08 Attachment 3 - North 40 Transportation Demand Management Agreement - Bellaterra
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WHEN RECORDED MAIL TO:
TOWN OF LOS GATOS
110 E. MAIN STREET
LOS GATOS, CA 95030
ATTN: TOWN CLERK
______________________________________________________________________________
NO FEE PER GOVERNMENT CODE
SECTIONS 6103 AND 27383
NORTH 40 TRANSPORTATION DEMAND MANAGEMENT AGREEMENT
(BELLATERRA)
This North 40 Transportation Demand Management Agreement (“TDM Agreement”) is
entered into effective this ___ day of _________, 2020, by and between the Town of Los Gatos,
a California General Law City (“Town”) and SummerHill N40 LLC, a California limited liability
company (“SummerHill”), each a “Party” and collectively “Parties,” with respect to the
following facts and circumstances:
WHEREAS, in 2017, the Town approved Phase 1 of the North 40 project (“Project”) to
be developed on part of the property known as the North 40 site, bounded generally by
California State Route 17 to the west, Lark Avenue to the south, California State Route 85 to the
north and Los Gatos Boulevard to the east; and
WHEREAS, the Project includes (i) approximately two hundred fifty-three (253) for-
sale residential units, and (ii) forty-nine (49) affordable senior apartments, and one (1) manager’s
apartment (the “Senior Affordable Units”); and
WHEREAS, that portion of the North 40 site to be benefitted and burdened by the effect
of this Agreement (the “Property”) is more particularly described in Exhibit A attached hereto
and incorporated herein by this reference; and
WHEREAS, the Property comprises the Bellaterra residential development
(“Bellaterra”); and
WHEREAS, a Homeowners Association (the “HOA”) will be formed to manage and
own common property of Bellaterra within the Project; and
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WHEREAS, the requirements of development approved for the Project include the
implementation of a TDM program (the “TDM Program”); and
WHEREAS, it is not practicable for the Project to mitigate transportation impacts on
and through Project site only TDM Program; and
WHEREAS, the TDM program will serve the North 40 and other Town locations and
measure effectiveness by total reductions in vehicle miles for travel originating and concluding
both within and outside the Property, in order to offset the impact of the Property; and
WHEREAS, the Town is best positioned to implement, monitor, and adjust such a
program.
NOW THEREFORE, in consideration of the foregoing recitals and the conditions and
covenants contained herein, the Parties hereto agree as follows
1. TDM Contribution. The total SummerHill contribution to the TDM Program
shall be in the form of annual payments, each of the sum of Forty-one Thousand Two Hundred
Eighty-Three Dollars ($41,283) funded from Bellaterra. The Bellaterra HOA CC&Rs shall
incorporate and reference this agreement and the funding requirement for the TDM Contribution.
2. The first such payment shall be due and payable within ten (10) days after the
issuance by the Town of the Certificate of Occupancy for the 190th unit of Bellaterra.
Subsequent annual payments shall be due and payable on each annual anniversary of the date of
the first payment. Each annual payment shall be adjusted by the San Francisco-Oakland-San
Jose Metropolitan Area Consumer Price Index for All Urban Consumers, all items (CPI). The
adjustment shall be based upon the CPI published on December 31 of the preceding year.
2) Use of Funds. The Town shall program the use of funds for townwide TDM
measures, such measures being at the Town’s sole discretion. The funds shall be used toward
TDM measures, which may include the accrual of funds over time without limit, to be used
toward future TDM measures.
3) Satisfaction. The above contribution in Section 1 also satisfies any and all obligation
of the Senior Affordable Units to contribute to the TDM Program.
4) Term. As the transportation impact from the Property will continue in perpetuity, so
shall the TDM Program and fees shall continue in perpetuity or until such point as the Town acts
to cancel the TDM Program.
5) Operation of TDM Program. The Parties acknowledge that the TDM Program is a
Town-operated and managed program. SummerHill’s role is limited to providing funding as
required by this Agreement. No relationship of agency, partnership, or joint venture exists
between the Parties with respect to the TDM Program. The Town shall defend, indemnify, and
hold harmless SummerHill and its agents, members, managers, employees, officers, directors,
shareholders, successors and assigns from any third party claims, lawsuits, damages, liabilities,
costs and expenses (including attorneys’ fees and costs) for personal injury or property damage
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arising out of, or relating to, the operation of the TDM Program, except to the extent the claim at
issue is caused by the negligence or willful misconduct of SummerHill.
6) Dispute Resolution. Any dispute under this TDM Agreement, including with regard to
the payment amounts to be paid pursuant to Section 1 hereunder, shall first be negotiated by the
Parties. If negotiation fails, either Party may demand binding arbitration, which shall be
conducted under the auspices of the Judicial Arbitration and Mediation Service (JAMS). Each
Party shall bear its own costs and attorneys’ fees in the arbitration, regardless of the outcome
thereof.
7) Integrated Agreement. This TDM Agreement shall be deemed the complete and total
agreement of the Parties concerning the subject matter hereof, which supersedes memoranda or
correspondence, if any, and any previous drafts or oral understandings, if any, made by the
Parties concerning the subject matter hereof. Nothing herein shall preclude the Parties from
executing such other documents as are necessary to perfect this Agreement.
8) No Third-Party Beneficiaries. This TDM Agreement is intended exclusively for the
benefit of the Parties hereto, and no third parties are entitled to any rights hereunder or to claim
to be beneficiaries hereof.
9) Successors and assigns. This TDM Agreement shall be binding upon, and inure to the
benefit of, the Parties and their respective successors, transferees and assigns. This TDM
Agreement may be assigned by SummerHill to any entity that controls, is controlled by or is
under common control with SummerHill. In addition, the Parties acknowledge that it is
expressly contemplated that this TDM Agreement will be assigned by SummerHill to the HOA,
which will assume all obligations of SummerHill hereunder. SummerHill shall give written
notice of such assignment to the Town. Any assignment shall be considered for approval by the
Town pursuant to this Agreement, which approval shall not be unreasonably withheld,
conditioned or delayed. Upon the giving of such notice and approval by the Town, SummerHill
shall be released from all obligations and duties of any nature hereunder. If requested by
SummerHill, Town shall record a document releasing SummerHill or its affiliated assignee(s)
from all such obligations in the Official Records of Santa Clara County
10) Amendments to be in Writing. This TDM Agreement may not be altered, amended,
modified or changed in any respect or particular whatsoever except by writing duly executed by
all the Parties to this TDM Agreement.
11) Notice. All notices shall be given personally or by first class mail, postage prepaid,
addressed as shown below. Notices shall be deemed given on the earlier of the date delivered or
the second day following the date on which the same have been mailed in the manner required
by the prior sentence. Any of the Parties may, by notice given in the manner required by this
Section, designate any further or different addresses to which subsequent notices shall be sent.
a) Notice to the Town:
Town of Los Gatos
110 E. Main St.
Los Gatos, CA 95030
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Attn: Town Manager
b) Notice to SummerHill
SummerHill N40 LLC
3000 Executive Parkway, Suite 450
San Ramon, CA 94583
Attn: Chief Operating Officer
with a copy to
SummerHill N40 LLC
777 South California Ave.
Palo Alto, CA 94304
Attn: General Counsel
12) Recording. The Parties shall cause this TDM Agreement and all amendment and
supplements to it, to be recorded against the Property in the Official Records of Santa Clara
County.
13) Covenants to Run with the Land. All rights and obligations under this Agreement are
intended by the Parties to be, and shall be construed as, covenants running with the Property. All
persons who may have or may acquire an interest in the Property, including but not limited to the
HOA, shall be deemed to have notice of, and be bound by, the terms of the Agreement.
Individual homebuyers and individual owners of lots and/or condominiums upon which
residential other uses are constructed (“Individual Owners”) benefit from the right to use TDM
Agreement program. However, with respect to Bellaterra only, upon the transfer of title to the
first condominium under the authorization of a final subdivision public report issued by the
Department of Real Estate, Individual Owners in Bellaterra shall have none of the rights and
obligations described in this Agreement except for the obligation to fund regular or special
assessments to the HOA. At the point of such initial transfer of title, the HOA shall be
responsible alone for performing the obligations of this Agreement.
14) Mortgagee Protection. No breach of this Agreement shall defeat or render invalid the
lien of any deed of trust or mortgage recorded against all or any portion of the Property. No
lender taking title to all or any portion of the Property through foreclosure or deed in-lieu of
foreclosure shall be liable for any defaults or monetary obligations of SummerHill arising prior
to acquisition of possession of such property by such lender. The foreclosing lender shall have
the right to find a substitute developer to assume the obligations of SummerHill, which substitute
shall be considered for approval by the Town pursuant to this Agreement, which approval shall
not be unreasonably withheld, conditioned or delayed. The Town agrees to provide any lender
of SummerHill who has recorded a deed of trust or mortgage against all or any portion of the
Property of which the Town has been given notice (each, a “Lender”) with written notice of any
default relating to SummerHill and/or the Property given by the Town to SummerHill. The
Town agrees that, notwithstanding anything to the contrary contained in this Agreement, Lender
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shall have an additional ninety (90) days from the date Lender receives notice of a default to cure
any such default, provided that Lender shall not have any obligation to cure any such default.
15) Miscellaneous. This TDM Agreement may be signed in counterparts. Each executed
duplicate hereof shall be considered as an original. Facsimile or signatures on electronically
transmitted documents in PDF form and copies of signatures shall have the same force and effect
as original signatures. The captions and titles herein are for convenience only and shall not be
used to interpret this TDM Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, The Parties acknowledge and accept the terms and
conditions of this TDM Agreement as evidenced by the following signatures of their duly
authorized representatives. It is the intent of the Parties that this TDM Agreement shall become
operative on the date first above written.
SummerHill N40 LLC, a California limited liability company
By: SummerHill Homes LLC, its manager
By: ____________________________
Its: ____________________________
By: ____________________________
Its: ____________________________
TOWN OF LOS GATOS, a California municipal corporation
By: Laurel Prevetti
Its: Town Manager
APPROVED AS TO FORM:
Robert Schultz, Esq.
Town Attorney
ATTEST:
__________________________________
Shelley Neis
Town Clerk
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Real property located in the Town of Los Gatos, County of Santa Clara, State of California, described as
follows:
LOTS 1-22, 24-26 AND 30-39, AND PARCELS A-U, Z-OO, QQ-QQQ, and TTT AS SHOWN ON THE
MAP OF “TRACT 10441”, FILED FOR RECORD ON OCTOBER 11, 2018 IN BOOK 918 OF MAPS,
AT PAGES 4 THROUGH 18, SANTA CLARA COUNTY RECORDS.