THIS DEVELOPMENT AGREEMENT ("Agreement")

109 Pages·2013·14.72 MB·English

AGREEMENT
BYAND BETWEEN
THE CITY OF DAVIS,
CONAGRA FOODS PACKAGED FOODS, LLC AND TNHC LAND COMPANY,
LLC
Relatingtothe Development
ofthe Property CommonlyKnown as The Cannery
THIS DEVELOPMENTAGREEMENT("Agreement") is entered intothis 10th
day of December , 2013, by and betweenthe CITY OF DAVIS, amunicipal
corporation(hereinthe "City"), and CONAGRA FOODS PACKAGED FOODS, LLC, a
Delaware limited liability company ("ConAgra"), and TNHC LAND COMPANY, a
Delaware limited liability company and its affiliates ("NewHome"). ConAgra andNew
Home are sometimes collectivelyreferredto as "Developers"). ThisAgreement is made
pursuanttothe authority ofSection 65864 etseq. ofthe Government Code ofthe State of
California. This agreementreferstothe City andthe Developers collectively as the
"Parties" and singularly asthe "Party."
Recitals
A. To strengthenthe publicplanning process, encourage private participation
in comprehensive planningand reduce the economic risk ofdevelopment, the Legislature
ofthe State ofCaliforniaadopted Section 65864, etseq. ofthe Government Code which
authorizes any city, county or city and county to enter into a developmentagreementwith
an applicant fora developmentproject, establishingcertain developmentrights inthe
propertywhich is the subject ofthe developmentprojectapplication.
B. The Developers own in fee orhave a legal or equitable interest in certain
real property(ies) described in ExhibitA attached hereto and incorporated hereinby this
reference and located inthe incorporated areathe City ofDavis (hereinthe "Property")
whichthe Developers seekto develop as The Cannery project (the "Project"). The
Cannery is amaster-planned residential mixed-use development, including low, medium,
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and high density residential uses; amixed-use business park component; open spaces
includinggreenbelts, stormwaterdetention, agricultural buffers, and an urban farm;
parks; and aneighborhood center, and associated infrastructure.
C. ThisAgreement isvoluntarily entered into by the Developers inorderto
implementthe General Plan and in considerationofthe rights conferred andthe
procedures specifiedhereinforthe developmentofthe Property. This Agreementis
voluntarily entered into bythe City inthe exercise ofits legislative discretion in orderto
implementthe General Plan and in considerationofthe agreements andundertakings of
the Developers hereunder.
D. City has grantedthe Developers the following land use entitlement
approvals (hereinafter"ProjectApprovals") which are incorporated andmade apart of
thisAgreement:
(1) General PlanAmendment#01-11
(2) Rezoningand Preliminary PlannedDevelopment #01-11
(3) Final PlannedDevelopment#03-11
(4) Tentative Subdivision Map #01-11
(5) Affordable HousingPlan#01-11
(6) DevelopmentAgreement#01-11 by and betweenthe City ofDavis and
Developers.
(7) Environmental ImpactReport(SCH2012032022), as certified by
ResolutionNo. 13-159 andthe MitigationMonitoringandReporting
Program adoptedtherewith.
E. This Agreementwill eliminate uncertainty in planning for and securing
orderly development ofthe Project, provide the certainty necessary forthe Developers to
make significant investments inpublic infrastructure and other improvements, assurethe
timely and progressive installationofnecessary improvements, provide public services
appropriateto each stage ofdevelopment, establishphasing forthe orderly and measured
build-out ofthe Project consistentwiththe desires ofthe City to maintain the City's small
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city atmosphere andto have development occurat apace thatwill assure integration of
the new development into the existing community, and provide significant public benefits
to the City thatthe City would not be entitledto receivewithoutthis Agreement.
F. In exchange forthe benefits to the City, the Developers desireto receive
the assurancethattheymay proceedwiththe Project inaccordance withthe existing land
use ordinances, subjecttotheterms and conditions contained inthisAgreementandto
securethe benefits affordedthe Developers by Government Code §65864.
AGREEMENT
IN CONSIDERATION OF THEMUTUAL COVENANTS ANDPROMISES OF THE
PARTIES, THE CITYAND THE DEVELOPERS HEREBYAGREEAS FOLLOWS:
ARTICLE 1. General Provisions.
A. [Sec. 100] Property Description and Binding Covenants. The Property is
thatproperty described inExhibitA, which consists ofamap showing its location and
boundaries and alegal description. The Developersrepresentthatthey have alegal or
equitable interest inthe Property andthatall otherpersons holding legal orequitable
interests in the Property (exceptingowners orclaimants in easements) agree to be bound
by thisAgreement. TheParties intend and determinethatthe provisions ofthis
Agreement shall constitute covenantswhichshall runwith saidProperty, and the burdens
and benefits hereofshall bind and inureto all successors in interesttothe Parties hereto.
B. [Sec. 101] Effective Date and Term. The effective date ofthisAgreement
shall be the date the Ordinance adoptingthisAgreement is effective. Theterm ofthis
Agreement (the "Term") shall commence uponthe effective date and shall extend fora
period oftwenty (20)years thereafter, unless saidTerm isterminated, modified or
extended by circumstances set forth inthis Agreementorbymutual consentofthe
Parties, subjectto the provisions ofSection 105 hereof. Followingthe expiration ofsaid
Term, this Agreementshall be deemedterminated and ofno further force and effect,
subject, however, to the provisions ofSection 408 hereof.
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Ifthis Agreement isterminated by the City Council priorto the end ofthe Term,
the City shall cause awritten notice ofterminationto be recordedwith the County
Recorderwithin ten (10) days offinal actionbythe City Council.
This Agreementshall be deemed terminated and ofno furthereffectuponentry,
after all appeals have been exhausted, ofafinaljudgment or issuance ofafinal order
directingthe Cityto set aside, withdraw or abrogatethe City Council's approval ofthis
Agreement or anymaterial part ofthe ProjectApprovals;
Inthe eventthat Developers havenotconducted demolition, site preparation, and
grading over at least50 percentofthe area ofthe Project site defined as Phase I pursuant
to permits issued bythe City priorto the fifthanniversary ofthe EffectiveDate, the Term
ofthis Agreementshall end 15 years afterthe Effective Date, unless otherwise agreedby
the Parties.
C. [Sec. 102] Equitable Servitudes and Covenants Running Withthe Land.
Any successors in interesttothe City andthe Developers shall be subjectto the
provisions set forth in GovernmentCode §§ 65865.4 and 65868.5. All provisions ofthis
Agreement shall be enforceable as equitable servitudes and constitute covenantsrunning
withthe land. Eachcovenantto do, orrefrain from doing, some actwith regardtothe
development ofthe Property: (a) is forthe benefit ofand is aburdenuponthe Property;
(b) runswiththe Property and eachportionthereof; and(c) is bindingupon eachParty
and each successor in interest duringownership oftheProperty orany portionthereof.
Nothingherein shallwaive or limitthe provisions ofSection D, andno successor owner
ofthe Property, anyportion ofit, orany interest in it shall have any rights exceptthose
assigned tothe successorbythe Developers inwritingpursuantto SectionD. In any
event, no ownerortenant ofan individual completedresidential unitwithinProject shall
have any rights underthis Agreement.
D. [Sec. 103] RighttoAssign;Non-Severable Obligations.
1 The Developers, or each ofthem, shall havethe rightto sell, encumber,
convey, assign or otherwisetransfer(collectively "assign"), inwhole or in part, its rights,
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interests and obligations underthis Agreementto athird party duringthe term ofthis
Agreement.
2. No assignment shall be effective until the City, by action ofthe City
Council, approves the assignment. Approval shall notbe unreasonablywithheld
provided:
(a) The assignee (orthe guarantor(s) ofthe assignee's performance) has the
financial abilityto meetthe obligations proposedto be assigned andto undertake and
completethe obligations ofthisAgreement affected by the assignment; and
(b) The proposed assignee has adequate experiencewith residential ornon-
residential developments ofcomparable scope and complexitytothe portion ofthe
Projectthat is the subject ofthe assignment.
Any request for City approval ofanassignmentshall be inwriting and
accompanied by certified financial statements ofthe proposed assignee and any
additional informationconcerningthe identify, financial condition and experience ofthe
assignee as the City may reasonably request; providedthat, any such request for
additional information shall bemade, ifat all, notmorethan fifteen (15) business days
afterthe City's receiptofthe requestfor approval ofthe proposed assignment. All
detailed financial information submittedtothe City shall constitute confidential trade
secret information ifthe information is maintained as atrade secretbythe assignee and if
such informationis not available through other sources. The assignee shall mark any
material claimed astrade secretatthe time it is submittedto the City. IfCity receives a
public records request for any information designated a"trade secret" City shall notify
the assignee ofsuch requestpriorto releasingthe material in questionto the requesting
party. Ifthe assignee directsthe City notto release the material in question, the assignee
shall indemnify the City forany costs incurred by City, includingbut not limitedto staff
time and attorney's fees, as aresult ofany actionbroughtbythe requestingpartyto
obtain release ofthe informationand/orto defend any lawsuitbroughtto obtain such
information. Ifthe City wishesto disapprove any proposed assignment, the City shall
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set forth inwriting and inreasonable detail the grounds for such disapproval. Ifthe City
fails to disapprove any proposed assignmentwithin forty-five (45) calendardays after
receipt ofwrittenrequest for such approval, such assignmentshall be deemed to be
approved.
3. The provisions ofsubsection 2 donot apply to the sale of: (i)ten orfewer
finishedresidential lots to an individual buyerorbuilder; (ii) finishedparcels designated
fornon-residential uses; or (iii) parcelsto be developed in accordancewiththe affordable
housing obligations set forth in thisAgreement.
4. The specific development obligations set forth inArticle II, Section B
[Sec. 201], arenot severable, and any sale oftheProperty, inwhole or in part, or
assignment ofthisAgreement, inwhole or in part, which attempts to seversuch
conditions shall constitute a defaultunderthis Agreementand shall entitle the Cityto
terminatethisAgreement in its entirety.
5. Notwithstanding subsection 2 above, mortgages, deeds oftrust, sales and
lease-backs orany otherform ofconveyance required for any reasonable method of
financing are permitted, but only forthe purpose ofsecuringloans offunds to be used for
financingthe acquisition ofthe Property, the development and construction of
improvements onthe Property and othernecessary and related expenses. The holder of
any mortgage, deed oftrustor other security arrangementwith respectto the Property, or
any portionthereof, shall not be obligatedunderthis Agreementto construct orcomplete
improvements orto guarantee suchconstruction orcompletion, but shall otherwise be
bound by all ofthe terms and conditions ofthisAgreement. NothinginthisAgreement
shall be deemedto construe, permit orauthorize any suchholderto devotethe Property,
orany portionthereof, to any uses, orto constructany improvements thereon, otherthan
those uses and improvements provided for or authorized bythis Agreement, subjectto all
ofthe terms and conditions ofthisAgreement.
6. Nothing inthis Section shall be deemedto constitute orrequire City
consentto the approval ofany subdivision orparcelization ofthe Property, in additionto
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the subdivision maps identified in ExhibitD. The Parties recognize and acknowledge
that any such actions must comply with applicable City laws and regulations and be
consistentwith the General Plan, the ProjectApprovals and thisAgreement. Nothingin
this Section shall be deemed to constitute orrequire City consentto an assignmentthat
consists solely ofareorganization ofthe Developers' business structure.
E. [Sec. 104] Notices. Formal written notices, demands, correspondence and
communications betweenthe City andthe Developers shall be sufficiently given if
dispatchedby certified mail, postage prepaid, to the principal offices ofthe City and the
Developers, as set forth in Article 8 hereof. Such written notices, demands,
correspondence and communications may be directed inthe same mannerto suchother
persons and addresses as eitherParty may from time to time designate. The Developers
shall givewritten noticeto the City, at leastthirty (30) days priortothe close ofescrow,
ofany sale ortransfer ofany portion ofthe Property largerthan five (5) acres (i.e., nota
deminimis portion) and any assignment ofthis Agreement, specifyingthe name ornames
ofthe transferee, the transferee's mailing address, the amount and location ofthe land
sold ortransferred, andthe name and address ofasingle person orentityto whom any
notice relatingto this Agreement shall be given, and any other informationreasonably
necessary forthe City to consider approval ofan assignmentorany other action City is
requiredto take underthis Agreement.
F. [Sec. 105] Amendment ofAgreement. This Agreementmay be amended
from timetotime by mutual consent ofthe Parties, in accordancewiththe provisions of
Government Code Sections 65867 and 65868.
G. [Sec. 106] [Reserved]
H. [Sec. 107] MajorAmendments and MinorAmendments.
1. MajorAmendments. Any amendmentto this DevelopmentAgreement
which affects orrelates to (a) the term ofthis DevelopmentAgreement; (b) permitted
uses ofthe Property; (c) provisions forthe reservation or dedicationofland;
(d) conditions, terms, restrictions or requirements for subsequent discretionary actions;
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(e) the density or intensity ofuse ofthe Property orthe maximum heightorgross square
footage ofproposed non-residential buildings; or(f) monetary contributions by
Developer, shall be deemed a"MajorAmendment" and shall require giving ofnotice and
apublic hearing before the Planning Commission and City Council. Any amendment
whichis not aMajorAmendmentshall be deemed aMinorAmendmentsubjectto
Section 107(2)below. The City Manager orhis orher delagee shall havethe authorityto
determine ifan amendment is aMajor Amendmentsubjectto this Section 107(1) ora
MinorAmendmentsubjectto Section 107(2) below. The City Manager's determination
may be appealedtothe City Council.
2. MinorAmendments. The Parties acknowledge thatrefinement and further
implementation ofthe Projectmay demonstrate that certain minorchanges may be
appropriate withrespectto the details andperformance oftheParties underthis
Agreement. The Parties desireto retain acertain degree offlexibilitywith respectto the
details ofthe Project and with respecttothose items covered inthe general terms ofthis
Agreement. Ifand whenthe Parties findthat clarifications, minorchanges, orminor
adjustments are necessary orappropriate and do notconstitute aMajorAmendmentunder
Section 107(1), they shall effectuate such clarifications, minorchanges orminor
adjustmentsthrough awrittenMinorAmendment approved in writingby the Developers
and City Manager. Unless otherwise required by law, no such MinorAmendmentshall
require priornotice orhearing, nor shall it constitute an amendmentto thisAgreement.
I. [Sec. 1081 Automatic Termination as to Residential Lots/Notice of
Termination asto OtherParcels. This Agreement shall automatically beterminated,
without any furtheractionby anyparty orneedto record any additional document, with
respectto any single-family residential lot within aparcel designated by theApprovals
forresidential use, upon completionofconstruction and issuance by City ofafinal
occupancy permit for adwelling unit upon such single-family residential lotand
conveyance ofsuch improved residential lot and dwellingunitto abona-fide good faith
purchaserthereof. In connectionwith its issuance ofafinal inspection for such single-
family residential lot and dwellingunit, City shall confirm that all improvements which
are required to serve the residential lot, as determined by City, have (1) been acceptedby
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City, or (2) inthe discretion ofthe City, adequate security for certain improvements has
beenprovided, andthatthe dwelling is ready foroccupancy by the homebuyer.
TerminationofthisAgreement for any single-family residential lotas provided for in this
Section 108 shall not in anyway be construedtoterminate ormodify any assessment
district, fee district, public financing district, specialtax district, tax and/or anyMello
Roos CommunityFacilitiesDistrict lien affectingsuch lot atthe time oftermination.
Withregardto otherparcels orlotswhich are not improved individual single-family
residential lots, uponaProperty Owner's requestwithrespectto any suchnon-single
family residential parcel orlot atthe Property thathas had abuildingconstructed upon it
oris afinished lot, City shall record anotice ofterminationthatthe Agreementhas been
terminated astothat lot orparcel. The aforesaid notice may specify, andDevelopers
agree, thattermination shall notaffect in any mannerany continuingobligationto pay an
item specifiedbythisAgreement. Termination ofthisAgreementasto an individual
parcel or lotwithabuildingconstructed upon it shall notaffectDevelopers' rights or
obligations underany oftheApprovals applicableto the remainderoftheProject atthe
Property.
ARTICLE 2. Development ofthe Property.
A. [Sec. 200] PermittedUses and Development Standards. In accordance
with and subjectto theterms and conditions ofthisAgreement, the Developers shall have
avestedrightto developthe Property fortheuses and in accordancewith and subjectto
the terms and conditions ofthisAgreement and the ProjectApprovals attached hereto as
Exhibit C and incorporated herein by reference, and any amendmentsto theProject
Approvals orAgreementas may, from time to time, be approved pursuanttothis
Agreement.
The Developers hereby agree to developthe Project in accordance withthe
ProjectApprovals, includingthe conditions ofapproval andthe mitigation measures for
the Project as adopted bythe City, and any amendments tothe ProjectApprovals or
Agreement as may, from time to time, be approvedpursuantto this Agreement. Nothing
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inthis section shall be construedto restrictthe abilityto make minorchanges and
adjustments inaccordance with Section 107, supra.
B. [Sec. 201] Specific Development Obligations. In additiontothe
conditions ofapproval contained inthe ProjectApprovals, the Developers andthe City
have agreed thatthe development ofthe Property bythe Developers is subjectto certain
specific development obligations, describedherein and also describedand attachedhereto
as Exhibits EthroughM and incorporatedhereinby reference. These specific
developmentobligations, togetherwiththe otherterms and conditions ofthisAgreement,
provide the incentive and consideration forthe City enteringinto this Agreement.
1. Environmental Sustainability. The City andthe Developers have agreed
that environmental concerns and energy efficiency are critical issues fornew
developments. Therefore, the Developers andthe City have agreedtothe sustainability
strategy set forth inExhibitE.
2. CanneryFarm. The Developers shall develop, and subsequently dedicate
to the City, the Cannery Farm onthe easternedge ofthe Project, as set forth in Exhibit F.
3. Transportation and Circulation Improvements, Additional Financial
Contributions. In additiontothe street androads requirements setforth in theProject
Approvals and required as part ofthe subdivisionmap approvals and EIRmitigation
measures, the Developers shall make financial contributions toward additional
transportation, bicycle and pedestrianimprovements set forth inExhibit G, atthe time
and inthe manner set forth inExhibitM.
4. HousingUniversal Design andVisitability. The Developers shall make
provision forhousinguniversal designandvisitability in private development as set forth
in ExhibitH.
5. Affordable Housing. TheDevelopers shall provide affordable housingas
set forth in ExhibitI.
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