibit B, the Development will include two multi-story buildings.
The building on the southern portion of the Property is "Site A." The building on the northern
portion of the Property is "Site B." Both Site A and Site B will have Housing Improvements
constructed above Commercial Improvements (although not all Housing Improvements will be
above Commercial Improvements) or parking. In accordance with the Map Act (California
Government Code sections 66410-13.5) and section 659 of the California Civil Code, Developer
intends to create vertical subdivisions of the airspace in Site A and Site B in order to create
separate parcels for the Housing Improvements and the Commercial Improvements. A vertical
subdivision is a three-dimensional division of airspace where one or more airspace lots or parcels
exist above or below others. A subdivision of airspace establishes not only horizontal property
boundaries, but also vertical boundaries tied to elevation above sea level. The parcels used for
the construction of the Housing Improvements are each a "Housing Parcel" and the parcels used
for the construction of Commercial Improvements are each a "Commercial Parcel." Together, the
Housing Parcels and the Commercial Parcels are the "Development Parcels."
H. The Developer intends to construct the Development in three phases (each a
"Phase"). Phase I is anticipated to be constructed on Site A and to consist of (i) approximately
150 Units constructed on top of ground-level podium parking, and (ii) a library (collectively,
"Phase I"). Phase II is anticipated to be constructed on Site B and to consist of (i) approximately
184 Units constructed on top of ground-level podium parking and (ii) commercial space
(collectively, "Phase II"). Phase III is anticipated to be constructed on Site B and consist of
approximately 50 Units constructed with tuck-under parking and surface parking (collectively,
"Phase III"). The Developer intends to create three (3) different limited partnerships, each of
which will (i) have the Developer or an affiliate of Developer as its general partner, and (ii) own,
construct and operate one Phase (each a "Partnership").
I. Each Phase of the Development will be subject to a separate Disposition,
Development, and Loan Agreement ("DDLA") setting forth the terms of the development and
financing of that Phase, including the terms of the County seller carry-back financing for that
Phase. Each Partnership that is designated as the developer of a particular Phase will enter into a
separate DDLA with the County. The amount allocated as the County seller carry-back financing
for a particular Phase will be equal to an amount determined by multiplying the Property Value,
as defined below, by a fraction, the numerator of which is the number of Units in that particular
Phase and the denominator of which is the total number of Units expected to be developed on the
Property, rounded to the nearest whole dollar. In no event will the sum of the amounts so
determined exceed Four Million Six Hundred Thousand Dollars ($4,600,000). The form of
DDLA to be used for each Phase is attached hereto as Exhibit F.
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J. The County has prepared the report required by, and has conducted a public
hearing pursuant to, California Health and Safety Code Section 33433 with respect to the sale of
the Property to Developer for redevelopment of the Property; and the County has made the
findings required pursuant to California Health and Safety Code Section 33433 with respect to
such sale, including the appraised value of the Property (such value, the "Property Value"). The
County intends to convey the Property in its capacity as housing successor and as permitted
under Health and Safety Code Section 33433.
K. Pursuant to the California Environmental Quality Act (Public Resource Code
21000 et seq.), and its implementing regulations ("CEQA"), following a duly noticed public
hearing, the County has prepared, reviewed and approved the Environmental Impact Report
dated June 18, 2002 for the Specific Plan (the "EIR"), which EIR contemplates the Development.
The EIR has served as the environmental documentation for the County's consideration and
approval of this Agreement and the transactions contemplated by this Agreement.
The parties therefore agree as follows:
AGREEMENT
ARTICLE 1
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
The following terms have the following meanings:
(a) "Accessibility Requirements" has the meaning set forth in Section 4.8(a).
(b) "Agreement" has the meaning set forth in the first paragraph.
(c) "Air Rights Parcel Map" means the final subdivision map or final
condominium plan (as applicable) recorded against the Property to create the Housing Parcels
and the Commercial Parcels.
(d) "Approved Financing" has the meaning, with respect to each Phase, as
defined in Section 1.2(e) of the DDLA for such Phase.
(e) "CEQA" has the meaning set forth in Recital K.
(f) "Certificate of Completion" means, with respect to each Phase, the
certificate(s) to be issued by the County pursuant to Section 4.5 of this Agreement, or
comparable County sign-off on the completion of construction of the Improvements.
(g) "Close of Escrow" means, with respect to each Phase, the date the Grant
Deed and the Memorandum of DDLA are recorded against the Housing Parcel that relates to that
Phase.
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(h) "Commencement of Construction" has the meaning set forth in
Section 4.3.
(i) "Commercial Improvements" has the meaning set forth in Recital F.
(j) "Commercial Parcel" has the meaning set forth in Recital G.
(k) "Completion Date" means, with respect to each Phase, the date a final
certificate of occupancy, or equivalent document, is issued by the County to certify that the Units
in that Phase may be legally occupied.
(l) "Conceptual Site Plan" has the meaning set forth in Recital F and is
attached to this Agreement as Exhibit B.
(m) "Construction Plans" means the detailed plans, specifications, working
drawings, elevations and other information that are (i) consistent with the Design Development
Documents that are approved in accordance with Section 3.3, and (ii) used by the Developer, its
contractors and subcontractors to construct the Improvements.
(n) "County" has the meaning set forth in the first paragraph of this
Agreement.
(o) "County Documents" means, with respect to each Phase, this Agreement,
the Memorandum of MDA, the DDLA, the Memorandum of DDLA, the Grant Deed, the Note,
the Regulatory Agreement, the Notice of Affordability Restrictions, and the Deed of Trust.
(p) "DDLA" has the meaning set forth in Recital I and a form of which is
attached to this Agreement as Exhibit F.
(q) "Deed of Trust" means, with respect to a particular Phase, the Deed of
Trust with Assignment of Rents, Security Agreement, and Fixture Filing among the relevant
Partnership, as Trustor, Commonwealth Title Company, as trustee, and the County, as
beneficiary, in the form provided by the County, that will encumber the Housing Parcel of that
Phase upon transfer of the Housing Parcel to the relevant Partnership, to secure repayment of the
Loan for that Phase and performance of the covenants of the County Documents.
(r) "Default Rate" means the lesser of the maximum rate permitted by law
and ten percent (10%) per annum.
(s) "Deposit" has the meaning set forth in Section 2.1.
(t) "Design Development Documents" means, with respect to the
Development, drawings, specifications and other documents that fix and describe the size,
quality, and character of the Improvements as to architectural, basic structural and mechanical
features and systems and that include a schematic design, a detailed site plan, floor plans,
elevations, complete drawings with structural dimensions, materials, colors and other features
and means, with respect to a particular Phase, the drawings, specifications and other documents
that (i) fix and describe the size, quality, and character of the Improvements for that Phase with
respect to architectural, basic structural and mechanical features and systems and, (ii) include a
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schematic design, a detailed site plan, floor plans, elevations, and complete drawings with
structural dimensions, materials, colors and other features.
(u) "Developer" has the meaning set forth in the first paragraph of this
Agreement.
(v) "Development" has the meaning set forth in Recital F.
(w) "Development Budget" means, with respect to a particular Phase, the
proforma development budget for that Phase, including sources and uses of funds, as approved
by the County in accordance with Section 4.5 of the DDLA for that Phase, for the construction
and operation of that Phase.
(x) "Development Parcels" has the meaning set forth in Recital G.
(y) "EIR" has the meaning set forth in Recital K.
(z) "ENRA" has the meaning set forth in Recital E.
(aa) "Escrow" means, with respect to a particular Phase, the escrow established
with the Title Company for the purpose of conveying the Housing Parcel and Commercial Parcel
for that Phase from the County to the Developer or the relevant Partnership.
(bb) "Event of Default" has the meaning set forth in Section 7.1.
(cc) "Former Agency" has the meaning set forth in Recital B.
(dd) "Grant Deed" means, with respect to a particular Phase, the grant deed by
which the County conveys the relevant Housing Parcel to the relevant Partnership, in the form
provided by the County.
(ee) "Hazardous Materials" means: (i) any substance, material, or waste that is
petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing
material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a
pesticide, herbicide, or any other agricultural chemical, and (ii) any waste, substance or material
defined as or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "toxic materials", "toxic waste", "toxic substances," or words of similar
import under any Hazardous Materials Law.
(ff) "Hazardous Materials Claims" means with respect to the Property (i) any
and all enforcement, cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened against Developer or the Property pursuant to any Hazardous Materials
Law; and (ii) all claims made or threatened by any third party against Developer or the Property
relating to damage, contribution, cost recovery compensation, loss or injury resulting from any
Hazardous Materials.
(gg) "Hazardous Materials Law" means any federal, state or local laws,
ordinances, or regulations relating to any Hazardous Materials, health, industrial hygiene,
environmental conditions, or the regulation or protection of the environment, and all
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amendments thereto as of this date and to be added in the future and any successor statute or rule
or regulation promulgated thereto.
(hh) "Housing Improvements" has the meaning set forth in Recital F.
(ii) "Housing Parcel" has the meaning set forth in Recital G.
(jj) "Improvements" has the meaning set forth in Recital F.
(kk) "Land Use Approvals" means the permits and approvals necessary for the
development of the Improvements on the Property, including, but not limited to, overall design
and architectural review, to the extent applicable, and environmental review.
(ll) "Loan" means, with respect to a particular Phase, the seller carry-back
financing provided by the County to the Developer in the amount set forth in the DDLA for that
Phase.
(mm) "Master Development Budget" means the proforma development budget,
including sources and uses of funds, as approved by the County, pursuant to Section 3.6 below,
for the construction and operation of the Development.
(nn) "Master Financing Plan" means Developer's current plan for financing the
construction and operation of the Housing Improvements and Commercial Improvements
attached to this Agreement as Exhibit C.
(oo) "Master Schedule of Performance" means the schedule for performance of
the Predevelopment Obligations that is attached as Exhibit D.
(pp) "Memorandum of DDLA" means, with respect to a particular Phase, the
Memorandum of Disposition, Development, and Loan Agreement, in the form provided by the
County, to be recorded against the relevant Housing Parcel for that Phase at Close of Escrow.
(qq) "Memorandum of MDA" means the Memorandum of Master
Development Agreement, in the form provided by the County, that is required to be recorded
against the Property prior to the closing of the first Phase.
(rr) "Note" means, with respect to each Phase, the promissory note in the form
provided by the County that evidences each Partnership's obligation to repay the Loan for each
Phase.
(ss) "Notice of Affordability Restrictions" means, with respect to a particular
Phase, the Notice of Affordability Restrictions on Transfer of Property, between the County and
the relevant Partnership in the form provided by the County, that will encumber the Housing
Parcel upon transfer of that Housing Parcel to the relevant Partnership, and will restrict the
development and operation of that Housing Parcel to affordable housing.
(tt) "Partnership" has the meaning set forth in Recital H.
(uu) "Partnership Agreements" mean the limited partnership agreements of the
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Partnerships, each of which is subject to approval by the County pursuant to Section 5.6(e).
(vv) "Phase" has the meaning set forth in Recital H.
(ww) "Predevelopment Obligation" has the meaning set forth in Section 3.1
below.
(xx) "Project Area" has the meaning set forth in Recital B.
(yy) "Property" has the meaning set forth in Recital B.
(zz) "Redevelopment Plan" means the redevelopment plan entitled
"Redevelopment Plan for the Bay Point Redevelopment Project Area," as adopted by the Board
of Supervisors of the County by Ordinance No. 87-102, on December 29, 1987, as amended
from time to time.
(aaa) "Regulatory Agreement" means, with respect to a particular Phase, the
Regulatory Agreement and Declaration of Restrictive Covenants between the County and the
relevant Partnership, in the form provided by the County, evidencing County requirements, that
will encumber the Housing Parcel of that Phase upon transfer of that Housing Parcel to the
relevant Partnership.
(bbb) "Released Parties" has the meaning set forth in 2.7(e).
(ccc) "RFP" has the meaning set forth in Recital D.
(ddd) "Site A" has the meaning set forth in Recital G.
(eee) "Site B" has the meaning set forth in Recital G.
(fff) "Specific Plan" has the meaning set forth in Recital B.
(ggg) "Subdivision Map" means the final parcel map or final subdivision map
(as applicable) recorded against the Property to create the Development Parcels.
(hhh) "Term" means the period of time that commences on the date of this
Agreement, and expires, unless sooner terminated in accordance with this Agreement, (1) as to
the Housing Improvements on the fifty-fifth (55th) anniversary of the Completion Date of the last
of the Housing Improvements to be completed, and (2) as to the Commercial Improvements,
upon the issuance of the Certificate of Completion for the last of the Commercial Improvements
to be completed.
(iii) "Title Company" means Commonwealth Title Company.
(jjj) "Transfer" has the meaning set forth in Section 5.6.
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Section 1.2 Exhibits
The following exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A: Legal Description of the Property
Exhibit B: Conceptual Site Plan
Exhibit C: Master Financing Plan
Exhibit D: Master Schedule of Performance
Exhibit E: Mitigation Requirements
Exhibit F: Form DDLA
ARTICLE 2
DISPOSITION OF PROPERTY
Section 2.1 Developer Deposit.
Upon execution of this Agreement, Developer shall deposit with the County the sum of
Twenty-Five Thousand Dollars ($25,000), (the "Deposit"). The Deposit will be applied to
County costs incurred in the transfer of the Property including County legal costs, and will not be
applied to the purchase price for any part of the Development. The Deposit is nonrefundable.
Section 2.2 Memorandum of MDA
Substantially concurrently with the execution of this Agreement, Developer shall record
the Memorandum of MDA against the Property.
Section 2.3 Transfer of Property.
The transfer of the Housing Parcel and Commercial Parcel for each Phase is subject to
Article 2 of the DDLA for each Phase.
ARTICLE 3
PREDEVELOPMENT OBLIGATIONS
Section 3.1 Predevelopment Obligations.
(a) Within the time periods set forth in the Master Schedule of Performance,
Developer shall: (i) cause the Design Development Documents to be completed by a licensed
architect, (ii) submit the Design Development Documents to the County for review, (iii) apply
for all necessary Land Use Approvals, other than any building permits, (iv) apply for the
Subdivision Map and Air Rights Parcel Map in order to facilitate the construction of the Housing
Improvements and the Commercial Improvements, (v) prepare and submit a Master
Development Budget to the County for approval, (vi) cause Construction Plans to be prepared,
and (vii) submit the Construction Plans to the County for review, each as more fully described
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below and each a "Predevelopment Obligation".
(b) Developer shall complete each of the Predevelopment Obligations no later
than the date set forth in the Master Schedule of Performance attached to this Agreement as
Exhibit D, subject to Force Majeure as described in Section 8.14. The Master Schedule of
Performance may be modified by the County Director – Department of Conservation and
Development on behalf of the County without formal amendment of this Agreement.
(c) Satisfaction of these conditions depends on performance by Developer.
Only the County can waive satisfaction of the conditions in this Article 3. If Developer fails to
satisfy all Predevelopment Obligations within the time period set forth in the Master Schedule of
Performance, the County may terminate this Agreement pursuant to Section 7.2 and exercise any
and all remedies available to it.
(d) During the performance of the Predevelopment Obligations, Developer
shall, each month, and from time to time as reasonably requested by the County, provide the
County with written progress reports regarding the status of the performance of the
Predevelopment Obligations and community outreach regarding the Development.
Section 3.2 Right of Entry.
Prior to the Close of Escrow for each Phase, Developer has the right to enter the Property
during normal business hours to conduct investigations in accordance with this Agreement. In
the event Developer or its consultants enter upon the Property, Developer shall:
(a) Give the County seventy-two (72) hours' notice of intent to enter the
Property and the purpose for such entry;
(b) Repair and restore any damage it may cause;
(c) Deliver to the County, within ten (10) days of receipt thereof, a complete
copy of any investigation, test, report or study which Developer conducts, or causes to be
conducted, with respect to the Property;
(d) Indemnify, defend and hold the County and its directors, officers,
employees and agents harmless from any and all claims, liabilities, damages, losses, expenses,
costs and fees (including attorneys' fees and costs) that may proximately arise out of Developer's
entry upon the Property or the investigation(s) and test(s) which Developer may conduct; and
(e) Prior to entry, cause the County to be named as an additional insured on a
Commercial General Liability insurance policy with limits not less than Two Million Dollars
($2,000,000) each occurrence combined single limit for Bodily Injury and Property Damage,
including coverage for Contractual Liability, Personal; Injury, Broadform Property Damage,
Products and Completed Operations. The required insurance is to be provided under an
occurrence form by an insurer authorized and licensed to provide such insurance in the State of
California.
Section 3.3 Design Development Documents.
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(a) During the preparation of the Design Development Documents, Developer
shall hold regular progress meetings with the County and communicate and consult informally
with the County as frequently as necessary to ensure that the proposed Design Development
Documents receive the County's prompt consideration. Developer shall cause the Design
Development Documents to be consistent, and in substantial conformity, with the Conceptual
Site Plan.
(b) The County shall review Developer's proposed Design Development
Documents and either approve or disapprove them within thirty (30) days after receipt. Any
disapproval shall state in writing the specific reasons for the disapproval and specify in
reasonable detail all of the changes the County requests be made in order to obtain approval.
Developer shall thereafter submit revised proposed Design Development Documents within
thirty (30) days after notification of disapproval. The County shall either approve or disapprove
the revised proposed Design Development Documents within thirty (30) days after the date such
revised proposed Design Development Documents are received by the County, and shall approve
the revised proposed Design Development Documents if the requested changes have been made.
(c) If Developer fails to submit proposed Design Development Documents
within the time required by the Master Schedule of Performance, or if the County disapproves of
the revised proposed Design Development Documents, the County may terminate this
Agreement pursuant to Section 7.2 and exercise its remedies pursuant to this Agreement. Only
upon County approval of Design Development Documents will Developer's obligation to prepare
and submit Design Development Documents be deemed satisfied.
Section 3.4 Land Use Approvals.
To satisfy its obligation to apply for all necessary Land Use Approvals, other than the
building permits, Developer shall deliver evidence of having applied for such permits and
approvals to the County not later than the date for performance set forth in the Master Schedule
of Performance. Only upon the County's receipt of satisfactory evidence of Developer having
applied for all necessary Land Use Approvals, other than the building permits, will Developer's
obligation to submit such evidence be deemed satisfied.
Section 3.5 Final Maps.
The County acknowledges that during the Term Developer intends to subdivide the
Property to create the Development Parcels and then create the Housing Parcels and the
Commercial Parcels. The County grants to Developer the right to proceed with subdivision of
the Property into the Development Parcels, the Housing Parcels and the Commercial Parcels
through the Subdivision Map and the Air Rights Parcel Map, subject to the County's approval of
the Subdivision Map and the Air Rights Parcel Map. The County shall cooperate in the
subdivision process and execute any necessary consents in its capacity as fee owner of the
Property. The Developer shall bear all costs associated with obtaining the Subdivision Map and
the Air Rights Parcel Map. The Developer acknowledges that approval of the Subdivision Map
and the Air Rights Parcel Map by the County pursuant to this Section is solely in the County's
capacity as fee owner of the Property and does not constitute approval by the County in its
planning capacity.
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Section 3.6 Master Development Budget.
(a) Developer shall cause the Master Development Budget to include a
breakdown of the costs of constructing the Improvements for each Phase, based on the Master
Financing Plan previously approved by the County, and an operating proforma for the operation
of the Development. Developer shall also submit to the County copies of all required funding
commitments for construction and permanent financing for the Development, and any other
information that is reasonably necessary to enable the County to determine, in its reasonable
judgment, that Developer has the financial capability to pay all costs of constructing and
operating the Development, taking into account all committed funds and all realistically
established costs of constructing and operating the Development. The County acknowledges that
all funding may not be committed by the time of approval of the Master Development Budget
and will permit an estimate of funds expected to be committed for each Phase. The Development
Budget for each Phase will be approved separately in accordance with Section 4.5 of the DDLA
for such Phase. The Master Development Budget must show the development and operating
costs of the Housing Improvements separate from the development and operating costs of the
Commercial Improvements.
(b) The County shall review the proposed Master Development Budget and
shall either approve or disapprove the proposed Master Development Budget in writing within
thirty (30) days after receipt. Any disapproval shall state in writing the specific reasons for the
disapproval and specify in reasonable detail the required revisions to the previously-submitted
proposed Master Development Budget. Developer shall thereafter submit a revised proposed
Master Development Budget within thirty (30) days after notification of disapproval. The
County shall either approve or disapprove the revised proposed Master Development Budget
within thirty (30) days after the date the revised proposed Master Development Budget is
received by the County.
(c) If Developer fails to submit the Master Development Budget within the
time required by the Master Schedule of Performance, or if the County disapproves of the
revised Master Development Budget, the County may terminate this Agreement pursuant to
Section 7.2 and exercise its remedies pursuant to this Agreement. Only upon County approval of
the Master Development Budget will Developer's obligation to prepare and submit the Master
Development Budget be deemed satisfied.
(d) Developer shall submit any material revision to the approved Master
Development Budget to the County for its review and approval. Any proposed revised Master
Development Budget shall be considered and approved or disapproved by the County in the
same manner and according to the same timeframe set forth above for the initial Master
Development Budget. Until a revised Master Development Budget is approved by the County,
the previously-approved Master Development Budget shall govern the financing of the
Development.
Section 3.7 Construction Plans.
(a) The County shall review Developer's proposed Construction Plans and
either approve or disapprove them within thirty (30) days after receipt. Any disapproval shall
state in writing the specific reasons for the disapproval and specify in reasonable detail all of the
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changes the County requests be made in order to obtain approval. Developer shall thereafter
submit revised proposed Construction Plans within thirty (30) days after notification of
disapproval. The County shall either approve or disapprove the revised proposed Construction
Plans within thirty (30) days after the date such revised proposed Construction Plans are received
by the County, and shall approve the revised proposed Construction Plans if the requested
changes have been made. The Developer acknowledges that approval of the Construction Plans
by the County pursuant to this Agreement does not constitute approval as required for issuance
of a building permit or otherwise in connection with the Land Use Approvals.
(b) If Developer fails to submit proposed Construction Plans within the time
required by the Master Schedule of Performance, or if the County disapproves of the revised
proposed Construction Plans, the County may terminate this Agreement pursuant to Section 7.2
and exercise its remedies pursuant to this Agreement. Only upon County approval of
Construction Plans will Developer's obligation to prepare and submit Construction Plans be
deemed satisfied.
ARTICLE 4
CONSTRUCTION OF THE IMPROVEMENTS
Section 4.1 Permits and Approvals.
Developer shall obtain all permits and approvals necessary for the construction of the
Improvements for each Phase no later than the date provided in Section 5.1 of the relevant
DDLA for each Phase, or as indicated in the conditions of approval for the entitlements,
whichever is earlier.
Section 4.2 Construction Bonds.
With respect to each Phase, not later than thirty (30) days prior to the proposed
Commencement of Construction, Developer shall deliver to the County copies of labor and
material bonds and performance bonds for the construction of the Improvements in an amount
equal to one hundred percent (100%) of the scheduled cost of the construction of the
Improvements. Such bonds must name the County as a co-obligee.
Section 4.3 Commencement of Construction.
With respect to each Phase, Developer shall cause the Commencement of Construction of
the Improvements to occur no later than ninety (90) days after receipt of building permit
approval for that Phase, or such later date that the County approves in writing. For the purposes
of this Agreement, "Commencement of Construction" means, with respect to each Phase, the
date set for the start of construction of the Improvements in the notice to proceed issued by
Developer to Developer's general contractor.
Section 4.4 Completion of Construction.
(a) Developer shall diligently prosecute construction of the Improvements to
completion, and shall cause the construction of the Improvements to be completed no later than
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[thirty (30)] months following Commencement of Construction for Phase I, or such later date
that the County approves in writing.
Section 4.5 Certificate of Completion.
(a) Promptly after completion of the Improvements for each Phase in
accordance with the provisions of this Agreement, the County will provide Developer a
Certificate of Completion certifying to the completion of the relevant Improvements. Separate
Certificates of Completion may be issued for the Housing Improvements and the Commercial
Improvements for each Phase. The Certificate of Completion will be conclusive determination
that the covenants in this Agreement with respect to the obligations of Developer to construct the
Improvements (excluding Developer's compliance with Section 4.7) and the dates for the
beginning and completion of construction have been met. The Certificate of Completion will be
in such form as will enable it to be recorded against the Property in the official records of Contra
Costa County. The Certificate of Completion will not constitute evidence of compliance with or
satisfaction of any obligation of Developer: (a) to any holder of a Security Financing Interest;
(b) to pay prevailing wages; and (c) to rent the housing units that are part of the Housing
Improvements in accordance with the terms of this Agreement and the relevant Regulatory
Agreement. The Certificate of Completion may not be deemed a notice of completion under the
California Civil Code.
(b) With respect to the Housing Improvements, the issuance of the Certificate
of Completion by the County shall have no effect on the Term of this Agreement and the
provisions of this Agreement remain in effect.
(c) With respect to the Commercial Improvements, the issuance of the
Certificate of Completion by the County for the last completed Commercial Improvements in the
Development shall serve to terminate this Agreement as to the Commercial Improvements except
for those provisions which by their terms survive termination.
Section 4.6 Construction Pursuant to Plans and Laws.
(a) Compliance with Laws. Developer shall cause all work performed in
connection with the Development to be performed in compliance with:
(i) all applicable laws, codes (including building codes and codes
applicable to mitigation of disasters such as earthquakes), ordinances, rules and regulations of
federal, state, county or municipal governments or agencies now in force or that may be enacted
hereafter; and
(ii) all directions, rules and regulations of any fire marshal, health
officer, building inspector, or other officer of every governmental agency now having or
hereafter acquiring jurisdiction. Developer may permit the work to proceed only after
procurement of each permit, license, or other authorization that may be required by any
governmental agency having jurisdiction, and Developer is responsible to the County for the
procurement and maintenance thereof.
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Section 4.7 Prevailing Wages.
(a) State Prevailing Wages.
(i) To the extent applicable, Developer shall:
(1) pay, and shall cause any consultants or contractors to pay,
prevailing wages in the construction of the Improvements as those wages are determined
pursuant to California Labor Code Section 1720 et seq.;
(2) cause any consultants or contractors to employ apprentices
as required by California Labor Code Section 1777.5 et seq., and the implementing regulations
of the Department of Industrial Relations (the "DIR"), and to comply with the other applicable
provisions of California Labor Code Sections 1720 et seq., and implementing regulations of the
DIR;
(3) keep and retain, and shall cause any consultants and
contractors to keep and retain, such records as are necessary to determine if such prevailing
wages have been paid as required pursuant to California Labor Code Section 1720 et seq., and
apprentices have been employed are required by California Labor Code Section 1777.5 et seq.;
(4) post at the Property, or shall cause the contractor to post at
the Property, the applicable prevailing rates of per diem wages. Copies of the currently
applicable current per diem prevailing wages are available from DIR;
(5) cause contractors and subcontractors constructing the
Improvements to be registered as set forth in California Labor Code Section 1725.5 and provide
County evidence of such registration including all registration numbers, the name of all
contractors and subcontractors;
(6) cause all contracts to include the requirements set forth in
California Labor Code Section 1720 et seq. including a copy of the California Labor Code
Section Sections listed in California Labor Code Section 1775(b)(1);
(7) cause its contractors and subcontractors, in all calls for
bids, bidding materials and the construction contract documents for the construction of the
Improvements to specify that:
(A) no contractor or subcontractor may be listed on a
bid proposal nor be awarded a contract for the construction of the Improvements unless
registered with the DIR pursuant to California Labor Code Section 1725.5; and
(B) the construction of the Improvements is subject to
compliance monitoring and enforcement by the DIR.
(8) provide the County all information required by California
Labor Code Section 1773.3 as set forth in the DIR's online form PWC-100 within 2 days of the
award of any contract (https://www.dir.ca.gov/pwc100ext/);
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(9) cause its contractors to post job site notices, as prescribed
by Title 8 California Code of Regulations 16451(d), or otherwise as required by the DIR; and
(10) cause its contractors to furnish payroll records required by
California Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the
electronic format prescribed by the Labor Commissioner.
(b) Local Wage Requirement. Developer shall also comply with the
requirements of County Resolution No. 88-9 regarding the payment of prevailing wages (the
"County Local Prevailing Wage Requirement").
(c) Indemnity. Developer shall indemnify, hold harmless and defend (with
counsel reasonably acceptable to the County) the County against any claim for damages,
compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any
person or entity (including Developer, its contractor and subcontractors) to comply with the
County Local Prevailing Wage Requirement, to pay prevailing wages as determined pursuant to
California Labor Code Section 1720 et seq., to employ apprentices pursuant to California Labor
Code Section 1777.5 et seq., to meet the conditions of California Labor Code Section 1771.4,
and implementing regulations of the DIR, or to comply with the other applicable provisions of
California Labor Code Sections 1720 et seq., 1777.5 et seq., and 1771.4, and the implementing
regulations of the DIR, in connection with the construction of the Improvements or any other
work undertaken or in connection with the Property. The requirements in this Section survive
the repayment of the Loan, and the reconveyance of the Deed of Trust.
Section 4.8 Accessibility.
(a) Developer shall cause the Housing Improvements to be constructed and
operated at all times in compliance with all applicable federal, state, and local disabled persons
accessibility requirements including, but not limited to the applicable provisions of: (i) the
Unruh Act, (ii) the California Fair Employment and Housing Act, (iii) Section 504 of the
Rehabilitation Act of 1973, (iv) the United States Fair Housing Act, as amended, (v) the
Americans With Disabilities Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the
California Code of Regulations, which relate to disabled persons access (collectively, the
"Accessibility Requirements").
(b) In compliance with the Accessibility Requirements, a minimum of five
percent (5%) of the units in the Housing Improvements must be constructed to be fully
accessible to households with a mobility impaired member and an additional two percent (2%) of
the units in the Housing Improvements must be constructed to be fully accessible to hearing
and/or visually impaired persons. In compliance with the Accessibility Requirements Developer
shall provide the County with a certification from the Development architect that to the best of
the architect's knowledge, the Housing Improvements comply with all federal and state
accessibility requirements applicable to the Housing Improvements.
(c) Developer shall indemnify, hold harmless and defend (with counsel
reasonably acceptable to the County) the County against any claim for damages, compensation,
fines, penalties or other amounts arising out of the failure or alleged failure of any person or
entity (including Developer, its architect, contractor and subcontractors) to construct the Housing
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Improvements in accordance with the Accessibility Requirements. The requirements in this
Subsection survive repayment of the Loan and the reconveyance of the Deed of Trust for each
Phase.
Section 4.9 Equal Opportunity.
During the construction of the Improvements discrimination on the basis of race, color,
creed, religion, age, sex, sexual orientation, marital status, national origin, ancestry, or disability
in the hiring, firing, promoting, or demoting of any person engaged in the construction work is
not allowed.
Section 4.10 Minority and Women-Owned Contractors.
Developer shall use its best efforts to afford minority-owned and women-owned business
enterprises the maximum practicable opportunity to participate in the construction of the
Improvements. Developer shall, at a minimum, notify applicable minority-owned and women-
owned business firms located in Contra Costa County of bid opportunities for the construction of
the Improvements. A listing of minority owned and women owned businesses located in the
County and neighboring counties is available from the County. Documentation of such
notifications must be maintained by Developer and available to the County upon request.
Section 4.11 Progress Reports.
Until such time as Developer has completed construction of the Improvements, as
evidenced by the Certificates of Completion, Developer shall provide the County with quarterly
progress reports regarding the status of the construction of the Improvements, including a
certification that the actual construction costs to date conform to the approved Development
Budget, as it may be amended from time to time.
Section 4.12 Construction Responsibilities.
(a) Developer is responsible for the coordination and scheduling of the work
to be performed so that commencement and completion of the construction of the Improvements
takes place in accordance with this Agreement.
(b) Developer is solely responsible for all aspects of Developer's conduct in
connection with the Improvements, including (but not limited to) the quality and suitability of
the plans and specifications, the supervision of construction work, and the qualifications,
financial condition, and performance of all architects, engineers, contractors, subcontractors,
suppliers, consultants, and property managers. Any review or inspection undertaken by the
County with reference to the Improvements is solely for the purpose of determining whether
Developer is properly discharging its obligations to the County, and may not be relied upon by
Developer or by any third parties as a warranty or representation by the County as to the quality
of the design or construction of the Improvements.
Section 4.13 Mechanics Liens, Stop Notices, and Notices of Completion.
(a) If any claim of lien is filed against the Property or a stop notice affecting
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the Loan is served on the County or any other lender or other third party in connection with the
Improvements, then Developer shall, within twenty (20) days after such filing or service, either
pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by
delivering to the County a surety bond in sufficient form and amount, or provide the County with
other assurance satisfactory to the County that the claim of lien or stop notice will be paid or
discharged.
(b) If Developer fails to discharge any lien, encumbrance, charge, or claim in
the manner required in this Section, then in addition to any other right or remedy, the County
may (but is under no obligation to) discharge such lien, encumbrance, charge, or claim at
Developer's expense. Alternately, the County may require Developer to immediately deposit
with the County the amount necessary to satisfy such lien or claim and any costs, pending
resolution thereof. The County may use such deposit to satisfy any claim or lien that is adversely
determined against Developer.
(c) Developer shall file a valid notice of cessation or notice of completion
upon cessation of construction work on the Improvements for a continuous period of thirty (30)
days or more, and take all other steps necessary to forestall the assertion of claims of lien against
the Property. Developer authorizes the County, but the County has no obligation, to record any
notices of completion or cessation of labor, or any other notice that the County deems necessary
or desirable to protect its interest in the Development and Property.
Section 4.14 Inspections.
(a) Developer shall permit and facilitate, and shall require its contractors to
permit and facilitate, observation and inspection at the Development by the County and by public
authorities during reasonable business hours during the Term, for the purposes of determining
compliance with this Agreement.
(b) The County has no duty to visit the Property, or to observe or inspect it in
connection with this Agreement. Any site visit or observation by the County is solely for the
purpose of protecting the County's rights and interests under this Agreement. No site visit or
observation by the County will impose any liability on the County or result in a waiver of any
default of Developer. Neither Developer nor any other party is entitled to rely on any site visit or
observation by the County. The County owes no duty of care to protect Developer or any other
party against, or to inform Developer or any other party of, any adverse condition affecting the
Property in connection with this Agreement.
Section 4.15 CEQA Mitigation Requirements.
Developer shall comply with the CEQA mitigation requirements set forth in the attached
Exhibit E in the construction of the Improvements.
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ARTICLE 5
ON-GOING REQUIREMENTS
Section 5.1 Applicability.
The conditions and obligations set forth in this Article apply throughout the Term with
respect to the Housing Improvements, and until the issuance of the final Certificate of
Completion with respect to the last completed Commercial Improvements, unless a different
period of applicability is specified for a particular condition or obligation.
Section 5.2 Hazardous Materials.
(a) Upon transfer of the Property, Developer shall keep and maintain the
Property and the Development (including but not limited to, soil and ground water conditions) in
compliance with all Hazardous Materials Laws and may not cause or permit the Property and the
Development to be in violation of any Hazardous Materials Law. Developer may not cause or
permit the use, generation, manufacture, storage or disposal of on, under, or about the Property
or transportation to or from the Property of any Hazardous Materials, except such of the
foregoing as may be customarily used in construction of projects like the Development or kept
and used in and about residential property of this type.
(b) Developer shall immediately advise the County in writing if at any time it
receives written notice of any Hazardous Materials Claims, and Developer's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of the Property that
could cause the Property or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of the Property under any Hazardous Materials Law including
but not limited to the provisions of California Health and Safety Code, Section 25220 et seq., or
any regulation adopted in accordance therewith.
(c) The County has the right to join and participate in, as a party if it so elects,
and be represented by counsel acceptable to the County (or counsel of its own choice if a conflict
exists with Developer) in any legal proceedings or actions initiated in connection with any
Hazardous Materials Claims and to have its reasonable attorneys' fees in connection therewith
paid by Developer.
(d) Developer shall indemnify and hold harmless the County and its board
members, supervisors, directors, officers, employees, agents, successors and assigns from and
against any loss, damage, cost, fine, penalty, judgment, award, settlement, expense or liability,
directly or indirectly arising out of or attributable to: (i) any actual or alleged past or present
violation of any Hazardous Materials Law; (ii) any Hazardous Materials Claim; (iii) any actual
or alleged past or present use, generation, manufacture, storage, release, threatened release,
discharge, disposal, transportation, or presence of Hazardous Materials on, under, or about the
Property; (iv) any investigation, cleanup, remediation, removal, or restoration work of site
conditions of the Property relating to Hazardous Materials (whether on the Property or any other
property); and (v) the breach of any representation of warranty by or covenant of Developer in
this Section 5.2, and Section 6.1(j). Such indemnity shall include, without limitation: (x) all
consequential damages; (y) the costs of any required or necessary investigation, repair, cleanup
or detoxification of the Property and the preparation and implementation of any closure, remedial
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or other required plans; and (z) all reasonable costs and expenses incurred by the County in
connection with clauses (x) and (y), including but not limited to reasonable attorneys' fees and
consultant fees. This indemnification applies whether or not any government agency has issued
a cleanup order. Losses, claims, costs, suits, liability, and expenses covered by this
indemnification provision include, but are not limited to: (1) losses attributable to diminution in
the value of the Property, (2) loss or restriction of use of rentable space on the Property, (3)
adverse effect on the marketing of any rental space on the Property, and (4) penalties and fines
levied by, and remedial or enforcement actions of any kind issued by any regulatory agency
(including but not limited to the costs of any required testing, remediation, repair, removal,
cleanup or detoxification of the Property and surrounding properties). This obligation to
indemnify will survive termination of this Agreement and will not be diminished or affected in
any respect as a result of any notice, disclosure, knowledge, if any, to or by the County of
Hazardous Materials.
(e) Without the County's prior written consent, which will not be
unreasonably withheld, Developer may not take any remedial action in response to the presence
of any Hazardous Materials on, under or about the Property, nor enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous Material Claims,
which remedial action, settlement, consent decree or compromise might, in the County's
judgment, impair the value of the County's security hereunder; provided, however, that the
County's prior consent is not necessary in the event that the presence of Hazardous Materials on,
under, or about the Property either poses an immediate threat to the health, safety or welfare of
any individual or is of such a nature that an immediate remedial response is necessary and it is
not reasonably possible to obtain the County's consent before taking such action, provided that in
such event Developer shall notify the County as soon as practicable of any action so taken. The
County agrees not to withhold its consent, where such consent is required hereunder, if: (i) a
particular remedial action is ordered by a court of competent jurisdiction; (ii) Developer will or
may be subjected to civil or criminal sanctions or penalties if it fails to take a required action;
(iii) Developer establishes to the satisfaction of the County that there is no reasonable alternative
to such remedial action which would result in less impairment of the County's security
hereunder; or (iv) the action has been agreed to by the County.
(f) Developer hereby acknowledges and agrees that: (i) this Section is
intended as the County's written request for information (and Developer's response) concerning
the environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5; and (ii) each representation and warranty in this Agreement (together with any
indemnity obligation applicable to a breach of any such representation and warranty) with
respect to the environmental condition of the Property is intended by the parties to be an
"environmental provision" for purposes of California Code of Civil Procedure Section 736.
(g) In the event that any portion of the Property is determined to be
"environmentally impaired" (as that term is defined in California Code of Civil Procedure
Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of
Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the
County's or the trustee's rights and remedies under the Deed of Trust, the County may elect to
exercise its rights under California Code of Civil Procedure Section 726.5(a) to: (i) waive its
lien on such environmentally impaired or affected portion of the Property; and (ii) exercise, (1)
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the rights and remedies of an unsecured creditor, including reduction of its claim against
Developer to judgment, and (2) any other rights and remedies permitted by law. For purposes of
determining the County's right to proceed as an unsecured creditor under California Code of
Civil Procedure Section 726.5(a), Developer will be deemed to have willfully permitted or
acquiesced in a release or threatened release of Hazardous Materials, within the meaning of
California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of
Hazardous Materials was knowingly or negligently caused or contributed to by any lessee,
occupant, or user of any portion of the Property and Developer knew or should have known of
the activity by such lessee, occupant, or user which caused or contributed to the release or
threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred
by the County in connection with any action commenced under this paragraph, including any
action required by California Code of Civil Procedure Section 726.5(b) to determine the degree
to which the Property is environmentally impaired, plus interest thereon at the Default Rate, until
paid, will be added to the indebtedness secured by the Deed of Trust and is due and payable to
the County upon its demand made at any time following the conclusion of such action.
Section 5.3 Use of the Property.
(a) Developer shall use the Property for the purposes set forth in this
Agreement, each respective DDLA, and the Land Use Approvals.
Section 5.4 Notices.
Developer shall promptly notify the County in writing of any and all of the following:
(a) Any litigation known to Developer materially affecting Developer, or the
Property and of any claims or disputes that involve a material risk of litigation;
(b) Any written or oral communication Developer receives from any
governmental, judicial, or legal authority giving notice of any claim or assertion that the Property
or the Improvements fail in any respect to comply with any applicable governmental law;
(c) Any material adverse change in the physical condition of the Property
(including any damage suffered as a result of fire, earthquakes, or floods);
(d) Any material adverse change in Developer's financial condition, any
material adverse change in Developer's operations, or any change in the management of
Developer;
(e) That any of the statements in Section 6.1(j) regarding Hazardous Materials
are no longer accurate;
(f) Any Event of Default or event which, with the giving of notice or the
passage of time or both, would constitute an Event of Default; and
(g) Any other circumstance, event, or occurrence that results in a material
adverse change in Developer's ability to timely perform any of its obligations under any of the
County Documents.
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Section 5.5 Nondiscrimination.
(a) Developer covenants by and for itself and its successors and assigns that
there will be no discrimination against or segregation of a person or of a group of persons on
account of race, color, religion, creed, age (except for lawful senior housing in accordance with
state and federal law), familial status, disability, sex, sexual orientation, marital status, ancestry
or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, nor may Developer or any person claiming under or through Developer 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 will run with the land.
(b) Nothing in this Section prohibits Developer from requiring the Housing
Improvements to be available to and occupied by income eligible households in accordance with
the relevant Regulatory Agreements.
Section 5.6 Transfer.
(a) For purposes of this Agreement, "Transfer" means any sale, assignment,
or transfer, whether voluntary or involuntary, of: (i) any rights and/or duties under this
Agreement; and/or (ii) any interest in the Development, including (but not limited to) a fee
simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a
security interest, or an interest evidenced by a land contract by which possession of the
Development is transferred and Developer retains title. The term "Transfer" excludes the leasing
of any single unit in the Development to an occupant in compliance with the relevant Regulatory
Agreement. The County Director – Department of Conservation and Development is authorized
to execute assignment and assumption agreements on behalf of the County to implement any
approved Transfer.
(b) Except as otherwise permitted in this Section 5.6, no Transfer is permitted
without the prior written consent of the County, which the County may withhold in its sole
discretion. The Loan for the Phase subject to the Transfer will automatically accelerate and be
due in full upon any Transfer made without the prior written consent of the County.
(c) The County hereby approves the grant of the security interests in the
Development for Approved Financing.
(d) The County approves the Transfer of the Commercial Parcels and the
Commercial Improvements to an affiliate of the Developer upon completion of construction of
the Commercial Improvements.
(e) With respect to the Housing Parcel for each particular Phase, the County
approves the Transfer of the Housing Parcel to the relevant Partnership, and approves the
assignment of the Loan and the County Documents for each Phase, to the extent they pertain to
the Housing Improvements, to the Partnership in connection with the syndication of the low
income housing tax credits that will be generated by the Housing Improvements, provided that:
(1) Developer or an affiliate of Developer is a general partner in the Partnership, (2) all
documents associated with the low income housing tax credit syndication including the
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Partnership Agreement are submitted to the County for approval prior to execution, (3) the
Partnership Agreement and/or the instrument(s) of Transfer provide for development and
operation of the Housing Improvements in a manner consistent with the approved Master
Financing Plan and the provisions of Article 3 of the relevant DDLA regarding the amount and
repayment of the Loan for such Phase, and (4) the Partnership expressly assumes the obligations
of Developer under the County Documents executed by Developer, utilizing a form of
assignment and assumption agreement to be provided by the County.
(f) The County acknowledges that in connection with the Transfer of the
Housing Parcel of each Phase to the relevant Partnership, and assignment of the Loan and the
County Documents to the Partnership, lenders and investors of the Partnership may require
amendments to this Agreement and/or the DDLA based on individual lending and investing
requirements. The County agrees, upon the request of such lender or investor to cooperate in
executing any amendment to this Agreement as may be reasonably required and which do not
adversely affect the County's rights or increases the County's obligations under this Agreement,
and are consistent with the customary and standard requirements of lenders and investors of
developments similar to the Housing Improvements.
Section 5.7 Insurance Requirements.
(a) Developer shall maintain the following insurance coverage throughout the
Term:
(i) Workers' Compensation insurance to the extent required by law,
including Employer's Liability coverage, with limits not less than One Million Dollars
($1,000,000) each accident.
(ii) Commercial General Liability insurance with limits not less than
Two Million Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury and
Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform
Property Damage, Products and Completed Operations.
(iii) Automobile Liability insurance with limits not less than One
Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and
Property Damage, including coverages for owned, non-owned and hired vehicles, as applicable.
(iv) Builders' Risk insurance during the course of construction, and
upon completion of construction, property insurance covering the Development, in form
appropriate for the nature of such property, covering all risks of loss, excluding earthquake, for
one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the
County, naming the County as a Loss Payee, as its interests may appear. Flood insurance must
be obtained if required by applicable federal regulations.
(v) Commercial crime insurance covering all officers and employees,
for loss of Loan proceeds caused by dishonesty, in an amount approved by the County, naming
the County a Loss Payee, as its interests may appear.
(b) Developer shall cause any general contractor, agent, or subcontractor
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working on the Development under direct contract with Developer or subcontract to maintain
insurance of the types and in at least the minimum amounts described in subsections (i), (ii), and
(iii) above, except that the limit of liability for commercial general liability insurance for
subcontractors must be One Million Dollars ($1,000,000), and must require that such insurance
will meet all of the general requirements of subsections (d) and (e) below.
(c) The required insurance must be provided under an occurrence form, and
Developer shall maintain the coverage described in subsection (a) continuously throughout the
Term. Should any of the required insurance be provided under a form of coverage that includes
an annual aggregate limit or provides that claims investigation or legal defense costs be included
in such annual aggregate limit, such annual aggregate limit must be three times the occurrence
limits specified above.
(d) Commercial General Liability, Automobile Liability and Property
insurance policies must be endorsed to name as an additional insured the County and its officers,
agents, employees and members of the County Board of Supervisors.
(e) All policies and bonds are to contain: (i) the agreement of the insurer to
give the County at least thirty (30) days' notice prior to cancellation (including, without
limitation, for non-payment of premium) or any material change in said policies; (ii) an
agreement that such policies are primary and non-contributing with any insurance that may be
carried by the County; (iii) a provision that no act or omission of Developer shall affect or limit
the obligation of the insurance carrier to pay the amount of any loss sustained; and (iv) a waiver
by the insurer of all rights of subrogation against the County and its authorized parties in
connection with any loss or damage thereby insured against.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF DEVELOPER
Section 6.1 Representations and Warranties.
Developer hereby represents and warrants to the County as follows and acknowledges,
understands, and agrees that the representations and warranties set forth in this Article 6 are
deemed to be continuing during all times when any portion of the Loan remains outstanding:
(a) Organization. Developer is duly organized, validly existing and in good
standing under the laws of the State of California and has the power and authority to own its
property and carry on its business as now being conducted.
(b) Authority of Developer. Developer has full power and authority to
execute and deliver this Agreement and to make and accept the borrowings contemplated
hereunder, to execute and deliver the County Documents and all other documents or instruments
executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to
perform and observe the terms and provisions of all of the above.
(c) Authority of Persons Executing Documents. This Agreement and the
County Documents and all other documents or instruments executed and delivered, or to be
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executed and delivered, pursuant to this Agreement have been or will be executed and delivered
by persons who are duly authorized to execute and deliver the same for and on behalf of
Developer, and all actions required under Developer's organizational documents and applicable
governing law for the authorization, execution, delivery and performance of this Agreement and
the County Documents and all other documents or instruments executed and delivered, or to be
executed and delivered, pursuant to this Agreement, have been duly taken.
(d) Valid Binding Agreements. The County Documents and all other
documents or instruments executed and delivered or to be executed and delivered pursuant to or
in connection with this Agreement constitute or, if not yet executed or delivered, will when so
executed and delivered constitute, legal, valid and binding obligations of Developer enforceable
against it in accordance with their respective terms.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of
the County Documents or of any other documents or instruments executed and delivered, or to be
executed or delivered, pursuant to this Agreement, nor the performance of any provision,
condition, covenant or other term hereof or thereof, will: (i) conflict with or result in a breach of
any statute, rule or regulation, or any judgment, decree or order of any court, board, commission
or agency whatsoever that is binding on Developer, or conflict with any provision of the
organizational documents of Developer, or conflict with any agreement to which Developer is a
party; or (ii) result in the creation or imposition of any lien upon any assets or property of
Developer, other than liens established pursuant hereto.
(f) Compliance with Laws; Consents and Approvals. The construction of the
Improvements will comply with all applicable laws, ordinances, rules and regulations of federal,
state and local governments and agencies and with all applicable directions, rules and regulations
of the fire marshal, health officer, building inspector and other officers of any such government
or agency.
(g) Pending Proceedings. Developer is not in default under any law or
regulation or under any order of any court, board, commission or agency whatsoever, and there
are no claims, actions, suits or proceedings pending or, to the knowledge of Developer,
threatened against or affecting Developer or the Development, at law or in equity, before or by
any court, board, commission or agency whatsoever which might, if determined adversely to
Developer, materially affect Developer's ability to construct the Improvements, repay the Loans,
or impair the security to be given to the County pursuant hereto.
(h) Financial Statements. The financial statements of Developer and other
financial data and information furnished by Developer to the County fairly and accurately
present the information contained therein. As of the date of this Agreement, there has not been
any material adverse change in the financial condition of Developer from that shown by such
financial statements and other data and information.
(i) Taxes. Developer and its subsidiaries have filed all federal and other
material tax returns and reports required to be filed, and have paid all federal and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
income or the Property otherwise due and payable, except those that are being contested in good
faith by appropriate proceedings and for which adequate reserves have been provided in
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accordance with generally accepted accounting principles. There is no unpaid tax assessed
against Developer or any of its subsidiaries that is reasonably expected to have a material
adverse effect on the property, liabilities (actual or contingent), operations, condition (financial
or otherwise) or prospects of Developer and its subsidiaries, taken as a whole, or which could
result in (i) a material impairment of the ability of Developer to perform under any loan
document to which it is a party, or (ii) a material adverse effect upon the legality, validity,
binding effect or enforceability against Developer of any County Document.
(j) Hazardous Materials. To the best of Developer's knowledge, except as
disclosed in writing by Developer to the County prior to the date of this Agreement: (i) no
Hazardous Material has been disposed of, stored on, discharged from, or released to or from, or
otherwise now exists in, on, under, or around, the Property; (ii) neither the Property nor
Developer is in violation of any Hazardous Materials Law; and (iii) neither the Property nor
Developer is subject to any existing, pending or threatened Hazardous Materials Claims.
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.1 Events of Default.
Any one or more of the following constitutes an "Event of Default" by Developer under
this Agreement:
(a) Failure to Satisfy Predevelopment Obligations. If Developer fails to
satisfy any of the Predevelopment Obligations set forth in Article 3.
(b) Failure to Construct. If Developer fails to obtain permits, or to commence
and prosecute construction of the Improvements to completion, within the times set forth in
Article 4 above.
(c) Breach of Covenants. If Developer fails to duly perform, comply with, or
observe any other condition, term, or covenant contained in this Agreement, or in any of the
other County Documents, and Developer fails to cure such default within thirty (30) days after
receipt of written notice thereof from the County to Developer.
(d) Insolvency. If a court having jurisdiction makes or enters any decree or
order: (i) adjudging Developer to be bankrupt or insolvent; (ii) approving as properly filed a
petition seeking reorganization of Developer, or seeking any arrangement for Developer under
the bankruptcy law or any other applicable debtor's relief law or statute of the United States or
any state or other jurisdiction; (iii) appointing a receiver, trustee, liquidator, or assignee of
Developer in bankruptcy or insolvency or for any of their properties; (iv) directing the winding
up or liquidation of Developer if any such decree or order described in clauses (i) to (iv),
inclusive, is unstayed or undischarged for a period of ninety (90) calendar days; or (v) Developer
admits in writing its inability to pay its debts as they fall due or will have voluntarily submitted
to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv),
inclusive. The occurrence of any of the Events of Default in this paragraph will act to accelerate
automatically, without the need for any action by the County, the indebtedness evidenced by the
Note.
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(e) Assignment; Attachment. If Developer assigns its assets for the benefit of
its creditors or suffers a sequestration or attachment of or execution on any substantial part of its
property, unless the property so assigned, sequestered, attached or executed upon is returned or
released within ninety (90) calendar days after such event or, if sooner, prior to sale pursuant to
such sequestration, attachment, or execution. The occurrence of any of the events of default in
this paragraph shall act to accelerate automatically, without the need for any action by the
County, the indebtedness evidenced by the Note.
(f) Suspension. If Developer voluntarily suspends its business.
(g) Liens on Property and the Development. If any claim of lien (other than
liens approved in writing by the County) is filed against the Development or any part thereof.
(h) Condemnation. If there is a condemnation, seizure, or appropriation of all
or the substantial part of the Property and the Development.
(i) Unauthorized Transfer. If any Transfer occurs other than as permitted
pursuant to Section 5.6.
(j) Representation or Warranty Incorrect. If any Developer representation or
warranty contained in this Agreement, or in any application, financial statement, certificate, or
report submitted to the County in connection with any of the County Documents, proves to have
been incorrect in any material respect when made.
Section 7.2 Remedies.
Upon the occurrence of an Event of Default and until such Event of Default is cured or
waived, the County is relieved of any obligation to transfer the Property. In addition, upon the
occurrence of an Event of Default and following the expiration of all applicable notice and cure
periods the County may proceed with any and all remedies available to it under law, this
Agreement, and the other County Documents. Such remedies include but are not limited to the
following:
(a) Specific Performance. The County has the right to mandamus or other
suit, action or proceeding at law or in equity to require Developer to perform its obligations and
covenants under this Agreement or to enjoin acts on things that may be unlawful or in violation
of the provisions of this Agreement.
(b) Termination. The County may terminate this Agreement by giving written
notice to Developer; provided, however, that the County's remedies pursuant to this Article 7,
and the indemnification provisions of this Agreement survive such termination.
Section 7.3 Right of Contest.
Developer may contest in good faith any claim, demand, levy, or assessment the assertion
of which would constitute an Event of Default hereunder. Any such contest is to be prosecuted
diligently and in a manner unprejudicial to the County or the rights of the County hereunder.
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Section 7.4 Remedies Cumulative.
No right, power, or remedy given to the County by the terms of this Agreement or the
other County Documents is intended to be exclusive of any other right, power, or remedy; and
each and every such right, power, or remedy is cumulative and in addition to every other right,
power, or remedy given to the County by the terms of any such instrument, or by any statute or
otherwise against Developer and any other person. Neither the failure nor any delay on the part
of the County to exercise any such rights and remedies will operate as a waiver thereof, nor does
any single or partial exercise by the County of any such right or remedy preclude any other or
further exercise of such right or remedy, or any other right or remedy.
ARTICLE 8
GENERAL PROVISIONS
Section 8.1 Relationship of parties.
Nothing contained in this Agreement is to be interpreted or understood by any of the
parties, or by any third persons, as creating the relationship of employer and employee, principal
and agent, limited or general partnership, or joint venture between the County and Developer or
its agents, employees or contractors, and Developer will at all times be deemed an independent
contractor and to be wholly responsible for the manner in which it or its agents, or both, perform
the services required of it by the terms of this Agreement. Developer has and retains the right to
exercise full control of employment, direction, compensation, and discharge of all persons
assisting in the performance of services under the Agreement. In regards to the construction and
operation of the Development, Developer is solely responsible for all matters relating to payment
of its employees, including compliance with Social Security, withholding, and all other laws and
regulations governing such matters, and must include requirements in each contract that
contractors are solely responsible for similar matters relating to their employees. Developer is
solely responsible for its own acts and those of its agents and employees.
Section 8.2 No Claims.
Nothing contained in this Agreement creates or justifies any claim against the County by
any person that Developer may have employed or with whom Developer may have contracted
relative to the purchase of materials, supplies or equipment, or the furnishing or the performance
of any work or services with respect to the purchase of the Property, the construction or
operation of the Development, and Developer shall include similar requirements in any contracts
entered into for the construction or operation of the Development.
Section 8.3 Amendments.
No alteration or variation of the terms of this Agreement is valid unless made in writing
by the parties. The County Director, Department of Conservation and Development is
authorized to execute on behalf of the County amendments to the County Documents or
amended and restated County Documents as long as any discretionary change in the amount or
terms of this Agreement is approved by the County's Board of Supervisors.
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Section 8.4 Indemnification.
Developer shall indemnify, defend and hold the County and its board members,
supervisors, directors, officers, employees, agents, successors and assigns harmless against any
and all claims, suits, actions, losses and liability of every kind, nature and description made
against it and expenses (including reasonable attorneys' fees) which arise out of or in connection
with this Agreement, including but not limited to the purchase of the Property and the
development, construction, marketing and operation of the Development, except to the extent
such claim arises from the gross negligence or willful misconduct of the County, its agents, and
its employees. The provisions of this Section will survive the issuance of the Certificate(s) of
Completion, the expiration of the Term and the reconveyance of each Deed of Trust.
Section 8.5 Non-Liability of County Officials, Employees and Agents.
No member, official, employee or agent of the County is personally liable to Developer
in the event of any default or breach of this Agreement by the County or for any amount that
may become due from the County pursuant to this Agreement.
Section 8.6 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
Section 8.7 Discretion Retained By County.
The County's execution of this Agreement in no way limits any discretion the County
may have in the permit and approval process related to the construction of the Improvements.
Section 8.8 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person
described in Section 8.8(b) below who exercises or has exercised any functions or
responsibilities with respect to the activities funded pursuant to this Agreement or who is in a
position to participate in a decision-making process or gain inside information with regard to
such activities, may obtain a financial interest or benefit from the activity, or have a financial
interest in any contract, subcontract or agreement with respect thereto, or the proceeds
thereunder, either for themselves or those with whom they have immediate family or business
ties, during, or at any time after, such person's tenure. Developer shall exercise due diligence to
ensure that the prohibition in this Section 8.8(a) is followed.
(b) The conflict of interest provisions of Section 8.8(a) above apply to any
person who is an employee, agent, consultant, officer, or elected or appointed official of the
County.
(c) In accordance with California Government Code Section 1090 and the
Political Reform Act, California Government Code section 87100 et seq., no person who is a
director, officer, partner, trustee or employee or consultant of Developer, or immediate family
member of any of the preceding, may make or participate in a decision, made by the County or a
County board, commission or committee, if it is reasonably foreseeable that the decision will
have a material effect on any source of income, investment or interest in real property of that
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person or Developer. Interpretation of this section is governed by the definitions and provisions
used in the Political Reform Act, California Government Code Section 87100 et seq., its
implementing regulations manual and codes, and California Government Code Section 1090.
Section 8.9 Notices, Demands and Communications.
All notices required or permitted by any provision of this Agreement must be in writing
and sent by registered or certified mail, postage prepaid, return receipt requested, or delivered by
express delivery service, return receipt requested, or delivered personally, to the principal office
of the parties as follows:
County: County of Contra Costa
Department of Conservation and Development
30 Muir Road
Martinez, CA 94553
Attention: Deputy Director – Policy Planning
Developer: Pacific West Communities Inc.
430 E. State Street, Ste. 100
Eagle, ID 83616
Attention: President and CEO
with a copy to: Katten Muchin Rosenman LLP
525 West Monroe Street
Chicago, IL 6066-3693
Attention: David P. Cohen
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 mail as provided in this
Section. Receipt will be deemed to have occurred on the date shown on a written receipt as the
date of delivery or refusal of delivery (or attempted delivery if undeliverable).
Section 8.10 Applicable Law.
This Agreement is governed by the laws of the State of California.
Section 8.11 Parties Bound.
Except as otherwise limited herein, this Agreement binds and inures to the benefit of the
parties and their heirs, executors, administrators, legal representatives, successors, and assigns.
This Agreement is intended to run with the land and to bind Developer and its successors and
assigns in the Property and the Development for the entire Term, and the benefit hereof is to
inure to the benefit of the County and its successors and assigns.
Section 8.12 Attorneys' Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing
party will have the right to recover its reasonable attorneys' fees and costs of suit from the other
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party.
Section 8.13 Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions will 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.
Section 8.14 Force Majeure.
In addition to specific provisions of this Agreement, performance by either party will not
be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-
outs, riots, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of
transportation, or court order. An extension of time for any cause will be deemed granted if
notice by the party claiming such extension is sent to the other within ten (10) days from the
commencement of the cause and such extension of time is not rejected in writing by the other
party within ten (10) days after receipt of the notice. In no event will the County be required to
agree to cumulative delays in excess of one hundred eighty (180) days.
Section 8.15 County Approval.
The County has authorized the County Director, Department of Conservation and
Development to execute the County Documents and deliver such approvals or consents as are
required by this Agreement, and to execute estoppel certificates concerning the status of the
Loan and the existence of Developer defaults under the County Documents. Developer
acknowledges that nothing in this Agreement (including any approval by the County Director in
accordance with this Agreement) shall limit, waive, or otherwise impair the authority and
discretion of: (a) the County's planning department, in connection with the review and approval
of the proposed Construction Plans for the Development, or any use, or proposed use, of the
Property; (b) the County's issuance of a building permit; or (c) any other office or department of
the County acting in its capacity as a governmental regulatory authority with jurisdiction over the
development, use, or operation of the Development.
Section 8.16 Waivers.
Any waiver by the County of any obligation or condition in this Agreement must be in
writing. No waiver will be implied from any delay or failure by the County to take action on any
breach or default of Developer or to pursue any remedy allowed under this Agreement or
applicable law. Any extension of time granted to Developer to perform any obligation under this
Agreement does not operate as a waiver or release from any of its obligations under this
Agreement. Consent by the County to any act or omission by Developer may not be construed to
be consent to any other or subsequent act or omission or to waive the requirement for the
County's written consent to future waivers.
Section 8.17 Title of Parts and Sections.
Any titles of the sections or subsections of this Agreement are inserted for convenience of
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reference only and are to be disregarded in interpreting any part of the Agreement's provisions.
Section 8.18 Entire Understanding of the parties.
The County Documents constitute the entire agreement of the parties with respect to the
Loan.
Section 8.19 Multiple Originals; Counterpart.
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts.
Section 8.20 No Brokers.
Each party represents to the other that it has not had any contact or dealings regarding the
Property, or any communication in connection with the subject matter of this transaction,
through any real estate broker or other person who can claim a right to a commission or finder's
fee. If any broker or finder makes a claim for a commission or finder's fee based upon a contact,
dealings, or communications, the party through whom the broker or finder makes this claim must
indemnify, defend with counsel of the indemnified party's choice, and hold the indemnified party
harmless from all expense, loss, damage and claims, including the indemnified party's reasonable
attorneys' fees, if necessary, arising out of the broker's or finder's claim. The provisions of this
section survive expiration of the Term or other termination of this Agreement, and will remain in
full force and effect.
Section 8.21 Provision Not Merged with Deed.
None of the provisions of this Agreement are intended to or will be merged by any grant
deed transferring title to any real property which is the subject of this Agreement from County to
Developer or any successor in interest, and any such grant deed will not be deemed to affect or
impair the provisions and covenants of this Agreement.
Remainder of Page Left Intentionally Blank
Signature page
County DDLA
320\07\2540636.8
32
The parties are entering into this Agreement as of date first set forth above.
COUNTY:
COUNTY OF CONTRA COSTA, a political
subdivision of the State of California
By: ____________________________________
John Kopchik
Director, Department of Conservation and
Development
APPROVED AS TO FORM:
MARY ANN MCNETT MASON
County Counsel
By: ______________________
Kathleen Andrus
Deputy County Counsel
DEVELOPER:
Pacific West Communities Inc., an Idaho
corporation
By:____________________________
Caleb Roope, President and CEO
A-1
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The real property located in the unincorporated area of the County of Contra Costa, State of
California, described as follows:
B-1
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EXHIBIT B
CONCEPTUAL SITE PLAN
C-1
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EXHIBIT C
MASTER FINANCING PLAN
D-1
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EXHIBIT D
MASTER SCHEDULE OF PERFORMANCE
E-1
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EXHIBIT E
MITIGATION REQUIREMENTS
E-1
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EXHIBIT F
FORM DDLA
TABLE OF CONTENTS
Page
i
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ARTICLE 1 DEFINITIONS AND EXHIBITS ...............................................................................3
Section 1.1 Definitions................................................................................................... 3
Section 1.2 Exhibits ....................................................................................................... 8
ARTICLE 2 DISPOSITION OF PROPERTY ................................................................................8
Section 2.1 Developer Deposit. ..................................................................................... 8
Section 2.2 Transfer of Property. ................................................................................... 8
ARTICLE 3 PREDEVELOPMENT OBLIGATIONS ....................................................................8
Section 3.1 Predevelopment Obligations. ...................................................................... 8
Section 3.2 Right of Entry. ............................................................................................ 9
Section 3.3 Design Development Documents. .............................................................. 9
Section 3.4 Land Use Approvals. ................................................................................ 10
Section 3.5 Final Maps. ............................................................................................... 10
Section 3.6 Master Development Budget. ................................................................... 11
Section 3.7 Construction Plans. ................................................................................... 11
ARTICLE 4 CONSTRUCTION OF THE IMPROVEMENTS ....................................................12
Section 4.1 Permits and Approvals. ............................................................................. 12
Section 4.2 Construction Bonds. .................................................................................. 12
Section 4.3 Commencement of Construction. ............................................................. 12
Section 4.4 Completion of Construction. ..................................................................... 12
Section 4.5 Certificate of Completion. ........................................................................ 13
Section 4.6 Construction Pursuant to Plans and Laws. ................................................ 13
Section 4.7 Prevailing Wages. ..................................................................................... 14
Section 4.8 Accessibility. ............................................................................................. 15
Section 4.9 Equal Opportunity. .................................................................................... 16
Section 4.10 Minority and Women-Owned Contractors. .............................................. 16
Section 4.11 Progress Reports. ...................................................................................... 16
Section 4.12 Construction Responsibilities. .................................................................. 16
Section 4.13 Mechanics Liens, Stop Notices, and Notices of Completion.................... 16
Section 4.14 Inspections. ............................................................................................... 17
Section 4.15 CEQA Mitigation Requirements............................................................... 17
ARTICLE 5 ON-GOING REQUIREMENTS ...............................................................................18
Section 5.1 Applicability. ............................................................................................ 18
Section 5.2 Hazardous Materials. ................................................................................ 18
Section 5.3 Use of the Property. .................................................................................. 20
Section 5.4 Notices. ..................................................................................................... 20
Section 5.5 Nondiscrimination..................................................................................... 21
Section 5.6 Transfer. .................................................................................................... 21
Section 5.7 Insurance Requirements. ........................................................................... 22
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF DEVELOPER ..........................23
Section 6.1 Representations and Warranties. ............................................................... 23
TABLE OF CONTENTS
(continued)
Page
ii
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ARTICLE 7 DEFAULT AND REMEDIES ..................................................................................25
Section 7.1 Events of Default. ..................................................................................... 25
Section 7.2 Remedies. .................................................................................................. 26
Section 7.3 Right of Contest. ....................................................................................... 26
Section 7.4 Remedies Cumulative. .............................................................................. 27
ARTICLE 8 GENERAL PROVISIONS .......................................................................................27
Section 8.1 Relationship of parties. ............................................................................. 27
Section 8.2 No Claims. ................................................................................................ 27
Section 8.3 Amendments. ............................................................................................ 27
Section 8.4 Indemnification. ........................................................................................ 28
Section 8.5 Non-Liability of County Officials, Employees and Agents...................... 28
Section 8.6 No Third-Party Beneficiaries. ................................................................... 28
Section 8.7 Discretion Retained By County. ............................................................... 28
Section 8.8 Conflict of Interest. ................................................................................... 28
Section 8.9 Notices, Demands and Communications. ................................................. 29
Section 8.10 Applicable Law. ........................................................................................ 29
Section 8.11 Parties Bound. ........................................................................................... 29
Section 8.12 Attorneys' Fees. ......................................................................................... 29
Section 8.13 Severability. .............................................................................................. 30
Section 8.14 Force Majeure. .......................................................................................... 30
Section 8.15 County Approval. ...................................................................................... 30
Section 8.16 Waivers. .................................................................................................... 30
Section 8.17 Title of Parts and Sections. ....................................................................... 30
Section 8.18 Entire Understanding of the parties. ......................................................... 31
Section 8.19 Multiple Originals; Counterpart. ............................................................... 31
Section 8.20 No Brokers. ............................................................................................... 31
Section 8.21 Provision Not Merged with Deed. ............................................................ 31
Exhibit A: Legal Description of the Property
Exhibit B: Conceptual Site Plan
Exhibit C: Master Financing Plan
Exhibit D: Master Schedule of Performance
Exhibit E: Mitigation Requirements
Exhibit F: Form DDLA
320\07\2540636.8
MASTER DEVELOPMENT AGREEMENT
Between
COUNTY OF CONTRA COSTA
And
PACIFIC WEST COMMUNITIES INC.
Orbisonia Heights Transit Oriented Development Project
dated _____________, 2022