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Home My WebLink AboutAgenda Report - April 4, 2007 L-02AGENDA ITEM L-02 • CITY OF Low COUNCIL COMMUNICATION TM AGENDA TITLE: Ordinance No. 1794 Entitled, "An Ordinance of the City Council of the City of Lodi Adopting a Development Agreement Pertaining to the Development of 151 Acres Located on the West Side of Lower Sacramento Road between the Woodbridge Irrigation District Canal and Vine Street (Westside Project) (Development Agreement GM -05-002)" MEETING DATE: April 4, 2007 PREPARED BY: City Clark RECOMMENDED ACTION: Motion waiving reading in full and (following reading by title) adopting the attached Ordinance No_ 1794. BACKGNOUND INFORMATION: Ordinance No. 1794 entitled, "An Ordinance of the City Council of the City of Lodi Adopting a Development Agreement Pertaining to the Development of 151 Acres Located on the West Side of Lower Sacramento Road between the Woodbridge Irrigation District Canal and Vine Street (Westside Project) (Development Agreement GM -05-002)" was introduced at the regular City Council meeting of March 21, 2007. ADOPTION: With the exception of urgency ordinances, no ordinance may be passed within five days of its introduction. Two readings are therefore required — one to introduce and a second to adopt the ordinance. Ordinances may only be passed at a regular meeting or at an adjourned regular meeting; except for urgency ordinances, ordinances may not be passed at a special meeting. Id. All ordinances must be read in full either at the time of introduction or at the time of passage, unless a regular motion waiving further reading is adopted by a majority of all council persons present. Cal. Gov't Code § 36934. Ordinances take effect 30 days after their final passage. Cal. Gov't Code § 36937. This ordinance has been approved as to form by the City Attorney. FISCAL IMPACT: done. FUNDING AVAILABLE: None required. Rand! Johl City Clerk RJ/jmp Attachment APPROVED: / Blair RP6, City Manager council/cauncom/ordinance2. doc ORDINANCE NO. 1794 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI ADOPTING A DEVELOPMENT AGREEMENT PERTAINING TO THE DEVELOPMENT OF 151 ACRES LOCATED ON THE WEST SIDE OF LOWER SACRAMENTO ROAD BETWEEN THE WOODBRIDGE IRRIGATION DISTRICT CANAL AND VINE STREET (WESTSIDE PROJECT) (DEVELOPMENT AGREEMENT GM -05-002) BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS: SEC11ON 1. The properties subject to this Development Agreement include the following: 151 acres within the Westside Project area located on the west side of Lower Sacramento Road between the Woodbridge Irrigation District canal and Vine Street (Assessors Parcel Numbers 029-380-05, 027-040-01, 027-040-020, and 027-040-030). SECTION 2. The applicant for the requested Development Agreement is as follows: Frontier Community Builders. SECTION 3. The requested Development Agreement is summarized as follows: Development Agreement GM -05-002 is an agreement between the City and the developer, in which the developer agrees to provide certain benefits to the City in exchange for a vested right to proceed with the development consistent with the development approvals. The term "of the Development Agreement is 15 years. The vested right the developer obtains is the ability to proceed with the development as approved and to avoid the imposition of new regulations on subsequent discretionary approvals (i.e. vesting tentative maps) for the development. SECTION 4. The City Council hereby finds that the proposed Development Agreement is consistent with the General Plan land use designation and the zoning for the proposed development. SECTION 5. The City Council, by Resolution No. 2007-48, has certified the Lodi Annexations Environmental Impact Report (EIR) and adopted a Statement of Overriding Consideration for the p{oposed project. SEGIIQN 6. The City Council hereby adopts Ordinance No. 1794 approving the Development Agreement by and between the City of Lodi and Frontier Community Builders, attached herein as Exhibit A. SEC;, ION 7. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a mariner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SEQIIQN 8. Severability. If any provision of this ordinance or the application thereof to any person or circumstances.. is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it 'would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. .. JION 9. This Ordinance was introduced by the Lodi City Council on March 21, 2007, and adopied by the Lodi City Council on April 4, 2007. This Ordinance shall take affect 30 days from and after its adoption. The ordinance summary shall be published in the Lodi News Sentinel, a newspaper of general circulation published and circulated in the City of Lodi. A certified copy of this ordinance is available for review in the in the City Clerk's office located at 221 West Pine Street. Apprgved this 4t" day of April, 2007 BOB J ON Mayor [,- RA IJOHL City Cleric State of California County of Sart Joaquin, ss. I, Randi Johl, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1794 was Introduced at a regular meeting of the City Council of the City of Lodi held March 21, 2007, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held April 4, 2007, by the following vote: AYES: COUNCIL MEMBERS — Hitchcock, Katzakien, Mounce, and Mayor Johnson NOES; COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS —None ABSTAIN: COUNCIL MEMBERS — Hansen I further certify that Ordinance No. 1794 was approved and signed by the Mayor on the date of its passage and the same has been published -pars ant to law. R DI JOHL City Clerk Approved as to Form: D. At R City Attorney 2 ATTACHMENT A WESTSIDE PROJECT DEVELOMENT AGREEMENT OMC1AL_ BUSINESS Docurn*nt entitled #o free recording Ooverirent Code Section 6103 RECORDING REQUESTED BY AND V NEN RE -CORDED MAIL TO: 0":ity of Lodi P, 0 Box 3006 ,odi. CA 95241-1910 Asir ^Av Clerk R'ECORDER'S USE) DRAFT DOCUMENT DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF LODI AND FRONTIER COMMAMITY BWLDERS, INC. FOR FCB WESTSIDE PROJECT fYe1:4 ' r TABLE OF CONTENTS . .. ` 7 C. _,. . - i-- . I ....... ................................................................ Authorization ....................... r raperty ..... .. 3 ...... ........._....... ............................... ........... 1. 3 MProject i✓ubk Hearing.._ ,. .... ....., _. _.. ... ...... .........._.......,..............,............. .......... . 3 Erviromnental Review. _...... ...... ................... ................ ..... ....... ........ 3 Project Approvals ... .. . ..... ....... _... .................. ....................... ..:. 3 Need for Services and facilities.._ : ..... ........................... ......................... ._...-.............. 4-. i,ontribution to Costs of Facilities and Services- ... . Development Agreernept Resolut n Compliance.... .......................................... . ......... 5 Con"tency with 3ene ai and Specific Plan. - ..... ..... ..... . -ea.tion of Career -Oriented Empfby went Opportunities GIREEMENT. ...... _ ..._.........:......................................................... 5 Incorporation of RecitalE _...... .:................................ ..:.................. ........ 5 � n of Property: 1-aerest of Landowner .. ........ 5 neistionship of City and Landowner ..._......................................................... 5 Eifeq*ve ©ole *no Terni _ . _ ........ . .........._...................................................... Effective Dait ............................................ 6 , Term......... ... ... I.. ......... I ......... ... ..............:........ f = ` Automatic Ierrnination Upon Completion and Sale of Residential Lot... . ......... ........ 6 se of Proper:v 6 Rightto Ditvelo _ _ _ ...... .. _ ._...................................................... 6 PermittedUses _ . . .._ ... .................... .. . . ...1.1,........1..1,.............................:. 8 Moratorium Duoiat, Restrictions or Other Growth Limitations ............................................. 8 11 11 ..........................1111... Additional C ridition.. _ 1111...... _ 1 11 1..._ ..... .. 1 T Annexation 4oplicable Rules. Regulations, Fees and Official Policies... _ .........................1111........................ 17 - Rules Regarding Flermittec Uses. .. _....................................._.............. 17 Rules Regarc"rig f�esign and Construction.... .. ...................................................... . Changes in State *r Federal Law. ................... ....... ........................... .......... �... Uniform Codes Applicable........... _ _ 111 1 ....._.................. _........................... ................1111 1 . _ risting Fees; SL--bseqoentiy Enacted Fees, Dedications, Assessments and Taxes............1111. 18 Processirq i�ee5 *id Charges. .. ... _ .............._... ,.......... ........ ... .............._...... 18 : Existing Fees Exeictions and Dedications....._ . ....... ............................ ....................... 19 Subsequent Developnwnt Impact Fees. Exactions and Dedications -ornrmunity Facilities Cktfict ............................................. 2Q Inclusion in C.ornnjunity Facilities District ............................................... ..................... Use of Community Facilities District Revenues ................................................................ Community Facimi*s District for Residential Property - Landowner Financing ....1111.., ....... , processing of Subsea nt Development Applications and Building Permits ........................... 22. -nendrnent or Cancelobor .... ......... 1 111_ .. _ .... .............. ............................... .. Modification Because of Conflict with State or Federal Laws... ... ..... ... ?. Amendmeni �1-y Miytuai Consent.... _.. ... _ ............................................• �insubstantial Arner9krients .--------�'�l_ --� -DOW 4, /mm�woenmeyo,r -� ___________________________ 32 ---' s.%Wllbmwwoy M4ual Cp,nsenx.. ' ..... -...... _.......... ... __ now �enncx Project App,nviols ........ ___......... ____ .... __..... __�� Annual Review. . .... '....... '--.......................... ... ----A.�l ReviewDate .......... _... ........... ___...... % hnMi0onnfReview. --.................... ...... _________� a, S*mffRepmila__. ............ �34, Cowmm-'- ---. -........ -. ... -........ ....... �� emnnQ�-'-------__-_-__________. -.... ... ..... .-' f,. Appeal mvDevmnmn'1110tion.-----'' ..... ...... -..... ... ..................... ......... _.__� '4 [e".- .... ... .----------------' ----'-------------------'---�ao�� ` Emwp"134Wmkmte'--'-- -_-.-__________... ...... .......... _...... ______�.~~' we �t Curer ..... ...... ---- ....... ... ................ ........ .... ---�'�� - -.-- --'- ........ 1U%,--�----------------------------. - - ' ' i83� be%mwh and Ex�'ns�mcf Right toCure- -------------'�� .�SevmbMy, .... ............... ... ........ ......... -'�� Applicabie Law -------------------- � ft'Pems and CqatsmLegal Actions By 2,7 2�\ 'F�a�C�inL�|��T�� ren~�Pn»mmssing ---------- 24 -~- -anMers and -------------'--'--'�7 'mew �Qmm*mem\Runs with OteLand ' '-'---_............... ... ... ____........ __2[ B . ..... -...... Z. /ndmnyn / n '..... '... ----'ua�_ |-summnce ... -...... '--------........ --.......... -^a� Pubk �� nwwr�no��-'.----------��-----'�� ' insurance �----------------------------� ' I Evidence xm/nsu........ _ ......... ....... ____� � eb ` _ Ze, Excuse for Nonpeftrmence .-'-..... -.......... .... ........ ............ - �-� Third PxirlyBeneficiaries. ---�-----�� ` mmllizem.--'.... ........ ..... ........... ... ... .......... m�. ` 2� Form oYAgReement-RNoordation:Exhibits.'----... --... -----.... Fun0�n�a�wnNmcew��--�---�----_ ..... ...... ... --'��``� ----______________�_______�� h Cy�om0m�� -' ' ' ----------�--�-----------------�3�.'� /�� DEVELOPMENT AGREEMENT FCB WESTSIDE PROJECT Th- s Development Agreement is entered into as of this day of . 2007, by ,etween the CITY OF LODI, a municipal corporation ("City"), and, FRONTIER OMMUNIJ Y BUILDERS, INC. k-1andowner"). City and Landowner are hereinafter collectively .-feared is as the "Parties" and singularly as "Party." RECITALS i. A4t1#t2!Uation. To strengthen the public planning process, encourage private ,ari=cipation in comprehensive planning and reduce the economic risk of development, the ;.eg,slat+ure of the State of California adopted Government Code Section 65864, et seq. (thee Development Agreement Statute"), which authorizes the City and any person having a legal or ustabie interest in the real property to enter into a development agreembnt, establishing tale development rights in the Property which is the subject of the development project �:,nic atic T 2. Property Landowner holds a legal or equitable interest in certain real property the City of Lcadi, County of Sar: Joaquin, more particularly described in Exhibit A-1 �G�:rec riereto (the "Property Landowner represents that all persons holding legal or ;Eo a interests in the Property shall be bound by this Agreement. 3 Pr� oiiect. �.ardowner nas obtained various approvals from the City (described in _ietail in Recital 6 relowfor a mixed use project known as FCB Westside (the "Project") r:e cxated on the Property. 4 Public Hearing. On October 25, 2006, the Planning Commission of the City of ct ng pursuant to Government Code Section 65867. held a hearing to consider this Wert and the Planning Commission action has been reported to the City Council. 4 Environfflentg1 Review. On 2007, the City Council certified as n c,.ate and compietE the Lodi Annexation Environmental Impact Report ("EIR") for the r litigation measures were required in the EIR and are incorporated into the Project and t- e i -rnis and conditions of this Agreement, as reflected by the findings adopted by the City ;, v ncurrently wit: this Agreement. 6 Pr2ect MPIR„vals. The following land use approvals {t tether the "Project have beer granted for the Property, which entitlements are the subject of this 6.1. T -e EIR. The Mitigation Measures in the EIR are incorporated into the arc ,nto the terrns and conditions of this Agreement (City Resolution No. 6.2. A Generai flan Amendment (the "General Plan"), (attached hereto as 3ltJI`. E approved by the City on 2007 (City Resolution No- 6,3 i Tire Zoning of the Property (attached hereto as Exhibit B-1) approved by —_ 200' (City Ordinance No. }; 6,4. The Large Lot Tentative Subdivision Map for the Project (attached hereto i=x�:J C,-1 ) to be subsequently considered by the City through a noticed public hearing -cess. 'The parties agree that the large lot subdivision reap included herein is for illustrative roses enly and shall not be effective until approved through a notice public hearing process if approves by the City, the Large Lot Subdivision Map shall thereafter be included th3r. , ne project Approvals listed herein), 6.5. Reserved; 6.6. The Deveiopment Plan and infrastructure Plan for the Project (attached -:e -et:. as Exhibit D) approved by the City on . 2007 by City Resolution No. 6.7. The Growth Management Allocations. as required by Chapter 15.34 of Do Municipal erode as set forth in Exhibit E, approved by the City on 2007 by Ordinance No. 6.8. Tlis Development Agreement, as adopted on 2047 by �#iYaance No. (the "Adopting Ordinance"): and. 6.9. 7 ne Annexation Approvals granted by San Joaquin County Local Agency - rna io^ Commission as shown in Exhibit F attached hereto. 7. tted.for Serves ang Farcilikes. Development of the Property will result in a `ar municipal services and facilitWs, some of which will be provided by the City to such e;� crr�Qnt subject to the performance of Landowner's obligations hereunder With respect to pL.rsuant to Government Code Section 65867.5, any tentative map approved for the r -t -v rail comply witi; the previsions of Government Code 66473.7. 6 Contra ution 10 Cos of Facia' les and Servic . Landowner agrees to ute is the costs of such public facilities and services as required herein to mitigate ,udc-s , � the community of the development of the Property, and City agrees to provide such 'ac=.lities and services as required herein to assure that Landowner may proceed with and r -sere evelopment c -f the Property in accordance with the terms of this Agreement. City and recognize ane agree that, but for Landowner's contributions set forth herein G :cniributions mitigate the impacts arising as a result of development entitlements p. J pursuant to this Agreement. City would not and could not approve the development of ;-,e rroperty as provided by this Agreement and that; but for City's covenant to provide certain, c:itt es and services for development of the Property, Landowner would not and could not -m t<:: provide the mitiaalion as provided by this Agreement. City's vesting of the right to :W .e €c tr,e Property as prc+vided herein is in reliance upon and in of Landowner's e < tc .make contribution: tovirard the cost of public improvements as herein provided to .,,;are the impacts of development of the Property as development occurs. 9 DevelapraentAoreemgnt Resolution Compliance.. City and Landowner'have ;;ger, at, actions mandated by, and fulfilled all requirements set forth in, the Development r ;<-eme.nt Resolution of the Cite of Lodi. as set forth in the City Council Resolution No. 2005- t'Fe consideration and approval of the pre -annexation and development agreement Consistency__._with General; and Specific Plan. Having duly examined and -sioe.red This Agreement and having meld properly noticed public hearings hereon, the City .--c •ra' !his Agreement satisfies the Government Code §65867.5 requirement of general plan r,�tell Y NOW. THEREFORE in consideration of the mutual promises, conditions and'. ., ,& ants hereinafter set forth, the Parties agree as follows: AGREEM9114T I 1ncorgprq*oS of Reci ts. The Preamble, the Recitals and all defined terms set bolt- are hereby incorporated into this Agreement as if set forth herein in full. 2 Description Pro e . The property, which is the subject of this Development np!eerne;-,- is described in E hi�c bit A-1 and depicted in Exhibit A-2 attached hereto (`Property"). Intsreet of Lgd2Mner. The Landowner has a legal or equitable interest in the ,I;C r y andowner represents that all persons holding legal or equitable interests in the _perty shall be bound by the Agreement. 4 Rel„,@ti9n*bip„of City aid Landow"er. It is understood that this Agreement is a ;pct `hat has been negotiated and voluntarily entered into by City and Landowner and that --.3owner `s riot an agent of Giiy!. The City and Landowner hereby renounce the existence of wf loint venture of partnersh p between them, and agree that nothing contained herein :s clocument executed in connection herewith shall be construed as making the City and ;oint venturers- or partners affective Data and Term. 5A. Ewa Date. The effective date of this Agreement ("Effective Date") is 2007; which is the effective date of City Ordinance No. adopting this . ;nee 1Prt 5.2. Terra Upon execution, the term of this Agreement shall commence on F pec- ye Date and extend for a period of fifteen (15)years . unless said term is terminated, W)t ed .-r extended by circumstances set forth in this Agreement. Following the expiration of :e - this Agreement shall be deemed terminated and of no further force and effect. Said i alien of the Agreement shall not affect any right or duty created by City approvals for the I)E adopted prior ,o• concurrently with, or subsequent to the approval of this Agreement =n�i oo#igations of Sections 20. 24 or 25 of this Agreement. In the event that Iitigation is filed _ --!rc party (defined to exclude City and Landowners or any assignees of Landowner) which rE < i; irvakdate this ,agreement or the Project Approvals, the expiration date of this shall be extended for a period equal to the length of time from the time the summons iaint and/of petition: are served on the defendants; until the judgment entered by the -,a and no! subject to appeal: provided, however, that the total amount of time for F expiration: date shall be extended as a result of such litigation shall not exceed four =ni . 5.3. Automatic Termination Upon Completion and Salle of Residan t Agreement shall automatically be terminated, without any further action by either fw, ~eed to record any additional document, with respect to any single-family residential lot parcel designated by tiie Froject Approvals for residential use, upon completion of cr and issuance .-,y the Cit_,, of a final occupancy permit for a dwelling unit upon such • -E -Aia lot and conveyance of such improved residential lot by Landowner to a bona -fide aft` potchaser thereof 1,-. connection with its issuance of a final inspection for such e c, Litt' shall ;:onfirm ,hat all improvements: which are required to serve the lot, as City• have been accepted by City. Termination of this Agreement for any such tial of as orovided fcr it this Section shall not in any way be construed to terminate or a.. assessment district or Mello -Roos Community Facilities District lien affecting such e =.^me of terminatior- 6. Use offr2pegy. 6,1. VRgte!a Right to [Rvelop. Landowner shall have the vested right to ;o he Project in accor&nce with the terms and conditions of this Agreement, the Project als the City's existing policies. standards and ordinances (except as expressly modified Section 6. t and Section 8.33 and any amendments to any of them as shall, from time to t :e approved pursuant to this Agreement. Landowner's vested right to develop the p ;hail be subject to subsequent approvals: provided however, except as provided in that any conditions terms restrictions and requirements for such subsequent t ,ai snai not prevent deveiopment of the Property for the uses: or reduce the density and development or limit the ,ate or timing of development set forth in this Agreement F,, _.andowner i< nc- ir-, default under this Agreement. Notwithstanding the vested rights z ante-- herein, Landowner agrees that the following obligations, which are presently being neve+cpec shall apply to development of the Property - 6.1.1 Payment of a development fee for a proportionate share of the design and construction cost of the Highway 99 interchange project at Harney Lane. 6.12 Payment o` Agricultural Land Mitigation fee, as identified in Mitigation Measure LU -2, pursuant to the ordinance and/or resolution to be adopted by the City of Lodi. . Co. 1.3 Payment of Electric Capital Improvement Mitigation fee (see Section 6.4. 10) pursuant to the ordinance and/or resolution to be adapted by the City of Lodi. 6.1.4 Payment of development fee for proportionate share of the costs of resigning and constructing a water treatment system and/or percolation system for treatment of water acquired from Woodbnoge Irrigation District (see Section 6.4.7) pursuant to the ordinance an/or resolution to be adopted by the City of Lodi. Mt, regards to the fees identaired in Sections 6.1.1, 6.1.2, 6.1.3, and 6.1 A and these fees only, _ar,downer hereby consents to their imposition as conditions of approval on any discretionary or -,steriai ,and use entitlement subsequently granted by the City including but not limited to ^f building permits. City agrees that the fees payable by the Landowner pursuant to s 5 '.2 6 " 3 and 6 1.4 shall be adopted in conformance with applicable law, and a app , iriform6y ts� al's neve development on properties within the City that are zoned = er, with the F -olect Approvals or apply uniformly to all new development on properties a -e s -nisariy situate- whether by geographic location or other distinguishing circumstances, e t he tees identified ir, this Agreement including but not limited to the Project:. Sections 6 ' . ? . '5,7 e.1 3 6.1.4 and 8.3 no other subsequently enacted cr capita fee shall be imposea as a condition of approval on any discretionary or oeasion. Tl -.e Parties acknowledge and agree that the fees applicable to the err ii pursuant tc the Project Approvals and this Agreement may be increased during 4 °e - -? this Agreement provided that 0 } such increases are limited to annual indexing (i,e. ;c�i�eering News Record index. or the CPI, or other index utilized by the City) and as current fee c rdinances and (2 i the increased fees are adopted in conformance with _•W<=.oi� save apply urrforrniv to al new development on properties within the City that are F;: sten with t --e Projec Approval:. of apply uniformly to all new development on c er }rat are sim: arly siivatec whether by geographic location or other distinguishing Ota =res The initis: adjustrr9ent shall be effective as of four years after the Effective Date ,cieemen` and shall be calculated based on the difference in the applicable index from; e cal rate at the er,d of the month following the third year after the Effective Date and -e .r.21 rate at the enc of the rnanth fallowing the fourth year after the Effective Date. All c f increases shall be based on the annual change in the applicable index ,v°F- 'anoint *he prenedinc sentli index adjustments tc the fees set forth in Section 8.2 _;osecttons 2, 3 and 4 shall be effective annually as set forth in the relevant ordinances and €_soiu*;vns. Moreover, Landowner will be subject to the indexing called for above even if. Andown�&r has filed a complete application for a Vesting Tentative Map and will not vest ,ams* such indexing until payment of the fees as called for in this Agreement. 6.2, PermitW Uses. The permitted uses of the Property, the density and e use, the maximum height and size of proposed buildings, provisions for reservation .eco .ca± on of (and for public purposes, location and maintenance of on-site and off-site �-; rc,,ements locatior, of public Utilities and other terms and conditions of development 1Po ic�bie to the Property, shall be those set forth in this Agreement, the Project Approvals and a^ e7�drnents to this Agreement or the Project Approvals. City acknowledges that the App=ovals provide for the land uses and approximate acreages for the Property as set j Exhibit B- 1 and Exhibit B-2. 6.3. Moratorium, Quotas, Restrictions or Other Growth UmMkns. and City intend that, except as otherwise expressly provided in this Agreement, this ureeer-� shall vest the Project Approvals against subsequent City resolutions, ordinances and tiat�� e€ approved by the' City Council or the electorate that directly or indirectly limit the rate, rr u of sequencing of development, or prevent or conflict with the permitted uses, density of uses or the right to receive public services as set forth in the Project Approvals; -owever Landowner shall be subject to rules, regulations or policies adopted as a result a, gee i:n federal or state lava (.as provided in Section 7.3) which are or have been adopted on t apolied, City-wide oT ares -wide basis. in which case City shall treat Landowner in a quitablE and �- roportionate manner with all properties, public and private, which are the changes in federal or state law. 6.3.11 Allocations Under Cily Growth Mang me t Pr ram a. Allocations Required Prior to Map Approval -sister, with the Citys Growth Management Program, which shall apply to the Project, cep- as otherwise provided herein. no tentative map for any portion of the Property shall be 5w:ecr? i such time as Landowner has obtained allocations for each residential unit within the v,�,ea by such reap consistent with the Growth Management Ordinance (Ordinance ;cdified as 5ecticn 15.34 oft the City of Lodi Municipal Code. b. Schedule of Allocation of Residential Units �c- in iovving schedule •ot residential unit allocations shall apply to the Project- J.) roject_ ;f) Initial Allocation. Df the Effective Date of this Agreement, the following number of residential units shall be r. t,ai1, allocated to the Project from the City's reserve of unused allocations (:Initial Allocation"): 2"-, tow Density knits ;:cap fo= the requirement set forth in Section 6.3.1(a) above the Initial Allocation has .teen :,etem-%ned m be exempt from and in compliance with the provisions of the Growth Management Ordinance and Resolutions 91-170 and 91-171 (timing and point system eouirements). i ii Subsequent Annual Allocations: -re Effective Date of this Agreement, Landowner shall be entitled to apply for future --LA3 allocations in three-year increments, and on a rolling basis. Provided that Landowner -r4vgise :;ornplies with the City's Growth Management Program, Landowner shall be entitled to ��s a ai ocaiions set forth in Exhibit E ("Annual Allocations"). 1f Landowner elects in any year to r .se `ewer allocations than provided for in Exhibit E or if the term of any allocation granted ore it is used as part of obtaining a subdivision map. Landowner shall be entitled to �e t -pon submission of a complete growth management allocation application, additional a v � after the eighilh year of this Agreement and through the term of this Agreement r c ar v extensior, thereto granted pursuant to Section 5.2 The total number of growth ager"ert allocations granted hereunder shall be limited to the number of residential units e as pan of the Project Approvafs excluding any senior housing residential units. The allocations shall be restricted to the year for which such allocations were made, the Growth Management Ordinance. Notwithstanding the foregoing, Landowner a� _s additional mocatrons over and above those set forth in Exhibit "E", and City may v _ allocations it Its discretion provided such additional allocations are consistent with 5 growth Management Ailocation Program, Resolutions 91-170 and 91-171, subject to commurity benefits andior exactions negotiated upon such a request. svr t:a � is riot required to apply to' such allocations on an annual basis Landowner may comply with all development plan and related requirements under the Growth G, e. Ent Ordinance and Resolutions 91-170 and 91-171 every third year, at which time er -nay appiv for allocations for the next three-year period. After the expiration of the hi �h, ar. Annwa Allocation was issued to Landowner, Landowner may submit a request Ls Ien t)y the City another Annual Allocation, such that Landowner may maintain, on a ;rs _ a number c" allocations equal to three Annual Allocations. Except for aliowing the J,, ,vr,er this flexibilit, in terms of he number of years for which Landowner may apply, all � s Arnuai Allcoations lnust otherwise comply with the Growth Management Ordinance F.es�i� tions 91- 7C and 9' . 1 u F; re�rrent that Landowner apply for Annual Allocations does not alter the vested rights of o1eri specifically as to the General Plan and zoning designation of the Project. _aur �C; Qrovtrth Manacerner>t Ordinance in full force and effect: xeep` where otherwise specticalty stated herein, nothing in this section 6. 3.1 is intended to odi# it any way the City's Growth Management Program, including its exemptions under "x.34.040 (e.g for senior citizen housing). erection 6.3 2 Future Growth Control Ordinances]Policies, Etc. (a; One of the specific purposes of this Agreement is to assure ,eve ;,;per that during the term of this Agreement no growth -management ordinance, measure, reculation or development moratorium of City adopted by the City Council or by vote of e e ectcrate after the Effective Dale of this Agreement will apply to the Property in such a .raiser s,T as tc the reduce the density of development. modify the permissible uses, or modify e pr,asing of the deveiopment as set forth in the Project Approvals. Therefore, the parties hereto agree that, except as otherwise xpressi�- provtded ,ri the Project Approvals, Sections 6.1, 6.3.1 or 6.4 or other provision of this ,ctseernent which expressly authorize City to make such pertinent changes, no ordinance, tic ru: e, regulation, decision or any other City action, or any initiative or referendum voted on the public which would be applicable to the Project and which would affect in any way the ate T cevelopmem, construction and build out of the Project, or limit the Project's ability to v wt je any other City service small be applicable to any portion of the Project during the term of gr-ement: whether such action: is by ordinance. enactment, resolution, approval. policy, z: egi,ation decisio?-- or other action of City or by public initiative or referendum. City. through the exercise of either its police power or its ar.;r p ,,wer whether by direct City action or initiative or referendum, shall not establish, enact r DOSE; ary additional conditions dedications, fees or other exactions, policies, standards, -e-cAattions wh.ch directly relate to the development of the Project except as provided in 5 u1 o, 5.4 herein c=r other provision of this Agreement which expressly allows - @Ke such changes Nothing herein prohibits the Project from being subject to a tij City- -u issue, 01, i amity: -Wide special or general tax, or (iii" speciai assessment for the U� ic, , c)r r-nainteriance of a C-ity-wtee facility as may be voted on by the electorate car enacted. ;arc aided that such tax assessment or measure is City-wide in nature does y..�r . r;,)@tE againsn the lane: witnin the Project and does not distinguish between developed u ncevelcped porcois. id) This Agreement shall not be construed to limit the authority of City to ar_�e ;. ocessing fees for land use approvals, public facilities fees and building permits as they alp t _ plumbing. mechanical electric or fire code permits, or other similar permits and n'. err�cnmrs which are in force and effect on a city-wide basis at the time those permits are except 14 he extent an.= such processing regulations would be inconsistent with this .;�.��n. 7r�.�0, e Notwithstanding subdivision (b), the City may condition or deny a. approval, extension or entitlement if it determines any of the following. (1) A failure to do so would place the residents of the Project o, the immediate community, or both; in a condition dangerous to their health or safety, or both. (2) The condition or denial is required in order to comply with state or federal law (see Section 7.3). 6.4. Addiftnal Conditions. 6.4.1. Timing of Dedications and Imiwove nepts of Parks agrees tc dedicate park land and complete construction of all the park oro ver>ents as described and set forth in the Project Approvals at its sole cost and expense. :Ests cl the parks and park improvements contemplated herein is set forth in Exhibit "I" and: o Landowner and City agree that the provision of land and the construction of all park and installation of equipment within the Project boundaries will satisfy Landowner's. pct obligations as set forth ir, Lodi Municipal Code Chapter. Therefore. Landowner shall, r criigated to pa,) any additional park fees and Landowner shall not be entitled to any 3. c,. -nc- value of the improvements constructed or equipment installed except as provided oe, The phasing of su& improvements shall be in compliance with the Phasing eule mrncicoed in Exhibit I- ;_ egards to the parr improvements listed in Exhibit J, prior to approval by the City of the first ra; ,,Ek subdivision map, Landowner shall prepare plans and specifications for all park a .erg,,eats includeC in the Project Approvals and submit those plans and specifications to ~eview and approval which approval will not be unreasonably withheld provided that ar:r ana soecifications contain all park improvements listed in Exhibit J and satisfy all .Onditions approvai included in the Project Approvals. The Landowner shall .e parks in :ompliavice with the approved plans and specifications. The City will -3-lovements curing construction. If improvements are of poor quality and/or do not .equirernents of approved Plans and specifications the City will notify the Landowner r,,- anc trew carcowner, at its sole cost, shall correct any errors or deficiencies. The s"al cors*ruct the parks to the satisfaction of the City, which shall be defined as ar �e with the approved plans and specifications. the parK rnprovements identified herein, Landowner is obligated to offer for ;edicati`,r io the City for a period of six years, five acres of land located at West of Lower >c. rG� Ernc Road, North of Vine Street and as depicted in the Westside f=acilities Master Plan ,-n: saes including a possible acquatic center. Upon acceptance of the dedication by the h :-r must occur within six years after the offer of dedication is made, the City shall, for nc term of :h sr Agreement and at the time of City approval of any development t, 5 iiiiT Drolec, located in the area south of West Vine Street, north of Highway 12, and west of North -owe, Saramento, Road ("Adjacent Property"), impose a requirement that the developer of the �djacen! Parcel pay the the, City an amount equal to the reasonable actual costs incurred for ;aark ,ana and related construction: costs by Landowner for paries developed within the Project in �-x�e=s `.f the minimum, amount of park dedication required by the Lodi Muncipal Code and Qeveloper of the "Adjacent Parcel' uses to satisfy its park dedication requirements. �a^ es agree that they shall calculate the any potential credit payable by the developer of -.dianent I✓roperty pursuant tc this paragraph prior to approval fa the fast tentative c=-Dcvision mal for the Properly Upon receipt of the that payment. City shall either pay that - -Landowner c:� credit that amount against any outstanding fee payable by Landowner. 6.4.2, Rehabilitation ofExiiOno Residential Units _anco,wner agrees thw within ten years of the Effective Date of this Agreement, Landowner w;-ai! either rehabilitate or pay the costs (for a total value of $1,250,000) of rehabilitating up to a vaximu--m of twenty-five (25) single-family or multi -family residential units within the area ^ rde . by the Unior Pacific railroad tracks, Cherokee Lane, Kettleman Lane and Lockford rtrec; -o satisfy this obligation. Landowner may pay to rehabilitate residential units owned by ,-3rne,s may purchase; rehabilitate and sell or rent said residential units. The City shall have gh: c approve the residential units selected for rehabilitation', said approval shall not be .:-reasc�lably withheld by the Cit}. W e -nn=c)vements required herein to facilitate rehabilitation of residential units may include andscaping. painting, roof repair, replacement of broken windows, sidewalk repairs, non- structurai architectural improvements. and demolition and reconstruction of residential units. work oerformed pursuant to this section shall be done pursuant to properly issued building -;ts as required by City of Lodi ordinances. As part of the annual review required pursuant DE; *, ;n t' Landowner shall repaid on work completed during the prior year towards meeting F vol4gations set forte` in this paragraph t e event tnat Landowner has not satisfied this obligation within ten years from the Effective "gate:.. Landowners shai} pay the City fifty thousand dollars ($50,000) per residential unit for each := -tie-vventy-five (25, inits that have not been rehabilitated as set forth above. The funds paid a= t)e o aced in a dedicated cit} fund to be used for housing rehabilitation grants or loans area specified hereinabove 66.3. Payment for Promotion of Economic OevsloRMent ith ' ,e- ? 0} years c; the Effective Date of this Agreement, Landowner shall pay the City Two - ,E ,±arec-werity-Six Thousand U S. dollars ($226,040) for use by the City for economic vt'e,, mient actions rcluding job creation, promoting retail sales and/or wine industry tourism as aetermined by One City. The purpose of this payment is to assist the City in its effort to a� ,tp a balance berween employment and housing demands 6.4.4 Pa nt aI VVft g2jit F The Lodi Electric Utility is a s c�vnea anc operated utildy that provides electrical utility services for residential, commercial .-n:, industrial customers in Lodi As the proposed project sites would be annexed to the City of ane cd� Electric "Utility would provide electrical utility services to the protect site. To the A r: that _andowner ;s assessed 'exit fees," also known as `Cost Responsibility Surcharges," ire... Gas 6 Electric for its departing load, Landowner shall pay said fees when they- are t ap c:awner may. at its option and at its own cost, request a Cost Responsibility Surcharge ot- +rorn the Ca4ornia Energy Commission for any qualified departing load pursuant to �¢. :aiifornia Code of Regulations, Section 1395, et, seq. Forms for the exemption are is 'E on-line. at htt :I/www.ener .Ca. ov/exit feesldocuments/2004-02- M�,,r-.)(EMF APP -.PDF ,-ity crakes no representation that Landowner is eligible for -ns pirsuant tc these regulations. Landowner agrees to save, defend, indemnify and css City fror any and all costs, judgments or awards owed to Pacific Gas &Electric Of �r relates to City:s crcvision of eiectricai utility services to the project site. 6.4,6 Wintenance of S,pecirted Public Imprfeme agrees tc provide or pay for all park- median strip, and other landscaping, -.a:, er.arce and repairs for two years for Lands dedicated by the Landowner to the City and wc,te:: s -v the City .n the event that Landowner chooses to pay the City for the costs of and repair. the City shall provide an estimate of the annual costs and the c y' til- s+Iall pay the dull amount within thirty calendar days after the City by U.S. Mail or {�. t a:Tisrr its the estirnate to the Landowner if the amount paid to the City exceeds the ar sir �rcurrec by the City plus reasonable staff costs to administer the contract, the a withir' a reasonable period of time. refund the difference to the Landowner. 6.4.6 _ Payment for Fire_ Department Facilities, E u�nt and !_ rat�,ls acdit yr !c any applicable development impact for fire services, within ten years of the ec :v Sate of this Agreement. Landowner shall pay Two Million Six Hundred Thousand U.S. ,jc.' ars W2.600,000j to the City for use to acquire additional facilities, equipment and apparatus -odi Fire Depanment. r't:: �tti Et acknowleages that City will enter into contracts to acquire the facilities, equipment a— apparatus. As consideration for City's agreement to authorize payment in installment :-r,e„ Lancowner agrees to provide a letter of credit payable to the City, in a form ass^a ply acceptable to the City Attorney, in an amount sufficient to cover the amount due ,e. �;ty agrees tr,at Landowner may substitute a letter of credit, in a form reasonably .p .e tc the City attorney, for a lesser amount upon payment of any portion of the amount e=.r=in Upon delivery of such replacement letter of credit and its approval as to form by the 4., -iey, trip City +will release and convey to Landowner the prior letter of credit. 6.4.7 ftserved. 6.+4,6 Ratilm TMeftnt a+aftrPstr Qn Coat Landowner shall pay tee rased on the proport mate share of the costs of designing and constructing a 'water -eatmert system and/or percolation system for treatment of water acquired by the City from the Noodbridge irrigation District Landowner shall pay the fee as required under the fee program be development by the City. but in no event later than when water service connection for ,,act,. -esidential, office and commercial unit is provided. 6.4.5 Publk Ag on ProWithin ten (10) years of the Effective -)ate 3f Agreement. Landowner shall obtain City approval for and install public art on the •c;eP:,. The value of the public art installed shall be equal to One Hundred Fifty Thousand U.S. c;lar= i,$150.O00) inclusive of design and installation costs, which together shall not exceed ,-.,'-X The public ar shall be installed in a place within the Project that is visible from the "-zlic right-of-way cr r,orr an area or areas that provides public access. Landowner shall W 'Garde 7-�aintenance o4 the public art. Landowner shall be eligible to apply for City matching son. fc ti?e public ar, up to a maximurn amount of $40,000. The parties agree that any natc�ing grant provides by the City shall be in addition to the $150,000 contribution provided by 2 -„downer pursuant tc: the section and shall be, subject to any and all conditions normally ;cosec as part of the Issuance of a grant by the City. 8.4.10Utift Une Exten§i9n City is preparing a policy pursuant to :,nuc property developed Al pay the actual costs of capital improvements necessary to extend irty se; vices to a development. Landowner acknowledges that such an extension is ~ec:essar- ;ca impler,e.r)' the Project Approvals on the Property. Landowner agrees to pay the oursuani to the policy to be adopted by the City, the costs of the capital improvements -cesaaru *.o extend utiiity services to the Property. C. `e Project Approvals require the installation of specified public and private improvements. ..andowner shall.. as specified in the Project Approvals, either design, engineer and construct >� inilowing improvements or pay the City the appropriate fee for the design, engineering and ^n; action of said improvements. The obligations imposed on the Landowner herein shall be - addition to any other obligations set forth in this Agreement” r, event that any C Developer's:, improvements encroach upon any city facilities, property or gt,tw oz way developer shall indemnify City against any and all expenses, including legal fees, -ec bd the City to secure replacement facilities, property or rights of way" J4.11.1 U6Ke *Mr IFacilN" a sr- issior Mair. (Proportionate share of the total design, engineering and construction sty ~a `&no< (Proportionate share of the total design, engineering and construction costs). 6.4_11.2. Wator Suiflr Facilities ,e �-iew water well to cover proposed development within the Southwest Gateway and .` ests.de revelopment areas The well will be installed in the Southwest Gateway area at the at�ci identified in the Project Approvals or approved by the City Engineer. This condition may ^r= satisfied by the instaliafion of the well pursuant the requirement set forth in Section 6.4.7.2 of r i:r,,B Southwest Gateway Develoment Agreement provided that adequate flow capacity is ^.: oed for the deveioprrment authorized as part of the Westside and Southwest Gateway ec Auer vats The well shall be installed and operational on or before January 1, 2010 or a ' rtherwise required by the Water Master Plan. 6 A 1.3 Water Dis-ObiNeen EA&II s water *ipes and related infrastructure in all streets. --v rter�-r or temporary facilities as determined necessary by the Public Works Director. 1.4.11.4_$ewr CgA*ction fat' itias �evver pipes and related infrastructure in all streets. or ternporary facilities as determined necessary by the Public Works Director. 6.4.11.5 Rutted Water Facilities ec;_.�Cled water pipes and related infrastructure for irrigations systems located in or on �-reets, v,,oiic and private school sites (to property boundary line only), places of assembly :'iuc qg bul not limiteo is religious facilities (.to property boundary line only), and high density to a maxirnui_ oT $SCS DOC) to partially fund the City of Lodi Recycled Water Master 6.4.11.6 Storm Drainage FacHlities =Ae-rnwater pipes and related infrastructure in all streets and basins. titc'.-mvvater detention basins: control structures, pumping facilities and appurtenant piping _t?rltrol� .-;r,..o interim or temporary facillities.as determined necessary by the Public Works Director. Developer will be entitled to apply for reimbursement under Lodi Municipal Code Chapter 16.40 ar benafFt received by undevfeloped properties as a result of the construction of the -norovernents required by this paragraph. Without limiting in any manner, the City Council'5 •uture exercise of its legislative discretion in the public hearing called for by Chapter 16.40, the ;, a lies anticipate that the benefited properties will be those set forth in Exhibit J. The parties ..sic expressly acknowledge the final determination of benefited properties shall be determined ;pursuant to process set forth in Chapter 16.40. 6.4.91.7 Streets arW Roads Design and construct all streets within the Project Boundary as set forth in the Project Approvels. Reconstruct Lodi Avenue west of lower Sacramento Road to western project boundary. Reconstruct Tokay Ave .'Lower Sacramento Road intersection to accommodate wider street se --tions. cay Fair Share Cost payments for traffic mitigation measures identified in the Lodi Annexation nviranmen#al Impact Report that are not projects within the Streets & Roads Fee Program. --0117 eaard to the requirement to construct streets and roads, for sections of such streets and cads that are not wholly within the project site, necessary to satisfy the obligations set forth in ;i Agifeement and the Project Approvals. Landowner will use its best efforts to acquire all ,ecessart teal property interests including. but not limited to, (1) submitting formal offer letters ail uersons or entities who own or lease said property, (2) diligently pursuing implementation pu,chase agreement, (3) paying all amounts required pursuant to the purchase nr&e-Ment r, a timeiy manner consistent with the terms of the purchase agreement and will wer-,onstruct the streets or roads in compliance with the Project Approvals and any sugi�ent subdivisions reaps. In the event Landowner is not able after its best efforts to a:`cuwe any necessary property. City and Landowner agree that City will consider all actions vessa, o fora ar assessment district to provide the funds necessary for the City to acquire cessary property Including through eminent domain as necessary, and Landowner F �e� s ;rat upon the City complying with all requirements for consideration of formation of ssesso-erg° district. Landowner shalt. for all property within the proposed district that it owns or ss(-sses he legal autoriiy to gate or, behalf of, vole in favor of formation of the assessment str -te parties agree that items to be included within the costs to be funded by the s -e .s-. gin; c1strnci sha;' include but not be limited to all costs, including attorneys fees r ess4 , 1 ; acquire the necessary property interests, all design and engineering costs and all v'slljcllor's costs -rove cper will be entitled to apply for reimbursement under Lodi Municipal Code Chapter 16,40 benefit received by-indeveloped properties as a result of the construction of the U vements requires Uy this paragraph. Without limiting in any manner. the City Council's w'�'K r , excise of its iecaslative discretion in the public hearing called for by Chapter 16.40. the r artier anticipate that the benefited properties will be those set forth in Exhibit K. Tile parties aisc= expressly acknowledge the final determination of benefited properties shall be determined , iursuant to process set forth in Chapter 16.40, 6.4.92 Hutchis Spread Square Endownvent Within ten (10) years ofIhe _?=ecJve Date of this Agreerrient. Landowner shall pay the City Three Hundred Thousand U.S. _ ciia, s ;$300,000) as ar. endowment for the maintenance and operations of costs of Hutchins �t--eell Sauare. 6.4.13 Agreettt►ient with Citizens for Open Government Landowner shall omp;y ,w& the terms of the Agreement to Amend Westside Development Agreement dated ec -rnber 4. 2006 by and between the City. Citizens for Open Government and Landowner, a rc: , ^f wh#ch is attached hereto as Exhibit L and incorporated herein by reference. 6.5 Ann2jigion Tine ability tc proceed withs development of the Property pursuant to the Project Approvais shall be contingent upon the annexation of the Property into the City- Pending such annexation, Landowner may, at its own risk; process tentative parcel maps and tentative on maps and improvement or construction plans and City may conditionaily approve ;;:.r '.entative maps and/or improvement plans in accordance with the Entitlements, provided shs not approve any final parcel map or final subdivision map for recordation nor approve Issuance of any grading permit for grading any portion of the Property or building permit for r*r�.�ure within the Property prier to the annexation of the Property to the City. i(y snail use is best efforts and dere diligence to initiate such annexation process, ir,e necessary approvals and consummate the annexation of the Property into the City, enter=ng inic any annexation agreement that may be required in relation thereto, the City's review and approval of the terms thereof. Landowner shall be responsible, ire ;orfs reasonably and directly incurred by the City to initiate, process and consummate r a=,,)exatior; the payment of which shall be due in advance. based on the City's estimate of -�-st anc thereafter as and when the City provides an invoice(s) for additionat costs u -ei, by City therefore in excess of such estimate. ApipkaWe BIlles, R2gulgons. Fees and Official Policies. 7.1. Rylg& R a in Pe VM Except as provided in this ;greerr,ent, the City's ordinances, resolutions, rules, regulations and official policies governing :Fe oermitted L:ses c` the Property; the density and intensity of use, the rate timing and scc,L,er.cing of development. the maximum height and size of proposed buildings, and sicn5 for reservation and dedication of land shall be those in force on the Effective Date of +a3 esme*�i Except as provided in Section 8.2, this Agreement does not vest Landowner's Ysloll cnts : gay development impact.fees, exactions and dedications, processing fees, inspection 'yes rl8r' checking fees or charges. 7.2. Rules Reif_ Quin angi Cgft1VVgW. The Project has been es�gnee as a Planned Development pursuant to Chapter 17.33 of the Lodi Municipal d'ode. =esigr irnprovements and construction standards shall be as set forth in Project Approvals the Development Plan and shall be vested for the term of this Agreement. Unless provided within the Development Pian or expressly provided in this Agreement, all e ardinances, resolutions. rules, regulations and official policies governing design, er ert and construction standards and specifications applicable to the Project and to �rrvrovemenis to be constructed by the Landowner shall be those in force and effect at G I -,,e .:re applicabie permd approval is granted. 7.3. Chargms in fate or Federal Law. This Agreement shall not preclude -)e aapiication tc development of the Property of changes in City laws, regulations, plans or c l:cieW he terms of which are specifically mandated and required by changes in State or =ecieraI aws or regulations. These changes may include any increase in an existing fee or >;u iic, of a new fee that are necessary for the City or Landowner to comply with changes in ederal caws rr- regulations including but not limited to sewer. water and stormwater regulations. 7.4. UnifoW! C_odea AAWKable. Unless otherwise expressly provided in this `emc,t the Project shat be constructed in accordance with the provisions of the Uniform wing. Mechanical, Plumbing. Electrical and Fire Codes, City standard construction eLificatrans, and Title 24 of the California Code of Regulations, relating to Building Standards, effect at the time of approval of the appropriate building, grading, encroachment or other '."aC iCr permits fol the Project If no permits are required for infrastructure improvements, :rovements vw F be constructed in accordance with the provisions of the Uniform icir C !'JMecnanical. dumbing; Electricai and Fire Codes; City standard construction „ ;a -ons 2,?C1 title 24 of the California Code of Regulations,. relating to Building Standards, !fiect at the start of construction of such infrastructure. gxistinq Fegg, NEMiy Ena ted Fees Dsd'c ,ationi. Asslisments and Tax 81. PrccjWA#:M Fetes and Charges. Landowner shall pay those processing, and plan, check fres and charges required by City under then current regulations for ss,rc applications and requests for permits, approvals and other actions, and monitoring with any permits issued or approvals granted or the performance of any conditions es;3ect thereto or any performance required of Landowner hereunder. 8.2. Exiist ,ro Fees. gxactions and Q20iSg ions Landowner shall be Wate ; o Provide all dedications and exactions and pay all types of fees as required for the levelopment authorized by the Project Approvals as of the Effective Date of this V'Viti regards any fees applicable to residential development. the Parties agree that ?--le fees shall be payable at the earliest time authorized pursuant to the Govemment Code action 66007 as it exists as of the Effective Date of this Agreement. The specific categories of tees .;ayabie are listed below. The dedication and exaction obligations and fee amounts '.avable shall be those obligations and fee amounts applicable (indexed as set forth e•eiroeiow) as of the date that the Landowner's application for the applicable vesting tentative r�,s deemed complete. For any development for which the Landowner has not submitted a astir°Ta tentative map, the dedication and exaction obligations and fee amounts payable shall be 1-sc etJ lgations and lee amounts applicable (indexed as set forth hereinbelow) as of the date -i final oiscretionary apprcval for that development is granted by the City. ztaraarc City Deveiopment Impact Fees Payable by the Landowner include: Development Impact Fees (Lodi Municipal Code Chapter 15.64) San ,Joaquin County Regional Transportation impact Fee (Lodi Municipal Cade Chapter 15.65 County Facilides Fee (Lodi Municipal Code Chapter 15,66) San ,Joaquin County Multi -Species Habitat Conservation and Open Space Development Fee (Lodi Municipal Code Chapter 15.68) ;-;.;, existing fees may be increased during the term of this Agreement provided that such ~creases are limited tv annual indexing (i.e. per the Engineering News Record Index, or th6 i or other index utilized by the City) and as provided in current fee ordinances. The initial ,.:o hent shall be effective as of four years after the Effective Date of the Agreement and shall ca:c.,_.!ated based or the difference in the applicable index from the numerical rate at the end month following tie third year after the Effective Date and the numerical rate at the end of h foilowinc the fourth year after the Effective Date. All subsequent increases shall be uew c � the annual change in the applicable index Notwithstanding the preceding sentence, �e aciustments to the fees set forth in subsections 2. 3 and 4 of this section shall be effective a'' _ as set `ortl^ {, the relevant ordinances and resolutions. Moreover, Landowner will be r, -ne ,ndexine abed fo above even, if Landowner has filed a complete application for a. =�g "entatiLe Ma{ and will nct vest against such indexing until payment of the fees as ��iilej fir_ " In this Agreement. 8.3_ New ^ Devel2pmelnt Impact pees, Exactions and ©ed�ttiiylns. r: 3vner agree: tc the pay the development fees identified in Section 6.1, including W_ e !ficail} subsecbons 6 '.1 through fi_ 1.4 of this Agreement. With regards any fees applicable esiaental developr? ent the Parties agree that the fees shall be payable at the earliest time =r� r.�ed pursuant tc ,.he Govemment Code Section 66007 as it exists as of the Effective Date th1s Aareement y:oep as expressly provided herein, Landowner shall not be obligated to pay or provide any Five;oprnent impact lees. connection or mitigation fees, or exactions adopted by City after the -Ifecl,ve Dale of triis agreement Notwithstanding this limitation, Landowner may at its sole str�tiG� elect to pay or provide any fee or exaction adopted after the Effective Date of this ; L;reernertt. 8.4. Fee I'�sductiorg To the extent that any fees payable pursuant t9 the e;,urerrents of Sections 8.1 are reduced after the operative date for determining the fee has c. ur ed the Landowner shell pay the reduced fee amount. om unity tgcillitiej gWLict. Formation of a Community Facilities District For Public Irnprovemerift and Services. 9,'I. Inclusion in a Community Facilities District. Landowner agrees to :.oerate in the formation of a Community Facilities District pursuant to Government Code ,action ;33311 et seq. c be formed by the City. The boundaries of the area of Community acill.-ies District shall be contiguous with the boundaries of the Property excluding the portion of tined for commercial or office development. Landowner agrees not to protest said district and agrees tc vote in favor of levying a special tax on the Property in an amount not •::f :ec-$600 per year per single family attached or detached residential dwelling unit and year for each attached multi-fam)iy rental unit as adjusted herein. The special tax a _)e -itiated for all residential dwelling units for which a building permit is issued, and shall e re to be ieviec oeginning the subsequent fiscal year after the building permit is issued'. acknowledges that the 2007-2005 special tax rate for the units in the Project will not .._;eeu'600 per single family attached or detached dwelling unit and $175 per year for each acec r>ulti-f2mi.. - rva;' unit and that the special tax shall increase each year by 2% n .4, vote by _andowner against the levying of the special tax or a vote to repeal or :e special tax shall constitute an event of default under this Agreement. 9.2. Use of Community Facilities District Revenues Landowner and City ',1-.a- rhe ql.mprovernero and services that may be provided with the special tax levied ir.= c Section 9.'. may be used for the following improvements and services a Lolice protection and criminal justice services; l Fife protection. suppression, paramedic and ambulance services; c Recreation and library program services; C., Gperation and maintenance of museums and cultural facilities; e Maintenance of park. parkways and open space areas dedicated to the C -Fly f Hood and storm protection, services; g improvement, rehabilitation or maintenance of any real or personal property that has been contaminated by hazardous substances; Purchase, construction, expansion, improvement, or rehabilitation or any real or tangible property with useful life of more than five years; and. L esign, engineering, acquisition or construction of public facilities with a .iseful life of more that five years including: Local park. recreation, parkway and open -space facilities, Libraries, Childcare facilities, a Water transmission and distribution facilities, natural gas, telephone, energy and cable television lines, and Government facilities. __anoc wP*r and City agree that Property does not presently receive any of these services from -he C-ty and that all of these services are new services. 9.3. ComaMill F ill W* Di21fict for R P - Fialnging. additicn to the funding I*ovided as part of the Community f=acilities District identified in o;o- - k, City acknowledges that Landowner may desire to finance the acquisition or cnsiructier, of a portio- of the improvements described in Section 8.2 through the Community ;_ aci1 es District TIDE gists associated with the items identified in Section 8.2 shall be in �cdivcm r.o the annual est imposed to comply with Section 9.1. The following provisions shall to any to the extent that the Landowner desires to fund any of the improvements set forth; " e-:SICr, 9.2 throuo the uQmniunfty Facilities District: IssuIncgof Bonds_ City and Landowner agree that, with the consent of Landowner, and to the extent permitted by law. City and Landowner shall use their best efforts to -Gause bonds to be issued in amounts sufficient to achieve the purposes of this Section. x.3.2 Payment Prior to Iss anc f Bonds, Nothing in this Agreement shall be construed to preclude the payment by an owner of any of the parcels to be included within the -'FD of a cash amount equivalent to its proportionate share of costs for the improvements identified in Section 8.2. or any portion thereof, prior to the issuance of bonds. x.3.2 Private Financing. Nothing in this Agreement shall be construed to limit Landowner's option to install the improvements through the use of private financing. S' 3.4 Acquisition and Pay mer>It. City agrees that it shall use its best efforts to allow and facilitate monthly acquisition of completed improvements or completed portions thereof, and monthly payment of appropriate amounts for such improvements to the person, or entity constructing improvements or portions thereof, provided City shall only be obligated tc use CFD bond or tax proceeds for such acquisitions. 110 PIE00016 iM 21 SubsegNtal 9Le a nt 6w&gfts ag Su#ftaFet . ;bie Landowners compliance with the City's application requirements including, submissior of required information and payment of appropriate fees. and assurping is not it detault under the terms and conditions of this Agreement: the City shall c,c.e s _andowner s subsequent development applications and building permit requests in an Xoec twjs manner r addition, City agrees that upon payment of any required City fees or C: • well desionate or retain, as necessary, appropriate personnel and consultants to r e4 s ..andowner s development applicaticns and building permit requests City approvals in exc:editious manner Reenred 1? n t r C n. 11.11. Modif' ati n ftcpjM of C2nffiq w or Ee&EW JjMa. In the ren'. that State or Federil laws or regulations enacted after the Effective Date of this ._ _ree-nent prevent or precfude compliance with one or more provisions of this Agreement or eou!! e changes in plans, maps or permits approved by the City, the parties shall meet and ,1-nlc it good, faith in a reasonable attempt to modify this Agreement to comply with such -der State law or-egulation Any such amendment or suspension of the Agreement shall ac: -reed by the Citk, Council in accordance with the Municipal Code and this Agreement. 11.2. Amendment !a Mutual Consent. This Agreement may be amended in n time tc time by mutual consent of the parties hereto and in accordance with the -C ceawes of State law and the Municipal Code 17,3, Ensu ial ndments. Notwithstanding the provisions of the e;:rdinc Section 117. any amendments to this Agreement which do not relate to (a) the term f Acreement a= p=cvide(J in Section 5.2. {b) the permitted uses of the Property as provided 6 2 and ;c` provisions for reservation or dedication of land; (d) the location and ;.n�enance ci on -sit E. ar'd ofi-site improvements; e} the density or intensity of use of the c -q _ ` the maximum height or size of proposed buildings or (g) monetary contributions by as provides in this Agreement shall not. except to the extent otherwise required by eQ..., .rt notice ur-,ublic hearing before either the Planning Commission or the City Council tf-e parties may execute an amendment hereto 11.4. Ame m nt of PirgiSct. Approvals. Any amendment of Project =, :� :Vass relating to: ia) t e permitted use of the Property; (b) Provision for reservation or _eaica(ion of iand; ±c; jhe density or intensity of use of the Project; (d) the maximum height or u w` proposed buildings (e) monetary contributions by the Landowner; (f) the location and �.reriarice of on-site and off-site improvements; or (g) any other issue or subject not identified 1 -substantial amendment' in Section 11.3 of this Agreement, shall require an amendment areerment S,, -ch amencirrient shall be limited to those provisions of this Agreement, .y are implicated by the amendment of the Project Approval. Any other amendment of the .Djec Approval(s) shai: not require amendment of this Agreement unless the amendment of .' �}ec' Approval is' ,-elates specifically to some provision of this Agreement. 11.5. Cancelattion tw Alutuat Consent. Except as otherwise }permitted ti :s Agreement may be canceled in whole or in pari only by the mutual consent of the `heir successors m interest, in accordance with the provisions of the Municipal Code. eC naid pursuant ,G tri€ Agreement prior to the state of cancellation shall be retained by 1 7errn of PE9AM Am va . Pursuant to California Government Code Section ,. �4a� 6ela the terra cf any parcel reap or tentative subdivision map shall automatically be ctcnCec for the term of this Agreement. 1 u . An rte Review. 13.1. RevieVg D t . The annual review date for this Agreement shall occur 7rie -Nithfn the same month each year as the month in which the Agreement is executed or the st .rr'mediateiy thereafter. 13.2. Inn iat- n of ftview. The City's Planning Director shall initiate the ,,E. review by giving to Landowner written notice that the City intends to undertake such Nk:e4 "Jithir thirty '30' days of City's notice, Landowner shall provide evidence to the :qr r -jc :7irector to demoristrate good faith compliance with the Development Agreement. The proof. by suostantiai evidence of compliance, is upon the Landowner. The City's meiy 16tiate the annual review is not deemed to be a waiver of the right to do so at a E: :at E. accordingly-andowner !s not deemed tc be in compliance with the Agreement by ,.:ch failure to -;mely initiate review 13.3. Staff ftyorts. City shall deposit in the mail to Landowner a copy of all r pt s and related Exhibits.. concerning contract performance at least three (3) days prior ar^ual review 13.4. Gaets. %osts reasonably incurred by the City in connection with the view shall ne paid by Landowner in accordance with the City's schedule of fees and is stes 'n effect at r time cf review. 13.5. Non-rwnpililano tirttdh Atueements Heari_m If the Planning Director .�erines, on the basis of .substantial evidence, that Landowner has not complied in good faith +4 ve terms and conditions of the Agreement during the period under review, the City Council, -eceipt of any report or recommendation from the Planning Commission, may initiate e .di-igs to modify c:, terminate the Agreement, at which time an administrative hearing shall - ,ncocted, :n accordance with the procedures of State law. As part of that final ,)eternwation. the Cit;; Council, may impose conditions that it considers necessary and appropriate to protect the interest of the City. 13,6. AMM 21 Q ft ft . The decision of the City Council as to _aneowner s compliance shell be final, and any Court action or proceeding to attack, revieva, set aside void or annul any decision of the determination by the Council shall be commenced within, "irty ;,30; days of the final decision by the City Council. 14. Deet. S*ect to any applicable extension of time, failure by any party to _uostantially perform any term or provision of this Agreement required to be performed by such ,arty shat' constitute a material event of default ("Event of Default"). For purposes of this ��reement a party claiming another party is in default shall be referred to as the "Complaining �srtt and the party alleged to be in default shall be referred to as the "Party in Default." A rn.plairng Party shah not exercise any of its remedies as the result of such Event of Default -less sjch Complaining Party first gives notice to the Party in Default as provided in Section and the Party �r Default fails to cure such Event of Default within the applicable cure .:er!ac. 14.1, P[RCWMr4 RSM dila,g Dafiuffts. 1,4.1.1. Notice. The Complaining Party shall give written notice of jeta� It to the Party in Default, specifying the default complained of by the Complaining Party. )elan it giving such notice shall not constitute a waiver of any default nor shall it change the irne of oefault. 14.1.2. Cure. The Party in Default shall diligently endeavor to W e vorrect or remedy the matter complained of, provided such cure, correction or remedy ani be completed within the applicable time period set forth herein after receipt of written - ;, such additional time as may be deemed by the Complaining Party to be reasonably . ecessary to correct the rnager';- 14.1.3. Failure to Alert. Any failures or delays by a .,� rrrpiatnrng Party in asserting any of its rights and remedies as to any default shall not operate �s a Ava+ver of any default or of any such rights or remedies. Delays by a Complaining Party in r.sserbnc any of its richt, and remedies shall not deprive the Complaining Party of its right to and maintain any actions or proceedings, which it may deem necessary to protect. sse' r enforce any such rights or remedies. 14,1.4. Notts of 2Sftw1t. If an Event of Default occurs prior to -�:er;:using any remedies the Complaining Party shall give the Party in Default written notice of ce del ault. If the default is reasonably capable of being cured within thirty (30) days; the Party Default shall have such period to effect a cure prior to exercise of remedies by the res ia:nin9 Party. If the nature of the alleged default is such that it cannot, practicably be -er *- °hin such thin v G) clay period, the cure shall be deemed to have occurred within such t� Ks day period {ai the cure shall be commenced at the earliest practicable date �avr na-eceipt of the notice-, (b) the cure is diligently prosecuted to completion at all times,,'. N=caster ',c) at the earliest practicable date (in no event later than thirty (30) days after the ,r c pa`ty's receipt of the noticej, the curing party provides written notice to the other party „i,:re cannot ofacticably be completed within such thirty (30) day period; and (d) the cure r pie,ed at the earnest practicable date in no event small Complaining Party be .precluded xe-,-ising remedies if a default is not cured within ninety (99) days after the first notice of ,s :ever; 14.1.5. Ltgal ProcidiM, Subject to the foregoing, if the Party _3e`au!, fails to cure a default in accordance with the foregoing, the Complaining Party, at its may institute legal proceedings pursuant to this Agreement or, in the event of a material efa� tsrrrlinate this Agreement. Upon the occurrence of an Event of Default, the parties may a , ether remedies at lava or ir equity; which are not otherwise provided for or prohibited =greement o, in the City's regulations if any governing development agreements, Including the :emedy of specific performance of this Agreement. 14A.5. Effect of Termination If this Agreement is terminated 9 any Event of Defauft of Landowner or for any other reason, such termination shall not: ec. `he validity of any building or improvement within the Property which is completed as of -, ,iic of terminatio,. provided 'hat such building or improvement has been constructed' ,c a building permit issued by the City. Furthermore. no termination of this Agreement Landowner from completing and occupying any building or other improvement 26.: pursuant tc a ;aIle budding permit previously issued by the City that is under t o,, at the fire c` tern-;inaiion, provided that any such building or improvement is -�tec accordance w,,h said building permit in effect at the time of such termination. ! F. EstoMi Ce ificate. Either Party may, at any time, and from time to time,; ;r-ittenTnotice from the other Party requesting such Party to certify in writing that, (a) this e-ne, _s in Lull force ana effect and a binding obligation of the Parties, (b) this Agreement .,een amender or modified either orally or in writing, or if so amended, identifying the r� r,ts. and i i ,c the knowledge of the certifying Party the requesting Party is not in n�. 'rye perfor~na7-ce of its obligations under this Agreement, or if in default, to describe nature arse arrount cf any su&, defaults. A Party receiving a request hereunder xe-`;re and rete;,., such certificate within thirty (30) days following the receipt thereof, or e.7 oeriod as may 'eascnahiy be agreed to by the Parties. City Manager of City shall be zf- '.o execr?'e ny certificate requested by Landowner Should the party receiving the execute a: -,d return sucr certificate within the applicable period, this shall not be c -c oe a default 113• Mortasioee Poote:ction; Certain Rights of Cure. 16.1. Mort e_e_Protection, This Agreement shall be superior and senior to •er,;aced upon the Property or any portion, thereof after the date of recording this ,greernent; including the lien for any deed of trust or mortgage ("Mortgage"), Notwithstanding .ne 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 the terms and conditions contained in this 4,greernenl shall be binding upor and effective against any person or entity, including any deed fres beneficiary or mortgagee {"Mortgagee") who acquires title to the Property, or any fiQrtiar� -ere tiv foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 96.2. Mortagee Not Ohligated. Notwithstanding the provisions of Section oc.ve no Mortgagee ihaU have any obligation or duly under this Agreement, before or 'oreclosure or a deed in lieu of foreclosure, to construct or complete the construction of ,.grcyernents or to guarantee such construction of improvements, or to guarantee such ti�^s .aL? or or completion or tc pay. perform or provide any fee, dedication, improvements or :;t -e: exaction or imposition, provided- however, that a Mortgagee shall not be entitled to devote ~� P,operty tc any ases or to construct any improvements thereon, authorized by the Project or by this Agreement. unless Mortgagee agrees to and does construct or complete r nstruction of improvements, or guarantees such construction of improvements, or pays. Fir o' provides any fee.. dedication, improvements or other exaction or imposition as eQui! ec uy the Project Approvals 16.3. Notion of DOWN to Mortgage and Extafton of Right to Cure. If eceives notice from a Mortgageerequesting a copy of any notice of default given -ano-owner hereunder and specifying the address for service thereof, then City shall deliver to `Vr Mortgagee, corourrentiv with service thereon to Landowner, any notice given to _a-;d3:)wrier with respect to any claim by City that Landowner has committed an Event of Default err M artgagee shall have the right during the same period available to Landowner to cure or s .: y . ,r to commence to cure or remedy, the Event of Default claimed set forth in the City's through Sts City Manager. may extend the cure period provided in Section 15.1,2 re than an additional s;xty 'Sfl; days upon request of Landowner or a Mortgagee Severjbii ty. Except as set forth herein, if any term, covenant or condition of s agreement or the application thereof to any person, entity or circumstance shall, to any er, nc- irrvalic or unenforceable, the remainder of this Agreement, or the application of such _-ovenant or conation to persons- entities or circumstances other than those as to which it —2 c ,valid of unenforceable s?rall not be affected thereby and each term, covenant or ci this Agreement steal: be valid and be enforced to the fullest extent permitted by lave: however i` an provisicr, of this Agreement is determined to be invalid cr r-^r`�ar)ie and the effect thereof is to deprive a Party hereto of an essential benefit of its a, ,ereunder, the}s such Farly so deprived shall have the option to terminate this entire c eernent from and after such determination 18. Apg4abMa Law 'This Agreement shall be construed and enforced in : c�ciersce with the laws of the State of California. 4_ I's A orn s` Fqg§ a tot n , B ... Ic. ar; y legal action be brought by either party for breach of this Agreement or to enforce -visions herein, the prevailing party to such action shall be entitled to reasonable - S fees court costs. and such other costs as may be fixed by the Court. 2(. Atlorngvs' F%§ and Co§ts in Legal Actions ft !bird Psriiesto the AareeMnt and _CorAnued Permit Prooez* ng. If any person or entity not a party to this W ee rent initiates an action at law or in equity to challenge the validity of any provision of this a es es= or the Project Approvals, the parties shall cooperate and appear in defending.such. �endowner shall bear its own costs of defense as a real party in interest in any such c"indowner shal reimburse City on an equal basis for all reasonable court costs and ees expended by Cify ;n defense of any such action or other proceeding and shall ::.ttcrneys fees and costs that may be awarded to the third party or parties. The City n 'he ever ar- actio,, at law or in equity to challenge the validity of the Project s filed by a tn,rd party airier than by a state or federai agency, the City will continue anc approve rerrnrt applications that are consistent with and comply with the Project ,:,,)less a co.3r1 eniorns further processing of permit applications and issuance of Z' "Transfers ark AssigNnents. From and after recordation of this Agreement i -ie Property Landowner shall have the full right to assign this Agreement as to the any portio, thereof, �n connection with any sale, transfer or conveyance thereof, c re express written assignment by Landowner and assumption by the assignee of ass :merit in the form attached hereto as Exhibit G, and the conveyance of Landowner's he P'operty ^-elated thereto, Landowner shall be released from any further liability or 7, rereLjnder related to the portion of the Property sc conveyed and the assignee shall ,t_ - .,-c to be the andowne,• ," with all rights and obligations related thereto, with respect to e°qec oropert,. Prior ?c recordation of this Agreement, any proposed assignment of ,rt7 ~nerY 'try Landowner shall be subiect to the prior written consent of the City Manager } a the -.ity and the Porn- of such assignment shall be subject to the approval of the City . ether of whrc.) shall be unreasonably withheld. AgreaWent Ypns with the Land. Except as otherwise provided for in Section -nl= 4greement. all of the provisions, rights, terms, covenants, and obligations contained in a -t ement shall be bindinc upon the parties and their respective heirs; successors and epresemativec lessees and all other persons acquiring the Property, or any portion an, interest "iererr whether by operation of taw or in any manner whatsoever. All of . 4 crrs of thi: Agreement shat' be enforceable as equitable servitude and shall constitute ;�. ar,.s -unnino wife, the rano.: pursuant to applicable laws. including, but not limited to, 468 of the Cry l Code of the State of California. Each covenant to do, or refrain from s.- ne act on the Property hereunder, or with respect to any owned property, (a) is for the such properties and is a burden upon: such properties: (b) runs with such properties, taindinq upon eacr. party and each successive owner during its ownership of such ;i,,, i9 �O+ -.roperhe!s or any portion thereof, and shall be a benefit to and a burden upon each party and its rapey hereunder and each other person succeeding to an interest in such properties. 23. Bankruptcy. The obiiaations of this Agreement shall not be dischargeable in _ar?f UPI cy- 24. tnderWi. Landowner agrees to indemnify, defend and hold harmless v snc its elected and apoointed councils. boards. commissions, officers, agents, employees, wY.c representatives from any and all claims, costs (including legal fees and costs) and liability any personal injury or properly damage which may arise directly or indirectly as a result ar i, actions or inactions by the Landowner. or any actions or inactions of Landowner's --.cntractcrs, subcontractors. agents. or employees in connection with the construction, . n -n> c verri�ent, operatiar or maintenance of the Property and the Project, provided that a^d,-w5rer shall have no indemnification obligation with respect to the gross negligence or �J Mu misconduct of Cit,{. its contractors. subcontractors, agents or employees or with respect to .7E air;enance use or condition of any improvement after the time it has been dedicated to „r--=ccepted by the city or another public entity (except as provided in an improvement t or maintenance bond) and (2) any additional mitigation required, including but not pie:- 1 aayrment of ary mitigation fees that may be imposed. as a result of a lawsuit filed by a .,ary challenging ar sceking to invalidate the Project Approvals. 26. Insurance 26.1Public LiabilibE and PFQ4lft Dame Insurance. At all times that _e -ocwrer is constructing aiiiiy improvements that will become public improvements, Landowner smhai rriaintain :n effect a policy of comprehensive general liability insurance with a -i,f-'-C<-,GUrrence combined single limit of not less than two million ($2,000.000) dollars and a cf not more than fifty thousand ($50,000) dollars per claim. The policy so maintained -ardcwner shall name the City as an additional insured and shall include either a severability "tEre�: ciause or cross-lialbillty endorsement. 25.2. Workys' CorfMirsalion insurance. At all times that Landowner is ;st-scting any improvements that will become public improvements, Landowner shall ,''latTllarz ':Workers' Compensation insurance for all persons employed by Landowner for work at F �`n!e;t site. Landowner shale require each contractor and subcontractor similarly to provide Compensation insurance for its respective employees. Landowner agrees to the City for any damage resulting from Landowner's failure to maintain any such 25.3. EvWejee of Irmurance. Prior to commencement of construction of any ;;rc �e,,-ents which will become public improvements, Landowner shall furnish City satisfactory -.cr- of the insurance required m Sections 26.1 and 26.2 and evidence that the carrier is --ji«d °c give the City at least fifteen (15i days prior written notice of the cancellation or '-r coverage cif a policy The insurance shall extend to the City, its elective and ,-)ointivc boards, commissions, officers: agents, employees and representatives and to,, ;:�reowner performing work on the Project. 26. Excuil for l► 2nWMVice. Landowner and City shall be excused from ,enc ryt-)g any obligation or undertaking provided in this Agreement, except any obligation to �;.-�• sum of money under the applicable provisions hereof, in the event and so long as the erc--Tiance cf any sucti obligation is prevented or delayed, retarded or hindered by act of God, r :-arliiquake, flood, explosion. action of the elements, war invasion, insurrection, riot, mob ie,. tie sabotage. inability tc procure or general shortage of labor, equipment, facilities, -ale: alp or supplies in the open market, failure of transportation, strikes, lockouts, z`?ratlor requisition, iaws, orders of governmental: civil, military or naval authority, or any ;z.,se whether similar or dissimilar to the foregoing, not within the control of the Party :c :-iE extension of time tc perform. The Party claiming such extension shall send written ?he ulaime ' extensior tc the other Party within thirty (30) days from the ,.^ enr"ement of the cause entitling the Party to the extension. Third Pads Itneficia[ies. This Agreement is made and entered into for the r; : wecfon and bereft df the Landowner and, the City and their successors and assigns. =4c. wtner person shall have any right of action based upon any provision in this Agreement. 2F. Notices Ail notices required by this Agreement, the enabling legislation, or the u3 = adopted pursuant to Government Code Section 65865: shall be in writing and . �v,ec in person or sent by certified mail, postage prepaid. % t;,,;E required to tae given tc the City shall be addressed as follows: QTY OF LODI t•'v Manager C Box 3046 :di CA 95241 -1 91 0 Notice required to be given to the Landowner shall be addressed as follows: F-RONTIER COMMUNITY BUILDERS, INC. r.e pa . -Ly may change the address stated herein by giving notice in writing to the other party, enc thereafter notices shall be addressed and transmitted to the new address. 29. Form of Agement; RecordotWou Exhibits. Except when this Agreement is _ ati.ally terminated due to the expiration of the Term of the Agreement or the provisions of S in Secticr; �.3 (Automatic i"errn�ation Upon Completion and Sale of Residential Lot), the City shall �a.,se 1.n :s Agreement, any amendment hereto and any other termination of any parts or _r -visons hereof. to be recorded.. at Landowner's expense: with the county Recorder within ten i gays of the effective date thereof. Any amendment or termination of this Agreement to be _ �Cec gnat affects less than all of the Property shall describe the portion thereof that is the suer. amendment or terrmnation This Agreement is executed in three duplicate ra s -ach of which .s deemed to be an original_ This Agreement consists of _ pages and w.ict' constitule the entire understanding and agreement of the parties. 3u- Further Ass anc. The Parties agree to execute such additional instrum6nts v jr~dertake such actions as may be necessary to effectuate the intent of this Agreement. wx CiN Cooper ion. The City agrees to cooperate with Landowner in securing all -e„-�.,,*s nich may be requiredr by City. In the event State or Federal laws or regulations rnc. ed atter the Effective Dateor action of any governmental jurisdiction, prevent delay or ecis de :tiompiiance with one or more provisions of this Agreement, or require changes in ari: ,.. Gos or permits approved by City, the parties agree that the provisions of this Agreement ovifiet. extender~ or suspended as may be necessary to comply with such State and ,nF Ma:Ns c:r regulations or the reguiaitons of other governmental jurisdictions_ Each party extend to the other its prompt and reasonable cooperation in so modifying this 4wrer"er or approved pians. IN 'AlITNESS WHEREOF the City of Lodi, a municipal corporation, has authorized the of this Agreement in duplicate by its Mayor and attested to by its City Clerk under the 'V 0� Ordinance No. adopted by the City Council of the City of Lodi on the 200 and Landowner has caused this Agreement to be executed. "LANDOWNER' 31= _ODI FRONTIER COMMUNITY BUILDERS, INC. _..c:eal corporation NG':+e Biair King is. ,.!v Manager :;ler• By: Name: Its: ',PPROVED AS TO FORM Fav AoDrrvey L EXHIBIT LIST Eynibit A-? Legal Description of the Property Exhibit A-4: Diagram of the Properly E-xnibit 13: (Zeneral Plan Land Use Map Exhibit 6-" Zoning Map for Project Site Exhibit C Reserved Exhibit D Development Plan and Infrastructure Map for the Property Exhibit E Growth Management Allocations Exhibit F Annexation Approvals Exh,ibit G Form of Assignment Exhibit K Reserved Exnibit i Part{ improvements Exnibit J: Required Park Amenities Exhibit K Ejenefited Properties Ex�ibii i- Agreement to Amend Westside Development Agreement EXHIBIT A-1 LEGAL DESCRIPTION OF THE PROPERTY The land referred to herein i* situated in the State of California, County of San Joaquin, City of nodi, and is described as follows: EXHIBIT A-2 DIAGRAM OF THE PROPERTY N-4 211- -L =TT - TF L_L i ~I intt-it, IR --T hentiAl Pion 10"gr &%W low all 619hus IRS' Intl EXHISIT C Reserved EXHIBIT D DEVELOPMENT PLAN AND INFRASTRACTURE MAP FOR THE PROPERTY a EXHHMT E VOSTSIDE PROJECT GROVIIN MANAGMNT ALLOCATMM TANLE Apoic #A* CWe Ak"fion Effectj* Date of 215 Low Density Units (Reserve) Dvvelff" A `V . I .. th .. �i Ahe Agee nt &eYeaWnsity Unitsv Calondar Year n after't* Effoc*e Dele VAhir- Abe Caiwdar Year alter jEwdive IDaW dAMhm te CaWdar Year after Etie DW Mthir to Casser Year after E cfiw DAE Years f 180 High Density Units 40 Low Density UnNB .e Yesrs 40 Low Density Units r Years 40 Low Density Units Within e Calen(mr Year rave Tears 40 LOW Density Units 141thir. te CoWdar Year %x Yes r s 40 Low Density Units after Ercow ow e CoWder Year verg Years 40 Low Density Units -Pftel- cow pale ,.Alithir e CoWder Year Sght Years 140 Low Density Units afleT E*ctive DeAe V07, EXHIBIT F ANNEXATION APPROVALS EXHIBIT G FORM OF ASSIGNMENT FI�iAL BUSINESS Document entitled to free recording l�,owefnment Code Section 6103 RECORDING REQUESTED BY AND vNHEN RECORDED MAIL TOS -,. �1 Lodi C. Box 3006 L001. CA 95241-19 Attn: 11ity Clerk (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) ASSIGNMENT AND ASSUMPTION AGREEMENT RELATIVE TO FRONTIER COUMNITY BUILDERS WESTSIDE DEVELOPMENT AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (hereinafter, the grerent"? is entered into this clay of 200_ by and oe{weer Frontier Cc)mmumty Bui)ders. a corporation (hereinafter 7 eveloper and a _ (hereinafter RECITALS Or 2007, the City of Lodi and Developer entered into that rrta r agreement entitled "Development Agreement By and Between The City of Lodi :.c I'rcntier Comr•.unity Builders; Inc. related to the development known as Frontier .--,unity Builde r. Westside Project (hereinafter the "Development Agreement"). W-rsuant io the Development Agreement, Developer agreed to develop certain property ---m : narticuiarly described in the Development Agreement (hereinafter, the "Subject subject ?o= certain conditions and obligations as set forth in the Development ThE Development Agreement was recorded against the Subject Property in Dfficial Recores of San Joaquin, County on 2007; as s.;n,ent Nc 2. Developer intends to convey a portion of the Subject Property to Assigniee, Lcrnrnonly referred tc a= Parcel . and more particularly identified and oescribed in Exh� it A-1 and Exhi A-2, attached hereto and incorporated herein by this ,-eference (hereinafter the "Assigned Parcel".). . Develope; desires to assign and Assignee desires to assume all of Deve;oper's right. title interest, burdens and obligations under the Development Agreement with respect to and as related to the Assigned Parcel. ASMGWENT AND ASSUMPTION NOW, THEREFORE, Developer and Assignee hereby agree as follows: 1. Develope= hereby assigns. effective as of Developer's conveyance of the 4ssigned Parcel to Assignee, all of the rights, tide, interest, burdens and obligations of Developer under the Development Agreement with respect to the Assigned Parcel. Developer retains all the rights, title; interest, burdens and oblations under the Deveiopment Agreement with respect to all other property within the Subject Property owned by Deve.low 2. Assignee hereby assumes all of the rights, title, interest, burdens and obirgatlons of Developer under the Development Agreement with respect to the Assigned Parcel. and agrees To observe and fully perform all of the duties and ot,kgations of Developer under the Development Agreement with respect to the 4ssioned Parcel. The parties intend hereby that, upon the execution of this Agreement and c. )nveyance of the Assigned Parcel to Assignee, Assignee shall become substituted Developer as the "Developer.' under the Development Agreement with respect to the -,ssiened Parcel All of the covenants, terms and conditions set forth herein shall be binding r:r and shall inure to the benefit of the parties hereto and their respective heirs: successors and assigns. 4. The Notice Address described in Section 28 of the Development Agreement c• the Developer with re$pect to the Assigned Parcel shall be: IN WITNESS HEREOF, the parties hereto have executed this Agreement as of i -.e clay and year first above written. This Agreement may be signed in identical �:crinterparts. DEVELOPER: ASSIGMEE: a Bpi - — p"Ot Name: -rdft Divisior President V": 4 :r. iUri 4 By: Print Name: Title-. EXHIBIT H RESERVED EXHUNT I , PA*K NTS aasin/Park Area Summary WestsiOe Annsxation Park Basin {' ), Net Gross, Total, Locabon acres (2),acres acres acres 29 1 6 1-6 4.5 6 2.1 2.1 2.1 i r 6.2 5.4 6.1 1A,3 ' rrc:on <, "..'9.7200'. Park Basin (1): Net Grote Total, Location acres (2),acres ac" acres u 5.9 1.5 1.5 7.4 (3) E 6.7 2.4 2.4 9.1 (4) F 48 1.5 1.5 6.3 i G 2.2 2.2 2.2 H 2 2 2 i - Optnace orCenlury Blvd. _.-..---- ----- — ` (') VVeslside Annexation area basin calculations not approved. he Oasin area numbers are subject to change. 2 Net �eea measured from street right of way Area 4-equiremants are exclusive of bike and ped rvutev- i 3 Park Ao be iocaled at the southwest end of designated area. Park to be located at the south end of designated {4'; area. �wo divers of open space are shown on Century 5E Blvd Neit*r area provides sufficient space for park acilis. ' rrc:on <, "..'9.7200'. iar..4' 9'-200-. rl - r-s W to< x X X1 1xi x x X X! XIX x wy lxlxl lk ;Klxix x x x x x x x k 1 k x x x xxxxxxx I r I I x x XIX x x x It Lu x Ix At I CL x x x Lu x x X f f Em I x! Ix Xi x x X 1xi rl - r-s c N ws rr; C oc AGREEMENT To AMEND T±iIS AGRUhiOT is; made this 4V day of December. 2007 by and between the City of .odi (OW), a C.sWornia General Law cOy. represented by the City Manager anti City r,twrr*y with the lInAed authority as described in Section LA; Citizens for Open 3ovemmsnt, an uningxpo"ited associadion (Chizens); and Frontiers Community Builders ;veier) a dbe of r tenter Lend [bmpanie, a Cirttlomio Corporation. The Parties agree �,s `olbws� Lr ro i.—T-17T.1 1Ls� - of i ndi;(•C r") is a General Lew city governed by a fore-n*mb r ciy council. or ail purposes herein: and during all t rrNs dwing fire riegiAktlon of this Agreernept the City 'Aarrsger and City Attniney.tmve represented the Chy, However in tip Agreement and at til L;mas during the nego[iRtbn of the Agreement the City Menagpr and/or City Attomey have 4eruec the Wacity or iql authority to bind tine City of Lodi and/or the City Cvuncg. The pert underand that thODughout the neg&A*n and in executing this Agreement the City -.Asnaget and City ATTornmy cen only recommend to the City Council that it take certain ;✓:tions, All authority and discretion remains with the City Council over whether the City r �ncii will approve or d%spprove of this Agreement. The C try Council is scheduled to hear project at a duty na+ticed public hearing scheduled after February 1, 2007. Citizens is an unincorporated imsocia►tion that has eornmeaWd on the development orc,wsed by Developer_ The "Project' referred to herein is as defined in the Development. Agreerner►t for the 'FCB >ll amide Project" with all Project Approvals described therein, ",c:zef?s desire to have certain mltigetion measures and ciarfications added to the ,e;opment Agreement negotiated between City and Developer that in the opinion of zee:= wi€l further ~tire interest of the City and the interest of the public. If these ^',cndst enz are addvl w the draft. Development Agreement in the form of this Agreement, �rscr shall tie an e>hiblt to they Development Agreements, then Citizens will suppW the --c ,;e�:L will 110t make negative comments about the Project's EER or the Project at any City - jr dl ar vUier public steerings, and will not subsequently challenge the cerclf cation of the n- the Pro}ecl Approvols, directly or indirectly. Ann Cemey shall be the sole spc*esperson Cgaens and make these statements at the City Council hearing, Developer. a pri'pate eritily, is the applimint for the Development Agreemetrts and Approvals aascrWed therein, The term `Developer" includes all related envties of oe -toper and thoir yrs in tntstest e The part* afW that the Development Agreernents contain commitments for majc.r in-rastruature en# tsmimities that will tesult in public berwfts for the City, . Altix)ugh "izene are Taot fully 54t38ftd with all aspects of the Project and Elif, sews balanced the beWfts of the Project, including the changps to the *aft Development -�greernents as set forth in fihls Agreernent, agakm the adverse effects of the Projects and ,aE concluded that the Projects. separately or combined. are subsuntialiy more beneficial -o vie City than detrimekai. a. 4'he parties agree that the draft Developrrrerrt Agreement for the Project, scheduled to : e i-ansidered by the City Counclt at the pubk hosting after January 1. 2007, Is to be hereby arrended by and through this Agreement, which shall be attached to the CWJ64opment, kgrev;ienf as Exhibit Developer she Ii;obtWn permanent easernefts to be field by the City or other qusdified W Y e.g- Central VWY Farmlatul Trust) limiting the we of Sen Joaquin CounW real uaQL*rty to agricuiturat uses and relined irsctivitios as are permttted from time to tone.dner the s ericulturel zanin@ laws of the County (OACricutturel C m"rva,0on EamorAnts'). In rc 'iding mitigation for Impacts to agricultural land, Developer shell adhere to the terms of 'hr final adopted Sari Joaquin County Agricultural Mttigatation Ordinance, now under onslceration by the fan Joaquin County Board of Supervisors. (See November 14, 2006 rfm-fi 0rdinance.) Pt a minlmurrl, and notwithstanding the terms of tate final, adopted County 3rdinf nce, the AgrirAlttural Conservation Essernents stall be recorded on a 1-:1 acre ;rved-developedratio against an aggregate til of up to 152 acres, mage or fess. °c10jhad within FCL Wide Project invoiv i one or more paresis bt land - vouI not �Eow�arW contiguous with each minion acre located within San Joaquin County and zersec; for aVicultural uses ('Protected Properties'). tf rnttigation lana are Ioca"d In the c�'nz4'v Zone of the Son Joaquin Delta that lies within the County, the mitigation ratio shall e .9:1 acre (ConServedWevetoped) basis. However, if prior to the Developer's 3npher) e with this agriculutrai mitigation requirement, the San Joaquin Board of :suns excludes )and within, certain areas of the Dourtty (e.g., the Primaly Zone of the r: Isom :)eing used for agricultural mitigation purposes, the parties agree thi st those js woujd be excluded f m being used for mitigation purposes under this Agreement At a rninimurn, and notwithstanding the terms o1 the final, adopted County the Agricufturst Conservation Easements may only appty to Protected Properties tr-a, ori not encumbered by ia) any other perpetual open space mriservation easement or -r.a"' .1 f: r .!-? .. .. ..... _._. i nOa�r nei'9-_. •! '. _ - deet restriction} or (b) any ether perpowal agriculture rt tion easenwnt or deed; restriction. The coFt of opting the AgriictNWral Cr+tmrveticm Easements shall rest with the Oeveieper. The ProUctsd Ptaperdos must be subject to permanent restrictions on use tv ensure Lhe avaltabfiity of agricultural production capacity by UnOting ndi- cultural ;levt-iovment that is indorasi0ent with agriculture uses and related activitW. In aacankwwe ,mIth. the County's Nc,+iiembar 14, 2006, draft Mkileaden Ordinance section 9.1080.3, kubd'+vision iex1), the peel toper shall pay an sdtninie atll►e Tee to cover the costs of admiMstering, monitoring aad enforcing the tarmliand conservation easement in an amount be dowmined by the quollfied entity that will hold the conservatkn easement_ N the City vlc!� the Agricultural Consarvation Emmmonts, the City will monitor the Protected Properties .t.ev !a the easemer►ls biannually through its Inning Commission to ensure compliance. ,at the requirements of this provision. If the City is selected to hold the Agricultural �,r.:..servation Easements, Developeer will pay City $5,00() to compensate the City for monitoring cost/contingencies In connection with the Agricultural Conservation Easements or itis Alesmide Project ' oe Agricultural Conservation Easements shall be recorded in the applicable ratio(ee) 5&o,w a rninlrrium el each acre to be developed (or more) within any phased Final Subdivision tap of theRrooet prior to the date the first residential building permit is issued -c -.eveloper for any such base thereof. t., C;iW shall notify Citi 4m of which sltei(s)'are selected to meet the requirerneras of this provoly-: 30 days prig to the reserdation of any Ag*mkural Conservation Easements wTsua-11 to this Agromaint_ if bothCitize►n$ and the City OV", -the mitigation ratio �ypiicat3le to mltigetiat lands outside of the Delta Primary Zone may be reduced if the Develooer propawA to abUdn corraervatlor} eese:menft that, in the judgment of both Citizens 3nr the City, have a greatitr mitigation value than lands that could otherwise be used as n►t,ga.`en for agricultural impacts of the Projeets under this provision. 1, Developer alt ill become a California Greets Builder prior to the construction of t �iornes within the Pi6jectii. The California Gram Builder program requires that all j�, rne^; are at least 15% rrowe energ}r efficient shalt currently mandated by Title 24 in ,:a ; tonna and meet gtAdelihe:s for ene qbf efficiency fret but the US F-nv!F amental Protection 4env)- The homes within the Projects may contain a verily of anergy efficientfeeturets enc, atternative energyiiir-atures such as him efficient insulation, high peaformem-,e windows, -ir, efficient he aftg and 000iing equipment, covet roofing, radiant barriers, awnings, h.ai- p day tightingandquallfie3d fighting, <: Developer's saws as a Callomis Greets Builder requires Developer tc mpoment water conservaion features that saves 20,O©Q lyalions per home per year. seveloper shell prvvidh �froW yard landscaping ging woodw based irrigs n t rrtmllets f, V drip. irrigation and, may utilize other water ccinsetvetion features such as high erffide3ncy 741ures and eftient plumbing technolcgilrs, proatim and materials. Developer also agrees r _sC Weett►er bases +rrig"on controllers In front yards, parks and common areas. I Develop el -401 make avallobie solw power features and akwukaerl car : -,Barg ststions or outlets ftt horrwwners wtibin the Projecm way elect to purehelse as nar;_ of Stiat hor<neawnerfis o ion WMge. N' Developer a�s that at least 50% of the constualon site waste shalt be rf,-ycler, or otherwise dive frcrm landffl disposal. Developer shall use only EPA approved natural gam f lro*aes, firep6oe irisert. woodetoves or pellet stoves when such fireplaces an Installed. Deveioper Will ;. ;,rr*� with all federslr,stati antl local laws and regulations pertalfOng to the thstallortim crf wood burning f r'epiaces. 61 Developer wig encounWe lanciacspe maintemnce companies is use eledflca :;Ov4red equipment. Shade trees will be pisrrted where appropriate throughout the Project and ,o,��Catet t o shade paved areas and to protect dwellings frGm energy consuming i�:nvironmsntal conditions. 8`- Developer acmes to comply with the Cslifornis Green Builder program that ppges to nigh density:resWritial units. Curren* a pilaf program exists stat k subMaettllely rr lam: to the low den ty ptograrn, with the exon of the 2Q.OW Tion per home per }car in water Consov , on. Developer beilgves that the Project's current land use plans promote the principles of -i*,w that intludtl neighborhoods that are walk -able, inWoonrtected, that include oedesutan friendly stn Lvapes, bWycle fries desip elements: well lrrtegrated, highly .'i5it c, and publicly koesdible Wn apam. Developer is also cummkwd to dersWingthe spaetfic conjponerrts of the Projects to Include housing and structural forms that In visusily rtpresting, well moduiat4, c nsbuc ed of high qualflRy noterials, proportionate to their srrvU=+dings, and a range of hap sit types, sizes and affordability. !�Wotrianiransil� grrd ice: Developer agrees to implement lite iolltrwtrkg measures: PtoAde pedestrian entrancing 1AftBstrucWre that inClUd= siclevAAW znd peoestrian paths, (Pratt PWMVisn cohneotiortis, stmt tr*66 to .shade sidew8fk5, petfws#rlan safety designs/Wdmsinjctu(e, street lighting and/or pedestrian %lVmkNzatkm and i ;nage, and 2) Provide bicycie-enhancing infrastructure that includes; bikeways/paths - nr.ecting to a bikeway system as well as secure bike parking. 4 L The Preiect'f requirement for investment in Lodi's este , QIUVeerrinity ss set forth in th! FCD WeKside De ak*M errt Agreement Is hereby amended tb requito telae[ any units *hick are seledled by the Developer to be reteap,bUltated or replaced and +which are currently at affordable runts for persons or families of low income shalt remaih affwdalole for pemorris of low income. �f a Aoditlenai enthlements for urban development within the Project. area :.er.. wbdh► *m meisti pa+ol neaps, building porn ftw, etc.) doll not be granted for any awelll wllAn the PwjeK eir" after total waW use exceeds the projecUd safe: gmur*w&U r yield of the Prc*mt area until additional water sources (e g.. W.M. graundwi ter �echaege or vreater treatment or otherwise) are available, According to the Westside souihwest Gateway Pioject Waftr Supply Assessment (July 2006) ('WSA'), a total of approOmmely 257 acne feet per year will be available for the Wesmitle Project upon its ,�nrexe on while the total projected water demand will likely be in excess of that amount Before full build -out occurs. The purpose of this provision, then, is to ensures that water use ay -,nes Proje itt does wt exceed the projected increase in safe groundwater yield ettrlbutable :,,rmexstion e?f the Project area Into the City urAll additleml wster sources (e.g., W.I.D. �_Ircwater recharge or water treatment or otherwise) are available. (Sex WSA, Figure 5.4.) �i. Developer shall strive to phase development in a manner that .,il. -educe land use confliCts wttb lands currently in agricultural use to the west of the P,zov 7o the extent feasible. Developer will generagy develop the Project In an east to A,w direction. 1) big Ck"Craft lac CitiisesiCe aW. This AgreennDrrt will not become o fedtive in the event #rat bOzem wWo' Ann Cermet': (1) Ale any legal action chalienong the City's cerWication;of the EIR; (2) file any legal station chalilenjong the Cky`s aproval of -he= F+roject's land use spproveis, including the amendments to tate West Side Facilities ,mager Plan; .(3) file any Mol ection challenging the San Joaquin Local Agency Formation :.omrnission's compliInce with CEQA; (4) file any legal action ch8lenging the Sen Joaquin oral Agency Fornwtiatl CornrnMion's approval of the antiexstiar+ of [tee territory to the City -` -ad:, (b) qualify a roterondurn petition to require an eleotoh concEl'i'iing one or more of r:e orojed's W&Iatiue appmvals, or (6) violate the terms or the spirit of this Agreement in ;r - other manner. A.-.. eA E. • it�ll� a. The amendment to the Development Agreement called for In this Agreement will become portieNy ineffective lee set forth bellow in the event that arty other laarty i; files any lel action chadengireg the City's certification of the Eft (2) files any iegsi aL-tson challenging Ite CltjPs approvel of the Project's end use approvals; (3) files any 'e ai action challenging the San Joaquin Lapel Agency Fon n;stlon Commission's compliance 01EQA (4) files a lege] action c;halienfjrjg the Seri Joaquin Local Agency Formation ,nmis5inr': approvol of the ann"ation of the territory to the Crty of [Jodi; or, (5) cualifiees a l nn•i_. .Yr rYT 1r��—..�_.. _-_- 7...nn nra.. .�. ..�' i LL.. _._ ..... e#es wwum petition to ri: QUIle an election concerning one or more al lige Project's 4eigisk ve epprc►rEis. r:. If an event triggers a partial invalidity as called for ab&okthe ,atic m number of scros to be mitigewl per Section 2A will be reduced by 50% and . -:�irr,-sutserneret of s parbon of the fees paid to OtIzen6 under the So tthweK GwrtaWay jevcWpme t. Agreement timed November 15, 2006 (sae Paragraph 3C.4mrain) shalN De. )ue imm, Citizens to bevolopr (Mthin 60 days of its written notice to Citizens) In the amount 1 S 7,66.. Moreover, Cltb4ns' statutre of Hmttations to file an action chellorgong the My's ;i -M von of the EIR and/or land use apprmaLs will be. tolied for thin (30) days ft'om the imitaticr►s period estab ishadd by CEQA. City and Developer grant a second conditional and miiod Toiling of the statute of limitations to file an action challeriOng City's certfificatlor► of This cconditional and limited tolling will only arise upon a legpl challenge by a third . ? -. �C'c determ'inAon on the EIR and/or annexatior, and Cltkens' qme to ?Its an tni M shall emend for only dirty (30) days after the third p rtyfiies its action. In the event that diemdMls W th prejudice are filed with any pr iieshle Court before answem are tiled in the third party Ilt#gattlon then Ctugehs will A� pis any subsecuent actions and the terms of this Agreement shall be fully restored. A� Ants Corney, as the sole represerfttive of Citizens, shall appoar at all ppreprI9Ae Ctty Council F ausiro and express support for the approved of this Af't+emrlt, _Irt nor-ctppasition to the afty Council's approval of the Project and owtiflcation of the EIR, _.. Otiaens represents and warrants that Ann Cerney has authority to execute th! . tkgreemem on behalf of Citizens and is authorized to speak on behaff of the organization at sli i..adl City Council and other public meetings. . Developer hes previously agreed 10 conditionally pay $40.000 to CWzms as re;rrtl: a rserrment to Citizens for attorney fees expended In the negotiation and wuxwfing of an rne-ntiment tc the 5outhw n Gateway Development Agreement along the same lines as set ?-.i, :,nova; therefore, the parties lurther agree that Developer owes on 002=1 a -mum '67-n rse s3errzbers o, the Citizens for any time and effort expensed in the proems of arnanaingthe Westside Development Agreement. if the public bermflts included in this Agreement are not adopted by the City r.;,,:rtnci'., Citizens' support for approval of this Agreement and non-opposmoh to the Cit ouncll's approval of the Projects and cartlfiation of the EIR will be wkhdmwn and iris r _evict 5, 4toted objecUons will be renewed. CRy and Developer agree not to arisen an. ar .rtausbun of adrninistratve remedies defense as to those issues specifieaNy raised and ,)neusLed at tearing- regarding the Project if INgation ensues and this agreement becomes nt= ! and void, or perlisily ivmfid, under this Agreement. '4i,-7rk71C7TXKV'7TT 7-40 .. ._ _.F _.__._.�.._, 7.�3'.r_ •)e 7 T�i — i n f�hf�h lr ll��I, h', Y • A;I !I:.. �. " Y.'. Agreement ;staali be immediately effoctive and bindbig upon Quens and "�e>, siopor, but subject to taern*wtlon by Go"Mon subsequent ehwWd the Lodi City Could) �t retry thW I aSrnr)t at The Owne of Its public twering on The FCB Westlake Project scheouled after February 1, 2007. The remainder of this limen wnx shell only become effwuve upon tit CR1y C,oalnic; a'cppnay+ral of the emendment to tf►e draft Deveiogrraa3rrt ^,grae"venz them ore desc load in Saco► 2. Notwithstanding any *War provision herein to .ne comwry, bw*use ai the Wure of the tnftelion measures Sec forth herein (e.g., ratio of 1:3 aacrJJ6 for agticuttare MWOWn), the parties agree that this Igta;ern ibnt ohaali be ellfect#ve as star] aktrw roasolutaions of their dbMtrm •s to Me Project h the amendment to the pevelopn*nt AV*WWd cued for in this Agreement are adapted by the City CouWi. Mons aaVees asset raeWler it nor to loth tiduei Membem ill n je tial C4 (mthe San JoegVin Local Agency Forr MOM C*Mnd* *n over the sai4fidaena y of *! aFA or the land use/awexeVon da Ions by these pubfic agMclee. Further neither ;tiwo nor its member sho#i enooumge or gime assistance to any athOM to challenge the �jekreiapees Project either adminletrullvely or judicisiy. Moreover, ne'ttltar Citizens. not its em,twrs, will encourage, Indirectly waist or actually circulate 8 petWon to place a3 ~eferea6tJm on the baaiiot to force an elections about the Project's legislative approaeis. This agreements ma3y to execvtod In counterparts. t Fates 13y� �m E34uo�e, P►esacieeA Crty Cf Lam --- By:11iair Kin& City Mmh 109 i _ ;,/. Cir* it Ow sOVOTOW 0 Err. Anna Gouley