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Ordinance 2003-02ORDINANCE NO. 2003 -2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF GILROY AND REGENCY REALTY GROUP, INC. FOR THE GILROY CROSSING REGIONAL SHOPPING CENTER PROJECT THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I. RECITALS A. Pursuant to the City of Gilroy's Resolution No. 2002 -61 which sets forth the procedures and sets fees for the processing of a development agreement pursuant to California Government Code sections 65864 through 65869.5 ( "State Law "), Regency Realty Group, Inc., a Florida corporation ( "Developer "), has requested a development agreement to govern construction of a multi -phase project consisting of the commercial and retail development of the Gilroy Crossing regional shopping center (the "Project "). B. A development agreement (the "Development Agreement ") between the City of Gilroy and the Developer has been presented to and reviewed by the City Council. C. Pursuant to the California Environmental Quality Act ( "CEQA "), the City prepared an Environmental Impact Report ( "EIR ") for the Project, which EIR was certified by the City Council on December 18, 2002 pursuant to CEQA by adoption of Resolution No. 2002 -85, and a mitigation/monitoring program was adopted in connection with the Project. D. Public hearings on the proposed Development Agreement were held before the \J HZ72525.1 01- 112202 - 04706075 Ordinance No. 2003 -2 Planning Commission on November 7, 2002 and on November 21, 2002, for which public notice was given as provided by law and at which all persons desiring to be heard were given an opportunity to be heard, and following the hearings, the Planning Commission recommended approval of it. E. A public hearing on the proposed Development Agreement was held before the City Council on December 2, 2002, for which public notice was given as provided by law, and at which all persons desiring to be heard were given an opportunity to be heard. The City Council has duly considered all testimony received, both oral and written. SECTION H. FINDINGS AND DETERMINATIONS Therefore, on the basis of the foregoing Recitals and the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan. 2. The City has taken all steps required by State Law and by CEQA in order to approve the Development Agreement. SECTION III. APPROVAL The City Council hereby approves entering into the Development Agreement and authorizes the Mayor to execute the Development Agreement between the City of Gilroy and Regency Realty Group, Inc., a copy of which is attached hereto as Exhibit "A ". \JK572525.1 01- 112202 - 04706075 -2- Ordinance No. 2003 -2 SECTION IV. RECORDATION Within ten (10) days after the Development Agreement is entered into by the City, the City Clerk shall submit the Agreement to the County Recorder for recordation. SECTION V. EFFECTIVE DATE This ordinance shall take effect and be in full force thirty (30) days from and after its adoption, and on that same date, the Development Agreement shall take effect. PASSED AND ADOPTED this 6th day of January, 2003 by the following vote: AYES: COUNCH -MEM 3ERS: NOES: COUNCILMEMBERS ABSENT: COUNCILMEMBERS: ATTES Rhonda Pellin, City Clerk DII-LON, GARTMAN, MORALES, PINHEIRO, VELASCO and SPRINGER ARELLANO 06]0 �I APPROVED: Thomas W. Sprin ayor WH\572525.1 _3_ 01- 112202 - 04706075 Ordinance No. 2003 -2 RECORDING REQUESTED BY AND WHEN RECORDED, RETURN TO: City of Gilroy 7351 Rosanna Street Gilroy, California 95020 -6190 Attention: City Administrator DEVELOPMENT AGREEMENT BETWEEN CITY OF GILROY AND REGENCY REALTY GROUP, INC. Dated: February 5, 2003 CITY OF GILROY DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement ") is made and entered into as of this 5th day of February,2003, by and between CITY OF GILROY, a California municipal corporation ( "City "), and REGENCY REALTY GROUP, INC., a Florida corporation ( "Regency "). This Agreement is entered into on the basis of the following facts, understandings and intentions of the Parties: A. These Recitals refer to and utilize terms which are defined in this Agreement; and the Parties refer to those definitions in conjunction with their use in these Recitals. B. The Development Agreement Legislation authorizes City to enter into development agreements in connection with the development of real property within its jurisdiction. The Development Agreement Ordinance establishes the authority and procedure for review and approval of proposed development agreements by City. C. Regency has the right pursuant to a written agreement with the owner of the Property to acquire the Property, and therefore has a sufficient legal interest to enter into a -2- CASSIDY IREGENCYIGILROrDEVELOPMENT AGT.5 development agreement with City pursuant to the Development Agreement Legislation and Development Agreement Ordinance. D. Regency applied for approval of this Agreement in order to (i) vest the land use policies established in the General Plan and other Existing City Regulations as of the Adoption Date, and (ii) memorialize certain agreements made between City and Regency with respect to the City Financial Contribution. City and Regency acknowledge that development and construction of the Project is a large -scale undertaking involving major investments by Regency. Thus, certainty that the Project can be developed and used in accordance with the General Plan and other Existing City Regulations will benefit City and Regency and will provide the Parties certainty with respect to implementation of the policies-set forth in the General Plan. E. City is willing to enter into this Agreement to (i) eliminate uncertainty in the comprehensive development and planning of the Project and the timing of the construction and occupancy of the Project; (ii) secure orderly development and progressive fiscal benefits for public services, improvements and facilities planning in City; (iii) meet the goals and objectives of the General Plan; and (iv) provide significant new retail uses in City which will add to the existing retail base within City and significantly enhance retail uses within City because of the types of Occupants which will lease and /or own space within the -3- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 Proj ect . F. Development of the Project in City will locate in City major retailers with a high profile. in the shopping center industry and enhance both the image and stature of City. Furthermore, development of the Project will increase employment . opportunities in City, leading to the production of increased revenues for City both through taxes paid by Occupants of the Project, as well as other fiscal benefits to City, such as sales taxes generated through retail sales at the Project, and property taxes that result from the enhancing effect that the Project has on real estate values in City. G. Regency has informed City that, however, in order for Regency to construct, develop, lease and /or sell space in the Project, Regency will require a financial contribution from City . in order to make the Project financially feasible. Specifically, Regency has informed City that the cost and expense required of Regency in order, to design, install and construct the Public Improvements required by the Project Approvals would, if City does not make the City Financial Contribution, make the Project financially infeasible. In connection with Regency's request for the City Financial Contribution, Regency has informed City that the Occupants of the Project will generate substantial sales tax revenues to City and has supplied to City a Fiscal Revenue Analysis of the Project prepared by Kosmont Partners, dated -4- CASSIDYIREGENCYIGILROY \DEVELOPMENT AGT.5 . January, 2002. Such Fiscal Revenue Analysis supports the conclusion that the Occupants of the Project will generate substantial sales tax revenues to City. In consideration of this sales tax revenue generation, City has agreed to make the City Financial Contribution, but on terms and conditions which will ensure that Occupants will occupy space in the Project and generate sales tax revenue. H. Regency has provided to City for review and approval by City the estimate of Regency's engineer of the projected cost of the Public Improvements. The City Engineer has reviewed such estimates and has determined that they are reasonable and that the City Financial Contribution will not exceed the cost to design, construct and install the Public Improvements. I. On November 21, 2002, after due review of and report on Regency's application for this Agreement by City staff, and consideration of all other evidence heard and submitted at a duly noticed public hearing held on November 21, 2002, pursuant to the Development Agreement Legislation and the Development Agreement Ordinance, the Planning Commission duly adopted its Resolution No. 2002 -39, and (i) found and determined that consideration of this Agreement complies with CEQA based on the adoption of the .Final EIR, and that this Agreement is consistent with the objectives, policies, land uses and programs specified in the General Plan and in the other Existing City Regulations CASSIDY IREGENCYAGILROYIDEVELOPMENT AGT.5 _ 5 pertaining thereto, and (ii) recommended that the City Council approve this Agreement based on the foregoing findings. J. On December 2, 2002, the City Council held a duly noticed public hearing on this Agreement pursuant to the requirements of the Development Agreement Legislation and the Development Agreement Ordinance. After due review of and report on Regency's application for this Agreement by City staff, and consideration of the Planning Commission's recommendations thereon, and of all other evidence heard and submitted at such public hearing, the City Council (i) considered the Final EIR in compliance with CEQA; and (ii) introduced the Enacting Ordinance approving this Agreement, finding and determining in connection therewith that this Agreement is consistent with the objectives, policies, land uses and programs specified in the General Plan, and in the other Existing City Regulations pertaining thereto. On January 6, 2003, the City Council adopted the Enacting Ordinance enacting this Agreement. NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation and the Development Agreement Ordinance, and in consideration.of the foregoing Recitals and the mutual covenants and promises of the Parties herein contained, the Parties agree as follows: .6- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 ARTICLE I DEFINITIONS 1.1. Defined Terms. Each reference in this Agreement to any of the foiiowing terms st'iaii have the meaning set forth below for each such term. Adoption Date: ..The date the City Council adopted the Enacting Ordinance enacting this Agreement. Affiliate: Any Person directly or indirectly controlled by, controlling,. or under common control of another Person; any Person resulting from the merger or consolidation of a Person with another Person; any Person which acquires the controlling interest in the assets of another Person as a going concern; or any parent of a Person, any subsidiary of a Person, or any subsidiary of a parent of a Person, including, for purposes of the foregoing, any parent or subsidiary through one or more parents or subsidiaries owned or controlled by such parent or subsidiary. Appiicabie City Re uiataons: The Existing City Regulations, and such other City Regulations otherwise applicable to development of the Project pursuant to the provisions of Section 3.2. Building Group: Each Building Group designated as such on the Site Plan. -7- CASSIDYIREGENCYIGILROY \DEVELOPMENT AGT.5 CEQA: The California Environmental Quality Act (Public Resources Code Section 21000, et seq. ) and the Guidelines thereunder (14 California Code of Regulations Section 15000, et. seq. ) . Certificate of Occupancy: A final certificate of. occupancy issued by City pursuant to.the Construction Codes upon due application by Regency. For purposes hereof, a "Certificate of Occupancy" shall include one or more such certificates of occupancy which may be required for occupancy of a Building Group. City Application Fee: A fee levied or assessed by City to cover the reasonable cost of City's performance of any discretionary, ministerial, clerical or other action, or required by City for reviewing and processing applications for City Approvals, including City Application Fees for the Project Approvals and compliance with CEQA. City Approvals: The permits or approvals required under Applicable. City Regulations in order to develop, use and operate the Project. City Development Fee: A fee or assessment, other than a City Application Fee, charged or required by City in connection with any City Approval to defray the cost of public services or facilities or imposed for a public purpose. -6- CASSIDY \REGENCY\GILROY\DEVELOPMENT AGT.5 City Fee: A City Application Fee and /or City Development Fee. City Financial Contribution: The waiver by City of City Development Fees pursuant to the provisions of Section 4.3 of this Agreement. The City Development Fees which are applicable to space in each Building Group and the amount.of the City Development Fees payable for each such space are set forth in Fxhihit A_ City Regulations: The General Plan of.City, and ordinances, resolutions, codes, rules, regulations and official policies of City, in effect as of the time in question, determined in accordance with the provisions of this Agreement. City Standards: The standards for the design, installation and construction of the Public Improvements under Existing City Regulations, including the Construction. Codes under Existing City Regulations as specified in Exhibit B. Construction Codes: The City Regulations pertaining to or imposing life safety, fire protection, mechanical, electrical and /or building integrity requirements with respect to the design . and construction of buildings and improvements. Dedicate: An irrevocable offer to make a dedication of land and /or improvements to City. Dedication: An Exaction comprised of land and /or improvements required to be Dedicated to City. -9- CASSIDY\REGENCYIGILROY \DEVELOPMENT AGT.5 Development Agreement Legislation: Government Code §§ 65864 - 65859.5, authorizing City to enter into development agreements as therein set forth. Development Agreement Ordinance: Resolution No. 2002- 61, adopted by City's City Council on August 5, 2002, establishing the authority and procedure for review and approval of proposed development agreements. Effective Date: The date that is thirty (30) days after the date the Enacting Ordinance was adopted by City Council. The Effective Date shall be extended, as necessary, by any referendum challenging this Agreement, the response of the City Council thereto, litigation filed challenging this Agreement, or similar events warranting such extension as City and Regency may so determine. Enacting Ordinance: Ordinance No...2003 -02, enacted by City Council on January 6, 2003, enacting this Agreement as an ordinance of City pursuant to Section 65867.5(a) of the Development Agreement Legislation. Exaction: An exaction (other than City Fees), Dedication or reservation requirement, an obligation for on- or off -site improvements or construction of public improvements, or an obligation to provide services, in connection with the development of the Project. For purposes hereof, Exactions include mitigation measures imposed or adopted pursuant to CEQA. -10- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.S Existing City Regulations: The City Regulations in effect as of the Adoption Date, including the Project Approvals as part of the Existing City Regulations. Final EIR: The final environmental impact report prepared on behalf of City by huff- -� Associat -s in. accordance with the requirements of CEQA. Force Majeure: A delay in the Project Development Schedule or the opening for business of an Occupant caused by reason of events beyond the .reasonable control of a Party, including acts of God or civil commotion; riots, strikes, picketing, or other labor disputes; shortage of materials or supplies; damage to work in process by reason of fire, floods, earthquake, or other casualties; restrictions or delays imposed or mandated by Responsible Agencies; enactment of Laws which prevent or preclude compliance by a Party with any material provision of this Agreement; litigation brought by Persons other than a Party, or Affiliate of a Party; and acts (or failure to act when action is required) or neglect of another Party. Indemnify: An obliga *c^ a n--+y to ir:?-mnify, defend, protect and hold the other Party, its officials, officers, employees, agents, stockholders, constituent partners and members of its boards and commissions, harmless from and against Losses. -11- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 ` Laws: The Constitution and laws of the-State, the Constitution of the United States, and any codes, statutes, regulations, or executive mandates thereunder, and any court decision, State or federal, thereunder. Losses: Claims, damages, liabilities, penalties, fines, causes of action, lawsuits and other proceedings, and costs and expenses in connection therewith, including reasonable attorneys= fees. Mortgage: A mortgage or deed of trust, or other transaction, in which Regency conveys or pledges as security its interest in the Project, or a portion thereof, or interest therein, or any. imps ^,.men`s - and saseback - -y arrangement, in which Regency sells and leases back concurrently therewith its interest in the Project, or a portion thereof, or interest therein, or improvements thereon. Mortgagee: The holder of the beneficial interest under a Mortgage, or the owner of the Project, or interest therein, under a Mortgage. Non -Tax Generating Entities: A Person which, due to the nature of its business or its status as a tax - exempt organization, would not generate retail sales taxes to City if space in the Project were leased to such Person. Examples of such Persons include religious facilities, public agencies, non- profit organizations, and medical or dental offices without -12- CASSIDY VREGENCYIGILROYIDEVELOPMENT AGT.5 significant accompanying retail sales. Occupants: The Persons from time to time entitled to the use and occupancy of space within the Building Groups in the Project pursuant to Occupant Transfers. Reference to an Occupant shall refer to any or all of the Occupants of the Project, as the context may require. Occupant Transfer: Any transaction by which an Occupant becomes entitled to occupy and use space within a Building Group, including a lease agreement, or a transaction through which Regency transfers to an Occupant the fee title interest in a Building Group, or portion thereof, and /or a portion of the Property upon which a Building Group.is, or will be, located. Any Occupant Transfer made by a lease agreement shall have a lease term of not less than five (5) years. Any transaction by which a Non -Tax Generating Entity becomes an Occupant, or a Relocation Entity becomes an Occupant, shall not constitute an Occupant Transfer for any purpose under this.Agreement. Party: City, and /or Regency, and Regency's Transferees, determined as of the time in question. Person: An individual, partnership, firm, association, corporation, trust, governmental agency, administrative tribunal or other form of business or legal entity. Project: The development, use and occupancy of buildings and other improvements on the Property pursuant to the -13- CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5 Project Approvals. Project Approvals: The City Approvals governing the Project enacted concurrently with this Agreement as set forth in Exhibit C hereto, as the same may be amended from time to time during the Term. Reference in this Agreement to a particular Project Approval shall have the meaning ascribed to such Project Approval set forth in Exhibit C. Project Development Schedule: The schedule for development of the Project prepared by Regency and approved by City as part of this Agreement attached hereto as Exhibit D. Property: The real property more particularly described in Exhibit E hereto, to be acquired by Regency. Public Improvements: The off -site public improvements required to be designed, installed and constructed by Regency pursuant to the Project Approvals, which Public Improvements are listed in Exhibit F hereto. Relocation Entity: A Person which, if space were leased to such Person in the Project, would result in the relocation.of the business of such Person from an existing location in City and the closure by such Person of such existing business location. Responsible Agencies: All governmental or quasi- governmental agencies (such as public utilities) having jurisdiction over, or the authority to regulate development of, -14- CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5 the Project. Responsible Agency Regulations: The Laws, ordinances, resolutions, codes, rules, regulations and official policies of Responsible Agencies in effect as of the time in question. Site Plan: The`site plan for the shopping center comprised in the Project attached hereto as Exhibit G. State: The State of California and any department or agency acting on behalf of the State. Term: The term of this Agreement, determined as of the time in question pursuant to Article II below, unless sooner Terminated as provided in this Agreement. Terminate: The expiration of the Term of this Agreement, whether by the passage of time or by any earlier occurrence pursuant to any provision of this Agreement. Transfer: The sale, assignment, lease, sublease, or other transfer by Regency of this Agreement, or any right, duty or obligation of Regency under this Agreement, made pursuant to the terms, standards and conditions of Article X of this Agreement, including by foreclosure, trustee sale, or deed in lieu of foreclosure; under a Mortgage, but excluding (i) a Dedication and (ii) a Mortgage, including a transfer or assignment of this Agreement to a Mortgagee as additional security under a Mortgage. -is- CASSIDY \REGENCYIGILROYkDEVELOPMENT AGT.5 Transferee: The Person to whom a Transfer is effected. 1.2. Certain Other Terms. Certain other terms shall have the meaning set forth for each such term in this Agreement. ARTICLE II EFFECTIVE DATE: TERM 2.1. Effective Date; Term Commencement. This Agreement shall be dated as of the Adoption Date; the rights, duties and obligations of the Parties hereunder shall be effective, and the Term shall commence, as of the Effective Date. Regency has previously executed and acknowledged this Agreement before adoption by the City Council of the Enacting Ordinance. Not later than thirty (30) days after the Effective Date, City, by and through its Mayor, shall. - xecu`e .z -d acknowledge this Agreement; and not later than ten (10) days after City's execution and acknowledgment of this Agreement, the City Clerk shall cause this Agreement to be recorded in the Official Records of the County of Santa Clara. 2.2. Expiration of Term. Unless sooner Terminated pursuant to the applicable provisions of this Agreement, the Term shall expire on the earlier to occur of (i) five (5) years after the date on which Certificates of Occupancy have been issued for all Building Groups in the Project or (ii) December 31, 2010. 2.3. Subsequent Amendments or Termination. If the Parties amend, modify or Terminate this Agreement as herein -16- CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5 provided, or as otherwise provided by the Development Agreement Ordinance, or this Agreement is modified or Terminated pursuant to any provision hereof, 'then City Clerk shall, within ten (10) days after such action takes effect, cause an appropriate notice of such action to be recorded in the Official Records of the County of Santa Clara. 2.4. Expiration of Term. Except for accrued obligations of a Party, upon expiration of the Term, this Agreement and all of the rights, duties and obligations of the Parties hereunder shall Terminate and be of no further force or effect. Expiration of the Term (including by Termination of this Agreement) shall not affect any right vested under Laws (absent this Agreement), or other rights arising from City Approvals granted by City for development of all or any portion of the Project. ARTICLE III GENERAL REGULATION OF DEVELOPMENT OF PROJECT 3.1. Project Development; Control of Development. Regency shall have the right to develop the Project in accordance with the terms and conditions cf this Agreement; and City and Agency shall have the right to control development of the Project in accordance with the provisions of this Agreement. The Applicable City Regulations and this Agreement shall control the overall design, development and construction of the Project, and. -17- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 all on- and off -site improvements and appurtenances in connection therewith, in the manner specified in this Agreement.. In the event of any inconsistency between the Applicable City Regulations and this Agreement, this Agreement shall control, except that if the inconsistency cannot be reconciled by application of this rule`of construction, the provision which best gives.effect to the purposes of this Agreement shall control. 3.2. Applicable City Regulations. Except as specifically provided in this Section 3.2 and Section 3.3, the Existing City Regulations shall govern the development of the Project and all subsequent City Approvals with respect to the Project. City shall have the right, in connection with any further City Approvals, to apply City Regulations as Applicable City Regulations only in accordance with the following terms, conditions and standards: 3.2.1. Future City Regulations.- City shall have the right to apply City Regulations adopted by City or Agency after the Adoption Date only if such City Regulations (i) are not in any manner inconsistent or in conflict with the intent, purposes, terms, standards or conditions of this Agreement; (ii) do not in any manner change or modify the uses, height, density and intensity of development specified in the Existing City Regulations or this Agreement with respect to the Project, or do -18- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 not change or modify, or`interfere with, the timing, phasing, or rate of development of the Project; and (iii) do not interfere with or diminish the ability of a Party to perform its obligations hereunder or expand, enlarge or accelerate Regency's obligations hereunder. 3.2.2. Regulation for Health and Safetv. Notwithstanding any other provision of this Agreement, City shall have the right to apply City Regulations adopted by City after the Adoption Date, if such application (i) is otherwise permissible pursuant to Laws (other than the Development Agreement Legislation) and (ii) is required to protect against a demonstrated threat to the physical.heal.th and safety of existing or future Occupants, or users of the Project, or any portion thereof or any lands immediately adjacent thereto. 3.2.3. Construction Codes. Except for the Public Improvements governed by the City Standards pursuant to Section 4.2 below, City shall have the right to apply to the Project, as a ministerial act, the Construction Codes in effect at the time of the approval of any City Approval thereunder. All permits required under Construction Codes shall be issued by City after City's review and approval of Regency's or an Occupant's applications therefor, except that City's review of the applications shall be limited to determining whether (i) the application is complete, and (ii) the application complies with -19- CASSIDY\REGENCYkGILRO \DEVELOPMENT AGT.5 the Construction Codes then in effect, the City Approvals and this Agreement. 3.3. Review and Processing of City Approvals. City shall accept for processing, review and action, all applications for City Approvals with respect to.the Project when and if the same are complete, as determined pursuant to Government Code Section 65940, et seg. Upon acceptance by City, such applications shall be reviewed and processed to completion in a reasonable time, with the overall goal of the Parties being to maintain the Project Development Schedule and allow Occupants to open for business in the Project, including scheduling of all required public hearings, and processing and checking of all maps, plans, permits, building plans and specifications and other plans relating to development of the Project filed by Regency or. an Occupant. In connection with any City Approval, City shall exercise its discretion or take action only in a manner which complies and is consistent with the standards,.terms and conditions contained in this Agreement. 3.4. Effect of Agreement. This.Agreement constitutes a City Approval adopted pursuant to the Applicable City Regulations. 3.5. Other Governmental Approvals. Regency (or an Occupant) shall be responsible for complying with all Responsible Agency Regulations and Laws in connection with the development, -20- CASSIDY IREGENCYIGILROY\DEVELOPMENT AGT.5 use and operation of, or provision of services to, the Project. Regency (or an Occupant) shall be responsible for applying for and obtaining all approvals required from Responsible Agencies necessary for the development, use and operation of, or provision of services to, the Project. Regency (or an Occupant) shall undertake reasonable, diligent and good faith efforts to obtain all Responsible Agency Approvals in a timely fashion. City shall cooperate with Regency and any Occupant in such endeavors upon request made for such cooperation, but without cost to City. 3.6. Effect of Termination. Upon Termination of this Agreement pursuant to Article VI, City shall retain any and all benefits, including money or land, previously received by City as of the date of Termination under or in connection with this Agreement. No Termination of this Agreement shall prevent Regency or an Occupant from completing and occupying buildings or other improvements authorized pursuant to valid building permits previously approved by City or under construction at the time of Termination, but City may take any action permitted by Laws or City Regulations-to prevent, stop or correct any violation of Laws or City Regulations occurring during and after construction. No Termination of this Agreement shall affect any accrued obligation of either Party under this Agreement to pay or refund money to the other Party. -21- CASSIDY\REGENCY \GILROYIDEVELOPMENT AGT.5 3.7. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Regency, and refinements and further development of the Project may demonstrate that clarifications with respect to the details of performance of City and Regency or minor revisions to the Project are appropriate. If and when, from time to time, during the term of this Agreement, City and Regency agree that such clarifications or minor modifications are necessary or appropriate, they shall effectuate such clarifications through operating memoranda approved by City and Regency, which, after execution, shall be attached. to and become a part of this Agreement. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Attorney shall be authorized to make the determination whether a requested clarification may be effectuated pursuant to this Section 3.7 or whether the requested clarification is of such a character to require an amendment hereof pursuant to Article XI below. The Parties acknowledge that modifications which.would be categorized as exempt under CEQA, or which, after an initial study made pursuant to CEQA, City determines do not require any further environmental review, or do not increase the density or intensity of use or the maximum height, bulk, size or architectural style of proposed buildings within the Property, may be effectuated through operating memoranda pursuant. to this -22- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 Section 3.7. The City Administrator may execute any operating memoranda hereunder without City Council action. ARTICLE IV SPECIFIC CRITERIA AND OBLIGATIONS APPLICABLE TO DEVELOPMENT OF PROJECT 4.1. Right to Develop; Requirement to Develop Project in Accordance with Project Development Schedule. City acknowledges that, subject to receiving any further required City Approvals subject to the standards and provisions of this Agreement, Regency may proceed with the development, construction, use and occupancy of the Project as a matter of right under this Agreement. Regency shall develop the Project (including the Public Improvements) in accordance with the Project Development Schedule in order to ensure to City that Occupants begin to generate sales tax revenues in appropriate relationship to the timing and making of the City Financial Contribution pursuant to Section 4.3 below. Any date specified in the Project Development Schedule shall, however, be extended by any Force Majeure delay on a day -by -day basis for the duration of any such Force Majeure delay. 4.2. Construction of Public Improvements. Regency shall be solely responsible to design, install and construct the Public Improvements at Regency's sole cost and expense. Regency shall design, install and construct the Public Improvements in -23- CASSIDYIREGENCYIGILROY \DEVELOPMENT AGT.5 accordance with the City Standards. Prior to commencing construction of the Public Improvements, Regency shall enter into one or more improvement agreements with performance and payment security in accordance with the requirements of the City Approvals and Applicable City Regulations. Unless otherwise required by Responsible Agencies under Responsible Agency Regulations, which requirements become part of the City Approvals, City shall impose no requirements in addition to, or more stringent than, those specified by the City Standards. Promptly upon completion.of any of the Public Improvements, Regency shall Dedicate such Public Improvements to City or the Responsible Agency having jurisdiction. 4.3. Terms of•City Financial Contribution. The City Financial Contribution shall be made by City in accordance with the terms and conditions of this Section 4.3. 4.3.1 Deferral of Payment of City Development Fees. Notwithstanding anything to the contrary contained in the Applicable City Regulations, no City Development Fee comprised in the City Financial Contribution shall be due or payable by Regency for space contained in any Building Group developed by Regency in the Project unless and until Regency has requested a final inspection for such space under City's Construction Codes, and City is prepared to issue a Certificate of Occupancy for such Building Group. Concurrently with making such request.for a -24- CASSIDYIREGENCYIGILROY \DEVELOPMENT AGT.5 Building Group or any space therein, Regency shall supply to City evidence of any Occupant Transfers in effect for the affected space in such Building Group. If Regency submits evidence of one (1) or more Occupant Transfers for the affected space in such Building Group, then Regency shall have no obligation to pay City Development Fees applicable to such space, and City shall forever waive and relinquish its right to collect such City Development Fees. If, at the time Regency makes such request for a Building Group or space therein, Regency does not so provide evidence of an Occupant Transfer for the affected space in such Building Group, then Regency shall pay to City the City Development Fees applicable.to such space concurrently with issuance by City of the Certificate of Occupancy for the affected space in such Building Group. In the event that Regency after making such payment provides to City evidence of one (1) or more Occupant Transfers for the affected space in such Building Group within one - hundred - eighty (180) days after issuance by City of such Certificate of Occupancy, and within two- hundred -forty (240) days after the issuance by City of such Certificate of Occupancy the Occupant to which the Occupant Transfer has been effected opens for business in its space in.the affected Building Group, then, within thirty (30) days after the date such Occupant first opens for business in such space, City shall repay to Regency the City Development Fees previously paid by Regency with respect to the -25- CASSIDYIREGENC 'AGILROYIDEVELOPMENT AGT.5 affected space in such Building Group, and such City Development Fees shall be deemed waived and relinquished by City pursuant to this Section 4.3.1. To the extent that Regency fails to.meet the requirements for occupancy of space in a Building Group under this Section 4.3.1, then City shall thereupon have no obligation to waive and relinquish City Development Fees with respect to such space in such Building Group, and Regency shall thereupon have no further right for the City Financial Contribution with respect to such space. 4.3.2 Non -Tax Generating Entity and Relocation Entity Transfers. If Regency effectuates a Transfer to a Non -Tax Generating Entity and /or a Relocation.Entity, Regency shall not be entitled to any City Financial Contribution on account of such Transfer, and any City Development Fees payable by Regency with respect to the space to be occupied by such Non -Tax Generating Entity or Relocation Entity shall be fully due and owing by Regency upon entering into such Transfer with such Entity. 4.3.3 City Development Fees. The City Development Fees payable by Regency.with respect to space in.Building Groups and the Project are listed on Exhibit A, which City Development Fees have been calculated based on the square footage of space in each Building Group and the Project shown on the Site Plan. If the square footage of space in a Building Group is, when constructed, greater or lesser than the square footage of space -26- CASSIDY IREGENCY\GILROYIDEVELOPMENT AGT.5 shown on the Site Plan for such Building Group, then the amount of City Development Fees payable by Regency with respect to space in such Building Group shall be adjusted on a per square foot basis to reflect the actual square footage of space contained in such Building Group. No other City Development Fees shall be imposed by City, other than those specified in Exhibit A. City shall not increase the amount of the City Development Fees as specified in Exhibit A, and Regency's --b-ligation for City Development Fees to the extent payable by Regency pursuant to this Section 4.3 shall not be increased above the amount for each City Development Fee specified in Exhibit A hereto. 4.3.4 No Effect on Obligation to Design, Install and Construct Public Improvements. Notwithstanding that Regency may pay City Development-Fees with respect to space in one or more Building Groups pursuant to Section 4.3.1 above, Regency shall remain fully obligated to design, install and construct the Public Improvements at its sole cost and expense pursuant to Section 4.2 above. Nothing in this Section 4.3 shall otherwise relieve Regency of such obligation under Section 4.2. 4.3.5 Prevailing Wage Requirement. Regency understands that the payment by City of the City Financial Contribution under this Section 4.3 may require that the design, installation, and construction of the Public Improvements be accomplished by payment of "prevailing wage" in accordance with -27- CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5 applicable requirements of State Laws. De•.-loper further understands that City has no responsibility to ensure compliance with such Laws and that Regency is solely responsible to.ensure that such Laws have been complied with. In addition; Regency understands that City, by providing the City Financial Contribution under this Agreement, has assumed no responsibility whatsoever (direct, indirect, implied or express) for paying any cost or expense in connection with the design, installation or construction of the Public Improvements, and that the responsibility for payment thereof is solely the responsibility of Regency. Subject to the foregoing provisions, the Parties acknowledge that they have concluded, based on Regency's estimate of Regency's engineer of'the projected cost of.the Public Improvements, that the City-Financial Contribution will not exceed the cost to design, construct and install the Public Improvements. 4.4 Reasonable Efforts to Lease to Tax Generati Occupants. Regency understands and acknowledges that City's willingness to provide the City Financial Contribution pursuant to Section 4.3 above is based on City's expectation that Regency's Project will generate substantial retail sales tax revenues. To this end, Regency shall use commercially reasonable, good faith efforts to effectuate Occupant Transfers to Occupants which will generate high taxable sales, taking into -28- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 account customary and usual standards for leasing and /or selling space and /or property in similar shopping centers, such as appropriate tenant mix and balance, mix of retail and other uses and categories, return on investment, and similar criteria. City acknowledges that Regency cannot, and does not, guarantee that the Project will in fact generate the highest sales tax revenues, but the Parties mutual expectation is that substantial sales tax revenues will be generated by the Project. 4.5. Vacation and Abandonment of Brem Lane. City acknowledges that the Project and the Public Improvements require that the existing Brem Lane be vacated and abandoned by City with title reverting to Regency. Accordingly, promptly after the Effective Date, City shall commence and conduct proceedings to vacate Brem Lane pursuant to California Streets and Highways Code Section 8320. Nothing in this Section 4.5 is intended, however, to limit the discretion of City to take appropriate legislative action pursuant to the procedures to vacate Brem Lane pursuant to California Streets and Highways Code Section 8320, et seq. If the City Council adopts a resolution of vacation pursuant to California Streets and Highways Code Section 8324, fee title to Brem Lane shall automatically revert to Regency. If necessary to effectuate such reversion of fee title to Regency, City shall execute such documents and instruments in recordable form as may be necessary or appropriate to vest fee title in Regency pursuant -29- CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5 to this Section 4.5. If the City Council declines to adopt a resolution of vacation for Brem Lane within one-hundred-eighty (180) days from -the Effective Date, then Regency shall have the right to Terminate this Agreement for a period of thirty (30) days after the expiration of such 180 -day period. Regency shall effectuate such Termination by written notice to City. ARTICLE V INDEMNITY; INSURANCE 5.1. Regency Indemnity. Regency shall Indemnify City from any Losses arising out of or in connection with any litigation or other proceeding initiated by a third Person challenging any City Approval (including this Agreement). Regency's obligation to Indemnify City under this.Section 5.1 shall include the obligation to Indemnify for any claim that any work performed by Regency is subject to prevailing wage requirements under Laws and the obligation to Indemnify City for costs incurred by City Staff and the City Attorney in connection with any such litigation or other proceeding. The Parties shall cooperate in defending any such litigation or other proceeding. City shall have the right to employ its own counsel in such litigation or other proceeding and Regency's obligation to Indemnify City under this Section 5.1 shall include all fees and costs incurred by City for City's counsel. In no event shall City be required to bear the fees or costs of Regency's counsel in any -30- CASSIDY\REGENCYIGILROY\DEVELOPMENT AGT.5 such litigation or other proceeding. The'Parties acknowledge that this Section 5.1 constitutes a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement or the Agreement as a whole is invalidated, rendered null or set aside by a court of competent jurisdiction as a result of any such litigation or other proceeding, the Parties shall nevertheless be bound by the terms of this Section 5.1, which shall survive such invalidation, nullification or setting aside by such court. 5.2. Insurance. Until full and final completion of the Public Improvements pursuant to Article IV above, Regency shall maintain in effect (i) a policy of commercial general liability insurance with a combined single limit of not less than $5,000,000.00 per occurrence and general aggregate, and.(ii) Workers' Compensation Insurance covering all individuals employed by Regency for work at the Project site or on the Public Improvements, with coverage in the minimum amount required by Laws. Regency shall also cause each general contractor and subcontractor performing work at the Project site or on the Pubic Improvements to carry Workers' Compensation Insurance with coverage of at least the minimum amount required by Laws. Regency's commercial general liability insurance under clause (i) above shall name City, its elected and appointed boards, commissions, officers, agents and employees, as additional -31- CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5 insureds, and shall include either a sever=_bility of interest clause or cross- liability endorsement. Regency shall furnish City certificates of insurance evidencing that Regency's insurance required to be carried under clauses (i) and (ii) above is in effect and providing that City shall receive at least thirty (30) days prior written notice of the cancellation or reduction in coverage of any insurance policy issued pursuant to clauses (i) or (ii) above. ARTICLE VI ANNUAL REVIEW OF COMPLIANCE 6.1. Annual Review. City and Regency may annually review this Agreement, and all actions taken pursuant to the terms of this Agreement with respect to the Project, in accordance with the provisions of Section 65865.1 of the Development Agreement Legislation, Section 6 of the Development Agreement Ordinance, and this Article VI. 6.2. Regency's Submittal. Promptly after receipt from City of notice of its decision to undertake an annual review under this Article VI, Regency shall submit a report to the City Administrator describing Regency's good faith substantial compliance with the terms of this Agreement during the preceding year. Such report shall include a statement that the report,is submitted to City pursuant to the requirements of Section 65865.1 of the Development Agreement Legislation and Section 6 of the -32- CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5 Development Agreement Ordinance. 6.3. Finding of Compliance. Within thirty (30) days after Regency submits its report hereunder, the City Administrator shall review Regency's submission to ascertain whether Regency has demonstrated good faith substantial compliance with the terms, of this Agreement. If the City Administrator finds and determines that Regency has in good faith substantially complied with the terms of this Agreement or does not determine otherwise within thirty (30) days after delivery of Regency's report under Section 6.2 above, the annual review shall be deemed concluded. If.the City Administrator initially determines that such report is inadequate in any respect, he or she shall provide written notice to that effect to Regency, and Regency may supply such additional information or evidence as may be necessary to demonstrate good faith substantial compliance with the terms of this Agreement. If the City Administrator concludes that Regency has not demonstrated good faith substantial compliance with the terms of this Agreement, he or she shall so notify Regency prior to the expiration of the 30 -day period herein specified and prepare a staff report to the City Council with respect to the City Administrator's conclusions and the contentions of Regency with respect thereto. 6.4. Hearing Before City Council to Determine Compliance. After submission of the City Administrator's staff -33- CASSIDY \REGENCY\GILROYIDEVELOPMENT AGT.5 report,. the City Council shall conduct a noticed public hearing pursuant to Section 6 of the Development Agreement Ordinance to determine the good faith substantial compliance by Regency with the terms of this Agreement. At least five (5) business days prior to such hearing, the City Administrator shall provide to the City Council, Regency and to all other interested Persons requesting the same, copies of all staff reports and other information concerning Regency's good faith, substantial compliance with the terms of this Agreement and the conclusions and recommendations of the City Administrator. At such hearing, Regency and any other interested Person shall be entitled to submit evidence, orally or in writing, and address all the issues raised in the staff report on, or with respect or germane to the issue of, Regency's .good faith substantial compliance with this Agreement. If, after receipt of any written or oral response of Regency, and after considering all of the evidence at such public hearing, the City Council finds and determines, on the basis of substantial evidence, that Regency has not substantially complied in. good faith with the terms and conditions of this Agreement, then the City Council shall specify to Regency the respects in which Regency has failed to comply, and shall also specify a reasonable time for Regency to meet the terms of compliance, which time shall be not less than thirty (30) days and shall be reasonably related to the time necessary adequately to bring -34- CASSIDY IREGENCYIGILROYADEVELOPMENT AGT.5 Regency's performance into good faith substantial compliance with the terms of this Agreement. If the areas of noncompliance specified by the City Council are not corrected within the time limits prescribed by the City Council hereunder, then the City Council may by subsequent action extend the time for compliance for such period as the City Council may determine (with conditions, if deemed appropriate), Terminate or modify this Agreement, or take such other actions as may be specified in the Development Agreement Legislation and the Development Agreement Ordinance. Any notice to Regency of a determination of noncompliance by Regency hereunder, or of a failure by Regency to perfect the areas of noncompliance hereunder, shall specify in reasonable detail, the grounds therefor, and a summary of the facts demonstrating such noncompliance or failure, so that Regency may address the issues raised in the notice of noncompliance or failure on a point -by -point basis in any hearing held by the City Council hereunder. 6.5. Certificate of Compliance. If the City Administrator (or the City Council, if applicable) finds good faith substantial compliance by Regency with the terms of this Agreement, the City Administrator shall, upon Regency's written request, promptly after receipt of such request, issue a certificate of compliance within ten (10) days thereafter, certifying Regency's good faith compliance with the terms of this -35- CASSIDYIREGENCY %GILROYUDEVELOPMENT AGT.5 Agreement through the period of the applicable annual review. Such certificate of compliance shall be in recordable form and shall contain such information as may be necessary in order to impart constructive record notice of the finding of good faith compliance hereunder. Regency shall have the right to record the certificate of compliance in the Official Records of the County of Santa Clara. ARTICLE VII PERMITTED DELAYS; SUPERSEDURE BY SUBSEQUENT LAWS 7.1. Permitted Delays. Performance by a Party of its obligations hereunder shall be excused during, and extended for a period of time equal to, the period (on a day -to -day basis) for which the cause of such permitted delay is in effect. 7.2. Supersedure by Subsequent Laws. 7.2.1. Effect of Conflicting Law. If any Law made or enacted after the Effective Date prevents or precludes compliance with one or more provisions of this Agreement, or any provision or condition of approval contained in any other City Approval, or requires changes in any of the plans, maps or permits encompassed within the City Approvals, then upon request of either Party after enactment of any such new Law, the Parties shall meet and confer in good faith in a reasonable attempt to modify or suspend this Agreement to comply with such Law. Any such modification or suspension of this Agreement shall be -36- CASSID Y\REGENCYIGILROYIDEVELOPMENT AGT.5 effective only if approved by the City Council. If such modification or suspension is deemed infeasible in Regency's reasonable business judgment, then Regency may elect either (i) to Terminate this Agreement by written notice to City, or (ii) to contest such Law pursuant to Section 7.2.2 below. The effect of. any Termination pursuant to clause (i) above shall be governed by the provisions of Section 3.6 above. 7.2.2. Contest of New Law. Either Party shall have the right to contest the Law preventing compliance with the terms of this Agreement, any City Approval, or any plans, maps or permits thereunder and, in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect. ARTICLE VIII EVENTS OF DEFAULT; REMEDIES; ATTORNEY'S FEES; CERTIFICATES 8.1. Events of Default. Subject to the provisions of Articles VI and VII, any failure by a Party to perform any material term or provision of this Agreement shall constitute an "Event of Default ", (i) if such defaulting Party does not cure such failure within thirty (30) days following notice of default. from the other Party, where such failure is of a nature that can be cured within such 30 -day period, or (ii) if such failure is not of a nature which can be cured within such 30 -day period, the defaulting Party does not within such 30 -day period commence -37- CASSIDY \REGENCY\GILROY\DEVELOPMENT AGT.5 substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure. Any notice of and Event of Default given hereunder shall specify in reasonable detail the nature of the failures in performance which the noticing party claims constitute the Event of Default and the manner in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. Proceedings under Article VI or VII shall be governed exclusively by the provisions of those Articles and not by the provisions of this Article VIII. 8.2. Remedies. Except as otherwise I specifically provided in this Section 8.2, upon the occurrence of an Event of Default, each Party shall have the right, in addition to all other rights and remedies available under this Agreement, to (i) bring any proceeding in the nature of specific performance, injunctive relief or mandamus, and /or (ii) bring any action at law or.in equity as may be permitted by Laws or this Agreement. Notwithstanding the foregoing, neither Party shall have the right to any monetary damages (whether direct, consequential or otherwise) on account of any Event-of Default of a Party under this Agreement, claims of breach of contract related to this Agreement, or claims in the nature of tort related to this Agreement (such as fraud in the inducement), except that a Party -38- CASSIDY\REGENCY�GILROI \DEVELOPMENT AGT.5 shall have the right to bring an action at law against the other Party for the breach by such other Party of an obligation of such other Party for the payment of money under this Agreement. The Parties intend, by the provisions of this Section 8.2, that neither Party shall have'any liability for damages arising out of an Event of Default under this Agreement, except for the right to bring an action to enforce an obligation of a Party to pay monies due under this Agreement as specifically provided in this Section 8.2. Accordingly, except for the right to enforce such monetary obligations, each Party hereby waives, releases and relinquishes, after full and complete advice by counsel chosen by each Party, such Party's right to any claim or right to damages on account of an Event of Default of a Party under this Agreement. In addition, the Parties further acknowledge that monetary damages and remedies at law generally are inadequate upon the occurrence of an Event of Default. Therefore, specific performance or other extraordinary equitable relief (such as injunction) is an appropriate remedy for the enforcement of this Agreement, other remedies at law being inadequate under all the circumstances pertaining as of the date of this Agreement and any such equitable remedy shall be available to the Parties. The Parties acknowledge that neither Party would have entered into this Agreement but for the limitations on monetary damages and the acknowledgments and waivers contained in this Section 8:2.. -39- CASSIDY IREGENCYIGILROY\DEVELOPMENT AGT.5 , 8.3. Waiver; Remedies Cumulative. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such Party's right to demand strict compliance by such other Party in the future. No waiver by a Party of an Event of Default shall be effective or binding upon such Party unless made in writing by such Party, and no such waiver shall be implied from any omission by a Party to take any action with respect to such .Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time, other than any Event of Default and /or period of time specified in such express waiver. One or more written waivers of an Event of Default under any provision of this Agreement shall not be deemed to be a waiver of any subsequent Event of Default, and the performance of the same or any other term or provision contained in this Agreement. 8.4. Litigation Expenses. If a Party brings an action or proceeding (including any cross - complaint, counterclaim, or third -party claim) against the other Party by reason of an Event of Default, the prevailing Party in such action or proceeding shall be entitled to its costs and expenses, including reasonable attorneys' fees and attorneys' fees on any appeal. -40- CASSIDY \REGENCY\GILROY\DEVELOPMENT AGT.5 8.5. Limitations on Actions. Unless otherwise provided by Laws, any action by any third Person to attack, review, set aside, void or annul any action or decision taken by a Party under this Agreement shall not be maintained by such Person unless such action or proceeding is commenced within ninety (90) days after the date such decision or action is made or taken hereunder. 8.6. Estoppel Certificate. Either Party may, at any time, and from time to time, deliver written notice to the other Party requesting such other Party to certify in writing that (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended or modified either orally or in writing, and if so amended, identifying the amendments, and (iii) to the knowledge of such other Party, no Party has committed an Event of Default under this Agreement, or if an Event of Default has to such other Party's knowledge occurred, to describe the nature of any such Event of Default. A Party receiving a request hereunder shall execute and return such certificate within twenty (20) days following the receipt thereof. The City Administrator, as to City, shall execute certificates requested by Regency hereunder. Each Party acknowledges that a certificate hereunder may be relied upon by Transferees and Mortgagees. No Party shall, however, be liable to the requesting Party, or third Person -41- CASSIDY IREGENCY\GILROY\DEVELOPMENT AGT.5 requesting or receiving a certificate hereunder, on account of any information therein contained, notwithstanding the omission for any reason to disclose correct and /or relevant information, but such Party shall be estopped with respect to the requesting Party, or such third Person, from asserting any right or obligation, or utilizing,any defense., which contravenes or is contrary to any such information. 8.7. Nonliability of Officials and Emplovees of Citv. No member, official or employee of City shall be personally liable to Regency in the event of any Event of Default by City or for any amount which may become due to Regency, or fo.r'any obligations under the terms of this Agreement, or for any claims of breach of contract related to this Agreement, or for any claims in the nature.of tort related to this Agreement (such as fraud in the inducement). Regency hereby waives and releases any claim it may have against the members, officials-or employees of City with respect to any Event of Default by City or for any amount which may become due to Regency, or on any obligations under the terms of this Agreement. ARTICLE IX MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE 9.1. Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage encumbering any interest in the Project. Notwithstanding the foregoing, no Event -42- CASSIDY IREGENCYIGILROY\DEVELOPMENT AGT.5 of Default shall defeat, .render invalid, diminish or impair the lien of any Mortgage made for value, but, subject to the provisions of Section 9.2 below, all of the terms and conditions contained in this Agreement shall be binding upon and effective against any Person (including any Mortgagee) who acquires title to the Project, or any portion thereof or interest therein or improvement thereon, by foreclosure, trustee =s sale, deed in lieu of foreclosure, or termination of the Mortgage. 9.2. Mortgagee Not Obligated; Mortgagee as Transferee. No Mortgagee shall have any obligation or duty under this Agreement, except that nothing contained in this Agreement shall be deemed to permit or authorize any Mortgagee to undertake any new construction or improvement project, or to otherwise have the benefit of any rights of'Regency, or to enforce any obligation of City under this Agreement, unless and until such Mortgagee has become a Transferee in the manner specified in Article X below. In the event a Mortgagee takes possession of the Property but elects not to become a Transferee and complete the Project in accordance with the applicable provisions of this Agreement, then Regency shall be obligated to reimburse City for any portion of the City Financial Contribution made to Regency pursuant to Section 4.3 as of the date such Mortgagee so elects by written notice to City. -43- CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5 9.3. Notice of Default to Mortgagee; Right of Mortgagee to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of an Event of Default given Regency hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Regency, any notice given to Regency with respect to. any claim by City that Regency has committed an Event of Default. If City makes a determination of noncompliance under Article VI above, City shall likewise serve notice of such noncompliance on such Mortgagee concurrently with service thereof on Regency. Such Mortgagee shall have the right (but not the obligation) to cure or remedy, or to commence to cure or remedy, the Event of Default claimed or the areas of noncompliance set forth in City's notice within the applicable time periods for cure specified in this Agreement. If, however, the Event.of Default or such noncompliance is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession of the Project, or portion thereof, such Mortgagee shall seek.to obtain possession with diligence and continuity through a receiver or otherwise, and shall thereafter remedy or cure the Event of Default or noncompliance as soon as reasonably possible after obtaining possession. So long as such Mortgagee is pursuing cure of the Event of Default or noncompliance in conformance with the requirements of this Section 9.3, City shall -44- CASSIDY\REGENCY\GILROY \DEVELOPMENT AGT.5 not exercise any right or remedy under this Agreement on account of such Event of Default or noncompliance. ARTICLE X TRANSFERS AND ASSIGNMENTS 10.1. Right to Transfer. Regency shall have the right to Transfer any right or interest under this Agreement in accordance with the provisions of this Article.X. 10.2. Conditions on Regency Right to Transfer. Except as otherwise provided in this Article X, Regency shall have the right to effect a Transfer, subject to and upon fulfillment of the following terms and conditions: 10.2.1. No Event of Default No Event of Default by Regency shall be outstanding and uncured as of the effective date of the proposed Transfer, unless City has received adequate assurances reasonably satisfactory to City that such Event of Default shall be cured in a timely manner either by Regency or the Transferee under the Transfer. 10.2.2. Assumption Agreement. Regency or the proposed Transferee has delivered to City an executed and acknowledged assumption agreement in recordable form, reasonably, acceptable to City. Such assumption agreement shall include provisions regarding (i) the portion or portions or interest in the Project proposed to be Transferred and the concomitant rights of Regency necessary to ensure that the proposed Transferee will -45- CASSIDY IREGENCY\GILROY\DEVELOPMENT AGT.5 have the ability to perform all of the obligations of Regency the Transferee is to assume, (ii) the obligations of Regency under this Agreement that the proposed Transferee will assume, and (iii) the proposed Transferee's acknowledgment that such Transferee has reviewed and agrees to be bound by this Agreement and all applicable City Approvals. The assumption agreement shall also include the name, form of entity, and address of the proposed Transferee, and shall provide that the Transferee assumes the obligations of Regency to be assumed by the Transferee in connection with the proposed Transfer. The assumption agreement shall be recorded in the Official Records of the County,of Santa Clara concurrently with the consummation of the Transfer, and a copy thereof, certified by the County Recorder as a duplicate copy of the approved assumption agreement with recording information, shall be delivered to City within three (3) days after consummation of the Transfer. 10.3. Limitations and Exceptions on Regency Right to Transfer. Regency's right to Transfer any right or interest under this Agreement shall be subject to the following limitations and exceptions. 10.3.1. Transfer to Affiliate. Regency shall have the right to Transfer any right or interest under this Agreement to an Affiliate, as to which Transfer the condition specified in Section 10.2.1 shall not apply. Such Affiliate -46- CASSIDY\REGENCY\GILROY \DEVELOPMENT AGT.5 shall become a Transferee upon (i) the acquisition by such Affiliate of the interest Transferred, and (ii) delivery to City of an assumption agreement pursuant to Section 10.2.2 above assuming, from and after the date such Affiliate so acquires its interest, all of the rights, duties and obligations pertaining to such interest under this Agreement. Unless approved by City, and except .as provided in Section 10.3.3 below for Occupants, Regency shall not have the right to effect a Transfer of any right or interest under this Agreement except to, an Affiliate prior to the issuance by City of the first (1St) Certificate of Occupancy for a Building Group in the Project. 10.3.2. Transfer to Non - Affiliate. Regency shall have the right to Transfer any right or interest under this Agreement concurrently with, or after issuance by City of, the first Certificate of Occupancy for a Building Group if the condition specified in Section 10.2.1 above is fulfilled. Such third Person shall become a Transferee upon (i) the acquisition by such third Person of the interest Transferred, and (ii) delivery to City of an assumption agreement pursuant to Section 10.2.2 above assuming, from and after the date such third Person so acquires its interest, all of the rights, duties and obligations pertaining to such interest under this Agreement. 10.3.3. Transfers to Occupants; Occu ants not Obligated Under Agreement. Notwithstanding anything to the -47- CASSIDY \REGENCY\GILROY\DEVELOPMENT AGT.5 contrary contained in this Article X, Regency shall have the right to Transfer portions of the Project (including space in Building Group) to Occupants pursuant to Occupant Transfers. No Occupant to whom a Transfer is made pursuant to this Section 10.3.3 shall have any obligation or liability under this Agreement and the conditions specified in Section 10.2 above shall not apply to any such Occupant Transfer. 10.4. Mortgagee as Transferee. No Mortgage (including the execution and delivery thereof to the Mortgagee) shall constitute a Transfer. A Mortgagee shall be a Transferee when such Mortgagee has complied with the provisions of Section 10.2.2 above. 10.5. Effect of Transfer. Except as otherwise provided in Section 10.3.3 for an Occupant Transfer thereunder, the Transferee shall become a Party to this Agreement only with respect to the interest Transferred to it under the Transfer to the extent set forth in the assumption agreement delivered under Section 10.2.2 above. Each Transferee, to the extent set forth in such assumption agreement, shall observe and fully perform all of the duties and obligations of Regency contained in this Agreement. If Regency effects a Transfer prior to full and final completion of the Public Improvements, then Regency shall not be released from its obligations under this Agreement. Upon full and final completion,of the Public Improvements then, upon effecting -48- CASSIDY\REGENCYkGILRO \DEVELOPMENT AGT.5 a Transfer, Regency (or its Transferee, as the case may be) shall be released from any obligations accruing after the date of the Transfer with respect to`the obligations of Regency under this Agreement that the Transferee assumes. For the purposes of this Section 10.5 only, "full and final completion of the Public Improvements" shall include the completion (or, if allowed by City, advance payment of -the costs for, or the provision of security to the satisfaction of the City for, the construction) of all off -site traffic mitigation measures as required by the Project Approvals. ARTICLE XI AMENDMENT AND TERMINATION 11.1. Amendment or Cancellation. Except as provided in Articles VI and VIII above, this Agreement may be Terminated, modified or amended only by mutual consent of the Parties in writing, and then only in the manner provided for in Section 65868 of the Development Agreement Legislation. Notwithstanding that this Agreement is a legislative act of City, the provisions of this Section 11.1, and Article VI, prescribe the sole and only means pursuant to which this Agreement may be Terminated, modified, or amended and neither this Agreement nor any term, covenant, condition or provision herein contained shall be subject to initiative after the Effective Date. -49- CASSIDYIREGENCY\GILROY \DEVELOPMENT AGT.5 ARTICLE XII NOTICES 12.1. Procedure. All formal notices to a Party shall be in writing and given by delivering the same to such Party in person or by sending the same by registered or certified mail, or Express Mail, return receipt requested; with postage prepaid, or by overnight courier delivery, to such Party's mailing address. The respective mailing addresses of the Parties are, until changed as hereinafter provided, the following: City: 7351 Rosanna Street Gilroy, California 95020 -6190 Attention: City Administrator Regency:. c/o Regency Centers 1850 Mt. Diablo Boulevard, Suite 225 Walnut Creek, California 94596 Attention: Thomas K. Engberg Senior Vice President Notices and communications with respect to technical matters in the routine performance and administration of this Agreement shall be given by or to the appropriate representative of a Party by such means as may be appropriate to ensure adequate communication of the information, including written confirmation of such communication where necessary or appropriate. All formal notices under this Agreement shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed or sent by courier, on the delivery date or attempted delivery date shown on the return receipt or courier -50- CASSIDY IREGENCY\GILROY\DEVELOPMENT AGT.5 records. 12.2. Change of Notice Address. A Party may change its mailing address at any time by giving formal written notice of such change to the other Party in the manner provided in Section 12.1 at least ten (10) days prior to the date such change is effected. ARTICLE XIII COVENANTS RUNNING WITH THE LAND 13.1. Covenants Running With The Land. Except as specifically provided in Section 10.3.3 above with respect to an Occupant Transfer thereunder, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, administrators, representatives,.lessees, and all other Persons acquiring Regency's interest in the Project, or any portion thereof, or any interest therein, or any improvement thereon, whether by operation of Laws or in any manner whatsoever, and shall inure to the benefit of the Parties and their respective heirs, successors (by merger, consolidation or otherwise) and permitted assigns as Transferees, as covenants running with the land pursuant to Section 65868.5 of the Development Agreement Legislation. This Agreement and the covenants shall run in favor of City, without -51- CASSIDY \REGENCY�GILROY\DEVELOPMENT AGT.5 regard to whether either City has been, remains or is an owner of any land or interest in the Property, any parcel or subparcel thereof. ARTICLE XIV MISCELLANEOUS 14.1. Negation of Partnership. The Parties specifically acknowledge that the Project is a private development, that no Party is acting as the agent of the others in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the.Parties in the businesses.of Regency, or the affairs of City, or otherwise, or cause them to be considered joint venturers or members of any joint enterprise. ,This Agreement is not intended and shall not be construed to create any third Party beneficiary rights in any Person who is not a Party; and nothing in this Agreement shall limit or waive any rights Regency may have or acquire against any third Person with respect to the terms, covenants or conditions of this Agreement. 14.2. Approvals. Unless otherwise provided in this Agreement, whenever approval, consent or satisfaction (herein collectively referred to as an "approval ") is required of a Party -52- CASSIDYIREGENCYIGILROY \DEVELOPMENT AGT.5 pursuant to this Agreement, it shall not be unreasonably withheld or delayed. If a Party shall disapprove, the reasons therefor shall be stated in reasonable detail in writing. Approval by a Party to or of any act or request by the other Party shall not be deemed to waive or render unnecessary approval to or of any similar or subsequent acts or requests. Whenever, under this Agreement, the term "approve" (or any grammatical variant thereof, such as "approved" or Aapproval ") is used in connection with the right, power or duty of City, or any representative board, commission, committee or official of City, to act in connection with any City Approval, such approval shall be made in accordance with the applicable terms, standards and conditions of this Agreement. 14.3. Not A Public Dedication; Reqenc Acknowledgments. Except for Exactions made in accordance with this Agreement and the Project Approvals, and then only when made to the extent so required, nothing herein contained shall be. deemed to be a gift or dedication of the Project, or portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Notwithstanding the foregoing provisions, Regency acknowledges that (i) a -53- CASSIDY\REGENCY IGILROYIDEVELOPMENT AGT.5 reasonable relationship exists between all Dedications and Exactions imposed by the City Approvals listed on Exhibit C and the impact of the Project upon City, and (ii) the direct and indirect impacts of the Project warrant and require the terms and conditions of this Agreement, and but for the acknowledgements of Regency contained in the foregoing clauses (i) and (ii), City would not have entered into this Agreement. 14.4. Severability. .Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any Person, by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other Person or circumstance and the same shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement. 14.5. Exhibits. The Exhibits listed below, to which reference is made herein, are'deemed incorporated into this Agreement in their entirety by reference thereto: Exhibit A - City Development Fees Schedule Exhibit B - City Standards Exhibit C - City Approvals Exhibit D - Project Development Schedule. Exhibit E - Description of Property -54- CASSIDY \REGENCY\GILROY\DEVELOPMENT AGT.5 Exhibit F - List of Public Improvements Exhibit G - Site Plan 14.6. Entire Agreement. This written Agreement and the Exhibits hereto, and any administrative implementation memoranda entered into pursuant to Section 3.7, contain all the representations and the entire agreement between the Parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement, any prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and Exhibits hereto, and such administrative implementation memoranda. Neither the conduct or actions of the Parties, nor the course of dealing or other custom or practice between the Parties, shall constitute a waiver or modification of any term or provision of this Agreement; and this Agreement may be modified or amended only in the manner specified in this Agreement. 14.7. Construction of Agreement. All of the provisions of this Agreement have been negotiated at arms - length between the Parties and after advice by counsel and other representatives chosen by each Party, and the Parties are fully informed with respect thereto. Therefore, this Agreement shall not be construed for or against either Party by reason of the authorship or alleged authorship of any provisions hereof, or by reason of the status of either Party. The provisions of this -55- CASSIDY IREGENCY\GILROY\DEVELOPMENT AGT.5 Agreement and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any Party and consistent with the provisions hereof, in order to achieve the objectives and purpose of the Parties hereunder. The captions preceding the text of each Article, Section and the Table of Contents hereof are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. 14.8. Mitigation of Damages. In all situations arising out of this Agreement, each Party shall use commercially reasonable efforts to mitigate the damages resulting from the conduct of the other Party. Each Party shall take all reasonably necessary measures to effectuate the provisions of this Agreement. 14.9. Further Assurances; Covenant to Sian Documents. Each Party shall take all actions and do all things, and execute, with acknowledgment or affidavit if required, any and all documents and writings, which may be necessary or proper to achieve the purposes and objectives of this Agreement. 14.10. Covenant of Good Faith and Fair Dealing. No Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement; each Party shall refrain from doing anything which would render its performance under this Agreement -56- CASSIDY IREGENCY�GILROY\DEVELOPMENT AGT.5 impossible; and each Party shall do everything which this Agreement contemplates that such Party shall do in order to accomplish the objectives and purposes of this Agreement. The Parties intend by this Agreement to set forth their entire understanding with respect to the terms, covenants, conditions and standards for the development, use and occupancy of the Project and by which the performance of the rights, duties and obligations of the Parties hereunder shall be measured or judged. 14.11. Governing Law. This Agreement, and the rights and obligations of the.Parties, shall be governed by and interpreted in accordance with the Laws of the State. 14.12. References; Terminology. Unless otherwise specified, whenever in this Agreement, reference is made to the Table of Contents, any Article or Section, or any defined term, such reference shall be deemed to refer to the Table of Contents, Article or Section or defined term of this Agreement. The use in this Agreement of the words "including ", "such as" or words of similar import, when following any general term, statement or matter; shall not be construed to limit such statement, term or matter to specific items or matters, whether or not language of nonlimitation, such as "without limitation" or "but not limited to ", or words of similar import, are used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of -57- CASSIDY\REGENCY\GILROY \DEVELOPMENT AGT.5 such statement, term or matter. 14.13. Irregularity in Proceeding. No action, inaction or recommendation by a Party pursuant to this Agreement, or of City in connection with a City Approval, shall be held void or invalid, or be set aside by a court on the grounds of improper admission or rejection of evidence, or by reason of any error, irregularity, informality, neglect or omission (collectively, an Aerror @) as to any matter pertaining to petition, application, notice, finding, record, hearing, report, recommendation or any matters of procedure whatsoever, unless after an examination of the entire record with respect to such error, including the evidence, the court finds that the error complained of was prejudicial, and that by reason of the error, the complaining Party, or third Person, sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. No presumption shall arise that an error is prejudicial, or that injury resulted from an error, solely as a result of a showing that error occurred. 14.14. Judicial Proceeding To Challenqe Termination. Any challenge made by Regency to City's Termination of this Agreement pursuant to a right so to do granted by this Agreement, shall be subject to review in the Superior Court of the County of Santa Clara pursuant to California Code of Civil Procedure Section 1094.5 as a case in which a vested right is affected. -58- CASSIDY\REGENCY\GILRO \DEVELOPMENT AGT.5 14.15. Signature Pages. For convenience, the signatures of the Parties to this Agreement may be executed and acknowledged on separate pages which, when attached to this. Agreement, shall constitute this as one complete Agreement. 14.16. Time. Time is of the essence of this Agreement and of each and every term and condition hereof. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written by the "Authorized Signatures" attached hereto. -59- CASSIDY\REGENCY IGILROYIDEVELOPMENT AGT.5 AUTHORIZED SIGNATURE OF CITY TO AGREEMENT City of Gilroy, a California municipal corporation �J By . Li Its City Mayor Approved as to form: By Its City Attorney STATE OF CALIFORNIIA� ) COUNTY OF` ) ss --a- On this a44k day of , �Zoe3 , before me, �iltirnd.a.P� (live thdi unders jogned Notary Public, p ersonall appeared -Lh a) ) personally known to me �- te �h"° s- n sari afar �-� =- - - -.- ory evidenEe)- to be the person -s-}- whose name.( ) is /.a-re subscribed to the within instrument and acknowledged to me that he /s-4e /t-#--y executed the same in his /her /t -he r authorized capacity , and that by his/her thy signature (.B�' on the instrument the person,(,4- , or the entity upon behalf of which the person(,s -- acted, executed the instrument. WITNESS my hand and official seal RHMDA Pa1 A CoMdmikm # 13=15 liobuy Public - Caumis Santa Clara County Iv'UyCwm atpi s .hay 19, 2005 CASSIDY\REGENCY IGILROY\DEVELOPMENT AGT.5 Notary Public State of California My Commission Expires: Tuyle Im AUTHORIZED SIGNATURE OF REGENCY TO AGREEMENT Regency Realty Group,, Inc., a Florida corporation By Thomas ni Vi g eter J. Knoedler Its ece President Its Vice President, Investments STATE OF CALIFORNIA ) ss COUNTY OF n th' s ,'7 ? D�—day of �jyUj j`Z , before me, the undersign d Not Public, personally appeared Thomas K. Engberg, personally known to me to be the person whose names subscribed to the within instrument and acknowledged to me tN�N- signaturejon t -thel executed the same in 5W authorized capacity, and that by � the instrument the persoq, or the entity upon behalf of which the pers ni-acted, executed the instrument. WITNESS my hand and official seal. -61- CASSIDY \REGENCY\GILROY\DEVELOPMENT AGT.5 Building square Feet: Sewer Allocation: Water Allocation: Storm Drain Impact Fee Acres (lots 1 -4 8 6 prorated): Street Tree Front Footage (lots 1 -4 8 6 prorated): Account Description: Special Public Works Sery Engring Plan Check 8 Insp Park Development Fee Storm Development Fee Utility Undergrounding Fee Sir Tree Development Fee Traffic Impact Fee Police Development Fee Sewer Development Fee Water Development Fee Fire Development Fee Public Facilities Impact Fee Const Water Use Fee Reimbursements Other Reimbursements Totals ................ Bonds and Securities Target Lot 1 Major 7 Development Fees 123,751 2 079 2,310 13.95 618.0 Lot 2 Major 2 Development Fees 21,300 1,3 852 2.40 37.1 Lot 2 Major 3 Development Fees 28,000 1,008 - 1,120 3.16 48.7 Lot 2 Major 4 Development Fees 17,500 630 700 1.97 30.5 Lot 2 Developamoent Fees 25,000 900 1,000 2.82 43.5 Lot 2 Developmoent Fees 30,000 1,080 1,200 3.38 52.2 Lot Development Fees 88,408 1,485 1,650 9.96 753.0 Amount Due: Amount Due: Amount Due: Amount Due: Amount Due: Amount Due: Amount Due: $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 . $0. 00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $21,803.85 $3,751.20 $4,939.08 $3,079.11 $4,407.66 $5,282.94 $15,567.48 $0.00 $0.00 $0.00 $0.00 $0.00 $D.ao $0.00 $220.63 $13.24 $17.39 $10.89 $15.53 $18.64 $268.82 $599,697.35 $103,219.80 $135,688.00 $84,805.00 $121,150.00 $145,380.00 $428,425.17 $349,101.57 $60,087.30 $78,988.00 $49,367.50 $70,525.00 $84,630.00 $249,398.97 $35,841.96 $13,223.08 $17,377.92 $10,861.20 $15,516.00 $18,619.20 $25,601.40 $7,142.52 $17,943.90 $36,135.29 $2,634.38 $3,088.50 $6,219.60 $3,463.04 $4,060.00 $8,176.00 $2,164.40 $2,537.50 $5,110.00 $3,092.00 $3,625.00 $7,300.00 $3,710.40 $4,350.00 $8,760.00 $5,101.80 $12,819.16 $25,815.14 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $1,067,887.07 $0.00 $192,237.10 $0.00 $252,709.43 $0.00 $157,935.60 $0.00 $225,631.19 $0.00 $270,751.18 $0.00 $762,997.94 Regency Master Cost Schedule 1 of 3 10/29/2002 Lot Pad 1 Development Fees 3,200 2,880 3,200 0.36 170.0 Amount Due: $0.00 $0.00 $0.00 $562.68 $0.00 $60.69 $15,507.20 $9,027.20 $49,651.20 $9,894.40 $464.00 $934.40 $0.00 $0.00 $0.00 $86,101.77 Exhibit A Regency Master Cost Schedule 2 of 3 10/29/2002 Lot 5 Ex Service Station Lot 6 Major 8 Lot 6 Lot 6 Lot 6 Lot 6 Lath Lath Building Square Feet: Development Fees 0 Development Fees Store 1 Development Fees Store 2 Development Fees Store 3 Development Fees Store 4 Development Fees Pad 2 Development Fees Pad 3 Development Fees Sewer Allocation: 0 23,000 8,300 9,460 10,000 9,500 8,000 7,000 Water Allocation: 0 1,350 2,293 2,614 .2;763 2625 , 7,232 6,328 Storm Drain Impact Fee Acres (lots 1 -4 8 6 prorated): D op 1,500 2,548 2,904 3,070 2,917 8,036 7,031 Street Tree Front Footage (lots 1 -4 8 6 prorated): D 0 2 59 1.07 1.13 1.07 0.90 0.79 61.3 220'94 .1 25.2 26.6 25.3 21.3 18.6 Account Description: Amount Due: Amount Due: Amount Due: Amount Due; Amount Oue: Amount Due: Amount Due: Special Public Works Sery Amount Due: $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Engring Plan Check 8 Ins p $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Park Development Fee $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Storm Development Fee $0.00 Utility Undergrounding Fee $0.00 $4,048.17 $1,469.22 $1,672.41 $1,766.19 $1,672.41 $1,406.70 $1,234.77 $0.00 $0.00 $0.00 $0.00. $0.00 $0.00 $0.00 Str Tree Development Fee $0.00 $0.00 $21.88 $7.89 $9.00 $9.50 $9'03 Traffic Impact Fee $7.60 $6.64 $0.00 $111,458.00 $40,221.80 $45,843.16 $48,460.00 $46,037.00 $38,768.00 Police Development Fee $33,922.00 $0.00 $64,883.00 $23,414.30 $26,686.66 $28,210.00 $26,799.50 $22,568.00 Sewer Development Fee $19,747.00 - $0.00 $23,274.00 $39,531.32 $45,065.36 $47,634.12 $45,255.00 $124,679.68 Water Development Fee $109,094.72 $0.00 $4,638.OD $7,878.42 $8,979.17 $9,492.44 $9,019.36 Fire Development Fee $24,847.31 $21,739.85 $0.00 $3,335.00 $1,203.50 $1,371.70 $1,450.00 $1,377.50 $1,160.00 Public Facilities Impact Fee $1,015.00 $0.00 $6,716.00 $2,423.60 $2,762.32 $2,920.00 $2,774.00 Const Water Use Fee $2,336.00 $2,044.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Reimbursements $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Other Reimbursements $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Totals ................ $0.00 $0.00 $0.00 $218,374.05 $116,150.05 $132,389.78 $139,942.25 $132,943.80 $215,773.29 Bonds and Securities $188,803.98 Regency Master Cost Schedule 2 of 3 10/29/2002 Exhibit A Regency Master Cost Schedule 3 of 3 10/29/2002 Loth Loth Loth Loth Lot Loth Loth Pad 4 Pad 5 Pad 6 Pad 7 Pad 8 Pad 9 Pad 10 Lots 1 -6 Total Building Square Feet: Development Fees Development Fees Development Fees Development Fees Development Fees Development Fees Development Fees Development Fees Sewer Allocation: 6,000 4,000 5,000 8,000 9,000 9,000 5,000 458,41 58,41 9 Water Allocation: 5,424 3,616 4,520 7,232 2,487 2,487 1,382 Storm Drain Impact Fee Acres (lots 1 -4 8 6 prorated): 6,027 0.68 4,018 5,022 8,036 2,763 2,763 1,535 70,202 Street Tree Front Footage (lots 1 -4 8 6 prorated): 0.45 0.56 0.90 1.01 1.01 0.56 51.66 16.0 10.7 13.3 21.3 24.0 24.0 13.3 2,076.0 Account Description: Amount Due: Amount Due: Amount Due: Amount Due: Amount Due: Amount Due: Amount Due: Amount Due: Special Public Works Sery - $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Engring Plan Check 8 Insp $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Park Development Fee $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 � $0.00 $0.00 Storm Development Fee $1,062.84 $703.35 $875.28 $1,406.70 $1,578.63 $1,578.63 $875.28 $80,744.58 Utility Undergrounding Fee $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Sir Tree Development Fee $5.71 $3.82 $4.75 $7.60 $8.57 $8.57 $4.75 $741.14 Traffic Impact Fee $29,076.00 $19,384.00 $24,230.00 - $38,768.00 $43,614.00 $43,614.00 $24,230.00 $2,221,498.48 Police Development Fee $16,926.00 $11,284.00 $14,105.00 $22,568.00 $25,389.00 $25,389.00 $14,105.00 $1,293,200.00 Sewer Development Fee $93,509.76 $62,339.84 $77,924.80 $124,679.68 $42,875.88 $42,875.88 $23,825.68 $1,089,257.68 Water Development Fee $18,635.48 $12,423.66 $15,528.02 $24,847.31 $8,543.20 $8,543.20 $4,746.22 $217,064.58 Fire Development Fee $870.00 $580.00 $725.00 $1,160.00 $1,305.00 $1,305.00 $725.00 $66,470.76 Public Facilities Impact Fee $1,752.00 $1,168.00 $1,460.00 $2,336.00 $2,628.00 $2,628.00 $1,460.00 $133,858.35 Const Water Use Fee $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Reimbursements $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Other Reimbursements $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Totals ................ - $161,837.79 $107,886.67 $134,852.65 $215,773.29 $125,942.28 $125,942.28 $69,971.93 $5,102,835.57 Bonds and Securities Regency Master Cost Schedule 3 of 3 10/29/2002 h Public improvements shall be constructed in accordance with the City of Gilroy Community Development Department Standard Specifications (cover sheet attached). The improvements are to be constructed in accordance with the standards that are in place at the time of the approval of the public improvement plans. The City of Gilroy agrees to cooperate in the distribution of the Standard Specifications prior to commencement of the work. CITY OF GILROY COMMUNITY DEVELOPMENT DEPARTMENT STANDARD SPECIFICATIONS The standard details and provisions contained in this manual have been prepared for the purpose of establishing the minimum and uniform requirements to be used by engineers, contractors and developers for the preparation of plans and the construction of public improvements under the jurisdiction of the City of Gilroy. These standards shall be used in conjunction with the latest revision of the State of California Department of Transportation 0 (Caltrans) Standard Specifications. In case of conflict between Caltrans Specifications and the City of Gilroy Standard Details and Provisions, the City of Gilroy Standard Details and Provisions shall apply. Any deviation from the Standard Details or the Standard Specifications must be approved in writing by the City Engineer of the City of Gilro California. Rick Smelser City Engineer The subject development shall have received City Council approval .for the following development applications with the City of Gilroy, California: ➢ Zone Change file: Z 02AW06 ➢ Planned Unit Development, Architectural & Site Review file: A/S SPUD, 02 -22 ➢ Tentative file: TM 02-06. p receive r.n timm 71r lam a.n:ga Lpmplele Men IV1W02 M Iill1O2 NOSU to PreuM - Fil t/O➢02 FA IV1iOf MoMk-- open 12MGM FA 1=21= GrMhM Pxmil T. 1=1 TIM 1=3 Su. FA MAMA ►A i11FIW Rouyn Grxle M UAW T1nr� &r5eirg Pe0s Mr In= FA WNO3' W. 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C.10 M5 Slor.1 -C rO 5125 + Pe55- v5 -crO 1W1f ►M5- v5 -CelO lvY *MyMa Berms5NeNk.Cr0 1M ♦ Poll b -C'o Mil * &w m 2.0 d O Gvo1 Gwe.M O GILROY CROSSINGS DESCRIPTION ALL THAT CERTAIN REAL PROPERTY situated in the City of Gilroy, County of Santa Clara, State of California, more particularly described as follows: APN 841 -70 -018 - PARCEL ONE All of Parcel 1, as shown upon that certain map entitled "Parcel Map a portion of Lot 6, per Map of the Subdivision of the Elizabeth H. Martin Tract, filed in Book "F" of Maps Page 31, Santa Clara County Records ", which map was filed for record in the office of the Recorder of the County of Santa Clara, State of California, on July 2, 1971 in Book 285 of Maps, at Page 45. APN 841 -70 -019 - PARCEL TWO All of Parcel 1 as shown upon that certain map entitled "Parcel Map being a portion of re- subdivision of Parcel 2 as shown on Parcel Map filed in Book 285 of Maps at Page 45, Santa Clara County Records ", which map was filed for record in the office of the Recorder of the County of Santa Clara, State of California, on May 10, 1972 in Book 300 of Maps, at Page 53. APN 841-70-021 - PARCEL THREE Parcel 2, as shown on that certain parcel map filed for record in the office of the Recorder of Santa Clara County in the State of California on May 10th '1972, in Book 300 of Maps, at Page 53. APN 841 -67 -020 - PARCEL FOUR Beginning at a point in the Northeastern line of Lot 44, a distant thereon North 32° 05" West, 189.98 feet from an iron pipe at the Eastern corner common to Lots 44 and 47, as said lots are shown on Map No. 7 accompanying the report of the referees in the Las Animas Rancho Partition Suit, Superior Court Case No. 5536 in and for the County of Santa Clara, and running thence along the Northeastern boundary of said Lot 44 and Lot 43, as said lots are shown upon the aforementioned map, North 32° 05' West, 1783.46 feet more or less to a point on the Southeastern boundary of that land conveyed to the State of California in the Final Order of Condemnation recorded in Book 8098 at Page 543, Santa Clara County Official Records; thence leaving the said Northeastern boundary of Lot 43 and running along the boundary of said lands of the State of California, South 40° 39' 29" West, 659.52 feet; thence along a tangent curve to the left with a radius of 392.00 feet, through a central angle of 36° 45' 32" and an arc length of 251.49 feet; thence South 3° 53' 57" West, 729.25 feet to the most Northwestern corner of that land conveyed to Gilroy Corporation in Book H 45 at Page 680, Santa Clara County Official Records; thence leaving said boundary of the lands of the State of California and running along the Northern boundary of said lands of Gilroy Corporation, South 86° 44' 08" East, 14.00 feet; thence along a curve to the left whose tangent bears South 3° 15' 52" West, with a radius of 40.00 feet, through a central angle of 93° 03' 58" and an arc length of 64.97 feet; thence South 89° 48' 06" East, 1450.77 feet to the point of beginning. APN 841 -67 -022 - PARCEL FIVE Beginning at the point of intersection of the most Westerly boundary of those lands conveyed to the Gilroy Corporation in Book G310 at Page 506, Santa Clara County Official Records, with the line common to Lot 44 and Lot 47, as said lots are shown upon Map No. 7 accompanying the report of the Referees in the Las Animas Rancho Partition Suit, Superior Court Case No. 5536 in and for the County of Santa Clara; thence from said point of beginning and running along the said Western boundary of the lands of Gilroy Corporation, North 0° 16' East, 96.72 feet to a point that is 54.00 feet distant from the Northwestern corner of said lands; thence leaving said Western boundary and running along a boundary of that land conveyed to said Gilroy Corporation, September 27, 1982 in Book H45 at Page 680, Santa Clara County Official Records, North 890 48' 06" West, 175.64 feet; thence along a tangent curve to the left with a radius of 40.00 feet, through a central angle of 86° 48' 21" and arc length of 60.60 feet; thence along a tangent curve to the right with a radius of 5060.00 feet, through a central angle of 00° 40' 40" and an arc length of 58.97 feet to a point on said common line of Lots 44 and 47; thence leaving said boundary of those lands conveyed to Gilroy Corporation and running along said common lot line, South 89° 47' 40" East, 219.15 feet more or less to the point of beginning and being a portion of said Lot 44. APN 841 -70 -017 - PARCEL SIX All of that 30 foot wide strip of land described on the deed from Hirasaki Farms, Inc. to Hisashi Mrasaki, et al, recorded January 3, 1979 in Book E203 of Official Records at Page 123, Santa Clara County Records. APN 841 -17 -088 - PARCEL SEVEN A portion of Parcel 2 as shown on that map filed for record December 4, 1989 in Book 607 of Maps at Page 48, Santa Clara County Records, more particularly described as follows: Beginning at the most Westerly corner of said Parcel 2; thence along the Southwesterly line of said Parcel 2, South 32° 05' 00" East, 1734.21 feet; thence leaving said Southwesterly line, North 57° 55' 00" East, 30.00 feet to an angle point in the generally Northeasterly line of said Parcel 2; thence along the Northeasterly and Northwesterly line of said Parcel 2 the following two courses: 1.) North 320 05' 00" West, 1737.76 feet. 2.) South 510 09' 08" West, 30.21 feet to the true point of beginning. October 31, 2002 EXHIBIT ]F GILROY CROSSINGS GILROY, CALIFORNIA Preliminary Quantity List Offsite Street and Public Improvements The following is our opinion of the off -site quantity list for the above referenced project. The offsite work includes street improvements for Highway 152, Camino Arroyo, Holloway Road, Brem Lane water main replacement, and public sewer line replacement. Highway 152 street widening ITEM DESCRIPTION QUANTITY 1. Demo /Mobilization/Traffic Control 1 JOB 2. Street Excavation for pavement widening 300 CY 3. 7.5 "AC on 13 "A.B. on 19.5" ASB Paving Widening 2,100 SF 4. Pavement Conform 5,000 SF 5. Vert. Curb & Gutter 500 LF 6. 10.5' Wide Sidewalk 5,250 SF 7. Signing & Striping 1 JOB 8. Erosion /Sediment Control and Maintenance 1 JOB 9. Remove and Replace Drain Inlet 1 EA 10. Drain Inlet 1 EA 11. Drain Manhole 1 EA 12. 15" Storm Drain 20 LF 13. Remove Street Light 2 EA 14. Install Street Lights 4 EA 15. Telephone Vault 2 EA 16. Budget for Traffic Signal remedial work 1 JOB Camino Arroyo, 4 Lane Divided Arterial Estimate for street frontage & outside lanes at project limits ITEM DESCRIPTION QUANTITY 1. Clear & Grub /Mobilization/Traffic Control 1 JOB 2. Street Excavation 12,500 CY 3. 4.5 "AC on 17 "A.B. Paving adj to C &G 97,309 SF 4. Vert. Curb & Gutter 3,897 LF 5. 4.5' Wide Sidewalk 17,537 SF 6. Commercial Driveway 9 EA 7. Signing & Striping 1 JOB 8. Erosion /Sediment control and maintenance 1 JOB 9. Storm Drain Inlet QUANTITY 1. k 10. 48" Storm Drain Manhole 1 EA 11. 60" Storm Drain Manhole 4 EA 12. 72" Storm Drain Manhole 1 EA 13. 15" Storm Drain 700 LF 14. 18" Storm Drain 300 LF 15. 24" Storm Drain 450 LF 16. 30" Storm Drain 380 LF 17. 48" Storm Drain 1,150 LF 18. Drain Junction Box 1 EA 19. 8" Sewer service 3 EA 20. 8" Sewer Main 370 LF 21. Sewer Manhole 2 EA 22. Tie -in at Existing Water Main 1 JOB 23. 8" Water Stub for Fire Service 2 EA 24. 8" Water Stub with valve 6 EA 25. 12" Water Main w/ valves 2,150 LF 26. Fire Hydrants 14 EA 27. PG &E Electric Vault 7 EA 28. Telephone Vault 5 EA 29. Joint Utility Trench 2,500 LF 30. Street Lights 14 EA 31. Street Light and pole relocation 1 JOB 32. Budget for Traffic Signal at Main Entrance 1 JOB Storm Drain Outfall to Princevalle Channel 33. Twin 48" Storm Drain 900 LF 34. 72" Storm Drain Manhole 2 EA 35. Connection to Princevalle Channel 1 JOB Camino Arroyo, 4 Lane Divided Arterial Estimate for street median strip and center two lanes ITEM DESCRIPTION QUANTITY 1. Street Excavation 12,000 CY 2. 4.5 "AC on 17 "A.B.(12' Paved Lanes at Median) 93,962 SF 3. Vert. Curb 3,967 LF 4. 2' Wide Red, Stamped Concrete strip adj to curb 7,000 SF 5. Water Service for Irrigation 2 EA 6. Signing & Striping 1 JOB 7. Landscape Median 18,750 SF Holloway Road, 70' Collector Excluding RV Park Improvememnts ITEM DESCRIPTION QUANTITY 1. Clear & Grub /Mobilization 1 JOB 2. Street Excavation 9,500 CY 3. 4.5 "AC on 17 "A.B. Paving 80,726 SF 4. Vert. Curb & Gutter 3,800 LF 5. 4.5' Wide Sidewalk 14,850 SF 6. Commercial Driveway k 7. Signing & Striping 1 JOB 8. Erosion /Sediment control and maintenance 1 JOB 9. Storm Drain Inlet 8 EA 10. 48" Storm Drain Manhole 6 EA 11. 15" Storm Drain 465 LF 12. 18" Storm Drain 85 LF 13. 24" Storm Drain 1,240 LF 14. 8" Sewer service 5 EA 15. 10" Sewer Main 1,320 LF 16. 48" Sewer Manhole 4 EA 17. Tie -in at Existing Sewer Main with Manhole 1 JOB 18. 8" Water Stub for Fire Service 4 EA 19. Water Service 3 EA 20. Irrigation Service 1 EA 21. 12" Water Main w/ valves 1,362 LF 22. Fire Hydrants 4 EA 23. PG &E Electric Vault 5 EA 24. Telephone Vault 3 EA 25. Joint Utility Trench 2,500 LF 26. Street Lights 10 EA Holloway Road, RV Park Improvements ITEM DESCRIPTION QUANTITY 1. 6" AC on 16" AS 36,479 SF 2. Vert. Curb & Gutter 1,119 LF 3. Catch Basin 1 EA 4. Commercial Driveway 1 EA 5. Storm Drain Inlet 2 EA 6. -48" Storm Drain Manhole 3 EA 7. 15" RCP Storm Drain 67 LF 8. 18" RCP Storm Drain 444 LF 9. 4" Sewer Service 1 EA 10. 10" VCP Sewer Main 1,348 LF 11. 48" Sewer Manhole 6 EA 12. Cap Water Main 1 JOB 13. 8" Water Stub for Fire Service 4 EA 14. 12" DIP Water Main 950 LF 15. Fire Hydrants 4 EA 16. Street Lights 5 EA 17. 12" Gate Valve 6 EA Public Utilities Improvements ITEM DESCRIPTION QUANTITY 1. 12" Water Main Replacement 950 LF 2. 8" Sewer Line Replacement 950 LF 3. 12" Gate Valves 6 LF 4. 48" Sewer Manholes 3 LF SubTotal with Engineering and Construction Staking at 5% Total with General Conditions allowance at 6% Note: 1) Storm Drain and water main size are only approximate 3) This quantity list is based on unapproved plans and survey and is subject to change. Baker - Williams Engineering Group make no warranty or guaranties of the accuracy of its content. If you have any questions of need additional information, please call. BAKER- WILLIAMS ENGINEERING GROUP Michael Robertson PE 39875 LOT 16 Amz - -010 .0 a4l 010 -047, ;,`Lb ­0 vv­ 2 mmf%M co 2 MAJOR 5 'AMD <> MAJOR 7 72 w LOT 11 --------------- ----------- ---- ..... ..... _ - —g� 2 . %L T Z 7� 0.7 MAW pt 341- 0s7 -Du I L ------------------------- cm) --------- \ D,D \\ •` D 1W ADD dOD kFLJ 11 1 LOT 7 9D.&M aF. 2DU A­ LOT 8 %A Wn LOf-'9'\ oo N 3 IA LOT 10 ID7.IX aF. Z� A— LOT 13 2.70 A— LOT tl 00% or LOT 12 W.W7 SF. W, 42-01 A­ a A colLLI BAKER-WIL UAMS ENGINEERING GROUP -.q[T;=Pl AKI DESCRIPTION ALL THAT REAL PROPERTY situated in the City of Gilroy, County of Santa Clara, State of California and being all of "Parcel 1" and a portion of "Parcel 2" as shown on that certain parcel map, filed for record in the Office of the Recorder of Santa Clara County on May 10, 1972 in Book 300 of Maps, at Page 53 and also being a portion of "Parcel One" as shown on the "Record of Survey for Brem Brothers in Ranch Lots 43, 44 and 47 ", filed for record on April 16, 1956 in Book 69 of Maps, at Page 17, records of said County and also being a portion of Brem Lane, a public road. More particularly described as follows: BEGINNING at the most easterly corner of said "Parcel 1 ", thence along the Easterly prolongation of the North line of said "Parcel 1 ", South 840 15' 31" East, 39.66 feet; thence South 060 11' 39" West, 62.68 feet; thence along the arc of a 1,058.00 foot radius curve, concave to the East, through a central angle of 370 38'41". the chord of which bears South 120 37'41" East, 682.70; thence South 310 27' 02" East, 526.96 feet; thence South 580 32'58" West, 352.04 feet; thence North 891 10' 08" West, 216.69 feet; thence South 670 17' 28" West, 548.07 feet; thence North 890 09' 07" West, 657.91 feet; thence along the arc of a 28.00 foot radius curve concave to the Northeast, through a central angle of 360 24'27" ' the chord of which bears North 700 56'54" West, 17.49 feet; thence along the arc of a reversing 50.00 foot radius curve, concave to the South, through a central angle of 1160 53'51", the chord of which bears South 680 48' 25" West, 85.22 feet to a point on the East line of State Highway Route 101; thence along said State highway right of way the following five (5) courses and distances: 1) North 03° 53' 52" East, 795.18 feet; 2) along the arc of a 438.00 foot radius curve, concave to the East, through a central angle of 360 43' 17 ", the chord of which bears North 220 15'30"' East, 275.94 feet; 3) North 400 37'09" East, 725.28 feet 4) along the arc of 219.00 foot radius curve, concave to the Southeast, through a central angle of 370 46'24". the chord of which bears North 590 30' 21" East, 141.78 feet 5) North 78° 23' 33" East, 249.08 feet; thence leaving the highway right of way, South 110 36'27" East, 103.61 feet to a point on the North line of said "Parcel 1 "; thence along said North line, South 840 15'31" East, 303.28 feet to the POINT OF BEGINNING. Said property contains 46.77 acres. I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2003 -02 is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 6th day of January, 2003, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 7th day of February, 2003. City Clerk of the City of Gilroy (Seal)