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CC Resolution 13206 - City of Campbell and the Successor Agency of the Campbell Redevelopment Agency - Approving Agreement to Amend the Nov. 18, 1997 First Amended and Restated DDA PLN-2024-126 RESOLUTION NO. 13206 BEING A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAMPBELL AND THE SUCCESSOR AGENCY OF THE CAMPBELL REDEVELOPMENT AGENCY APPROVING THE AGREEMENT TO AMEND THE NOVEMBER 18, 1997 FIRST AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT CONCERNING THE CAMPBELL TECHNOLOGY PARK AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT FILE NO. PLN-2024-126 WHEREAS, the Campbell Technology Park ("Tech Park"), located at 635-695 Campbell Technology Parkway, is a 17.27 acre property that contains a 280,000 square foot Research and Development Park that was developed pursuant to a Disposition and Development Agreement ("DDA") executed by the Campbell Redevelopment Agency in 1997. WHEREAS, the 2040 General Plan ("General Plan") and the City's 6th Cycle 2023-2031 Housing Element ("Housing Element") identify the Tech Park as a Housing Opportunity Site with an identified Land Use designation of High Density Mixed-Use (residential density range of 34-45 units per gross acre) on 13.76 acres of the Tech Park, while 3.51 acres remained with a Land Use designation of Research and Development. WHEREAS, representatives of the Tech Park submitted a completed Proposed Project, which proposed the redevelopment of the project site with townhomes at a density of 19.3 dwelling units per acre, of which 20% would be made available to low income households at affordable sales prices, using a provision in State Law recognized as "Builders Remedy". WHEREAS, City representatives identified a conflict between the Proposed Project and the DDA that require the Tech Park to be maintained as a Research and Development site or be developed in conformance with the General Plan. WHEREAS, City representatives met with the Tech Park representatives to discuss settlement of the conflict between the Proposed Project and the DDA and General Plan. WHEREAS, the City and Tech Park representatives have identified the payment of $2,500,000 by the Tech Park representatives into the City's Housing Assistance Fund as a method to address the conflict between the Proposed Project and the DDA and General Plan. WHEREAS, the proposed amendment to the DDA would allow the Proposed Project to proceed in exchange for a payment of$2,500,000 by the Tech Park representatives into the City's Housing Assistance Fund. NOW, THEREFORE, BE IT RESOLVED that the City Council/Successor Agency approves the Agreement to amend the November 18, 1997 First Amended and Restated Disposition and Development Agreement, as set forth in Exhibit A, and authorizes the City Manager to execute the Agreement. City Council Resolution No. 13206 Page 2 of 2 PLN-2024-126— Campbell Technology Park DDA PASSED AND ADOPTED this 3rd day of September, 2024, by the following roll call vote: AYES: Councilmembers: Bybee, Furtado, Scozzola, Lopez, Landry NOES: Councilmembers: None ABSENT: Councilmembers: None ABSTAIN: Councilmembers: None APPROVEV-JL�0 n N Susan M. Landry, Mayor ATTEST: duA Andrea Sand , City Clerk Page 1 of 8 AGREEMENT TO AMEND THE NOVEMBER 18, 1997 FIRST AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT THIS AMENDMENT TO THE NOVEMBER 18, 1997 FIRST AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT(this "Amendment") is effective as of September 4, 2024 (the "Effective Date") and entered into by and between the CITY OF CAMPBELL, a California municipal corporation and Successor Agency to the City of Campbell Redevelopment Agency (the "City"), and CAMPBELL TECHNOLOGY PARK, LLC, a California limited liability company (the"Tech Park"), collectively referred to as the "Parties." Recitals - A. WHEREAS, the City of Campbell Redevelopment Agency and WTA Campbell Technology Park LLC entered into the November 18, 1997 First Amended and Restated Disposition and Development Agreement(the "Agreement"); B. WHEREAS, under the terms of the Agreement, The Campbell Redevelopment Agency conveyed that 19.58-acre parcel described in Exhibit A-2 to the Agreement (the "Property") to WTA Campbell Technology Park, LLC; C. WHEREAS, on December 8, 1997, consistent with the Agreement, the City approved a Planned Development Permit allowing development of the Property with a 280,000 square foot Research and Development Park, which was subsequently constructed and currently exists on the Property; D. WHEREAS, on or about December 17, 1998, the City of Campbell Redevelopment Agency transferred the Property to WTA Campbell Technology Park LLC via a grant deed that was recorded on December 21, 1998 at the Santa Clara County Recorder's office under Document No. 14563127 (the "Grant Deed"). E. WHEREAS, due to dedications and/or other transfers, the Property was reduced to 17.28 acres (the"Existing Property"); F. WHEREAS, Tech Park is the successor in interest to WTA Campbell Technology Park, LLC and the current owner of the Existing Property; G. WHEREAS, the City of Campbell is the Successor Agency to the City of Campbell Redevelopment Agency; H. WHEREAS, on or about March 24, 2023, the City submitted a 6th Cycle (2023-2031) Revised Draft Housing Element to the California Department of Housing and Community Development("HCD"). At the time of submittal,the City Council had not adopted the 6th Cycle(2023-2031) Revised Draft Housing Element. On March 27, 2023, HCD found that that 6th Cycle (2023-2031)Revised Draft Housing Element would substantially comply with State Housing Element Law upon local adoption by the City, and subsequent submittal to and approval by HCD. Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12 Page 2 of 8 I. WHEREAS, on or about April 18, 2023, the City Council passed Resolution No. 12965 which resolved "that the Central Campbell Redevelopment Plan shall be of no further force and effect, except when referenced by, or relied upon, within a Disposition and Development Agreement, in which case the Central Campbell Redevelopment Plan shall remain in full force and effect for the purpose of implementing the Disposition and Development Agreement;" J. WHEREAS, on or about April 17, 2023, Tech Park submitted a completed Preliminary Application, which proposed the redevelopment of the Existing Property with three hundred and thirty-four(334)townhomes at a density of 19.3 dwelling units per acre, of which sixty- seven(67) dwelling units would be made available to low income households at affordable sales prices (the"Preliminary Application"); K. WHEREAS, at the time of submittal of the Preliminary Application, the Existing Property had a General Plan Land Use designation of Research and Development and a Zoning designation of P-D (Planned Development); L. WHEREAS, on April 18, 2023, the City adopted General Plan 2040, including the 6th Cycle (2023-2031) Revised Draft Housing Element it had submitted to HCD on March 24, 2023, pursuant to which 13.76 acres of the Existing Property was given a Land Use designation of High Density Mixed-Use with a density range of thirty-four to forty-five units per gross acre (34—45 units/gross acre), and designated a Housing Opportunity Site at the same density range,while 3.51 acres of the Existing Property was given a Land Use designation of Research and Development; M. WHEREAS, on May 2, 2023, the City adopted a Zoning Map consistent with General Plan 2040,pursuant to which the portion of the Existing Property bearing the General Plan Land Use designation of High Density Mixed-Use was zoned HD-MU High Density Mixed-Use, while the portion of the Existing Property with the General Plan Land Use designation of Research and Development was zoned P-D Planned Development; N. WHEREAS, on or about September 25, 2023, Tech Park submitted a formal application for the redevelopment of the Existing Property, which seeks approval of two hundred and ninety (290) dwelling units consisting of twenty-seven(27) detached single-family dwellings, one hundred forty-nine (149) townhomes to be mapped as condominium units, and one hundred fourteen(114) other condominium units at a density of 16.78 dwelling units per acre, of which at least fifty-eight(58) dwelling units are to be provided at affordable cost to low income households (the"Proposed Project"); O. WHEREAS, the formal application sought approval of a new Planned Development Permit, Tentative Vesting Subdivision Map, and Tree Removal Permit for the Proposed Project (the "Proposed Project Entitlements"); P. WHEREAS, the City asserts that the terms of the Agreement restrict use of the Existing Property to either research and development land uses or uses consistent with the current General Plan; Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12 Page 3 of 8 Q. WHEREAS, Tech Park asserts the terms of the Agreement do not restrict use of the Existing Property to research and development land uses or uses consistent with the current General Plan, and, accordingly, the Agreement does permit residential uses, including the Proposed Project; R. WHEREAS, Tech Park asserts that a continued insistence by the City that the Agreement is a contractual impediment to approval of the Proposed Project would violate the Housing Accountability Act; S. WHEREAS, the City asserts that the Housing Accountability Act does not invalidate the Tech Park's contractual obligations under the Agreement; T. WHEREAS, the Parties' positions set forth in recitals P, Q, R, and S constitute a dispute concerning whether the Agreement precludes development of the Proposed Project, until November 18, 2027 (the "Dispute"); U. WHEREAS, Parties have reached an agreement to amend the Agreement and resolve the Dispute, which shall include a financial contribution by the Tech Park to City's Housing Assistance Fund and the other covenants set forth below in the Terms below; and V. WHEREAS, section 10.14 of the Agreement states that the parties may amend the Agreement "by means of a writing signed by all parties;" Terms NOW, THEREFORE, the City and the Tech Park in consideration of each other's mutual promises and other valuable consideration set forth herein, the Parties agree as follows: 1. Defined Terms. Any capitalized terms that are used but are not defined in this Amendment shall have the same respective meanings assigned to them in the Agreement. 2. Amendment. a. Section 6.2 of the Agreement is hereby amended and restated to read as follows: The Developer and its successors and assigns shall use, operate, and maintain the Existing Property in a manner consistent with the Redevelopment Plan and all applicable laws and regulations. The Agency represents that development of the Improvements in accordance with the Planning Approvals is consistent with and conforms to the Redevelopment Plan. The Agency shall not cause any modification of the Redevelopment Plan that would cause the Improvements (as built in accordance with the Planning Approvals) to be inconsistent and/or not in conformity with the Redevelopment Plan. Neither this Section, nor any Section of this Agreement or the Grant Deed, is intended to, or operates to, restrict,preclude, or otherwise limit development of a residential use on the Existing Property of at least two hundred and ninety(290) dwelling units so long as the development is in accordance with otherwise applicable laws and regulations. Fewer Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12 Page 4 of 8 units than two hundred and ninety (290) are permitted if agreed to in writing between the Parties or as modified by Developer to satisfy fire safety requirements b. Except as amended by this Amendment, all other terms and conditions as set forth in the Agreement shall remain in effect. The terms of this Amendment shall control if any conflict exists. 3. Monetary Consideration. Tech Park agrees to remit to the City the following sums at the following times: a. Upon the Final Approval Date, as defined below, of the Proposed Project substantially as submitted, with no less than 290 dwelling units (unless otherwise agreed in writing between the Parties), subject to any and all lawfully imposed dedications, conditions of approval and mitigation measures as may be required pursuant to environmental review under the California Environmental Quality Act,Tech Park shall remit to the City for its Housing Assistance Fund the sum of six hundred and twenty-five thousand dollars ($625,000). The "Final Approval Date" shall be ninety(90) days from the City's approval of the last of the Proposed Project Entitlements if the City files a Notice of Determination within sixty (60) days of such approval or, if no Notice of Determination is filed, within one hundred and eighty(180) days of such approval. For purposes of clarification, insofar as a Proposed Project Entitlement is adopted by ordinance, the approval date for such approval is the date of the second reading of that ordinance; b.At the time of issuance of the initial building permits for the Proposed Project, Tech Park shall remit to the City for its Housing Assistance Fund the additional sum of one million, eight hundred and seventy-five thousand dollars ($1,875,000); c. The sums identified in paragraphs "a" and"b"of this section shall be in addition to any fees and exactions lawfully imposed by the City. d. In the event a referendum or lawsuit is filed challenging any Proposed Project land use entitlements or approvals, including without limitations its environmental review, the deadlines for the remittance of sums under paragraphs "a" and"b" of this section shall be tolled until the referendum or legal challenge is resolved such that Tech Park is able to commence construction of the Proposed Project substantially as submitted. e. In the event Tech Park proposes to transfer the Property to a successor, assign, or heir ("Property Transfer")prior to the Final Approval Date and/or the issuance of building permits, then the following provisions shall apply: i. If neither the Final Approval Date nor the issuance of building permits has occurred prior to the Property Transfer, and Tech Park has not delivered any of the monetary consideration set forth under Sections 3(a) and 3(b)to the City, then Tech Park shall,prior to the Property Transfer, deposit the sum of two million, five hundred thousand dollars ($2,500,000) into an escrow account, on terms and with an escrow holder as mutually agreed to by the Parties, where such sum shall be released from escrow in accordance with the schedule set forth in Section 3(a) through 3(d) of this Amendment. ii. If the Final Approval Date has passed but building permits have not yet been issued, and Tech Park has delivered only the monetary consideration set forth in Section 3(a), then Tech Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12 Page 5 of 8 Park shall,prior to the Property Transfer, deposit the sum of one million, eight hundred and seventy-five thousand dollars ($1,875,000) into an escrow account, on terms and with an escrow holder as mutually agreed to by the Parties, where such sum shall be released from escrow in accordance with the schedule set forth in Section 3(b) through 3(d) of this Amendment. iii. If a referendum or lawsuit results in Tech Park not being able to commence construction of the Proposed Project substantially as submitted and any sums, as set forth in this Section 3(e), remain in escrow, the Parties agree such sums shall be released from escrow to Tech Park. 4. Covenants. The following covenants are materials terms of this Amendment and the Agreement: a. Notwithstanding anything else in the Agreement or this Amendment, Tech Park agrees not to amend the Proposed Project to include a residential component of less than two hundred and ninety (290)units (unless otherwise agreed in writing between the Parties or as modified by Tech Park to satisfy fire safety requirements); b. Notwithstanding anything else in the Agreement or this Amendment,the City agrees that neither the Agreement, its Amendment, the Redevelopment Plan, the Planned Development Permit in Recital C, nor the Grant Deed prohibit, or shall be interpreted to prohibit, construction and operation of the Proposed Project under the Proposed Project Entitlements (and as the Proposed Project might be amended as agreed to in writing between the Parties or modified by Tech Park to satisfy fire safety requirements). 5. Settlement and Release. a. The terms of this Amendment are intended to fully resolve the Dispute between the Parties. Except as otherwise set forth herein, the Parties, individually and on behalf of their respective heirs, assignees, transferees, successors, affiliates, directors, officers, shareholders, employees, and agents and representatives, hereby release the other party and their respective heirs, assignees, transferees, successors, affiliates, directors, officers, shareholders, employees, and agents and representatives (including the Parties'attorneys), from any and all claims, complaints, demands, causes of action, obligations, damages, costs, expenses, attorneys' fees, rights, and liabilities relating to property damage, whether known or unknown, suspected or not suspected to exist, claimed or not claimed, related to or arising in any way from the Dispute. However,nothing contained herein shall be construed to prevent either party from taking any lawful action to challenge or enforce their rights with respect to any action concerning the Proposed Project that is not related to the Dispute, or from enforcing the terms of this Amendment. b. For purposes of clarification, and notwithstanding anything else in the Agreement or this Amendment, the Dispute solely concerns (i)the Parties' disagreement about whether the Agreement's terms serve as a contractual impediment to the construction and operation of the Proposed Project through November 18, 2027; and(ii)the Parties' disagreement about whether the foregoing contractual disagreement about the Agreement's terms constitutes a violation of the Housing Accountability Act. Nothing in the settlement and release provisions in Section 5(a) related to the Dispute, the Agreement, or this Amendment shall preclude or otherwise affect any other claims related to the entitlement of the Proposed Project that Tech Park might have under Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12 Page 6 of 8 the Housing Accountability and the Permit Streamlining Act(including without limitation claims under Senate Bill 330 and the Builder's Remedy), the Mitigation Fee Act, and other local, state, or federal law, except that Tech Park agrees not to amend the Proposed Project or otherwise pursue a scope of development to include a residential component of less than two hundred and ninety(290) units (unless otherwise agreed in writing between the Parties or as necessary to satisfy fire safety requirements), as set forth in Section 4(a). c. The settlement and release provisions of Section 5(a) shall not be operative until the later of(1) execution by the Parties of this Amendment; or(2) the City's adoption of a resolution permanently rescinding the Central Campbell Redevelopment Plan in its entirety with respect to the Existing Property, thereby removing the exception in Resolution No. 12965 which provided that the aforesaid plan continues to exist when referenced by, or relied upon, within a disposition and development agreement, as it relates to the Agreement, the Existing Property, and the Proposed Project. 6. Review of the Proposed Project. The City makes no promises or representations with regard to the approval of the Proposed Project; and nothing contained in this Amendment is intended to limit the lawful discretion of the City, its employees, Planning Commission or City Council in their review and action on the Proposed Project. 7. Representation by Counsel. The Parties hereby acknowledge and warrant that they have been represented by counsel of their choice throughout all negotiations which preceded their execution of this Agreement. The Parties represent that they have read this Amendment and have had the same explained by legal counsel. The Parties represent that they understand this Amendment and have executed it voluntarily. 8. Differences in Facts. The Parties each represent and warrant that they fully understand that if the facts related to the Dispute should be found hereafter to be different from the facts now believed to be true, each of the Parties expressly accepts and assumes the risk of such possible differences in facts and agrees that this Amendment shall be and remain effective notwithstanding such differences in facts. Notwithstanding the above, the Dispute, as defined in Recital T, shall continue to define the scope of the settlement and release terms of Section 5 of the Amendment. 9. Binding Upon Successors. This Amendment shall be binding upon and shall inure to the benefit of all agents, attorneys, successors, assigns, heirs, executors, administrators, personal representatives, trustees, successors-in-interest, and other related parties to this Amendment. If the Existing Property is transferred to a successor, assign, or heir, the transferor shall not retain any obligations or enjoy any benefits under this Amendment after such transfer. The transferor has a duty to notify the transferee, and provide a copy of, this Amendment prior to any transfer of the Existing Property. 10. Authority to Execute Agreement;No Assignment. The Parties to this Agreement, and each of them, represent and warrant that each has the right,power, and authority to execute this Amendment, and each further represents and warrants that each of them, have the right to compromise the matters set forth in this Amendment and none of them have sold, assigned, Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12 Page 7 of 8 conveyed, or otherwise transferred such rights. All signatures to this Amendment shall be notarized, except for any signatures by attorneys approving the documents as to form. 11. No Waiver. The failure of any party to insist on the strict performance of any covenant or duty required by this Amendment, or to pursue any remedy under this Amendment, shall not constitute a waiver of the breach or the remedy. 12. Construction of Amendment. The Parties, through counsel, have thoroughly reviewed this Amendment and have had the opportunity to clarify any potential ambiguities. As such, the normal rule that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Amendment. 13. Entire Agreement. This Amendment and the Agreement that it amends sets forth the entire understanding of the Parties in connection with the subject matter herein. Neither of the Parties have made any statement, representation, or warranty in connection with this Agreement that has been an inducement for the other to enter into this Amendment or the underlying Agreement, except as is expressly set forth in this Amendment and the underlying Agreement. The Parties agree that they will make no claim at any time or place that this Amendment or the underlying Agreement has been orally altered or modified or otherwise changed by oral communication of any kind or character. 14. Effect of Void or Unenforceable Agreement or Amendment. If Tech Park has paid any monetary consideration under Section 3 of this Amendment, then the City agrees it shall release any claims it may have that any provision of this Agreement or its Amendment are void or unenforceable. 15. Counterparts. This Amendment maybe executed in one or more counterparts and each counterpart will be considered an original and binding to the party executing it. A copy of a Party's signature shall be treated the same as an original. Electronic or scanned pdf signatures are also valid as an original. IN WITNESS HEREOF, the following Parties have executed this Amendment: City of Campbell fL Dated: `1/S , 2024 By ` Brian Loventhal, City Manager Campbell Technology Park, LLC August 22 Dated: 9 , 2024 By Tim Pasquinelli , its Managing Member Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12 Page 8 of 8 Approved as to form and content: Dated: 913 , 2024 R. lgman y Attorney of Campbell Hanson Bridget,LLP Dated: August 22 , 2024 By: (- Sean`lrciniak,Attorney for Campbell Technology Park, LLC Agreement to Amend First Amended and Restated Disposition and Development Agreement 39077.1 21016677.12