Reso 2022-086 2nd amendment to DDA

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"For purposes of the previous sentence, without limitation, Tenant's material failure to perform any of the Post -Commencement Ground Lease Requirements within the time set forth therefor in the Schedule of Performance shall constitute a failure to perform a provision of this Lease." 9. Scope of Development. The DDA Scope of Development (Exhibit I to the DDA) is hereby replaced with the Amended and Restated Scope of Development which is attached hereto as Exhibit I (Amended) and incorporated herein. The Single Family PSA Scope of Development (Exhibit C to the Single Family PSA) is hereby amended to be consistent with the Amended and Restated Scope of Development attached hereto. 10. Schedule of Performance. The DDA Schedule of Performance (Exhibit J to the DDA) is hereby replaced with the Amended and Restated Schedule of Performance attached hereto as Exhibit J (Amended) and incorporated herein. The Single Family PSA Schedule of Performance (Exhibit D to the Single Family PSA) is hereby amended to be consistent with the Amended and Restated Schedule of Performance attached hereto. 11. Surplus Land Act. City and Developer have determined that the conveyance of land to Developer under the DDA, Single Family PSA and Ground Leases is not subject to the current requirements of the Surplus Land Act, Government Code Section 54220, et seq., pursuant to the exception set forth in Government Code Section 54234(a)(1), because City and Developer entered into an Exclusive Negotiating Rights Agreement dated as of April 12, 2012, as amended. The DDA, Single Family PSA, and Ground Leases were negotiated, prepared and approved through the negotiations of the parties pursuant to the Exclusive Negotiating Rights Agreement, and the disposition of the land from City to Developer will occur not later than December 31, 2022. City shall make written findings that the conveyance of land to Developer under the DDA, Single Family PSA, and Ground Leases prior to December 31, 2022 is exempt from the current requirements of the Surplus Land Act, and shall provide a copy of City's findings to the California Department of Housing and Community Development ("HCD") promptly after the date of approval of this Second Amendment. In the event that HCD sends City a Notice of Violation of the Surplus Land Act, City shall timely respond to the Notice of Violation, and shall use good faith efforts to vigorously defend the City's Surplus Land Act findings and the right of the City to convey the land to Developer under the terms of the DDA, Single Family PSA, and Ground Leases. City and Developer shall work cooperatively with each other in any such response to a Notice of Violation from HCD. City shall not be obligated to convey any of such land to Developer until and unless the Notice of Violation has been withdrawn and/or satisfactorily resolved. In the event that the Closing of the Single Family Element or the Commencement of any of the Ground Leases does not occur prior to December 31, 2022, for whatever reason, City and Developer shall take such actions as may be required to comply with the Surplus Land Act, which may include the filing and prosecution of any appeals or challenges necessary to allow such conveyances to occur, the termination of the PSA, the termination of the Parties' rights under the DDA with respect to those Elements which have not been sold or ground leased to Developer by such date, and/or City issuance of a notice of availability of real property pursuant to the current requirements of the Surplus Land Act.