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Ordinance 2005-22r ORDINANCE NO. 2005-22 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY_ OF GILROY AND GLEN LOMA CORPORATION FOR THE GLEN LOMA RANCH 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'), Glen Loma Corporation, a California corporation ( "Developer''), has requested a development agreement to govern construction of multi-phase project consisting of residential and commercial development for the Glen Loma Ranch project encompassing approximately 359 acres as more fully described in the Glen Loma Specific Plan ( "Specific Plan') adopted on November 7, 2005 (the "Project'). The Project and the individual neighborhoods are described in detail in the Specific Plan. The Specific Plan also sets forth the detailed development standards and guidelines and an implementation program for the development of 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 Elk was certified by the City Council on October 17, 2005, pursuant to CEQA, and for which Resolution No. 2005 -81 was adopted on November 7, 2005 making the required findings for each significant effect and a Statement of Overriding Consideration, and a mitigation/monitoring program was adopted in connection with the Project. UH1674055.2 01- 103105. 04706099 -I- Ordinance No. 2005 -22 D. Public hearings on the proposed Development Agreement were held before the Planning Commission on November 3, 2005, 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 folio wing 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 November 1, 2005, 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 Glen Loma Corporation, a copy of which is attached hereto as Exhibit "A ". SECTION IV. 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. 1JHW4055.2 _7 _ 01- 103105 - 04706099 Ordinance No. 2005 -22 SECTION V. RECORDATION Not later than ten (10) days after the City's execution and acknowledgment of the Development Agreement, the City Clerk shall submit the Agreement to the County Recorder for recordation. PASSED AND ADOPTED this 21' day of November, 2005, by the following vote: AYES: COUNCILMEMBERS: NOES- COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ATTEST: Rhonda Pellin, City Clerk UJK674055J 01- 103105 - 04706099 -3- CORREA, DILLON, GARTMAN, MORALES, VALIQUETTE, VELASCO, and PINHEIRO NONE NONE APPROVED: Albert Pinheiro, Mayor Ordinance No. 2005 -22 RECORDING REQUESTED BY AND WHEN RECORDED, RETURN TO: City of Gilroy 7351 Rosanna Street Gilroy, California 95020 -6190 Attention: City Clerk U.AC1673938.3 091906 - 04706099 DOCUMENT: 1915882.8 Pages: 94 Fees.... 286.00 Taxes.. Copies. AMT PAID 286.00 BRENDA DAVIS RDE # 003 SANTA CLARA COUNTY RECORDER 10/26/2006 Recorded at the request of 2 :16 PM City DEVELOPMENT AGREEMENT BETWEEN CITY OF GILROY AND GLEN LOMA RANCH GILROY, CALIFORNIA Dated: November 21, 2005 DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is dated November 21, 2005, for reference purposes only and is made and entered into between the City of Gilroy, a charter city and political subdivision of the State of California ( "City "), Glen Loma Corporation, a California corporation ( "Developer "), and the following owners of the Property described herein: Filice Family Estate, a California limited partnership, Santa Teresa Properties LLC, a California limited liability company, John M. Filice, Jr., Timothy J. Filice, Craig P. Filice, individuals, Christopher Ranch LLC, a California limited liability company, Christopher Family Partnership, a. California limited partnership and D Christopher & Sons LLC, a California limited liability company, (each an "Owner" and collectively referred to herein as the "Owners "). The terns "Developer /Owners" as used herein means the Developer and /or Owners, as applicable.. RECITAI.S A. The Legislature of the State of California has declared (a) that the lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources, and (b) that providing assurance to the applicant of a development project that the applicant may proceed with the project will strengthen the public planning process, encourage private participation in comprehensive planning and reduce economic costs of development. B. In adopting Government Code sections 65864 — 65869.5 ( "Development Agreement Legislation "), the Legislature authorized cities to enter into development agreements with persons having legal or equitable interests in real property for their mutual benefit. Such development agreements can (a) assure private developers that they can proceed with their UG\673938.3 091906- 04706099 projects and that approvals granted by public agencies will not change during the period of the development of their projects and (b) assure cities that costly infrastructure such as roads, sewers, parks, and fire protection facilities will be provided for as the development of the project proceeds. The Development Agreement Legislation authorizes the City to enter into development agreements in connection with the development of real property within its jurisdiction. The City adopted Resolution No. 2002 -61 ( "Development Agreement Ordinance ") which establishes the authority and procedure for review and approval of proposed development agreements by the City. The parties hereto desire to enter into this Agreement to govern construction of a multi- phase project known as "Glen Loma Ranch ". City, Developer and Owners acknowledge that the development and construction of the Glen Loma Ranch Project is a large -scale undertaking involving major investment by Developer /Owners. This Agreement will provide certainty that the Project can be developed and used in accordance with the General Plan, Glen Loma Ranch Specific Plan and other Applicable City Regulations. The City is willing to enter into this Agreement to (1) eliminate uncertainty in the comprehensive development and planning of the Project, (2) secure orderly development, and (3) meet the goals and objectives of the General Plan and the Glen Loma Ranch Specific Plan. C. Developer holds an equitable interest and Owners hold legal interests in approximately 359 acres of real property commonly known as "Glen Loma Ranch ", as more particularly described in Exhibit A and as depicted in Exhibit B, both attached hereto and incorporated herein by this reference (defined hereinafter as the "Property "); provided, however, that the Parties acknowledge that the Gilroy Unified School District owns a portion of the Property as identified on page 6 of the Specific Plan. % AC1673938.3 -3- 091906- 04706099 D. This Agreement applies to the "Glen Loma Ranch" Project, a residential and commercial development on the Property encompassing approximately 359 acres (of which 184 acres will be developed) which will provide for two City park sites, extensive open space, a comprehensive trail system, a middle school (already constructed and open), an elementary school (provided that the elementary school is subject to the acquisition of the school site and construction of the elementary school by the Gilroy Unified School District and is not a requirement of the Developer /Owners under this Agreement), fire station site, several residential neighborhoods with low, medium and high density residential projects, senior housing, and two commercial sites. The Glen Loma Ranch Project and the individual neighborhoods arc described in detail in the Glen Loma Ranch Specific Plan ("Specific Plan"). The Specific Plan also sets forth detailed development standards and guidelines and an implementation program for the development of the Project. E. The Parties have, in good faith, negotiated the terms of this Agreement, which terms are consistent with the declarations of the Legislature in Recitals A and B above and will assure the Parties of mutually desirable development of the Project. F. The City, in response to Developer's application, after public hearings and extensive environmental analysis, has granted the following approvals and entitlements: (1) RDO Allocations Pursuant to the residential development ordinance ( "RDO Ordinance ") of the City, the City Council has granted a total of 1,693 allocations ( "RDO Allocations ") to the Glen Loma Ranch: 63 allocations pursuant to application RD 99 -13 in the 1999 RDO approval process, 1380 allocations pursuant to application RD 01 -23 in the 2002 RDO approval process, and 250 allocations pursuant to the Glen Loma Ranch Specific Plan which was adopted by Resolution No. 2005 -82. 1LAM73938.3 -4- 091906-04706099 (2) Specific Plan. By Resolution No. 2005 -82, dated November 7, 2005, adopted the Specific Plan. (3) Final Environmental Impact Report. By Resolution No. 2005 -81, dated November 7, 2005, certified the Final Environmental Impact Report ( "Final EIR ") and adopted findings pursuant to CEQA. G. Development of the Project on the Property pursuant to the terms and conditions of the existing and future project approvals will provide for orderly growth and development consistent with the City's General Plan, the RDO Ordinance, and other development policies and programs. In addition, the City finds that there are special public benefits provided by the Project as described in the Specific Plan (such as providing for open space, parks, school sites (subject to the qualification in Recital D of this Agreement), a fire station, trails, senior housing and detailed standards and guidelines to insure high quality residential development). H. On November 3, 2005, after due review of and report on Developer /Owners' 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 3, 2005, pursuant to the Development Agreement Legislation and the Development Agreement Ordinance, the Planning Commission recommended approval of the Agreement, finding that the Agreement is consistent with the objectives, policies, land uses and programs specified in the General Plan and with other applicable City regulations. 1. On November 7, 2005, 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 Developer /Owners' application for this Agreement by City staff, and consideration of the Planning Commission's k AC1673938.3 091906. 04706099 recommendations, and of all other evidence heard and submitted at such public hearing, the City Council (1) reviewed and considered the Final EIR and found it to be in compliance with CEQA, and (2) introduced an enacting ordinance ( "Enacting Ordinance ") approving this Agreement, finding and determining that this Agreement is consistent with the objectives, policies, land uses and programs specified in the General Plan, in the Specific Plan and in the other Applicable Rules. On November 21, 2005 ( "Adoption Date "), the City Council adopted the Enacting Ordinance enacting, authorizing and approving this Agreement in accordance with Government Code section 65867.5. J. The Owners acknowledge that they are bound by the terms of this Agreement; however, the Parties acknowledge that it is anticipated that all construction obligations of Developer /Owners in this Agreement shall be arranged for by Developer through third party contractors. K. These Recitals are hereby incorporated into and made a part of 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: ARTICLE I DEFINITIONS I.I. Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. Adoption Date: Tile date the City Council adopted the Enacting Ordinance enacting this Agreement. ILAC1673938.3 _6_ 091906- 04706099 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. Applicable Cif Regulations: The Existing City Regulations, and such other City Regulations otherwise applicable to development of the Project pursuant to the provisions of Section 3.2. CE A: 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.). 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 City 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. City Fee: A City Application Fee and /or City Development Fee. ILAC1673938.3 091906.04706099 City Regulations: The General Plan of City, the Specific Plan, 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 City Regulations. 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 building - related improvements. to City. Dedicate: An irrevocable offer to make a dedication of land and/or improvements Dedication: An Exaction comprised of land and/or improvements required.to be Dedicated to City. Development Agreement Legislation: Government Code §'§ 65864- 65859.5, authorizing City to enter into development agreements as therein set forth, as the same may be amended from time to time. Development Agreement Ordinance: Resolution No. 2002- 61, adopted by the City 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. 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 Developer /Owners may so determine. 1LAC1673938 3 _g _ 091906-04706099 Enacting Ordinance: Ordinance No. 2005 -22, enacted by City Council on November 21, 2005, 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 -site 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. Existin- Cit�Regulations: The City Regulations in effect as of the Adoption Date, including the existing City Approvals as part of the Existing City Regulations. Final EIR: The final environmental impact report prepared on behalf of City for the adoption of the Specific Plan, the approval of this Agreement, and subsidiary approvals related to the Project. Force Majeure: A delay in the Project Development Schedule 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. Indemnify: An obligation of a Party to indemnify, defend, protect and hold harmless the other Party, its officials, officers, employees, agents, stockholders, constituent partners and members of its boards and commissions, harmless from and against Losses. UC\673938.3 091906. 04706099 Laws: The Constitution and laws of the State, the Constitution of the United States, and any codes, statutes, regulations, or executive mandates thereunder, as the same may be amended from time to time, 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 and costs. Master HOA: A nonprofit mutual benefit corporation to be established by Developer /Owners as a residential real estate management association formed for the purpose of managing the Project as a common interest development under the Davis- Stirling Common Interest Development Act, California Civil Code sections 1350 - 1376. Mort .ga -e: A mortgage or deed of trust, or other transaction, in which Developer /Owners convey or pledge as security their interest in the Property, or a portion thereof, or interest therein, or any improvements thereon; or a sale and leaseback arrangement, in which Developer /Owners sell and lease back concurrently therewith their interest in the Property, or a portion thereof, or interest therein, or improvements thereon. residences. Mortgagee: The holder of the beneficial interest under a Mortgage. Occupant: A Person who buys or occupies five or fewer single family lots, and /or Occupant Transfer: A Transfer to an Occupant. Party: City, on the one hand; and /or Developer, Owners, Developer /Owners, and Developer /Owners' Transferees, on the other hand, 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. ILAM6739383 _10- 091906. 04706099 Phase: Phase 1, Phase 2 or Phase 3 of the Project, as applicable, as shown on the Project Development Schedule. Project: The development, use and occupancy of buildings and other improvements on the Property and the construction of the Public Improvements, pursuant to the Specific Plan, this Agreement and the City Approvals. Project Development Schedule: The schedule for development of the Project, including the private development and the Public Improvements, prepared by Developer /Owners and approved by City as part of this Agreement attached hereto as Exhibit C. Property: That certain property consisting of approximately 359 acres of real property commonly known as "Glen Loma Ranch ", more particularly described in Exhibit A and as depicted in Exhibit B. Public Improvements: Certain public improvements required to be designed, installed and constructed by Developer or contractors hired by Developer pursuant to the City Approvals and this Agreement, which Public Improvements are listed in Exhibit D hereto. The Parties acknowledge that Developer /Owners will be entitled to reimbursement pursuant to the City's Traffic Improvement Fund (sometimes variously known as the Traffic Impact Fee or Traffic Impact Fund or Traffic Improvement Facility Fund, all collectively called herein the "TIF ") Reimbursement Policy for all or part of the costs of some of the Public Improvements. The reimbursable Public Improvements are identified in Exhibit D, and the timing of reimbursement is given thereon; reimbursements will not be made earlier than shown on Exhibit D. The Parties acknowledge that Exhibit D is not a complete list of all public infrastructure required for the Project, and that other improvements may be subject to reimbursement, provided they arc listed in theTIF or are reimbursable under other City programs. 1L U73938.3 091906. 04706099 Responsible Agencies: All governmental or quasi - governmental agencies (such as public utilities), other than the City, having jurisdiction over, or the authority to regulate development of, 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 Project attached hereto as Exhibit E, taken from the Specific Plan. the State. Specific Plan: add definition, confirm date of final version with John Donahoe State: The State of California and any department or agency acting on behalf of Tentative Map: A "Tentative Map" as defined in Government Code section 66424.5(a). The term "Tentative Map" as used in this Agreement shall also include a "Vesting Tentative Map" which meets the requirements of Government Code sections 66424.5(a) and 66452. Term: The term of this Agreement, determined as of the time in question pursuant to Article 11 below, unless sooner terminated as provided in this Agreement. Transfer: The sale, assignment, Icase, sublease, or other transfer by Developer /Owners of all or any portion of the Property, or any right, duty or obligation of Developer /Owners 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 UAC1673938.3 091906 - 04706099 transfer or assignment of this Agreement to a Mortgagee as additional security under a Mortgage, unless the Mortgagee becomes a Transferee in accordance with Section 10.4 herein. Transferee: The Person to whom a Transfer is effected. 1.2. Certain Other Terms. Certain other tcnns 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 Tcrm shall commence, as of the Effective Date. Developer and Owners have 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 execute and 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. Term of Agreement. Unless sooner terminated pursuant to the applicable provisions of this Agreement, the Term shall expire the first to occur of the following dates: (a) the date which is twenty (20) years from the Effective Date, or (b) the date on which the development of the Project has been completed in accordance with this Agreement, including the construction of the Public Improvements; provided, however, that if Developer /Owners are in compliance with their obligations under this Agreement but have not completed the development of the Project by the date described in Section 2.2(a) of this Agreement, then the following shall apply: (1) Prior to the date described in Section 2.2(a) of this Agreement, Developer /Owners shall have the right, by written notice to the City, to require that the City meet and confer with Developer /Owners to 1LAC1673938.3 091906.04706099 consider a whether an extension of the Tenn of this Agreement not to exceed an additional three (3) years is appropriate; (2) Any such extension shall be require a formal amendment to this Agreement; (3) Nothing contained herein shall obligate the City to grant such an extension; (4) Pursuant to Government Code section 66452.6(a), the term of any tentative subdivision or parcel map shall be extended through the scheduled Term of this Agreement. This Agreement shall terminate with respect to any individual single - family residential unit, and such lot shall be released and no longer be subject to this Agreement, without the execution or recordation of any further document, when an Occupant Transfer occurs with respect to that residential unit. 2.3. Subsequent Amendments or Termination. If the Parties amend, modify or terminate this Agreement as herein provided, or as otherwise provided by the Development Agreement Ordinance, or this Agreement is modified or terminated pursuant to any provision hereof, then the City Clerk shall, within ten (I0) 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, and obligations stated in this Agreement to continue beyond the termination of this Agreement, 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, except that all Tentative Maps shall expire automatically upon the expiration of the Terns. ARTICLE III GENERAL REGULATION OF DEVELOPMENT OF PROJECT WAC1673938.3 -14- 091906- 04706099 3. 1. Project Development; Control of Development, Vested Rights. Developer /Owners shall have the vested right to develop the Property for the Project in accordance with the Applicable City Regulations, the RDO Allocations, the Final EIR and terms and conditions of this Agreement (collectively referred to herein as the "Vested Rights "), and City shall have the right to control development of the Project, subject to and in accordance with the provisions of this Agreement. The Applicable City Regulations, City Approvals, Final EIR and this Agreement shall control the overall design, development and construction of the Project, and all on- and off -site improvements and appurtenances in connection therewith, in the manner specified in this Agreement. City and Developer /Owners intend that this Agreement complies with the provisions of Government Code section 65865.2 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. Consistent with applicable law and this Agreement, the City shall take any and all actions as maybe necessary or appropriate to ensure that the Vested Rights provided by this Agreement can be enjoyed by Developer /Owners. 3.2. Applicable City Regulations. Except as specifically provided in this Section 3.2 and Section 3.3, the Existing City Regulations, the Specific Plan, Final EIR and this Agreement 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 future City Regulations as Applicable City Regulations only in accordance with the following terms, conditions and standards: 1LAM673938.3 -15- 091906 -04706099 3.2.1. Future City Regulations. City shall have the right to apply City Regulations adopted by 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 time uses, height, density and intensity of development specified in the Existing City Regulations or this Agreement with respect to the Project, and do not change or modify, or interfere with, the timing, phasing; or rate of development of the Project, (iii) are not in conflict with and do not reduce the Vested Rights granted in this Agreement, and (iv) do not interfere with or diminish the ability of a Party to perform its obligations under this Agreement, or expand, enlarge or accelerate Developer /Owners' obligations under this Agreement. 3.2.2. Regulation for Health and Safety. 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 (1) is otherwise permissible pursuant to state and federal Laws (other than the Development Agreement Legislation), (ii) is required to protect against a demonstrated threat to the physical health and safety of existing or future Occupants, or users of the Project, or any portion thereof or any lands immediately adjacent thereto, and (iii) is made in a manner that does not discriminate against Developer /Owners or the Project. 3.2.3. Construction Codes. 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 Developer's or Transferee's applications therefor, except that City's review of the applications shall be limited to determining whether (i) the application is complete, 1LAM673938.3 _ 16-; 091906- 04706099 and (ii) the application complies with the Construction Codes then in effect, the Applicable City Regulations, 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. 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, construct the Public Improvements in a timely manner, and allow Occupants to occupy residences 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 Developer /Owners 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. City shall act reasonably and in good faith and use its best efforts with respect to the timely processing of all City Approvals. City agrees to cooperate ' with Developer /Owners to carry out the efficient and timely development of the Project in accordance with this Agreement. With respect to further CEQA review and environmental mitigation, the following shall apply: (a) the Final EIR for the Project was prepared following 0 the completion of numerous studies and the Final EIR is intended to be used in connection with City Approvals for the Project, (b) consistent with the CEQA policies and requirements applicable to the Final EIR, to the maxima n extent permitted by law, the City shall use the Final EIR for City Approvals and shall not impose on any City Approval or on the Project any mitigation measures, other than those specifically imposed as conditions to the approval of the Project by the City and those identified in the Final EIR, and (c) to the maximum extent V AM673938.3 -17- 091906- 04706099 permitted by law, the exemption described in Government Code section 65457 shall be applied. 3.4. Term of Approvals. Pursuant to California Government Code Sections 65863.9 and 66452.6(a) the expiration date of all approvals, permits and maps associated with the Specific Plan, RDO Allocations and City Approvals shall be extended through the scheduled termination date of this Agreement; provided, however, that tentative maps shall require explicit action by the City (upon review only of then - current health and safety issues) to extend their term pursuant to State law. 3.5_ Effect of Agreement. This Agreement constitutes a City Approval adopted pursuant to the Applicable City Regulations. 3.6. Other Governmental Approvals. Developer /Owners shall be responsible for complying with all Responsible Agency Regulations and Laws in connection with the development, use and operation of, or provision of services to, the Project. Developer /Owners 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. Developer /Owners shall undertake reasonable, diligent and good faith efforts to obtain all Responsible Agency Approvals in a timely fashion. City shall cooperate with Developer /Owners in such endeavors upon request made for such cooperation, but without cost to City. 3.7. Timing of Development. In consideration of the significant benefits to the City of the development of the Project, and in order to promote and encourage the development of the Project in accordance with the Specific Plan, City agrees that the timing, sequencing and phasing of the development of the Project shall be as described herein. Because the California Supreme Court held in Pardee Construction Co. v. Cite of C'unturillo, 37 Cal.3d 465 (1984), that failure of 1tAM673938.3 091906- 04706099 the parties therein to provide for the timing of development resulted in a later- adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' intent to avoid that deficiency by acknowledging and providing that Developer /Owners shall have the right (without obligation) to develop the Property as provided herein. Notwithstanding any other provision of this Agreement, nothing in this Agreement shall be construed to impose an affirmative duty upon Developer /Owner to proceed with the development of the Project, or any portion thereof, if Developer /Owners in their sole discretion decide not to proceed with development of the Project, or any portion thereof. The Vested Rights shall include the right of Developer /Owners to develop the Project in accordance with the Project, Development Schedule and the following shall apply: (a) the Project Development Schedule shall supersede the prior buildout schedule in effect at the time the RDO Allocations were granted, (b) there shall be no change in the RDO Allocations, the Special Exception Units or the Project Development Schedule without the prior written consent of Developer, (c) there shall be no loss of RDO Allocations or Special Exception Units if development of the Project is delayed for reasons beyond the control of Developer /Owners (such as a material change in economic conditions for a prolonged period of time such that a reasonably prudent real estate developer would be unwilling to proceed with the development of all or a portion of the Project), and (d) Developer /Owners shall have the right to make adjustments in the neighborhood sequencing for the Project if reasonably necessary to accommodate the acceleration of the affordable housing, the development of the Town Center commercial component and /or the efficient and economical installation of infrastructure for the Project. In the event an ordinance, resolution or other measure is enacted, whether by action of City or by initiative, that imposes a building moratorium which would otherwise affect the Project or which would require a vote of the 1LAM673938.3 _19- 091906. 04706099 people as a condition to the grant of any approvals for the Project, City agrees that such ordinance, resolution or other measure shall not apply to the Project. Development of the Project shall be subject, however, to any moratoria enacted by the City based on threats to public health or safety, including an inability to provide needed City services, provided that the Project is treated in a non- discriminatory fashion as compared to other development projects (public or private) in the City. 3.8. Public Financing Districts. Nothing in this Agreement precludes the establishment of one or more Mello -.Roos Districts and /or assessment districts covering all or a portion of the Property to maintain the facilities listed herein and /or to enable the issuance of tax - exempt bonds to finance those improvements required in connection with the development of the Project, including without limitation Section 103(b) bonds, Section 501(c)(3) bonds or other mortgage- backed revenue bonds for private purposes. 3.9. Application, Processing and Inspection Fees. Application fees, processing fees, and inspection fees that are revised during the Term of tills Agreement, shall apply to the Project provided that (a) such revised fees are not applied in a discriminatory fashion as to Developer /Owners, and (b) the application of such fees to the Project. is prospective only. 3.10. Further Consistent Discretionary Actions. Nothing in this Agreement shall be construed to limit the authority or obligation of the City to hold legally required public hearings, or to limit the discretion of the City or any of its officers or officials in complying with the Laws and its adopted rules, regulations and policies which require City officials or officers to exercise discretion; provided, however, that any such discretionary action exercised after the Effective Date of this Agreement shall be consistent with the terms of this Agreement, the Specific Plan and the RDO Allocations, and shall not prevent or hinder the development of the Property as UAM6739383 091906 - 04706099 contemplated by the Specific Plan, the RDO Allocations and this Agreement. 3.11. Tentative Map Approvals. City agrees to process and approve Tentative Maps without prior or concurrent processing= approval of architecture and site review. City further agrees that architecture and site approval shall be given at the staff level for the Project, which must occur prior to the issuance of building permits. 3.12. Right to Name Streets, Public Facilities. It is the desire of Developer /Owners to establish and employ a theme which acknowledges the historical significance and use of the Glen Loma Ranch in the naming of streets and the two parks.and the fire station. The Developer /Owners acknowledges that the City has street naming policies as well as a staff committee which is the final authority in the naming of streets. Further, the Developer /Owners acknowledge that the City has specific policies governing the naming of public facilities. The Developer /Owners shall submit a suggested name for each street and public facility together with information supporting the historical significance of the name. When considering such submissions, the City shall act reasonably and in good faith and use its best efforts to approve such names as long as they relate to persons, places, and things associated with Glen Loma Ranch history. In the event any submission is rejected by the City, the Parties shall meet and confer to discuss alternatives. 3.13. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Developer /Owners, and refinements and further development of the Project may demonstrate that clarifications with respect to the details of performance of City and Developer /Owners or minor revisions to the Project are appropriate. If and when, from time to time, during the term of this Agreement, City and Developer /Owners agree that such clarifications or minor modifications arc necessary or appropriate, they may effectuate such 1LA0673938.3 091906- 04706099 clarifications through operating memoranda approved by City and Developer /Owners, 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 3.13 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, sire or architectural style of proposed buildings within the Property, may be, effectuated through operating memoranda pursuant to this Section 3.13. The City Administrator may execute any operating memoranda hereunder without City Council action. 3.14. City Development Fees. The City Development Fees in effect as of the Adoption Date are attached hereto and made a part hereof as Exhibit F ( "Existing City Development Fees "). Other than the Existing City Development Fees, no other City Development Fees shall be imposed on the Project. The provisions of Section 3.14 of this Agreement shall not preclude the City from (a) adopting legally permitted increases in Existing City Development Fees, or (b) changing the categories of City Development Fees, provided that only categories of City Development Fees included in the Existing City Development Fees shall be applied to the Project and no new categories of City Development Fees shall be applied to the Project. in executing this Agreement, Developer /Owners do not waive any rights with respect to challenging increases in Existing City Development Fees. 3.15. Determination of Existing City Development Fees. For purposes of calculating the UM673938.3 091906 -04706099 Existing City Development Fees to be applied to the Project, residential developimenf fees for each neighborhood shall be determined based on the designations given for that neighborhood in Exhibit C. Neighborhoods designated as R1 and R2 shall pay fees at the City's "low density" rate, while neighborhoods designated R3 and R4 shall pay fees at the City's "high density" rate. ARTICLE IV SPECIFIC CRITERIA_AND OBLIGATIONS APPLICABLE TO DEVELOPMENT OF PROJECT 4.1. General Effect of This Article. This Article IV contains specific criteria and obligations applicable to the development of the Project and the construction and dedication of Public Improvements. In case of conflict, specific provisions of this Article shall prevail over general provisions relating to the same subject matter elsewhere in this Agreement. 4.2. Right to Develop, Requirement to Develop Project in Accordance with Project Development Schedule. Without limiting the grant of Vested Rights described in Article III of this Agreement, City acknowledges and agrees that, subject to receiving any further required City Approvals subject to the standards and provisions of this Agreement, Developer /Owners may proceed with the development, construction, use and occupancy of the Project as a matter of right under this Agreement. Subject to the provisions of Section 3.7 of this Agreement, Developer /Owners shall develop the Project (including the Public Improvements) in accordance with the Project Development Schedule. 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 4.3. Construction of Public Improvements. Except as otherwise provided in this Agreement, (a) Developer /Owners shall be shall be entitled to City standard reimbursements for the installation of capital improvements and /or oversizing of master planned facilities, (b) 1LAC1673938.3 -23- 091906- 04706099 Developer /Owners shall be solely responsible to design, install and construct all other non - reimbursable Public Improvements at Developer /Owners' sole cost and expense, and (c) Developer /Owners shall design, install and construct the Public Improvements (except those stated herein to be designed by City) in accordance with the City Standards and Applicable City Regulations. Prior to commencing construction of the Public Improvements, Developer /Owners 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. Subject to the terms of this Agreement, the Public Improvements shall be constructed in accordance with the Project Development Schedule. Promptly upon completion of any of the Public Improvements, Developer /Owners shall Dedicate such Public Improvements to City or to a Responsible Agency if so designated by City. 4.4. Certain Features of Project Development. Developer /Owners agree that the development of the Property shall be in accordance with the specific obligations undertaken by Developer /Owners pursuant to this Agreement, or imposed upon Developer /Owners pursuant to the City Approvals, and in accordance with the Specific Plan. The Specific Plan design for parks and the fire station are conceptual in nature and intended to establish development construction funding limits for Developer /Owners. Final design documents will be subject to City approval. Certain specific features of the Project development include the following: 4.4.1. Construction of Parks and Fire Station. The following provisions apply to construction and Dedication of the two city parks and the fire station. City shall not require any other Dedications of land for public park or fire station purposes, nor the construction of other public park or fire station improvements. 1LAC1673938.3 -24- 091906- 04706099 4.4.1.1. City Parks. Nineteen and three- tenths (19.3) acres of the Property shall be used for two new City Parks designated on the Site Plan as "16.3 Acre City Park Site" and "3.0 Acre City Park." Developer shall, at Developer /Owners' sole expense, build out both parks to City specifications and Dedicate them to the City for public use upon completion. The City acknowledges that the parks are an important feature and amenity of the Project. City agrees to keep both parks in "parks and recreation" use for the Term of this Agreement. The construction of the two parks shall be undertaken and completed as follows: The 16.3 acre park site shall be constructed at the time that the Mataro neighborhood is developed and the 3.0 acre park site shall be constructed at the time that the Montonico neighborhood is developed. In addition, the Developer /Owners shall pay the City's Existing City Development Fees (increased, if applicable, as provided herein) , notwithstanding that a portion of such fees relates to parks. If the City abandons the park sites, then the City shall, at no cost, convey the park sites to the Master HOA provided that the Master HOA will accept ownership, and agrees to operate the sites as public parks. 4.4.1.2. Fire Station. Approximately 1.5 acres of the Property, designated on the Site Plan as "Fire Station," shall be developed and constructed as a fire station to City Standards and design, it being the contemplation of the Parties that the improvements shall be generally similar in scope and size to the existing Sunrise fire station improvement. Developer shall, at Developer's sole expense design and improve the fire station site, including construction of the building thereon, and shall Dedicate the land and improvements to the City upon completion, all of which shall occur prior to the issuance of the building permit for the 1,000th residential unit of the Project. If the City abandons the fire station, then the City shall, at no cost, 1L4C1673938.3 _2 5 _ 091906 - 04706099 convey the fire station site to the Master HOA, provided that the Master HOA will accept ownership. 4.4.1.3. Cap on Construction Costs. Notwithstanding the foregoing obligation in this Section 4.4.1, Developer shall not be required to spend on out -of- pocket construction hard and soft costs (but excluding any direct or indirect overhead or staff costs of Developer, and any allocation for land value) for the development and improvement of the two city parks and the fire station in excess of a total sum of Eight Million Five Hundred Eighty -Five Thousand Three Hundred Ninety -One Dollars (S8,585,391, the "Cost Cap ") as shown on the summary of estimated costs for the two park sites and the fire station attached hereto as Exhibit G. The Cost Cap is measured in November, 2005 dollars, and shall be adjusted upwards (no downward adjustment shall be made) annually in accordance with any increase in the Construction Cost Index as published in the Engineering News Record, or successor publication. If the city parks and fire station are completed at a cost which is less than the Cost Cap, then any such savings shall belong to the Developer. Developer and City shall meet and confer to reach agreement on pre- construction costs before Developer enters into contracts with design or engineering professionals or with construction contractors for any of these improvements. If the city parks and fire station are completed at a cost which is greater than the Cost Cap, then any such additional costs shall be paid for by the City to Developer upon completion of the parks or fire station, as applicable. Developer shall notify City if it is anticipated that construction costs will exceed the Cost Cap, and the Parties shall immediately meet and confer to discuss possible ways to reduce the costs. Such notification shall be made as soon as possible, and, in any event, before completion of the construction. In addition, with respect to each park and the fire station, Developer shall notify City if it is anticipated that construction costs will exceed the costs \CAC%73938.3 -26- 091906. 04706099 budgeted for that improvement, and the Parties shall immediately meet and confer to discuss possible ways to reduce the costs. Such notification shall be made as soon as possible, and, in any event, before completion of the construction. 4.4.2. Open Space. Approximately 88.2 acres, or 25 %, of the Property, including the "Rocky Knoll and the "Eucalyptus Grove ", shall be preserved in open space and open space buffers. The open space will be owned and maintained by the Master HOA at no cost to the City. Developer /Owners shall offer to Dedicate approximately 1.3 acres of the Project ( "1.3 Acres "), located on the westerly side of Tenth Street adjacent to the proposed Town Center Senior Housing Neighborhood and the existing Christmas Hill Park Hillside Addition for parkland use as an extension to the Christmas Hill Park Hillside Addition. The Developer /Owners are not required to improve the 1.3 Acres. The City is under no obligation to accept the offer of Dedication; if the City refuses to accept the offer of Dedication, then the 1.3 Acres shall be conveyed to the Master HOA. If the City accepts the Dedication and subsequently abandons the 1.3 Acres, then the City shall, at no cost, convey the 1.3 Acres to the Master HOA provided that the Master HOA will accept ownership. Except as otherwise required by the Fire Marshal for the City, the location and size of the open space, open space buffers and fuel transition zones for the Project shall be as described in the Specific Plan and the City shall not impose additional requirements for open space, open space buffers or fuel transition zones on the Project. 4.4.3. Pedestrian/Bicycle Trails. In addition to private interior pedestrian pathways, the Specific Plan includes an extensive north /south and east /west system of public pedestrian trails and bicycle lanes. All such trails shall be constructed as Class I trails to City Standards, adequate for emergency access, and casements shall be dedicated for public use and UAN739383 _27_ 091906.04706099 access. All trails located in the Project shall be maintained by the Master HOA. The term "backbone trails" means trails within the Project which arc identified on the City's Master Trails Plan. Non - backbone trails will be built concurrently with each neighborhood, provided that each such trail has a City- approved logical connection to the overall trail network or a logical temporary end point. With the first Tentative Map in each Phase, Developer shall submit to the City a trails phasing plan for the trails located within such Phase. Except as otherwise required by the fire marshal for the City, the location and size of the trails for the Project shall be as described in the Specific Plan and the City shall not impose additional requirements for trails on the Project. The following two public trails shall be constructed by Developer /Owners in accordance with the Project Development Schedule: 4.4.3.1. Santa Teresa Trail. The Santa Teresa Trail shall be constructed by Developer concurrently with the development of the adjacent neighborhoods sequenced in such a way that once the first segment of the Santa Teresa Trail is built, there shall be a trail (either in final or temporary location and form) for the entire length of the Santa Teresa frontage of the Property. To that end, the following shall apply: (a) if any portion of the trail "dead ends ", and if the County agrees, then that portion of the trail shall be constructed with temporary surfacing within the existing Santa Teresa Blvd. right of way until such time as the final trail connection can be completed, and (b) if the County does not agree to the provisions of Section 4.4.3. ] (a) of this Agreement, then the Parties shall meet and confer to discuss alternative, temporary trails connections within the Project that will meet the City's trails goals without unreasonably interfering with the construction and development of the Project. 4.4.3.2. Uvas Trail. The term "Uvas Trail" means the trail located to the east of Uvas Creek, outside the boundary of the Project, as generally shown on Exhibit E. City 1LAC673938.3 -28- 091906- 04706099 Will pursue funding for the Uvas Trail and, if the City secures such funding, then the City shall construct the Uvas Trail. If the City has not obtained full funding for the Uvas Trail by the time the development of the Olive Grove neighborhood is completed, then the following shall apply: (a) City shall, at City's sole cost and expense, design, prepare all working drawings, complete an environmental review and obtain all permits and approvals required for the construction of the Uvas Trail, including County and /or Santa Clara Valley Water District approvals, (b) Developer shall construct the Uvas Trail and shall be reimbursed for actual costs incurred (including, without limitation, the cost of any mitigation measures) and the reimbursement shall be made in a lump sum no later than one month following acceptance by City of the construction., and (c) Developer /Owners shall not be responsible to maintain the Uvas Trail. 4.4.3.3. Trails Cap for Santa Teresa Trail and Reservoir Canyon Trail.. The two backbone trails located within the Project are the Santa Teresa Trail.and the Reservoir Canyon Trail and shall be constructed by Developer. The Parties agree that a reasonable estimate of the hard and soft costs to complete these 2 backbone trails is One Hundred Fifty Dollars ($150) per lineal foot of trail, which includes a contingency amount ( "Trails Cap "). Developer and City shall meet and confer to reach agreement on pre- construction costs before Developer enters into contracts with design or engineering professionals or with construction contractors for the Santa Teresa Trail or the Reservoir Canyon Trail. Developer shall not be required to spend out -of- pocket construction hard costs (but excluding any direct or indirect ovcrhead'or staff costs of Developer) for the construction of the Santa "Teresa Trail and Reservoir Canyon Trail in excess of the Trails Cap. The Trails Cap shall be adjusted in the same manner as the Cost Cap. If the Santa Teresa Trail and Reservoir Canyon Trail are completed at a cost which is less than the Trails Cap, then any such savings shall belong to the Developer. If the Santa Teresa Trail 1LAC%73938.3 -29- 091906-04706099 and Reservoir Trail are completed at a cost which is greater than the Trails Cap, then any such additional costs shall be paid for by the City to Developer upon completion of such trails. Developer shall notify City if it is anticipated that construction costs will exceed the Trails Cap, and the Parties shall immediately meet and confer to discuss possible ways to reduce the costs. Such notification shall be made as soon as possible, and, in any event, before completion of the construction. Developer shall be solely responsible for all costs related to temporary routing of trails or interim trail improvements and the Parties agree the Trails Cap only applies to the cost to complete the Santa Teresa Trail and Reservoir Canyon Trail to their final Class I specifications. 4.4.4. RDO Allocations and Special Exception Units. The Specific Plan includes a maximum of 1,693 residential units. The application for the Project in the 2001 /2002 RDO competition conducted by the City included 1,443 market rate units plus an additional 200 RDO- exempt units, planned to be a combination of affordable, senior and senior- affordable units, for a total of 1,643 units. As of the August 5, 2002 RDO competition award, the Project had received 1,443 market rate RDO Allocations. Following the award, the City requested, and the Developer /Owners agreed, to provide an additional 50 affordable units in the Project. Therefore, City hereby grants to Developer /Owners, in accordance with City of Gilroy Zoning Ordinance Section 50.63(c)(2), entitled "Special Exceptions ", 250 units (the "Special Exception Units "), consisting of the 200 Special Exception Units requested in the 2001/2002 RDO application and the additional 50 units requested by the City, bringing the total Project unit allocations to 1,693 units (1,443 + 200 + 50 = 1,693). The City shall not change the Project's 1,443 RDO Allocations or the 250 Special Exception Units granted in Section 4.4.4 of this Agreement without the consent of the Developer /Owners. Subject to the provisions of Section 3.7 of this 11AC1673938, 3 -30- 091906-04706099 Agreement, (a) the RDO Allocations and Special Exception Units shall be applied year by year during the Terns hereof in accordance with the Project Development Schedule, and (b) RDO Allocations for a particular calendar year may be used in that year or in the preceding 3 years or in the following 3 years; provided, however, that no more than Five Hundred (500) allocations may be used in any one calendar year. 4.4.5. Sequencing. Prior to the approval of the first Tentative Map application, Develop /Owners shall submit for City review and approval a master infrastructure plan for backbone infrastructure and the orderly development and sequencing of all infrastructure, including streets and traffic improvements, parks, trails, sewer, water, recycled water, and drainage facilities. All infrastructure must be designed and constructed so that it works properly to the City's satisfaction even if subsequent phases of the Project are not built. 4.4.6. Tenth Street Bride. The term "Tenth Street Bridge" means a new bridge to be constructed from the point where Tenth Street turns into Uvas Park Drive, across Uvas Creek and connecting to the Project. The City shall, at City's sole cost and expense, design, prepare all working drawings, complete all environmental review and obtain all permits required for the construction of the Tenth Street Bridge. The City shall be the lead agency for all approvals required for the Tenth Street Bridge. 4.4.6.1. Timing of Construction. If the City is able to obtain federal funding for the Tenth Street Bridge in a timely manner, then the City shall be responsible to complete construction of the Tenth Street Bridge no later than the date that the Merlot Drive connection is opened across Reservoir Canyon in the Project. If the City is not able to obtain federal funding in time, then Developer shall construct the Tenth Street Bridge using the design and permits prepared and obtained by the City so as to complete construction of the Tenth Street 1LACV673938.3 -31- 091906. 04706099 Bridge no later than the date that the Merlot Drive connection is opened across Reservoir Canyon in the Project. 4.4.6.2. Costs and Reimbursement. City agrees that the City will prepare an engineering budget and contingency for the estimated construction costs of.the Tenth Street Bridge and will adjust the City's TIF reimbursement schedule accordingly. Developer and City shall meet and confer to reach agreement on pre - construction costs before Developer enters into contracts with design or engineering professionals or with construction contractors for of the Tenth Street Bridge. City will reimburse approved constriction costs in accordance with normal policy for TIF reimbursements; provided, however, that the following conditions shall apply: (a) The "approved" construction costs shall include costs incurred by Developer which are within the scope of improvements contemplated by the approved plans and specifications and the approved construction contract for the Tenth Street Bridge; (b) Reimbursement shall be made in a lump sum no later than one month following acceptance by City of the construction; (c) If Developer encounters unknown or unanticipated construction conditions (i.e., a material deviation from the approved scope of constriction or actual construction conditions which are materially different from the assumed construction conditions) which will result in increased constriction costs for the Tenth Street Bridge, then the Parties shall promptly meet and confer, prior to authorizing additional expenditures, to discuss and revise the approved scope of construction to take into account, and fairly compensate Developer for, the increased costs associated with such unknown or unanticipated construction conditions; (d) If a delay occurs which is beyond the reasonable control of the Parties such that the construction of the Tenth Street Bridge is not then reasonably expected to be completed no later than the date that the Merlot Drive connection is opened across Reservoir Canyon in the Project, then the Parties shall \LAC1673938.3 -32- 091906. 04706099 promptly meet and confer to discuss alternative traffic measures that will allow the development of the Project to continue pending the resolution of the delay in constriction of the Tenth Street Bridge. City will provide such reasonable assurance as requested by Developer or Developer's lender to demonstrate that funds will be available to reimburse Developer or the lender in the amount and at the times specified herein. 4.4.7. Traffic Study. Developer /Owners shall fund and complete a traffic study ( "Traffic Study ") prior to the issuance of the building permit for the 1001" residential unit of the Project. The Traffic Study shall assume the construction of the Tenth Street Bridge as provided herein. The Traffic Study shall address only remaining, unimplemented Project traffic mitigation measures, if any, as identified in the certified Project Mitigation Monitoring Program. Except as provided in this Agreement and the Final EIR, City shall not impose additional requirements for traffic improvements on the Project; provided, however, that the City shall not be prohibited from suggesting alternatives which arc no more costly or burdensome provided such alternatives are consistent with this Agreement and the Final EIR. 4.4.8. Maintenance of Public and Private Streets. The City shall maintain public streets from curb to curb. The Master HOA shall maintain landscaping, medians and entry features adjacent to and along public and private streets. Except as provided in this section above, division of maintenance responsibilities on public and private streets and easement areas shall be allocated as each Tentative Map is approved by City. City agrees that Developer may constrict an entry /monument feature in the area set aside at the -Thomas Road /Luchessa intersection, which shall be maintained by the Master HOA. 4.4.9. Senior /Affordable Housing. To meet the City requirements for affordable housing, the Project shall contain up to 256 affordable units as described herein. The City ILAC%73938.3 -33- 091906- 04706099 requires that 15% of the RDO Allocations be affordable (15% of 1,443 = 216 units). The City also requires that 20% of the Special Exception Units be affordable; provided, however, that the City agrees that since the Developer originally requested 200 Special Exception Units and the City requested that the Project provide an additional 50 Special Exception Units, the 20% requirement shall apply only to 200 of the 250 Special Exception Units (20% of 200 = 40). The City agrees, therefore, that the Project requirement for affordable housing is 256 units (216 + 40 = 256 units), provided that if the actual number of units built at the Project is less than 1,693 units, then the requirement for 256 affordable units shall be proportionately reduced (i.e., the Project shall in that event include at least 256/1693 = 15.1% affordable units). The components of affordable housing will include at least one hundred six (106) units that are affordable under the City's Guidelines, seventy -five (75) units that are restricted to seniors and are affordable under the City's Guidelines, and at least seventy -five (75) units that are senior non — restricted units that shall be designed and constructed so as to encourage affordability by design. The affordable units shall be allocated among low or very low income, median income and 120% of median income categories in accordance with the City's current RDO Affordable Housing Exemption Procedure document. As shown on the Project. Development Schedule, it is anticipated that approximately 86 affordable units will be constructed in Phase 1, 85 affordable units will be constructed in Phase 2, and 85 affordable units will be constructed in Phase 3; provided, however, that the following shall apply: (a) Developer /Owners may accelerate the timing of the construction of the affordable units without restriction; (b) If the affordable units allocated to a Phase have not been constricted by the end of that Phase due to serious conditions beyond the control of Developer /Owners (such as a material change in economic conditions for a prolonged period of time such that a reasonably prudent real estate developer would be unwilling 1lAC1673938.3 -34- 091906- 04706099 to proceed with the construction of said affordable units), then Developer /Owners shall meet and confer with the City Administrator; (c) If the City Administrator confirms that such serious conditions beyond the control of Developer /Owners prevented the construction of the scheduled number of affordable units in a particular Phase, then the Project Development Schedule shall be modified as follows: the affordable units scheduled for a prior Phase must be constructed on or before the date that a building permit is issued for the first unit in the second one -third of a subsequent Phase. Except as otherwise provided in Section 4.4. 10 of this Agreement, City shall not impose any requirements for additional units of affordable housing, below market rate housing, senior housing or any other non - market rate housing on the Project. Developer shall comply with all provisions of the City's RDO Affordable Housing Exemption Procedures document with respect to the affordable units. 4.4.10. City Services. City shall exercise its best efforts to take into account the infrastructure needs of the Project in connection with City master planning and infrastructure development to service future development in the City. In the provision of City services, including, without limitation, water, reclaimed wastewater and sewer, and traffic infrastructure projects, the Project shall be treated in a non - discriminatory fashion as compared to other development projects (public or private) in the City. 4.4.11. Traffic Improvements -- Right of Way. In the event it is necessary to acquire off -site easements or street rights -of -way, the Developer /Owners shall enter into an agreement with the City prior to final map approval agreeing to pay all costs for acquisition of all required easements or street right -of -way, including, if necessary, condemnation costs. This agreement shall be recorded and require the Developer /Owners to deposit all condemnation costs ILAM673938.3 -35- 091906-04706099 with the City within 21 days of final map approval. The Developer /Owners shall agree to provide an initial cash deposit as determined by the City. 4.4.12. Traffic Improvements- Exceptions. Regarding the improvements at the Luchessa Avenue /Monterey Road intersection, identified as sheet 422 of the Gilroy General Plan Warranted Improvements prepared by Higgins Associates, dated September 5, 2003, at the time that the left hand turn lanes from westbound Luchessa Ave. onto southbound Monterey Road are required, if the City has purchased the necessary right of way, then Developer shall construct the improvements and be reimbursed by the City per the City's TIF reimbursement policy. If the City has not acquired the necessary right of way, then the intersection impacts from the Project will be mitigated by other means (as approved by the City) if necessary, as determined at the time of the Traffic Study described in Section 4.4.7 of this Agreement. Developer /Owners shall not be required to pay for the acquisition of any right -of -way at this intersection only. The provision above regarding mitigation by other means (as approved by the City) if necessary, shall also apply to the improvements listed on Exhibit D to the Monterey Rd. /Masten Avenue and Santa Teresa Blvd. /Fitzgerald Avenue intersections. If the Developer desires to determine mitigation to accommodate the LOS within the existing right of way at these intersections, the Developer /Owners shall find a limited focused traffic study for each of these two intersections prior to performing design and construction. The City will perform the limited traffic studies with a dollar cap on their funding by the Developer /Owners of $10,000 per study. 4.4.13. California Tiger Salamander. Developer /Owners have already incurred costs of $18,000 to fund the study of potential off -site habitat enhancement for the California Tiger Salamander ( "CTS "). Concurrently with the approval of the first final subdivision map for the Project, Developer /Owners shall pay an additional $84,000 to the City to be used for the 1LAC1673938.3 -36- 091906- 04706099 funding of off -site regional habitat enhancement activities specifically targeted at the local population of CTS. Developer /Owners agree that the City is authorized to use these funds for off -site CTS enhancement activities as approved by the City and the California Department of Fish & Game ("DFG ") and further agrees that all or a' portion of such funds may be paid directly to DFG. Nothing contained herein shall be deemed to require the City to establish or maintain any program, or to take any particular action, with regard to CTS habitat enhancement. 4.4.14. Habitat Conservation Plan. The County is preparing a Habitat Conservation Plan ( "HCP ") and the City intends to join the HCP. In order to facilitate the City's participation in the HCP, Developer has already advanced $100,000 (the "HCP Advance ") to the City to fund the City's estimated initial costs. City agrees that the HCP Advance shall be repaid as follows: the City will provide Developer with a credit against building permit fees (in an amount reasonably determined by the City to reflect the contemplated new HCP fonrtati.on fee that will be levied on residential building permits). In the event that after all HCP formation costs have been expended and Developer has not been credited the full amount of the HCP Advance, then City shall refund to Developer the unused balance, with interest (at the average yield rate in the City's investment portfolio computed semi - annually from the Adoption Date. 4.4.15. No Other Exactions. "Individual Tentative Maps may be conditioned upon Exactions, consistent with this Agreement, that are related to infrastructure (such as streets and utilities) necessary to support development within the area covered by the Tentative Map or are necessary to protect public health or safety. Except for such Exactions and any other Exactions described in this Agreement, no other Exactions shall be imposed on the Project. ARTICLE V INDEMNITY; INSURANCE 1LAC1673938.3 -37- 091906-04706099 5. 1. Developer /Owners' Indemnity. Developer /Owners 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). Developer /Owners' obligation to Indemnify City under this Section 5.1 shall include the obligation to Indemnify for any claim that any work performed by Developer /Owners 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 Developer /Owners' 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 Developer /Owners' counsel in any 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. The terms of this Section 5.1, shall also survive any termination of this Agreement. 5.2. Insurance. Commencing with the initial grading at the Project and continuing until full and final completion of the Public improvements pursuant to Article IV above, Developer /Owners shall maintain in effect (1) a policy of commercial general liability insurance with a combined single limit of not less than 55,000,000.00 per occurrence and general aggregate, and (ii) Workers' Compensation Insurance covering all individuals employed by ILAC1673938.3 -38- 091906 - 04706099 Developer /Owners for work at the Project site or on the Public Improvements, with coverage in the minimum amount required by Laws. Developer /Owners shall also cause each general contractor and subcontractor performing work at the Project site or on the Public Improvements to carry Workers' Compensation Insurance with coverage of at least the minimum amount required by Laws. Developer /Owners' commercial general liability insurance under clause (i) above shall name City, its elected and appointed boards, commissions, officers, agents and employees, as additional insureds, and shall include either a severability of interest clause or cross - liability endorsement. Developer /Owners shall furnish City certificates of insurance evidencing that Developer /Owners' 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 Developer /Owners shall 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 V1. 6.2. Developer /Owners' Submittal. Promptly after receipt from City of notice of its decision to undertake an annual review under this Article VI, Developer /Owners shall submit a report to the City Administrator describing Developer /Owners' 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 the Development Agreement Legislation and the Development Agreement Ordinance. 1AC1673938.3 -39- 091906- 04706099 6.3. Finding of Compliance. Within thirty (30) days after Developer /Owners submit.their report hereunder, the City Administrator shall review the report to ascertain whether Developer /Owners have demonstrated good faith substantial compliance with the terms of this Agreement. If the City Administrator finds and deterniines that Developer /Owners have in good faith substantially complied with the terms of this Agreement, or does not determine otherwise within thirty (30) days after delivery of Developer /Owners' 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 Developer /Owners, and Developer /Owners 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 Developer /Owners have not demonstrated good faith substantial compliance with the terms of this Agreement, he or she shall so notify Developer /Owners 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 Developer /Owners with respect thereto. 6.4. Hearing Before City Council to Determine Compliance. After submission of the City Administrator's staff report, the City Council shall conduct a noticed public hearing to determine the good faith substantial compliance by Developer /Owners 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, Developer /Owners and to all other interested Persons requesting the same, copies of all staff reports and other information concerning Developer /Owners' good faith, substantial compliance with the terms of this Agreement and the conclusions and recommendations of the City Administrator. At such hearing, Developer /Owners and any other UM673938.3 -40- 091906- 04706099 interested Person shall be entitled to submit evidence, orally or in writing, and address all the issues raised in the staff report with respect to the issue of Developer /Owners' good faith substantial compliance with this Agreement. If, after receipt of any written or oral response of Developer /Owners, and after considering all of the evidence at such public hearing, the City Council finds and deterniines, on the basis of Substantial evidence, that Developer /Owners have not substantially complied in good faith with the terms and conditions of this Agreement, then the City Council shall specify to Developer /Owners the respects in which Developer /Owners have failed to comply, and shall also specify a reasonable time for Developer /Owners 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 Developer /Owners' 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 reasonable 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 Developer /Owners of a detennination of noncompliance by Developer /Owners hereunder, or of a failure by Developer /Owners to perfect the areas of noncompliance hereunder, shall specify in reasonable detail the grounds therefor, and shall include a brief summary of the facts demonstrating such noncompliance or failure, so that Developer /Owners 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. ILAC1673938.3 -41- 091906- 04706099 6.5. Certificate of Compliance. If the City Administrator (or the City Council, if applicable) finds good faith substantial compliance by Developer /Owners with the terms of this Agreement, the City Administrator shall, upon Developer /Owners' written request, promptly after receipt of such request, issue a certificate of compliance within ten (10) days thereafter, certifying Developer /Owners' good faith compliance with the terms of this Agreement through the period of the applicable annual review. Such certificate of compliance shall be in recordable fonn. and shall contain such information as may be necessary in order to impart constructive record notice of the finding of good faith compliance hereunder. Either Party shall have the right to record the certificate of compliance in the Official Records of the County of Santa Clara. C.G. Effect of Termination Pursuant to this Article. Upon termination of this Agreement pursuant to this 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 Developer /Owners 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 or to Indemnify the other Party. ARTICLE V11 PERMITTED DELAYS; SUPERSEDURE BY SUBSEOUENT LAWS- 7. 1. Pennitted Delays. Upon the occurrence of an act of Force Majeurc, performance by a Party of its obligations hereunder shall be excused during, and extended for a period of time 1LACI673938.3 -42- 091906- 04706099 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. If any Law made or enacted after the Effective Date prevents or precludes compliance with one or more provisions of tills 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 effective only if approved by the City Council. If such modification or suspension is deemed infeasible in Developer /Owners' reasonable business.judgment, then Developer /Owners may elect either (i) to terminate this Agreement by written notice to City, or (ii) to contest such Law as provided herein. The effect of any termination pursuant to clause (1) above shall be governed by the provisions of Section 6.6 above. 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 and the Parties shall cooperate with respect to any such challenge. 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," (1) 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- 1LAC1673938.3 -43- 091906. 04706099 day period, the defaulting Party does not within such 30 -day period commence 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 an Event of Default given hereunder shall specify in reasonable detail . the nature of the failure in performance which the noticing party claims constitute the Event of Default and the manner in which such Event of Default may be satisfactorily cared in accordance with the terms and conditions of this Agreement. Proceedings under Article VI or VII hereunder 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 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 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 ILACI673938.3 -44- 091906-04706099 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, 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 82. Notwithstanding the foregoing, the Parties do not intend that the equitable relief contemplated hereby shall include, nor shall City be entitled to bring, an action that shall purport to require Developer /Owners to complete the development of the Project, or any portion thereof (except any Public Improvements that are under construction or were to have been constructed as part of a completed neighborhood), if Developer /Owners decide not to proceed with the development of the Project, or any portion thereof, as provided in Section 3.7 of this Agreement. 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 1LAC1673938.3 -4$- 091906- 04706099 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 costs and attorneys' fees and costs on any appeal. 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, or 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 I AC1673938.3 -46- 091906- 04706099 Developer /Owners 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 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. 8.7. Nonliability of Officials and Employees of City. No member, official or employee of City shall be personally liable to Developer /Owners in the event of any Event of Default by City or for any amount which may become due to Developer /Owners, or for 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). Developer /Owners hereby waive and release any claim they 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 Developer /Owners, or on any obligations under the terms of this Agreement. 8.8. Nonliability of Officers, Partners or Employees of Entities Comprising Developer /Owners. For any entity (partnership, trust, corporation or limited liability company) comprising Developer /Owners, the following shall apply: no officer, director, partner, trustee, member or manager of such entity, as applicable, shall be personally liable to the City in the event of any Event of Default by Developer /Owners or for any amount which may become due to City, or for 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). City hereby waives and releases any claim it may have against the officers, directors, partners, trustees, members or managers of such entity, as UM673938.3 -47- 091906-04706099 applicable, with respect to any Event of Default by Developer /Owners or for any amount which may become due to City, or for any obligations of Developer /Owners under the terms of this Agreement. 8.9. Default - Several Obligations of Developer /Owners. For purposes of Section 8.9 of this Agreement, the term "Defaulting Owner" means the particular Developer and /or Owner causing an Event of Default under this Agreement. Notwithstanding any other provision of this Agreement, no Event of Default under this Agreement with respect to a particular portion of the Project shall constitute an Event of Default applicable to any other portion of the Project, and any remedy arising by reason of such Event of Default shall be applicable solely to the portion of the Project to which the Event of Default occurred. The obligations of the Developer and each Owner shall be several and no Event of Default hereunder in performance of a covenant or obligation by any one of them shall constitute an Event of Default applicable to any other Developer or Owner, and any remedy arising by reason of such Event of Default shall be applicable solely to the Defaulting Owner and the portion of the Project owned by such Defaulting Owner. 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 Property. Notwithstanding the foregoing, no Event 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 Property, or any portion thereof or interest therein or I AC167s938.s -48- 091906- 04706099 improvement thereon, by foreclosure, trustee's sale, deed in lieu of foreclosure, or termination of the Mortgage. 9.2. Mortgagee Not Obligated; Mortgal ee 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 Developer /Owners, 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. 9.3. Notice of Default to Mortaaee; Right ofMortgaee to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of an Event of Default given Devcloper /Owners hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer /Owners, any notice given to Developer /Owners with respect to any claim by City that Developer /Owners have 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 Devcloper /Owners. 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. ARTICLE X TRANSFERS AND ASSIGNMENTS 10.1. Right to Transfer. Developer/Owners shall have the right to Transfer any right or interest under this Agreement only in accordance with the provisions of this Article X. 1LAC673938.3 _49_ 091906.04706099 10.2. Conditions on Developer /Owners Right to Transfer. Except as otherwise provided in this Article X, Developer /Owners 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 Developer /Owners 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 Developer /Owners or the Transferee under the Transfer. 10.2.2. Assumption Agreement. Developer /Owners 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 Property proposed to be Transferred and the concomitant rights of Developer /Owners necessary to ensure that the proposed Transferee will have the ability to perform all of the obligations of Developer /Owners the Transferee is to assume, (ii) the obligations of Developer /Owners 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 Developer /Owners 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. lLAD673938.3 _50_ 091906.04706099 10.2.3. Right of Developer /Owners to Cure. In the event of a partial assignment of this Agreement, pursuant to an assumption aurecmcnt, City will not declare an Event of Default hereunder without giving Developer /Owners notice of such Event of Default, which shall be given concurrently with the transmittal of notice to such Transferee, and a reasonable opportunity to cure the relevant default. 10.3. Limitations and Exceptions on Developer /Owners Right to Transfer. Developer /Owners' 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. Developer /Owners shall have the right to Transfer any right or interest under this Agreement to an Affiliate, as to which Transfer the conditions specified in Section 10.2.1 shall not apply. Such Affiliate 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 10.3.2. Transfer to Non- Affiliate. Developer /Owners shall have the right to Transfer any right or interest under this Agreement concurrently with, or after issuance by City of, the first final map for the Project if the conditions specified in Section 10.2 above are fulfilled. Such third Person shall become a Transferee upon (1) 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. 11AC1673938.3 -51- 091906- 04706099 10.3.3. Transfers to Occupants, Occupants not Obligated Under Agreement. Notwithstanding anything to the contrary contained in this Article X, Developer /Owners shall have the right to Transfer lots or single- family residential units in the Project 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) or taking of possession by a 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 Developer /Owners contained in this Agreement. If Developer /Owners effects a Transfer prior to full and final completion of the Public Improvements, then Developer /Owners shall not be released from its obligations under this Agreement. Upon full and final completion of the Public Improvements then, upon effecting a Transfer, Developer /Owners (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 Developer /Owners 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 1LACi673938.3 -52- 091906. 04706099 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 City Approvals as well as all of the Public Improvements defined herein, specifically including the two parks and the fire station. ARTICLE XI AMENDMENT AND TERMINATION 11.1 Amendment or Cancellation. Except as provided in Articles VI and VIII above, this Agreement may be terninated, 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, Article VI, and Article VIII hereof 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. 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, or by facsimile. The respective mailing addresses of the Parties are, until changed as hereinafter provided, the following: To City: City of Gilroy 7351 Rosanna Street Gilroy, California 95020 -6190 Attention: City Administrator To Developer: Glen Loma Corporation 7888 Wren Ave., Suite D -143 Gilroy, California 95020 1LAM673938.3 -53- 091906- 04706099 Attention: John M. Filicc, Jr. Facsimile: 408- 847 -3380 To Owners: c/o Glen Loma Corporation 7888 Wren Ave., Suite D -143 Gilroy, California 95020 Attention: John M. Filice, Jr. Facsimile: 408 - 847 -3380 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 records. Notices sent by facsimile shall be deemed delivered on the date sent, if sent during normal weekday business hours, or else on the next business day, all assuming successful transmission. 12.2. Change of Notice Address. A Party may change its address or facsimile number for notices 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 to be effective. 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, tenns, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or UC1673938.3 -54- 091906- 04706099 otherwise) and assigns, devisees, administrators, representatives, lessees, and all other Persons acquiring Developer /Owners' interest in the Property, 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 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 terns, 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 Developer /Owners, or the affairs of City, or otherwise, or cause them to be considered joint venturers or members of any joint enterprise. 14.2. No Third Party Beneficiaries. 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; unless expressly provided herein. 14.3. Approvals. Unless otherwise provided in this Agreement, whenever approval, consent or satisfaction is required of a Party pursuant to this Agreement, it shall not be unreasonably withheld or delayed. If a Party shall disapprove, the reasons therefor shall be 1LAC1673938.3 -55- 091906. 04706099 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. 14.4. Not A Public Dedication; Developer /Owners' Acknowledgments. Except for Dedications made in accordance with this Agreement and the City 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, Developer /Owners acknowledge that (i) a reasonable relationship exists between all Dedications and Exactions imposed by the City Approvals (including those imposed by this Agreement) and the impact upon the City and its residents of the Project, and (ii) the direct and indirect impacts of the Project and the benefits of this Agreement to Developer /Owners warrant and require the terms and conditions of this Agreement, and but for the acknowledgements of Developer /Owners contained in the foregoing clauses (i) and (ii), City would not have entered into this Agreement. 14.5. Severability. The unenforceability, invalidity or illegality of any provision, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal, except that if it is determined in a final judgment by a court of competent jurisdiction that (a) Developer /Owners rights are not vested in the manner and to the extent agreed to herein, or (b) that Developer /Owners cannot, or are not required to, construct or Dedicate all or any part of the Public Improvements, then the Parties shall meet and confer in a good faith attempt to agree on a modification to this Agreement that shall fully achieve the purposes hereof. If such a modification 1LAM673938.3 -56- 091906-04706099 cannot be agreed upon, then Developer /Owners or City may terminate this Agreement upon 90- days' written notice to the other Party. 14.6. 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 — Legal Description of Property Exhibit B — Depiction of Property Exhibit C — Project Development Schedule Exhibit D — List of Public Improvements Exhibit E — Site Plan Exhibit F — Existing City Development Fees Exhibit G — City Estimate of Costs for Parks and Fire Station 14.7. 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 tcnn or provision of this Agreement; and this Agreement may be modified or amended only in the manner specified in this Agreement. 14.8. 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. ILACV3938.3 -57- 091906-04706099 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 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. 14.9. 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. 14.10. Further Assurances; Covenant to Sign 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 convenient to achieve the purposes and objectives of this Agreement. 14.11. 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 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. ILACk673938.3 -58- 091906 - 04706099 14.12. Governing Law. This Agrecmcnt, and the rights and obligations of the Parties, shall be governed by and interpreted in accordance with the Laws of the State. 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 "Error ") 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 all error is prejudicial, or that injury resulted from an Error, solely as a result of showing that an Error occurred. 14.14. Judicial Proceeding To Challenge Termination. Any challenge made by Developer /Owners 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. 14.15. Signature Pages. For convenience, the signatures of the Parties to this Agreement may executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. ttAM673938.3 -59_ 091906. 04706099 14.1 G. Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 14.17. Authority. Each party warrants and represents to the other party, which warranties and representations shall survive the termination of this Agreement, that each individual executing this Agreement on behalf of such party is duly and fully authorized to enter into this Agreement on behalf of such entity, that this Agreement will be binding upon such entity and that the execution of this Agreement has been approved and ratified as required by the organizational documents of such entity or any applicable laws. Owners warrant and represent to City that they constitute all of the fee owners to the entire Property except for the property owned by the Gilroy Unified School District. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. City of Gilroy, a California municipal corporation IM Albert Pinheiro, Mayor Approved as to Form ATTEST: City Attorney ILAC%73938.3 091906 - 04706099 -60- City Clerk 14.1 G. Time. Time is of the essence of this Agreement and of each and every term and condition hereof. 14.17. Authority. Each party warrants and represents to the other party, which warranties and representations shall survive the termination of this Agreement, that each individual executing this Agreement on behalf of such party is duly and fully authorized to enter into this Agreement on behalf of such entity, that this Agreement will be binding upon such entity and that the execution of this Agreement has been approved and ratified as required by the organizational documents of such entity or any applicable laws. Owners warrant and represent to City that they constitute all of the fee owners to the entire Property except for the property owned by the Gilroy Unified School District. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. City of Gilroy, a California municipal corporation B nheiro, Mayor Approved as to Form ATTEST: �- City Attorney City Clerk ILAC16739383 _60_ 091906.04706099 STATE OF CALIFORNIA )SS. COUNTY OF SANTA CLARA ) TITLE OF DOCUMENT: Development Agreement between City of Gilroy and Glen Loma Ranch, Gilroy, California dated November 21, 2005 On September 29, 2006, before me, Rhonda Pellin, Notary Public, personally appeared Al Pinheiro personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Si6mature of Notary Public ------------- KLLIN CannWM # 138 1056 rmft V h*ft - ca cwft wMo cloro coin y - per GC Sec. 40814; CC Sec. 1181 (Notary Seal) [Developer /Owners Signature blocks] By: Santa Teresa Properties LLC, a California limited liability company Jo . Filice, ., anger STATE OF CALIFORNIA ) ) ss COUNTY OF On this _ day of , before me, the undersigned Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public State of California My Commission Expires: 1LAM673938.2 4.1 State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared John M. Filice, Jr., personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my h nd and of ii 'al seal. Signature Name: R. Boshears (typed or printed) RB /rb <; 1NA S (Seal) [Developer /Owners Signature blocks] By: Filice Family Estate, a California limited partnership J n . Filiaj, Jr., Trustee of the Filice Family Revocable Trust, General Partner Ti *4 J. Filice, individually and as Trustee of the Timothy J. Filice Trust, General ParthcJ Craig P. Filice, General Partner Bruno Filice, General Partner Fred A. Lico, Trustee of t e Fred A. Lico Trust, General Partner STATE OF CALIFORNIA ) ss COUNTY 0171 ,4c� On this day of Ply l before me, the undersigned Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public State of California My Commission Expires:0��©("; 1LA0673938.2 4 ' State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared John M. Filice, Jr., personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offi 'al seal. Signature Name: R. Boshears (typed or printed) RB /rb State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared Timothy ). Filice, personally known to me (or proved to me on the basis of satisfactory evidence) to. be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he/she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and officIA seal. Signature Name: R. Boshears (typed or printed) RB /rb (Seal) State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared Craig P. Filice, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and Qffidal seal. Signature Name: R. Boshears (typed or printed) RB /rb ^.�•: .I�]. -''W \''! .air / �'r.;''.`..: ••:� AA A (Seal) State of California County of Santa Clara On 17th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared Fred A. Lico, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. �;�vvvvnrv,• ;. , �� rvv�r ovr•vvrr -rry WITNESS my hand and o icial seal. r R. rjC?3HEAf�S j` , NC Signature \ d% M Name: R. Boshears (typed or printed) (Seal) RB /rb AUTHORIZED SIGNATURE OF DEVELOPER/OWNERS TO AGREEMENT [Developer /Owners Signature blocks] By: Glen Loma Corporation, a alifornia cor"Filice, o tionn Jo 'President Secretary STATE OF CALIFORNIA ) ) 5S COUNTY OF / On this day of APKIL o�G before me, 5 the undersigned Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal_ Notary Pu is State of California My Commission Expires: ILAC1873939.2 or I State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared John M. Filice, Jr., personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she/they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offs I seal. Signature Name: R. Boshears (typed or printed) RB /rb (Seal) State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared Timothy I Filice, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she/they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Name: R. Boshears (typed or printed) RB /rb (Seal) LIM f: L-In [Developer /Owners Signature blocks] Craig P. Filice STATE OF CALIFORNIA ) ) ss COUNTY 0 On this day of �/�/u�.. before me, / the undersigned Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. �.. 4 , otary Public State of California n ^� My Commission Expires: ©'1' 1LAC%673936.2 1< i State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared John M. Filice, Jr., personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my h d and offici seal. Signature Name: R. Boshears (typed or printed) RB /rb (Seal) State of California County of Santa Clara On 7th day of April, 2006 before me, R. Boshears a Notary Public in and for said State, personally appeared Timothy I Filice, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offi5ial seal. Signature Name: R. Boshears (typed or printed) RB /rb (Seal) [Developer /Owners Signature blocks] By: Christopher Ranch LLC, a California limited liability company onald C. Christopher, Manager STATE OF CALIFORNIA } / ) ss COUNTY OF -Jg,,2 On this / day of 21 c before me, the undersigned Notary Public, personally appeared ersonally known to me (or proved to me on the basis of satisfactory evidence) to be the persdWS"hose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. JUNE MURAOKA Public Commission # 1389681 '40d Notary Public - California State of California Santo Clara County tNycomm.E tesroq 122006 My Commission Expires: V.AC%73938.2 -61- 01- 112105-04706099 [Developer /Owners Signature blocks] By: Christopher Family Partnership, a California limited partnership /1` 1l Frank Artie Christopher, Ar., General Partner Anna Noreen Christopher, Geq4 Partner STATE OF CALIFORNIA ) ) ss COUNTY OF 3_%-T4 On this / 7-4 day of S E�*)�- ,4tL ',1� , �(.Y� before me, the undersigned Notary Public, personally appeared P�c•�aK �r E ", "r`'hE s ersonally known to me (or proved to me on the basis of satisfactory p �ti a Idence) to be the person hose name- ` subscribed to the within instrument and acknowledged to me tha ee xecuted the same in 'his- a�}thorized capacity, and that by.jis s tore on the instrument die person, or the entity li po'r1 behalf of which the persone` ; executed the instrument. WITNESS my hand and official seal. #� WAFFA &W' Soup Commission # 1390063 a F Notary Public - California Santa Clara County �t nny Comm. Expires Dec 14, 2006 UAC1673936.2 01- 11210504706099 1 Notary Public L" State of California My Commission Expires: -b - L' -61- AUTHORIZED SIGNATURE OF DEVELOPER/OWNERS TO AGREEMENT [Developer /Owners Signature blocks] By: D Christopher & Sons LLC, a California limited liability cctmpany . --,- onald C. Christopher, Manager STATE OF CALIFORNIA ) ss COUNTY OF v7ze< �' �� On this day ofTf��� before me, the undersigned Notary Public, personally appeared ai7.9L 0 e- ri /6'._�2 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. JUNE MURAOKA otary Public _ Commssion # 1389661 State of California Notory Public - Calitornlo_ Santo Cloro County ,> t4 Comm. E IresDec 122W6 My Commission Expires: UAC1873938.2 -61- 01-1 121"706099 EXHIBIT'A' LEGAL DESCRIPTION OF THE PROPERTY All that real property situated in the City of Gilroy, County of Santa Clara, State of California, described as follows: BEGINNING at a point on the northeasterly line of Santa Teresa Expressway, as said line is shown on that Record of Survey map filed in Book 264 of Maps, at Page 27, Records of Santa Clara County, said point also being an angle point in the parcel of land shown as "Designated Remainder C" on that Parcel Map filed for record in Book 736 of Maps, at Page 26, Records of Santa Clara County, and said point also lying at the southwesterly end of the course designated as N1'1 °50'51' E, 536.01' on said Parcel Map; thence running along said northeasterly line of Santa Teresa Expressway 1) N23 °02'1 5'W, a distance of 243.07 feet; thence leaving said line, and running along the southwesterly line of said Designated Remainder "C" 2) N07 °18'21 "E, a distance of 277.13 feet; thence continuing along said southwesterly line 3) S66057'45'W, a distance of 170.00 feet to a point on said northeasterly line of Santa Teresa Expressway; thence continuing along said northeasterly line 4) N23 °02'1 5'W, a distance of 1856.16 feet to the beginning of a curve to the right having a radius of 1,430.00 feet; thence continuing along said northeasterly line of Santa Teresa Expressway 5) Northerly along said curve, through a central angle of 27 058'35 "; a distance of 698.24 feet; thence leaving said northeasterly line, and running along the northerly line of the parcel of land shown as "Designated Remainder "A" on said Parcel Map 6) S85003'40'E, a distance of 80.00 feet; thence continuing along said northerly line 7) S48000'07'E, a distance of 470.38 feet; thence continuing along said northerly line, and a portion of the northerly line of Grenache Way, as shown on said Parcel Map 8) S60 °28'14 "E, a distance of 1,471.20 feet; thence continuing along said northerly line of Grenache Way 9) S54014'26"E, a distance of 296.93 feet; thence continuing along said northerly line of Grenache Way 10) S41 003'25'E, a distance of 539.42 feet to the beginning of a non- tangent curve to the left, from which the radius point bears 'N48°56'18'E, a radial distance of 400.00 feet; thence leaving said northerly line of Grenache Way, and continuing along a portion of the northeasterly line of said Designated Remainder "C" 11) Southeasterly along said curve, through a central angle of 30 009'55% a distance of 210.59 feet to the beginning of a reverse curve to the right having a radius of 320.00 feet; thence continuing along said northeasterly line 12) Southeasterly along said curve, through a central angle of 82 000'17 ", a distance of 458.00 feet to the beginning of a reverse curve to the left having a radius of 360.00 feet; thence continuing along said northeasterly line 13) Southerly along said curve, through a central angle of 30 059'48', a distance of 194.76 feet; thence continuing along said northeasterly line Page 1 of 4 14) S20 °1 3'08'E, a distance of 138.26 feet to the beginning of a curve to the left having a radius of 40.00 feet; thence continuing along said northeasterly line 15) Southeasterly along said curve, through a central angle of 79 011'56'; a distance of 55.29 feet; thence continuing along said northeasterly line 16) S09025'04'E, a distance of 40.00 feet to a point on the northerly line of the parcel of land designated as Parcel "B ", as shown on the Parcel Map filed in Book 517 of Maps, at Page 48, Records of Santa Clara County; thence leaving said northeasterly line of Designated Remainder "C ", and running along the northerly tine of said Parcel "B" 1.7) N80034'56'E, a distance of 100.20 feet; thence continuing along said northerly line of Parcel "B" 18) N89 052'53 "E, a distance of 58.19 feet; thence continuing along said northerly line 19) S76 °06'41 "E, a distance of 211.98 feet; thence continuing along said northerly line 20) S49 002'24 "E, a distance of 123.54 feet; thence continuing along said northerly line 21) S71 °36'29'E, a distance of 327.36 feet; thence continuing along said northerly line" 22) S50015'50'E, a distance of 463.84 feet to a point on the westerly right -of -way of Miller Avenue as shown on said Parcel Map; thence 23) S50015'50'E, a distance of 28.36 feet a point in the centerline of Miller Avenue as shown on said Parcel Map; thence running along said centerline 24) S35 °02'00'W, a distance of 278.98 feet to the beginning of a curve to the left having a radius of 200.00 feet; thence continuing along said centerline 25) Southerly along said curve, through a central angle of 30 001'13 "; a distance of 104.79 feet; thence continuing along said centerline 26) S05000'47W, a distance of 321.59 feet; thence leaving said centerline 27) S16004'43'W, a distance of 202.00 feet to a point lying at an angle point in the westerly right -of -way of Miller Avenue, as shown on the Record of Survey map filed in Book 633 of Maps, at page 29, records of Santa Clara County; thence running along said westerly line of Miller Avenue, as shown on said Record of Survey Map 28) S20024'19'E, a distance of 354.15 feet; thence continuing along said westerly line of Miller Avenue 29) S1 0 °40'23'E, a distance of 191.86 feet to a point in said westely lire, said point also being the most southwesterly corner of the parcel of land designated as "Lands of the City of Gilroy", as shown on said Record of Survey Map; thence leaving said westerly line, and running along the southerly line of said "Lands of the City of Gilroy", and a portion of the southerly line of the parcel of land designated as "Lands of the County of Santa Clara" on said Record of Survey Map 30) S84 031'08 "E, a distance of 543.96 feet to a point being an angle point in the southerly line of said parcel of land designated as "Lands of the County of Santa Clara "; thence running along the southerly line of said "Lands of Santa Clara County" Page 2 of 4 31) S65 013'34 "E, a distance of 508.79 feet to the southeasterly comer of said "Lands of County of Santa Clara "; thence running along the easterly line of said "Lands of County of Santa Clara" 32) N23 005'40 "E, a distance of 46.20 feet to the beginning of a curve to the right having a radius of 1,200.00 feet; thence continuing along said easterly line 33) Northeasterly along said curve, through a central angle of 20 000'00'; a distance of 418.88 feet; thence continuing along said easterly line 34) N43 005'40 "E, a distance of 508.33 feet to the most easterly comer of said "Lands of County of Santa Clara "; thence leaving said "Lands of County.of Santa Clara ", and running along a northerly line of the lands described in the deed recorded in Book C503 of Deeds, at Page 528, Records of Santa Clara County 35) S79 033'58 "E, a distance of 25.80 feet; thence continuing along said' northerly line 36) S58 °20'00 "E, a distance of 154.85 feet; thence continuing along said northerly line 37) S65059'10'E, a distance of 372.81 feet; thence continuing along said northerly line 38) S52029'40'E, a distance of 253.48 feet to a point on the westerly line of the parcel of land delineated as "First Assembly of God of Gilroy, Inc., D 784 O.R. 510, Parcel Two, 7.40 AC + / -" on the Record of Survey Map filed in Book 725 of Maps, at Page 39, Records of Santa Clara County; thence running along said westerly line 39) S00 °07'50"W, a distance of 821.82 feet; thence running along the monument line of Greenfield Drive, and the southerly prolongation thereof, as depicted on the map of Tract 9303, filed in Book 739 of Maps, at Page 9, Records of Santa Clara County, and also on the Record of Survey Map filed in Book 722 of Maps, at Page 20, Records of Santa Clara County 40) S00006'59W, a distance of 1,704.17 feet; thence leaving said monument line, and southerly prolongation thereof, and running along the northerly line of Santa Teresa Expressway as depicted on the Record of Survey Map filed in Book 264 of Maps, at Page 31, Records of Santa Clara County 41) N84 041'41 "W, a distance of 249.88 feet; thence continuing along said northerly line 42) N050181 9 "E, a distance of 50.00 feet; thence continuing along said northerly line, 43) N84 °41'41 "W, a distance of 80.00 feet; thence continuing along said northerly line 44) S12 °09'59 "W, a distance of 22.09 feet; thence continuing along said northerly line 45) N77 °50'03 "W, a distance of 129.44 feet to the beginning of a non - tangent curve to the left, from which the radius point bears S19°50'37`W, a radial distance of 2,570.00 feet; thence continuing along said northerly line 46) Westerly along said curve, through a central angle of 13 048'23', a distance of 619.29 feet; thence 47) N83 057'46 "W, a distance of 507.43 feet; thence leaving said northerly line, and running along the easterly line of Parcel 1, as said parcel is shown on the Parcel. Map filed in Book 709 of Maps, at Page 18, Records of Santa Clara County Page 3 of 4 48) N06002'1 4"E, a distance of 358.36 feet; thence continuing along said easterly line 49) N29 °03'28 "W, a distance of 464.20 feet to a point on the northerly line of said Parcel 1; thence running along the northerly line of said parcel 50) N83 °52'53'W, a distance of 1087.98 feet to a point on the westerly line of Miller Avenue; thence running along said westerly line of Miller Avenue 51) S07 °1 7'07'W, a distance of 368.25 feet; thence continuing along said westerly line 52) N82 053'52 "W, a distance of 9.99 feet; thence continuing along said westerly line 53) S10054'59'W, a distance of 150.33 feet; thence continuing along said westerly line 54) S07 006'08 "W, a distance of 50.00 feet to a point on the northeasterly line of Santa Teresa Expressway, as shown on said Record of Survey Map; thence continuing along said northeasterly line, 55) S86023'50'W, a distance of 92.24 feet to the beginning of a non - tangent curve to the right, from which the radius point bears N29008'1 5"E, a radial distance of 2,420.00 feet; thence continuing along said northeasterly line 56) Northwesterly along said curve, through a central angle of 13 022'29", a distance of 564.91 feet; thence continuing along said northeasterly line 57) N47 °29'1 6 "W, a distance of 1,065.40 feet; thence continuing along said northeasterly line 58) N4001 1'38W, a distance of 310.52 feet; thence continuing along the northeasterly line of Santa Teresa Expressway, as said northeasterly line is shown on the Record of Survey filed in Book 264 of Maps, and Page 27, Records of Santa Clara County 59) N42058'22'W, a distance of 324.50 feet; thence continuing along said northeasterly line 60) N32 °51'03'W, a distance of 290.16 feet; thence continuing along said northeasterly line 61) N26 036'50 "W, a distance of 320.62 feet; thence continuing along said northeasterly line 62) N22 °121 6'W, a distance of 1,375.80 feet; thence continuing along said northeasterly line 63) N66 °57'45 "E, a distance of 9.86 feet; thence continuing along said northeasterly line 64) N23 °02'1 5'W, a distance of 67.95 feet to the TRUE POINT OF BEGINNING. Containing 14,971,973 square feet or 343.71 acres, more or less. END OF DESCRIPTION. Page 4 of 4 LEGEND ® ® P.O.B. POINT OF BEGINNING PROPERTY BOUNDARY LINE 1 .... •® ®• SHEET UMI TS o �� SHEET 3 q gal 4 Li > �z� 0 1000 z000 3000 �r SCALE IN FEET: I"= 1000' EXHIBIT 'B' DEPICTION OF THE PROPERTY SHEET 1 OF 4 848 -0302 GILROY. SANTA CLARA COUNTY, CALIFORNIA 1 1" = 1000' 1 10 -17 -2005 9 994009P02 40 -W 80.00'(R) --- N48'00'07'W 470.38' �Mr-i `. lNII.B � ago c� N� rr�LA ` REMAINDER A 8 P J Nf 7..c LEGEND P.O.B. POINT OF BEGINNING - -- PROPERTY BOUNDARY LINE (R) RADIAL BEARING (T) TOTAL DIMENSION 4'26'W 296.93' *03'25"W 788 - m - 25 0.59' R =400:00" A=30V9'55' r46'23'E R r-L =458.00' R= 320.00' X82'00'17' AA A RJOEMAINDER ' c N7913'20 R • ' = 194.76' R= 360.00 X3059'4M 8' N66'57'45E 170.00' R •c 07'18'21'E 277.13' 55.29' R= 40.00' 3= 7911'56 N2 -W 13826 rNll*50'510E 535.01' N0925'04'W 40.00'(R) � N034'56E W • O • B • N89'52'53E .0 58.1 N23'02'15'W 311.02'( TN 7 95' N76 06'41'W 211.98" N49'02'24 °W 123.54' 66' 57'45 "E 9.86' PARCEL .g NWX291 327.36' 517. -M -48 SEE SHEET 4 0 500 1000 1500 SCALE IN FEET: 1 "= 500' SHEET 2 OF 4 EXHIBIT 'B' Ruggeri DEPICTION OF enstn r THE PROPERTY 8055 CAMNO ARROY PHONE: (408)'848 -1 SCALE: I DATE: CITY OF GILROY. SANTA CLARA COUNTY, CALIFORNIA 1" = 500' 10 -17- SEE SHEET 2 j N49M2'24'W 123 ' N7136'29 "W 327.36'.__) PARIM • Jr 517 -M -48 N35'02'00'E 278.91 L= 104.79' R= 200.00' &30'01'1 ^ N05D0'4YE 321.59 N16'04'43E 202.00'—V N20724'19 "W 354.15' N10'40'23*W 191.86' LEGEND P.O.B. POINT OF BEGINNING --- - - - - -- PROPERTY BOUNDARY LINE (R) RADIAL BEARING (T) TOTAL DIMENSION N43D5'40"E 939 - m -- 29 543.96' N6513'34'W 50&79' 79*0580W 25.80' '20'00'W 154.85' 50&33' 00 33, rN559'10'W 372.8 C c" j� N52'29'40N 253.48') l 1 jn �—L= 418.88' R= 1200.00' &20'00'00' ' °D co � W N23'05'40'E 46.20' CS08 0.1L 529 I S �z 1 1 a 722 -M- 20 W '�N07V07'E 368.25' 7 W 'kN29'03'28'E 464.20' 700 -M- 18 T09 -M- 19 W + W + N06'02'14'E 358.36' co '84 +� N84'41'41'W 241 - -- N84'41'41'W 80.00 0 500 1000 ,500 of W-5 w �4- ,_N12'09'59'E.22.09'- _. L= 619.29' R =2570.00' �13'48'23'�- -'• N19'50 37 E R SANTA 7 SCALE '{N FEET: 1 "= 500' RRFSgPRESSWq�70�°3wW t 9. ' EXHIBIT 'B' 17tJonsen erl - - DEPICTION OF zar & Associates THE PROPERTY 9055 CAMINO ARROYO* GILROY, CA .9502( PHONE: (408) 848 -0300 • FAX: (409) 84 SCALE: DATE: CITY OF GILROY, SANTA CLARA COUNTY, CALIFORNIA 1" = 500' 10 -17 -2005 0 �o I^ Wz ILI i1k g LVJ + c I 3 OF 4 OB NO.: 994009F SEE SHEET 2 N0718'21'E 277.13' f-NtlW'511 536.01 O.B. I 7.95' N66'57'450E 9.86' PARCEL ' B' s17 —M -43 Zi Ng �j N2636'50'W N32'51'03'W 290.1E N42.58'22'W N4011'38'W 31 s•` 4, F ssk� LEGEND P.O.B. POINT OF BEGINNING - - -- PROPERTY BOUNDARY LINE (R) RADIAL BEARING (T) TOTAL DIMENSION a 4 W Np� %ip ��• ��S�r`N83 '52 W • S�. EXHIBIT 'B' DEPICTION OF THE PROPERTY CITY OF GILROY. SANTA CLARA COUNT J1 SHEET 4 OF 4 t—J PHONE: (403) 343 =0306 • SCALE: DATE: 1" = 500' 10 -17 -200; EXHIBIT `C' PROJECT DEVELOPMENT SCHEDULE NOTES: 1 The Project Sequencing Schedule as shown supercedes the previous RDO build out schedule adopted by the Gilroy City Council dated August 5, 2002. 2 Glen Loma Ranch reserves the right to modify neighborhood sequencing, and yearly unit total in accordance with the terms of the development agreement and in accordance with the backbone infrastructure. 3 Affordable units by neighborhood are shown for reference purposes. Affordable units will be in each of the three project phases. Actual neighborhood distribution to be distributed determined by Glen Loma Group in accordance with City policies and the Glen Loma Ranch development agreement. 4 Assumed density is based on the City of Gilroy General Plan and Zoning Ordinance density criteria. October 25, 2005 Page 1 of 3 PHASE 1 U'NITS '633 NOTES: 1 The Project Sequencing Schedule as shown supercedes the previous RDO build out schedule adopted by the Gilroy City Council dated August 5, 2002. 2 Glen Loma Ranch reserves the right to modify neighborhood sequencing, and yearly unit total in accordance with the terms of the development agreement and in accordance with the backbone infrastructure. 3 Affordable units by neighborhood are shown for reference purposes. Affordable units will be in each of the three project phases. Actual neighborhood distribution to be distributed determined by Glen Loma Group in accordance with City policies and the Glen Loma Ranch development agreement. 4 Assumed density is based on the City of Gilroy General Plan and Zoning Ordinance density criteria. October 25, 2005 Page 1 of 3 2004 2005 2006 2007 2009 2009 2010 2011 2012 2013 2014 2015 2016 Affordable Units Yearly Unit Total EXHIBIT `C' PROJECT DEVELOPMENT SCHEDULE NOTES: 1 The Project Sequencing Schedule as shown supercedes the previous RDO build out schedule adopted by the Gilroy City Council dated August 5, 2002. 2 Glen Loma Ranch reserves the right to modify neighborhood sequencing, and yearly unit total in accordance with the terms of the development agreement and in accordance with the backbone infrastructure. 3 Affordable units by neighborhood are shown for reference purposes. Affordable units will be in each of the three project phases. Actual neighborhood distribution to be distributed determined by Glen Loma Group in accordance with City policies and the Glen Loma Ranch development agreement. 4 Assumed density is based on the City of Gilroy General Plan and Zoning Ordinance density criteria. October 25, 2005 Page 2 of 3 McCutchin Creek Wild Chestnut immm����m�0 PHASE 2 UNITS 657 NOTES: 1 The Project Sequencing Schedule as shown supercedes the previous RDO build out schedule adopted by the Gilroy City Council dated August 5, 2002. 2 Glen Loma Ranch reserves the right to modify neighborhood sequencing, and yearly unit total in accordance with the terms of the development agreement and in accordance with the backbone infrastructure. 3 Affordable units by neighborhood are shown for reference purposes. Affordable units will be in each of the three project phases. Actual neighborhood distribution to be distributed determined by Glen Loma Group in accordance with City policies and the Glen Loma Ranch development agreement. 4 Assumed density is based on the City of Gilroy General Plan and Zoning Ordinance density criteria. October 25, 2005 Page 2 of 3 EXHIBIT `C' PROJECT DEVELOPMENT SCHEDULE PHASE 3 I PHASE 3 UNITS 4031 NOTES: 1 The Project Sequencing Schedule as shown supercedes the previous RDO build out schedule adopted by the Gilroy City Council dated August 5, 2002. 2 Glen Loma Ranch reserves the right to modify neighborhood sequencing, and yearly unit total in accordance with the terms of the development agreement and in accordance with the backbone infrastructure. 3 Affordable units by neighborhood are shown for reference purposes. Affordable units will be in each of the three project phases. Actual neighborhood distribution to be distributed determined by Glen Loma Group in accordance with City policies and the Glen Loma Ranch development agreement. 4 Assumed density is based on the City of Gilroy General Plan and Zoning Ordinance density criteria. October 25, 2005 Page 3 of 3 T.C. Senior Phase II Town Center Comm. Mal asia Phase II Canyon Creek Rocky Knoll The Glen Nebbiolo Yearly Total city Council Allocated RDO Schedule _ Cumulative Market Rate RDO Total Assumed Densi R-4 N/A R -3 R -2 R -3 R -3 R -1 Pre- 2004 - 63, 63 2004 - 50 113 2005 - 50 163 2006 184 50 213 2007 81 50 __- 263 2008 115 131 394 2009 19g 131 525 2010 197 131 656 2011 143 _ 131 787 2012 103 131 918 2013 XX XX 114 131 1,049 2014 XX XX XX 125 131 1,180 2015 XX XX XX XX XX XX 129 131 1,311 2016 XX 47 132 1,443 Affordable Units 85 256 Yearly Unit Total 75 124 47 1 33 27 97 1,693 1,443 I PHASE 3 UNITS 4031 NOTES: 1 The Project Sequencing Schedule as shown supercedes the previous RDO build out schedule adopted by the Gilroy City Council dated August 5, 2002. 2 Glen Loma Ranch reserves the right to modify neighborhood sequencing, and yearly unit total in accordance with the terms of the development agreement and in accordance with the backbone infrastructure. 3 Affordable units by neighborhood are shown for reference purposes. Affordable units will be in each of the three project phases. Actual neighborhood distribution to be distributed determined by Glen Loma Group in accordance with City policies and the Glen Loma Ranch development agreement. 4 Assumed density is based on the City of Gilroy General Plan and Zoning Ordinance density criteria. October 25, 2005 Page 3 of 3 EXHIBIT'D' LIST OF PUBLIC IMPROVEMENTS NOTES: 1. Although the Mitigation Measure for these, items requires that the improvements be installed only prior to Phase 3, the developerhas agreed to:move this improvement forward as part of the Development Agreement. 2. Section 4.4.7 of the Development Agreement;provides for the traffic study update to be completed prior to the issuance of the building permit for the 100161 residential unit, approximately halfway through Phase 2. — October25, 2005 Page 1 of 1 Mitigatio Phase Earliest An Triggering Event Public Improvement Measur Of ea�ofed Reimbursable for the e Improvement Improvement Improvement Castro Valley/U.S. 101 Intersection fair share contribution only) #29 Phase 1 2006 No Payment with the issuance of the first Ph. 1 building permit. Monterey Rd. /Masten Avenue #30 Phase 1 2006 Yes Operational prior to the issuance of the first building permit in the Mataro Nei hborhood. Santa Teresa Blvd./Tenth Avenue #31 Phase 1 2006 Yes Operational prior to the issuance of the first building permit in either the Petite Sarah or the Grove Neighborhoods. Monterey Rd. /10 Street Signal Modification #32 Phase 1 2006 No Construction to commence with the first Ph. 1 building. permit Thomas Road/Luchessa Avenue Intersection #33 Phase 1 2006 Yes Construction to commence with the first Ph. 1 building permit Princevalle /Luchessa Ave. Intersection Signal 1 #42 Phase 1 2006 Yes Concurrent with the Luchessa/Thomas intersection. 16.3 Acre City Park Site N/A Phase 1 2008 No Commence construction with the grading of the Mataro Neighborhood Santa Teresa Blvd. /BallybuniomDri.ve Intersection #38 Phase 2 2008 Yes Operational prior to the issuance of'the first building permit for Phase 2 Santa Teresa Blvd. /Fitzgerald Ave. Signalization #34 Phase 2 2008 Yes Operational prior to the issuance of the first building permit - for the Olive Grove Neighborhood Fire Station #4 N/A Phase 2 2011 No Construction complete prior-to issuance of the 1000 building permit 3.0 Acre City Park N/A Phase 2 2013 No Commence construction with the grading of the,Montonico Neighborhood Santa Teresa Blvd. / First Street Intersection and #37 TBD (2) 2012 Yes Timing to'be pertraff ic study update (2) First Street — East of Santa Teresa Blvd. Segment #44 Monterey Road/Luchessa Avenue #43 TBD 2 2012 Yes Timingitolbe peutraff ic study update 2 10 Street/Luchessa Ave. Intersection N/A TBD 2 2011 Yes Timing ito be per traffic. update 2 Was Park Drive /10 Street Intersection N/A Phase 2 or 2011 Yes Concurrent with the 100 Street Bridge Opening Phase 3 1 If Street Bridge N/A Phase or 2011 Yes Construction will start within 90 days of when City has Phase 3 obtained all permits and approvals, subject to permit restrictions. Completion estimated to be no later than the date that the MeriollDrive connection is made.across Reservoir Canyon Creek. NOTES: 1. Although the Mitigation Measure for these, items requires that the improvements be installed only prior to Phase 3, the developerhas agreed to:move this improvement forward as part of the Development Agreement. 2. Section 4.4.7 of the Development Agreement;provides for the traffic study update to be completed prior to the issuance of the building permit for the 100161 residential unit, approximately halfway through Phase 2. — October25, 2005 Page 1 of 1 -- - EXHIIBTF "E" Sl'l'E PLAN GLEN LOMA RANCH RPECMC PLAN GUROY, CAIMORNIA "'.r , , :� , = =• t, • , 1 jam_ ^ Y ' -. ^ ` (SHEET 1 OF 2) IL y" I=APAUX coo IRL PARK WAY {R OIJ110VE (i ..� WfA PAIr! . • I&TAG A 1W4W D.U. 4 f8Q 16DDL69C1lOOh p1Mb uu.uuu - UKL PARK AdDrlt 3 R�OCATt�►�l' CO OB r' ' ,D Off •' IMBAyAC,. ``i `.. ■ /MOB D.D• T9 I N D.U. LECMW ,. 14Z=100!D.U. lQP[NI'LQART — — — =A HOIA � � � ^` an cleT , W, / mgm PLSOPl�f = @ QR m QP WAY - 1 4 �'NT Pl1DPO� A1C1li l'OFWAr = om SPACE mxnmJI m =Ai15 nm zm i�iav EXH[Bff "E" SM PLAN GLEN IDMARANCH SPECIFIC PLAN � jC1f8Ll11fu1110r .,. _ :. (SHEET 2 OF 2) So - .. t- ►s rm�a�a' mArARo rams . 67410 OU. pp�������� LEGS D - P�ftIZ �tAy JU� W10906U. VLlUBRU Mi ay. 'FKiflC FIM AREA GARY IOW7410 FROMW UWE & WAff OF NAY POOFOSED ACHY OF WAY OM MACd SlIMMUnX1.'18AiWWI1 MM �A r[. i ' * POTENTIAL SCHOOL SITE EXHIBIT `F' EXISTING CITY DEVELOPMENT FEES Development Impact Fees Fee Fund Number STREET TREE IMPACT FEE 432- 2600- 0000 -3600 City Planting and Replacement $ 2.56 / ff. Inspection and Replacement $ 0.36 / ff. PUBLIC FACILITIES IMPACT FEE [*] 440- 2600 -0000 -3660 [ *] All formerfees collected for Park Development Impact, Police Impact, Fire Impact, Public Facilities and Library Impact have been consolidated and are to be collected as a single Public Facilities Impact Fee. Residential — Low Density $19,642 /unit Residential— High Density $16,639 / unit Commercial $ 2,856 / k.s.f. Industrial $1,268 / k.s.f. STORM DEVELOPMENT IMPACT FEE Residential — Low Density $ 626 /acre Residential — High Density $ 983 /acre Commercial $ 1,696 /acre I.ndustrial $ 1,252 /acre Assembly Hall $ 626 /acre SEWER DEVELOPMENT IMPACT FEE Residential — Low Density $ 11,402 /unit Residential — High Density $ 6,170 /unit Commercial / Industrial $ 3,608 / cgpd WATER DEVELOPMENT IMPACT FEE Residential — Low Density $ 3,645 / unit Residential — High Density $ 1,401 /unit Commercial / Industrial $ 5,431 / kgpd TRAFFIC IMPACT FEE Residential — Low Density Residential — High Density Commercial — Low Traffic Commercial — High Traffic Industrial - General Industrial — Warehouse $ 10,350 / unit $ 8,390 / unit $ 11,450 / k.s.f. $ 23,130 / k.s.f. $ 4,470 / k.s.f. $ 3,290 / ks.f. 420 - 2600 - 0000 -3660 435 - 2600-0000 -3660 436- 2600 - 0000 -3660 433 - 2600 -0000 -3660 EXHIBIT 'G' City Estimate of Costs for Parks and Fire Station Public Facility Development Summary Site/ Description Size Site Offsite Total Cost Glen Loma Aanch Park 5 acre linear park area with picnic, 3.0 ac. Park $2,985,704 $137,500 $3,123,204 playground, parking lot and trail connections to Christmas Hill Park + 13.3 ac. open 11.3 acres of open space with trails space and. fitness activity areas. Montonico Park 3 acre park with play ground and 3.0 ac. Park $1,345,694 $262,500 $1,608,194 playfields. Fire Station Site Sunrise Fire Station *3 site plan 1.5 acre site $3,728,993 $125,000 $3,853,993 utilized for cost projections. within Glen Loma Town Center Cost Totals $8,060,391 $5251000 $8,585,391