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Ordinance 1997-04ORDINANCE NO. 97 -4 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY APPROVING PRE - ANNEXATION DEVELOPMENT AGREEMENT FOR THE HECKER PASS FAMILY ADVENTURE PROJECT THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I. RECITALS A. Applicant Nob Hill General Store, Inc., a California corporation ( "Developer "), has requested a pre - annexation development agreement to govern construction of a multi -phase project (the "Project ") consisting of a theme park and associated commercial and retail development. S. A development agreement (the "Development Agreement ") between the .City of Gilroy and the Developer has been presented to the City Council, a copy of which is attached hereto and incorporated herein with this reference as Exhibit "A ". C. Pursuant to the California Environmental Quality Act ( "CEQA'), the City prepared an Environmental Impact Report ( "EIR ") for the Project, which EIR was certified by the City Council on July 6, 1990. Pursuant to CEQA, a mitigation /monitoring program for the Master- Plan was adopted, to be implemented in connection with the Project. As to all environmental impacts identified in the EIR as not being capable of mitigation to an insignificant level, the City has determined that the benefits of the proposed Project outweigh these unmitigated environmental effects and the City accordingly adopted a Statement of Overriding Considerations on July 6, 1990. D. A public hearing on the proposed Development Agreement was held before the Planning Commission on February 6, 1997, 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. U.AC1328239.01 =1- ORDINANCE .97 -4 73- 03050470MM E. The Planning Commission forwarded the Development Agreement to the City Council, with comments. F. A public hearing on the proposed Development Agreement was held before the City Council on February 18, 1997, 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. G. The City Council has considered the comments made by the Planning Commission as well as all testimony both oral and written received at the February 6, 1997 and February 18, 1997 public hearings. SECTION II. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Gilroy's General Plan, (c). the EIR, and on the basis of 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 CEQA in order to approve this Development Agreement. SECTION III. APPROVAL The City Council hereby approves and authorizes the Mayor to sign the Development Agreement (Exhibit "A "'). SECTION IV. RECORDATION Within ten days after the Development Agreement is executed by the Mayor, the City Clerk shall submit the Agreement to the County Recorder for recordation. SECTION V This ordinance shall take effect and be in full force thirty days from and after its adoption and approval. U:AC1328M.01 -2- ORDINANCE 97-4 73-030504706002 PASSED AND ADOPTED this 3rd day of March, 1997 by the following vote: AYES: COUNCILMEMBERS: GILROY, MORALES, ROGERS, ROWLISON, SPRINGER, VALDEZ, GAGE NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE APPRO D: 7 Id F. F. Gage, Mayor ATTEST: Susanne E. Steinmetz, City erk UC1328M.01 -3- ORDINANCE 97 -4 73-030504706002 EXHIBIT "A" PRE - ANNEXATION DEVELOPMENT AGREEMENT FOR HECKER PASS ... A FAMILY ADVENTURE TABLE OF CONTENTS Pa(:Te A. Capitalized Terms ........ ..............................1 B. The Project .............. ..............................1 1. Phase l of the Project............ ..............1 2. Phase 2 of the Project ............................2 3. Phase 3 of the Project .............. ..........T.2 C. Description of Project under County. Jurisdiction ....... 2 D. California Government Code Provisions ..................3 E. City of Gilroy Development Agreement Legislation ....... 3 F. Construction of Public and Private Improvements ........ 4 G. Project Benefits ......... ..............................4 H. Status of City General Plan ............................4 I. Existing City Approvals... .. ............................4 J. Status and Impact of CEQA ..............................5 K. Pre- Annexation Development Agreement Appropriate ....... 5 L. Administrative Action .............................. ..5 1. CONSTRUCTION OF PUBLIC IMPROVEMENTS ....................6 1.1 Off -Site Extension of City Water Main .............6 A) From Golf Course to Project ................6 (B) From Santa Teresa to the Golf Course ......6 1.2. On -Site Extension of City Water Main ............ 7 1.3. Zone 1 Water System .............................7 1.4. Water Main Loop /Water Master Plan ...............7 1.5. Extension of Sewer Main .........................7 1.6. Sanitary Sewer Siphon Cost Split ................8 1.7. Traffic Improvements ............................8 (A) Theme Park Development ....................8 (B) Mitigation Measures .......................8 1.8. Storm Drain Construction and Installation ....... 9 1.9. Public Improvement and Other City Fees .......... 9 (A) Sewer and Water Development Fees ..........9 (B) Traffic Impact Fees .......................9 (C) Future Public Improvement Fees ...........10 1.10 Improvement Agreements and Deferred Improvement Agreements ........................10 2. QUALIFIED APPLICANT ...... .............................10 3. EFFECTIVE DATE; TERM ..... .............................10 3.1. Effective Date .... .............................10 3.2 Operative Date ..... .............................11 (A) Annexation of the Property; Termination ...... ............................:11 3.3. Term .......... ... .............................11 4. GENERAL DEVELOPMENT OF THE PROJECT ....................11 4.1. Annexation of Property....... ................11 4.2. Subdivision and Parcelization of Property...... 11 4.3. Building Permits and Other Approvals ........... 11 4.4. Other Governmental Permits ............... .......11 4.5. Exactions ......... .............................12 4.6. General Standard of City Review ................12 4.7. Operating Memoranda ............................12 i HPFA Development Agreement - Page ii 4.8 Consistency with Project EIR ....................12 5. SPECIFIC CRITERIA APPLICABLE TO DEVELOPMENT OF THE PROJECT ............... . . ............13 5.1. Applicable Ordinances AndApprovals ............ 13 (A) Ordinances Affecting Phase 1 .............13 (B) Ordinances Affecting Phases 2 and 3 ...13 (C) Government Code Provisions ...............13 5.2. Governing Approvals ............................13 (A) Existing County Approvals; Sunset Provision........ .............................14 Acceptance of Pre - Existing Plans and Improvements ..... .............................14 (C) Water and Fire Fighting Requirements .....15 5.3. Easements; Abandonments ........................15 6. CONSTRUCTION OF IMPROVEMENTS ..........................16 6.1.. Construction of Public Improvements ............ 16 6.2. Bonds and Insurance ............................16 6.3. Indemnity ......... .............................17 6.4. Construction of Phase 1 Improvements ............ 17 7. ANNUAL REVIEW PROCESS .... .............................17 7.1. Annual Review ..... .............................17 7.2. Developer's Submission ...............'..........17 7.3. Report on Compliance ............................18 7.4. Finding of Noncompliance ........................18 7.5. Miscellaneous Requirements in Connection With Annual Review .... .............................18 8. PERMITTED DELAYS; SUPERSEDURE BY SUBSEQUENT LAWS ....... 18 8.1 Permitted Delays .... .............................18 8.2. Supersedure by Subsequent Laws ..................19 9..EVENTS OF DEFAULT; REMEDIES; TERMINATION; ATTORNEYS' FEES......................... .............................19 9.1. Events of Default .. .............................19 9.2. Limitation of Remedies .........................19 9.3. .Waiver; Remedies Cumulative .................... 20 9.4. Litigation Expenses ......................... ..20 (A) Payment to Prevailing Party ..............20 -9.5. (B) Scope of Fees ............................21 Effect of Termination ..........................21 9.6. Estoppel Certificate ...........................21 10. MORTGAGE PROTECTION; CERTAIN RIGHTS OF CURE.......... 22 10.1. Mortgagee Protection ..........................22 10.2 Mortgagee Not Obligated .......................22 10.3. Notice.of Default to Mortgagee; Right of Mortgagee to Cure ...... .......................22 .(A) Notice From Mortgagee ....................22 ,..(B) Mortgagee Right to Cure ..................22 11. TRANSFERS AND ASSIGNMENTS ...... .....................23 11.1. Right to Assign .. .............................23 11.2. Release Upon Transfer ....... .................24. 11.3. Covenants Run With The Land ...................24 12. AMENDMENT AND TERMINATION ............................2.5 12.1. Amendment or Cancellation .....................25 12.2. Recordation of Amendment ...................... 25 13. NOTICES ................. .............................25 HPFA Development Agreement - Page ii 13.1. Procedures ....... .............................25 14. MISCELLANEOUS ........... .............................26 33 14.1. Negation of Partnership .......................2 -6 14.2. Approvals ........ .............................26 "C -1" 14.3. Severability EXHIBIT 14.4. ..... .............................27 Exhibits 14.5. ........................ .............27 Entire Agreement . .............................27 14.6. Construction of Agreement ..................... 27 14.7. Governing Law...... . ............................28 14.8. References; Terminology ............. ..........28 14.9. Signature Pages .... ..................I..........28 14.10. Time .............. .............................28 List of Exhibits EXHIBIT "A" - DEFINED TERMS .......................... 33 EXHIBIT "B" - INSERTED FOR LETTERING PURPOSES ONLY ... 35 EXHIBITS "C -1" AND "C -2" - PROPERTY SITE PLANS ....... 36 EXHIBIT "D" -.LIST OF COUNTY APPROVALS ...............37 iii PRE - ANNEXATION DEVELOPMENT AGREEMENT FOR HECKER PASS ....A FAMILY ADVENTURE THIS PRE - ANNEXATION DEVELOPMENT AGREEMENT (the "Agreement ") is made and entered into this day of 1996, by and between Nob Hill 'General Store, Inc., a California corporation ( "Developer ") and the City of Gilroy, a municipal corporation (the "City ") and is made with reference to the following facts and objectives: RECITALS A. Capitalized Terms. This Agreement refers to and utilizes certain capitalized terms which are defined in this Agreement. The parties hereto intend to refer to those definitions in conjunction with the use of such defined terms throughout this Agreement. A list of such defined terms is attached hereto as Exhibit "A." B. The Project. The project (."Project") consists of the development and construction of a theme park (the "Theme Park ") in Phases 1 and 2, along with certain additional facilities supporting the Theme Park to be constructed in Phase 3, the parameters of which are described in the Project EIR and which are located on approximately 265.49 acres within a total of 641.79 acres of real property (the "Property "), which is situated on the south side of Hecker Pass Highway (State Highway 152) in Gilroy, California. The Project is commonly known as "Hecker Pass . . . A Family Adventure." The remaining 376.30 acres of the Property will be designated as "Open Space" on the City's General Plan. The legal descriptions 'of the parcels comprising the Property are attached hereto as Exhibit "B." Each of the three Phases are described as follows: 1. Phase 1 of the Project. "Phase i" consists of approximately eighty (80) acres designated as Phase One on Exhibits C -1 and C -2 attached hereto, together with the improvements constructed or to be constructed thereon. The private improvements constructed .or to be constructed in Phase 1 of the Project (the "Phase I Improvements ") include approximately 35 acres of landscaped recreational areas that currently feature a large lake with waterfalls, several narrow gauge trains that wind through the Theme Park, certain rides and attractions and one -of -a -kind sculpted "circus" trees. Attached hereto as Schedule 1 is a listing of all of the Phase I Improvements segregated, as of the date of the Agreement, as to (i) those that are completed or in the process of being completed as of the date hereof and (ii) those that are to be completed in the future. Within U M325071.05 74-012104706031 -I- Rev. 1/21/97 ten (10) days after annexation of the Property into the City, Developer shall provide City with an updated Schedule 1, setting forth as of the date of annexation, all of the Phase.I Improvements segregated in the manner described in the prior sentence. 2. Phase 2 of the Project. "Phase 2" consists of approximately forty -eight .(48) acres designated as Phase Two on Exhibits C-1* and C -2 attached hereto, together with the improvements constructed or to be constructed thereon. The exact description of the improvements to be constructed during Phase 2 of the Project are not now known, but Developer anticipates that the improvements to be proposed. by Developer for Phase 2 will consist of (i) improvements on two areas totaling approximately 18 acres designed to accommodate, among, other things, the expansion of the activities conducted within the Theme Park and (ii) improvements on an area approximately 30 acres designed to accommodate, among other things, additional' improvements dedicated to support facilities for the Theme Park, including without limitation parking and access to the Theme Park. 3. Phase._3 of the Protect. "Phase 3" consists of approximately one hundred thirty seven and 49/100 (137.49) acres designated as Phase Three - Future on Exhibits C -1 and C -2 attached hereto, together with the improvements constructed or to be constructed thereon. The exact description of the improvements to be constructed during Phase 3 of the Project are not now known, but shall be constructed in multiple phases on the remaining 137.49 acres of the Project. Developer anticipates that the improvements proposed by Developer for Phase 3 of the .Project may include a motel, expansion of the Theme Park, a conference center, as well as additional commercial and retail structures, which uses are consistent with the City's current General. Plan and zoning designations for this area. A portion of the 137.49 acres designated as Phase 3 contains the existing Group Picnic Area which improvements shall either remain as is, or be redeveloped during Phase 3. Each of the three (3) phases of construction of the Project are depicted on the "PADA Property Site Plan Master Plan," dated June 14, 1996 and the "Theme Park - Approved in County Master Plan," dated June 14, 1996 attached hereto respectively as Exhibits-11C-111 and "C -2" C. Description of Protect under County Jurisdiction. Developer has advised the City that as of the date of this Agreement the events described in this Recital C have occurred. The General Plan of the County of Santa Clara, California ( "County ") was amended to incorporate a Scenic Service zoning for the Project in 1982, with the final Environmental Impact Report ("EIR") required for that action being certified by the County Board of Supervisors on HPFA Development Agreement - Page 2 November 23, 1982. Additional traffic studies were prepared by Brian Kangas Foulk in September 1982 and a subsequent EIR (addressing sewage) was prepared and certified in 1986. The County initially issued a Use Permit for the Project dated June 19, 1987. in October 1988, Developer submitted an application for an amendment to the Use Permit to the County. The architectural and site approval ( "ASA ") for this amendment, including master grading, was granted on February 9, 1989. Since that time, a number of ASA submittals have been made and approved by the County for portions of the Project. In August 1993, an ASA submittal was filed for the approval of certain rides and attractions for the Theme Park, and was approved, subject to certain new conditions, on November 10, 1993. On appeal to the County Board of Supervisors, the ASA for the Theme Park_ for those rides and attractions was approved on April 14, 1994. As a result of these approvals by the County, as of the. date of this Agreement, Developer has advised the City that Developer has been granted all of . the discretionary approvals required to develop and construct Phase 1 and that portion of Phase 2 of the Theme Park depicted on Exhibit "C- 2" as "Phase Two (Approved in County)" save and except for the approvals required to develop the area within the Theme Park designated as "Future Expansion Area," as are shown thereon. The development of both the "Future Expansion Area" and the property comprising Phase 3 will require future approvals by the City or County, depending on the date of annexation. Attached hereto as - Exhibit "D" is a listing of the approvals obtained from the County as of the date of execution of this Agreement by City and Developer. D. California Government Code Provisions. In order to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Section 65864 et sec.., of the Government Code (the "Development Agreement Statute "), which authorizes the City to enter into a property development agreement with any person having a legal or equitable interest in real property, in order to establish certain development rights in such real property. E. City of Gilroy Development Agreement Legislation. The Development Agreement Statute authorizes the. City to adopt legislation authorizing the entry into development agreements in connection with the development of real property in an unincorporated area within-the City's sphere of influence except that such agreements will not become operative unless annexation proceedings annexing the property to the City are completed within the time specified in the development agreement. City Resolution No. 83 -67 dated September 6, 1983 (the "Development Agreement Resolution ") was adopted pursuant to the Development Agreement Statute. HPFA Development Agreement - Page 3 F. Construction of Public and Private Improvements. The execution of this Agreement and the subsequent annexation of the Property shall permit the City to oversee the development and construction of certain public improvements that may be associated with the Project. Subject to normal fees and processing procedures then in effect, the City hereby agrees to approve the issuance of all building permits for any Phase I Improvements which on the date of annexation do not have building permits in effect, but for which all other County approvals necessary to allow construction of such improvements have been obtained and remain in effect at the date of annexation (the "Remaining Phase I Improvements "), on the condition that the Remaining Phase I Improvements conform to the City's then existing building, fire and health and safety codes and applicable State Laws. G. Project Benefits. The parties hereto believe that the orderly development of the Project, as conditioned by this Agreement, will provide many public benefits to the City, not only by confirming that all remaining private improvements for which City issues building' permits are constructed to conform to the City's then existing building fire and health and safety codes, but also by the generation of increased tax revenues resulting in fiscal benefits to the City, the, installation of on -site and off -site public . improvements, the construction of beneficial commercial and entertainment establishments within the City, and the creation of new jobs, both in connection with the construction of the Project and the ongoing operation thereof.. H. Status of City General Plan. The City has completed its review of its General Plan and has made the requisite findings that the execution of this Agreement is consistent with and conforms to ' (i) the requirements of the Development Agreement Resolution and (ii) the City's General Plan. I. Existing City Approvals. The "Existing City Approvals" consist of W the acceptance of the Project into the City's Urban Service Area, (ii) the designation of the Project on the City's General Plan and (iii) the certification of the Project EIR. Each of these approvals are consistent with the goals and policies of the City's General Plan, and have been approved based on findings that the Project--is-consistent with the objectives of the City's General Plan, including without limitation, the objective to maintain the overall quality of life and of the environment . within the City, while imposing appropriate standards and requirements with respect to land uses, building heights and densities, traffic improvements, and other support facilities. HPFA Development Agreement - Page 4 J. Status and Immact of CEOA. In connection with the granting of the Existing City Approvals, an Environmental Impact Report was prepared for the Project by EMC Planning Group, Inc., and was certified by the City Council of the City of Gilroy ( "City Council ") on July 16, 1990 (the "Project EIR") which included an analysis ' of the environmental effects which could result from the Project, as therein defined. The Project EIR identified the possible environmental effects of the proposed general plan amendment., pre- zoning, annexation and the development of the Project that might be significant and imposed a number of measures designed to eliminate, mitigate, or otherwise reduce to an acceptable level, the possible effects of the proposed Project (the "Mitigation Measures ").. The City has found that no new impacts, not considered in previous EIRs, and no new information, which was not known or could not have been known at the time of the certification of the Project EIR that would materially impact Phase 1 of the Project, has become available to City. Prior to entering into this Agreement, the City has reviewed the Project EIR and the Mitigation Measures. Provided that there has been no material change to Phase 1 from that contemplated under the Project EIR, no subsequent or supplemental Environmental Impact Reports are currently necessary or required under the California Environmental Quality Act ("CEQA") with respect to Phase'l of the Project. K. Pre- Annexation Development. Agreement Appropriate. The City has determined that the Project is a development for which a Pre- Annexation Development Agreement is appropriate in order to achieve the goals and objectives of the City's land use planning policies and in order to provide appropriate assurances to the Developer regarding the conditions pursuant to which 'it can complete the development and construction of the Project. L. Administrative Action. On 1 1996, the City of Gilroy Planning Commission held a duly noticed public hearing on this Agreement and found this Agreement consistent with the City's General Plan, and recommended to the City Council that it approve the required Enacting Ordinance. Thereafter on _ _ , 1996, the City Council held a duly noticed public hearing on this Agreement and approved Ordinance No. ' required to enact this Agreement ( "Enacting Ordinance "). NOW, THEREFORE., pursuant to the authority contained in the Development Agreement Statute and Development Agreement Resolution, and in consideration of the mutual covenants and promises contained in the foregoing Recitals and the mutual covenants and promises of the parties hereinafter set forth, the parties agree as follows: HPFA Development Agreement - Page 5 1. CONSTRUCTION_OF_PUBLIC IMPROVEMENTS. The following improvements shall constitute the "Public Improvements" required of Developer in connection with the construction, development and operation of the Project: 1.1 Off -Site Extension of City Water Main. In connection with the extension and sizing of the City's water main to the Project, the parties agree as follows: .(A) From Golf Course _to Prol eet . Developer shall, during Phase 1, install a 24" water line to the Project, .-by extending the existing water main along Highway 152 from the golf course to Burchell Road, then south along the east side of Uvas Creek for approximately 1,000 feet, at which point the water main shall cross below Uvas Creek approximately 250' to the west bank of Uvas Creek for future connection to the Project's on -site water system. The extended water main shall end with a water valve and cap. Water service to the Project, including air gap, will require a separate permit from the City. That portion of the extended water main to be constructed within the Caltrans right -of -way, has been heretofore approved by Caltrans Encroachment' Permit No. 0495- 6UL0188, dated February 1, 1995. Developer shall obtain all approvals required from Caltrans for the work to be done within the Caltrans right -of -way at Developer's cost. The parties agree that the City shall reimburse Developer, per the then current City reimbursement schedule, the cost difference associated with installing a 24" pipe versus an 18" pipe. The City's issuance of an encroachment permit to the extent necessary to allow the 24" water main to be constructed across the golf course shall be at no cost to Developer. (B) From Santa Teresa to the Golf Course. The water main from Santa Teresa Boulevard to the golf course is currently 16 ". If the existing 16" water main has not been upgraded at such time that Developer's known or anticipated demand for water for the Project exceeds the capacity of the existing 16" main, then Developer agrees to install a 24" water main from Santa Teresa Boulevard to the golf course, conditioned upon the costs thereof being shared as hereinafter described. Developer and City shall pay for all of the costs associated with planning, designing, constructing and installing a 24" water main, so long as (i) all of such costs relating to the first 16" thereof are allocable to, and paid by the City, (ii) all of such costs relating to any capacity in excess of the first 1611, if any, based on Developer's then existing or anticipated water needs for the Project, are allocable to and paid by Developer, and (iii) all additional costs, if any, are allocable to and paid by the City. The percentages of the foregoing costs to be borne by each party shall be the percentages derived by comparing the relative costs assigned HPFA Development Agreement - Page 6 to such improvements on the City's then existing fee schedule. 1.2. On -Site Extension of City Water Main. The further extension of the water main through the frontage of the Project to serve adjacent properties shall be deferred by the Developer in accordance with a deferred improvement agreement entered into pursuant to Section 1.10, pursuant to which Developer shall extend such service on demand by the City based on development to the west of the Project and provided a bond, set - aside letter or other approved security is provided for the future extension of the water main, all in accordance with the deferred improvement agreement. The Developer shall grant to the City, simultaneously with the annexation of the Property, a 30 -foot easement in order to accommodate the construction, installation and maintenance of the water line and other utilities and services in the future on terms and conditions satisfactory to City. 1.3. Zone 1 Water System. The Project is and shall remain excluded from the City's future Zone 2 water system, . and it is understood and agreed that the City shall provide Developer with water through the City's distribution system at Zone 1 pressure. Developer shall not have any obligation to participate in the cost of the City's Zone 2 water system, and City shall not be obligated to provide 'a future Zone 2 or higher water system connection to Developer. The Project shall be separated from the City's Zone 1 water system by an appropriate air gap system satisfactory to City. 1.4. Water Main Loop /Water Master Plan. Since the Developer has opted not to be a part of the City's Zone 2 water system, the loop shown in the Water Master Plan has been relocated to the east, and Developer shall not be required to construct or contribute to the cost of constructing the loop. In addition, it is expres *sly understood and agreed that Developer shall have the right to use well water for irrigation of the Project, subject to all City, County, Santa Clara .Valley Water District or other governmental rules and regulations, without the imposition by the City of any well, pumping or similar tax or assessments. Developer acknowledges that agencies other than the City, such as, for example, the Santa Clara Valley Water District, may impose such taxes or assessments. 1.5. Extension of Sewer.Main. The extension of the sewer main through the frontage of the Project to serve adjacent properties to the west of the Project shall be deferred in accordance with a deferred improvement agreement entered into pursuant to Section 1.10, pursuant to which Developer shall extend such service on demand by the City based on development to the west of the Project and a bond, set -aside letter or other approved security is provided for HPFA Development Agreement - Page 7 the future construction of such sewer main, all in accordance with the terms and conditions of the deferred improvement agreement. Consistent with Section 1:2 hereinabove, Developer shall grant, simultaneously with the annexation.of the Property, the 30 -foot easement referenced in Section 1.2 in order to accommodate the construction, installation and maintenance of the sewer main in the future. 1.6.. Sanitary Sewer Siphon Cost Split. The Project's anticipated domestic water demand of 25'0 GPM can be accommodated by a 6 -'inch sanitary sewer siphon. However, due to the potential for future development west of the Project, the City believes that the use of an 8 -inch and a 10 -inch sewer siphon may be required for such future development. Consequently, Developer shall install .611., 8" and 10" sanitary sewer siphons under- Uvas Creek during Phase 1 of the Project and shall grant a 30 -foot sanitary sewer easement to the City upon completion thereof. The cost of installing the 8 -inch and the 10 -inch sanitary sewer siphons based on the City's then current cost schedule shall be reimbursed to Developer by the City if, within fifteen (15) years from the date hereof, the City receives any fees from third parties for connecting to the sanitary sewer system utilizing any of the siphons installed by Developer. 1.7. Traffic Improvements. Developer and the City agree that the following improvements shall be required of the Developer now and in the future: (A) Theme Park Development. Developer has designed and pre- engineered the entrance to the Project from Hecker Pass Highway (State Highway 152) to accommodate signalization. Developer will, at its sole cost and expense, signalize this intersection when Caltrans or the City warrants that it is required and approves the Construction thereof. Developer shall diligently pursue such approvals, at Developer's cost. In consideration of such commitments, Developer shall not be required to make any additional traffic related improvements during the construction of Phase 1. (B) Mitigation Measures. Developer and City recognize and acknowledge that the impact of future phases of development on traffic related issues is unclear and uncertain at this time. Specifically, the parties have determined that because of such uncertainty, the implementation of Mitigation Measures 16 and 17 may or may not be appropriate and agree that (i) upon completion of Phased (and the monitoring of traffic resulting therefrom), the City and Developer shall meet and design and Developer shall thereafter implement prior to commencement of construction of any subsequent Phase, subject to standard. City environmental processes, reasonable measures to RPFA Development Agreement - Page 8 mitigate known and anticipated traffic problems, and (ii) upon completion of each of Phases 2 and 3 (and the monitoring of traffic resulting therefrom), the City and Developer shall meet and design and Developer shall thereafter implement, subject to standard City environmental processes, reasonable measures to mitigate known and anticipated traffic problems. 1.8. Storm Drain Construction and Installation. Because Developer has widened Uvas Creek to the 100 year flood level, installed rip -rap for stream bank erosion control along the length of Uvas.Creek within the Project and obtained all Fish & Game and Army Corps of Engineers permits required therefor, no additional storm drainage improvements shall be required by City for completion of the Project. Because of the completion of these improvements, Developer shall not be required to pay any City storm drain fees in connection with Phase 1 of the Project. Any additional work required by other governmental authorities shall be implemented by Developer at Developer's cost. 1.9. Public Improvement and Other City Fees. Public improvement fees and other fees associated with the development and construction of the Project shall be calculated and charged to Developer as follows: (A) Sewer and Water Development Fees. Sewer and water fees for any portion of the Project shall be payable when Developer .applies for a permit to' connect such portion of the Project to the City's water and sewer systems. City and Developer agree that Developer has already paid for 22,500 gpd of sewer capacity. Any additional sewer development fee, water development fee or reimbursement for the Project's share of the sewer connection fees paid in connection with the Country Estates project which has been or is being developed in the vicinity of the Project, shall be calculated based on the then current fee schedule. (B) Traffic..Impact Fees. With respect to traffic impact fees, Developer and City agree that the Project is unique due to the uncertain level of traffic impact associated with its usage from time to time. Consequently, Developer and the City hereby agree that in consideration of Developer's commitment to signalization of the Project entrance.and annexation of the Property as herein provided, there .shall be no traf f ic. impact -fees levied or assessed in connection with the construction of Phase 1. The parties agree, however, that the actual traffic generated upon completion of Phase 1 of the Project, based on the actual operation of the Theme Park, shall be monitored at Developer's cost pursuant to a monitoring program approved by City to determine which commercial or other category (low or high traffic generation or other then applicable categories) is applicable, and Developer agrees to pay the HPFA Development Agreement - Page 9 standard City traffic impact fees for Phase 2 based on the traffic generation category determined as the result of ,such . monitoring, subject to this subsection below. Similarly, the actual traffic generated upon completion of 'Phase 1 and 2, based on the actual operation of such Phases, shall be monitored at Developer's cost pursuant to a monitoring program approved by City to determine which commercial or other category (low or high traffic generation or other applicable categories), is applicable, and Developer agrees to pay_ the standard City traffic impact fees for Phase 3 based on the traffic generation category determined as the result of such monitoring, subject to this subsection below. Notwithstanding the foregoing, to the extent traffic generation categories for proposed uses for Phase 2 or Phase 3 are determined by City to conform to then - existing traffic generation categories, City shall have the right to determine the appropriate traffic impact fees for Phases 2 or 3 without regard to traffic monitoring results for completed Phases. (C) Future Public Improvement Fees. Fees for future phases of the Project, including, without'limitation, sewer, water, police 'and fire impact fees and storm drainage development fees, shall.be based on the City's then existing fee schedules. 1.10 Improvement Agreements and Deferred Improvement Agreements. Developer- acknowledges that this Agreement is not a substitute. for nor shall it be construed -as having been entered into in lieu of customarily required City improvement agreements or deferred improvement agreements (collectively, "Improvement Agreements ") with respect to any and all public improvements to be developed or constructed by Developer as herein provided. All such agreements shall be entered into by Developer upon the earlier of final map approval or thirty (30) days after request by the City for such agreements, and shall be in substantially the form then being required by City in connection with similar public improvements. 2. QUALIFIED APPLICANT. The Developer represents and warrants that it has the full power and authority to execute this Agreement and to enter into and perform each covenant and condition hereof as the legal or equitable owner of the Property. 3. EFFECTIVE DATE; TERM. 3.1. Effective Date. This Agreement shall be dated and the obligations of the parties hereunder shall be effective thirty (30) days subsequent to the date on which the Enacting Ordinance is approved by the City Council, as specified in the Recitals above. After the Enacting Ordinance takes. effect pursuant to Government Code §36937, HPFA Development Agreement - Page 10 and not later than ten (10) days thereafter, the City, by and through its City Council, and Developer shall execute . and acknowledge this Agreement,. and thereafter the City Clerk of the City of Gilroy ( "City Clerk ") shall cause this Agreement to be recorded in the Official Records of the County of Santa Clara, State of California. The cost of recording this Agreement shall be borne by Developer. 3.2 Operative Date. The Agreement shall become operative-on the date specified in Government Code §65865. (A) Annexation of the Property; Termination. In the event the Property is not annexed into the City on or before the date that is twenty -,four (24) months after the effective date of this Agreement , this Agreement shall terminate, unless extended by mutual written agreement between Developer and the City. 3.3. Term. The "Term" of this Agreement shall be for a period of fifteen (15) years, unless sooner terminated as herein provided, and shall commence on the effective date of the Enacting Ordinance. 4. GENERAL DEVELOPMENT OF THE PROJECT. 4.1. Annexation of Property. The City shall cooperate with Developer in timely processing the annexation of the Property before all administrative and legislative bodies, provided that Developer shall reimburse City for all time expended at the request of Developer for such assistance at the then rates charged by the City for such services. 4.2. Subdivision and Parcelization of Property. (A) The City agrees to promptly process, in accordance with the City's normal procedures and requirements, including all normal dedications and requirements consistent with the California Subdivision Map Act, any and all applications filed by the Developer for subdivision, lot line adjustments, parcelization or. other similar applications relating to the Property reasonably required in order to develop and complete the Project. 4.3. Buildincr Permits and Other Approvals. The City shall timely process all of the -building - permits and other approvals,. if any, reasonably required in order for the Developer to complete Phases 1 and 2 of the Project in accordance with the City's normal procedure and requirements and the terms and conditions of this Agreement. 4.4. Other Governmental Permits. City shall cooperate with Developer in its endeavors to obtain such other permits and approvals as may be required from other HPFA Development Agreement Page 11 governmental or quasi- governmental agencies having jurisdiction over the Project (such as public utilities or utility districts) for the development of, 'or provision of services to, the Project. Developer agrees to reimburse City for all time expended at the request of Developer for such assistance, at the then existing rates charged by the City for such services. 4.5. Exactions.. In connection with the development and construction of Phase 1, the City agrees that it shall not require the construction of any improvements, the payment of any fees, or the granting of any other benefits to the City, other than the "Public Improvements" and fees described herein and any normal permits or processing fees for applications filed by Developer in connection therewith. 4.6. General Standard of City Review. In connection with any approval which the City is permitted or requested to make under this Agreement or its Ordinances relating to Phase 1 or 2 of the Project, City agrees that it shall process requests for approval in accordance with the normal processes undertaken by the City from time to time. As used in this Agreement, "Ordinances" shall mean the ordinances, resolutions, codes, rules, regulations and official policies of City governing the permitted uses of land, governing density, and governing design, improvement . and construction standards and specifications applicable to the development of the Property. 4.7. Operating Memoranda. The parties acknowledge . that the provisions of this Agreement require a close degree of cooperation between City and Developer; and that the development of the Project hereunder may demonstrate that changes are appropriate with respect to minor design details. The parties desire, therefore, to retain a certain degree of flexibility with respect to the details of the Project development which are not of a material nature. If and when, from time to time during the Term of this Agreement, the parties find that such changes or adjustments are necessary or appropriate, they shall effectuate such changes or adjustments through operating memoranda approved by the parties, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed and amended from time to time as necessary, with further approval by ._.Ci.ty...__and.__Developer. No such operating memoranda shall require prior notice or hearing and in the case of City such operating memoranda may be acted upon by the City Administrator of the City of Gilroy ( "City Administrator "). 4.8 Consistency with Project EIR. Developer shall develop and construct the Project consistent with the HPFA Development Agreement Page 12 Project EIR, including all mitigation measures required by the Project EIR, subject to Section 1.7(B). S. SPECIFIC CRITERIA APPLICABLE TO DEVELOPMENT OF THE PROJECT. 5.1. Applicable Ordinances And Approvals. (A) Ordinances Affecting Phase 1. Upon annexation of the Property, the Existing City Ordinances, and any changes or additions thereto to the extent relating to building, fire and health and safety or subdivision codes or requirements, shall be the Ordinances which shall govern the development and construction of improvements within Phase 1 of the Project. "Existing City Ordinances" means the Ordinances in effect as of the date of this Agreement, including those enacted by the Existing City Approvals. (B) Ordinances Affecting Phases 2 and 3. Any an a subsequent City Approvals with respect to Phases 2 or 3 of the Project, including the City Approvals under the provisions of any Ordinances governing the permitted uses of land, those governing the density, design, improvement and construction standards and specifications applicable to Phases 2 or 3 of the Project, shall be based on Ordinances in effect at the time such approvals are obtained; including then existing City imposed fees and charges with respect to any such subsequent applications for development and construction within the Property. (C) Government Code Provisions. Consistent with the provisions of Government Code §65866, the parties understand and agree that nothing herein provided shall prevent the City, in subsequent actions applicable to the Property, from applying new Ordinances,'not inconsistent or in conflict with this Agreement or from denying or conditionally approving any subsequent Project application on the basis of such existing or new Ordinances. Notwithstanding the foregoing, in the event of a fire or other casualty, requiring the reconstruction of more than fifty percent (5011) of any building previously constructed hereunder, nothing herein shall prevent City from applying to such reconstruction all. requirements of City's Building Code and other construction or health and safety related standards and specifications then in effect. 5.2. Governing Approvals. Notwithstanding the provisions of Section 5.1 hereinabove, the General Plan designation and the zoning designation of each of the parcels comprising the Property, shall not be modified, by General Plan amendment or otherwise, without the express written consent and approval of both the Developer and the City. As to Phase 1, the density and intensity of use, the maximum height and size of all buildings, the provisions for HPFA Development Agreement - Page 13 reservation or dedication of land for public purposes and the location of public improvements, including all other terms and conditions relating to the development anal construction of Phase 1 of the Project, shall be governed by the provisions of Section 5.1(A) and this Section 5.2 and the Existing City Approvals. Subject to the first sentence of this Section 5.2, Phase 2 and Phase 3 shall be subject to the Ordinances in effect at the time an approval is sought, including without limitation those Ordinances relating to density and intensity of use, the maximum height and size of all buildings, the provisions for reservation or dedication of land for public purposes and the location of public improvements. (A) Existing County Approvals; Sunset Provision. Developer and ty agree an o ther provision of this Section 5..2, that any and all approvals obtained by Developer from the County which are in full force and effect as of the date -of annexation shall lapse and no longer be valid thirty -six (36) months subsequent to the date of annexation. As to any County approvals which lapse prior to annexation or which lapse thirty-six '(36) months after annexation, Developer shall be required to obtain any and all approvals required to complete the 'improvements which were the subject of such approvals from the City. (B) Acceptance of Pre- Existing Plans -and Improvements. For a period of thirty -six' (36) months after the date of annexation, Developer shall have the right to complete all improvements for which all County approvals necessary to legally allow construction of such improvements (with the sole exception of building permits). have been obtained and remain valid 'and effective at the date of annexation, without any changes, modifications or additions from City, provided that: (i) as to such improvements which do not have valid County building permits in effect on the date of annexation, the City agrees to grant such building permits, subject to normal fees and processing procedures then in effect, and provided that such improvements conform to the City's then existing building, fire and health and safety codes and applicable State Laws; (ii) as to such improvements which have valid County building_ permits. -in.-.e-ffect on the date of annexation, all such improvements shall either have been or will be inspected by the County and the County shall be the responsible agency for issuing all notices of completion, building permit sign offs and other approvals customarily issued by the County as a precondition to the use and occupancy of such improvements; and HPFA Development Agreement - Page 14 (iii) as to such improvements for which City grants building permits, ' then all such improvements shall be inspected by the City and the City shall be the responsible agency for issuing all notices of completion, building. permit sign offs and other approvals customarily issued by the City as a precondition to the use and occupancy of such improvements. City shall be entitled to charge Developer a reasonable fee for performing the services described in this Section 5.2 (B) . (C) _Water and Fire Fighting Requirements. Developer acknowledges and agrees that the City water system will be designed to provide not more than five hundred (500) gallons of water per minute to the Project, and that City shall not be obligated to provide more than, and City shall have no liability for failing provide more than, five hundred (500) gallons of water per minute to the Project in total at any given time. Developer acknowledges that current fire code requirements for a structure calls for the. availability of one thousand five hundred (1,500) gallons per minute of fire flow for the structure. Developer represents and warrants ,to City that Developer will provide an adequate fire protection system on site for the Project, as determined by the City Fire. Marshall, including without limitation a water storage tank and booster pump capable of delivering sufficient fire flow to Project structures in accordance with code requirements. Developer agrees to record, at the date of annexation, a restrictive covenant against the Property, in form and substance satisfactory to City, prohibiting the use of more than five hundred (500) gallons of water per minute from the City's water system and requiring the maintenance of an adequate fire protection system on -site for the Project, as required by this Section 5;2. The restrictive covenant shall survive expiration or sooner termination of this Agreement. 5.3. Easements; Abandonments. City shall. cooperate with Developer in connection with any requirements for abandoning existing •public utility or other public easements and public facilities and the relocation thereof, or the creation of any new public easements within the Property necessary or appropriate in connection with the development of the Project or with respect to adjacent properties that may - become -,a part of the - Project in the future, if any; and if any such easement is owned by City gr- an agency of City, City or such agency shall, at the request of Developer, take such action and execute such documents as may be reasonably necessary to abandon existing public easements and /or create new public easements or relocate them, as reasonably necessary or appropriate in connection with the development of the Project. Any such action on the part of the City shall be undertaken at the expense of HPFA Development Agreement - Page 15 Developer. In the event existing public utility or other public easements and public facilities are relocated, the cost of relocation of any existing improvements located therein or thereon shall be at the expense of the Developer. 6. CONSTRUCTION OF IMPROVEMENTS. 6.1. Construction of Public Improvements. Prior to the commencement of work on those Public Improvements to be constructed by Developer, Developer shall submit to the City Engineer of the City for approval plans and specifications for the Public Improvements. Except as otherwise provided herein, Developer shall be responsible for all costs and expenses associated with the construction or installation of the Public Improvements described in such plans and specifications. Upon completion by Developer of construction of the Public Improvements to the satisfaction of City, Developer shall assign, convey, deliver and transfer title to the Public Improvements to the City, who shall thereafter be and remain responsible for the maintenance thereof. Developer shall warrant the installation and construction of said Public Improvements against the results of faulty materials or workmanship, and maintenance and repairs resulting from any such faulty materials or workmanship, for a period of one year from and after the date of the completion by Developer and acceptance of same by City. Thereafter, City shall be solely responsible for the maintenance and repair of those Public Improvements that are completed in accordance with this Agreement and City standards, including without limitation those improvements that are constructed and installed within nights -of -way or easements dedicated to and accepted by the City. 6.2. Bonds and Insurance. Prior to the .issuance of any permits or approvals for the construction of the Public Improvements, Developer or ' Developer's contractor shall provide City with a faithful performance bond and a labor and materials bond, each in an amount and form required by City, or such other improvement security forms as may be acceptable to City. Also prior to issuance of any permits or approvals for the construction of the Public Improvements, Developer or Developer's contractor shall obtain insurance policies covering public liability, worker's compensation and property damage on terms and in an amount acceptable to City.. City shall be named as an additional insured on all such policies. Developer shall deliver proof of insurance coverage to City prior to issuance of any permits-or approvals for the construction of the Public Improvements. The insurer shall agree to give City thirty (30) days prior notice of cancellation or material change of any policy required under this Section. HPFA Development Agreement - Page 16 6.3. Indemnity. Developer shall defend through counsel approved by City (which approval shall not be unreasonably withheld), indemnify and hold harmless City, and City's officers, representatives, agents and employees, against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation ,attorneys' fees, arising or resulting directly or indirectly from any act or omission of Developer or Developer's employees or agents, including without limitation all claims relating to injury or death to any person or damage to any property, except to the extent caused by the City or any of City's officers, representatives, agents or employees. 6.4. Construction of Phase 1 Improvements. Developer shall have the right, without any further approvals from the City other than the issuance of building permits required to be issued by City for new construction, but subject to the requirements of other governmental authorities having jurisdiction., to construct and upon completion in accordance with all governmental requirements to thereafter occupy and operate Phase 1 of the' Project, as herein described., Building permits required to be issued by City for the Phase I Improvements pursuant to this Agreement shall be, issued by the City, so long as such improvements Conform to the City's building, fire and health and safety codes in existence at the time of permit issuance, subject to applicable State Laws. 7. ANNUAL REVIEW PROCESS. 7.1.• Annual _Review. City and Developer shall annually review this Agreement, and all actions taken pursuant to the terms of this.Agreement with respect to the Project. Such annual review shall be undertaken in accordance with the provisions of this Section 7. 7.2. Develoner.'s Submission. Not less than thirty. (30), nor more than sixty (60) days prior to the first (1st) anniversary date of this Agreement, and each anniversary. date thereafter, Developer shall submit to the Community Development Director of City ( "Community Development Director ") a letter setting forth Developer's good faith compliance with the terms and conditions of this Agreement. Such letter shall- be accompanied by such documents and other information as may 'be reasonably necessary and available to Developer to enable the.Community Development Director to undertake annual review of Developer's good faith compliance with the terms of this Agreement, and shall also state that such letter is submitted to City pursuant to the requirements of section 65865.1 of the Development Agreement Statute, and the Development Agreement Resolution. HPFA Development Agreement - Page 17 7.3. Report on Compliance. The Community Development Director shall review the Developer's submission to ascertain whether Developer has complied in good faith with the terms of this Agreement_ Upon request of the Community Development Director, Developer shall furnish such additional documents or information as may be reasonably required and available to Developer- to enable the City to make and complete review hereunder. Upon completion of review, the Community Development Director shall issue to the City Council a report of his or her findings. 7.4. Findincr of Noncompliance. If the City Council finds that the Developer has not complied in good faith with the terms of this Agreement, it shall specify in writing to the Developer the basis on which the Developer has failed to comply. If the areas of noncompliance so specified are not perfected within the time required by Section 9.1, then this Agreement shall be subject to modification or cancellation pursuant to this Agreement and the appropriate provisions of the Development Agreement Resolution and the Development Agreement Statute. A determination hereunder of noncompliance by Developer shall specify in reasonable detail the grounds therefor. 7.5. Miscellaneous Recruirements_in.Connection With Annual Review. All costs incurred by City for the annual review conducted hereunder shall be borne by Developer, including all costs for City's personnel, attorneys and consultants. PERMITTED DELAYS; SUPERSEDURE BY SUBSEQUENT LAWS. 8.1 Permitted Delays. In addition to any specific provisions of this Agreement, performance by either party of its obligations hereunder, other than the payment of money_, shall be excused during any period of delay caused at any time by reason of acts of God or civil commotion, riots, strikes, picketing, or other labor disputes, shortages of materials or supplies, or damage to work in process by reason of fires, floods, earthquakes, or other casualties, restrictions imposed or mandated by governmental or quasi - governmental entities, enactment of conflicting Laws (including new or supplementary environmental regulations), litigation, acts or neglect of the other party, or any other cause beyond the reasonable control of any party hereto. Each party shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. As used in this Agreement, the term "Laws" means all statutes, ordinances, orders, requirements, laws, rules and 'regulations of any governmental or quasi- governmental authority now or hereafter in effect. HPFA Development. Agreement - Page 18 8.2. Supersedure by Subsequent Laws. If any state or federal Law, made or enacted after the date of this Agreement, prevents or precludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement. shall, to the extent feasible, be modified or suspended, as may be necessary to comply with such new Law. Immediately after enactment of any such new Law, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. If such modification or suspension is infeasible in Developer's reasonable business judgment, then Developer shall have the right to terminate this Agreement by written notice to the.City. No such termination shall affect Developer's obligations under any Improvement Agreements entered into with respect to the Project. 9. EVENTS OF DEFAULT; REMEDIES• TERMINATION, ATTORNEYS' FEES. 9.1. Events of Default. Subject to any extensions of time by mutual consent in writing, and subject to the provisions of Section 8.1 regarding permitted delays, any failure by either party to perform any material term or provision of this Agreement shall constitute an Event of Default, (i) if such defaulting party does not cure such failure within thirty (30) days following" notice of default from the other party, where such failure is of a nature that can be cured within such thirty (30) day period, or (ii) if such failure is not of a nature which can be cured within such thirty (30) day period, the defaulting party does not within such thirty (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 default given hereunder shall specify in reasonable detail the nature of the failures in performance which the noticing party claims constitutes the Event of Default, in accordance with the terms and conditions of this Agreement. During the time period herein specified for cure of a failure of performance, the party charged therewith shall not be considered to be in default for purposes of a termination of this Agreement, provided that during such period of cure, City shall not be prohibited from bringing suit for injunctive or other equitable --relief, --nor - shall City be required to issue any permits or approvals pending Developer's cure. Any notice of noncompliance given pursuant to Article 7 shall constitute a notice of default for the purposes of this Article 9. 9.2. Limitation of Remedies. Except, as expressly provided in this Section 9.2 below, upon the occurrence of an Event of Default, the non- defaulting party shall only HPFA Development Agreement - Page 19 have. the right to commence proceedings in the nature of specific performance, injunctive relief, mandamus, or similar equitable remedies, it being the express intention of the parties hereto to waive each party's rights to bring an action at law to recover damages of any kind or nature or to compensate the non - defaulting party for any detriment proximately caused by the defaulting party's failure to perform its agreements, obligations or undertakings hereunder, or otherwise arising out of the Event of Default, or which in the ordinary course of things would be .likely to result therefrom. In addition, upon the occurrence of an Event of Default which is not cured within the time required by this Agreement, the non - defaulting party shall have the right to elect to terminate the Agreement. The limitation on remedies described in this Section above shall not apply with respect to express, payment obligations described in this Agreement, nor to any indemnification, defense or hold harmless obligations expressly set forth in this Agreement. 9.3. Waiver; Remedies Cumulative. Failure by any party, to insist upon the strict performance of any of the provisions of this Agreement by any 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 any 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 any party to take any action with respect to such Event of Default. No express written waiver of any Event of Default shall affect any other Event of Default, or cover any other period of time, other than any Event of. Default and /or period of time specified in such express waiver. One or more written waivers of an Event of Default under any provision of this Agreement shall not be deemed to be a waiver of any subsequent Event of Default, and. the performance of the same or any other term or provision contained in this Agreement. Except as provided in Section 9.2 above, all of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. 9.4. Litigation. Expenses. (A) Payment to Prevailing Party. If any party brings an action or proceeding (including, without limitation, any cross- complaint, counterclaim, or third- party claim) against the other party by reason of an Event of Default, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit, including but HPFA Development Agreement - Page 20 not limited to reasonable attorneys' fees and costs, which shall be payable whether or not such action is prosecuted to judgment. (B) Scope of Fees. Attorneys' fees under this Section 9.4 shall include reasonable attorneys' fees on any appeal, and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. 9.5. Effect of Termination. If this Agreement is terminated on account of an Event of Default,• such termination shall not affect any right or duty emanating from City entitlements or Approvals with respect to the Property approved concurrently or subsequently to the approval of this Agreement, but the rights, duties and obligations of the parties hereunder shall otherwise cease as of the date of such termination; except that Developer's indemnity, defense and hold harmless obligations shall survive termination of this Agreement, and except that Developer shall not be relieved of any of its obligations under any Improvement Agreements executed by Developer in connection with the Project. No termination of this Agreement shall prevent Developer from completing and occupying buildings or other improvements to which Developer has vested rights to do so by law independently of and without regard to this Agreement, but City may take any action permitted by law to prevent, stop or correct any violation of law occurring during and after construction, and Developer or any tenant shall not occupy any portion of the Project, or any building not authorized by a previously issued certificate of. occupancy or other governmental authorization allowing occupancy of the improvement. 9.6. Estoppel Certificate. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, and (ii) this Agreement has not been amended or modified either orally or in writing, and if so amended, identifying the amendments. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. The City Administrator shall have the right to execute any certif.cate..requeste.d by Developer hereunder. The parties acknowledge that a certificate hereunder may be relied upon by transferees and Mortgagees. Neither* party shall be liable to the other party in any manner for damages or otherwise on account of any information contained in an estoppel certificate, notwithstanding the omission for any reason to disclose correct and /or relevant information, but such party shall be estopped 'from asserting any right or HPFA Development Agreement - Page 21 obligation or utilizing any defense which contravenes or is contrary to such information. 10. MORTGAGE PROTECTION: CERTAIN RIGHTS OF CURE. 10.1. Mortgagee Protection. This Agreement shall be superior and senior to.any lien placed upon the Property, or any portion thereof, including the lien of any Mortgage. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith, and for value, but 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, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. As used in this Agreement, "Mortgage" means a mortgage, deed of trust, or other financing transaction in which the Property, or a portion thereof or an interest therein, is pledged as security, contracted in good faith and for fair value. As used in this Agreement, "Mortgagee" means the holder of the beneficial interest under a Mortgage. 10.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 10.1 above, no Mortgagee shall . have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the City's Ordinances, all of which shall be subject to the terms of this Agreement and applicable Laws. 10.3. Notice of Default to Mortgagee; Right of Mortgagee to Cure. (A) Notice From Mortgagee. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver- to such Mortgagee any notice given to Developer with respect to any. claim by City that Developer has committed an Event of Default, and if City makes a determination of noncompliance under .Section 7...above, ..Ci.t -y _shall l.ikewi.se serve notice of such noncompliance on such Mortgagee; however, failure to do so shall not render invalid any notice properly delivered to Developer. (B) Mortcracree Rictht to Cure. Each Mortgagee shall have the same period to cure or remedy any Event of Default or to commence to cure or remedy the Event of Default claimed or the areas of noncompliance set forth in HPFA Development Agreement - Page 22 the City's notice as is granted to Developer, upon receipt of such notice from City. If the Event of Default or such noncompliance is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall -seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure the Event of Default or noncompliance within the earlier of (i) one hundred eighty (180) days after receipt of notice of noncompliance upon such Mortgagee or (ii) ninety (90) days after obtaining possession. If any such Event of Default or noncompliance cannot, with diligence, be remedied or-cured within such ninety (90) day or one hundred eighty (180) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such Event of Default or noncompliance, if such Mortgagee commences cure during such ninety (90) days or one hundred eighty (180) day periods, and thereafter diligently pursues completion of such cure to the extent possible. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to permit or authorize any Mortgagee to undertake or continue construction or completion of any improvements comprising the Project without first having expressly assumed Developer's obligations hereunder, in the manner specified in Section 11. 11. TRANSFERS AND ASSIGNMENTS. 11.1. Right to Assign. In no event shall the rights, duties and obligations conferred upon Developer pursuant to this Agreement be at any time sold, transferred or assigned, except through a transfer of an interest of Developer in the Property, or any portion thereof. Upon completion of any portion of the Project or any phase thereof, Developer shall have the right to sell, assign or transfer this Agreement as aforesaid, and all of its rights; duties and obligations hereunder, to any Person at any time during the remainder of the Term of this Agreement. Prior to completion of each Phase of the Project and all Public Improvements relating to such Phase, Developer's right to sell, assign or transfer this Agreement to the extent it relates to such Phase, and Developer's rights, duties and obligations hereunder to the extent it relates to such Phase, to any-Person shall be subject to the approval of the City. Such approval shall (a) be subject to City's being provided with adequate financial, -business -and other information concerning the proposed transferee to enable City to exercise its reasonable judgment relating to the proposed transfer, (b) be subject to the transferee's written agreement to be bound by the terms of this Agreement to the same extent as Developer, and (c) not be unreasonably withheld by City. As used in this Agreement "Person" means an individual or legal entity. Notwithstanding the foregoing, Developer shall. have the right to- assign its HPFA Development Agreement - Page 23 interests in this Agreement to a wholly owned subsidiary of Developer provided that (i) such assignment is made in conjunction with the transfer of all of Developer's title to the Property to such wholly owned subsidiary, (ii) such wholly owned subsidiary agrees to be bound by the terms of this Agreement to the same extent as Developer, and (iii) Developer shall not be relieved or released of any liability or obligations under this Agreement and shall be jointly and severally liable with its wholly owned subsidiary for the performance of Developer's obligations under this Agreement. 11.2. Release Upon Transfer-. Upon the sale, transfer or assignment of Developer's rights and interests under- this Agreement under Section 11.1 above, Developer shall be released only as to future accruing obligations under this Agreement with respect to the Property, or the portions or phases thereof so transferred, arising subsequent to the effective date of such transfer if (i) Developer is not then in default under this Agreement, (ii) Developer has provided to City notice of such transfer, and (iii) the transferee executes and delivers to City a written agreement in which (A) the name and address of the transferee is set forth and (B) the transferee expressly and unconditionally assumes all of the remaining obligations of Developer under this Agreement with respect to the Property, or that portion or phase thereof transferred. Except as provided in the prior sentence, Developer shall not be released from any obligations under this Agreement upon the sale, transfer or assignment (whether voluntary, involuntary or by operation of law) .of all or any portion of Developer's rights and interests under this Agreement or to the Project. Developer shall, in any event, give notice to City of any transfer hereunder, disclosing therein the identity of the transferee and such transferee's address. Failure to deliver a written assumption agreement hereunder shall not affect the running of any covenants herein with the land, as provided in Section 11.3 below, nor shall such failure negate, modify or otherwise affect the liability of any transferee pursuant to the provisions of this Agreement. 11.3. Covenants Run With The Land. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, -devisees, administrators, representatives; lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law 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 assigns. All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including, HPFA Development Agreement Page 24 but not limited to, section 1468 of the Civil Code of the State of California. Each covenant to do or refrain from doing some act on the Property hereunder, or with respect to any City owned property, (i) is for the benefit of such properties and is a burden upon such properties, (ii) runs with such properties, and (iii) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and each person having any interest therein derived in.any manner through any owner of such -properties, or any portion thereof, and shall benefit each' party and its property hereunder, and 'each other person succeeding to an interest in such properties. 12. AMENDMENT AND TERMINATION. 12.1. Amendment or Cancellation. Except as provided in Section 8 above with respect to City's annual review or upon the occurrence of an Event of. Default, by Developer that is not cured as herein provided, this Agreement may be canceled, 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 Statutes and the Development Agreement Resolution. Any amendment to this Agreement which does not relate to the Term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation and dedication of land, conditions, terms, restrictions and requirements relating to subsequent discretionary actions, monetary contributions by Developer, or any conditions or covenants relating to the use of the Property, shall require the giving of notice pursuant to Section 65867 of the Development Agreement Statute as specified by Section 65868 thereof, but shall not require a public hearing before the parties may make such amendment. 12.2. Recordation of Amendment. Any amendment or cancellation of this Agreement effected by the parties hereunder 'shall be recorded by the City Clerk as specified in Section 3.1 above not later than ten (10) days after the effective date of the action effecting such amendment or cancellation, which amendment or cancellation shall describe the Property subject thereto. 13. NOTICES. 13_1. .Procedures. Any notice to either 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, to the party.'s, mailing address. The respective mailing addresses of the parties are, until changed as hereinafter provided,'the following: HPFA Development Agreement - Page 25 City: City Administrator City of Gilroy 7351 Rosanna Street Gilroy, California 95020 =6141 With a Copy to: Linda A. Callon Berliner Cohen Ten Almaden Blvd., iith Floor San Jose, California 95113 Developer: Hecker Pass Family Adventure 3050 Hecker Pass Highway Gilroy, California 95020 Attn. Michael A. Bonfante With a Copy to:. Michael P. Groom Groom & Cave 150 Almaden Blvd., Suite 1375 San Jose, California 95113 Either party may change its mailing address'at any time by giving written notice of such change to the other party in the manner provided herein at least ten (10) days prior to the date such change is effected. All notices under this Agreement shall be deemed given, received, made o on the date personal delivery is effected or-, if mailed, on the delivery date or attempted delivery date shown on the return receipt. 14. MISCELLANEOUS. 14.1. Negation of Partnership_ The parties specifically acknowledge that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the parties in the businesses of Developer, the affairs of_City, or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. This Agreement is not intended nor shall it be construed to create any third party beneficiary rights in any Person who is not a party, except as provided with respect to Mortgagees in Section 1.0. 14.2. Approvals. Unless otherwise herein provided, whenever approval, consent or satisfaction (herein collectively referred to as an "Approvals ") is required of a party pursuant to this Agreement, it shall not be unreasonably withheld. The standards, terms and conditions for Approvals under this Agreement shall extend to and bind the partners, officers, directors, shareholders, trustees, HPFA Development. Agreement - Page 26 beneficiaries, . agents, elective or appointive boards, commissions, employees, and other authorized representatives of each party, and each such person shall make or enter into, or take any action in connection with, any Approval hereunder in accordance with such standards, terms and conditions. Notwithstanding the foregoing, the foregoing provisions of this is Section 14.2 shall not apply to Approvals requiring action by the City Council. Unless provision is made for a specific time period, Approval shall be deemed denied if a party has neither approved nor disapproved a written request for Approval within thirty (30) days after receipt of the request for Approval if no-time for approval is stated in this Agreement for such Approval, or within such other time period as may be specified in this Agreement for Approval. 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. 14.3. Severability. Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance and the same shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be. unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement. 14.4. Exhibits. The Exhibits listed in the Table of Contents, to which reference is made herein, are deemed incorporated into this Agreement in their entirety by reference thereto. 14.5. Entire. Agreement. This written Agreement and the Exhibits hereto, and any memoranda entered into pursuant to Section 4.7, 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 memoranda. 14.6. Construction of Agreement. The provisions of this Agreement, the Exhibits hereto and such memoranda entered into pursuant to Section 4.7, shall be construed as a whole according to their common meanings 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 Section, subsection and the Table of Contents hereof HPFA Development Agreement'- Page 27 are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singulcir shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice versa. 14.7. Governing Law. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. 14.8. References: Terminolocrv. Unless otherwise specified, whenever in this Agreement, reference is made to the Table of Contents, any Article or Section, or any defined term, such reference shall be deemed to refer to the Table of Contents, Article or Section or' defined term of this Agreement. The use in this Agreement of the words "including ", "such as" or words of similar import when following any general germ, statement or matter shall not be construed to limit such statement, term or matter to the specific items or matters, whether.or not language of non - limitation, such as "without limitation" or "but not limited to, or words of similar import, are used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the scope of such statement, term or matter. Reference herein to a T1 party", or the "parties ", shall refer to City and Developer, or both, as the context may require. 14.9. Signature Pages. For convenience, the signatures of the parties to this Agreement may be executed and acknowledged on separate pages which, when attached to this Agreement, shall constitute this as one complete Agreement. 14.10. Time.. Time is of the essence of this Agreement and of each and every term and condition hereof. IN WITNESS WHEREOF, the parties have executed this Pre - Annexation Development Agreement as of .the day and year first above written. AUTHORIZED SIGNATURE OF CITY TO AGREEMENT "CITY" ATTEST: City of Gilroy, a municipal corporation By Its Mayor HPFA Development Agreement - Page 28 City Clerk Approved as to Form: By Its City Attorney AUTHORIZED SIGNATURE OF DEVELOPER TO AGREEMENT: "DEVELOPER" Nob Hill General Store, Inc., a California corporation, By: Michael A. Bonfante President By: Rick Rae Chief.Financial Officer HPFA Development'Agreement - Page 29 STATE OF CALIFORNIA ss County of Santa Clara On 1 1996, before me, the undersigned, a Notary Public, personally appeared personally known to me or proved to me on the basis-of--satisfactory evidence to be the persons) whose names) 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. Notary Public of the State of California STATE OF CALIFORNIA :ss County of Santa Clara On 1 1996, *before me, the undersigned, a Notary Public, personally appeared Michael A. Bonfante and Rick Rae, 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. Notary Public of the State of California HPFA Development Agreement - Page 30 EXHIBIT _ "A" DEFINED TERMS PAGE 1. Agreement ................... .........................1 2. Approval( s) ............... .............................26 3. ASA............. .......... ..............................3 4. CEQA ... ............................... ...............5 5. City ..................... ..............................1 6. City Administrator ....... .............................12 7. City Clerk ............... .............................11 S. City Council ............... .................'............5 9. Community Development Director ........................17 10. County :.................. ..............................2 11. Developer ................. ..............................1 12. Development Agreement Statute ..........................3 13. Development Agreement Resolution .......................3 14. EIR ...................... ..............................2 15. Enacting Ordinance .. ... ..............................5 16. Existing City Approvals...... ........................4 17. Existing City Ordinances . ..............:..............13 18. Improvement Agreements ... .............................10 19. Laws ..................... .............................18 20. Mitigation Meas. ures ...... ..............................5 21. Mortgage........... ................. ..............22 22. Mortgagee ................ .............................22 23. Ordinances .............. .............................12 24. Person ............. .... .............................23 HPFA Development Agreement -. Page 31 25. Phase 1 ................ ................................. 1 26. Phase 2 .................. ..............................2 27. Phase 3 ......................... .....................2 28. Phase I Improvements ............. ..1 29. Project ............. ..............................1 30. Project EIR ............... ..............................5 31. Property ................. ..............................1 32. Public Improvements ...... ..............................5 33. Remaining Phase I Improvements .........................4 34. Term ..................... .............................11 35. Theme Park ................ ..................'...........1 HPFA.Development Agreement - Page 32 EXHIBIT "B" LEGAL DESCRIPTION OF PROJECT [TO BE ATTACHED] . HPFA Development Agreement = Page 33 D t eua•r I� -------------------=----- - - - - -• AP''RdVED IN I /.• .. •"aw - - :o �O6 O jl `�'! (� , . • ®111 r// I • u` J R i 1 `' LEGEND P A r•tw nrre. . s iSQsio..► � � , � die to t r� 1AMjT,,TgQ r•0N OVED S. t O N•• r / `aI a.�. l4 •�;j • lac ..,..e:..,n,t ` _ / ' � • - �/ / '- _ �.�'•�• it I r Iw u t r •n rs '',r \•• _• d - '! �a,,•y n ' �� aw awn rr.n•t roa 1 i fr4 (A R V • •re.r. n,"r• 9 / u,w nr.an •.are w. = J axur e,s r"e.m ° w • • ' • w *rat raa � / I� raa.a.a•rr .n 1 `4� - n • �' � / /•p " -.. ,, .r.. art ?� nasar. m �•—�' ©wm,e Coate , � !� � � � -A WS ,� ♦��, ..:;'a.o Wfi,rrn ",. t \i « •.r..w l.an . •� M __ .11j• erte.0 rrlm I I.� -1• W 1 O HMO i"MCI n WY nr,�•a.•a Y —�- P SET E nr./enai•rwm..enw a rsr.•Yrwr�r r PRO L EXPECTED IN I ) �;* n san •s /e.+e.at y 4 and san, •u�..••t n.••e•, tYr• . C• . •rtle -q ttuw,w ai�e . uenre.n. �:� I. r.. -�; `� 1 •t•ro, lturtrrr ! _ L Y. —Ca surer e• — _...'THEME PARK' USE PERMIT APPROVED i II IN COUNTY '•' n q etr m®I ®_ PROJECT' ANNEXATION BOUNDARY Q — rr.een rrr w.ar.ui I� JUN[ 14 logo Rv. -- suaetmre 1--y Y1W -- ,prwerm... )... . , a. • • •. tree•.. . SITE PLAN , 'THEME PARK• - APPROVED IN COUNTY CD - � -- - :MASTER PLAN' - b @ NECKER PASS : A FAMILY ADVENTURE a �— t i etsrie ..e.auaa.aaraa.e..a".arihow. _ June' 14, 1996 HECKER PASS - A FAMILY ADVENTURE (Nob Hill Family Park) Santa Clara County Approvals TABLE OF CONTENTS: Document Date 1. STAFF REPORT for USE PERMIT for NOB HILL FAMILY FARK June 4, 1987 County File No.: 1866- 69- 19- 85P -85A This report presents the description and conditions of approval for Nob Hill Family Park (Hecker Pass - A Family Adventure). It was prepared by the County's Planning Staff after an extensive review of community input, agency reviews, traffic and sewer reports, a conceptual program and master plan and an EIR. Use Permit was Approved. 2.. ARCHITECTURAL AND SITE APPROVAL June 12, 1987 County File No.: 1866- 69- 19 -87G Nob Hill. General Foods, Inc. This letter confirms the approval for a Master Plan grading permit application for construction of Nob Hill Family Park The property situated on Hecker Pass Highway between Burcheil Rd. and Rancho Vista Drive. SS zoning district. Parcel size: 170 acres. 3. USE PERMIT for NOB HILL FAMILY PARK June 19, 1 987 (Hecker Pass - A Family Adventure) County File No.: 1866 69 - 19 - 85P, 85A, - EIR This document granted Nob Hill General Foods, Inc. the permission to develop a parcel of land (170 acres) on the south side of Hecker Pass Highway into a family park and recreational center. This approval con- tained numerous conditions of approval and required reviews along the development process. 4. ARCHITECTURAL AND SITE APPROVAL June 26, 1987 County File No.: 1866 - 67 -19 - 85A, 87G This document covered the same Parcel and Use as the Use Permit. However, it adds additional conditions that relate specifically to the design and construction of the site such as access, setbacks, visual impact, drainage, landscaping etc. E N&: 'PROJECT' 'HECKER PASS - A FAMILY ADVENTURE* 124S AC - NEE ANNEXATUM PAR CEL! Wl"I 1 LOCATCN RIAP PADA PROPERTY SITE PLAN MASTER PLAN HECKER, PASS - A'FAMILY ADVENTURE JUNE S. Uu JUNE lo- lots Rk r Jr. 5. LETTER FROM RANCHO TSTA COURT HOME OWNERS August 2, 1987 A letter addressed to Mr. Mic>z--1 Bonfante This letter expressed the concerm and recommendations to minimize the impact that the operation offle Park would have on near by neighbors. 6. MINUTES OF MEETING "A= COUNTY PLANNING STAFF July 18, 1988 County File No.: 1866 - 69 -:9 - 85P - 85A These minutes record the discus Eon of various developments at the park. including minor modifications. =:as meeting addressed the complexity of the design and de-, opment of the park. It also addressed the County's Staff's recommend,-dons for monitoring the development, modifications and the intent of the Use Permit and ASA permits. 7. SUMMARY OF NOB HILL F_1.NULY PARK October 5, 1988 for Use Permit MODIFICATION submittal This is descriptive summary of tn= Park's program development within the , Use Permit conditions. It sumrnz: zes the size of the park, the theme, the various landscaped areas, and the _saracter and quality of the park. 8. USE PERMIT MODIFICATI�i REQUEST October 24, 1988 Cover letter to Raffi Sarkisian. Central Permit Office This letter accompanied the appii ton for the Use Permit Modification and other supporting documents. Ir describes the main changes proposed to the Site Master Plan including: adding landscaped buffers, moving the parking further away from Heck- Pass Hwy, and the moving of certain features within the Park proper. 9. ENVIRONMENTAL INFORM -ATION FORM October 24, 1988 for Use Permit MODIFICATk�t submittal This form accompanied the appli=rion for the Use Permit Modification. It responded to the various envirsmental concerns raised by making the changes to the Site Master PIan. 10. STAFF REPORT for MOD11 _CATION to USE PERMIT • February 2,1989 County File No.: 1866 - 69 -:3 - 85P - 85A - 88P - 88A - 88G This report describes the propose: modifications to the Site Master and Conditions of Approval. T"rLs Modification was Approved. I. ARCHI.TECTURAL AND S-E APPROVAL February 9, 1989 County File No.: 1866 - 69 - _? - 87A - 88A This letter confirms the approval :f the Use Permit Modification by the Architectural and Site Commk:ee including conditions for a Master Grading plan and additional mina modifications to the site plan and program. tv :L I2:'ARCMTECTURAL AND SITE APPROVAL <.- County File No.: 1866 - 69 - 19 - 88P - 89A :This letter confirms the approval of additional site improvements such as. the on -site road system, the parking areas and a storage area. -13 ARCHITECTURAL AND SITE APPROVAL - County File No.: 1866 - 69 - 19 - 91A This letter confirms the approval of a number of signs at the park including thre Main Entry Sign off Hecker Pass Hwy. 14: MEETING NOTES: HECKER PASS - A FAMILY ADVENTURE Attendees: Rans Bratton, S. C. Co. & Leo Tirado, Sugimura & Assoc. These meeting notes accompanied the application for the ASA review of STAGE II MORE DEFINITIVE MASTER PLAN. It describes in more ".&tail the development of the park's program and the identification of certain family rides to compliment the garden setting of the park's theme - Trees.. 15. ASA' APPLICATION - SITE MASTER PLANS (reduced) including: 1. Master Plan ( Use Permit Approval Feb. 9, 1989) 2. Stage II - More Definitive Master Plan ( ASA for Rides) These drawings illustrate in more detail the specific components of the - Park's Site Plan and Program. 16. ASA STAGE II - MORE DEFINITIVE MASTER PLAN AND FAMILY RIDES Cover letter addressed to Raffi Sarkisian at Central Permit Office County File No.: I866 - 69 - 19 - 85P - 85A - 88P - 88A - 88G This letter accompanied the application and drawings for this ASA review submittal. it summaized the key elements in the Master Plan that had been developed and more specifically identified including the placemeslt of the family rides. August 0, 1989 Ma= 9, 199 1 Nov. s2, 1992 June' 7, =1993 August I7, 1993 17. ARCHITECTURAL AND SITE APPROVAL - PERMIT November 160, 1993 For: Stage II Master Plan and Family Rides County File No.: 1866 - 69 - 19 - 93A2 This permit by the ASA Committee approved the submittal stated above. 18. Modification of : ASA STAGE II - MORE:DEFINITIVE MASTER PLAN AND FAMILY RIDES Letter from Leo A. Tirado to Rans Bratton, Secretary of ASA This letter accompanied by a letter from Mr. Michael Bonfante requests a modification to the previous ASA Permit of November 10, 1993. Ex'"n' I B", I T 0 19. MEMORANDUM - Noise Monitoring Program, Hecker Pass Memo between Art Kaupert and Rans Bratton of Central Permit County File No.: 4548 - 73 - 35 - 93A This-in-house memo provides projected noise impacts to the adjacent park neighbors at Rancho Vista Drive. The recommended monitoring program was included in the Modification to' the ASA Permit 20. MODIFICATION OF ARCHITECTURAL AND SITE APPROVAL FOR STAGE If- MASTER PLAN AND FAMILY RIDES County File No.: 1866 - 69 - 19 - 93A2 This letter requests a continuance for the review of the modification submittal. It also contained a description of the official recommendations and conditions of the approval.. 21. MODIFICATION OF AN ARCHITECTURAL AND SITE APPROVAL FOR STAGE H - MASTER PLAN AND FAMILY RIDES County File.: 1866 69 - 19 - 93A2 This letter requests a continuance for the review of the modification submittal. This request was made because the ASA Committee needed more time to review the impacts of this modification as directed by the Planning Commission. February 9, 1994 February 10, 1994 March 10, 1994 22. MODIFICATIONS: STAGE II MASTER PLAN AND FAMILY RIDES April 14, 1994 County File No.: 1866 - 69 - 19 - 93A2 This document officially granted the requested Modification and specifies the conditions and adjustments to the Master Plan. Subsequent ASA reviews and Building Permits are now issued for Hecker Pass A Family Adventure under the auspicious of these reviews and Permits granted by the Santa Clara County. W EXHIBIT 0 Schedule 1 Identification and Categorization of Phase I Improvements [To be attached] HPFA Development.Agreement - Page 36 A I, RHONDA PELLIN, Deputy City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 974 is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 3rd day of March, 1997, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 10th day of March, 1997. Deputy City Clerk of the City of Gilroy (Seal)