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Agenda Report - August 15, 2012 G-02 PH
AGENDA ITEM 01 A% CITY OF LODI COUNCIL COMMUNICATION AGENDA TITLE: Public Hearing Regarding Terminatia of S uthwestGatewa, and Westside Project Development Agreements with Frontier Community Builders, Inc. MEETING DATE: August 15,2012 PREPARED BY: City Manager RECOMMENDED ACTION: Public Hearing regarding termination of Southwest Gateway (SW Gateway) and Westside Project Development Agreements with Frontier Community Builders, Inc. BACKGROUND INFORMATION: In Decemberof 2006,the City entered into the first of two Development Agreements with Frontier Community Builders, Inc. (FCB). The following provides a brief overview of the proposed projects: Area Acres Housing Units Parks/ Basins &Trails (Acres) Schools (Acres) Low Density Medium Density High Density Units Overall Density Units era I Density Units Overall Density Total Units Westside 106 388 7 70 7.7 180 20 638 24 10 SW Gateway 257 770 4.3 160 9.4 300 21.4 1,23 31. 14.5 Other areas to be annexed — — — — — — 335 — SW Gateway The SW Gateway project annexed 257 acres of land from San Joaquin County into the City of Lodi, which could accommodate development of up to 1,230residential units, 31. acres of parks and trails, an elementary school and related infrastructure. To implement the proposed project, the applicant received approvals for annexation, zoning and growth management unit allocation. The growth management units were allocated through the Development Agreement and as such, would be terminated with this action. The property will continue to be annexed and zoned for residential use as well as the accessory land uses. nradt Bartlam, City Manager Westside The Westside project annexed 151 acres of land from San Joaquin County into the City of Lodi, which could accommodate development of up to 638 residential units, 24.4 acres of parks/park basins and trails, an elementary school and related infrastructure. As with the SW Gateway project, the growth management units allocated through the Development Agreement will be terminated with this action. A Development Agreement (DA) is a private party agreement between an applicant and the City that, if approved by the City Council, becomes an ordinance of the City. The attached DevelopmentAgreements that were negotiated between the City and FCB resulted in certain benefitsto the City in exchange for a vested right to proceed with the development consistent with the development approvals. The term of the Development Agreement was for 15 years. The vested rightthe developer obtains is the abilityto proceed with the development as approved and to avoid the imposition of new regulations on the subsequent discretionary approvals (i.e., vesting tentative maps) for the development. A discussion of its benefits to the City and the how the agreement would allocate growth management units is outlined below. Development Agreement Project Obligations for FCB Westside and SW Gateway Projects rl�wr � Payment of $8,000.000 in installment payments for Creation of community asset - $8,000,000 design and construction of DeBenedetti Park (SW contribution Gateway) Rehabilitate or pay the costs up to a total of $1,250,000 $1,250,000 of rehabilitating 25 single-family or multi -family residential units within a specified area within the City Westside Pay $125,000 for use by the City for economic $125,000 development actions including job creation, promoting retail sales and/or wine industry tourism all as determined by the Cit Westside Maintenance of specified public Improvements, Developerto provide the maintenance or pay including park, median strip and other landscaping for the maintenance costs for two years after maintenance and repair costs on dedicated lands for a acceptance by City period of two years bothprojects) Pay $2,300,000 to the City for use to acquire additional $2,300,000 facilities, equipment and apparatus for the Lodi Fire Department Westside Installation of public art within the projectwith a value $150,000 equal to $150,000; art subject to approval by the City Westside Pay $100,000 to the City for use to acquire equipment $100,000 for the Lodi Parks and Recreation and PublicWorks Departments SW Gateway) Community Facilities District formed to provide funding $600 per single family attached or detached for payment of police, fire, library, recreation, flood residential unit per year and $175 per multi - control services and specified public facilities (both family rental unit per year projects) Dedicate park land, design and complete construction Full cost paid by Developer of all the park improvements as described and set forth in the project approvals bothprojects) Offerto dedicate 5 -acre aquatic center (Westside) $200,000 per acre All development approved as part of the project will be Payment of development impact fees and subject to uniformly applied increases in existing impact water fees fee and to specified new fees as described herein (both projects) Payment of a development fee for a proportionate share Cost of interchange funded, in part, by of the cost of the Highway 99 overpass at Harney Lane payment from Developer—Amount based on (both projects) proportionate share of demand for interchange Payment of Agricultural Land Mitigation fee pursuant to Fees available for preservation of prime the ordinance and/or resolution to be adopted by the agricultural land based on ordinance adopted Cit bothprojects) by Cit Payment of Electric Capital improvement Mitigation fee Fees available for electric capital facilities pursuant to the ordinance and/or resolution to be based on ordinance adopted by City adopted by the Cit bothprojects) Payment of development fee for proportionate share of Cost of improvements funded, in part, by the costs of designing and constructing a water payment from Developer—Amount based on treatment system and/or percolation system for proportionate share of need created by the treatment of water acquired from Woodbridge Irrigation proposed development District pursuant to the ordinance an/or resolution to be adopted by the Cit bothprojects) Payment of Utility Exit Fees bothprojects) Developer pays full amount to PG&E installation of water well on Westside Project site (both Ensure appropriate water supply for project projects) Provide up to a maximum of $50.000 to partially fund $100,000 the City of Lodi Recycled Water Master Plan Study (both projects) All storm drain basins, facilities, controls interior to Full cost paid by Developer project (both projects) Developershall design, engineer and construct the Provide necessary infrastructure and improve following improvements or pay the City the appropriate Harney Lane and Highway 12 to meet City fee for the improvements: standards 1. Proportionate share for the surface water transmission main and storage tank (both projects); 2. All water, sewer, storm drain, recycled water pipes and related infrastructure in all streets within the project area (both projects) 3. Dedicate land necessary design, and install improvements including curb, gutter, sidewalk and landscaping on the west side of Lower Sacramento Road between Lodi Shopping Center and Harney Lane (both projects); 4. Dedicate land adjacent to the project's frontage which is necessary for the expansion of Harney Lane and improve Harney Lane or pay into assessment district for improvements (SW Gateway); 5. Dedicate land, design and install a transition roadway land adjacent to the property along Highway 12/Kettlemen Lane (SW Gateway); 6. Reconstruct Lodi Avenue west of Lower Sacramento Road to the western project boundary (Westside); 7. Reconstructthe Tokay Avenue/Lower Sacramento Road intersection to accommodate wider street sections 8. Payfair share for traffic mitigation measures in EIR that are not projects within the Streets and Roads Fee Program bothprojects) Since the time of the original approvals, the only activity which has taken place for both of these projects has been their annexation into the City. Certain obligations shown above will continue with subsequent developments such as all fair share requirementsfor infrastructure, impact fees, etc. FCB has provided the City with the attached letter requesting that the Agreements be terminated. The letter explains the circumstances which have taken place that have led to this point. Clearly, the real estate market collapse is the primary cause. As noted by Mr. Doucette, the economics of 2006 are not the same as the realities today. Simply put, the projects cannot be built as originally contemplated under the terms and conditions of the Agreements. FISCAL IMPACT: None. Attachments: Letterfrom Tom Doucette, FCB Development Agreements and land use plans May 16,2012 Mr. Rad Bartlem City Manager City of Lodi 221 West Pine Street Lodi, CA 95240 i Re: Westside and Southwest Gateway Development Agreements — Request for Termination Dear Kad, Last April, 2011, I sent you a letter formally requesting termination of the Westside and Southwest Gateway Development Agreements (see attached). The letter followed nearly ten months of regular meetings with City Staff and their consultants working on Lodi's Impact Mitigation Fee Program (IMFP) update. We were convinced then that the Westside and Southwest Gateway properties should be included in the IMFP and the Development Agreements terminated. Now, over a year later, the IMFP update is nearly complete, and the Westside and Southwest Gateway properties are an integral part of the updated IMFP. Clearly, then, it is time to move forward to cancel the old Westside and Southwest Gateway Development Agreements and establish an economic framework for residential development to proceed within the current City limits. At your request, I will outline below the main reasons we feel the Development Agreements should be cancelled. 1. The Development Agreements did not address the actual impacts resulting fiom new residential development. When the Westside and Southwest Gateway projects were moving through the entitlement process, the City's existing impact fee program - originally adopted in 1991 - had not been updated for 15 years. While the fees had been periodically increased over time, many of the underlying assumptions about program funding had changed and it was those old fee programs that provided the basis for the Agreements. Furthermore, other fees were included in the Agreements, some of which bore little or no relationship to growth impacts from the Westside and Gateway projects. 10100 TRINITY PARKWAY. SUITE 420 STOCKTON. CALIFORNIA 95219 209-957-8112 FAX 209-957-3618 WWW.FCBHOMES.COM Now, nearly six years later, the City has the cumulative benefit of precise plans for the Westside and Southwest Gateway and a new General Plan. The City's Staffis also approaching the end of a two year comprehensive study of growth impacts via the IMFP which include the Westside and Southwest Gateway properties. Their work, along with the Council's ultimate approval, will result in an updated, tailored IMFP. The new LMFP will be a far better and more accurate way to mitigate impacts from both the Westside and Gateway projects in comparison to the mitigation sought by the Agreements. 2. The Development Agreements have a fifteen vear term. were never implemented and cannotbe completed before they expire. The national, state and local housing markets were at historic levels when the Development Agreements were approved in 2006. The fifteen year term of the Agreements seemed reasonable at the time given the active market conditions. However, the market has since plummeted to historic lows. Furthermore, City Staff, consultants, and developers are not expecting new residential development to even begin for another two to three years. By that time, the Development Agreements will only have approximately seven years remaining before they expire. This is less than half the time that was deemed appropriate under the best of market conditions and will simply not be sufficient time to complete these projects. At a minimum, the Development Agreements need to be renegotiated to account for this fact alone. However, as noted, it would be more accurate and efficient to put the entire City under one (updated) IMFP. Having to renegotiate the Development Agreements, regularly monitor compliance, and account for all funds and programs separate from the IMFP would be time consuming and an unnecessary financial burden for everyone involved. 3. The Development Agreements required predetermined lump sum payments for certain fees that cannot be financed without a robust and consistent housing market. Historically, the City's IMFP has been designed to be a "pay-as-you-go" system. This allowed the pace of development to mirror the acceleration or decline of the housing market. The proposed updated IMFP will likewise operate on a "pay-as-you- go" basis. This is a more sustainable way to manage growth, particularly in a community like Lodi - where the long term residential growth rate is relatively slow. Development in Westside and Southwest Gateway will likely occur in phases by multiple development interests. While this is consistent with how development in Lodi has occurred for many years, it snakes the payment of large, lump sums on a predetermined schedule virtually impossible to finance. Development Agreements with lump sum payments work best on large scale projects expected to be completed in a predictable fashion. They can even work effectively on small projects when the completion can be reasonably forecasted. However, in a community like Lodi, this structure will not work effectively on larger scale areas of development over longer (less economically predictable) periods of time. Summary While the issues outlined above are not exhaustive, they highlight several important factors which underscore the need to terminate the Westside and Southwest GatewayDevelopment Agreements. Alternatively, these Development Agreements could be renegotiated, but that should be weighed against the inclusion of these projects in the updated IMFP program. The Agreements were executed during an unprecedented "Housing Bubble" fueled by the "Irrational Exuberance" of a dysfunctional financial system. These dynamics no longer exist and will not return in our lifetime. The housing market, as well as the overall economy, is struggling to find its footing following one of the worst recessions in history. Fortunately, the City has moved on and set a course to plan for sustainable future growth base on realistic assumptions. The Westside and Southwest Gateway projects will be a major component of the City's planned growth plans for the next ten to fifteen years. With this in mind, it is our belief that it will be more efficient, balanced and productive to utilize the updated IMFP for the Westside and Southwest Gateway projects once it is adopted by the City Council. Sincerely, 1 Thomas P. Doucette President Westside Land Use Plan LODI WESTSIDE: Illustrative Land Use Plan SCALE: I" - 20d City o1 Lodi, CA I i ,' C:\Documents and Settings\slake\Local Settings\Temporary IntemetFiles\OLK2D\11-1 FCB reportFinal.doc OFFICIAL BUSINESS Document entitled to free recording Government Code Section 6103 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 Attn: City Clerk Doc 9: 2008-166004 Thu Oct 16 09:41:50 PDT 2008 Page: 1 of 74 Fee: $0 Gary W. Freeman San Joaquin County Recorders Paid By: SHOWN ON DOCUMENT (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) DEVELOPMENT AGREEMENT yff1►197 :1 =11 VA 444' THE CITY OF LODI AND FRONTIER COMMUNITY BUILDERS, INC. FOR FCB WESTSIDE PROJECT TABLE OF CONTENTS RECITALS..................................................................................................................................................... 3 1. Authorization..................................................................................................................... ..............3 2. Property............................................................................................................................. ..............3 3. Project............................................................................................................................... ..............3 4. Public Hearing................................................................................................................... ..............3 5. Environmental Review.................................................................................................................... 3 6. Project Approvals............................................................................................................................ 3 7. Need for Services and Facilities..................................................................................................... 4 8. Contribution to Costs of Facilities and Services............................................................................. 4 9. Development Agreement Resolution Compliance......................................................................... 5 10. Consistency with General and Specific Plan.................................................................................. 5 11. Creation of Career -Oriented Employment Opportunities AGREEMENT................................................................................................................................................ 5 1. Incorporation of Recitals................................................................................................................. 5 2. Descriptionof Property................................................................................................................... 5 3. Interest of Landowner..................................................................................................................... 5 4. Relationship of City and Landowner............................................................................................... 5 5. Effective Date and Term......................................................................................................... ........5 5.1. Effective Date.......................................................................................................................... 5 5.2. Term......................................................................................................................................... 5 5.3. Automatic Termination Upon Completion and Sale of Residential Lot ................................... 6 6. Use of Property............................................................................................................................... 6 6.1. Rightto Develop...................................................................................................................... 6 6.2. Permitted Uses: ....................................................................................................................... 7 6.3. Moratorium, Quotas, Restrictions or Other Growth Limitations ............................................... 8 6.4. Additional Conditions............................................................................. ............................... 10 6.5 Annexation 7. Applicable Rules, Regulations, Fees and Official Policies........................................................... 17 7.1. Rules Regarding Permitted Uses.......................................................................................... 17 7.2. Rules Regarding Design and Construction........................................................................... 17 7.3. Changes in State or Federal Law.......................................................................................... 17 7.4. Uniform Codes Applicable..................................................................................................... 17 8. Existing Fees, Subsequently Enacted Fees, Dedications, Assessments and Taxes ................... 18 8.1. Processing Fees and Charges.............................................................................................. 18 8.2. Existing Fees, Exactions and Dedications............................................................................. 19 8.3 Subsequent Development Impact Fees, Exactions and Dedications 9. Community Facilities District......................................................................................................... 19 9.1. Inclusion in Community Facilities District............................................................................. 19 9.2. Use of Community Facilities District Revenues..................................................................... 20 9.3. Community Facilities District for Residential Property — Landowner Financing .................... 20 10. Processing of Subsequent Development Applications and Building Permits .............................. 21 11. Amendment or Cancellation.......................................................................................................... 21 11.1, Modification Because of Conflict with State or Federal Laws ................................................ 21 11.2. Amendment by Mutual Consent............................................................................................ 21 11.3. Insubstantial Amendments.................................................................................................... 21 11.4. Amendment of Project Approvals........................................................................................... 22 859464-6 Final Version 11/07/2007 11.5. Cancellation by Mutual Consent............................................................................................ 22 12. Term of Project Approvals............................................................................................................ 22 13. Annual Review.............................................................................................................................. 22 13.1. Review Date.......................................................................................................................... 22 13.2. Initiation of Review................................................................................................................. 22 13.3. Staff Reports.......................................................................................................................... 22 13.4. Costs............................................................................................................................. .........22 13.5. Non-compliance with Agreement; Hearing................................................................... .........22 13.6. Appeal of Determination........................................................................................................ 23 14. Default........................................................................................................................................... 23 14.1. Procedure Regarding Defaults.............................................................................................. 23 15. Estoppel Certificate....................................................................................................................... 24 16. Mortgagee Protection; Certain Rights of Cure............................................................................. 24 16.1. Mortgagee Protection............................................................................................................ 24 16.2. Mortgagee Not Obligated25 ....................................................................................................... 16.3. Notice of Default to Mortgagee and Extension of Right to Cure............................................25 17. Severability.................................................................................................................................... 25 18. Applicable Law.............................................................................................................................. 25 19. Attorneys' Fees and Costs in Legal Actions By Parties to the Agreement ................................... 25 20. Attorneys' Fees and Costs in Legal Actions By Third Parties to the Agreement and Continued PermitProcessing................................................................................................................................... 26 21. Transfers and Assignments.......................................................................................................... 26 22. Agreement Runs with the Land..................................................................................................... 26 23. Bankruptcy.................................................................................................................................... 26 24. Indemnification........................................................................................................ ; 25. Insurance...................................................................................................................................... 27 25.1. Public Liability and Property Damage Insurance................................................................... 27 25.2. Workers' Compensation Insurance....................................................................................... 27 25.3. Evidence of Insurance........................................................................................................... 27 26. Excuse for Nonperformance......................................................................................................... 27 27. Third Party Beneficiaries............................................................................................................... 28 28. Notices.......................................................................................................................................... 28 29. Form of Agreement; Recordation; Exhibits................................................................................... 28 30. FurtherAssurances....................................................................................................................... 29 31. City Cooperation........................................................................................................................... 29 859464-6 Final Version 11/07/2007 DEVELOPMENTAGREEMENT FCB WESTSIDE PROJECT This Development Agreement is entered into as of this 4th day of April, 2007, by and between the CITY OF LODI, a municipal corporation ("City"), and, FRONTIER COMMUNITY BUILDERS, INC. ("Landowner"). City and Landownerare hereinafter collectively referred to as the "Parties" and singularly as "Party." RECITALS 1. Authorization. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Government Code Section 65864, et seq. (the "Development Agreement Statute"), which authorizes the City and any person having a legal or equitable interest in the real property to enter into a development agreement, establishing certain development rights in the Property which is the subject of the development project application. 2. Property. Landowner holds a legal or equitable interest in certain real property located in the City of Lodi, County of San Joaquin, more particularly described in Exhibit A -I attached hereto (the "Property"). Landowner represents that all persons holding legal or equitable interests in the Property shall be bound by this Agreement. 3. Project. Landowner has obtained various approvals from the City (described in more detail in Recital 6 below) for a mixed use project known as FCB Westside (the "Project") to be located on the Property. 4. Public Hearing. On October 25, 2006, the Planning Commission of the City of Lodi, acting pursuant to Government Code Section 65867, held a hearing to consider this Agreement and the Planning Commission action has been reported to the City Council. 5. Environmental Review. On March 21, 2007, the City Council certified as adequate and complete, the Lodi Annexation Environmental Impact Report ("EIR") for the Project. Mitigation measures were required in the EIR and are incorporated into the Project and into the terms and conditions of this Agreement, as reflected by the findings adopted by the City Council concurrently with this Agreement. 6. Project Approvals. The following land use approvals (together the "Project Approvals") have been granted for the Property, which entitlements are the subject of this Agreement: 6.1. The EIR. The Mitigation Measures in the EIR are incorporated into the Project and into the terms and conditions of this Agreement (City Resolution No. 2007-48); 859464-6 Final Version 11/07/2007 6.2. A General Plan Amendment (the "General Plan"), is not required for this project because it is consistent with the Current General Plan; 6.3. The Zoning of the Property (attached hereto as Exhibit B-1) approved by the City on March 21, 2007 (City Ordinance No. 1793); 6.4. The Large Lot Tentative Subdivision Map for the Project (attached hereto as Exhibit C-1) to be subsequently considered by the City through a noticed public hearing process. (The parties agree that the large lot subdivision map included herein is for illustrative purposes only and shall not be effective until approved through a notice public hearing process by the City. If approved by the City, the Large Lot Subdivision Map shall thereafter be included within the Project Approvals listed herein); 6.5. Reserved; 6.6. The Development Plan and Infrastructure Plan for the Project (attached hereto as Exhibit D), approved by the City on March 21, 2007 by City Resolution No. 2007-51; 6.7. The Growth Management Allocations, as required by Chapter 15.34 of the Lodi Municipal Code, as set forth in Exhibit E, approved by the City on April 4, 2007 by Ordinance No. 1794; 6.8. This Development Agreement, as adopted on April 4, 2007 by City Ordinance No. 1794 (the "Adopting Ordinance"); and, 6.9. The Annexation Approvals granted by San Joaquin County Local Agency Formation Commission as shown in Exhibit F attached hereto. 7. Need for Services and Facilities. Development of the Property will result in a need for municipal services and facilities, some of which will be provided by the City to such development subject to the performance of Landowner's obligations hereunder. With respect to water, pursuant to Government Code Section 65867.5, any tentative map approved for the Property will comply with the provisions of Government Code 66473.7. 8. Contribution to Costs of Facilities and Services. Landowner agrees to contribute to the costs of such public facilities and services as required herein to mitigate impacts on the community of the development of the Property, and City agrees to provide such public facilities and services as required herein to assure that Landowner may proceed with and complete development of the Property in accordance with the terms of this Agreement. City and Landowner recognize and agree that, but for Landowner's contributions set forth herein including contributions to mitigate the impacts arising as a result of development entitlements granted pursuant to this Agreement, City would not and could not approve the development of the Property as provided by this Agreement and that, but for City's covenant to provide certain facilities and services for development cf the Property, Landowner would not and could not commit to provide the mitigation as provided by this Agreement. City's vesting of the right to 859464-6 Final Version 11/07/2007 develop the Property as provided herein is in reliance upon and in consideration of Landowner's agreement to make contributions toward the cost of public improvements as herein provided to mitigate the impacts of development of the Property as development occurs. 9. Development Agreement Resolution Compliance.. City and Landowner have taken all actions mandated by, and fulfilled all requirements set forth in, the Development Agreement Resolution of the City of Lodi, as set forth in the City Council Resolution No. 2005- 237 for the consideration and approval of the pre -annexation and development agreement. 10. Consistency with General and Specific Plan. Having duly examined and considered this Agreement and having held properly noticed public hearings hereon, the City found that this Agreement satisfies the Government Code §65867.5 requirement of general plan consistency. NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants hereinafter set forth, the Parties agree as follows: AGREEMENT 1 - Incorporation of Recitals. The Preamble, the Recitals and all defined terms set forth in both are hereby incorporated into this Agreement as if set forth herein in full. 2. Description of Property. The property, which is the subject of this Development Agreement, is described in ExhibitA-I and depicted in Exhibit A-2 attached hereto ("Property"). 3. Interest of Landowner. The Landowner has a legal or equitable interest in the Property. Landowner represents that all persons holding legal or equitable interests in the Property shall be bound by the Agreement. 4. Relationship of City and Landowner. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Landowner and that Landowner is not an agent of City. The City and Landowner hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Landownerjoint venturers or partners. 5. Effective Date and Term. 5.1. Effective Date. The effective date of this Agreement ("Effective Date") is April 4, 2007, which is the effective date of City Ordinance No. 1794 adopting this Agreement. 5.2. Term. Upon execution, the term of this Agreement shall commence on the Effective Date and extend for a period of fifteen (15) years, unless said term S terminated, modified or extended by circumstances set forth in this Agreement. Following the expiration of the term, this Agreement shall be deemed terminated and of no further force and effect. Said termination of the Agreement shall not affect any right or duty created by City approvals for the 859464-6 Final Version 11/07/2007 Property adopted prior to, concurrently with, or subsequent to the approval of this Agreement nor the obligations of Sections 20, 24 or 25 of this Agreement. In the event that litigation is filed by a third party (defined to exclude City and Landowners or any assignees of Landowner)which seeks to invalidate this Agreement or the Project Approvals, the expiration date of this Agreement shall be extended for a period equal to the length of time from the time the summons and complaint and/or petition are served on the defendant(s) until the judgment entered by the court is final and not subject to appeal; provided, however, that the total amount of time for which the expiration date shall be extended as a result of such litigation shall not exceed four years. 5.3. Automatic Termination Upon Completion and Sale of Residential Lot. This Agreement shall automatically be terminated, without any further action by either party or need to record any additional document, with respect to any single-family residential lot within a parcel designated by the Project Approvals for residential use, upon completion of construction and issuance by the City of a final occupancy permit for a dwelling unit upon such residential lot and conveyance of such improved residential lot by Landowner to a bona -fide good -faith purchaser thereof. In connection with its issuance of a final inspection for such improved lot, City shall confirm that all improvements, which are required to serve the lot, as determined by City, have been accepted by City. Termination of this Agreement for any such residential lot as provided for in this Section shall not in any way be construed to terminate or modify any assessment district or Mello -Roos Community Facilities District lien affecting such lot at the time of termination. 6. Use of Property. 6.1. Vested Right to Develop. Landowner shall have the vested right to develop the Project in accordance with the terms and conditions of this Agreement, the Project Approvals, the City's existing policies, standards and ordinances (except as expressly modified by this Section 6.1 and Section 8.3) and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. Landowner's vested right to develop the Property shall be subject to subsequent approvals; provided however, except as provided in Section 6.3, that any conditions, terms, restrictions and requirements for such subsequent approvals shall not prevent development of the Propertyfor the uses, or reduce the density and intensity of development, or limit the rate or timing cf development set forth in this Agreement, so long as Landowner is not in default under this Agreement. Notwithstanding the vested rights granted herein, Landowner agrees that the following obligations, which are presently being developed, 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. 6.1.2 Payment of 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. 859464-6 Final Version 11/07/2007 6.1.3 Payment of Electric Capital Improvement Mitigation fee (see Section 6.4.10) pursuant to the ordinance and/or resolution to be adopted by the City of Lodi. 6.1.4 Payment of development fee for proportionate share of the costs caf designing and constructing a water treatment system and/or percolation system for treatment of water acquired from Woodbridge Irrigation District (see Section 6.4.7) pursuant to the ordinance an/or resolution to be adopted by the City of Lodi. With regards to the fees identified in Sections 6.1.1, 6.1.2, 6.1.3, and 6.1.4 and these fees only, Landowner hereby consents to their imposition as conditions of approval on any discretionary or ministerial land use entitlement subsequently granted by the City including but not limited to issuance of building permits. City agrees that the fees payable by the Landowner pursuant to Sections 6.1.1, 6.1.2, 6.1.3 and 6.1.4 shall be adopted in conformance with applicable law, and shall apply uniformly to all new development on properties within the City that are zoned consistent with the Project Approvals, or apply uniformly to all new development on properties that are similarly situated, whether by geographic location or other distinguishing circumstances. Except for the fees identified in this Agreement including but not limited to the Project Approvals, Sections 6.1.1, 6.1.2, 6.1.3, 6.1.4 and 8.3, no other subsequently enacted development or capital fee shall be imposed as a condition of approval on any discretionary or ministerial decision. The Parties acknowledge and agree that the fees applicable to the development pursuant to the Project Approvals and this Agreement may be increased during the term of this Agreement provided that (1) such increases are limited to annual indexing (i.e. per the Engineering News Record index, or the CPI, or other index utilized by the City) and as provided in current fee ordinances and (2) the increased fees are adopted in conformance with applicable law, apply uniformly to all new development on properties within the City that are zoned consistent with the Project Approvals, or apply uniformly to all new development on properties that are similarly situated, whether by geographic location or other distinguishing circumstances, The initial adjustment shall be effective as of four years after the Effective Date of the Agreement and shall be calculated based on the difference in the applicable index from the numerical rate at the end of the month following the third year after the Effective Date and the numerical rate at the end of the month following the fourth year after the Effective Date. All subsequent increases shall be based on the annual change in the applicable index. Notwithstanding the preceding sentence, index adjustments to the fees set forth in Section 8.2, subsections 2, 3 and 4 shall be effective annually as set forth in the relevant ordinances and resolutions. Moreover, Landowner will be subject to the indexing called for above even if Landowner has filed a complete application for a Vesting Tentative Map and will not vest against such indexing until payment of the fees as called for in this Agreement. 6.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, location and maintenance of on-site and off-site improvements, location of public utilities and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. City acknowledges that the 859464-6 Final Version 11/07/2007 Project Approvals provide for the land uses and approximate acreages for the Property as set forth in Exhibit B-1 and Exhibit B-2. 6.3. Moratorium, Quotas, Restrictions or Other Growth Limitations. Landowner and City intend that, except as otherwise expressly provided in this Agreement, this Agreement shall vest the Project Approvals against subsequent City resolutions, ordinances and initiatives approved by the City Council or the electorate that directly or indirectly limit the rate, timing, or sequencing of development, or prevent or conflict with the permitted uses, density and intensity of uses or the right to receive public services as set forth in the Project Approvals; provided however Landowner shall be subject to rules, regulations or policies adopted as a result of changes in federal or state law (as provided in Section 7.3) which are or have been adopted on a uniformly applied, City-wide or area -wide basis, in which case City shall treat Landowner in a uniform, equitable and proportionate manner with all properties, public and private, which are impacted by the changes in federal or state law. 6.3.1 Allocations Under City Growth Management Program a. Allocations Required Prior to Map Approval Consistent with the City's Growth Management Program, which shall apply to the Project, except as otherwise provided herein, no tentative map for any portion of the Property shall be issued until such time as Landowner has obtained allocations for each residential unit within the area covered by such map, consistent with the Growth Management Ordinance (Ordinance 1521), codified as Section 15.34 of the City of Lodi Municipal Code. b. Schedule of Allocation of Residential Units The following schedule of residential unit allocations shall apply to the Project. (i) Initial Allocation: As cf the Effective Date of this Agreement, the following number of residential units shall be initially allocated to the Projectfrom the City's reserve of unused allocations ("Initial Allocation"): 215 Low Density Units Exceptfor the requirement set forth in Section 6.3.1(a) above the Initial Allocation has been determined to 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 requirements). ii SubseauentAnnual Allocations: As of the Effective Date of this Agreement, Landowner shall be entitled to apply for future annual allocations in three-year increments, and on a rolling basis. Provided that Landowner 859464-6 Final Version 11/07/2007 otherwise complies with the City's Growth Management Program, Landowner shall be entitled to annual allocations set forth in Exhibit E ("Annual Allocations"). If Landownerelects in any year to requestfewer allocations than provided for in Exhibit E or if the term of any allocation granted expires before it is used as part of obtaining a subdivision map, Landowner shall be entitled to receive, upon submission of a complete growth management allocation application, additional allocations after the eighth year of this Agreement and through the term of this Agreement including any extension thereto granted pursuant to Section 5.2. The total number of growth management allocations granted hereunder shall be limited to the number of residential units approved as part of the Project Approvals excluding any senior housing residential units. The use of such allocations shall be restricted to the year for which such allocations were made, consistentwith the Growth Management Ordinance. Notwithstanding the foregoing, Landowner may request additional allocations, over and above those set forth in Exhibit"E", and City may grant such allocations in its discretion, provided such additional allocations are consistent with the City's Growth Management Allocation Program, Resolutions 91-170 and 91-171, subject to such additional community benefits and/or exactions negotiated upon such a request. Landowner is not required to apply for such allocations on an annual basis. Landowner may instead comply with all development plan and related requirements under the Growth Management Ordinance and Resolutions 91-170 and 91-171 every third year, at which time Landowner may apply for allocations for the next three-year period. After the expiration of the year for which an Annual Allocation was issued to Landowner, Landowner may submit a request and be issued by the City another Annual Allocation, such that Landowner may maintain, on a roiling basis, a number of allocations equal to three Annual Allocations. Except for allowing the Landowner this flexibility in terms of the number of years for which Landowner may apply, all requestsfor Annual Allocations must otherwise comply with the Growth Management Ordinance and Resolutions 91-170 and 91-171. The requirement that Landowner apply for Annual Allocations does not alter the vested rights of the Project, specifically as to the General Plan and zoning designation of the Project. (c) Growth Management Ordinance in full force and effect: Exceptwhere otherwise specifically stated herein, nothing in this section 6.3.1 is intended to modify in any way the City's Growth Management Program, including its exemptions under Section 15.34.040 (e.g., for senior citizen housing). Section 6.3.2 Future Growth Control Ordinances/Policies, Etc. (a) One of the specific purposes of this Agreement is to assure Developer that, during the term of this Agreement no growth -management ordinance, measure, policy, regulation or development moratorium of City adopted by the City Council or by vote of the electorate after the Effective Date of this Agreement will apply to the Property in such a manner so as to the reduce the density of development, modify the permissible uses, or modify the phasing of the developmentas set forth in the Project Approvals. 859464-6 Final Version 11/07/2007 (b) Therefore, the parties hereto agree that, except as otherwise expressly provided in the Project Approvals, Sections 6.1, 6.3.1 or 6.4 or other provision of this Agreement which expressly authorize City to make such pertinent changes, no ordinance, policy, rule, regulation, decision or any other City action, or any initiative or referendum voted on by the public, which would be applicable to the Project and which would affect in any way the rate of development, construction and build out of the Project, or limit the Project's ability to receive any other City service shall be applicable to any portion of the Project during the term cf this Agreement, whether such action is by ordinance, enactment, resolution, approval, policy, rule, regulation, decision or other action of City or by public initiative or referendum. (c) City, through the exercise of either its police power or its taking power, whether by direct City action or initiative or referendum, shall not establish, enact or impose any additional conditions, dedications, fees or other exactions, policies, standards, laws or regulations, which directly relate to the development of the Project except as provided in Sections 6.1, 6.3.1, or 6.4 herein or other provision of this Agreement which expressly allows City to make such changes. Nothing herein prohibits the Project from being subject to a (i) City- wide bond issue, (ii) City -Wide special or general tax, or (iii) special assessment for the construction or maintenance of a City-wide facility as may be voted on by the electorate or otherwise enacted; provided that such tax, assessment or measure is City-wide in nature, does not discriminate against the land within the Project and does not distinguish between developed and undeveloped parcels. (d) This Agreement shall not be construed to limit the authority of City to charge processing fees for land use approvals, public facilities fees and building permits as they relate to plumbing, mechanical, electric or fire code permits, or other similar permits and entitlements which are in force and effect on a city-wide basis at the time those permits are applied for, except to the extent any such processing regulations would be inconsistent with this Agreement. (e) Notwithstanding subdivision (b), the City may condition or deny a permit, approval, extension, or entitlement if it determines any of the following: (1) A failure to do so would place the residents of the Project or 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. Additional Conditions. 6.4.1. Timing of Dedications and Improvements of Parks Landowner agrees to dedicate park land and complete construction of all the park improvements as described and set forth in the Project Approvals at its sole cost and expense. The lists of the parks and park improvements contemplated herein is set forth in Exhibit "I"and 859464-6 Final Version 11/07/2007 Exhibit "J". Landowner and City agree that the provision of land and the construction of all park facilities and installation of equipment within the Project boundaries will satisfy Landowner's Quimby Act obligations as set forth in Lodi Municipal Code Chapter. Therefore, Landownershall not be obligated to pay any additional park fees and Landowner shall not be entitled to any credit for the value of the improvements constructed or equipment installed except as provided hereinbelow. The phasing of such improvements shall be in compliance with the Phasing Schedule included in Exhibit I. With regards to the park improvements listed in ExhibitJ, prior to approval by the City of the first tentative subdivision map, Landowner shall prepare plans and specifications for all park improvements included in the Project Approvals and submit those plans and specifications to the City for review and approval which approval will not be unreasonably withheld provided that the plans and specifications contain all park improvements listed in Exhibit J and satisfy all applicable conditions of approval included in the Project Approvals. The Landowner shall construct the parks in compliance with the approved plans and specifications. The City will inspect improvements during construction. If improvements are of poor quality and/or do not meet the requirements of approved plans and specifications, the City will notify the Landowner in writing and the Landowner, at its sole cost, shall correct any errors or deficiencies. The Landowner shall construct the parks to the satisfaction of the City, which shall be defined as compliance with the approved plans and specifications. As part of the park improvements identified herein, Landowner is obligated to offer for dedication to the City for a period of six years, five acres of land located at West of Lower Sacramento Road, North of Vine Street and as depicted in the Westside Facilities Master Plan for park uses including a possible acquatic center. Upon acceptance of the dedication by the City, which must occur within six years after the offer of dedication is made, the City shall, for the remaining term of this Agreement and at the time of City approval of any development project located in the area south of West Vine Street, north of Highway 12, and west of North Lower Saramento Road ("Adjacent Property"), impose a requirement that the developer of the Adjacent Parcel pay the the City an amount equal to the reasonable actual costs incurred for park land and related construction costs by Landownerfor parks developed within the Project in excess of the minimum amount of park dedication required by the Lodi Muncipal Code and which the developer of the "Adjacent Parcel" uses to satisfy its park dedication requirements. The parties agree that they shall calculate the any potential credit payable by the developer of the Adjacent Property pursuant to this paragraph prior to approval fo the first tentative subdivision map for the Property. Upon receipt of the that payment, City shall either pay that amount to Landowneror credit that amount against any outstanding fee payable by Landowner. 6.4.2. Rehabilitation of Existing Residential Units Landowner agrees that within ten years of the Effective Date of this Agreement, Landowner shall either rehabilitate or pay the costs (for a total value of $1,250,000) of rehabilitating up to a maximum of twenty-five (25) single-family or multi -family residential units within the area bounded by the Union Pacific railroad tracks, Cherokee Lane, Kettleman Lane and Lockford Street. To satisfy this obligation, Landowner may pay to rehabilitate residential units owned by 859464-6 Final Version 11/07/2007 others or may purchase, rehabilitate and sell or rent said residential units. The City shall have the right to approve the residential units selected for rehabilitation; said approval shall not be unreasonably withheld by the City. The improvements required herein to facilitate rehabilitation of residential units may include landscaping, painting, roof repair, replacement of broken windows, sidewalk repairs, non- structural architectural improvements, and demolition and reconstruction of residential units. All work performed pursuant to this section shall be done pursuant to properly issued building permits as required by City of Lodi ordinances. As part of the annual review required pursuant to Section 13, Landowner shall report on work completed during the prior year towards meeting the obligations set forth in this paragraph. In the event that Landowner has not satisfied this obligation within ten years from the Effective Date, Landowners shall pay the City fifty thousand dollars ($50,000) per residential unit for each of the twenty-five (25) units that have not been rehabilitated as set forth above. The funds paid shall be placed in a dedicated city fund to be used for housing rehabilitation grants or loans within the area specified hereinabove. 6.4.3. Paymentfor Promotion of Economic Development Within ten (10) years of the Effective Date of this Agreement, Landowner shall pay the City Two Hundred Twenty -Six Thousand U.S. dollars ($226,000) for use by the City for economic development actions including job creation, promoting retail sales and/or wine industry tourism all as determined by the City. The purpose of this payment is to assist the City in its effort to maintain a balance between employment and housing demands. 6.4.4 Payment of Utility Exit Fees The Lodi Electric Utility is a city -owned and operated utility that provides electrical utility services for residential, commercial and industrial customers in Lodi. As the proposed project sites would be annexed to the City of Lodi, the Lodi Electric Utility would provide electrical utility services to the project site. To the extent that Landowner is assessed "exit fees," also known as "Cost Responsibility Surcharges," by Pacific Gas & Electric for its departing load, Landowner shall pay said fees when they are due. Landowner may, at its option and at its own cost, request a Cost Responsibility Surcharge Exemption from the California Energy Commission for any qualified departing load pursuant to Title 20, California Code of Regulations, Section 1395, et. seq. Forms for the exemption are available on-line at http://www.energy.ca.gov/exit fees/documents/2004-02- 18 PGE EXEMP APPL.PDF City makes no representation that Landowner is eligible for exemptions pursuant to these regulations. Landowner agrees to save, defend, indemnify and hold harmless City from any and all costs, judgments or awards owed to Pacific Gas & Electric arising out of or related to City's provision of electrical utility services to the project site. 6.4.5 Maintenance cf Specified Public Improvements Landowner agrees to provide or pay for all park, median strip, and other landscaping maintenance and repairs for two years for lands dedicated by the Landowner to the City and 859464-6 Final Version 11/07/2007 accepted by the City. In the event that Landowner chooses to pay the City for the costs of maintenance and repair, the City shall provide an estimate of the annual costs and the Landowner shall pay the full amount within thirty calendar days after the City by U.S. Mail or email, transmits the estimate to the Landowner. If the amount paid to the City exceeds the actual amount incurred by the City plus reasonable staff costs to administer the contract, the City shall, within a reasonable period of time, refund the difference to the Landowner. 6.4.6 Paymentfor Fire Department Facilities, Equipment and Apparatus In addition to any applicable development impact for fire services, within ten years of the Effective Date of this Agreement, Landowner shall pay Two Million Six Hundred Thousand U.S. dollars ($2,600,000) to the City for use to acquire additional facilities, equipment and apparatus for the Lodi Fire Department. Landowner acknowledges that City will enter into contracts to acquire the facilities, equipment and apparatus. As consideration for City's agreement to authorize payment in installment payments, Landowner agrees to provide a letter of credit payable to the City, in a form reasonably acceptable to the City Attorney, in an amount sufficient to cover the amount due herein. City agrees that Landowner may substitute a letter of credit, in a form reasonably acceptable to the City Attorney, for a lesser amount upon payment of any portion of the amount due herein. Upon delivery of such replacement letter of credit and its approval as to form by the City Attorney, the City will release and convey to Landowner the prior letter of credit. 6.4.7 Reserved. 6.4.8 Water Treatment and/or Percolation Cost Landowner shall pay a fee based on the proportionate share of the costs of designing and constructing a water treatment system and/or percolation system for treatment of water acquired by the City from the Woodbridge Irrigation District. Landowner shall pay the fee as required under the fee program to be development by the City, but in no event later than when water service connection for each residential, office and commercial unit is provided. 6.4.9 Public Art on Property Within ten (10) years of the Effective Date of this Agreement, Landowner shall obtain City approval for and install public art on the Project. The value of the public art installed shall be equal to One Hundred Fifty Thousand U.S. dollars ($150,000) inclusive of design and installation costs, which together shall not exceed $10,000. The public art shall be installed in a place within the Project that is visible from the public right-of-way or from an area or areas that provides public access. Landowner shall provide maintenance of the public art. Landowner shall be eligible to apply for City matching grant for the public art up to a maximum amount of $40,000. The parties agree that any matching grant provided by the City shall be in addition to the $150,000 contribution provided by Landowner pursuant to the section and shall be subject to any and all conditions normally imposed as part of the issuance of a grant by the City. 859464-6 Final Version 11/07/2007 6.4.10 Utility Line Extension City is preparing a policy pursuant to which property developed will pay the actual costs of capital improvements necessaryto extend utility services to a development. Landowner acknowledges that such an extension is necessary to implement the Project Approvals on the Property. Landowner agrees to pay the City, pursuant to the policy to be adopted by the City, the costs of the capital improvements necessaryto extend utility services to the Property. 6.4.11 Improvements to be Designed and Constructed by LandownerWithin or Adjacent to the Project Boundaries The Project Approvals require the installation of specified public and private improvements. Landowner shall, as specified in the Project Approvals, either design, engineer and construct the following improvements or pay the City the appropriate fee for the design, engineering and construction of said improvements. The obligations imposed on the Landowner herein shall be in addition to any other obligations set forth in this Agreement. In the event that any of Developer's improvements encroach upon any city facilities, property or rights of way, developer shall indemnify City against any and all expenses, including legal fees, incurred by the City to secure replacementfacilities, property or rights of way. 6.4.11.1 Surface Water Facilities Transmission Main (Proportionate share of the total design, engineering and construction costs). Storage Tank (Proportionate share of the total, design, engineering and construction costs). 6.4.11.2 Water Supply Facilities One new water well to cover proposed development within the Southwest Gateway and Westside development areas. The well will be installed in the Southwest Gateway area at the location identified in the Project Approvals or approved by the City Engineer. This condition may be satisfied by the installation of the well pursuant the requirement set forth in Section 6.4.7.2 of the FCB Southwest Gateway Develoment Agreement provided that adequate flow capacity is provided for the development authorized as part of the Westside and Southwest Gateway Project Approvals. The well shall be installed and operational on or before January 1,2010 or earlier if otherwise required by the Water Master Plan. 6.4.11.3 Water Distribution Facilities All water pipes and related infrastructure in all streets. Any interim or temporary facilities as determined necessary by the Public Works Director 6.4.11.4 Sewer Collection Facilities 859464-6 Final Version 11/07/2007 All sewer pipes and related infrastructure in all streets. Any interim or temporary facilities as determined necessary by the Public Works Director. 6.4.11.5 Recycled Water Facilities All recycled water pipes and related infrastructure for irrigations systems located in or on streets, public and private school sites (to property boundary line only), places of assembly including but not limited to religious facilities (to property boundary line only), and high density residential sites. Provide up to a maximum cf $50,000 to partially fund the City of Lodi Recycled Water Master Plan Study. 6.4.11.6 Storm Drainage Facilities All stormwater pipes and related infrastructure in all streets and basins. All stormwater detention basins, control structures, pumping facilities and appurtenant piping and controls. Any interim or temporary facilities as determined necessary by the Public Works Director. Developer will be entitled to apply for reimbursement under Lodi Municipal Code Chapter 16.40 for benefit received by undeveloped properties as a result of the construction of the improvements required by this paragraph. Without limiting in any manner, the City Council's future exercise of its legislative discretion in the public hearing called for by Chapter 16.40, the parties anticipatethat the benefited propertieswill be those set forth in Exhibit J. The parties also expressly acknowledge the final determination of benefited properties shall be determined pursuant to process set forth in Chapter 16.40. 6.4.11.7 Streets and Roads Design and construct all streets within the Project Boundaryas set forth in the Project Approvals. Reconstruct Lodi Avenue west of Lower Sacramento Road to western project boundary. ReconstructTokay Ave./Lower Sacramento Road intersection to accommodate wider street sections. Pay Fair Share Cost payments for traffic mitigation measures identified in the Lodi Annexation Environmental Impact Reportthat are not projects within the Streets & Roads Fee Program. With regard to the requirementto construct streets and roads, for sections of such streets and roads that are not wholly within the project site, necessaryto satisfy the obligations set forth in this Agreement and the Project Approvals, Landowner will use its best efforts to acquire all necessary real property interests including, but not limited to, 4( Is3ibmitting formal offer letters to all persons or entities who own or lease said property, (2) diligently pursuing implementation of any purchase agreement, (3) paying all amounts required pursuant to the purchase agreement in a timely manner consistent with the terms of the purchase agreement and will 859464-6 Final Version 11/07/2007 then construct the streets or roads in compliance with the Project Approvals and any subsequent subdivisions maps. In the event Landowner is notable after its best efforts to acquire any necessary property, City and Landowneragree that City will consider all actions necessary to form an assessment district to provide the funds necessary for the City to acquire the necessary property, including through eminent domain as necessary, and Landowner agrees that upon the City complying with all requirements for consideration of formation of assessment district, Landowner shall, for all property within the proposed district that it owns or possesses the legal authority to vote on behalf of, vote in favor of formation of the assessment district. The parties agree that items to be included within the costs to be funded by the assessment district shall include, but not be limited to all costs, including attorneys fees necessary to acquire the necessary property interests, all design and engineering costs and all constructions costs. Developer will be entitled to apply for reimbursement under Lodi Municipal Code Chapter 16.40 for benefit received by undeveloped properties as a result of the construction of the improvements required by this paragraph. Without limiting in any manner, the City Council's future exercise of its legislative discretion in the public hearing called for by Chapter 16.40, the parties anticipate that the benefited properties will be those set forth in Exhibit K. The parties also expressly acknowledge the final determination of benefited properties shall be determined pursuantto process set forth in Chapter 16.40. 6.4.12 Hutchins Street Square Endowment Within ten (10) years of the Effective Date of this Agreement, landowner shall pay the City Three Hundred Thousand U.S. Dollars ($300,000) as an endowment for the maintenance and operations of costs of Hutchins Street Square. 6.4.13 Agreement with Citizens for Open Government Landowner shall comply with the terms of the Agreement to Amend Westside DevelopmentAgreement dated December 4,2006 by and between the City, Citizens for Open Government and Landowner, a copy of which is attached hereto as Exhibit L and incorporated herein by reference. 6.5 Annexation The ability to proceed with development of the Property pursuant to the Project Approvals 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 subdivision maps and improvement or construction plans and City may conditionally approve such tentative maps and/or improvement plans in accordance with the Entitlements, provided City shall not approve any final parcel map or final subdivision map for recordation nor approve the issuance of any grading permit for grading any portion of the Propertyor building permit for any structure within the Property prior to the annexation of the Property to the City. City shall use its best efforts and due diligence to initiate such annexation process, obtain the necessary approvals and consummate the annexation of the Property into the City, including entering into any annexation agreement that may be required in relation thereto, 859464-6 Final Version 11/07/2007 subject to the City's review and approval of the terms thereof. Landowner shall be responsible for the costs reasonably and directly incurred by the City to initiate, process and consummate such annexation, the payment of which shall be due in advance, based on the City's estimate of such cost, and thereafter as and when the City provides an invoice(s) for additional costs incurred by City therefore in excess of such estimate. 7. Applicable Rules, Regulations, Fees and Official Policies. 7.1. Rules Regarding Permitted Uses Except as provided in this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses cf the Property, the density and intensity of use, the rate timing and sequencing of development, the maximum height and size cf proposed buildings, and provisionsfor reservation and dedication of land shall be those in force on the Effective Date of this Agreement. Except as provided in Section 8.2, this Agreement does not vest Landowner's rights to pay development impact fees, exactions and dedications, processing fees, inspection fees, plan checking fees or charges. 7.2. Rules Regarding Design and Construction. The Project has been designed as a Planned Development pursuant to Chapter 17.33 of the Lodi Municipal Code. Design, improvements and construction standards shall be as set forth in Project Approvals including the Development Plan, and shall be vested for the term of this Agreement. Unless otherwise provided within the Development Plan or expressly provided in this Agreement, all other ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project and to public improvements to be constructed by the Landowner shall be those in force and effect at the'time the applicable permit approval is granted. 7.3. Changes in State or Federal Law. This Agreement shall not preclude the application to development of the Property of changes in City laws, regulations, plans or policies, the terms of which are specifically mandated and required by changes in State or Federal laws or regulations. These changes may include any increase in an existing fee or imposition of anew fee that are necessaryfor the City or Landowner to comply with changes in State or Federal laws or regulations, including but not limited to sewer, water and stormwater laws or regulations. 7.4. Uniform Codes Applicable. Unless otherwise expressly provided in this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes, City standard construction specifications, and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time cf approval of the appropriate building, grading, encroachment or other construction permits for the Project. If no permits are required for infrastructure improvements, such improvements will be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes, City standard construction specifications, and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the start of construction of such infrastructure. 859464-6 Final Version 11/07/2007 8. Existing Fees. Newly Enacted Fees, Dedications. Assessments and Taxes. 8.1. Processing Fees and Charges. Landowner shall pay those processing, inspection, and plan check fees and charges required by City under then current regulations for processing applications and requests for permits, approvals and other actions, and monitoring compliance with any permits issued or approvals granted or the performance of any conditions with respect thereto or any performance required of Landowner hereunder. 8.2. Existing Fees, Exactions and Dedications Landowner shall be obligated to provide all dedications and exactions and pay all types of fees as required for the types of development authorized by the Project Approvals as of the Effective Date of this Agreement. With regards any fees applicable to residential development, the Parties agree that the fees shall be payable at the earliest time authorized pursuant to the Government Code Section 66007 as it exists as cf the Effective Date of this Agreement. The specific categories of fees payable are listed below. The dedication and exaction obligations and fee amounts payable shall be those obligations and fee amounts applicable (indexed as set forth hereinbelow) as of the date that the Landowner's application for the applicable vesting tentative map is deemed complete. For any development for which the Landowner has not submitted a vesting tentative map, the dedication and exaction obligations and fee amounts payable shall be those obligations and fee amounts applicable (indexed as set forth hereinbelow) as of the date the final discretionary approval for that development is granted by the City. Standard City Development Impact Fees Payable by the Landowner include: 1. Development Impact Fees (Lodi Municipal Code Chapter 15.64) 2. San Joaquin County Regional Transportation Impact Fee (Lodi Municipal Code Chapter 15.65 3. County Facilities Fee (Lodi Municipal Code Chapter 15.66) 4. San Joaquin County Multi -Species Habitat Conservation and Open Space Development Fee (Lodi Municipal Code Chapter 15.68) Any existing fees may be increased during the term of this Agreement provided that such increases are limited to annual indexing (i.e. per the Engineering News Record Index, or the CPI, or other index utilized by the City) and as provided in current fee ordinances. The initial adjustment shall be effective as of four years after the Effective Date of the Agreement and shall be calculated based on the difference in the applicable index from the numerical rate at the end of the month following the third year after the Effective Date and the numerical rate at the end of the month following the fourth year after the Effective Date. All subsequent increases shall be based on the annual change in the applicable index. Notwithstanding the preceding sentence, index adjustmentsto the fees set forth in subsections 2, 3 and 4 of this section shall be effective annually as set forth in the relevant ordinances and resolutions. Moreover, Landowner will be subject to the indexing called for above even if Landowner has filed a complete application for a Vesting Tentative Map and will not vest against such indexing until payment of the fees as called for in this Agreement. 859464-6 Final Version 11/07/2007 8.3. New Development Impact Fees. Exactions and Dedications. Landowner agrees to the pay the development fees identified in Section 6.1, including specifically subsections 6. 1.1 through 6.1.4, of this Agreement. With regards any fees applicable to residential development, the Parties agree that the fees shall be payable at the earliest time authorized pursuant to the Government Code Section 66007 as it exists as of the Effective Date of this Agreement. Except as expressly provided herein, Landowner shall not be obligated to pay or provide any development impact fees, connection or mitigation fees, or exactions adopted by City after the Effective Date of this Agreement. Notwithstanding this limitation, Landowner may at its sole discretion elect to pay or provide any fee or exaction adopted after the Effective Date of this Agreement. 8.4. Fee Reductions To the extent that any fees payable pursuant to the requirements of Sections 8.1 are reduced after the operative date for determining the fee has occurred, the Landowner shall pay the reduced fee amount. 9. Community Facilities District. Formation of a Community Facilities District for Public Improvements and Services. 9.1. Inclusion in a Community Facilities District. Landowner agrees to cooperate in the formation of a Community Facilities District pursuant to Government Code Section 53311 et seq. to be formed by the City. The boundaries of the area of Community Facilities District shall be contiguous with the boundaries of the Property excluding the portion of land zoned for commercial or office development. Landowner agrees not to protest said district formation and agrees to vote in favor of levying a special tax on the Property in an amount not to exceed $600 per year per single family attached or detached residential dwelling unit and $175 per year for each attached multi -family rental unit as adjusted herein. The special tax shall be initiated for all residential dwelling units for which a building permit is issued, and shall commence to be levied beginning the subsequent fiscal year after the building permit is issued. Landowner acknowledges that the 2007-2008 special tax rate for the units in the Project will not exceed $600 per single family attached or detached dwelling unit and $175 per year for each attached multi -family rental unit and that the special tax shall increase each year by 2% in perpetuity. A vote by Landowner against the levying of the special tax or a vote to repeal or amend the special tax shall constitute an event of default under this Agreement. 9.2. Use of Community Facilities District Revenues Landowner and City agree that the improvements and services that may be provided with the special tax levied pursuantto Section 9.1 may be used for the following improvements and services: a.. Police protection and criminal justice services; b. Fire protection, suppression, paramedic and ambulance services; C. Recreation and library program services; d. Operation and maintenance of museums and cultural facilities; 859464-6 Final Version 11/07/2007 e. Maintenance of park, parkways and open space areas dedicated to the City; f. Flood and storm protection services; g. Improvement, rehabilitation or maintenance of any real or personal property that has been contaminated by hazardous substances; h. Purchase, construction, expansion, improvement, or rehabilitation or any real or tangible propertywith useful life of more than five years; and, i. Design, engineering, acquisition or construction cf public facilities with a useful life of more that five years including: 1. Local park, recreation, parkway and open -space facilities, 2. Libraries, 3. Childcare facilities, 4. Water transmission and distribution facilities, natural gas, telephone, energy and cable television lines, and 5. Government facilities. Landowner and City agree that Property does not presently receive any cf these services from the City and that all of these services are new services. 9.3. Community Facilities District for Residential Property - Financing. In addition to the funding provided as part of the Community Facilities District identified in Section 9.1, City acknowledges that Landowner may desire to finance the acquisition or construction of a portion cf the improvements described in Section 8.2 through the Community Facilities District. The costs associated with the items identified in Section 8.2 shall be in addition to the annual cost imposed to comply with Section 9.1. The following provisions shall apply to any to the.extent that the Landowner desires to fund any of the improvements set forth in Section 8.2 through the Community Facilities District: 9.3.1 Issuance of 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 cause bonds to be issued in amounts sufficient to achieve the purposes of this Section. 9.3.2 Payment Prior to Issuance of 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 CFD of a cash amount equivalentto its proportionate share of costs for the improvements identified in Section 8.2, or any portion thereof, prior to the issuance cf bonds. 9.3.3 Private Financing. Nothing in this Agreement shall be construed to limit Landowner's option to install the improvements through the use of private financing. 859464-6 Final Version 11/07/2007 9.3.4 Acquisition and Payment. 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 to use CFD bond or tax proceeds for such acquisitions. 10. Processing of Subsequent Development Applications and Building Permits Subject to Landowner's compliance with the City's application requirements including, specifically, submission of required information and payment cf appropriate fees, and assuming Landowner is not in default under the terms and conditions of this Agreement, the City shall process Landowner's subsequent development applications and building permit requests in an expeditious manner. In addition, City agrees that upon payment of any required City fees or costs, City will designate or retain, as necessary, appropriate personnel and consultants to process Landowner's development applications and building permit requests City approvals in an expeditious manner. 11. Reserved 11. Amendment or Cancellation. 11.1. Modification Because of Conflict with State or Federal Laws. In the event that State or Federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or State law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with the Municipal Code and this Agreement. 11.2. Amendment bV Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and the Municipal Code. 11.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding Section 11.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 5.2; (b) the permitted uses of the Property as provided in Sections 6.2 and 7.1; (c) provisions for reservation or dedication of land; (d) the location and maintenance of on-site and off-site improvements; (e) the density or intensity of use of the Project; (9the maximum height or size of proposed buildings or (g) monetary contributions by Landowner as provided in this Agreement shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. 859464-6 Final Version 11/07/2007 11.4. Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) the density or intensity of use of the Project; (d) the maximum height or size of proposed buildings; (e) monetary contributions by the Landowner; (f) the location and maintenance of on-site and off-site improvements; or (g) any other issue or subject not identified as an "insubstantial amendment" in Section 11.3 of this Agreement, shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement, which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approval(s) shall not require amendment cf this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 11.5. Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of the Municipal Code. Any fees paid pursuant to this Agreement prior to the date of cancellation shall be retained by City. 12. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of any parcel map or tentative subdivision map shall automatically be extended for the term cf this Agreement. 13. Annual Review. 13.1. Review Date. The annual review date for this Agreement shall occur either within the same month each year as the month in which the Agreement is executed or the month i mmed iately thereafter. 13.2. Initiation of Review. The City's Planning Director shall initiate the annual review by giving to Landowner written notice that the City intends to undertake such review. Within thirty (30) days of City's notice, Landowner shall provide evidence to the Planning Director to demonstrate good faith compliance with the Development Agreement. The burden of proof, by substantial evidence of compliance, is upon the Landowner. The City's failure to timely initiate the annual review is not deemed to be a waiver of the right to do so at a later date; accordingly, Landowner is not deemed to be in compliance with the Agreement by virtue cf such failure to timely initiate review. 13.3. Staff Reports. City shall deposit in the mail to Landowner a copy of all staff reports, and related Exhibits, concerning contract performance at least three (3) days prior to any annual review. 13.4. Costs, Costs reasonably incurred by the City in connection with the annual review shall be paid by Landowner in accordance with the City's schedule of fees and billing rates in effect at the time cf review. 13.5. Non-compliance with Agreement; Hearing. If the Planning Director determines, on the basis of substantial evidence, that Landowner has not complied in good faith 859464-6 Final Version 11/07/2007 with the terms and conditions of the Agreement during the period under review, the City Council, upon receipt of any report or recommendation from the Planning Commission, may initiate proceedings to modify or terminate the Agreement, at which time an administrative hearing shall be conducted, in accordance with the procedures of State law. As part of that final determination, the City Council may impose conditions that it considers necessary and appropriate to protect the interest of the City. 13.6. Appeal of Determination. The decision of the City Council as to Landowner's compliance shall be final, and any Court action or proceeding to attack, review, set aside, void or annul any decision of the determination by the Council shall be commenced within thirty (30) days of the final decision by the City Council. 14. Default. Subject to any applicable extension of time, failure by any party to substantially perform any term or provision of this Agreement required to be performed by such party shall constitute a material event of default ("Event of Default"). For purposes of this Agreement, a party claiming another party is in default shall be referred to as the "Complaining Party," and the party alleged to be in default shall be referred to as the "Party in Default." A Complaining Party shall not exercise any of its remedies as the result of such Event of Default unless such Complaining Party first gives notice to the Party in Default as provided in Section 15.1.1, and the Party in Default fails to cure such Event of Default within the applicable cure period. 14.1. Procedure Regarding Defaults. 14.1.1. Notice. The Complaining Party shall give written notice of default to the Party in Default, specifying the default complained of by the Complaining Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. 14.1.2. nil . The Party in Default shall diligently endeavor to cure, correct or remedy the matter complained of, provided such cure, correction or remedy shall be completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Complaining Party to be reasonably necessary to correct the matter). 14.1.3. Failure to Assert. Any failures or delays by a Complaining Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by a Complaining Party in asserting any of its rights and remedies shall not deprive the Complaining Party of its right to institute and maintain any actions or proceedings, which it may deem necessary to protect, assert, or enforce any such rights or remedies. 14.1.4. Notice of Default. If an Event of Default occurs prior to exercising any remedies, the Complaining Party shall give the Party in Default written notice of such default. Ifthe default is reasonably capable cf being cured within thirty (30) days, the Party in Default shall have such period to effect a cure prior to exercise of remedies by the 859464-6 Final Version 11/07/2007 Complaining Party. If the nature of the alleged default is such that it cannot, practicably be cured within such thirty (30) day period, the cure shall be deemed to have occurred within such thirty (30) day period if: (a) the cure shall be commenced at the earliest practicable date following receipt of the notice; (b) the cure is diligently prosecuted to completion at all times thereafter; (c) at the earliest practicable date (in no event later than thirty (30) days after the curing party's receipt of the notice), the curing party provides written notice to the other party that the cure cannot practicably be completed within such thirty (30) day period; and (d) the cure is completed at the earliest practicable date. In no event shall Complaining Party be precluded from exercising remedies if a default is not cured within ninety (90) days after the first notice of default is given. 14.1.5. Legal Proceedings. Subject to the foregoing, if the Party in Default fails to cure a default in accordance with the foregoing, the Complaining Party, at its option, may institute legal proceedings pursuant to this Agreement or, in the event of a material default, terminate this Agreement. Upon the occurrence of an Event cf Default, the parties may pursue all other remedies at law or in equity, which are not otherwise provided for or prohibited by this Agreement, or in the City's regulations if any governing development agreements, expressly including the remedy of specific performance of this Agreement. 14.1.6. Effect of Termination. If this Agreement is terminated following any Event of Default of Landowner or for any other reason, such termination shall not affect the validity of any building or improvement within the Property which is completed as of the date of termination, provided that such building or improvement has been constructed pursuant to a building permit issued by the City. Furthermore, no termination of this Agreement shall prevent Landowner from completing and occupying any building or other improvement authorized pursuant to a valid building permit previously issued by the City that is under construction at the time of termination, provided that any such building or improvement is completed in accordance with said building permit in effect at the time of such termination. 15. Estoppel Certificate. Either Party may, at any time, and from time to time, request written notice from the other Party requesting such Party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the Parties; (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments; and (c) to the knowledge of the certifying Party the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the Parties. City Manager of City shall be authorized to execute any certificate requested by Landowner. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default. 16. Mortgagee Protection; Certain Rights cf Cure. 16.1. Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this 859464-6 Final Version 11/07/2007 Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 16.2. Mortgagee Not Obligated. Notwithstanding the provisions of Section 17.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon, authorized by the Project Approvals or by this Agreement, unless Mortgagee agrees to and does construct or complete the construction of improvements, or guarantees such construction of improvements, or pays, performs or provides any fee, dedication, improvements or other exaction or imposition as required by the Project Approvals. 16.3. Notice of Default to Mortgagee and Extension of Right to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Landowner hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Landowner, any notice given to Landownerwith respect to any claim by City that Landowner has committed an Event of Default. Each Mortgagee shall have the right during the same period available to Landowner to cure or remedy, or to commence to cure or remedy, the Event of Default claimed set forth in the City's notice. City, through its City Manager, may extend the cure period provided in Section 15.1.2 for not more than an additional sixty (60) days upon request of Landowner or a Mortgagee. 17. Severability. Except as set forth herein, if any term, covenant or condition of this Agreement or the apptication thereof to any person, entity or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to persons, entities or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law; provided, however, if any provision of this Agreement is determined to be invalid or unenforceable and the effect thereof is to deprive a Party hereto of an essential benefit of its bargain hereunder, then such Party so deprived shall have the option to terminate this entire Agreement from and after such determination. 18. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 19. Attorneys' Fees and Costs in Leqal Actions BY Parties to the Agreement. Should any legal action be brought by either party for breach of this Agreement or to enforce 859464-6 Final Version 11/07/2007 any provisions herein, the prevailing party to such action shall be entitled to reasonable attorneys' fees, court costs, and such other costs as may be fixed by the Court. 20. Attorneys' Fees and Costs in Legal Actions By Third Parties to the Agreement and Continued Permit Processing. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate and appear in defending such action. Landowner shall bear its own costs of defense as a real party in interest in any such action. Landowner shall reimburse City on an equal basis for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding and shall pay any attorneys fees and costs that may be awarded to the third party or parties. The City agrees that in the event an action at law or in equity to challenge the validity of the Project Approvals is filed by a third party other than by a state or federal agency, the City will continue to process and approve permit applications that are consistent with and comply with the Project Approvals unless a court enjoins further processing of permit applications and issuance of permits. 21. Transfers and Assignments. From and after recordation of this Agreement against the Property, Landowner shall have the full right to assign this Agreement as to the Property, or any portion thereof, in connection with any sale, transfer or conveyance thereof, and upon the express written assignment by Landowner and assumption by the assignee of such assignment in the form attached hereto as Exhibit G. and the conveyance of Landowner's interest in the Property related thereto, Landowner shall be released from any further liability cr obligation hereunder related to the portion of the Property so conveyed and the assignee shall be deemed to be the "Landowner," with all rights and obligations related thereto, with respect to such conveyed property. Prior to recordation of this Agreement, any proposed assignment of this Agreement by Landowner shall be subject to the prior written consent of the City Manager on behalf of the City and the form of such assignment shall be subject to the approval of the City Attorney, neither of which shall be unreasonably withheld. 22. Agreement Runs with the Land. Except as otherwise provided for in Section 15 of this Agreement, all of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property; (a) is for the benefit of such properties and is a burden upon such properties; (b) runs with such properties; and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefitto and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 23. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 859464-6 Final Version 11/07/2007 24. Indemnification. Landowner agrees to indemnify, defend and hold harmless City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for (1) any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Landowner, or any actions or inactions of Landowner's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Property and the Project, provided that Landowner shall have no indemnification obligation with respect to the gross negligence or willful misconduct of City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond) and (2) any additional mitigation required, including but not limited to payment of any mitigation fees that may be imposed, as a result of a lawsuit filed by a third party challenging or seeking to invalidate the Project Approvals. 25. Insurance. 25.1. Public Liability and Property Damage Insurance. At all times that Landowner is constructing any improvements that will become public improvements, Landowner shall maintain in effect a policy of comprehensive general liability insurance with a per -occurrence combined single limit of not less than two million ($2,000,000) dollars and a deductible of not more than fifty thousand ($50,000) dollars per claim. The policy so maintained by Landownershall name the City as an additional insured and shall include either a severability of interest clause or cross -liability endorsement. 25.2. Workers' Compensation Insurance. At all times that Landowner is constructing any improvements that will become public improvements, Landowner shall maintain Workers' Compensation insurance for all persons employed by Landowner for work at the Project site. Landowner shall require each contractor and subcontractor similarly to provide Workers' Compensation insurance for its respective employees. Landowner agrees to indemnify the City for any damage resulting from Landowner's failure to maintain any such insurance. 25.3. Evidence cf Insurance. Prior to commencement of construction of any improvements which will become public improvements, Landowner shall furnish City satisfactory evidence of the insurance required in Sections 26.1 and 26.2 and evidence that the carrier is required to give the City at least fifteen (15) days prior written notice of the cancellation or reduction in coverage cf a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Landowner performing work on the Project. 26. Excuse fir Nonperformance. Landowner and City shall be excused from performing any obligation or undertaking provided in this Agreement, except any obligation to pay any sum of money under the applicable provisions hereof, in the event and so long as the performance of any such obligation is prevented or delayed, retarded or hindered by act of God, 859464-6 Final Version 11/07/2007 fire, earthquake, flood, explosion, action of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, condemnation, requisition, laws, orders of governmental, civil, military or naval authority, or any other cause, whether similar or dissimilar to the foregoing, not within the control of the Party claiming the extension of time to perform. The Party claiming such extension shall send written notice of the claimed extension to the other Party within thirty (30) days from the commencement of the cause entitling the Party to the extension. 27. Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Landowner and, the City and their successors and assigns. No other person shall have any right cf action based upon any provision in this Agreement. 28. Notices. All notices required by this Agreement, the enabling legislation, or the procedure adopted pursuant to Government Code Section 65865, shall be in writing and delivered in person or sent by certified mail, postage prepaid. Notice required to be given to the City shall be addressed as follows: CITY OF LODI City Manager P.O. Box 3006 Lodi, CA 95241-1910 Notice required to be given to the Landownershall be addressed as follows: FRONTIER COMMUNITY BUILDERS, INC. TOM DOUCETTE 10100 TRINITY PARKWAY, SUITE 420 STOCKTON, CA 95219 Either party may change the address stated herein by giving notice in writing to the other party, and thereafter notices shall be addressed and transmitted to the new address. 29. Form of Agreement; Recordation; Exhibits. Except when this Agreement is automatically terminated due to the expiration of the Term of the Agreement or the provisions of Section 5.3 (Automatic Termination Upon Completion and Sale of Residential Lot), the City shall cause this Agreement, any amendment hereto and any other termination of any parts or provisions hereof, to be recorded, at Landowner's expense, with the county Recorderwithin ten (10) days of the effective date thereof. Any amendment or termination of this Agreement to be recorded that affects less than all of the Property shall describe the portion thereof that is the subject of such amendment or termination. This Agreement is executed in three duplicate originals, each of which is deemed to be an original. This Agreement consists of 30 pages and 41 Exhibit pages, which constitute the entire understanding and agreement of the parties. 859464-6 Final Version 11/07/2007 30. Further Assurances. The Parties agree to execute such additional instruments and to undertake such actions as may be necessary to effectuate the intent of this Agreement. 31. City Cooperation. The City agrees to cooperate with Landowner in securing all permits which may be required by City. In the event State or Federal laws or regulations enacted after the Effective Date, or action of any governmental jurisdiction, prevent delay or preclude compliance with one or more provisions of this Agreement, or require changes in plans, maps or permits approved by City, the parties agree that the provisions of this Agreement shall be modified, extended, or suspended as may be necessary to comply with such State and Federal laws or regulations or the regulations of other governmental jurisdictions. Each party agrees to extend to the other its prompt and reasonable cooperation in so modifying this Agreement or approved plans. IN WITNESS WHEREOF, the City of Lodi, a municipal corporation, has authorized the execution cf this Agreement in duplicate by its Mayor and attested to by its City Clerk under the authority of Ordinance No. 1794, adopted by the City Council of the City of Lodi on the 4th day of April, 2007, and Landowner has caused this Agreement to be executed. "CITY" CITY OF LODI, a municipal corporation By: Name: Blair Its: City Manager Ai ST: Ran o, .I, City C:erk LsLt�gi�)��r 859464-6 FinalVersion 11/07/2007 "LANDOWNER" FRONTIER COMMUNITY BUILDERS, INC. By: Inn Name: Tom Doucette Its: President CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF California COUNTY OF San Joaquin_ On g12 -t 1Z_CV? )SS before me, $, Dawn Hershman File No: (� APN No: ,Notary Public, personally appeared Thomas P. Doucette'-------- ------ who proved to me on the basis of satisfactory evidence to be the perso*s' whose nameWislXe'subscribed to the within instrument and acknowledged to me that he/s."- bay -executed the same in his/JaerJtl}e+r authorized capacity; and that by his/JP•/tljt signature(J.on the instrument the person( or the entity upon behalf of which the person�cted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my c ala ;; aEt-ts. S. DAWN HARSHMAN �, COMM. #1718378Sionature ;;•"''OTARYPUBUO- UNW - SANJOAQUINCOOQ� EXPIRES JAN. 19, 2011 Tuarli Mao OPTIONAL SECTION CAPACnY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the documents. ❑ INDMDUAL 5K CORPORATE OFFICER(S) TTTLE(S) President ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNPI-IN-FACT ❑ TRUSTEE(S) GUARDIAN/CONSERVATOR ❑ OTHER SIGNER IS P. PersonName of Person or Entity Name of or Entity .y ;; e:�.y Srrc- s'•.�.i_?ir'�-'�.._r !nY_°2..,�.._.��'�".,...:. ��..�—.F''"�,�''"�F.:�.f;:.�?"�..�?%�'-?'.,.;sw�.x��..'-'ti_n4L':c� _",ad_"'�+r','<fy'�+��. -.-� iz�tl��'��'1°.�"2._ ___ OPTIONAL SECTION Though the dara requested here is not required by law, it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES )S e06a-<- DATE OF DOCUMENT — '7 SIGNER(S) OTHER THAN NAMED ABOVE F%oav, �`,n� x164-wol _ jv t%ll D.ri� Reproduced by «!. able Field EOMaFIENorFound!!>>1J2D 7 30. Further Assurances. The Parties agree to execute such additional instruments and to undertake such actions as may be necessary to effectuate the intent of this Agreement. 31. City Cooperation. The City agrees to cooperate with Landowner in securing all permits which may be required by City. rn the event State or Federal laws or regulations enacted after the Effective Date, or action of any governmental jurisdiction, prevent delay or preclude compliance with one or more provisions of this Agreement, or require changes in plans, maps or permits approved by City, the parties agree that the provisions of this Agreement shall be modified, extended, or suspended as may be necessary to comply with such State and Federal laws or regulations or the regulations of other governmental jurisdictions. Each party agrees to extend to the other its prompt and reasonable cooperation in so modifying this Agreement or approved plans. IN WITNESS WHEREOF, the City of Lodi, a municipal corporation, has authorized the execution of this Agreement in duplicate by its Mayor and attested to by its City Clerk under the authority of Ordinance No. 1794, adopted by the City Council of the City of Lodi on the 0 day of April, 2007, and Landowner has caused this Agreement to be executed. "CITY" CITY OF LODI, a municipal corporation By: Name: Blair King Its: City Manager ATTEST: Randi Johl, City Clerk APPROVED AS TO FORM: D. Stephen Schwabauer City Attorney 859464-6 Final Version 11/07/2007 "LANDOWNER' FRONTIER COMMUNITY BUILDERS, INC. 0 Name: Tom Doucette Its: President CALIFORNIA•ACKNOWLEDGMENT State of California County of ,avt I awl c On 1 O ) 44 9001E before me, r i /\a oiqft it C Dae Here Inserl Name and Title of the Officer a personally appeared C Lt C' �c1C Namarel of Rinnnrrsl CORINA A. FARNSWORTH cmima"lon # 1814099 Mohry Public - Cal fornis a ItyJ Sm C&Lk.".411 20.2012 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official eal. Signature Place Notary Seal Above Yid at re of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachmentof this form to another document. Description of Attached Document Title or Type of Document: Document Date: ) 0 1 14 1 0200, Number cf Pages: Signer(s) OtherThan Named Above: %"1:lk1 _ c5& -o -kA 564�5er , :f 6ax Capacity(lies) Claimed by Signer(s) Signer's Name: 0 Individual ❑ Corporate Officer— Title(s): _ ❑ Partner —E] Limited Q General ❑ Attorney in Fact [J Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): _ ❑ Partner —0 Limited ❑ General ❑ Attorney in Fact U Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: of 02007 National Notary Associatiorr 9350 De Soto Ave., P.O. Box 2402 •Chatsworth, CA 91313-2402• www.NabonalNotary.org Item #5907 Reorder. Call Toll -Free 1-800-876-6827 EXHIBIT LIST ExhibitA-1 : Legal Description of the Property ExhibitA-2: Diagram of the Property Exhibit B: General Plan Land Use Map Exhibit B-1: Zoning Map for Project Site ExhibitC-1 : Large Lot Tentative Subdivision Map Exhibit C-2: Reserved Exhibit D: Development Plan and Infrastructure Map for the Property Exhibit E: Growth Management Allocations Exhibit F: Annexation Approvals Exhibit G: Form of Assignment Exhibit H: Schedule of Improvements Exhibit I: Park Improvements Exhibit J: Required ParkAmenities Exhibit K Benefited Properties Exhibit L Agreement to Amend Westside DevelopmentAgreement 859464-6 Final Version 11/07/2007 EXHIBIT A-1 LEGAL DESCRIPTION OF THE PROPERTY The land referred to herein is situated in the State of California, County of San Joaquin, City cE Lodi, and is described as follows: 859464-6 Final Version 11/07/2007 May 21,2007 DESCRIPTION OF WESTSIDE ANNEXATION TO THE CITY OF LODI SAN JOAQUIN COUNTY, CALIFORNIA A portion of Section 3 and a portion of Section 10, Township 3 North, Range 6 East, Mount Diablo Base and Meridian, County of San Joaquin, State of California, being more particularly described as follows: BEGINNING at the section corner common to Sections 3, 4, 9 and 10, Township 3 North, Range 6 East, Mount Diablo Base and Meridian, also being a point in the centerline of Sargent Road; thence along the west line of said Section 3, (1) North 0007'29" East, 1856.45 feet to a point on the northeasterly line of the Woodbridge Irrigation District (W.I.D.) Canal, also being a point on the Lodi City Limit line; thence along said City Limit line the following seven (7) courses (being courses 2 through 8): (2) South 55°12'21" East, 3162.42 feet to a point on the west right-of-way line of Lower Sacramento Road, said point being 40.00 feet west (measured at right angles) of the North-South quarter section line of said Section 3; (3) South 00°10'01" West, 22.95 feet; (4) North 89°12'20" West, 145.06 feet; (5) South 55012'21" East, 54.76 feet; (6) South 00°10'01" West, 14.38 feet to a point on the north right-of-way line of Sargent Road, said point being 20.00feet north (measured at right angles) of the north line of the northwest quarter of said Section 10; (7) North 89" 12'20" West, 808.68 feet along said north right-of-way line; and (8) South 00°02'09" West, parallel with the west line of said Section 10, a distance of 2661.70 feet to the East-West quarter section line of said Section 10, also being a point on the westerly terminus of Vine Street; thence leaving said City Limit line and running along said East-West quarter section line, (9) North 89'12'29" West, 1692.40 feet to the west quarter section corner of said Section 10; thence along Page 1 of 2 06-068 ANNEXATION L.EGALdoc May 21,2007 the west line of said Section 10, (10) North 00'02'09" East, 2641.77 feet to the POINT OF BEGINNING. The bearing of North 89'12'20" West for the north line of the northwesi quarter of said Section 10 as shown on that certain map filed for record in Book 22 of Parcel Maps, Page 124, San Joaquin County Records was used for the basis d bearings for all courses in this description. Containing 160 acres, more or less. Dated: S- 71 - 07 Page 2 of 2 06-068 ANNEXATION LEGAL.doc EXHIBITA-2 DIAGRAM OF THE PROPERTY 859464-6 Final Version 11/07/2007 LSA FIGURE 111-4 SOURCE: CITY Of LODI, 2005. 1:lLOD531 wsidc swgatel6gtires\Pig_II14.ai (313/06) WEs'I'E PROJECTSIDSITE CITY LIMITS Lodi Annexation EIR Parcels Within the Westside Project Area 0 400 800 FEET SOURCE: CITY Of LODI, 2005. 1:lLOD531 wsidc swgatel6gtires\Pig_II14.ai (313/06) WEs'I'E PROJECTSIDSITE CITY LIMITS Lodi Annexation EIR Parcels Within the Westside Project Area EXHIBIT B GENERAL PLAN LAND USE MAP k", - v , ;\I 'A zi f I '.) I :j 1 d 1 :N PlP, :?I I f X v 4 I i.!.! � : :1: IC14 I�V.Ionl 1q;l.i IA .4 I v l:jm I iN lN 1): 1 1 YMA t) I �) ZiA N \!1 � lN Cr() V 11 M() V. I t :)!A N I V J.;.N.4 U I I A M UA Nx v ;. ( ly11N3(l1N'3d J�LISNAU it'jill N...7 a w I I I (1 .4 —.1s. 'N N0 v q - EXHIBIT B-1 ZONING MAP FOR PROJECT SITE EXHIBIT C-1 Large Lot Tentative Subdivision Map 859464-6 Final Version 11/07/2007 El • • x 0 Q W f-- fa— Z W I— i 'T i T` 1 ►F1 � p+v "-----'L----1'----1------1'_J'--------------i I i I I I 1 1 I I 1 I 1 I 1 I 1 zZ-050-LZO I 43 zo-oso-tzo 1 1 g I ' L ------------------- � ------� r,� ...,....' 133i1153NtA - - - --s'-a"- ------------------ + x I � gl < + m s I Vie: I I I !�r« • ytmr x 8 F_{ f•-� `�..J L. i a9� 11 I 11 I i y l l l r � T T T T• T , ��✓✓- ri IT I I Il riil 1 'IIIJ liiy TTTTT F=i 1 1 1 L h-1 I I i l i l i I i I ,`/Y I �-rrrrTTrTT- Y r i l l I I I I I I I I _� c ++F �tt+tt'}"-,' -i 1 I t I I I I I h rT TT T T T TT TTT-,- ��(� I I I I I I I I I I �-..L11.L1111111.{ / ♦ �" r- -y Li J r rT -rr r l jT1F- EXHIBIT C-2 Reserved 859464-6 Final Version 11/07/2007 EXHIBIT D DEVELOPMENT PLAN AND INFRASTRACTURE MAP FOR THE PROPERTY 859464-6 Final Version 11/07/2007 Westside Laitd ['se Platt W.t.D CANAL The Development Plan and Infrastructure Plan for the Development will be consistent with the approved City of Lodi Master Plans and subject to subsequent approval. EXHIBIT E WESTSIDE PROJECT GROWTH MANAGEMENT ALLOCATION TABLE Applicable Date Allocation Effective Date cf 215 Low Density Units (Reserve) Development Areement Within the Calendar Year One Year 70 Medium Density Units after the Effective Date Within the CalendarYear Two Years 180 High Density Units after Effective Date 40 Low Density Units Within the CalendarYear Three Years 40 Low Density Units after Effective Date Within the CalendarYear Four Years 40 Low Density Units after Effective Date Within the CalendarYear Five Years 40 Low Density Units after Effective Date Within the CalendarYear Six Years 40 Low Density Units after Effective Date Within the CalendarYear Seven Years 40 Low Density Units after Effective Date Within the CalendarYear Eight Years 40 Low Density Units after Effective Date 859464-6 Final Version 11/07/2007 EXHIBIT F ANNEXATION APPROVALS 859464-6 Final Version 11/07/2007 CERTIFICATE OF COMPLETION San Joaquin LAFCo 1860 E. Hazelton Avenue Stockton, CA 95205 Short Fonn-Resignation: Doc #: 2007-135792 7/26/07 3:50 PD Page: 1 of 6 Fee: $0 Gary U. Freeman San Joaquin County Recorders Paid By: SHOWN ON DOCUMENT WESTSIDE REORGANIZATION TO THE CITY OF LODI (LAFC 04-07) Annexation of 160 acres to the City of Lodi with concurrent detachment from the Woodbridge Fire Protection District and the Sari Joaquin County Resource Conservation District. Filed pursuant to action by the City of Lodi 2. The name of each district or city involved in this change of organization or reorganization and the kind or type of change of organization ordered for each such city or district are as follows: CITY -OR DISTRICT City of Lodi Woodbridge Fire Protection District San Joaquin County Resource Conservation District TYPE OF CHANGE OF ORGANIZATION Annexation Detachment Detachment The city or districts are located in the following county (les): San Joaquin. 4. Boundary description for said formation or change has been attached as Exhibit A 5. Terms and conditions, if any, are provided in said resolution, attached. 6. I hereby certify that the action taken by adoption of the above cited resolution complies with the boundaries and conditions specified by the Local Agency Formation Commission of Sa uin County in Resolution No. 11.74. F C;1.ASF.P, EXECUTIVE OFFICER S o uin Local Agency Formation Commission Completion Date: July 26, 2007 C6RTCOMP RESOLUTION NO. 1174 BEFORE THE SAN JOAQUIN LOCAL AGENCY FORMATION COMMISSION APPROVING THE WESTSIDE REORGANIZATION TO THE CITY OF LODI (LAFC 04-07) WHEREAS, the above entitled proposal was initiated by filing by the City of Lodi, and on April 20, 2007, the Executive Officer certified the application filed for processing in accordance with the Cortese -Knox -Hertzberg Local Government Reorganization Act of 2000; and WHEREAS, the Commission held a public hearing on the proposed reorganization on June 16, 2007, in the Board of Supervisors Chambers, County Courthouse, pursuant to notice of hearing which was posted and mailed in accordance with State law; and WHEREAS, at said hearing the Coinmission heard and received evidence, both oral and written regarding the proposal, and all persons present were given an opportunity to be heard; and WHEREAS, the City of Lodi approved an Environmental Impact Report for the project, pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines: WHEREAS, there is one Williamson Act Contract within the boundaries of the proposed annexation territory; WHEREAS, the subject territory is uninhabited and has 100% owner -consent; NOW, THEREFORE, the San Joaquin Local Agency Fon-nation Commission DOES HEREBY RESOLVE, DETERMINE, AND ORDER as follows: Section 1. Certifies that, as a Responsible Agency, the Commission has reviewed and considered the City of Lodi's Environmental Impact Report (State Clearinghouse No. 2005092096) and adopts the CEQA Findings and Statement of Overriding Consideration as certified by the City of Lodi. Section 2. Finds that the proposal is uninhabited and has 100% owner -consent. Section 3. Detennines, pursuant to Government Code Section 56754, the City of Lodi must succeed to the rights, duties, and powers of the Williamson Act Contract No. 720456. Section 4. Approves the proposal as submitted to annex 160 acres to the City of Lodi with concurrent detachment from the Woodbridge Fire Protection District and the San Joaquin County Resource Conservation District, with the boundary description as approved by the County Surveyor, attached hereto as Exhibit A, subject to the following terms and conditions: a. The subject property is to remain within the boundaries of the Woodbridge Irrigation District. b. Pursuant to Government Code Section 56889, regarding Williamson Act Contract No. 720456, the City shall adopt the rules and procedures required by the Williamson Act, including but not limited to the 'rules and procedures required by Sections 5 1231, 51237 and 51237.5. Section 6. Waive the protest proceedings, and direct the Executive Officer to complete the reorganization by filing a Certificate of Completion and a Statement of Boundary change for the Westside Reorganization to the City of Lodi. PASSED AND ADOPTED this 16`h day of June 2007 by the following roll call vote: AYES: Coni nissioners Edward Chavez, Steven Nilssen, Jack Snyder, Ken Vogel, and Chainnan Mow NOES: None 1 .,13F_ VICTOR MOW, CHAIR San Joaquin Local Agency Formation Commission THE FOREGOING IS A CORRECT COPY OF THE ORIGINAL ON FILE IN THIS OFFICE 4: � � ��, COMMISSION CLE Date: C�1— Z!)-67 May 21, 2007 DESCRIPTION OF WESTSIDE ANNEXATION TO THE CITY OF LODI SAN JOAQUIN COUNTY, CALIFORNIA A portion of Section 3 and a portion cf Section 10, Township 3 North, Range 6 East, Mount Diablo Base and Meridian, County of San Joaquin, State of California, being more particularly described as follows: BEGINNING at the section corner common to Sections 3, 4, 9 and 10,Township 3 North, Range 6 East, Mount Diablo Base and Meridian, also being a point in the centerline of Sargent Road; thence along the west line cf said Section 3, (1) North 00'07'29" East, 1856.45 feet to a point an the northeasterly line of the Woodbridge Irrigation District (W.I.D.) Canal, also being a point on the Lodi City Limit line; thence along said City Limit line the following seven (7)courses (being courses 2 through 8): (2) South 55'12'21 " East, 3162.42 feet to a point on the west right-of-way line of Lower Sacramento Road, said point being 40.00 feet west (measured at right angles) cf the North-South quarter section line of said Section 3; (3)South 00'10'01 " West, 22.95 feet; (4)North 89°12'2.0" West, 145.06feet; (5)South 5512'21" East, 54.76 feet; (6)South 00°10'01" West, 14.38 feet to a point on the north right-of-way line of Sargent Road, said point being 20.00 feet north (measured at right angles) of the north line cf the northwest quarter of said Section 10; (7) North 89'12'20" West, 808.613 feet along said north right-of-way line; and (8)South 00'02'09" West, parallel with the west line of said Section 10, a distance cf 2661.70 feet to the East-West quarter section line cf said Section 10, also being a point on the westerly terminus cf Vme Street; [hence leaviny said City Limit line and running along said East-West quarter section line, (9)hlorth 89° 12'29" West, 1692.40 feet to the west quarter section corner of said Section 10; thence along Page 1 cf 2 06.068 ANNEXATION LEGAL.doc May 21, 2007 the west line of said Section 10, (10) North 0002'09' East, 2641.77 feet to the POINT OF BEGINNING. The bearing of North 89012'20" West for the north line of the northwest quarter of said Section 10 as shown on that certain map filed for record in Book 22 of Parcel Maps, Page 124, San Joaquin County Records was used for the basis of bearings for all courses in this description. Containing 160 acres, more or less Dated: -5, Z1 -07 Page 2 of 2 06-068 ANNEXATION LEGAL.doc EXHIBIT G FORM OF ASSIGNMENT OFFICIAL BUSINESS Document entitled to free recording Government Code Section 6103 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 Attn: City Clerk (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) ASSIGNMENT AND ASSUMPTION AGREEMENT RELATIVE TO FRONTIER COMMUNITY BUILDERS WESTSIDE DEVELOPMENT AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (hereinafter, the "Agreement") is entered into this day of , 200 , by and between Frontier Community Builders, a corporation (hereinafter "Developer"), and , a (hereinafter "Assig nee"). RECITALS 1. On , 2007, the City of Lodi and Developer entered into that certain agreement entitled "Development Agreement By and Between The City of Lodi and Frontier Community Builders, Inc. related to the development known as Frontier Community Builders Westside Project (hereinafter the "Development Agreement"). Pursuant to the Development Agreement, Developer agreed to develop certain property more particularly described in the Development Agreement (hereinafter, the "Subject Property"), subject to certain conditions and obligations as set forth in the Development Agreement. The Development Agreement was recorded against the Subject Property in the Official Records of San Joaquin County on 2007, as Instrument No. - 859464-6 Final Version 11/07/2007 ' 2. Developer intends to convey a portion of the Subject Property to Assignee, commonly referred to as Parcel , and more particularly identified and described in Exhibit A-1 and Exhibit A-2, attached hereto and incorporated herein by this reference (hereinafterthe "Assigned Parcel"). 3. Developer desires to assign and Assignee desires to assume all of Developer's right, title, interest, burdens and obligations under the Development Agreement with respectto and as related to the Assigned Parcel. ASSIGNMENT AND ASSUMPTION NOW, THEREFORE, Developerand Assignee hereby agree as follows: 1. Developer hereby assigns, effective as of Developer's conveyance of the Assigned Parcel to Assignee, all of the rights, title, 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 obligations under the Development Agreement with respect to all other property within the Subject Property owned by Developer. 2. Assignee hereby assumes all of the rights, title, interest, burdens and obligations of Developer under the Development Agreement with respect to the Assigned Parcel, and agrees to observe and fully perform all of the duties and obligations of Developer under the Development Agreement with respect to the Assigned Parcel. The parties intend hereby that, upon the execution Cf this Agreement and conveyance of the Assigned Parcel to Assignee, Assignee shall become substituted for Developer as the "Developer" under the Development Agreement with respect to the Assigned Parcel. 3. All of the covenants, terms and conditions set forth herein shall be binding upon 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 for the Developer with respect to the Assigned Parcel shall be: IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day and year first above written. This Agreement may be signed in identical counterparts. 859464-6 Final Version 11/07/2007 DEVELOPER: By: Print Name: Title: Division President 859464-6 Final Version 11/07/2007 ASSIGNEE: By: Print Name: Title: EXHIBIT H SCHEDULE OF IMPROVEMENTS 859464-6 Final Version 11/07/2007 Implementation and Phasing Memorandum Introduction The project phasing described below is intended to outline the anticipated sequencing of development. The project phasing plan is also intended to help ensure all necessary infrastructure would be in place and operational for connection and use as portions of the project phases come on line. The phasing schedule should be used as a guideline rather than a binding commitment because phasing must be flexible to respond to market absorption and other relevant conditions. Phasing The project is expected to be developed in four phases over a period of five to seven years. The first phase is expected to begin in the Spring of 2007 and the final phase is anticipated to be completed by the end of 2014. The following schedule represents the expected phasing of the residential villages. Phase Type Villaize Units 1 LDR A 198 2 MDR E 54 2 LDR B 160 3 HDR D 167 4 MDR C 140 Total residential units M Phase 1: The first phase of the project is Village A which consists of the 49.9 acre site north of Lodi Avenue to the WID Canal. Village A is a triangular site and represents approximately 198 lots. Sewer, water, storm drainage and other utilities to serve the site will be provided from the south through the utility corridor beneath Roads B C. The surface improvements to Roads B and C and the south side of Lodi Avenue are not expected to be constructed at this time. Phase 2: It is anticipated that the second phase of the project would include construction of Roads B and C and Tokay Street to Road C. The 160 LDR lots in Village B and the 54 MDR lots in Village E would be developed in this phase for a total of 214 lots. The south side of Lodi Avenue would also be constructed along with this phase as will the two approximately acre neighborhood park. Phase 3: The third phase is planned to be the approximately 167 townhomes represented by Village D. The completion of the Pedestrian trail from Lodi Avenue to Tokay will be in this phase. Phase 4: The fourth and final phase is expected to include the 140 MDR lots in Village C. The pedestrian trail south of Tokay and the Basin/ Park will likewise be completed with this phase of the project. EXHIBIT I PARKIMPROVEMENTS Basin/Park Area Summary Westside Annexation Park Basin (1), Net Gross, Total, Location acres (2),acres acres acres A 2.9 1.6 1.6 4.5 B 2.1 2.1 2.1 C 8.2 5.4 6.1 14.3 5outnwest vatewavAnnexation Basin (1), Location acres Park Net (2),acres Gross, acres Total, acres D 5.9 1.5 1.5 7.4 E 6.7 2.4 2.4 9.1 F 4.8 1.5 1.5 6.3 G 2.2 2.2 2.2 H 2 2 2 Open Space on Century Blvd. 0 0 0 (1) Westside Annexation area basin calculations not approved. The basin area numbers are subject to change. (2) Net area measured from street right of way. Area requirements are exclusive of bike and ped routes. (3) Park to be located at the southwest end of designated area. Park to be located at the south end of designated (4) area. Two slivers of open space are shown on Century (5) Blvd. Neither area provides sufficient space for park facilities. 859464-6 Final Version 11/07/2007 (5) EXHIBIT J REQUIRED PARKAMENITIES 859464-6 Final Version 11/07/2007 •MISmm . F.. e�©��s�oo©o©s�av00000©© •xx 1mmm©=M11M=MM1MM FNMMIINM • • � � - �������� i��i�ii��� iii 859464-6 Final Version 11/07/2007 EXHIBIT K BENEFITED PROPERTIES 859464-6 Draft Version 4 3/9/2007 • Exhibit K CITY OF LODI Benefiting Undeveloped • ' PUBLIC WORKS DEPARTMENT Properties 9 zs Ai i e 4 Lad A- ! 6Aoil IP11161.1i. .ii414 ii !l 6aaae 661.... �6e t11111 1fill,• "A !1 !!! 1 f a a a p lean" ed P !! „ A s s e e e a� a ALL! e— e e A fi W a e e a — e i 8 " � a � a i 6 A ! e a e e a e P . +z !tomos,^ iA, icem— fr. 2 1 ! ! ! i 1 " =1000' EXHIBIT L AGREEMENT TO AMEND WESTSIDE DEVELOPMENT AGREEMENT 859464-6 Draft Version 4 3/9/2007 .f AGREEMENTTO AMEND DEVELOPMENT AGREEMENT AND REFRAIN FROM CHALLENGING LAND USE PROJECT THIS AGREEMENT is made this 4t day of December, 2007 by and between the City of Lodi (Utift California General I..aw city, represented by the City Manager and City Attorney with the limited authority as described h Section 1.A; Citizens for Open Government, an unincprporated association (Citizens); and Frontiers Community Builders (Developer) a dba of Frontier Land Companies, a California Corporation. The Parties agree as follows: 1. Is_ 4" The Parties tnthe Agreement The City of Lodi' ("City") is a General Law city governed by a five -member city council. For all purposes hefelt and during all times during the negotiation of this Agreementthe City Manager and City Attorney have represented the City. However ?n this Agreement and at ell times during the negotiation cf the Agreement the City Manager and/or City Attorney haw lacked the capacity or legal authority to bind the City cf Lodi and/or t It e City Council. The parties understand that throughout the negotiation and in executingthis Agreement the City Manager and City Attpmey can only recommend to the City Council that it take certain actions, All authority and discretion remains with the City Council over whether the Cay Council will approve or disapprove of this Agreement. The City Councils scheduled to hear the Projectata dulyn?' iced public hear!ngscheduled after February 1,2007. Citizens Is an unincorporated association that has commented on the development proposed by Developer. The "Project" referred to herein is as defined in the Development Agreement for the "FCB WaMide Project' with all Project Approvals described therein, Citizens desire to have certain mitigation measures and clarifications added to the Development Agreement negotiated between City and Developer that in the opinion cf Citizens will further the interest of the City and the interest cf the public. U these amendments are added to the draft DevelopmentAgreement in the form of this Agreement, which shall be an exhlblt to the Development Agreements, then Citizens will support the Project, will not make negative comments about the Project's EIR cr the Project at any City Council er other public hearings. and will not subsequently challenge the certitioation of the EIR or the ProjectApprovals, directly or indirectly, Am Cerney shall be the sole spokesperson forCftizens end make these statements at the City Council hearing. At) nF,7 'A F,7Rt 'ON TR/117—�� tTT� a17.: I:.1007, 'ti 7. 'upP_._ Developer, a priNate entity, Is the applicant for the Development Agreements and Project Approvals described therein, The term 'Developer" includes all related entities of Developer andtheirsu0cessors in Interest 1 6. The parties agreethatthe DevelopmentAgreements contain commitmentsfor major infrastructure ano amenities thatwlll result in publicbenefits forthe City. C, Althoughi0itizeha are notfully satisfied with all aspectscf the Project and EIR, it has balanced the berpefits of the Project, including the changes to the draft Development Agreemenb as set forth in this Agreement, against the adverse effects of the Projects and has concluded that thl Projects, separately or combined, are substantially more beneficial to the Citythan detrirn ntal. 2 Modification of Development Aftement The parties agreethatthe draft Development Agreement forth e Project, scheduled to be considered by theCtty Council atthe public hearing after January 1, 2007 js to be hereby amended by and through this Agreement, which shall be attached to the Development Agreement as Exhibit"_". A. Mitigation For Agricultural Conversion Impacts, of Prosect (1) Developer shall ;obtain permanent easements to be held by the City or other qualified entity (e.g, Central Volley Farmland 7b3sta limiting the use of San Joaquin County real property to agriculturali uses and related activities as are perm tted from time to time under the agricultural zoning laws of the County ("Agricultural Conservation Easements"). In providing mitigation for impacts to agricultural land, Developer shall adhere to the terms of ,the final adopted San Joaquin County Agricultural Mitigation Ordinance, now under consideration by the Sian Joaquin County Board of Supervisors. (See November 14, 2006 draft Ordinance.) (2) At a minlmurrl, and notwithstanding the terms of the final, adopted County Ordinence, the Agric itural Conservation Easements shall be recorded on a 1.1 acre (conserved -developed), ratio against an aggregate total of up to 152 acres, more or less. contained within FCB �A/estside Project, involving one cr more parcels cf land -though not necessarily contiguous - with each mitigation acre located within San Joaquin County and zoned for agricultural uses ('Protected Properties"). f mitigation lands are located in the Primary Zone of the Spn Joaquin Delta that lies within the County, the mitigation ratio shall be on a 2.1 acre (eonserved.developed) basis. However, if prior to the Developer's compliance with this agricultural mitigation requirement, the San Joaquin Board of Supervisors excludes land within certain areas of the County (e.g., the Primary Zone of the D e b) from being used for agricubural mitigation purposes, the parties agree that those lands would be excluded from being used for mitigation purposes underthis Agreement (3) At a minimum, and notwithstanding the terms of the final, adopted County Ordinance, the Agricultural Conservation Easements may only apply to Protected Properties that are not encumbered by (a) any other perpetual open space conservation easement or 2 QToli: 'd 6ZRti 'ON rang JA ITY-1 ►non�roa dLZ's; OUR '1 Z 'uvf—Y„ _ deed restriction or(]c� any other perpetual agriculture mitigation easement or deed restriction.The cost of btainingthe Agricultural Conservation Easements shall rest with the Developer. The Protected Properties must be subject to permanent restrictions on use to ensure the availabillt of agricultural production capacity by limiting non-agricultural developmentthat is in onsistentwith agriculture uses and related activities. In accordance with the County's November 1A, 2006„draft Mitigation Ordinance section 9-3.080.3, subdivision (e)(1), the [Developer shall pay an administrative fee to cover the costs of administering, monitoring and enforcing the farmland conservation easement in an amount to be determined bythe qualified entity that will hold the conservation easement Fthe City holds the Agricultural Conservation Easements,the City will monitorthe Protected Properties subject to the easements biannually through its Planning Commission to ensure compliance with the requirements] of this provision. If the City is selected to hold the Agricultural Conservation Easements, Developer will pay City $5, 000to compensate the City for monitoring cost/contingencies in connection with the Agricultural Conservation Easements for the Westside Project (4) The Agricultural'Conservation Easements shall be recorded In the applicable ratio(s) against a minimum of each acre to be developed (or more) within any phased Final Subdivision Map of the,Project prior to the date the first residential buildingpermit s issued to Developer for any such phasethereoE (S) City shall notify Citizens of which site(s) are selected to meet the requirements of this provision 30 days pripr to the recordation of any Agricultural Conservation Easements pursuant to this Agreement if both Citizens and the City agree, We mitigation ratio applicable to rnftigatiol lands outside of the Delta Primary Zone may be reduced if the Developer proposes tobbtaln consawation easements' that, i n t h e judgment of both Citizens and the City, have a greater mitigation value than lands that could otherwise be used as mitigation for agricultural impacts of the Projects underthis provision. B. Home Build inlL boery-v and Conservation Fieatireswithin the Pro]W 1.) Develo ershail become a California Green Builder priorto the construction of the homes within t�e Projects. The California Green Builder program requires that all homes are at least 1515 more energy efficient that currently mandated by Title 24 in California and meetguadelines for energy efflclency set but the US Environmental Protection Agency. The homes within the Projects may contain a variety of energy efficient features and alternative energyifeatures such as high efficient insulation, high performance windows, high efficient heating and cooling equipment, cool roofing, radiant barriers, awnings, overhangs day lightingland qualified lighting. 2) Developer's status as a California Green Builder requires Developerto implementwater conservation features that -saves 20,000 gallons per home per year. Developer shall provide frontyard landscaping usingweather based Irrigation controllers and drip irrigation ands may utilize otherwater conservationfeatures such as high efficiency fixtures and efficient plumbing technologies, products end materials. Developer also agrees to use weather based irrigation controllers Th front yards, parks and common areas. TTnb 'A UP7 'ON T"AT ,n TTT”. ,n.nnnna A17.:�. ./667. 'ti 7. UPr-T„ 3) Developeshall make available solar powerfeatures and electrical car charging stations or outlets that homeowners within the Projects may eleetto purchase as part of that homeowners option package. 4) Developer agrees that at least 50% of the construction site waste shall be recycled or otherwise diverted from landfill disposal. 5) Developer shall use only EPA approved natural gas fireplaces, fireplace inserts, woodstoves or pelletstoves when such fireplaces are installed. Developer will comply with all federal„state and local laws and regulationspertainingto the Installation of wood burningfireplaces. 6) Developerwill encourage landscape maintenance companies to useeleetria powered equipment. . 7) Shade trees will be planted where appropriate throughout the Project and located to shade paved areas and to protectdwellingsfrom energy consuming environmental conditigns_ g) Developer agrees to complywith the California Green Builder program that appliesto high density;residential units, Currently a pilot programexists that is substantially similar to the low dens' y program, with the exception of the 20,000 gallon per home per year in water conserva ion. C. New Urbanism neighborhood deslM. Developer belleves that the Project's current land use plans promote the principles cf New Urbanism that include neighborhoods #at are walk -able, Interconnected,that include pedestrian friendlystrgetscapes; bicycle friendly design elements: well Integrated, highly visible, and publicly accessible open spaces. Developer s also committed to designingthe specific components of the Projects to include housing and structural forms that are visually interesting, well modu�lated, constructed of high quality materials, proportionateto their surroundings, and a range of housingtypes, sizes and affordablllty, D. Pedes dan.Transit and Bioyole lnfrastructure: Developer agrees to implement the following measures: , 2) Provide pedestrian enhancing infrastructure that includes: sidewalks and pedestrian paths, direct pedestrian connections, street trees to shade sidewalks, pedestrian safety designs/infrastructure, street lighting and/or pedestrian signalization and signage, and 2) Provide bicycle -enhancing infrastructure that includes: bikeways/paths connectingto a bikewaysystem as well as secure bike parking. 4 YYn G 'A F7Qt 'ON I T"n'T s., TTT� ,,,,,,,,:,�NaR7.:R1607. W. 'UPr — E. Lodi Eastside: ' The Project's requirement for investment in Lodi's eastside community as set forth in the FCB Westside Development Agreement >k hereby amended to require that any un(ts v hich are selected by the Developer to be rehabilitated or replaced and which are ci rm* at affordable rents for persons or families of low income shall remain affordable for persons of low income. F. Water Suneiv: Additional entitlementsfor urban development within the Project area (i.e., subdivision maps,i Parcel maps, building permits, etc.) shall not be granted for any dwellings within the Project area after total water use exceeds the projected safe groundwater yield of the Projectarea until additional water sources (e.g., W.I,D. groundwater recharge or water treatment or otherwise) are available. According to the Westside - Southwest Gateway Project Water Supply Assessment (July 2006) (' WSA" ), a total of approximately 257 acre feet per year will be available for the Westside Project upon its annexation while the total projected water demand will likely be in excess of that amount before full build -out ooburs. The purpose of oris provision, then, b to ensure that water use by the Project does not exceed the projected increase In safe groundwater yield attributable to annexation of the Project area Into the City until additional water sources (e.g., W.I.D. groundwater recharge or watertreatment orotherwise) are available, (Sea WSA, Figure 5-4.) G. Aa1cultM1g CanfiictA: Developer shall strive to phase development i n a manner that will reduce land use conflicts with lands currently in agricultural use to the wast of the Project. To the extent; feasible, Developer will generally develop the Project in an east to west direction. H. Challenies: 1) No Challenge by Citizehs/Cernev: MisAgreement will nut become effective in the event #at Citizens and/or Ann CerneT.. (mile any legal action challenging the City's certification lof the EM, (2)file any legal action challenging the City's approval of the Pmject's land use approvals, including the amendments to the West Side Facilities Master Plan; (3yile any legal action challenging the San Joaquin Local Agency Formation Commission's comet nee with CEQA; (4)file any fegal actim challenging the San Joaquin Local Agency Formation Commission's approval of the annexation of the territory to the City of Lodi; (5)qualify a referendum petition to require ah election concerning one or more of the Project's lepslatiw approvals, or (6)violate the terms or the spirit of this Agreement in any other manner. 2) Ehal(gngg by Third Party: $. The amendment to the Development Agreement called for in this Agreement will become partially ineffective as set forth below in the event that any other party (1) files any legal action challenging the City's certification of the EM; (2)r1les any legal action challanglpg the City's approval cf the Project's land use approvals; (3)f]es any legal action challenge is the San Joaquin Local Agency Formation Commission's compliance with CEQA; (4) files a legal action challenging the San Joaquin Local Agency Formation Commission's approval of the annexation of theterritory to the City of Lodi; or, (5)qualifies a 5 CT019 'd 6ZD 'ON Trt�.r� TT„-- �Ad27.:1 ;:1007 'tZ 'ups.__ — referendum petition to r�qulre an election concerning one or more of the Project'sleglslative approvals. b. • if an event tr%% s a partial invalidity as called for above, the ratio of number of aches to be mitigated per Section 2.A. wilt be reduced by 50-W and reimbursement of a portion of the fees paid to Citizens under the Southwest Gateway Development AgreerneTt dated November 15,2006 (see Paragraph 3C_ therein) shall be due from Citizensto Deyeloper (within 60 days of its written noticeto Citizens) Inthe amount of $7, 600.. Moreover, !Citizens' statute of limitations to file an action challenging the City's certification of the EIR and/or land use approvals will be tolled for thirty (30) days from the limitations period established by CEQA. Cly and Developer grant a second conditional and limited tolling of the statute cf limitations to file an action challenging City's certification of the EIR. This condition$ and limited tolling will only arise upon a legal challenge by a third party to LAFCO's determination on the ER and/or annexation and Citizens' time to file an action shall extend for only thirty (30)days after the third party files its action. C, In the event that dismissals with prejudice are filed with any applicable Court before answers are filed in the third party litigation then Citizens will dismiss any subsequent actions and the terms of tbisAgreement shall be fully restored. 3. Miscellaneo s. A Ann Cegney, as the sole representative of Citizens. shall appear at all appropriate City Countii hearings and express support for the approval cf this Agreement, and non -opposition to the City Council's approval of the Project and certification of the EIR, B. Citizens' represents and warrants that Ann Cemey has authority to execute this Agreement on behalf cf Citizens and is authorized to apeak on behalf of th a organization at all Lodi City Council prid other pubiic meetings. C. Developer has previously agreed to conditionally pay $40,OOOto Citizens as reimbursement to Citizens for attorney fees expanded in the negotiation and executing of an amendment to the Southwest Gateway DevelopmentAgreementalongthe same lines as set forth above; therefore, the parties further agree that Developer owes no addiiignai amounts to reimburse membe>s of the Citizens for any time and effort expensed in the process of amendingthe Westside Development Agreement, D. If the ppblie benefits included in this Agreement are not adopted by the City Council, Citizens' support for approval of this Agreement and non -opposition to the City Council's approval ofj the Projects and Certification of the EIR will be withdrawn and its previously stated objbctions will be renewed. City and Developer agree not to assert an exhaustion of administrative remedies defense as to those issues specifically raised and exhausted at hearfngs regardingthe Project if litigation ensues and this agreement becomes null and void, or partially invalid, underthis Agreement 4. Independ�t Effect Effffogtive Date of Affeemgrit 6 hTn A70 ON YrrnrY in TTT1 This Agreement! shall be immediately effective and binding upon Citizens and Developer, but subject to termination by condition subsequent should t a Lodi City Council not ratify this Agreement at the time of Its public hearing on the FCB Westlake Project scheduled after February 1,2007. The remainder of this Agreement shall only become effective upon the City Council approval of the amendment to the draft Development Agreement that are described in Section 2, Notwithstanding any other provision herein to the contrary, because of the nature of the mltlgartion measures set forth herein (e.g., ratlo of 1.1 acres for agriculture mitigation), the partiesagreethat this Agreement shall be effective as stand-alone resolutions oftheir disputes as to this Project. 5. Afire m—erA Not o Sue ar Circulate a RR f Mndu m Petition. if the arnendmdnt to the Development Agreement called for in this Agreement are adopted by the City Council. Citizens agrees that neither it nor Its individual members shall sue the City or the San: Joacluln Local Agency Formation Commission over the sufficiency of the EIR or the land use/annexation decisions by these public agencies. further neither Citizens nor Its members shall encourage or give assistance to any others to challenge the Developer's Project either administratively or judicially. Moreover, neither Citizens, nor its members, will encourage, indirectly assist or actually circulate a petition to place a referendum on the ballot to forcean election aboutthe Project's legislative approvals. 6. Counterparts. This agreement may be executed In counterparts. /nIn Fiontier Lan Companies By: Tom Doucette, President City of Lodi --- By-. By: Blair King, City Mena er Citizens for Open Government By: Ann Cerney 7 CTAP 'd I70 'ON T"eVT .TA TTr•1 ,If7. ! VOol w -ver`.., E oop•leulj liodai Soj 6-� L\aZ>ilO\sallj lauwalul kejodw9l\s6ulu9S leool\9Nels\s6uluaS pue sluawnooa\:a weir w: 90GL I^'�M {CNIWY g1(tNY .•rp� + 4 koz - .! : 3lVJS c" = ooi o 'pM9 VO '!PO1 JO /4!:) uold asn puol anlloj4nlll -.Ab'M31Vo Iaol ueid asn pue7 Aememo MS OFFICIAL BUSINESS Document entitled to free recording Government Code Section 6103 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 Attn: City Clerk 859465 Version 5 Final 11/09/06 Doc #: 2008-116965 Thu Jul 17 13:27: 9 PDT 2008 Page: 1 of 71 Fee: $0 Gary U. Freeman San Joaquin County Recorders Paid BY: S�HOWN ON DOCU"EN'NET��I�I ,III i17 -,E, {,Li (SPACEABOVE THIS LINE RESERVED FOR RECORDER'S USE) DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF LODI AND FRONTIER COMMUNITY BUILDERS, INC. FOR FCB SOUTHWEST GATEWAY PROJECT TABLE OF CONTENTS RE-CITALS .............................................................4 1. Authorization...................................................................................................................................4 2. Property............................................................................................................................................4 3. Project.............................................................................................................................................4 4. Public Hearing .................................... ......................................................................... 4 5. Environmental Review....................................................................................................................4 6. Project Approvals............................................................................................................................4 7. Need for Services and Facilities..................................................................................................... 8. Contribution to Costs of Facilities and Services.............................................................................. 9. Development Agreement Resolution Compliance......................................................................... E 10. Consistency with General and Specific Plan.... . ............................................................................. f 11. Creation of Career -Oriented Employment Opportunities AGREEMENT................................................................................................................................................E 1. Incorporation of Recitals................................................................................................................. E 2. Description of Property.............................................................................. .... ...............................E 3. interestof Landowner................................................................................................................... 6 4- Relationship of City and Landowner............................................................................ .. .. w 5. Effective Date and Term .................................................... ............................................................E 5.1. Effective Date .........................................................................................................._...� .... 6 5.2. Term.......................................................................................................................................7 5.3. Automatic Termination Upon Completion and Sale of Residential Lot . .................................. 7 6. Use of Property...............................................................................................................................7 6.1. Right to Develop .................................... ..............................................................._...._..- ........ 7 6.2. Permitted Uses: ....................................................................................................................... 9 6.3. Moratorium, Quotas, Restrictions or Other Growth Limitations...............................................9 6.4. Additional Conditions.............................................................................................................12 6.5 Annexation 7. Applicable Rules, Regulations, Fees and Official Policies...........................................................18 7.1. Rules Regarding Permitted Uses..........................................................................................18 7.2. Rules Regarding Design and Construction...........................................................................18 7.3. Changes in State or Federal Law. ......................... ................................................................18 7.4. Uniform Codes Applicable................................................................................... .................19 8. Existing Fees, Subsequently Enacted Fees, Dec ications, Assessments and Taxes ................... 19 8.1. Processing Fees and Charges............................................................................................. 19 8.2. Existing Fees, Exactions and Dedications.............................................................................20 8.3 Subsequent Development Impact Fees, Exactions and Dedications 9. CommunityFaclities District......................................................................................................... 20 9.7. Inclusion in Community Facilities District ................................................ .............................20 9.2. Use of Community Facilities District Revenues.....................................................................22 9.3. Community Facilities Districtfor Residential Property — Landowner Financing .................... 22 10. Processing of Subsequent Development Applications and Building Permits ............................. .22 11. Amendment or Cancellation.......................................................................................................... 22 1 11. Modification Because of Conflictwith State or Federal Laws ................................................ 22 11.2. Amendment by Mutual Consent............................................................................................ 23 859465 Version 5 Final 11/09/06 1h.3. Insubstantial Amendments.................................................................................................... 23 11.4. Amendment of Project Approvals.......................................................................................... 23 11.5. Cancellation by Mutual Consent ........................................................................... 12. Term of Project Approvals ................................... ................23 13. Annual Review.............................................................................................................................. 23 13.1. Review Date......................................................................................................................... 4 4 13.2. Initiation of Review............................................................................................................... 13.3. Staff Reports.......................................................................................................................... 24 13.4. Costs............................................................................................................................. .........24 13.5. Non-com liancewith Agreement; Hearing............................................................................ 24 13.6. Appeal ofpDetermination...................................................................................................... .24 14. Default............................................................... ........................24 .................................................... 14.1. Procedure Regarding Defaults............................................................................................ ..25 15. Estoppel Certificate....................................................................................................................... 26 16. Mortgagee Protection; Certain Rights of Cure ................................ ......................26 16.1. Mortgagee Protection............................................................................................................26 16.2. Mortgagee Not Obligated.......................................................................................................26 16.3. Notice of Defaultto Mortgagee and Extension of Right to Cure...................... ......................27 17. Severability. 27 18- Applicable Law..............................................................................................................................27 19. Attorneys' Fees and Costs in Legal Actions By Parties to the Agreement .............................••••• 27 20. Attorneys' Fees and Costs in Legal Actions By Third Parties to the Agreement and Continued PermitProcessing................................................................................................................................... 27 21. Transfers and Assignments ................................................................................. .......,....... .......... 28 22. Agreement Runs with the Land ........................ ..................... -... .................................................. 28 23. Bankruptcy.:........................................................................................................................ ............28 24. Indemnification........................................................................................................................ ...... 28 25. Insurance...................................................................................................................................... 29 25.1. Public Liabilityand Property Damage Insurance. .......29 .................................................... - -. 25.2. Workers' Compensation Insurance ........................................................................... 25.3. Evidence cf Insurance............................................................................... ............................ 29 26. Excusefor Nonperformance........................................................................................................ .29 27. Third Party Beneficiaries............................................................................................................... 30 28. Notices......................................................................................................................................... .30 29. Form of Agreement; Recordation; Exhibits................................................................................... 30 30. Further Assurances....................................................................................................................... 30 31, City Cooperation.......................................................................................................................... .30 859465 3 Version 5 Final 11/09/06 DEVELOPMENTAGREEMENT FCB SOUTHWEST GATEWAY PROJECT This Development Agreement is entered into as of this 6th day of December, 2006, by and between the CITY OF LODI, a municipal corporation {"City"), and, FRONTIER COMMUNITY BUILDERS, INC. ("Landowner"). City and Landownerare hereinafter collectively referred to as the "Parties" and singularly as "Party." RECITALS 1. Authorization. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Government Code Section 65864, et seq. (the "Development Agreement Statute"), which authorizes the City and any person having a legal or equitable interest in the real property to enter into a development agreement, establishing certain development rights in the Property which is the subject of the development project application. 2. Pro e . Landowner holds a legal or equitable interest in certain real property located in the City of Lodi, County of San Joaquin, more particularly described in Exhibit A-1 attached hereto (the "Property"). Landowner represents that all persons holding legal or equitable interests in the Property shall be bound by this Agreement. 3. Project. Landowner has obtained various approvals from the City (described in more detail in Recital below) for a mixed use project known as ECB Southwest Gateway (the "Project") to be located on the Property. 4. Public Hearing. On October 25, 2006, the Planning Commission of the City of Lodi, acting pursuant to Government Code Section 65867, held a hearing to consider this Agreement and the Planning Commission action has been reported to the City Council. 5. Environmental Review. On November 15, 2006, the City Council certified as adequate and complete, the Lodi Annexation Environmental Impact Report ("EIR) for the Southwest Gateway Project. Mitigation measures were required in the EIR and are incorporated into the Project and into the terms and conditions cf this Agreement, as reflected by the findings adopted by the City Council concurrently with this Agreement. 6. Prolect Avorovals. The following land use approvals (together the "Project Approvals") have been granted for the Property, which entitlements are the subject of this Agreement: 6.1. The EIR. The Mitigation Measures in the EIR are incorporated into the Project and into the terms and conditions of this Agreement (City Resolution No. 2006-209); 859465 4 Version 5 Final 11 /09/06 6.2. A General Plan Amendment (the "General Plan"), (attached hereto as Exhibit B) approved by the City on November 15, 2006 (City ResolutionNo. 2006-211); 6.3. The Zoning of the Property (attached hereto as Exhibit B-1) approved by the City on December 6, 2006 (City Ordinance No. 1787); 6.4. The Large Lot Tentative Subdivision Map for the Project (attached hereto as Exhibit C-1) to be subsequently considered by the City through a noticed public hearing process. (The parties agree that the large tot subdivision map included herein is for illustrative purposes only and shall not be effective until approved through a notice public hearing process by the City. If approved by the City, the Large Lot Subdivision Map shall thereafter be included within the Project Approvals listed herein); 6.5, Reserved; 6.6. The Development Plan and Infrastructure Plan for the Project (attached hereto as Exhibit D), approved by the City on December6, 2006 by Ordinance No. 1788; 6.7. The Growth Management Allocations, as required by Chapter 15.34 of the Lodi Municipal Code, as set forth in Exhibit E, approved by the City on December 6, 2006 by Ordinance No. 1788; 6.8. This Development Agreement, as adopted on December 6, 2006 by City Ordinance No. 1788 (the "Adopting Ordinance"); and, 6.9. The Annexation Approvals granted by San Joaquin County Local Agency Formation Commission as shown in Exhibit F attached hereto. 7. Need for Services and Facilities. Development of the Property will result in a need for municipal services and facilities, some of which will be provided by the City to such development subject to the performance of Landowner's obligations hereunder. With respect to water, pursuant to Government Code Section 65867.5, any tentative map approved for the Property will comply with the provisions of Government Code 66473.7. 8. Contribution to Costs of Facilities and Services. Landowner agrees to contribute to the costs of such public facilities and services as required herein to mitigate impacts on the community of the development of the Property, and City agrees to provide such public facilities and services as required herein to assure that Landowner may proceed with and complete development of the Property in accordance with the terms of this Agreement. City and Landowner recognize and agree that, but for Landowner's contributions set forth herein including contributions to mitigate the impacts arising as a result of development entitlements granted pursuant to this Agreement, City would not and could not approve the development of the Property as provided by this Agreement and that, but for City's covenant to provide certain 859465 Version 5 Final 11 /09/06 facilities and services for development of the Property, Landowner would not and could not commit to provide the mitigation as provided by this Agreement. City's vesting of the right to develop the Propertyas provided herein is in reliance upon and in consideration of Landowner's agreement to make contributions toward the cost of public improvements as herein provided to mitigatethe impacts of development of the Property as development occurs. 9. DevelopmentAareement Resolution Compliance.. City and Landowner have taken all actions mandated by, and fulfilled all requirements set forth in, the Development Agreement Resolution of the City of Lodi, as set forth in the City Council Resolution No. 2005- 237 for the consideration and approval of the pre -annexation and development agreement. 10. Consistency with General and Specific Plan. Having duly examined and considered this Agreement and having held properly noticed public hearings hereon, the City found that this Agreement satisfies the Government Code §65867.5 requirement of general plan consistency. NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants hereinafter set forth, the Parties agree as follows: AGREEMENT 1. Incorporation of Recitals. The Preamble, the Recitals and all defined terms set forth in both are hereby incorporated into this Agreement as if set forth herein in full. 2. Description of Property. The property, which is the subject of this Development Agreement, is described in ExhibitA-1 and depicted in Exhibit A-2 attached hereto ("Property"). 3. Interest of Landowner. The Landowner has a legal or equitable interest in the Property. Landowner represents that all persons holding legal or equitable interests in the Property shall be bound by the Agreement. 4. Relationship of City and Landowner. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Landowner and that Landowner is not an agent of City. The City and Landowner hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Landownerjoint venturers or partners. 5. Effective Date and Term. 5.1. Effective Date. The effective date of this Agreement ("Effective Date") is December 6, 2006, which is the effective date of City Ordinance No. 1788 adopting this Agreement. 859465 Versions Final 11/09/06 5.2. Term. Upon execution, the term of this Agreement shall commence on the Effective Date and extend for a period of fifteen (15) years, unless said term is terminated, modified or extended by circumstances set forth in this Agreement. Following the expiration of the term, this Agreement shall be deemed terminated and of no further force and effect. Said termination of the Agreement shall not affect any right or duty created by City approvals for the Property adopted prior to, concurrently with, or subsequent to the approval of this Agreement nor the obligations of Sections 20, 24 or 25 of this Agreement. In the event that litigation is fled by a third party (defined to exclude City and Landowners or any assignees of Landowner)which seeks to invalidate this Agreement or the Project Approvals, the expiration date of this Agreement shall be extended fora period equal to the length of time from the time the summons and complaint and/or petition are served on the defendant(s) until the judgment entered by the court is final and not subject to appeal; provided, however, that the total amount of time for which the expiration date shall be extended as a result of such litigation shall not exceed four years. 5.3. Automatic Termination Upon Completion and Sale of Residential .Lat. This Agreement shall automatically be terminated, without any further action by either party or need to record any additional document, with respect to any single-family residential lot within a parcel designated by the Project Approvals for residential use, upon completion of construction and issuance by the City of a final occupancy permit for a dwelling unit upon such residential lot and conveyance of such improved residential lot by Landowner to a bona -fide good -faith purchaser thereof. In connection with its issuance of a final inspection for such improved lot, City shall confirm that all improvements, which are required to serve the lot, as determined by City, have been accepted by City. Termination of this Agreement for any such residential lot as provided for in this Section shall not in any way be construed to terminate or modify any assessment district or Mello -Roos Community Facilities District lien affecting such tot at the time of termination. 6. Use c f Property. 6.1. Vested Right to Develop. Landowner shall have the vested right to develop the Project in accordance with the terms and conditions of this Agreement, the Project Approvals, the City's existing policies, standards and ordinances (except as expressly modified by this Section 6.1 and Section 8.3) and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. Landowner's vested right to develop the Property shall be subject to subsequent approvals; provided however, except as provided in Section 6.3, that any conditions, terms, restrictions and requirements fX such subsequent approvals shall not prevent development of the Property for tho uses, or reduce the density and intensity cf development, or limit the rate or timing of development set forth in this Agreement, so long as Landowner is not in default under this Agreement. Notwithstanding the vested rights granted herein, Landowner agrees that the following obligations, which are presently being developed, shall apply to development of the Property: 859465 7 Version5 Final 11/09/06 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. 6.1.2 Payment of 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. 6.1.3 Paymenf of Electric Capital improvement Mitigation fee (see Section 6.4.10) pursuant to the ordinance and/or resolution to be adopted by the City of Lodi. 6.1.4 Payment of development fee for proportionate share of the costs of designing and constructing a water treatment system and/or percolation system for treatment of water acquired from Woodbridge Irrigation District (see Section 6.4.4) pursuant to the ordinance an/or resolution to be adopted by the City of Lodi. With regards to the fees identified in Sections 6.1.1, 6.1.2, 6.1.3, and 6.1.4 and these fees only, Landowner hereby consents to their imposition as conditions cf approval on any discretionary or ministerial land use entitlement subsequently granted by the City including but not limited to issuance of building permits. City agrees that the fees payable by the Landowner pursuant to Sections 6.1.1, 6.1.2, 6.1.3 and 6.1.4 shall be adopted in conformance with applicable law, and shall apply uniformly to all new development on properties within the City that are zoned consistent with the Project Approvals, or apply uniformly to all new development on properties that are similarly situated, whether by geographic location or other distinguishing circumstances. Except for the fees identified in this Agreement including but not limited to the Project Approvals, Sections 6.1.1, 6.1.2, 6.1.3, 6.1.4 and 8.3, no other subsequently enacted development or capital fee shall be imposed as a condition of approval on any discretionary or ministerial decision. The Parties acknowledge and agree that the fees applicable to the development pursuant to the Project Approvals and this Agreement may be increased during the term of this Agreement provided that (1) such increases are limited to annual indexing (i.e. per the Engineering News Record index, or the CPI, or other index utilized by the City) and as provided in current fee ordinances and (2) the increased fees are adopted in conformancewith applicable law, apply uniformly to all new development on properties within the City that are zoned consistent with the Project Approvals, or apply uniformly to all new development on properties that are similarly situated, whether by geographic location or other distinguishing circumstances. The initial adjustment shall be effective as of four years after the Effective Date of the Agreement and shall be calculated based on the difference in the applicable index from the numerical rate at the end of the month following the third year after the Effective Date and the numerical rate at the end of the month following the fourth year after the Effective Date, All subsequent increases shall be based on the annual change in the applicable index. Notwithstanding the preceding sentence, index adjustments to the fees set forth in Section 8.2, subsections 2, 3 and 4 shall be effective annually as set forth in the relevant ordinances and resolutions. Moreover, Landowner will be subject to the indexing called for above even if Landowner has filed a complete application for a Vesting Tentative Map and will not vest against such indexing until payment of the fees as called for in this Agreement. 859465 Version 5 Final 11/09/06 6.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, location and maintenance of on-site and off-site improvements, location of public utilities and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. City acknowledges that the Project Approvals provide for the land uses and approximate acreages for the Property as set forth in Exhibit 5-1 and Exhibit B-2. 6.3. Moratorium, Quotas. Restrictions or Other Growth Limitations. Landowner and City intend that, except as otherwise expressly provided in this Agreement, this Agreement shall vest the Project Approvals against subsequent City resolutions, ordinances and initiatives approved by the City Council or the electorate that directly or indirectly limit the rate, timing, or sequencing of development, or prevent or conflict with the permitted uses, density and intensity of uses or the right to receive public services as set forth in the Project Approvals; provided however Landowner shall be subject to rules, regulations or policies adopted as a result of changes in federal or state law (as provided in Section 7.3) which are or have been adopted on a uniformly applied, City-wide or area -wide basis, in which case City shall treat Landowner in a uniform, equitable and proportionate manner with all properties, public and private, which are impacted by the changes in federal or state law. 6.3.1 Allocations Under City Growth Mananement Proaram a. Allocations Required Prior to Map Approval Consistent with the City's Growth Management Program, which shall apply to the Project, except as otherwise provided herein, no tentative map for any portion of the Propertyshall be issued until such time as Landowner has obtained allocations for each residential unit within the area covered by such map, consistentwith the Growth Management Ordinance (Ordinance 1521), codified as Section 15.34 of the City of Nodi Municipal Code. b. Schedule of Allocation of Residential Units The following schedule of residential unit allocations shall apply to the Project. Initial Allocation: As of the EffectiveDate of this Agreement, the following number of residential units shall be initially allocated to the Projectfrom the City's reserve of unused allocations ("Initial Allocation"): 859465 9 Version 5 Final 11/09/06 300 Low Density units 300 High Density units (300 units shall be used to construct 300 apartment units adjacent to Highway 12/Kettleman Lane as shown in the Project Approvals) Except for the requirement set forth in Section 6.3.1(a) above the Initial Allocation has been determined to 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 requirements). ii Subsequent Annual Allocations: As of the Effective Date of this Agreement, Landowner shall be entitled to apply for future annual allocations in three-year increments, and on a rolling basis. Provided that Landowner otherwise complies with the City's Growth Management Program, Landowner shall be entitled to annual allocations set forth in Exhibit E ("Annual Allocations"). If Landownerelects in any year to request fewer allocations than provided for in Exhibit E or if the term of any allocation granted expires before it is used as part of obtaining a subdivision map, Landowner shall be entitled to receive, upon submission of a complete growth management allocation application, additional allocations after the eighth year cf this Agreement and through the term of this Agreement including any extension thereto granted pursuant to Section 5.2. The total number of growth management allocations granted hereunder shall be limited to the number of residential units approved as part of the Project Approvals excluding any senior housing residential units. The use of such allocations shall be restricted to the year for which such allocations were made, consistent with the Growth Management Ordinance. Notwithstandingthe foregoing, Landowner may request additional allocations, over and above those set forth in Exhibit "E", and City may grant such allocations in its discretion, provided such additional allocations are consistent with the City's Growth Management Allocation Program, Resolutions 91-170 and 91-171, subject to such additional community benefits and/or exactions negotiated upon such a request. Landowner is not required to apply for such allocations on an annual basis. Landowner may instead comply with all development plan and related requirements under the Growth Management Ordinance and Resolutions 91-170 and 91-171 every third year, at which time Landowner may apply for allocations for the next three-year period. After the expiration of the year for which an Annual Allocation was issued to Landowner, Landowner may submit a request and be issued by the City another Annual Allocation, such that Landowner may maintain, on a rolling basis, a number of allocations equal to three Annual Allocations. Except for allowing the Landowner this flexibility in terms of the number of years for which Landowner may apply, A requests for Annual Allocations must otherwise c c aply with the Growth Management Ordinance and Resolutions 91-170 and 91-171. The requirement that Landowner apply for Annual Allocations does not alter the vested rights of the Project, specificallyas to the General Plan and zoning designation of the Project. (n) Growth Management Ordinance in full force and effect: 859465 10 Version 5 Final 11/09/06 Except where otherwise specifically stated herein, nothing in this section 6.3.1 is intended to modify in any way the City's Growth Management Program, including its exemptions under Section 15.34.040 (e.g., for senior citizen housing). Section 6.3.2 Future Growth Control Ordinances/Policies, Etc. (a) One of the specific purposes of this Agreement is to assure Developer that, during the term of this Agreement no growth -management ordinance, measure, policy, regulation or development moratorium of City adopted by the City Council or by vote of the electorate after the Effective Date of this Agreement will apply to the Property in such a manner so as to the reduce the density of development , modify the permissible uses, or modify the phasing of the development as set forth in the Project Approvals. (b) Therefore, the parties hereto agree that, except as otherwise expressly provided in the Project Approvals, Sections 6.1, 6.3.1 or 6.4 or other provision of this Agreement which expressly authorize City to make such pertinent changes, no ordinance, policy, rule, regulation, decision or any other City action, or any initiative or referendum voted on by the public, which would be applicable to the Project and which would affect in any way the rate of development, construction and build out of the Project, or limit the Project's ability to receive any other City service shall be applicable to any portion of the Project during the term of this Agreement, whether such action is by ordinance, enactment, resolution, approval, policy, rule, regulation, decision or other action of City or by public initiative or referendum. (c) City, through the exercise of either its police power or its taking power, whether by direct City action or initiative or referendum, shall not establish, enact or impose any additional conditions, dedications, fees or other exactions, policies, standards, laws or regulations, which directly relate to the development of the Project except as provided in Sections 6.1, 6.3.1, or 6.4 herein or other provision of this Agreement which expressly allows City to make such changes. Nothing herein prohibits the Project from being subject to a (i) City- wide bond issue, (ii) City -Wide special or general tax, or (iii) special assessment for the construction or maintenance of a City-wide facility as may be voted on by the electorate or otherwise enacted; provided that such tax, assessment or measure is City-wide in nature, does not discriminate against the land within the Project and does not distinguish between developed and undeveloped parcels. (d) This Agreement shall not be construed to limit the authority of City to charge processing fees for land use approvals, public facilities fees and building permits as they relate to plumbing, mechanical, electric or fire code permits, or other similar permits and entitlements which are in force and effect on a city-wide basis at the time those permits are applied for, except to the extent any such processing regulations would be inconsistent with this Agreement. 859465 tl Version 5 final 11109/06 (e) Notwithstanding subdivision (b), the City may condition or deny a permit, approval, extension, or entitlement if it determines any of the following: (1) A failure to do so would place the residents of the Project or 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. Additional Conditions. 6.4.1. Timing of Dedications and Improvements of Parks other than DeBenedetti Park Landowner agrees to dedicate park land and complete construction of all the park improvements within the Southwest Gateway area as described and set forth in the Project Approvals at its sole cost and expense. The lists cf the parks and park improvements Contemplated herein are set forth in Exhibit "I" and "J". Landowner and City agree that the provision of land and the construction of all park facilities and installation of equipment within the Project boundaries will satisfy Landowner's Quimby Act obligations for the Southwest Gateway project as set forth in Lodi Municipal Code. Therefore, Landowner shall not be obligated to pay any additional park fees, other than the payments required pursuant to Section 6.4.8, and Landowner shall not be entitled to any credit for the value of the improvements constructed or equipment installed. The phasing of such improvements shall be in compliance with the Phasing Schedule included in Exhibit I. With regards to the park improvements listed in Exhibit J, prior to approval by the City of the first tentative subdivision map, Landowner shall prepare plans and specifications for all park improvements included in the Southwest Gateway Project Approvals and submit those plans and specifications to the City for review and approval which approval will not be unreasonably withheld provided that the plans and specifications contain all park improvements listed in Exhibit J and satisfy all applicable conditions of approval included in the Project Approvals. The Landowner shall construct the parks in compliance with the approved plans and specifications. The City will inspect improvements during construction. If improvements are of poor quality and/or do not meet the requirements of approved plans and specifications, the City will notify the Landowner in writing and the Landowner, at its sole cost, shall correct any errors or deficiencies. The Landowner shall construct the parks to the satisfaction of the City, which shall be defined as compliance with the approved plans and specifications. 6.4.2 Payment of Utility Exit Fees The Lodi Electric Utility S a city -owned and operated utility that provides electrical utility services for residential, commercial and industrial customers in Lodi. As the proposed project sites would be annexed to the City cf Lodi, the Lodi Electric Utility would provide electrical utility services to the project site. To the extent that Landowner is assessed "exit fees," also known as "Cost Responsibility Surcharges," by Pacific Gas & Electric for its departing load, Landowner shall pay said fees when they are 859465 12 Version 5 Final 11/09/06 due. Landowner may, at its option and at its own cost, request a Cost Responsibility Surcharge Exemption from the California Energy Commission for any qualified departing load pursuant to Title 20, California Code of Regulations, Section 1395, et. seq. Forms for the exemption are available on-line at http://www.eneray.ca.gov/exit fees/documents/2004-02- 18 PGE EXEMP APPL.PDF City makes no representation that Landowner is eligible for exemptions pursuant to these regulations. Landowner agrees to save, defend, indemnify and hold harmless City from any and all costs, judgments or awards owed to Pacific Gas & Electric arising out of or related to City's provision of electrical utility services to the project site. 6.4.3 Maintenance of Specified Public Improvements Landowner agrees to provide or pay for all park, median strip, and other landscaping maintenance and repairs for two years for lands dedicated by the Landowner to the City and accepted by the City. In the event that Landowner chooses to pay the City for the costs of maintenance and repair, the City shall provide an estimate of the annual costs and the Landowner shall pay the full amount within thirty calendar days after the City by U.S. Mail or email, transmits the estimate to the Landowner. if the amount paid to the City exceeds the actual amount incurred by the City plus reasonable staff costs to administer the contract, the City shall, within a reasonable period of time, refund the differenceto the Landowner. 6.4.4 Water Treatment and/or Percolation Cost Landowner shall pay a fee based on the proportionate share of the costs of designing and constructing a water treatment system and/or percolation system for treatment cf water acquired by the City from the Woodbridge irrigation District. Landowner shall pay the fee as required under the fee program to be development by the City, but in no event later than when water service connection for each residential, office and commercial unit is provided. 6.4.5 Utility Line Extension City is preparing a policy pursuant to which property developed will pay the actual costs of capital improvements necessary to extend utility services to a development. Landowner acknowledges that such an extension is necessary to implement the Project Approvals on the Property. Landowner agrees to pay the City, pursuant to the policy to be adopted by the City, the costs of the capital improvements necessaryto extend uti I ity services to the Property. 6.4.6 Payment for Park and Recreation Department Eauipment In addition to construction of any park and public works improvements required pursuant to the Project Approvals and this Agreement, Landowner shall pay One Hundred Thousand U.S. dollars ($100,000) to the City for use to acquire equipment for the Lodi Parks and Recreation and Public Works Departments. The amount payable hereunder shall be paid based upon the following schedule of payments: 859465 13 Version 5 Final 11 /09/06 Payment Due Date Payment Amount 1. Payment of $100,000 for acquisition of parks equipment/ Lawnmower upon the effective date of this Agreement. 6.4.7 Improvements to be Designed and Constructed by LandownerWithin or Adiacent to the Proiect Boundaries The Project Approvals require the installation of specified public and private improvements. Landowner shall, as specified in the Project Approvals, either design, engineer and construct the following improvements or pay the City the appropriate fee for the design, engineering and construction of said improvements. The obligations imposed on the Landowner herein shall be in addition to any other obligations set forth in this Agreement In the event that any of Developer's improvements encroach upon any city facilities, property or rights of way, developer shall indemnify City against any and all expenses, including legal fees, incurred by the City to secure replacement facilities, property or rights of way. 6.4.7.1 Surface Water Facilities Transmission Main (Proportionate share of the total design, engineering and construction costs) Storage Tank (Proportionate share of the total design, engineering and construction costs) 6.4.7.2 Water Supply Facilities One new water well to cover proposed development within the Southwest Gateway area. The well wffl be installed in the Southwest Gateway area at the location identified in the Project Approvals or approved by the City Engineer. The well shall be installed and operational on or before January 1, 2010 or earlier if otherwise required by the Water Master Plan. 6.4.7.3 Water Distribution Facilities All water pipes and related infrastructure in all streets. Any interim or temporary facilities as determined necessary by the Public Works Director. 6.4.7.4 Sewer Collection Facilities All sewer pipes and related infrastructure in a1 streets. Any interim or temporary facilities im determined necessary by the Public Works Director. 6.4.7.5 Recycled Water Facilities All recycled water pipes and related infrastructure for irrigations systems located in or on streets, public and private school sites (to property boundary line only), places of assembly 859465 14 Version 5 Final 11/09/06 including but not limited to religious facilities (to property boundary line only), and high density residential sites. Provide up to a maximum of $50,000 to partially fund the City of Lodi Recycled Water Master Plan Study. 6.4.7.6 Storm Drainage Facilities All stormwater pipes and related infrastructure in all streets and basins. All stormwater detention basins, control structures, pumping facilities and appurtenant piping and controls. Any interim or temporary facilities as determined necessaryby the Public Works Director. Developer will be entitled to apply for reimbursement under Lodi Municipal Code Chapter 16.40 for benefit received by undeveloped properties as a result of the construction of the improvements required by this paragraph. Without limiting in any manner, the City Council's future exercise of its legislative discretion in the public hearing called for by Chapter 16.40, the parties anticipate that the benefited properties wilt be those set forth in Exhibit J. The parties also expressly acknowledge the final determination of benefited properties shall be determined pursuant to process set forth in Chapter 16.40. 6.4.7.7 Streets and Roads (i) Design and construct all streets within the Project Boundary as set forth in the Project Approvals. (ii) Dedicate land necessary for and design and install improvements including curb, gutter, sidewalk and landscaping on the west side of Lower Sacramento Road between Lodi Shopping Center and Harney Lane. The land dedicated and the improvements installed shall be consistent with Lodi standards and the Project Approvals. (iii) Dedicate land adjacent to the Project frontage which is necessary for expansion of Harney Lane between Legacy Estates Unit No. 1 and the western City sphere of influence boundary as established in the General Plan and as necessaryto comply with the City standards and Project Approvals. In addition, in the event that City, in compliance with applicable laws, takes action to form an assessment district to pay the costs of design and construction of Harney Lane as described herein, Landowner agrees to cast all votes within the control of Landowner in favor of formation of the assessment district and to not protest the formation of the assessment district. In the event, that City elects not to create an assessment district or there are not sufficientvotes cast in favor of the assessment district to allow ils formation, Landowner shall, at its sole cost, design and construct the improvements to Harney Lane adjacent to the Property necessary to meet City standards and to comply with the Project Approvals. (iv) Payment of fees assessed for recent underground utility improvements related to Lower Sacramento Road pursuant to Lodi Resolution No. 2007-52, dated March 21, 2007. The fee amount payable as of the Effective Date is $596,004.00. The amount payable shall be increased consistent with the index provision of Lodi Municipal Code 15.64.080. The amount due is based on the proportionate share of demand for the improvements arising from the 859465 I5 Version 5 Final 11/09/06 Project Approvals. The fee shall be paid no later than acceptance of the first tentative subdivision map for processing. (v) Dedication of necessary land, design and installation of transition roadway lane adjacent to the Property along Highway 12/Kettleman Lane. (vi) Payment of Fair Share Costs for traffic mitigation measures that are not projects within the Streets & Roads Fee Program. 6.4.7.8 Sewer Trunk Facilities Realignment to location approved by City and reconstruction of Domestic Trunk and Industrial Trunk Lines that presently cross the Property. Pursuant to Lodi Resolution No. 2004-29, pay existing reimbursement obligations which presently total $300,206.43 related to the Harney Lane Sewer Lift Station and Trunk Line. The amount payable shall be paid upon submission of the first tentative subdivision map which covers in part any portion of parcels 058-040-01, 058-040-02, 058-040-04, 058-040-05 or 058- 040-14. 6.4.8 DeBenedetti Park Construction Within six years of the Effective Date of this Agreement, Landowner shall pay the City Eight Million U.S. dollars ($8,000,000) for the design, engineering and construction of DeBenedetti Park as set forth in the Improvement Plans for DeBenedetti Park, Phase I and Phase 2, December 2004 plan. Landowner may satisfy part or all of this obligation through the provision cf services necessary to design and construct DeBenedetti Park provided that (1) Landowner requests and obtains advance written approval from the City for any design or construction services provided which said approval shall include an agreed upon value of said services, and (2) Landowner complies with all applicable laws including but not limited to laws requiring payment of prevailing wages for any construction services or actions. Landowner acknowledges that City will enter into contracts to design and construct Debenedetti Park. As consideration for City's agreement to authorize satisfaction of this obligation, Landowner agrees to the following payment schedule: Not later than three (3) years after the approval of this Agreement by the City Council, Landowner shall pay the City two million U.S. Dollars ($2,000,000). 7n the event, that any party other than the City or Landowner file a litigation challengingthe approval by the City of the Project Approvals, the payment specified herein shal be due not later than four (4) years after the approval cf this Agreement by the City Council. Landowner's failure to pay the amount required herein shall be considered a material default of this Agreement. 2. Not later than five years after the approval of this Agreement by the City Council, Landowner shall pay the City an additional three million U.S. Dollars ($3,000,000). 859465 16 Version 5 Final 11/09/06 Landowner's failure to pay the amount required herein shall be considered a material default of this Agreement. 3. No later than six years after the approval of this Agreement by the City Council, Landowner shall either (1) pay the City an additional three million U.S. Dollars ($3,000,000) or (2) provide a letter of credit payable to the City or other form of security acceptable to the City in an amount equal to $3,000,000. The letter of credit or other form of security shall be subject to review and approval as to form by the City Attorney. Landowner further acknowledges that the City may choose to obtain financing for the design and construction costs of DeBenedetti Park and Landowner agrees that the letter of credit or other form of security provided for herein shall be required to be in a form that is necessary to assist the City in obtaining financing at competitive market interest rates. City agrees that Landowner may substitute a letter of credit, in a form reasonably acceptable to the City Attorney, for a lesser amount upon satisfaction of a portion of the total obligation set forth herein. Upon delivery of such replacement letter of credit and its approval as to form by the City Attorney, the City will release and convey to Landowner the prior letter of credit. City further agrees that the other form of security may be in the form of a promissory note and deed of trust secured by a portion of the Property which has a value equal to a minimum of $3,000,000, The outstanding principal balance set forth in the Promissory Note shall not accrue interest. Notwithstanding anything to the contrary set forth herein, the entire outstanding payment obligation required pursuant to this section shall be payable in full upon the sale or other Transfer of the Property encumbered by the Deed of Trust ("Restricted Property") or (ii) the occurrence of an Event of Default as specified in the PromissoryNote or Deed of Trust. The Deed of Trust shall be recorded against the Restricted Property subordinate only to such liens as City may approve in writing. The City will not unreasonably withhold consent to subordinate the Promissory Note and Deed of Trust to construction financing for the Project provided that the principal amount of such construction financing does not exceed seventy-five percent (75%) of the appraised fair market value of the Project and the Restricted Property, and provided further that the senior lender agrees to provide reasonably adequate protections to City, including reasonable notice and cure rights in the event of default, and an agreement that if, prior to foreclosure of the senior loan, the City takes title to the Restricted Property and cures the default, the lender will not exercise any right it may have to accelerate the loan by reason of the transfer of title to the City. The parties further agree that the if final $3,000,000 payment required herein has not been paid by or before the end of the eighth year after approval of this Agreement by the City Council, the City may require payment pursuant to the terms of the letter of credit or other form of security provided and may foreclose on the deed of trust and promissory note. 859465 17 Version 5 Final 11/09/06 6.5 Annexation The ability to proceed with development of the Property pursuant to the Project Approvals 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 subdivision maps and improvement or construction plans and City may conditionally approve such tentative maps and/or improvement plans in accordance with the Entitlements, provided City shall not approve any final parcel map or final subdivision map for recordation nor approve the issuance of any grading permit for grading any portion of the Property or building permit for any structure within the Property priorto the annexation of the Property to the City. City shall use its best efforts and due diligence to initiate such annexation process, obtain the necessary approvals and consummate the annexation of the Property into the City, including entering into any annexation agreement that may be required in relation thereto, subject to the City's review and approval of the terms thereof. Landowner shall be responsible for the costs reasonably and directly incurred by the City to initiate, process and consummate such annexation, the payment of which shall be due in advance, based on the City's estimate of such cost, and thereafter as and when the City provides an invoice(s) for additional costs incurred by City therefore in excess of such estimate. 7. Applicable Rules, Reaulations. Fees and Official Policies. 7.1. Rules Regarding Permitted Uses Except as provided in this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, the density and intensity of use, the rate timing and sequencing of development, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land shall be those in force on the Effective Date cf this Agreement. Except as provided in Section 8.2, this Agreement does not vest Landowner's rights to pay development impact fees, exactions and dedications, processing fees, inspection fees, plan checking fees or charges. 7.2. Rules Regarding Design and Construction. The Project has been designed as a Planned Development pursuant to Chapter 17.33 of the Lodi Municipal Code. Design, improvements and construction standards shall be as set forth in Project Approvals including the Development Plan, and shall be vested for the term of this Agreement. Unless otherwise provided within the Development Plan or expressly provided in this Agreement, aR other ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project and to public improvements to be constructed by the Landowner shall be those in force and effect at the time the applicable permit approval is granted. 7.3. Changes in State or Federal law. This Agreement shall not preclude the application to development of the Property of changes in City laws, regulations, plans or policies, the terms of which are specifically mandated and required by changes in State or 859465 18 Version 5 Final 11 /09/06 Federal laws or regulations. These changes may include any increase in an existing fee or imposition of a new fee that are necessaryfor the City or Landownerto comply with changes in State or Federal laws or regulations, including but not limited to sewer, water and stormwater laws or regulations. 7.4. Uniform Codes Applicable. Unless otherwise expressly provided in this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes, City standard construction specifications, and Title 24 of the California Code cf Regulations, relating to Building Standards, in effect at the time of approval cf the appropriate building, grading, encroachment or other construction permits for the Project. If no permits are required for infrastructure improvements, such improvements will be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes, City standard construction specifications, and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the start of construction cf such infrastructure. 8. Existing Fees, Newly Enacted Fees, Dedications. Assessments and Taxes. 8.1. Processing Fees and Charges. Landowner shall pay those processing, inspection, and plan check fees and charges required by City under then current regulations for processing applications and requests for permits, approvals and other actions, and monitoring compliance with any permits issued or approvals granted or the performance of any conditions with respect thereto or any performance required of Landowner hereunder. 8.2. Existing Fees, Exactions and Dedications Landowner shall be obligated to provide all dedications and exactions and pay all types cf fees as required for the types of development authorized by the Project Approvals as of the Effective Date of this Agreement. With regards any fees applicable to residential development, the Parties agree that the fees shall be payable at the earliest time authorized pursuant to the Government Code Section 66007 as it exists as of the Effective Date of this Agreement. The specific categories of fees payable are listed below. The dedication and exaction obligations and fee amounts payable shall be those obligations and fee amounts applicable (indexed as set forth hereinbelow) as of the date that the Landowner's application for the applicable vesting tentative map is deemed complete. For any development for which the Landowner has not submitted a vesting tentative map, the dedication and exaction obligations and fee amounts payable shall be those obligations and fee amounts applicable (indexed as set forth hereinbelow) as of the date the final discretionary approval for that development is granted by the City. Standard City Development Impact Fees Payable by the Landowner include: 1. Development Impact Fees (Lodi Municipal Code Chapter 15.64) 2. San Joaquin County Regional Transportation Impact Fee (Lodi Municipal Code Chapter 15.65 3. County Facilities Fee (Lodi Municipal Code Chapter 15.66) 859465 19 Version 5 Final 11/09/06 4. San Joaquin County Multi -Species Habitat Conservation and Open Space Development Fee (Lodi Municipal Code Chapter 15.68) Any existing fees may be increased during the term of this Agreement provided that such increases are limited to annual indexing (i.e. per the Engineering News Record Index, or the CPI, or other index utilized by the City) and as provided in current fee ordinances. The initial adjustment shall be effective as of four years after the Effective Date cf the Agreement and shall be calculated based on the difference in the applicable index from the numerical rate at the end of the month following the third year after the Effective Date and the numerical rate at the end of the month following the fourth year after the Effective Date. All subsequent increases shall be based on the annual change in the applicable index. Notwithstanding the preceding sentence, index adjustments to the fees set forth in subsections 2, 3 and 4 cf this section shall be effective annually as set forth in the relevant ordinances and resolutions. Moreover, Landowner will be subject to the indexing called for above even if Landowner has filed a complete application for a Vesting Tentative Map and will not vest against such indexing until payment of the fees as called for in this Agreement. 8.3. New Development Impact Fees. Exactions and Dedications. Landowner agrees to the pay the development fees identified in Section 6.1, including specifically subsections 6.1.1 through 6.1.4, of this Agreement. With regards any fees applicable to residential development, the Parties agree that the fees shall be payable at the earliest time authorized pursuant to the Government Code Section 66007 as it exists as of the Effective Date of this Agreement. Except as expressly provided herein, Landowner shall not be obligated to pay or provide any development impact fees, connection or mitigation fees, or exactions adopted by City after the Effective Date of this Agreement. Notwithstanding this limitation, Landowner may at its sole discretion elect to pay or provide any fee or exaction adopted after the Effective Date of this Agreement. 8.4. Fee Reductions To the extent that any fees payable pursuant to the requirements of Sections 8.1 are reduced after the operative date for determining the fee has occurred, the Landownershall pay the reduced fee amount. 9. Community Facilities District. Formation of a Community Facilities District for Public Improvements and Services. 9.1. Inclusion in a Community Facilities District. Landowner agrees to cooperate in the formation of a Community Facilities District pursuant to Government Code Section 53311 et seq. to be formed by the City. The boundaries of the area of Community Facilities District shall be contiguous with the boundaries of the Property excluding the portion of land zoned for commercial or office development. Landowner agrees not to protest said district formation and agrees to vote in favor of levying a special tax on the Property in an amount not to exceed $600 per year per single family attached or detached residential dwelling units and 859465 20 Version 5 Final 11/09/06 $175 per year for each attached multi -family rental unit as adjusted herein. The special tax shall be initiated for all residential dwelling units for which a building permit is issued, and shall commence to be levied beginning the subsequent fiscal year after the building permit is issued. Landowner acknowledges that the 2007-2008 special tax rate for the units in the, Projectwff not exceed $600 per single-family attached or detached dwelling unit and $175 per year for each attached multi -family rental unit and that the special tax shall increase each year by 2% in perpetuity. A vote by Landowner against the levying of the special tax or a vote to repeal or amend the special tax shati constitute an event of default under this Agreement. 9.2. Use of Community Facilities District Revenues Landowner and City agree that the improvements and services that may be provided with the special tax levied pursuant to Section 9.1 may be used for the following improvements and services: a. Police protection and criminaljustice services; b. Fire protection, suppression, paramedic and ambulance services; C. Recreation and library program services; d. Operation and maintenance of museums and cultural facilities; e. Maintenance of park, parkways and open space areas dedicated to the City; f. Flood and storm protection services; g. Improvement, rehabilitation or maintenance of any real or persona! property that has been contaminated by hazardous substances; h. Purchase, construction, expansion, improvement, or rehabilitation or any real or tangible property with useful life of more than five years; and, 1. Design, engineering, acquisition or construction of public facilities with a useful life of more that five years including: 1. Local park, recreation, parkwayand open -space facilities, 2. Libraries, 3. Childcare facilities, 4. Water transmission and distribution facilities, natural gas, telephone, energy and cable television lines, and 5. Government facilities. Landowner and City agree that Property does not presently receive any of these services from the City and that all of these services are new services. 9.3. Community Facilities District for Residential ProperW - Financing. In addition to the funding provided aS part Of the Community Facilities District identified in Section 9.1, City acknowledges that Landowner may desire to finance the acquisition or construction of a portion of the improvements described in Section 8.2 through the Community Facilities District. The costs associated with the items identified in Section 8.2 shall be in addition to the annual cost imposed to comply with Section 9.1. The following provisions shall apply to any to the extent that the Landowner desires to fund any of the improvements set forth in Section 8.2 through the Community Facilities District: 859465 21 Version 5 Final 11/09/06 9.3.1 Issuance of 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 cause bonds to be issued in amounts sufficient to achieve the purposes of this Section. 9.3.2 Payment Prior to Issuance of 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 CFD 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. 9.3.3 Private Financing. Nothing in this Agreement shall be construed to limit Landowner's option to install the improvements through the use of private financing. 9.3.4 Acquisition and Payment. 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 to use CFD bond or tax proceeds for such acquisitions. 10. Processina cf Subseauent Development Applications and Buildina Permits Subject to Landowner's compliance with the City's application requirements including, specifically, submission of required information and payment of appropriate fees, and assuming Landowner is not in default under the terms and conditions of this Agreement, the City shall process Landowner's subsequent development applications and building permit requests in an expeditious manner. In addition, City agrees that upon payment of any required City fees or costs, City will designate or retain, as necessary, appropriate personnel and consultants to process Landowner's development applications and building permit requests City approvals in an expeditious manner. 11. Reserved 11. Amendment or Cancellation. 11.1. Modification Because of Conflict with State or Federal Laws. In the event that State or Federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or 859465 22 Version 5 Final 11/09/06 require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or State law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with the Municipal Code and this Agreement. 11.2. Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and the Municipal Code. 11.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding Section 12.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 5.2; (b) the permitted uses of the Propertyas provided in Sections 6.2 and 7.1; (c) provisions for reservation or dedication of land: (d) the location and maintenance of on-site and off-site improvements; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings or (g) monetary contributions by Landowner as provided in this Agreement shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. 11.4. Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication cf land; (c) the density or intensity of use of the Project; (d) the maximum height or size of proposed buildings; (e) monetary contributions by the Landowner; (f) the location and maintenance of on-site and off-site improvements; or (g) any other issue or subject not identified as an "insubstantial amendment' in Section 12.3 of this Agreement, shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement, which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approval(s) shall not require amendment cf this Agreement unless the amendment of the ProjectApproval(s) relates specifically to some provision of this Agreement. 11.5. Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of the Municipal Code. Any fees paid pursuant to this Agreement prior to the date of cancellation shall be retained by City. 12. Term of Proiect Approvals. Pursuant to California Government Code Section 66452.6(a), the term of any parcel map or tentative subdivision map shall automatically be extended for the term of this Agreement. 13. Annual Review. 559465 23 Version 5 Final 11/09/06 13.1. Review Date. The annual review date for this Agreement shall occur either within the same month each year as the month in which the Agreement is executed or the month immediately thereafter. 13.2. initiation of Review. The City's Planning Director shalt initiate the annual review by giving to Landowner written notice that the City intends to undertake such review. Within thirty (30) days of City's notice, Landowner shall provide evidence to the Planning Director to demonstrate good faith compliance with the Development Agreement. The burden of proof, by substantial evidence of compliance, is upon the Landowner. The City's failure to timely initiate the annual review is not deemed to be a waiver of the right to do so at a later date; accordingly, Landowner is not deemed to be in compliance with the Agreement by virtue of such failure to timely initiate review. 13.3. Staff Reports. City shall deposit in the mail to Landowner a copy of all staff reports, and related Exhibits, concerning contract performance at least three (3) days prior to any annual review. 13.4. Costs. Costs reasonably incurred by the City in connection with the annual review shall be paid by Landowner in accordance with the City's schedule of fees and billing rates in effect at the time of review. 13.5. Non-compliance with Agreement; Hearing. If the Planning Director determines, on the basis of substantial evidence, that Landowner has not complied in good faith with the terms and conditions of the Agreement during the period under review, the City Council, upon receipt of any report or recommendation from the Planning Commission, may initiate proceedings to modify or terminate the Agreement, at which time an administrative hearing shall be conducted, in accordance with the procedures of State law. As part of that final determination, the City Council may impose conditions that it considers necessary and appropriate to protect the interest of the City. 13.6. Anneal c f Determination. The decision of the City Council as to Landowner's compliance shall be final, and any Court action or proceeding to attack, review, set aside, void or annul any decision of the determination by the Council shall be commenced within thirty (30) days of the final decision by the City Council. 74. Default. Subject to any applicable extension of time, failure by any party to substantially perform any term or provision of this Agreement required to be performed by such party shall constitute a material event of default 'Event of Default"). For purposes of this Agreement, a party claiming another party is in default shall be referred to as the "Complaining Party," and the party alleged to be in default shall be referred to as the "Party in Default." A Complaining Party shall not exercise any of its remedies as the result of such Event of Default unless such Complaining Party first gives notice to the Party in Default as provided in Section 15.1.1, and the Party in Default fails to cure such Event of Default within the applicable cure period. 859465 24 Version 5 Final 11/09/06 14.1. Procedure Regarding Defaults. 14.1.1. NAWce. The Complaining Party shall give written notice of default to the Party in Default, specifying the default complained of by the Complaining Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. 14.1.2. Cure. The Party in Default shall diligently endeavor to cure, correct or remedy the matter complained of, provided such cure, correction or remedy shall be completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Complaining Party to be reasonably necessary to correct the matter). 14.1.3. Failure to Assert. Any failures cr delays by a Complaining Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by a Complaining Party in asserting any of its rights and remedies shall not deprive the Complaining Party of its right to institute and maintain any actions or proceedings, which it may deem necessary to protect, assert, or enforce any such rights or remedies. 14.1.4. Notice of Default. If an Event of Default occurs prior to exercising any remedies, the Complaining Party shall give the Party in Defaultwritten notice of such default. If the default is reasonably capable of being cured within thirty (30) days, the Party in Default shall have such period to effect a cure prior to exercise of remedies by the Complaining Party. If the nature of the alleged default is such that it cannot, practicably be cured within such thirty (30) day period, the cure shall be deemed to have occurred within such thirty (30) day period if: (a) the cure shall be commenced at the earliest practicable date following receipt of the notice: (b) the cure is diligently prosecuted to completion at all times thereafter; (c) at the earliest practicable date (in no event later than thirty (30) days after the curing party's receipt of the notice), the curing party provides written notice to the other party that the cure cannot practicably be completed within such thirty (30) day period; and (d) the cure is completed at the earliest practicable date. In no event shall Complaining Party be precluded from exercising remedies if a default is not cured within ninety (90) days after the first notice of default is given. 14.1.5. Legal Proceedings. Subject to the foregoing, if the Party in Defaultfails to cure a default in accordance with the foregoing, the Complaining Party, at its option, may institute legal proceedings pursuant to this Agreement or, in the event of a material default, terminate this Agreement. Upon the occurrence of an Event of Default, the parties may pursue all other remedies at law or in equity, which are not otherwise provided for or prohibited by this Agreement, or in the City's regulations if any governing development agreements, expressly including the remedy of specific performance of this Agreement. 859465 25 Version 5 Final 11/09/06 14.1.6. Effect cf Termination. If this Agreement is terminated following any Event of Default of Landowner or for any other reason, such termination shall not affect the validity of any building or improvement within the Property which is completed as of the date of termination, provided that such building or improvement has been constructed pursuant to a building permit issued by the City. Furthermore, no termination of this Agreement shall prevent Landowner from completing and occupying any building or other improvement authorized pursuant to a valid building permit previously issued by the City that is under construction at the time of termination, provided that any such building or improvement is completed in accordance with said building permit in effect at the time of such termination. 15. Estoppel Certificate. Either Party may, at any time, and from time to time, request written notice from the other Party requesting such Party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the Parties; (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments; and (c) to the knowledge of the certifying Party the requesting Party is not in default in the performance cf its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the Parties. City Manager of City shall be authorized to execute any certificate requested by Landowner. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default. 16. Mortgagee Protection: Certain Rights of Cure. 16.1. Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the fien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee")who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu cf foreclosure, or otherwise. 16.2. Mortgagee Not Obligated. Notwithstanding the provisions of Section 17.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct Cr complete the construction of improvements, or to guarantee such construction of improvements, Cr to guarantee such construction or completion, cr to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon, authorized by the Project Approvals or by this Agreement, unless Mortgagee agrees to and does construct or complete the construction of improvements, or guarantees such construction cf improvements, or pays, 859465 26 Version 5 Final 11/09/06 performs or provides any fee, dedication, improvements or other exaction or imposition as required by the ProjectApprovals. 16.3. Notice of Default to Mortqaqee and Extension cf Right to Cure. if City receives notice from a Mortgagee requesting a copy of any notice of default given Landowner hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Landowner, any notice given to Landownerwith respect to any claim by City that Landowner has committed an Event of Default. Each Mortgagee shall have the right during the same period available to Landowner to cure or remedy, or to commence to cure or remedy, the Event of Default claimed set forth in the City's notice. City, through its City Manager, may extend the cure period provided in Section 15.1.2 for not more than an additional sixty (60) days upon request of Landowner or a Mortgagee. 17. Severability. Except as set forth herein, if any term, covenant or condition of this Agreement or the application thereof to any person, entity or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to persons, entities or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law; provided, however, if any provision of this Agreement is determined to be invalid or unenforceable and the effect thereof is to deprive a Party hereto of an essential benefit cP its bargain hereunder, then such Party so deprived shall have the option to terminate this entire Agreement from and after such determination. 18. Applicable Law. This Agreement shall be construed and enforced in accordancewith the laws of the State of California. 19. Attorneys' Fees and Costs in Lestal Actions By Parties to the Agreement. Should any legal action be brought by either party for breach cf this Agreement or to enforce any provisions herein, the prevailing party to such action shall be entitled to reasonable attorneys' fees, court costs, and such other costs as may be fixed by the Court. 20. Attorneys' Fees and Costs in Legal Actions By Third Parties to the Agreement and Continued Permit Processing. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision ofthis Agreement er the Project Approvals, the parties shall cooperate and appear in defending such action. Landowner shall bear its own costs of defense as a real party in interest in any such action. Landowner shall rAimburw City on an equal basis for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding and shall pay any attorneys fees and costs that may be awarded to the third party or parties. The City agrees that in the event an action at law or in equity to challenge the validity of the Project Approvals is filed by a third party other than by a state or federal agency, the City will continue fo process and approve permit applications that are consistent with and comply with the Project 859465 27 Version 5 Final 11./09/06 Approvals unless a court enjoins further processing of permit applications and issuance of permits. 21. Transfers and Assignments. From and after recordation of this Agreement against the Property, Landowner shall have the full right to assign this Agreement as to the Property, or any portion thereof, in connection with any sale, transfer or conveyance thereof, and upon the express written assignment by Landowner and assumption by the assignee of such assignment in the form attached hereto as ExhibitG'and the conveyance of Landowner's interest in the Property related thereto, Landowner shall be released from any further liability or obligation hereunder related to the portion of the Property so conveyed and the assignee shall be deemed to be the "Landowner," with all rights and obligations related thereto, with respect to such conveyed property. Prior to recordation of this Agreement, any proposed assignment of this Agreement by Landowner shall be subject to the prior written consent of the City Manager on behalf of the City and the form of such assignment shall be subject to the approval of the City Attorney, neither of which shall be unreasonably withheld. 22. Agreement Runs with the Land. Except as otherwise provided for in Section 15 of this Agreement, all of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property; (a) is for the benefit of such properties and is a burden upon such properties; (b)runs with such properties; and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 23. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 24. indemnification. Landowner agrees to indemnify, defend and hold harmless City, and its efected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for (1) any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Landowner, or any actions or inactions of Landowner's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, cr maintenance of the Property and the Project, provided that Landowner shall have no indemnification obligation with respect to the gross negligence or willful misconduct of City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement 859465 28 Version 5 Final 11 /09/06 agreement or maintenance bond) and (2) any additional mitigation required, including but not limited to paymentof any mitigation fees that may be imposed, as a result of a lawsuitfiled by a third party challenging or seeking to invalidate the Project Approvals. 25. Insurance. 25.1. Public Liability and Property Damage Insurance. At all times that Landowner is constructing any improvements that will become public improvements, Landowner shall maintain in effect a policy of comprehensive general liability insurance with a per -occurrence combined single limit of not less than two million ($2,000,000) dollars and a deductible of not more than fifty thousand ($50,000) dollars per claim. The policy so maintained by Landowner shall name the City as an additional insured and shall include either a severability of interest clause or cross -liability endorsement. 25.2. Workers' Compensation Insurance. At all times that Landowner is constructing any improvements that will become public improvements, Landowner shall maintain Workers' Compensation insurance for all persons employed by Landowner for work at the Project site. Landowner shall require each contractor and subcontractor similarly to provide Workers' Compensation insurance for its respective employees. Landowner agrees to indemnify the City for any damage resulting from Landowner's failure to maintain any such insurance. 25.3. Evidence cE Insurance. Prior to commencement of construction of any improvements which will become public improvements, Landowner shall furnish City satisfactory evidence of the insurance required in Sections 26.1 and 26.2 and evidence that the carrier is required to give the City at least fifteen (15) days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City. its elective and appointive boards, commissions, officers, agents, employees and representatives and to Landowner performing work on the Project. 26. Excuse for Nonperformance. Landowner and City shall be excused from performing any obligation or undertaking provided in this Agreement, except any obligation to pay any sum of money under the applicable provisions hereof, in the event and so long as the performance of any such obligation is prevented or delayed, retarded or hindered by act of God, fire, earthquake, flood, explosion, action of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, condemnation, requisition, laws, orders of governmental, civil, military or naval authority, or any other cause, whether similar or dissimilar to the foregoing, not within the control of the Party claiming the extension of time to perform. The Party claiming such extension shalt send written notice of the claimed extension to the other Party within thirty (30) days from the commencementof the cause entitling the Partyto the extension. 859465 29 Version 5 Final 1 1/09106 27. Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Landowner and, the City and their successors and assigns. No other person shall have any right of action based upon any provision in this Agreement. 28. Notices. All notices required by this Agreement, the enabling legislation, or the procedure adopted pursuant to Government Code Section 65865, shall be in writing and delivered in person or sent by certified mail, postage prepaid. Notice required to be given to the City shall be addressed as follows: CITY OF LODI City Manager P.O. Box 3006 Lodi, CA 95241-1910 Notice required to be given to the Landowner shall be addressed as follows: FRONTIER COMMUNITY BUILDERS, INC. 10100 Trinity Parkway, Suite 420 Stockton, California 95219 Either party may change the address stated herein by giving notice in writing to the other party, and thereafter notices shall be addressed and transmitted to the new address. 29. Form of Agreement; Recordation; Exhibits. Except when this Agreement is automatically terminated due to the expiration of the Term of the Agreement or the provisions of Section 5.3 (Automatic Termination Upon Completion and Sale of Residential Lot), the City shall cause this Agreement, any amendment hereto and any other termination of any parts or provisions hereof, to be recorded, at Landowner's expense, with the county Recorder within ten (10) days of the effective date thereof. Any amendment or termination of this Agreement to be recorded that affects less than all of the Property shall describe the portion thereof that is the subject of such amendment or termination. This Agreement is executed in three duplicate originals, each of which is deemed to be an original. This Agreement consists of 31 pages and 14 Exhibits, which constitute the entire understanding and agreement of the parties. 30. Further Assurances. The Parties agree to execute such additional instruments and to undertakesGch actions as maybe necessaryto effectuatethe intent of this Agreement. 31. City Cooperation. The City agrees to cooperate with Landowner in securing all permits which may be required by City. In the event State or Federal laws or regulations enacted after the Effective Date, or action of any governmental jurisdiction, prevent delay or preclude compliance with one or more provisions of this Agreement, or require changes in plans, maps or permits approved by City, the parties agree that the provisions of this Agreement 859465 30 Version 5 Final 11/09/06 shall be modified, extended, or suspended as may be necessary to comply with such State and Federal laws or regulations or the regulations of other governmental jurisdictions. Each party agrees to extend to the other its prompt and reasonable cooperation in so modifying this Agrement or approved plans. IN WITNESS WHEREOF, the City of Lodi, a municipal corporation, has authorized the execution cf this Agreement in duplicate by its Mayor and attested to by its City Clerk under the authority of Ordinance No. 1788, adopted by the Cly Council of the City of Lodi on the 6th day cf December, 2006, and Landowner has caused this Agreement to be executed. "CITY" CITY OF LODI, a municipal corporation By: Blair Ki City Man r ATT Rand�iJ o h City Clerk "LANDOWNER FRONTIER COMMUNITY BUILDERS, INC. Name: 'Pl am&s Its: f ^�S'i APPROVED AS TO FORM: t 859465 31 Version 5 Final 11/09/06 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: Q STATE OF California )SS APN No: COUNTY OF�ti)-i,SJ% ) On ', -� `�, 'Z� � before me, WY1 J�Or hill ,Notary Public, personally appeared P� who proved tome on the basis of satisfactory evidence to be the person --M whose name(. is/6re- subscribed to the within instrument and acknowledged to me that he/Nf -_/tbw executed the same it his/hWti4_ew authorized capacity(ie�), and that by his# 'r/fir signatureW on the instrument the personoo, or the entity upon behalf cf which the personN acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoingparagraph is true and correct WITNESS my - Rd --and o a) alI- Mb S. DAWN HARSHM AN Signature ' "� 0 •.► NOTARY PUBLIC - CALIFORNIA SAN JOAQUIN COUNTY O COMM. EXPIRES JAN. 19, 2011 'a This area for official notarial seal. OPTIONAL SECTION CAPACITYCLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the documents. INDMDUAL CORPORATE OFFICER(S) TITLE(S) ` �)!'PSD&"ol 0 PARTNER(S) F-1 LIMITED F-1 GENERAL Q ATTORNEY-IN-FACT 0 TRUSTEES) 0 GUARDIAN/CONSERVATOR MOTHER SIGNER IS REPRESENTING: Name of Person or Entity ✓ Name aE Person or Entity OPTIONAL SECTION Though the data requested here is not required bylaw, it could prevent fraudulent reattachmentof this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES ��C1 DATE OF DOCUMENT} ��✓ %� , SIGNERS) OTHER THAN NAMED ABOVE rZ`C VIji )�1) L j # t,� Cje(V A(f hyl, i •-- shall be modified, extended, or suspended as may be necessary to comply with such State and Federal laws or regulations or the regulations of other governmental jurisdictions. Each party agrees to extend to the other its prompt and reasonable cooperation in so modifying this Agrement or approved plans. IN WITNESS WHEREOF, the City of Lodi, a municipal corporation, has authorized the execution of this Agreement in duplicate by its Mayor and attested to by its City Clerk under the authority of Ordinance No.1788, adopted by the City Council of the City of Lodi on the 6th day of December, 2006, and Landowner has caused this Agreement to be executed. CITY OF LODI, a municipal corporation 6,By* d: q �':ltil, ager 'w e`er . {� �.. . •E rff ' i5 a va '� .• C� - 3 ,f. S Q-3 `7a1?ffiR01�ED AS TO FORM: e w City Attorney 859465 31 Version 5 Final 11/09/06 "LANDOWNER FRONTIER COMMUNITY BUILDERS, INC. By: —/" P,�� --- Name: 7"mos" A &adtz , Its: ACKNOWLEDGMENT State of Caf rnia County of ---------) - +�- -- On _ `� \C` _� --- before me, --- - d �_ -t-4 (i ame ert nand title of the oicer) personally who proved tto me on the basis�of sati alctory evidence to bd the persoREsj4hose nam ---is are - subscribed to the within instrument and acknowledged to me thats4e4hgy executed the same in 'is herabeir-authorized capacity0ez) and that by ��signatureks} on the instrument the person,(s� or the entity upon behalf of which the personfsyacted, executed the instrument. I certify under PENALTY OF PERJURY underthe laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _(,;::: _ (Seal) RANDI JOHL COMM. X1516020 NOTARY PUBLIC 0 CALIFORNUI ORANGE COUNTY Comm. Exp. SEPT. 27, 2008 EXHIBIT LIST ExhibitA-1 : Legal Description ofthe Property ExhibitA-2: Diagram cf the Property Exhibit B: General Plan Land Use Map Exhibit B-1 : Zoning Map for Project Site ExhibitC-1 : Large Lot Tentative Subdivision Map Exhibit C-2: Reserved Exhibit D: Development Plan and Infrastructure Map for the Property Exhibit E: Growth Management Allocations Exhibit F: Annexation Approvals Exhibit G: Form of Assignment Exhibit H: Schedule of improvements Exhibit I; Park Improvements Exhibit J: Required Park Amenities Exhibit K: Settlement Agreement among Frontier Community Builders, Inc., Citizens for Open Government and the City of Lodi 859465 Xxxii Version 5 Final l 1/09/06 EXHIBITA-1 LEGAL DESCRIPTION OF THE PROPERTY The land referred to herein is situated in the State of California, County of San Joaquin, City of Lodi, and is described as follows: 859465 Version 5 Final 11/09/06 EXHIBIT A-1 RECEIVED MAY 2 4 2006 FAX (209) 239-8430 1242 I?upont Court COMMUNITY DEVELOPMENT tcca. California 95136 CITY OF LODI LEGAL DESCRIPTION for ANNEXATION PURPOSES ALL THAT REAL PROPERTY SITUATE IN THE COUNTY OF SAN JOAQUIN, STATE OF CALIFORNIA, BEING A PORTION OF THE WEST ONE-HALF OF SECTION 15, TOWNSHIP 3 NORTH, RANGE 6 EAST, MOUNT DIABLO BASE AND MERIDIAN, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWESTCORNER OF SAID SECTION 15, THENCE, S 00" 01' 5 9 E 75.01 FEET ALONG THE WEST LINE OF SAID SECTION 15 TO THE POINT OF BEGINNING, THENCE CONTINUINGALONG SAID WEST LINE, S 00" 01'5 9 E 5208.25 FEET TO THE SOUTHWEST CORNER OF SAID SECTION 15. THENCE ALONG THE SOUTH LINE OF SAID SECTION 15, S 89" 14'47" E 1162.65 FEET TO THE POINT OF INTERSECTIONOF THE PROJECTION OF THE MOST SOUTHWESTERLY LINE OF PARCEL 1 AS SHOWN ON THAT CERTAIN MAP FILED FOR RECORD IN BOOK 16 CF PARCEL MAPS, AT PAGE 87, SAN JOAQUIN COUNTY RECORDS, THENCE, LEAVING SAID SOUTH LINE, ALONG SAID PROJECTED LINE, N 05-3 9 5 4 E 230.51 FEET, THENCE ALONG THE EXTERIOR LINES OF SAID PARCEL 1, N 89" 14'47" W 50.43 FEET, THENCE, N 00' 01' 12" W 410.00 FEET, THENCE, S 89" 14'47" E 185.00 FEET TO THE NORTHEAST CORNER OF SAID PARCEL 1, THENCE ALONG THE EAST LINE OF SAID PARCEL 1, S 00" 01' 12" E 261.18 FEET TO THE SOUTHWESTERLY CORNER OF THAT CERTAIN PARCEL LABELED "INSTRUMENT# 80050064" AS SHOWN ON THAT CERTAIN MAP FILED FOR RECORD IN BOOK 28 OF SURVEYS, PAGE 47, RECORDS OF SAID COUNTY, THENCE ALONG THE SOUTHERLY LINE OF LAST SAID PARCEL, S 89" 14'4711 E 1000.00 FEET, THENCE, S 00" 01' 72" E 378.50 FEET TO THE SOUTH LINE OF SAID SECTION 15,THENCE ALONG SAID SOUTH LINE, S89° 14'47" E 320.67 FEET TO THE SOUTH ONE QUARTER CORNER OF SAID SECTION 15, THENCE ALCM THE NORTH -SOUTH CENTERLINE OF NQ SNTION 15, N 00" 0025" W 2639.00 FEET TO THE CENTER OF SAID SECTION 15, THENCE CONTINUING ALONG SAID NORTH -SOUTH CENTERLINE, N 00" 0008" E 1321.38 FEET TO THE SOUTHEAST CORNER OF THE NORTH ONE-HALF OF THE NORTHWEST ONE-QUARTER OF SAID SECTION 15, THENCE ALONG THE SOUTH LINE OF SAID NORTH ONE- HALF OF THE NORTHWEST ONE-QUARTER OF SAID SECTION 15, N 89" 12'16" W 1321.83 FEET, THENCE LEAVING SAID SOUTH LINE N 00" 00'08" W 828.63 FEET TO THE SOUTHEAST CORNER OF THE CITY OF LODI WELL SITE, THENCE ALONG THE SOUTHERLY AND WESTERLY LINES OF SAID WELL SITE THE FOLLOWING TWO (2) COURSES: 1. N 89" 12'5 3 W 427.50 FEET 2. N 00" 00' 08" E 417.50 FEET, THENCE,N 89" 12'53" W 894.20 FEET TOTHE TRUE POINT OF BEGINNING. CONTAINING 262.708ACRES MORE OR LESS. C:1Documents and Settingffom.OFFICEMOILocol Settings\Temporary Internet FilestOLK16MLEGAL DESCRIPTIONdoc EXHIBITA-2 DIAGRAM OF THE PROPERTY 859465 Version 5 Final 11/09/06 ANNEXATION MAP SOUTHWEST GATEWAY BEI NGA PORTION OF THE WEST ONE- HALF OF SECTION 15, TOWNSHIP � NORTH. RANGE 6 EAST, MOUNTDIABLO EASE AND MERIDIAN. ;_OoI, SAN JOAQUIN COUNTY. CALIFORNIA I T, r-vnlvsr-t ---iBE i ! rvNl KssGrtK rrz rmmnit 1 CE.Tep OF fus i I _' �COWwROF i I mslunwc I ! i I I ��'^� I ' BECTUHi l9 ! 1 1 _ SEC. 1'. SEC. Et --'pawa•E :321.x• �I.OWER SACRAMENTORDAD r: o•xa•w as. — ______ ____- V:1COW1EaOF��- ••.• `�$EOT!ON UNE -�`_ - ^� x �1 SEC 1 { Y iZ) a :u»- i F f 11. •. .1.'" ��I �--__ r' ___ ^_ � raoe• ; I _oray2•j1 t � -t 1 jg � r I ] rmm•. I � � � oyl.oa�a � _ Z ' J i .It F r rn.a�aa i. i ! ? daE Sovrtx8 a]e !wt_ tzi — 1 mi L �// 1 •` I f I t\ 53"Gf'IYE a N.E----ONRD. Wa%w-c Fri. .+` 'h1 '' ••(/'NS'3YS1'E --- -.___-_- --___ E �S B2':fsr-E� 1 1]0;91' 1 i 20,966ACRES j u9.ar ncrorsrw p+o.pv i m"m..-a i IHaOJVb'E lti� I 1 1 1 JSK I I n II e _ it saet'SYE i PdN70f 0EGlreltq RYP CA{INEA CIF I SECTa]N t5 . _ _ _ _ _ r. Spgt'Sp•E, S20E.29' ].ree:�tt 1 1 1 i 1a2'anlr2 ' SEG.t" t r sEC.22 SECA SEC.ta SECQ SEC.1e 9E0.16 j SEC21 2 a)r G1 �E � #�YIpOM6 n �,• n� rl1�w SOUTHWE5T aF ills s ANNEXATION MAP GATEWAY r��r'n1lairc111EalYnirtr-9 i tAOI MIFORM IN �IMREAN 'd• •">« i.: EXHIBIT B 1 J A ...��. SOUTHWEST GATEWAYS L PROJECT SITE maes��as OTHER AREAS ........... TO BE ANNEXED � CITY LI M TTS Zom' :'. SPH F. RE OF 11. F L I I ENCF 0 400 800 pm!!�� FEET SOURCE: CITY OF LODI, 2005. IALOD53I wside Swpje\figuresNFig._IVA4.ai (416.1%) LDR Low DENSITY RESIDENTIAL MDR E NSITY REST DF.NTIAL MEDIUM DE. HDR HIGH DENSITY RESIDENTIAL PR PLANNED RESIDENTIAL NCC NEIGHBORHOO A/ COMMUNrrY COMMERCIAL GC GENERAL COMMERCIAL DC DOWNTOWN COMMERCIAL O OFFICE PQP PUBLIC/QUASI PUBLIC DBP DETENTION BAS1145 AND PARY5 A AGRICULTURE. PRR PLANNED RF.SIDENTIAI, RESERVE K L \J %J 1\ L — — s. Lodi Annexation EIR General Plan Designations Exhibit B-1 Zoning Map Blvd !Q0 7W w LODI GATEWAY. Illustrative Land Use Pion OSCM.E 11 200' Ci..jj-jj CA EXHIBITC-1 Large Lot Tentative Subdivision Map 859465 Version 5 Final 11/09/06 1.1 C EXHIBM G IVAUVJ 1g3MkLMOS dYYI 3AllYlN31 da W I C �d p i p (D i �• z LLI = vq N t EXHIBM G IVAUVJ 1g3MkLMOS dYYI 3AllYlN31 262 T- i �• lit Y �p vq N t 31tY-Y � it AYM-- _ L'- ______ --- -- -- ; 262 T- EXHIBIT C-2 Reserved 859465 Version 5 Final i 1 109106 W4,11*101, DEVELOPMENT PLAN AND INFRASTRACTURE MAP FOR THE PROPERTY 859465 Version 5 Final 11/09/06 i , I 3NYS NV W3llL3N • 2 { AVMH9�H rm I � � EXE ■lk3L 11) "'1 I! 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EXHIBIT E SOUTHWEST GATEWAY PROJECT GROWTH MANAGEMENT ALLOCATION TABLE Applicable Date Allocation 300 Low Density units (Reserve) Effective Date of Development Areement 300 High Density units Reserve Within the Calendar Year One Year 59 Low Density units after Effective Date 75 Medium Density units Within the Calendar Year Two Years 59 Low Density units — after Effective Date Within the Calendar Year Three Years 29 MP.rihim ni-neity tlnitS �....:.._...__.- ..... �. _- 59 Low Density units after Effective Date 28 Medium Density units 59 Low Density units Within the CalendarYear FourYears after Effective Date 28 Med.—him-Djai2sity units 59 Low Density units Within the CalendarYear Five Years after Effective Date 59 Low Density units Within the CalendarYear Six Years after Effective Date Within the Calendar Year Seven Years 58 Low Density units after Effective Date 58 Low Density units _ Within the CalendarYear Eight Years after Effegtive Date 859465 Version 5 Final 11109/06 EXHIBIT F ANNEXATION APPROVALS 859465 Version 5 Final 11/09/06 CER'T'IFICATE OF COMPLETION San Joaquin LAFCo I860 E. Hazelton Avenue Stockton, CA 95205 Short-FormDesi:;nati Doc ti: 2007-129807 7/16/07 3:00 PM Page: 1 of a Fee: $0 Gary W. Freeman Recorders San Joaquin County Patd By: SHOWN ON DOCUMENT 1111111111fl18Ill1111111111111111111111111113111Illlflllllllllll1111 SOUTFAVEST GATEWAY REORGANIZATION TO TSE CITY OF LODI (LA FC 1.6-06) ,Annexation of 3 18 acres to the City of Lodi with concurrent detachments fr-oin the Woodbridge Fire Protection District and the San Joaquin County Resource Conservation Di,trict E 3 4. R Filed pursuant to action by the City of Lodi The name of each district or city involved in this change of organization or reorganization and the kind or type of change of organization ordered for each such city or district are as Follows Cw1TY OR DISTRICT City of Lodi Woodbridge Fire Protection District San Joaquin County Resource Conservation District TYPE 0P QHA1VGE QT" ORCr_l1NIZATION Annexation Detachment Detachment The city or districts are located in the following county (ies): San Joaquin. Boundary description for said formation or change has been attached as Exhibit A `Terms and conditions, if any, are provided in said resolution, attached. 6 I hereby certify that the action taken by adoption of the above cited resolution complies with the boundaries and conditions specified by the Locaf Agency Formation Commission of San Jo quui.County in Resolution No 1 172 JAAi IGLASER, EXECUTIVE -OFFICER Sa o urn Local Agency Formation Commission Completion Date: July 16,2007 CERTCOMP SAN JOAQUIN LAFCO CONDUCTING AUTHORITY RESOLUTION NO. 1172 RESOLUTION ORDERING THE SOUTHWEST GATEWAY REORGANIZATION TOTHE CITY OF LODI (I_AFC 16-06) WHEREAS, the San Joaquin Local Agency Fortnation Corrunission (LAFCO), on March 16, 2007, approved LAFCO Resolution No. 1168, approving the Southwest Gateway Reorganization to the City of Lodi (t,AFC 16-06), with certain terms and conditions; WI-IERLAS, the reorganization consists of the annexation of territory to the City of Lodi with concur -rent detachment from the Woodbridge Fire Protection District and the San Joaquin Resource Conservatiori District; WHEREAS, the Commission did set forth the reasons for reorganization, made findings and determinations, including those required of the California Environmental Quality Act (CEQAj, and approved terins and conditions of reorganization described in Exhibit A, LAFCO Resolution No. 1168, hereto and by this reference incorporated herein; W14 REAS, the affected boundaries of the reorganization are described in Exhibit B, attached; WT-IEREAS, the territory is uninhabited and did not have 100%owner consent; WHEREAS, Governnnent Code Section 56029 designates the Convnission as the Conducting Authority to conduct proceedings for the reorganization pursuant to Part 4 of Division 3 of Government Code commencing with Section 57000; WHEREAS, the CotTunission directed the Executive Officer, pursuant to Government Code Section 56851(d), to initiate protest proceedings pursuant to Part 4, commencing with Section 57000; WHEREAS, the Executive Officer set the proposal for a hearing on April 24, 2007, at the hour of 11:00 ami , in the Carnegie Forum, Lodi City Hall, 305 West Pine Street, Lodi, California; WHEREAS, notice, in the fonn and manner required by law, has been given for the conducting authority proceedings by the Executive Officer, pursuant to Govenunent Code Section 57025; WHEREAS, pursuant to Government Code Section 57002, the Executive Officer has conducted the duly noticed public hearing on the reorganization for the purpose of receiving written protests; WHEREAS, the conducting authority proceeding hearing was concluded on Apri124,2007; WHEREAS, after the conclusion of the hearing, the Commission shall determine the value of any written protests received; EXH I BIS F ii WHEREAS, three written protests were received either prior to, or upon conclusion of the Bearing, and finds that the value of written protests received and not withdrawn is less than a majority of the landowners owning more than 50% of the assessed value of land within the territory. NOW, `THEREFORE, THE SAN JOAQUIN LOCAL AGENCY FORMATION COM:MISSK)N HERf:i3 YRES0LVF.S,DETERMINES, AND ORDERS as follows: Certifies as a Responsible .Agency, the Coinmission has reviewed and considered the City of I_.odi's Environmental Impact I:eport (State Clearinghouse No. 2005092096) and adopts the CEQA Findings and Statement of Overriding Consideration as certified by the City of Lodi. 2. The subject reorganization is hereby ordered pursuant to GoveiTtinent Code Section 57075(b); 3. Directs the Executive Officer to file a Certificate of Completion and record this reorganization in the manner stated in Government Code Section 57000 et. seq. upon receipt of the appropriate Stare Board of Equalization Fees; the map and legal description prepared pursuant to the requirements of the State Board of Equalization and accepted to :form by the Executive Officer, and the specified terns and conditions; 4. The City of Lodi shall record a Certificate of Williamson Act Contract Termination fol Contract No. 750.516 for Assessor Parcel Number 058-030-03 (former Assessor's Acco unt Numbers 62346 and 057-050-03) with the County Recorder at the same time as the Executive Officer files the Certificate of Completion if it exercises its option riot to succeed to this contract.;and; The reorganization is subject to the terms and conditions contained in LAFCO Resolution No. 1168, Exhibit A, and the boundaries further described on the map and Iegal description, Exhibit B hereto and by this rcfercnce incorporated herein. PASSED AND ADOPTED this 18a' day of May 2007 by the following vote: AYES: Commissioners Edward J. Chavez, Steven Nilssen, Larry Ruhstaller, Jack Snyder NOES: None THE FOREGOING IS A CORRECT COPY OF THE ORIGINAL ON FILE IN THIS OFFICE Hy: NI-OtON CttftK Date: () (0 -1 Z� 0`7 EDWARD J.PIYAVEZ,A1c Chair San Joaquin Wal Agers Formation Commission EXHIBQ F RESOLUTION NO. 1168 B EFORE THE SAN JOAQUIN LOCAL AGENCY FORMATION COMMISSION APPROVING THE SOU`I HWEST GATEWAY REORGANIZATION TO THE CITY OF LODI (LAFC 16-06) WHEREAS, the above entitled proposal was initiated by filing by the City of Lodi and on January 9, 2007, the Executive Officer certified the application filed for processing; in accordance with the. I oval (lovci-n.mcnt Reorganization Act; and WIll"R-EAS, the Commission held a public hearing on the proposed reorganization on March 16, 2007, in the Board of Supervisors Chambers, C:OLUAy Courthouse, pursuant to notice of hearing which was posted and mailed in accordance with State law; and WI II:R.I:AS, at said hearing the Comamission heard and received evidence, both oral and written regarding the proposal, and all persons presciit were given an opportunity to be heard; and WHEREAS, the City of Lodi approved an Environmental Impact Report for the prO.*(, pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines: WIIEI�,'L:AS, there: is one Williamson Act Contract within the boundaries of the proposed annexation territory; WHEREAS, the subject territory is uninhabited and does not have 100% owner - consent" NOW, THEREFORE, fie San Joaquin Local Agency Formation Commission DOES HEREBY RESOLVE, DETERMINE, AND ORDER as follows: Section 1. Certifies that, as a Responsible Agency, the Commission has reviewed and considered the City of Lodi's Iwnvironmental Impact Report (State Clearinghouse No. 2005092096 Section 2. Determines, pursuant to government Code Section 56754, the City of Lodi may exercise its option to not succeed to the rights, duties, and powers of the Williamson Act Contract for APN 058-030-03 pursuant to Section 51243.5 because: I . City of Lodi Resolution No. 3623, "Protesting Execution of California Land Conservation Contract," passed on September 18, 1973, resolved that the City protests the execution of the California Land Conservation contract initiated by John and Ann Van Ruiten, Assessor's Account Numbers 45546 and 62346. Assessor's Account Number 62346 is now APN 058-030-03. The resolution identified the affected contract and the EXH r BIT'S February 15,2007 SOUTHWEST GATEWAY ANNEXATION TO THE CITY OF LODI San Joaquin County California A portion of Sections 15 and 22, Township 3 North, Range 6 East, Mount Diablo Base and Meridian, more particularly described as follows: Beginning at the northwest corner of said Section 15, said corner being in State Highway Route No. 12 (also known as Kettleman Lane) right-of-way; (I)thence along the north line of said Section 15, being in said Highway's right-of-way, South 89'12'53" East, 1,321.75 feet to the Lodi City Limit line; thence along said City Limit line the following seventeen 4(i) courses (being courses 2 through 18): (2)South 0°00'08" West, 75.01 feet, (3) North 89'12'53" West, 427.50 feet, (4) South 0°00'08" West, 417.50 feet, (5) South 89°12'53" East, 427.50 feet, (6) South 0°00'08" West, 828.63 feet, (7) South 89°12'16" East, 1,361.83 feet to the east line of Lower Sacramento Road, (8) along said east line, North 0°00'08" East, 499.77 feet, (9)South 89°11'22" East, 621.51 feet,(10) South 0000'08" West, 406.18 feet, (1 1) South 89'1122" East, 530.15 feet (12)South 0°11'12" West, 94.00 feet, (13) South 89'13'48" East, 728.75 feet, (14) South 0000'08" West, 1,320feet, (15) North 89°12'40" West, 1,280feet to the former east line of Lower Sacramento Road, (16) along said former east line, South 0°0025" East, 1,592.04 feet, (17) South 89'08'43" East, 170.02feet, and (18) South 0°0025" East, 57.01 feet to the north line of SUNNYSIDE ESTATES (the map of which is filed in Book of Official Maps and Plats, Volume 17, page 128, San Joaquin County Records); (19) thence leaving said City Limit line, North 8908'43" West, 155.02 feet to a point on the existing east line of Lower Sacramento Road, said point being 55.00 feet easterly of the north -south quarter section line through said Section 15; (20) thence South 0°00'25" East along said east line, 935 feet to the northerly end of the round corner curve at the northeast corner of the intersection of Lower Sacramento Road and Harney Lane; (21) thence along said round corner, southeasterly along a curve to the left having a radius of 30.00 feet, a central angle of 89`06'57" and an arc length of 46.66 feetto the easterly end of said round corner curve; (22) thence southerly, 55.07 feet to the easterly end of the round corner curve at the southeast corner of said intersection; (23) thence along said round corner, southwesterly along a curve to the left having a radius of 30.00 feet, a central angle of 8709'44" and an arc length of 45.64 feet to the southerly end of said round corner curve; (24) thence westerly 121.60 feet to the southerly end of the round corner curve at the southwest corner of said intersection; (25) thence along said round comer curve, northwesterly along a curve to the left having a radius of 30.00 feet, a central angle of 65°5248" and an arc length cf 34.49 feet to the westerly end of said round corner curve, being an the south line of Harney Lane, said south fine being 30.00 feet southerly of the north line of said Section 22; (26) thence along said south line, North 89'14'47" West, 597.8 feet to the southerly projection of the west line of that certain parcel of land conveyed to Robert S. Pinnell, et ux, by deed recorded as Document No. 2005-293965, San Joaquin County Records; EXH 1 P F (27) thence along said southerly projection and west line, North 001'12" West, 408 50 feet to the northwest corner thereof; (2.8) thence along the westerly projection of the north line of said Pinnell parcel, North 89014'47" West 625 feet to the east line of Parcel 1 of parcel map fiied in Book 16 of Parcel Maps, at page 87, San Joaquin County Records; thence along the east, north and west line of said Parcel 1 the following four (4) courses (being courses 29 through 32): (29)North 001'12" West, 261.18 feet, (30) North 89'14'47" West, 185.00 feet, (3 1) South 0°01'12" East, 410.00 feet, and (32) South 89`14'47" East, 50.43 feet; (33)thence continue along said west line and its southerly projection, South 449'38" West, 260 31 feet to said south line of Harney Lane; (34) thence along said sauth line North 89'14'47" West, 1,160 feet, more or less, to the west line of said Section 22; (35)thence along said west line and along the west line of said Section 15,Northerly,5,313 feet, more or less, to the point of beginning. Containing 320 acres, more or Jess. APPROVED AS TO DESCRIPTION: County Surveyor By: �39�e_e Y Assistant County Surveyor 2-- /;� -2.007 SV -78001-T1 \o�ylxt LA Ds 4G G�'G No. 4440 � Expires �7k 9-30- 07 7k// OF GA _T T�3y POINT of p[GI14NING n,of, o-5.3 __TAT[ HJGH-WA--r_V2_�K[lTL[9AN LANE) Na9*12'5J"w —427 50, (3) ...... .......... 16 FCTION -559'12'53 -1 27.5 (5) ................. 589'17'22"[ 1T %,//j0`9-,4G-J< 058-1-7V-05 SOO-00'oe^w 828.63' (6) 0*00,08-W N00,00,08,,C 140-1 TELL 4t)9.77, (49) Y O.W12 I 589'17'22 ISO -140-06 w 530.75' (I I) 00' (0) (7) SI89-f2'W-C 1,3 -140-1 "T,77 S,39-1 '4tJ 4 ml/n,l g, N VIN m g�,g W/A W �, MM H S 0 U T JVE S T G GJ1A 9/, "'WE <� ANNEXATION TM -M± ACRES R lvll�_71.17m, 0/ Z, Wwt,/M 3 RE gge", NONER5 IS---,_-^_ ------ K/m/ m M/ NMI m .0 0 0 07n/// 36/10, y// Of -CA W T L 589'08'<3 .t -SOOIO?l 5-f A- -04 57.01 w E �INMRMPW/ffiv w ,3511 _W NOO'01'177 w ...... I Fq -L_% lill SECTION t SECTION 15 _,j ir, 0, f, 1 2"W 4'47TMEL . SECTION 2 LINE 260.31•VW Na V 4*47-W (,4) N89-f,w-w J IN'S (26) 10, SEC'TION Src u I I i 1..._ , j jj/�ii J� j,� MAP or S 0 U TH WES 7' GATEWAY ANNEXATION IL=46.66 (71) TO THE CITY OF LODI NEY LAN SAN JOAOOiN COUNTY, CALIFORNIA 1007 THOMAS R. 17LINN R= 0. �,,Ej Soo L= 4. (2 =45.64' (23) FEBRUARY 15, . 65' .4a SCALE: 0' 200' 1, 000, couNry suRviyoR 9 JTREY I 127.66' (24) LEGEND:_ THUS: - - - - - - - - - - - EXISTING CITY LIMITS 5 PROPOSEO ANNEXATION SHOWN THUS,, EXHIBIT G FORM OF ASSIGNMENT OFFICIAL BUSINESS Document entitled to free recording Government Code Section 6103 RECORDING REQUESTED BY AND WHEN RECORDEDMAIL TO: City of Lodi P.O. Box3006 Lodi, CA 95241-1910 Attn: City Clerk (SPACE ABOVE THIS LINE RESERVED FOR RECORDERS USE) ASSIGNMENT AND ASSUMPTION AGREEMENT RELATIVE TO FRONTIER COMMUNITY BUILDERSWESTSIDE DEVELOPMENT AGREEMENT THIS ASSIGNMENT is entered into this Community Builders, a ,a AND ASSUMPTION AGREEMENT (hereinafter, the "Agreement") day of , 200 , by and between Frontier corporation (hereinafter "Developer'), and (hereinafter "Assignee"). RECITALS 1. On , 2006, the City of Lodi and Developer entered into that certain agreement entitled "Development Agreement By and Between The City of Lodi and Frontier Community Builders, Jnc. related to the development known as Frontier Community Builders Southwest Gateway Project (hereinafter the "Development Agreement"). Pursuant to the Development Agreement, Developer agreed to develop certain property more particularly described in the Development Agreement (hereinafter, the "Subject Property"), subject to certain conditions and obligations as set forth in the Development Agreement. The Development Agreement was recorded against the Subject Property in the Official Records of San Joaquin County on , 2006, as Instrument No. — 2. Developer intends to convey a portion of the Subject Property to Assignee, commonly referred to as Parcel , and more particularly identified and described in Exhibit A-1 and Exhibit A-2, attached hereto and incorporated herein by this reference (hereinafter the "Assigned Parcel"). 3. Developer desires to assign and Assignee desires to assume all of Developer's right, title, interest, burdens and obligations under the DevelopmentAgreement with respect to and as relatedto the Assigned Parcel. ASSIGNMENT AND ASSUMPTION NOW, THEREFORE, Developer and Assignee hereby agree as follows: 1. Developer hereby assigns, effective as of Developer's conveyance of the Assigned Parcel to Assignee, all of the rights, title, 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 obligations under the Development Agreement with respect to all other property within the Subject Property owned by Developer. 2. Assignee hereby assumes all of the rights, title, interest, burdens and obligations of Developer under the Development Agreement with respect to the Assigned Parcel, and agrees to observe and fully perform all of the duties and obligations of Developer under the Development Agreement with respect to the Assigned Parcel. The parties intend hereby that, upon the execution of this Agreement and conveyance of the Assigned Parcel to Assignee, Assignee shall become substituted for Developer as the "Developer" under the Development Agreement with respect to the Assigned Parcel. 3. All of the covenants, terms and conditions set forth herein shall be binding upon 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 for the Developer with respect to the Assigned Parcel shall be: FRONTIER COMMUNITY BUILDERS, INC. 10100 Trinity Parkway, Suite 420 Stockton, California 95219 IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day and year first above written. This Agreement may be signed in identical counterparts. DEVELOPER: ASSIGNEE: FRONTIER COMMUNITY BUILDERS, INC. By: Print Name: Title: Division President a By: Print Name: Title: EXHIBIT d SCHEDULE OFIMPROVEMENTS 859465 Version 5 Final 11/09/06 EXHIRI H RECEIVED Implementation and Phasing Memorandum �2000MAY � Introduction 0{)MMUNiTY DEVELOPMENT DEPT LOti 'I'he project phasing described below is intended to outline the anticipatedse ien�_ 1110 01 development. The project phasing plan is also intended to help ensure all necessary infrastructure would be in place and operational for connection and use as portions of the project phases come on line. The phasing schedule should be used as a guideline rather than a binding commitment because phasing must be flexible to respond to market absorption and other relevant conditions. Phasing The project is expected to be developed in four phases over a period of five to eight years. The first phase is expected to begin in the Spring of 2007 and the final phase is anticipated to be completed by the end of 2014. `l -he following schedule represents the expected phasing of the residential villages. Phase 1: The first phase includes the extension of Century to the west edge of the property. Five villages totaling 549 homesites, a neighborhood park, the school site and the central park/basin are part of this phase. The sewer trunk lines will be relocated along the south end of the commercial property to Westgate Drive then south to Century Boulevard and extended west to edge of the project. Type VillaRe(s) JTnitc 1 LDR 2.4,5 345 1 M.DR 1 84 1 LDR 3 1211 Subtotal 542 2 MDR 6 64 s HDR 7 21.0 Subtotal 274 3 LDR 9,12 214 3 MDR 8,10 9q6 Subtotal _19 4 LDR 11,13 148 Grand Total .1 „2�_ .1 Phase 1: The first phase includes the extension of Century to the west edge of the property. Five villages totaling 549 homesites, a neighborhood park, the school site and the central park/basin are part of this phase. The sewer trunk lines will be relocated along the south end of the commercial property to Westgate Drive then south to Century Boulevard and extended west to edge of the project. Phase 2: The second phase includes Villages 6 and 7 west of the commercial site. This phase includes the apartment site. The park basin and fire station will be included with this phase unless previously developed with the shopping center improvements. Phase 3: The third phase of the project is planned to include Villages 8,9,10 and 12 totaling 3 I0 homesites. This phase includes the remaining two parks and the secondary entrance off of Lower Sacramento Road, Phase 4: The ficial phase of the project includes Villages l l and 13.- All remaining streets and facilities will be ii -Stalled with this phase. EXHIBIT I PARKIMPROVEMENTS Westside/Southwest Gateway DevelopmentAgreement Basin/Park Area Summary Westside Annexation Park Location Basin (1), acres Net 2,acres Gross, acres Total, acres A 2.9 1.6 1.6 4.5 B 2.1 2.1 2.1 C 8.2 5.4 6.1 14.3 Southwest Gateway Annexation 859465 Version 5 Final 11/09/06 (3) (4) (5) Park Location Basin (1), acres Net(2),acres Gross, awes.... Total, acres D 5.9 1.5 1.5 7.4 E 6.7 2.4 2.4 9.1 F 4.8 1.5 1.5 6.3 G 2.2 2.2 2.2 H 2 2 21 Open Space on Century Blvd. 0 0 0 j (1) Westside Annexation area basin calculations not approved. The basin area numbers are subject to change. (2) Net area measured from street right of way. Area requirements are exclusive of bike and ped routes. (3) Park to be located at the southwest end of designated area. (4) Park to be located at the south end of designated area. (5) Two slivers of open space are shown on Century Blvd. Neither area provides sufficient space for park facilities. 859465 Version 5 Final 11/09/06 (3) (4) (5) EXHIBIT J REQUIRED PARK AMENITIES 859465 Version 5 Final 11/09(06 Bike Rack I Poo Water Play Tennis Basketball Bocce Horseshoes Playground Picnic Table shelter • Passive BBQ Area • Street arking Fields P Trees Turf .. . Boosteir : O �D ■■■O OO®O®■■�®®©BOO©© ©�©■■■_�_■�_©_©fir _��_©©®_�_©_©_©■_ 859465 Version 5 Final 11/09(06 XHIBInt K AGREEMENT TO AMEND SOUTHWEST GATEWAY DEVELOPMENTAGREEMENT AND REFRAIN FROM CHALLENGING LAND USE PROJECT THIS AGREEMENT is made this 15th day of November 2006 by and between the City of Lodi (City), a California General Law city, represented by the City Manager and City Attorney with the limited authority as described in Section 1.A; Citizens for Open Government, an unincorporated association (Citizens); and Frontiers Community Builders (Developer) a dba of Frontier Land Companies, a California Corporation. The Parties agree as follows: 1. Recitals. A. The Parties to the Agreement. The City of Lodi ("City") is a General Law city governed by a five -member city council. For all purposes herein and during all times during the negotiation of this Agreement the City Manager and City Attorney have represented the City. However in this Agreement and at ail times during the negotiation of the Agreement the City Manager and/or City Attorney have lacked the capacity or legal authority to bind the City of Lodi and/or the City Council. The parties understand that throughout the negotiation and in executing this Agreement the City Manager and City Attorney can only recommend to the City Council that it take certain actions. All authority and discretion remains with the City Council over whether the City Council will approve or disapprove of this Agreement. The City Council is scheduled to hear the Project at a duly noticed public hearing scheduled for November 15,2006. Citizens is an unincorporated association that has commented on the development propond by Developer, The "Project" referred to herein is as defined in the Development Agreement for the "FCB Southwest Gateway Project" with all Project Approvals described therein. Citizens desire to have certain mitigation measures and clarifications added to the Development Agreement negotiated between City and Developer that in the opinion of Citizens will further the interest of the City and the interest of the public. If these amendments are added to the draft Development Agreement in the form of this Agreement, which shall be an exhibit to the Development Agreements, then Citizens will support the Project, will not make negative comments about the Project's EIR or the Project at any City Council or other public hearings, and will not subsequently challenge the certification of the EIR or the Project Approvals, directly or indirectly. Ann Cerney shall be the sole spokesperson for Citizens and make these statements at City Council hearing. Developer, a private entity, is the applicant for the Development Agreements and Project Approvals described therein. The term "Developer" includes all related entities of Developer and their successors in interest. B. The parties agree that the Development Agreements contain commitments for major infrastructureand amenities that will result in public benefits for the City. C. Although Citizens are not fully satisfied with all aspects cf the Project and EIR, it has balanced the benefits of the Project, includingthe changes to the draft Development Agreements as set forth in this Agreement, against the adverse effects of the Projects and has concluded that the Projects, separately or combined, are substantially more beneficial to the Citythan detrimental. 2. Modification of Develoo meat Agreement. The parties agree that the draft Development Agreement for the Project, scheduled to be considered by the City Council at the public hearing on November 15, 2006, is to be hereby amended by and through this Agreement, which shall be attached to the Development Agreement as Exhibit X". A. Mitlaation ForAaricultural Conversion Impacts of Proiect (l) Developer shal I obtain permanent easements to be held by the City or other qualified entity (e.g., Central Valley Farmland Trust) limiting the use of San Joaquin County real property to agricultural uses and related activities as are permitted from time to time under the agricultural zoning laws cf the County ("Agricultural Conservation Easements"). f n providing mitigation for impacts to agricultural land, Developer shall adhere to the terms of the final adopted San Joaquin County Agricultural Mitigation Ordinance, now under consideration by the San Joaquin County Board of Supervisors. (See November 14, 2006 draft Ordinance.) (2) At a minimum, and notwithstanding the terms of the final, adopted County Ordinance, the Agricultural ca sexvatian Easements shall be recorded on a 1:1 acre (conserved:devefoped) ratio against an aggregate total of up to 240 acres, more or less, contained within FCB Southwest Gateway Project, involving one or more parcels of land - though not necessarily contiguous - with each mitigation acre located within San Joaquin County and zoned for agricultural uses ("Protected Properties"). if mitigation lands are located in the Primary Zone cf the San Joaquin Delta that lies within the County, the mitigation ratio shall be on a 2:1 acre (conserved: developed) basis. However, if prior to the Developer's compliance with this agricultural mitigation requirement, the Sari Joaquin Board of Supervisors excludes land within certain areas of the County (e.g., the Primary Zone of the Delta) from being used for agricultural mitigation purposes, the parties agree that those lands would be excluded from being used for mitigation purposes under this Agreement. (3) At a minimum, and notwithstanding the terms of the final, adopted County Ordinance, the Agricultural Conservation Easements may only apply to Protected Properties that are not encumbered by (a)any other perpetual open space conservation easement or 2 deed restriction or (b) any other perpetual agriculture mitigation easement or deed restriction. The cost of obtaining the Agricultural Conservation Easements shall rest with the Developer. The Protected Properties must be subject to permanent restrictions on use to ensure the availability of agricultural production capacity by limiting non-agricultural development that is inconsistent with agriculture uses and related activities. In accordance with the County's November 14, 2006, draft Mitigation Ordinance section 9-2080.3, subdivision (e)(1), the Developer shall pay an administrative fee to cover the costs of administering, monitoring and enforcing the farmland conservation easement in an amount to be determined by the qualified entity that will hold the conservation easement. If the City holds the Agricultural Conservation Easements, the Citywill monitorthe Protected Properties subject to the easements biannually through its Planning Commission to ensure compliance with the requirements of this provision. If the City is selected to hold the Agricultural Conservation Easements, Developer will pay City $5,000 to compensate the City for monitoring cost/contingencies in connection with the Agricultural Conservation Easements for the Southwest Gateway Project. (4) The Agricultural Conservation Easements shall be recorded in the applicable ratio(s) against a minimum of each acre to be developed (or more) within any phased Final Subdivision Map of the Project prior to the date the first residential building permit is issued to Developerfor any such phase thereof. (5) City shall notify Citizens of which site(s) are selected to meet the requirements of this provision 30 days prior to the recordation of any Agricultural Conservation Easements pursuant to this Agreement. If both Citizens and the City agree, the mitigation ratio applicable to mitigation lands outside of the Delta Primary Zone may be reduced if the Developer proposes to obtain conservation easements that, in the judgment of both Citizens and the City, have a greater mitigation value than lands that could otherwise be used as mitigation for agricultural impacts of the Projects underthis provision. 8. Home Buildinp_ Energy and Conservation Featureswithin the Project 1) Developer shall become California Green Builder prior to the construction of the homes within the Projects. The California Green Builder program requires that all homes are at least 15%more energy efficient that currently mandated byTitle 24 in California and meet guidelines for energy efficiency set but the US Environmental Protection Agency. The homes within the Projects may contain a variety of energy efficient features and alternative energy features such as high efficient insulation, high performance windows, high efficient heating and cooling equipment, cool roofing, radiant barriers, awnings, overhangs day lighting and qualified lighting. 2) Developer's status as a California Green Builder requires Developerto implement water conservation features that saves 20,000 gallons per home per year. Developershall provide front yard landscaping using weather based irrigation controllers and drip irrigation and may utilize other water conservation features such as high efficiency fixtures and efficient plumbing technologies, products and materials. Developer also agrees to use weather based irrigation controllers in front yards, parks and common areas. 3 3) Developer shall make available solar power features and electrical car charging stations or outlets that homeowners with in the Projects may elect to purchase as part of that homeowner's option package. 4) Developer agrees that at least 50%of the construction site waste shall be recycled or otherwise diverted from landfill disposal. 5) Developer shall use only EPA approved natural gas fireplaces, fireplace inserts, woodstoves or pellet stoves when such fireplaces are installed. Developerwill comply with all federal, state and local laws and regulations pertaining to the installation of wood burning fireplaces. 6) Developerwill encourage landscape maintenance companies to use electric - powered equipment. 7) Shade trees will be planted where appropriate throughoutthe Projectand located to shade paved areas and to protect dwellings from energy consuming environmental conditions. g) Developeragrees to complywith the California Green Builder program that applies to high density residential units. Currentlya pilot program existsthat is substantially similar to the low density program, with the exception of the 20,000 gallon per home per year in water conservation. C New Urbanism neighborhood design. Developer believesthat the Project's current land use plans promotethe principles of New Urbanismthat include neighborhoodsthat are walk -able, interconnected, that include pedestrian friendly streetscapes; bicyclefriendly design elements; well integrated, highly visible, and publicly accessible open spaces. Developer is also committed to designing the specific components of the Projectsto include housing and structural forms that are visually interesting, well modulated, constructed of high quality materials, proportionate to their surroundings, and a range of housing types, sizes and affordability. D. Pedestrian Transit and Bievele In Developer agrees to implement the following measures: 1) Provide pedestrian enhancing infrastructure that includes: sidewalks and pedestrian paths, direct pedestrian connections, street trees to shade sidewalks, pedestrian safety designs/infrastructure, street lighting and/or pedestrian signaRzation and signage, and 2) Provide bicycle -enhancing infrastructure that includes: bikeways/paths connectingto a bikewaysystem aswell as secure bike parking. E. In& Eastside: This provision is not applicable to the Southwest Gateway Agreement. 4 F. WaterSupgly: Additional entitlements for urban development within the Project area (i.e., subdivision maps, parcel maps, building permits, etc.) shall not be granted for any dwellings within the Project area after total water use exceeds the projected safe groundwateryield of the Project area until additional water sources (e.g., W.I.D. groundwater recharge or water treatment or otherwise) are available. According to the Westside - Southwest Gateway Project Water Supply Assessment (July 2006) ("WSA" ), a total of approximately347 acre feet per year for Southwest Gateway will be available for the Project upon its annexation 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 ensure that water use by the Project does not exceed the projected increase in safe groundwater yield attributable to annexation of the Project area into the City until additional water sources (e.g., W.I.D. groundwater recharge or water treatment or otherwise) are available. (See WSA, Figure 5-4.) G Agricultural Conflicts: Developer shall strive to phase development in a manner that will reduce land use conflicts with lands currently in agricultural use to the west of the Project. To the extent feasible, Developer will generally develop the Project in an east to west direction. H. Challenges: 1) No Challenge by Citizens/Cerney: This Agreement will not become effective in the event that Citizens and/or Ann Cerney: (1 )file any legal action challenging the City's certification of the EIR; (2) file any legal action challenging the City's approval of the Project's land use approvals, including the amendments to the West Side Facilities Master Plan: (3)file any legal action challenging the San Joaquin Local Agency Formation Commission's compliance with CEQA; (4)file any legal action challenging the San Joaquin Local Agency Formation Commission's approval of the annexation of the territory to the City of Lodi; (5) qualify a referendum petition to require an election concerning one or more of the Project's legislative approvals, or (6)violate the terms or the spirit of this Agreement in any other manner. 2) QiWkweby Third Party: a. The amendment to the Development Agreement called for in this Agreement will become partially ineffective as set forth below in the event that any other party: (1files any legal action challenging the City's certification of the EIR; (2)files any legal action challenging the City's approval of the Project's land use approvals; (3)files any legal action chalfenging the San Joaquin Local Agency Formation Commission's compliance with CEQA; (4) files a legal action challenging the San Joaquin Local Agency Formation Commission's approval of the annexation of the territory to the City of Lodi; or, (5) qualifies a referendum petition to require an election concerning one or more of the Project's legislative approvals. b• If an event triggers a partial invalidity as called for above, the 5 ratio of number of acres to be mitigated per Section 2.A. will be reduced by 50%and reimbursement cf a portion of the fees paid to Citizens under this Agreement (see Paragraph 3C. below) shall be due from Citizens to Developer (within 60 days of its written notice to Citizens) in the amount of $7,600. Moreover, Citizens' statute of limitations to file an action challenging the City's certification of the EIR and/or land use approvals will be tolled for thirty (30) days from the limitations period established by CEQA. City and Developer grant a second conditional and limited tolling of the statute of limitations to file an action challenging City's certification of the EIR. This conditional and limited tolling will only arise upon a legal challenge by a third party to LAFCO's determination on the EIR and/or annexation and Citizens' time to file an action shall extend for only thirty (30)days after the third party files its action. C. In the event that dismissals with prejudice are filed with any applicable Court before answers are filed in the third party litigation then Citizens wilt dismiss any subsequent actions and the terms of this Agreement shall be fully restored. 3. Miscellaneous. A. Ann Cerney, as the sole representative of Citizens, shall appear at all appropriate City Council hearings and express support for the approval of this Agreement, and non -opposition to the City Council's approval of the Project and certification ofthe EIR. B. Citizens represents and warrants that Ann Cerney has authority to execute this Agreement on behalf of Citizens and is authorized to speak on behalf ofthe organization at all Lodi City Council and other public meetings. C. Developer conditionally agrees to pay $40,000 to Citizens to reimburse Citizens for attorney fees expended in the negotiation and executing of this Agreement and to reimburse members of the Citizens for extraordinary time and effort expensed in this process. The distribution of the money shall be at the sole discretion of Citizens. The payment of these fees shall be due and payable thirty (30)days after the last day to take any of the actions described in Section 2.F.1). D. If the public benefits included in this Agreement are not adopted by the City Council, Citizens' support for approval of this Agreement and non -opposition to the City Council's approval of the Projects and certification of the EIR will be withdrawn and its previously stated objections will be renewed. City and Developer agree not to assert an exhaustion of administrative remedies defense as to those issues specifically raised and exhausted at hearings regarding the Project if litigation ensues and this agreement becomes null and void, or partially invalid, under this Agreement. 4, Independent Effect: EffectiveDate of Agreement. Only Section 3.A and 3.8ofthe Agreement shall be immediately effective and binding upon Citizens and Developer. The remainder of this Agreement shall only become effective upon the City Council approval of the amendment to the draft Development Agreement that are described in Section 2. Notwithstanding any other provision herein to the contrary, because of the nature of the mitigation measures set Forth herein (e.g., ratio of 1:1 acres for agriculture mitigation), the parties agree that this Agreement shall be effective as stand- alone resolutions of their disputes as to this Project. 5. Agreement Notto Sue or Circulate a Referendum Petition, If the amendment to the Development Agreement called for in this Agreement are adopted by the City Council, Citizens agrees that neither it nor its individual members shall sue the City or the San Joaquin Local Agency Formation Commission over the sufficiency cf the EIR or the land use/annexation decisions by these public agencies. Further neither Citizens nor its members shall encourage or give assistance to any others to challenge the Developer's Project either administratively or judiciaily. Moreover, neither Citizens, nor its members, will encourage, indirectly assist or actually circulate a petition to place a referendum on the ballot to force an election about the Project's legislative approvals. 6. Counterparts. This agreement maybe executed in counterparts. Frontier Land Companies By: Tom Doucette, President City of Lodi By: Blair King, City Manager Citizens for Open Governm t� By: Ann Cerney 7 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI RESCINDING DEVELOPMENT AGREEMENT PERTAINING TO THE DEVELOPMENT OF 257.76 ACRES LOCATED ON THE WEST SIDE OF LOWER SACRAMENTO ROAD BETWEEN HIGHWAY 12-KETTLEMAN LANE AND HARNEY LANE (SOUTHWEST GATEWAY) (DEVELOPMENT AGREEMENT GM-05-001 ................................................................... BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS: SECTION 1. The Lodi City Council passed Ordinance No. 1788 approving a Development Agreement covering the following property: Southwest Gateway: 257.76 acres located on the west side of Lower Sacramento Road between Highway 12-Kettleman Lane and Harney Lane, Assessors Parcel Numbers: 058-030-09, 058-030-03, 058-030-04, 058-030-05, 058-030-06, 058-040-01, 058-040-02, 058-040-04, 058-040- 05, and 058-040-14; and SECTION 2. Frontier Community Builders ("Frontiers"), the sole party to the above referenced Development Agreement requested that the agreement be rescinded by letter of May 16, 2012, a copy of which is attached hereto and incorporated by reference. However Frontiers Citizens for Oen Government and the City entered into a settlement agreement dated November 15 2006 "Settlement Areement" the obli ations of which were incorporated into the Development Agreement and into the CEQA approvals set forth in Resolution 2006-209. This ordinance shall not terminate any of the obligations set forth in the Settlement Agreement. Moreover CEQA Resolution 2006-209 shall continue in full force and obligate Frontiers to comply with all of the obligations set forth in the Settlement Agreement. SECTION 3. The City Council hereby finds that termination of the Development Agreement is in the best interest of the City to ensure that any construction is subject to the new impact mitigation fee program, and to eliminate conditions in the Development Agreement that could present barriers to housing construction in the current economy. SECTION 4. The City Council hereby finds that the termination of the Development Agreement is consistent with the General Plan land use designation and the zoning for the proposed Development. SECTION 5. The City Council hereby adopts Ordinance No. rescinding the Development Agreement by and between the City of Lodi and Frontier Community Builders. However, the Settlement Agreement and CEQA Resolution 2006-209 shall SECTION 6. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a mannerwhich imposes upon the City, or any officer for 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. SECTION 7. 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. SECTION 8. This ordinance shall be published one time in the "Lodi News-Sentinel,"a daily newspaper of general circulation printed and published in the City of Lodi, and shall take effect 30 days from and after its passage and approval. Approved this JOANNE MOUNCE Mayor Attest: of ,2012 RANDI JOHL City Clerk ------------------------------------------------------------------- ------------------------------------------------------------------- State of California County of San Joaquin, ss. I, Randi Johl, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held August 15, 2012, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held , 2012, by the following vote: AYES: COUNCIL MEMBERS— NOES; COUNCIL MEMBERS— ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. 2 RANDIJOHL City Clerk Approved as to Form: D. STEPHEN SCHWABAUER City Attomey 3 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI RESCINDING 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) (DEVELOPMENTAGREEMENT GM -05-002) ------------------------------------------------------------------- ................................................................... BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS: SECTION 1. The Lodi City Council passed Ordinance No. 1794 approving a Development Agreement covering the following property: Westside Project: 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. Frontier Community Builders("Frontiers" ), the sole party to the above referenced Development Agreement requested that the agreement be rescinded by letter of Mav 16, 2012, a copy of which is attached hereto and incorporated by reference. However Frontiers Citizens for Open Government and the City entered into a settlemeni agreement dated December 4 2007 `Settlement Agreement"), the obligations of which were incorporated into the Development Agreement. This ordinance shall not terminate any of the obligations set forth in the Settlement Agreement. Moreover, the Settlement Agreement shall continue in full force and obligate Frontiers to com Iv with all of the obligations set forth in the Settlement Agreement. SECTION 3. The City Council hereby finds that termination of the Development Agreement is in the best interest of the City to ensure that any construction is subject to the new impact mitigation fee program, and to eliminate conditions in the Development Agreement that could present barriers to housing construction in the current economy. SECTION 4. The City Council hereby finds that the termination of the Development Agreement is consistent with the General Plan land use designation and the zoning for the proposed Development. SECTION 5. The City Council hereby adopts Ordinance No. rescinding the Development Agreement by and between the City of Lodi and Frontier Community Builders. However, the Settlement Agreement shall continue in full force and obligate Frontiersto comply with all of the obligations set forth in the Settlement Agreement. SECTION 6. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer for 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. SECTION 7. 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. SECTION & This ordinance shall be published onetime in the "Lodi News -Sentinel," a daily newspaper of general circulation printed and published in the City of Lodi, and shall take effect 30 days from and after its passage and approval. Approved this of , 2012 JOANNE MOUNCE Mayor Attest: RAND JOHL City Clerk ------------------------------------------------------------------- ------------------------------------------------------------------- State of California County of San Joaquin, ss. I, Randi Johl, City Clerk of the City of Lodi, do hereby certify that Ordinance No. was introduced at a regular meeting of the City Council of the City of Lodi held August 15, 2012, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held , 2012, by the following vote: AYES: COUNCIL MEMBERS— NOES; COUNCIL MEMBERS — ABSENT: COUNCIL MEMBERS — ABSTAIN: COUNCIL MEMBERS — I further certify that Ordinance No. was approved and signed by the Mayor on the date of its passage and the same has been published pursuantto law. RANDIJOHL City Clerk Approved as to Form: D. STEPHEN SCHWABAUER City Attorney 2 SOLUIRJ (5 MESERVE tel: 916.455.7300 . fax: 916.244.7300 1010 F Street, Suite 100• Sacramento,CA 95814 a law corporation August 15,2012 SENT VIA EMAIL: sschwabauerAlodi.gov mhakeem(aD,hemlaw. com D. Stephen Schwabauer City Attorney City of Lodi P.O. Box 3006 Lodi, CA 95241 Michael Hakeem Counsel for Frontiers Land Company 3414 Brookside Road, Suite 100 Stockton, CA 95219 RE: Rescission of Southwest Gateway and Westside Development Agreements Dear Steve and Mike: This office represents Citizens for Open Government ("COG") and Ann Cerney with respect to the Southwest Gateway and Westside Development Projects (a.k.a. Lodi Annexation Project). In 2006, COG entered into two separate SettlementAgreements with Frontier Land Companies and the City to ensure that agricultural land conversion impacts would be mitigated at a minimum 1:1 ratio and that certain home building, energy, conservation, and other environmental design features would be included in the Lodi Annexation Project. (November 15,2006 and December 4,2006 Settlement Agreements, attached as Exhibit A and Exhibit B, section l I.A-G.) I have reviewed the draft rescission resolutions provided by the City Attorney's office and am satisfiedthat the resolutions make clear that obligations in the Settlement Agreements will continue after rescission of the Development Agreements, consistent with the intent of all parties. I cannot be in attendance this evening to participate in the Council proceedings, but Ms. Cerney will be available should there be any questions pertaining to COG and/or the SettlementAgreements. I would like to also take this opportunity to remind both the City and Frontier Land Companies that the Agreements contain notification provisions regarding selection of agricultural land mitigation receiving sites. (See Settlement Agreements, section Mssrs. Schwabauer and Hakeem August 15,2012 Page 2 of 2 II.A.5.) These notifications should be provided to my office at the address listed above, or via email: osha(a semlmers.com. Thank you for your cooperation in ensuring the work of COG to improve the Lodi Annexation Project will be carried out as the Project is eventually developed. Please feel free to contact me anytime with any questions or concerns. Very truly yours, SOLURI MESERVE A Law Corporation By: 04 t Osha R. Meserve cc: Ann Cemey, Citizens for Open Government, acerne cJnreach.com EXHIBIT A EXHIBIT-, K AGREEMENT TO AMEND SOUTHWEST GATEWAY DEVELOPMENTAGREEMENT AND REFRAJN FROM CHALLENGING LAND USE PROJECT THIS AGREEMENT is made this 151h day of November 2006 by and between the City of Lodi (City), a California General Law city, represented by the City Manager and City Attorney with the limited authority as described in Section 1.A; Citizens for Open Government, an unincorporated association (Citizens); and Frontiers Community Builders (Developer) a dba of Frontier Land Companies, a California Corporation. The Parties agree as follows: 1. Recitals. A The Parties to the Agreement. The City of Lodi ("City") is a General Law city governed by a five -member city council. For all purposes herein and during all times during the negotiation of this Agreement the City Manager and City Attorney have represented the City. However in this Agreement and at all times during the negotiation of the Agreement the City Manager and/or City Attorney have lacked the capacity or legal authority to bind the City of Lodi and/or the City Council. The parties understand that throughout the negotiation and in executing this Agreement the City Manager and City Attorney can only recommend to the City Council that it take certain actions. All authority and discretion remains with the City Council over whether the City Council will approve or disapprove of this Agreement. The City Council is scheduled to bear the Project at a duly noticed public hearing scheduled for November 15,2006. Citizens is an unincorporated association that has commented on the development proposed by Developer, The "Project" referred to herein is as defined in the Development Agreement for the "FCB Southwest Gateway Project" with all Project Approvals described therein. Citizens desire to have certain mitigation measures and clarifications added to the Development Agreement negotiated between City and Developer that in the opinion of Citizens will further the interest of the City and the interest of the public. if these amendments are added to the draft Development Agreement in the form of this Agreement, which shall be an exhibit to the Development Agreements, then Citizens will support the Project, will not make negative comments about the Project's EIR or the Project at any City Council or other public hearings, and will not subsequently challenge the certification of the EIR orthe Project Approvals, directly or indirectly. Ann Cerneyshall be the sole spokesperson forCitizens and make these statements at City Council hearing. Developer, a private entity, is the applicant for the Development Agreements and Project Approvals described therein. The term "Developer' includes all related entities of Developer and their successors in interest. B. The parties agree that the DevelopmentAgreements contain commitments for major infrastructure and amenities that will result in public benefits for the City. C. Although Citizens are not fully satisfied with all aspects of the Project and EIR, it has balanced the benefits of the Project, including the changes to the draft Development Agreements as set forth in this Agreement, against the adverse effectsof the Projects and has concluded that the Projects, separately or combined, are substantially more beneficial to the City than detrimental. 2. Modification of Development ALfreement. The parties agree that the draft DevelopmentAgreement for the Project, scheduled to be considered by the City Council at the public hearing on November 15, 2006, is to be hereby amended by and through this Agreement, which shall be attached to the Development Agreement as Exhibit "K". ' 11 •. •1 1 ' •1 •1 11�. • ' • - (1) Developer shall obtain permanent easements to be held by the City or other qualified entity (e.g., Central Valley Farmland Trust) limiting the use of San Joaquin County real property to agricultural uses and related activities as are permitted from time to time under the agricultural zoning laws of the County ("Agricultural Conservation Easements"). in providing mitigation for impacts to agricultural land, Developer shall adhere to the terms of the final adopted San Joaquin County Agricultural Mitigation Ordinance, now under consideration by the San Joaquin County Board of Supervisors. (See November 14, 2006 draft Ordinance.) (2) At a minimum, and notwithstanding the terms of the final, adopted County Ordinance, the Agricultural Conservation Easements shall be recorded on a 1:1 acre (conserved:developed) ratio against an aggregate total of up to 240 acres, more or less, contained within FCB Southwest Gateway Project, involving one or more parcels of land - though not necessarily contiguous - with each mitigation acre located within San .Joaquin County and zoned for agricultural uses ("Protected Properties"). If mitigation lands are located in the Primary Zone of the San Joaquin Delta that lies within the County, the mitigation ratio shall be on a 2:1 acre (conserved:developed) basis. However, if prior to the Developer's compliancewith this agricultural mitigation requirement, the San Joaquin Board of Supervisors excludes land within certain areas of the County(e.g., the PrimaryZone of the Delta) from being used for agricultural mitigation purposes, the parties agree that those lands would be excluded from being used for mitigation purposes under this Agreement. (3) At a minimum, and notwithstanding the terms of the final, adopted County Ordinance, the Agricultural Conservation Easements may only apply to Protected Properties that are not encumbered by (a) any other perpetual open space conservation easement or 2 deed restriction or (b) any other perpetual agriculture mitigation easement or deed restriction. The cost of obtaining the Agricultural Conservation Easements shall rest with the Developer. The Protected Properties must be subject to permanent restrictions on use to ensure the availability of agricultural production capacity by limiting non-agricultural development that is inconsistent with agriculture uses and related activities. In accordance with the County's November 14, 2006, draft Mitigation Ordinance section 9-1080.3, subdivision (e)(1), the Developer shall pay an administrative fee to cover the costs of administering, monitoring and enforcing the farmland conservation easement in an amount to be determined by the qualified entity that will hold the conservation easement. If the City holds the Agricultural Conservation Easements, the City will monitor the Protected Properties subject to the easements biannually through its Planning Commission to ensure compliance with the requirements of this provision. If the City is selected to hold the Agricultural Conservation Easements, Developer will pay City $5,000 to compensate the City for monitoring cost/contingencies in connection with the Agricultural Conservation Easements for the Southwest Gateway Project. (4) The Agricultural Conservation Easements shall be recorded in the applicable ratio(s) against a minimum of each acre to be developed (or more) within any phased Final Subdivision Map of the Project prior to the date the first residential building permit is issued to Developerfor any such phase thereof. (5) Cityshall notify Citizens of which site(s) are selected to meet the requirements of this provision 30 days prior to the recordation of any Agricultural Conservation Easements pursuant to this Agreement. if both Citizens and the City agree, the mitigation ratio applicable to mitigation lands outside of the Delta Primary Zone may be reduced if the Developer proposes to obtain conservation easements that, in the judgment of both Citizens and the City, have a greater mitigation value than lands that could otherwise be used as mitigation for agricultural impacts of the Projects underthis provision. B. Home Building, Energy and Conservation Featureswithin the Proiect 1) Developer shall become a California Green Builder prior to the construction of the homes within the Projects. The California Green Builder program requires that all homes are at least 15%more energy efficient that currently mandated byTitle 24 in California and meet guidelines for energy efficiency set but the US Environmental Protection Agency. The homes within the Projects may contain a variety of energy efficient features and alternative energyfeatures such as high efficient insulation, high performance windows, high efficient heating and cooling equipment, cool roofing, radiant barriers, awnings, overhangs day lightingand qualified lighting. 2) Developer's status as a California Green Builder requires Developerto implement water conservation features that saves 20,000 gallons per home per year. Developershall provide front yard landscaping using weather based irrigation controllers and drip irrigation and may utilize other water conservation features such as high efficiency fixtures and efficient plumbing technologies, products and materials. Developer also agrees to use weather based irrigation controllers in front yards, parks and common areas. 3 3) Developer shall make available solar power features and electrical car charging stations or outlets that homeowners with in the Projects may elect to purchase as part of that homeowner's option package. 4) Developeragrees that at least 50%of the construction site waste shall be recycled or otherwise diverted from landfill disposal. 5) Developer shall use only EPA approved natural gas fireplaces, fireplace inserts, woodstoves or pellet stoves when such fireplaces are installed. Developerwill comply with all federa(, state and local laws and regulations pertaining to the installation of woad burning fireplaces. g) Developerwill encourage landscape maintenance companies to useelectric- powered equipment. 7) Shade trees will be planted where appropriate throughout the Projectarid located to shade paved areas and to protect dwellings from energy consuming environmental conditions. 8 j Developer agrees to comply with the California Green Builder program that appliesto high density residential units. Currently a pilot program existsthat is substantially similarto the low density program, with the exception of the 20,000 gallon per home per year in water conservation. C New Urbanism neighborhood design. Developer believesthat the Project's current land use plans promote the principles of New Urbanismthat include neighborhoodsthat are walk -able, interconnected, that include pedestrian friendly streetscapes; bicycle friendly design elements; well integrated, highly visible, and publicly accessible open spaces. Developer is also committed to designing the specific components of the Projects to include housing and structural forms that are visually interesting, well modulated, constructed of high quality materials, proportionate to their surroundings. and a range of housing types, sizes and affordability. D. Pedestrian Transit and Bicycle infrastructure: Developer agrees to implement the following measures: 1) Provide pedestrian enhancing infrastructure that includes: sidewalks and pedestrian paths, direct pedestrian connections, street trees to shade sidewalks, pedestrian safety designs/infrastructure, street lighting and/or pedestrian signalization and signage, and 2) Provide bicycle -enhancing infrastructure that includes: bikeways/paths connecting to a bikewaysystem as weil as secure bine parking. E. Lodi Eastside: This provision is not applicable to the Southwest Gateway Agreement. 4 F. WaterSuooly Additional entitlements for urban development within the Project area (i.e., subdivision maps, parcel maps, building permits, etc.) shall not be granted for any dwellings within the Project area after total water use exceeds the projected safe groundwateryield of the Project area until additional water sources (e.g., W.I.D. groundwater recharge or water treatment or otherwise) are available. According to the Westside - Southwest Gateway Project Water Supply Assessment (July 2006) ("WSA"), a total of approximately347 acre feet per year for Southwest Gateway will be available for the Project upon its annexation 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 ensure that water use by the Project does not exceed the projected increase in safe groundwater yield attributable to annexation of the Project area into the City until additional water sources (e.g., W.I.D. groundwater recharge or water treatment or otherwise)are available. (See WSA, Figure 5-4.) G. Agricultural Conflicts: Developershall strive to phase development in a manner that will reduce land use conflicts with lands currently in agricultural use to the west of the Project. To the extent feasible, Developer will generally develop the Project in an east to west direction. H. Challenges: 1) No Challenge by Citizens/Cerner: This Agreement will not become effective in the event that Citizens and/or Ann Cemey: (1) file any legal action challenging the City's certification of the EIR; (2) file any legal action challenging the City's approval of the Project's land use approvals, including the amendments to the West Side Facilities Master Plan; (3)file any legal action challenging the San Joaquin Local Agency Formation Commission's compliance with CEQA; (4)file any legal action challenging the San Joaquin Local Agency Formation Commission's approval of the annexation of the territory to the City of Lodi; (5)qualify a referendum petition to require an election concerning one or more of the Project's legislative approvals, or (6)violate the terms or the spirit of this Agreement in any other manner. 2) Challenge by Third Party: a. The amendment to the Development Agreement called for in this Agreement will become partially ineffective as set forth below in the event that any other party: (1 files any legal action challenging the City's certification of the EIR; (2) files any legal action challenging the City's approval of the Project's land use approvals; (3)files any legal action challenging the San Joaquin Local Agency Formation Commission's compliance with CEQA; (4) files a legal action challenging the San Joaquin Local Agency Formation Commission's approval of the annexation of the territory to the City of Lodi; or, (5) qualifies a referendumpetition to require an election concerning one or more of the Project's legislative approvals. b. If an event triggers a partial invalidity as called for above, the 5 ratio of number of acres to be mitigated per Section 2.A. will be reduced by 50% and reimbursement of a portion of the fees paid to Citizens under this Agreement (see Paragraph 3C. below) shall be due from Citizens to Developer (within 60 days of its written notice to Citizens) in the amount of $7,600. Moreover, Citizens' statute of limitations to file an action challenging the City's certification of the EIR and/or land use approvals will be tolled for thirty (30) days from the limitations period established by CEOA City and Developer grant a second conditional and limited tolling of the statute of limitations to file an action challenging City's certification of the EIR. This conditional and limited tolling will only arise upon a legal challenge by a third party to tAFCO's determination on the EIR and/or annexation and Citizens' time to file an action shall extend for only thirty (30) days after the third party files its action. C. In the event that dismissals with prejudice are filed with any applicable Court before answers are filed in the third party litigation then Citizens will dismiss any subsequent actions and the terms ofthis Agreement shall be fully restored. 3. Miscellaneous. A. Ann Cemey, as the sole representative of Citizens, shall appear at all appropriate City Council hearings and express support for the approval of this Agreement, and non-oppositionto the City Council's approval of the Project and certification of the EIR. 6. Citizens represents and warrants that Ann Cerney has authority to execute this Agreement on behalf of Citizens and is authorized to speak on behalf of the organization at all Lodi City Council and other public meetings. C. Developer conditionally agrees to pay $40,000 to Citizens to reimburse Citizens for attorney fees expended in the negotiation and executing of this Agreement and to reimburse members of the Citizens for extraordinary time and effort expensed in this process. The distribution of the money shall be at the sole discretion of Citizens. The payment of these fees shall be due and payable thirty (30) days after the last day to take any of the actions described in Section 2.F.1). D. Ifthe public benefits included in this Agreement are not adopted by the City Council, Citizens' support for approval of this Agreement and non -opposition to the City Council's approval of the Projects and certification of the EIR will be withdrawn and its previously stated objections will be renewed. City and Developer agree not to assert an exhaustion of administrative remedies defense as to those issues specifically raised and exhausted at hearings regardingthe Project if litigation ensues and this agreement becomes null and void, or partially invalid, underthis Agreement. 4. Independent Effect: Effective Date of Agreement. Only Section 3.A and 3.6 of the Agreement shall be immediately effective and binding upon Citizens and Developer. The remainder of this Agreement shall only become effective upon the City Council approval of the amendmentto the draft Development Agreement that are described in Section 2 Notwithstanding any other provision herein to the contrary, 11 because of the nature of the mitigation measures set forth herein (e.g., ratio of 1:1 acres for agriculture mitigation), the parties agree that this Agreement shall be effective as stand- alone resolutions of their disputes as to this Project. 5. Agreement Notto Sue or Circulate a Referendum Petition. If the amendment to the Development Agreement called for in this Agreement are adopted by the City Council, Citizens agrees that neither it nor its individual members shall sue the City or the San Joaquin Local Agency Formation Commission over the sufficiency of the EIR or the land use/annexation decisions by these public agencies. Further neither Citizens nor its members shall encourage or give assistance to any others to challenge the Developer's Project either administratively or judicially. Moreover, neither Citizens, nor its members, will encourage, indirectly assist or actually circulate a petition to place a referendum on the ballotto force an election about the Project's legislative approvals. 6. Counterparts. This agreement may be executed in counterparts. r� Frontier Land Companies By: Tom Doucette, President City of Lodi Eii: Blair King, City Manager Citizens for Open Governm6ht By: Ann Cemey 7 EXHIBIT B AGREEMEM TO AMEND MSISIMIR DEVELOPMEW A MEMENT AND REFRAIN FROM CHALLENGING LAND USE PROJECT THIS AGREEMiz*T is made thb 41 day of December, 2007 by and between the City of t,odi (City), a Callfornis General I a w city. represented by the City Manager and Cly P,ttomey with the limited authority as described in Secdon 1.A; Citizens for Open ;overnmer!t, an unincprporated association {Chizens), and Frontlem Community Builders I[5eveloper) a dbe of Frontier Lend Companies. a California Corporation. The Parties agree Ts5 xO1tOWS� 'he City of Lodi; ("'City") is a General Low city governed by a five rnernber city council. c'or ail purposes herein end during alltimes duringthe negotlation of this Agreement the CNy 'tanager and CityAttorrtey have represented the City. However in this Agreement and at all vrnes during the negotiation of the Agreement the City Manager end/or City Attorney have lacked the capacity or legal authority to bind the City of Lodi and/or the City Council. The parties- understand thatthtodghtiut the negotiation and in executing this Agreement the City ".tanager and City Attprney can only recommend to the City Council that it take certain coons. All authority and discretion remains with the City Council over whether the City ZLncii will approve or disapprove of'this Agreement. The City Council is scheduled to hear :�% Project at a duty noticed public heating scheduled after February 1. 2007. Citizens Is an unincorporated association that has comrrleWd 6n th48 d061OPMU)t me posed by Developer. The "Project' referred to herein is as d d n e d in the Development Agreement to the "FCB Westside Project' with all Project Approvals described therein. 'Citizens desire to have cetiain mtttgetion measures and clarifications added to the >e:eiopmert Agreement negotiated between City and Developer that in the opinion cE �;i, zens wilt further the interest of the Cly end the interest of the public. if these i.,:,t ;ndments are addod to the drsfi Development Agreement in the form of this Agreement, o.rich shall ne an exhibit to the Development Agreements, then Citizens will support the Prc ieci will not make negative comments about the Project's EIR or the Project at any CRY ,ouncil or ocher public hearings, and will not subsequently challenge the certit7cation of The zip or the Project Approvals, directly or indirectly. Ann Cerneyshail bethe sole spokesperson c. r citizen: and make these statements at the City Council hearing. Deveioper, a pri�ate entity, is the applicant for the Development Agreements 6ho Project Approvals aescribed therein, The term "Developer" Includes all related entities of Deveioper end their sudcessors in Interest B. The partigs agree that the Development Agreements contain commitments for major intrastructure an# amenities that wilt resent in public benefits for the City. C, Afttxrugh Citizens are notfully satisfied with ell aspects of the Project and EiR, has balanced the benefits of the Project; including the changes to the draft Development ikgreements as set forth in this Agreement, against the adverse effects ofthe Projects and ti3s concluded met in Projects, separately or combined, ate subsUntiatly more beneficial ,o the City than detrim�tal. The parties agree that the draft. Development Agreement for the Project, scheduledto n e considered by the City Council at the public hearing after January 1, 2007ts to be hereby amended by and through this Agreement, which shall be attached to the Development Agmement as Exhibit'—,'. I Developer shall.ebtairr permanent easementsto be heldby the City or other qualified entity (e.g.., Central *ley Farmland Trust) limiting the use or San Joaquin County neat uxoperty to egrkwlturafi uses and relatediactivities as are permitted from time to time under the agricultural zoning laws of the County {"Agricultural Conservation Easements?. in providing mitigation fortmpact-st to agricultural land. Developershall adhere to the terms of the final adopted San Joaquin County Agricultural MfUgation Ordinance, now under ronsideration by the Sen losauln County Board of Supervisors. (See November 14, 2006 dreft Ordinance.) X At a minimum, and notwithstanding the terms of the final, adopted County Jraine.rive, t6v k&iedlt.t1r8l CUttSe!1090n �*WM&ttts shall be recorded on a 1:1 acre ,comsarved:developed ratio against an aggregate total e{ up to 152 acres, more Of IM, to-itairted wfthin FC8 WeVside Project involving one of more narcafs of land - though not necessarily contiguous - with each mitigation acro located within San Joaquin County and zonec for agricultural uses ('Protected Properties'). if mitigation lands are located in the Primary Zone of the Son Joaquin Delta that ties within the County, the mitigation ratio shall hr on a .2:2 acre ,conserved:developed) baft. However, if prior to the Developer's c,o,rpliance with this agricuhurei mitigation requirement, the San Joaquin Board of upervisors excludes land within certain areas of the Courtly (e.g., the Primary Zone of the :)enn `rom being used for agricultural mitigation purposes, the parties agree that those ser as would l,e excluded from being used for mitigation Purposes underthis Agreement. Ai s minimum, and notwithstanding th6 terms of the final. adopted County irarnance, the Agricultural Conservation Easements may cnly apply to Protected Properties tha: are not encumbered by (a) any other perpetual open space conservation easement or 7r'. PI dri ;,..y deed restriction ar (b) any other perpetual agriculture mitigation easement cr deed, restriction. The cost of obtaining the Agricultural Conservation Easementsshall rest with the Developer. The Protected Properties must be subject to permanent restrictions on use to ensure the avaiiabilit� of agricultural production capacity by llmking non-agricultural oeveioprnent that is inconsistent with -agriculture uses and related activities. In socordance with the County's No4ember 14, 2006, draft Mitigation Ordinance section 9-1080.3, _subdivision (e)(9,), the }Developer shall pay an administrative fee to cover tate costs of administering, monitoring and enforcing thefarmland conservation easement in an amount to be determined by the qualified entity that will hold the conservation easement. If the City -*Ws the Agricultural Conservation Easements, the City will monitor the Protected Properties ub'iect to the easeme rens biannuallythrough Its Planning Commission to ensure compliance Wit" the requirements of thls provision. If the City is selected to hold the Agricultural nhservabon Easements, Developer will pay City $5,000 to compensate the City for monitoring cost/contingenci89 In connection with the Agricultural Conservation Easements ,or the Wastside Project m4 � The Agricultural Conservation Easements shall be recorded In the applicable ratios) sgp`nsi A minimum of each acre to be developed (or more) within any phased Finsl subdivision Map of the,Project prior to the date the first residential buRding permit is issued tc Developer for any such phase thereof. '5; Cityshsll notify C;lifzens of which site(s)•ate selected to meet the requirements of this provision 30 days prior to the retardation of any AgdoUltural Conservation Easements plirsua'it to this Agreement if bath Citizor►s and the city agree, the mitigation ratio applicable tc mitigafiah lands outside of the Doke Primary Zone may be educed if the Deveiopet proposesto;obtaln conservation easements that, in ?hejudgment of both Citizens anc the City, have a greater mitlgatlon value than lands that could otherwise be used as rn+tgeiion for agricuttural impacts of the Projects underthis provision. s. Home 8ulldinu.'s=nersty and gonsgnogn Feeturft wftlp the Protect 3 Developer shall become a California Green Builder prior to the construction at harneS witYlift the Projo. The 9rllttumia GreenSullder pro$ram requires that all 9 are at least 15% moreensrgv efficient thatcurretftiy M00dat0d by Title 24 in ;.elltornia and meet guidelines for energy efflclency set but the USS EnvironmeMal Protection Agency. The homes within the Projecis ropy cor aln a verietY of energy efficient features sno afternstive energylfoatures such as logo efficient insulation, high performance windows, ,igl, efficient heating and cooling equipment, coot roofingradiant barriers, awnings, Overhangs aay lightingisnd qualf lied lighting. 2, DeveloPer's status as s Cellfomia Green Builder requires Developer to mpisment water conservation features that saves 20,000 gallons per home peryaw. ')eveloper shall provide frontyard tendscaping Wing weather based Irrigation controliere ana drip irrigation and may utilize other water conservation feetures such as high efficiency `fixtures and efficient plumbingtechnologies, products end materials. Developer also agrees tc ;se weather based irrigation contmilers In frontyerds, parks and common areas. 31 Developst shall make availablesolar powerfeatures and electrical car .:tiargirig stations or outlets that homeowners within the Projects may eleetto purchase as Dari of that homeowne>3s option package. 4 Developer agrees that at least 50% of the construction site waste shall be rer-w.led or otherwise diverted from landfill disposal. 5) Developer shall use only EPA approved natural gas fireplaces, fireplace inserts, woodstoves or pellet stoves when such fireplaces ane installed. Developerwill r;,n,ply with all federal, state and local laws and regulations pettainingto the installation of v+ooc bumingfireplaces, bj Developer will encourage landscape maintenance companies to use electdc- powered equipment 7: Shade trees will be planted where appropriate throughout the Project and +ocated to shade paved areas and to protect dwellings from energyconsumin;g environments? conditions - 6) Developer agrees to comply with the Californis Green Builder program thal �ppi;es to high density;rosidential units, Currently a pilot program exists that is substantially sirnlier to the low density program, with the exception of the 20.000 gallon per home per vt;ar in water conservaii-on. C New lfrba lam nie borhoo-dAesli. Developer beiltves that the Project's current land use plans promote the principles of %4ew Uroanisrn that include neighborhoods that are waik able, Worcormected, that include per�estri2n friendly strpetscapes, bicycle friendly design elements: well Integrated, highly visible, and publicly aGoos siibie open spaces. Developer is also committed to designingthe specific component` of the Projects to Include housing and structural forms that are visually fil:P,re,Stin& well modulated, Constructed of NO quality materials, proportionate to their ,;lrroundings, and a range of housing types, sixes and afferdublilty. D. Pfld,1�C Zren A and Bide illft#i!9 r+ otu Developer agrees to implement the ioilowtng measures: L) Provide pedestrian enhancing infrastructure that includes: sidewalks aro pedestrian paths, direct pedestrian conneetior►s„ street trees to shade sidewalks, pedestrian safety designs/infrastructure, street lighting and/or pedestrlimn signalixatiOn and �j nage, and 2) Provide bicycle -enhancing infrastructute that includes; bikeways/paths connecting to a bikewaysystem as well ss secure bike Pairking- 4 L t odl Esstside ' The Project's requirement for investment in todi's eastside immunity, as set forth in the FCB Westside Development Agreement Is hereby amended 1b require that any untts Which are selected by the Developer to be rehabilitated or replaced end which are currently at affordable rents for persons or families of low income shall remain, affordable for Persons oflow income, F,ydtr SuppbG A!ddttionai entitlements for urban development within the Project area subdivision maps, parcel maps, building permit's, etc.) shall not be granted for any dwellings within the Project eras after total water use exceeds the projected safe groundwater yield art the Project area until additional water sources (e.g.. W.I.D. groundwater recharge or water trOatment or otherwise) are available. According to the Westside - Southwest Gateway Project Water Supply Assessment (JUIy 2006) ("WSA`), a torsi of approximately 257 acre feet per year will be available for the Westside Project upon its annexation while the total projected water demand wr11 likely be in excess of that amount before full build -taut occurs. The purpose of this provision, then, is to ensure that water use oy ?heProjact does notexceed the projectedinerease In saf+egroundwateryield attributable o annexation of the Project area Into the City until additional water sources (e.g., W.I.D. ;yourowater recharge or water treatment or otherwise) are available. (See WSA, Figure 5-4.) G, Aarlcuit1= Conflicts: Developer shall strive to phase development in a manner that mil reduce land use conflicts with lands currently in agricultural vsE to the west cf the project. To the extent feasible, Developer will generally develop the Project In an east 10 west direction. H. Chalienees: 2) Lig ChWlaa sia bar Cltizens4Cer ev; This Agreement will not become effective in the event that Mons and/,Ot Ann Cerney. (2,01e any legal action challenging the city's certification mf the EER; (2) rile any legal action challenging the City's approval of the Project's land use approvals, including the amendments to the West Side Facithies Master Plan; (3) file any legal action challengingthe Sen Joaquin Tow' Agency Formation Dornmisslon's compiignee with CEQA; (d) file any legal action chailenging the San Joaquin oval Agency FortnatioR Carnmulon'5 appro>r131 of the onlimi ion of the territory to the CItY _odi; (5) quality a referendum petition to require an election concert rig one or more of me Project's legislative approvals, or (6pialete the terms or the spirit of this Agreement in any other menner. o111 dim, t, The amendmentto the Development Agreement called for in this Agreement will become partially ineffective as set forth glow in the event that any other party: ;!) files any legal actlon challenging the CI(y's certification cf the EiR; (2)files any legai action challenging the City's spMval of the Project's land U s e approvals; (3) files any lepai action challenging the San Joaquin Local Agency Formatlon Commission's complbnce wi-:IiCCQA, (4} files a legal action challenging the San Joaquin Local Agency Formation mac,emission's approval of the annexetion•of the territory to the City of Lodi: or, (5)qualifiesa reterendum petition to require an election concemingone cr more of the Project'slegislative 2i?j?rflVBIS, h it an eventtriggersa partial invalidity asaalled fat above, the atic rat number of acres to be mitigeted pet Section M will be reduced by 50% and -eitnaursement of a portion of the fees paid to Citizens under the Southwest Gateway Development Agreerriest dated November 15, 2006 (see Paragraph 3C. therein) shall ue- oue from Citizens to Devaloper (within 60days of its written notice to Citizens) in the arnourn $7.6100. , Moreover Otizens' statute of limitations to file an action challenging the City's rtffication of the EIR and/or land useapprovals will be tolled forthirty (30) days from the imitations period established by CEQA. City and Developer grant a second conditional and imiteci tolling of the statute of limitations to file an action chaitenging City's certification or the EIA. This conditional and limited tolling will only arise upon a legal challenge by a third cart: tc i�CC's determination on the EIR and/or annexation and Citizens' tune to file an action shall exi#nd fx only thirty (30)days after the third party flies its action, In the event that diamMals with prejudice are filed watt► anY 3prAcebie Court before answers are tiled in the third party 11119atlon theft Citizens will ::Lsmiss any subsecuent actions and thetsrms of this Agreement shall be fully ree ared, Misealieneo�, A Am Cerney, as the sole representative of Citizens, shad appear at all appropriate Ctty Council hearings and express support for the approval cf this Agteerttetnt, and non -opposition to the City Council'sapproval of the Project and certification of the OR, E. Citizens represents and warrants that Ann Cemey has authority to execute this Agreemem on behalf of Citizens and is authorized to Oesk on behalf of the otganization zt ail Lodl City Council±and other public meetings. C. Developer has previously ispreed to conditionally pay $40,000to Citizerm as relrllbursement to Citizens for attorney fees expended IIP the negotlation and executing of an a mendment t o the Southwest Gateway Development Agreement Siong the same lines as set above,'herefore, the parties further agreethat Developer owes nn Additl2n l amounts TCS reimburse members of the Citizens for any time and effort expensed in the process of amending the Westside DevelopmentAgreement D, If the public benefits included In this Agreement ate not adopted by the City Council, Citizens' support for approval of this Agreement and no"ppostUan to the City otmcll's approval of the Projects and csrtification of the EIR Will be Withdmwn and its ryreriousy :stated objections will be renewed. City and Developer agree not to assert an exhaustion of administrative remedies defense as to those Issues specifically raised and exhausted at hearing regardingthe Project if iitigation ensues and this agreement becomes nu ; and void, or partially invalid, under this Agreement 'tris Agreement:shall be immediately effaotive end binding upon Citizens and Developer, but subject to termination by condition subsequent should the Lodi Citic Council rol rattly this Agreement at the time of its public hearing on the FCB Westlake Project scheduled after February 1, 2007. The remainder of this Agreement shelf only become effective upon the City Council approval of the amendment to the draft Development Agreement that ate described in Section 2. Notwithstanding any otter provision herein to t h e contrary, because of the nature of the MfUgstion measures set fal'th herein (e.g., rano of 11 acres for agrIcuhure rrritigation), the parties agree that this Agreement shell be effective as stand -alma rssoiuUons of their dispul esae to this Project of the amendm4ra to the Development Agr6ement called for in thii Agreement are adopted by the City Council. Oftens agrees khat neither It nor Its individual members shall ; sje the City or the San'Josquin local Agency Formation COtnmieslon over the sufficiency of the MR cr the lend use/einnexation decisions by these public agencies. fin-ther neither rtizens nor U members shall enoourage or give assistance to any others to challenge the Developer's Project either admInfstretive.ly or judicfely. Moreover, neither Citizens. nor its �(emtwrs, will encourage, Indirectly sasfst or actually circulate a petition to place a •eferendurn on the ballot to force en election eboutthe Project's fegisiative approvals. This agreement, may be executed In counterparts. r, I Frontier Ls L`ompsrqes SY:'Trto-rn� Doucette, President City of Lodi ✓ By. $lair King, City MU 3te er Citimrts for Open Government or 8y: Ann Cerney DECLARATION OF POSTING CONTINUED PUBLIC HEARINGTO CONSIDER TERMINATION OF SOUTHWEST GATEWAY AND WESTSIDE PROJECT DEVELOPMENTAGREEMENTS WITH FRONTIER COMMUNITY BUILDERS, INC. On Thursday, August 2, 2012, in the City of Lodi, San Joaquin County, California, a Continued Public Hearing Notice to consider termination of Southwest Gateway and Westside Project Development Agreements with Frontier Community Builders, Inc. (attached and marked as Exhibit A) was posted at the following locations: Lodi Public Library Lodi City Clerk's Office Lodi City Hall Lobby Lodi Carnegie Forum declare under penalty of perjurythat the foregoing is true and correct. Executed on August 2, 2012, at Lodi, California. NIFERW. ROBISON, CMC ASSISTANT CITY CLERK N:\Administration\CLERK\Forms\DECPOSTCM.DOC ORDERED BY: RANDIJOHL CITY CLERK MARIA BECERRA ADMINISTRATIVE CLERK • CITY OF LODI Carnegie Forum 305 West Pine Street, Lodi Date: August 15,2012 Time: 7:00 p.m. For information regarding this notice please contact: Rand! Johl City Clerk Telephone: (209) 333-6702 NOTICE OF CONTINUED PUBLIC HEARIN( .. ............ E X, NOTICE IS HEREBY GIVEN that on Wednesday, August 15, 2012, at the hour of 7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will conduct a public hearing at the Carnegie Forum, 305 West Pine Street, Lodi, to consider the following item: a) Termination of Southwest Gateway and Westside Project Development Agreements with Frontier Community Builders, Inc. Information regarding this item may be obtained in the City Manager's Office, 221 West Pine Street, Lodi, (209) 333-6700. All interested persons are invited to present their views and comments on this matter. Written statements may be filed with the City Clerk, City Hall, 221 West Pine Street, 2nd Floor, Lodi, 95240, at any time prior to the hearing scheduled herein, and oral statements may be made at said hearing. If you challenge the subject matter in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to the close of the public hearing. B rder of the Lodi City Council: ia!ndi Johl City Clerk Dated: August 1,2012 Approved as to form: r-- D. Stephen Schwabauer City Attorney CLERKIPUSHEARINOTICESINOTCM DOC 811112 Please immediately confirm receipt cf this fax by calling 333-6702 CITY CF LODI P. O. BOX 3006 LODI, CALIFORNIA 95241-1910 SUBJECT: PUBLIC HEARING TO CONSIDER TERMINATION OF SOUTHWEST GATEWAY AND WESTSIDE PROJECT DEVELOPMENT AGREEMENTS WITH FRONTIER COMMUNITY BUILDERS, INC. PUBLISH DATE: SATURDAY, JUNE 30,2012 TEAR SHEETS WANTED: Three M Mease SEND AFFIDAVIT AND BILL TO: RANDI JOHL, CITY CLERK LNS ACCT. #0510052 City of Lodi P.O. Box 3006 Lodi, CA 95241-1910 DATED: TUESDAY, JUNE 26,2012 ORDERED BY: JMNIFER M. ROBISON, CMC— ASSISTANT CITY CLERK. RANDIJOHL CITY CLERK MARIA BECERRA ADMINISTRATIVE CLERK Verify Appearance of this Legal in the Newspaper — Copy to Fiie fonnAadvins.doo DECLARATION OF POSTING PUBLIC HEARING TO CONSIDER TERMINATION OF SOUTHWEST GATEWAYAND WESTSIDE PROJECT DEVELOPMENTAGREEMENTS WITH FRONTIER COMMUNITY BUILDERS, INC. On Tuesday, June 26, 2012, in the City of Lodi, San Joaquin County, California, a Public Hearing Notice to consider termination of Southwest Gateway and Westside Project Development Agreements with Frontier Community Builders, Inc. (attached and marked as ExhibitA) was posted at the following locations: Lodi Public Library Lodi City Clerk's Office Lodi City Hall Lobby Lodi Carnegie Forum declare under penalty of perjury that the foregoing is true and correct. Executed on June 26, 2012, at Lodi,. California. JF,NNIFERLM. ROB.ISON, CMC ASSISTANT CITY CLERK N:\Administration\CLERK\Forms\DECPOSTCM.DOC ORDERED BY: RANDIJOHL CITY CLERK MARIA BECERRA ADMINISTRATIVE CLERK i DECLARATION . • C�l{� �Q ��FOF�� PUBLIC HEARING TO CONSIDER TERMINATION OF SOUTHWEST GATEWAYAND WESTSIDE PROJECT DEVELOPMENT AGREEMENTS WITH FRONTIER COMMUNITY BUILDERS, INC. On I 1 e ity of Lodi, San Joaquin County, California, I deposited in the United States mail envelopes with first-class postage prepaid thereon containing a Notice of Public Hearing to consider termination of Southwest Gateway and Westside Project Development Agreements with Frontier Community Builders, Inc., attached hereto marked Exhibit A. The mailing listfor said matteris attached hereto marked Exhibit B. There is a regular daily communication by mail between the City of Lodi, California, and the places to which said envelopes were addressed. declare under penalty cf perjurythatthe foregoing is true and correct. Executed on\r$,i 'Codati, Cemalifornia. Jt NNIFERV'A. ROBISON, CMC ASSISTANT CITY CLERK N,\Administration\CLERK\Fonns\DECMAILCM.DOC ORDEREDBY: RANDIJOHL CITY CLERK, CITY OF LODI MARIA BECERRA ADMINISTRATIVE CLERK CITY OF LODI Date: August 1,2012 Carnegie Forum • 'Cie305 West Pine Street, Lodi Time: 7:00 p.m. For information regarding this notice please contact: Rand! Johlf �' City Clerk EXHib-U- Telephone: (209) 333-6702 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that on Wednesday, August 1, 2012, at the hour of 7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will conduct a public hearing at the Carnegie Forum, 305 West Pine Street, Lodi, to consider the following item: a) Termination of Southwest Gateway and Westside Project Development Agreements with Frontier Community Builders, Inc. Information regarding this item may be obtained in the City Manager's Office, 221 West Pine Street, Lodi, (209) 333-6700. All interested persons are invited to present their views and comments on this matter. Written statements may be filed with the City Clerk, City Hall, 221 West Pine Street,'2"" Floor, Lodi, 95240, at any time prior to the hearing scheduled herein, and oral statements may be made at said hearing. If you challenge the subject matter in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City Clerk, 221 West Pine Street, at or prior to the close of the public hearing. By Order of the Lodi City Council: 41 — Ra �P City Clerk Dated: June 20,2012 proved as to form: D. Stephen Schwabauer City Attorney CIERKIPUSHEARWOTICESWOTOM.000 6125/12 PH Mailing List for Southwest Gateway Development Agreement Termination Page 1 of 5 OWNER OWNER OWNER APN OWNER NAME CARE OF OWNER STREET OWNER CITY STATE ZIPS ZIP4 MAXINE CHRISTESEN MAXINE, 2703012 FAMILY LP CHRIST.ESEN 179 E TAYLOR RD LODI CA 95242 0 2705015 DOLLINGER, DAVID L 101 E HWY 12 LODI CA 95240 0 BROWN, BOB K & JUDITH E 2705016 TR 35 E HWY 12 LODI CA 95242 0 DOLLINGER, LEROY L & 2705018 GLADYS D 101 E HWY 12 LODI CA 95242 0 HEDRICK, LAMAR A& 2705019 IJOANN A TR 209 E HWY 12 LODI CA 952421 0. HEDRICK, LAMAR A & 2705020 JOANN A TR 209 E HWY 12 LODI CA 95242 0 1139 E KETTLEMAN LN 2705021 GEWEKE FAMILY LTD PTP SUITE 200 LODI CA 95240 6427 2742001. GEWEKE VIH LP PO BOX 1420 LODI CA 95241 0 5802005 IVAN RUITEN RANCH LP PO BOX 520 WOODBRIDGE CA 95258 0 5802013 VAN RUITEN RANCH LP PO BOX 520 WOODBRIDGE CA 95258 0 5802018 EHLERS, VIOLET TR ETAL 530 S MILLS AVE LODI CA 95242 3428 10100 TRINITY PKWY STE 5803004 LODI LSR PROPERTIES LLC 420 STOCKTON CA 95219 7241 HOWARD INVESTMENTS 2522 GRAND CANAL BLVD 5803006 ILLC ETAL MATTEUCCI STE 15 STOCKTON CA 95207 8213 REICHMUTH, ANDREW.T VICTORIA L BOCK 5803009 ETAL TR 424 DAISY AVE LODI CA 95240 1010 5803010 LODI CITY OF CITY CLERK PO BOX 3006 LODI CA 95241 1910 BROWMAN DEVELOPMENT 5803011 BDC LODI III LP COMPANY 100 SWAN WAY SUITE 206 OAKLAND CA 94621 1459 WAL MART REAL EST RE PROPERTY TAX 5803012 BUSINESS TRU DEPT MAIL STOP 0555 BENT;ONVILLE AR 72716 555 BROWMAN 5803013 BDC LODI 111 LP DEVELOPMENT CO 100 SWAN WAY STE 206 OAKLAND CA 94621 0 5803014 IVAN RUITEN RANCH LP 463 W TURNER RD LODI CA 95242 9642 5803015. IVAN RUITEN RANCH LP PO BOX 520 IWOODBRIDGE ICA 95258 0 Page 1 of 5 PH Mailing List for Southwest Gateway DevelopmentAgreement Termination Page 2 of 5 10100 TRINITY PKWY STE 5803016 LODI LSR PROPERTIES LLC 420 STOCKTON CA 95219 7241 5803017 VAN RUITEN RANCH LP PO BOX 520 WOODBRIDGE CA 95258 0 5803018 VAN RUITEN RANCH LP PO BOX 520 WOODBRIDGE CA 95258 0 SCHUMACHER, WELDON & 5804001 BONNIE TR 1303 RIVERGATE DR LODI CA 95240 549 SCHUMACHER, WELDON & 5804002 BONNIE TR 1303 RIVERGATE DR LODI CA 95240 549 SCHUMACHER, WELDON & 5804004 BONNIE TR 1303 RIVERGATE DR LODI CA 95240 549 SCHUMACHER; WELDON & 5804005 BONNIE TR 1303 RIVERGATE DR LODI CA 95240 549 5804006 RIEGER, EARL & NAOMI 395 E HARNEY LN LODI CA 95242 0 5804007 WELLS, LARRY D & D R 427 E HARNEY LN LODI CA 95240 6832 5804008 DIETRICH, NORENE 463 E HARNEY LN LODI CA 95240 0 5804009 MASTEL, PHYLLIS TR 499 E HARNEY LN LODI CA 95240 0 5804010 ALVAREZ, JOE L ETAL 533 E HARNEY LN LODI CA 95242 0 PtNNELL, ROBERT S & 5804011 LETHA J PO BOX 155 VICTOR CA 95253 155 5804012 HALL, FRANK 2613 W HARNEY LN LODI CA 952421 9570 10100 TRINITY PKWY STE 5804013 W L INVESTORS LP 420 STOCKTON CA 95219 7241 5804014 TAMURA, JOEY TR 788 W ARMSTRONG RD LODI CA 95242 9544 5804015 VAN RUITEN, ROBERT TR PO BOX 548 WOODBRIDGE CA 95258 0 5805001 BRADEN, RONALD B & A 36 E HARNEY LN LODI CA 95240 0 BECERRA, VALENTIN & 5805002 ELVIRA 102 E HARNEY LN LODI CA 95242 0 5805003 BADYAL, JASBIR ETAL 184 E HARNEY LN LODI CA 95242 9503 5807007 HAYN, BRIAN S 810 E HARNEY LN LODI CA 95242:9534 5807008 BELL, LYNDLE A TR 814 E HARNEY LN LODI CA 95242 0 13420 SHATTUCK TRACT 5807010 PANGS, PETE- N & PENNY TR RD LODI CA 95242 0 5808022 FUNAMURA, GARY M TR PO BOX 255824 SACRAMENTO CA 95865 5824 ARMSTRONG, THOMAS & 0 5808020 RACHEL 582 SPRINGER LN LODI CA 95240 5808017 CHAMPLIN, THERESA A '_ 13401 N EXTENSION RD 1590 LODI 1CA 95242 9249 5808018 COOK, MARK T SPRINGER LN LODI ICA 95240 0 Page 2 of 5 PH Mailing List for Southwest Gateway Development Agreement Termination Page 3 of 5 HAKALA, HARRY & 5808016 MICHELLE L TR 13421 EXTENSION CT LODI CA 95242 0 5808005 HAGELIE, BERDEAN TR 501 SPRINGER LN LODI CA 95242 9224 5808007 HUCKINS, RAYS 527 SPRINGER LN LODI CA 95242 9224 RODRIGUEZ, SERGIO & 5808014 MARIA A 13447 N LOWER SAC RD LODI CA 1 95242 0 5808015 IBYRUM, PHYLLIS S LF EST. 598 SPRINGER LN LODI CA 95242 9224 KIRSCHENMAN, JOHN & 13145 N LOWER 5808008 RHONDA SACRAMENTO RD LODI CA 95242 9284 5808010 DYAS, JASON L 569 SPRINGER LN LODI CA 95242 0 5807005 WILLIAMS, BARBARA L TR 692 E HARNEY LN LODI CA 95242 9588 HERNANDEZ, STEVEN & 5807004 MICHELLE L 668 E HARNEY LN LODI CA 95240 0 5807003 GEIST, CLIFFORD & M D 650 W HARNEY LANE LODI CA 95240 0 5808013 SANCHEZ, LUIS & ANGELA 634 E HARNEY LN LODI CA 95242 9588 CHRISTOPHERSON, 5808012 EDWARD & CASSA 29 N ALLEN DR LODI CA 95242 2808 5808011 DAIS, KATHLEEN C TR 270 E THIRD AVE CHICO CA 95926 0 GATES, DAVID L &BETTY L 5808009 TR 540 E HARNEY LN LODI CA 95242 0 QUEZADA, JAVIER & MARIA 5808006 TERESA 502 E HARNEY LN LODI CA 95242 0 GRELLE, JERRY B & 5808004 CATHRYN B 490 E HARNEY LN LODI CA 95242 0 5807001 RICE, LESLEY M 13480 N -EXTENSION RD LODI CA 95242 9249 LODI UNIFIED, SCHOOL 5805005 DIST 0 0 URIZ, FAUSTINO & MARIA C 5805004 TR 202 E HARNEY LN LODI CA 95240 0 HERRMANN, CHARLENE K 5814006 TR ETAL 330 S FAIRMONT AVE #3 LODI CA 95240 3843 DEL RIO, SANTIAGO M & 5814007 RAMONA T 15315 N HOERL RD LODI CA 95240 9493 581401.2 PETERSON, M BILL PO BOX 473 LOCKEFORD CA 95237 0 PETERSON, RUTH SUSAN 5814014 TR PO BOX 331 SUTTER CREEK CA 95685 0 5814051 LODI CITY OF PO BOX 3006 ILODI ICA 95241 0 Page 3 of 5 PH Mailing List for Southwest Gateway DevelopmentAgreement Termination 5814052 PETERSON, M BILL PO BOX 473 LOCKEFORD CA 95237 0 MARTIN, JOHN L & MARILYN 5822001 ATR 791 KRISTEN CT LODI CA 95242 9554 VAUGHN, FREDDIE L & 5822002 KHRISTINA 805 KRISTEN CT LODI CA 95242 0 5822003 ROSEN, MARTY & KIM[ 833 KRISTEN CT LODI CA 95242 9554 LANGWORTHY, ELMER D & 5822011 S M 13710 HARTLEY LN LODI CA 95240 0 LEAR, WOODBURN L & 5822012 CLAIRE L TR - 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PERLEGOS, GEORGIA PO BOX 1823 LODI CA 95241 0 PERGERSON, MATTHEW T 2950019 & GINA E 2640 PARADISE DR LODI CA' 95242 0 2950018 WOODS, STEVEN P & DENISE L 12646 PARADISE DR LODI CA 95242 8327 Page 3 of 10 PH Mailing ListforWestside Development Agreement Termination 2950017 HURST, SHARON D TR 2652 PARADISE DR LODI CA 95242 0 MILLER, JAMES D JR & 2950007 LARELLE L 2658 PARADISE DR LODI CA 95242 0 MARTINEZ, ERASMOJR & 2950006 ELAINA L 2664 PARADISE DR LODI CA 95242 8327 2950005 LUNDQUJST, JOAN TR 2670 PARADISE DR LODI CA 95242 8327 DHALIWAL, JASBIR & 2950009 HARBINDER T 2647 PARADISE DR LODI CA 95242 8327 NORTON, RONALD G & 2950004 INAOMIJOYCE 2676 PARADISE DR LODI CA 95242 0 BRUNO, JEFFERY P& 2950010 KATHLEEN M 2655 PARADISE DR LODI CA 95242 0 WATSON, STEVEN D & ITT 2950003 M 2682 PARADISE DR LODI CA 95242 0 2950011 BALL, DOUGLAS 2661 PARADISE DR LODI CA 95242 0 12950002 UYEMURA, DELMERT & JULIE K 2688 PARADISE DR LODI CA 95242 8327 2950012 ITTY MIKEW &JILL M 2667 PARADISE DR LODI CA 95242 0 ROJAS, RICHARD M & 2950001 GAYLE A TR 2695 PARADISE DR LODI CA 95242 8327 MAYERS, FREDERICK R TR 2950013 ETAL 2673 PARADISE DR LODI CA 95242 0 CURL, JASON &JENNIFER 2949022 1K 2704 PARADISE DR LODI CA 95242 8306 DAVIS, ROGER E & 2950014 PATRICIAA TR 2679 PARADISE DR LODI CA 95242 8327 CRANFORD, STEVE P & 2949021 LISA C 2712 PARADISE DR LODI CA 95242 8306 2950015 LEWIS, MARTRA E 935INTE LA 5 HEBERLE, FREDERICKJ & 2720 PARADISE DR LODI CA 95242 830 S, WILLIAM D & JANICE 2950016 J 2691 PARADISE DR LODI CA 9524 DEMPSEY, LLOYD B & 2949019 MARCIA M TR 2728 PARADISE DR LODI CA 95242 830 MCMILLEN, LARRY K& 2715 PARADISE DR LODI CA 95244 8306 Page 4 of 10 PH Mailing ListforWestside DevelopmentAgreement Termination 2949018 CHRISTENSEN, ANDERS & JOAN 2804 PARADISE DR LODI CA 95242 0 2949017 MACBETH, KATHY L 2812 PARADISE DR LODI CA 95242 0 2949024 MAGDANZ, KENNETH G SR & NAOMI 4 EVERGREEN DR LODI CA 95242 8307 2949016 1 KESSLER, JOAN M TR 2820 PARADISE DR LODI CA 95242 8330 2949015 1 BUTORAC, JOHN P TR 2828 PARADISE DR LODI CA 95242 0 2949004 ARCHULETA, JORDAN A 2811 PARADISE DR LODI CA 95242 0 2949014 STURMAN, JOSHUA J & LAUREN M 2836 PARADISE DR LODI CA 952421 8330 2949013 HALL, LYNN ETR ETAL 2844 PARADISE DR LODI CA 952421 8330 2949012 HERRICK, BRADLEY & BEVERLY F 2852 PARADISE DR LODI CA 95242 0 2949011 PEARSON, SUSAN P TR 2860 PARADISE DR LODI CA 95242 8330 2949005 SHEPARD, ROBERT L JR & ANGELA 2819 PARADISE DR LODI CA 95242 8330 2949006 JACKSON, KENNETH L & MARYLTR 8235 BELLAVINA LODI CA 95240 9534 2949007 REITZ, MICHAEL DONALD& DIANA 2833 PARADISE DR LODI CA 95242 8330 2949010 GATSCHET, TIMOTHYW & IDONNALE 2868 PARADISE DR LODI CA 95242 8330 2949008 CRIVELLI, STEVEN &JULIE A 2841 PARADISE DR LODI CA 95242 0 2949009 BATCH, ROBERT I I TR 2952 APPLEWOOD DR LODI CA 95242 8318 2932001 DOLLINGER, VIOLA TR 2537 CENTRAL PARK DR LODI CA 95242 3211 2932002 GRIFFANTI. NANCY L TR 2541 CENTRAL PARK DR LODI CA 95242 3211 2932003 WESTERBACK, EDWIN & DENT ETR 2545 CENTRAL PARK DR LODI CA 95242 3211 2932004 MCFARLAND, JAMES R& FLNA 2549 CENTRAL PARK DR LODI CA 9524e 3211 2932005 UPDEGRAFT, BARBARA D TR ETAL 2553 CENTRAL PARK DR LODI CA 95242 0 2932006 WRIGHT, JOAN F 2557 CENTRAL PARK DRI LODI CA 9524e 321 Page 5 cf 10 PH Mailing List for Westside DevelopmentAgreement Termination 2932007 BARTHOLOMEW, ESTHER L TR ETAL 2561 CENTRAL PARK DR LODI CA 95242 3211 2932008 ROSEBERRY, CAROL R TR 2565 CENTRAL PARK DR LODI CA 95242 0 2932009 ITR MCMAHON, MARY ELLEN 2569 CENTRAL PARK DR LODI CA 952421 0 2932010 CAVEY, NOLAND B & SANDRAJ TR 8079 CARIBBEAN WAY SACRAMENTO CA 95826 0 2932011 BONNER, CHERYL 2577 CENTRAL PARK DR LODI CA 95242 3211. 2932012 BENTZ, BEVERLYTR ETAL 2581 CENTRAL PARK DR LODI CA 95242 0 2932013 MORIWAKI, SUGAANN 2585 CENTRAL PARK DR LODI CA 95242 0 2932014 GARIBALDI, WILMA J TR 2589 CENTRAL PARK DR LODI CA 95242 0 2932015 FIELD, MARILYN E TR 624 PALM AVE LODI CA 95240 920 2932016 MCINTOSH, MARGARET R TR 2339 HYDE PARK CIR LODI CA 95242 3249 2932017 PARKIN, PATRICIA LEA 2343 HYDE PARK CIR LODI CA 95240 0 2932018 COONEY LOLA M TR 2347 W HYDE PARK CIR LODI CA 95242 0 2932019 WHITE WARNER & DONNA 5185 CONGRESSIONAL ST CHOWCHILLA CA 93610 8402 2932020 GRANT, JAMES R III & KATHRYN 2355 HYDE PARK CIR LODI CA 95242 3249 2932021 PARK CHUNIL & SOONJA 1316 BONITAAVE #6 BERKELEY CA 94709 1965 9939099 LEONARD, BARBARAJEAN TR 2363 HYDE PARK CIR LODI CA 95242 3249 9939093 MACOMBER, ROY C & ADELAIDE TR 2367 HYDE PARK CIR LODI CA 95242 324 (ONPTU _O2932024 LEWISSAVRST PO BOX 201014 i5TQQKTQN CA 95201 0 2932025 THOMAS'STEV EN 7 2375 _ _ CA 95242 3251 SWEENEY, -JAMES M TR 2932025 ETAL 1930 EDGEWOOD DR LODI CA 95242 2305 Page 6 of 10 PH Mailing List for Westside DevelopmentAgreement Termination 2932027 IDURHAM, JUDITH J TR 2383 HYDE PARK CIR LODI CA 95242 0 2932028 FARRELL, COLETTE L TR 2330 MEDALLION WAY LODI CA 95242 4749 STARRICK, RAYMOND& 2932029 EUSTOLIA 2388 HYDE PARK CIR LODI CA 95242 3250 2932030 SEIBEL, DONALD J TR 2384 HYDE PARK CIR LODI CA 95242 3250 2932031 SWEIGARD, VIRGINIAI TR 2376 HYDE PARK CIR LODI CA 95242 3250 WALKER, STEPHEN U & 2932032 JUDY ANN T 2348 HYDE PARK CIR LODI CA 95242 0 2932033 JEUSTIS, MARY JO 2342 HYDE PARK CIR LODI CA 95242 3239 2932034 1 MCLEAN, MARGARET C TR 2338 HYDE PARK CIR LODI CA 95242 3239 2932035 PARKISON, MARJORIELTR 2334 HYDE PARK CIR LODI CA' 95242 0 208 GRAMERCY PARK 2932036 SCHMIDT, WALTER TR JEAN SCHMIDT DR LODI CA 95242 3254 204 GRAMERCY PARK 2932037 REISS, W & C COTRS ETL DR LODI CA 95242 0 200 GRAMERCY PARK 2932038 MITCHELL, CHERYL RTR DR LODI CA 95242 0 MICHAEL JOHN & 2932039 HUGO, JERRY ETAL KATHERINE HUGO 166LINDHOLM LN BAYSIDE CA 95524 0 2491 MACARTHUR 2932040 BUNNELL DOLORESATR PKWY LODI CA 95242 0 ROSENAU, LELAND A& D 2932041 ARLENE R 15625 N DAVIS RD LODI CA 95242 0 2483 MACARTHUR 2932042 SWOFFORD, DIANE PKWY LODI CA 95242 3253 SMITH, DONALD R & LILA F 2479 MACARTHUR 2932043 TR PKWY LODI CA 95242 0 KATHLEEN 2475 MACARTHUR 2932044 SHERIDAN KATHLEEN M THOMPSON PKWY LODI CA 95242 0 DEMSKI, STANLEY LTR 2471 MACARTHUR 2932045 ETAL PKWY LODI CA 95242 0 BOSSALLER, ANDREW P & 2467 MACARTHUR KIMM PKWY LODI CA 95242 325 2463 MACARTHUR 12932047 ORGON. ARNA TR I I PKWY I LODI I CA 9524 325 Page 7 of 10 PH Mailing List fcr Westside DevelopmentAgreement Termination 1 KUEHNE, LLOYD D TR 2459 MACARTHUR 2932048 ETAL PKWY LODI CA 95242 0 MCINTOSH, GREGORY 12932049 JAMES & LORI I PO BOX 414 PACIFICPALISAD CA 90272 0 2451 MACARTHUR 2932050 PAIGE, JAMES M PKWY LODI QIA 95242 1290 FORE, MILLARD L & NORMA 2447 MACARTHUR 2932051 J TR PKVv'Y LODI CA 95242 0 GLENN, JERRY L & SUSAN 2443 MACARTHUR 2932052 Y PARKWAY LODI CA 95242 0 ,222ECARRILLO ST STE 2932053 FELL, DOUGLAS E TR 400 ISANTA BARBARA ICA0 GABRIELSON, CURTIS G & 2435 MACARTHUR 2932054 BEVERLY HONEY, RAYMOND L& 2431 MACARTHUR 2932055 JANET K .PKWY LODI CA 95242 3252 ROBINSON, DEAN N & 2932056 JANET F TR 1114 HEIDELBERG WAY LODI CA 95242 9142 2932057 SALISBURY, STACEYTR 1324DEERFIELD CT I= CA 95242 4537 ANDERSON, DONALD K& 2932058 LORETTAS 725FAIRVI EW BLVD#17 INCLINEVILLAGE NV 89451 0 DANIELS, VIRGINIA TR 2932059 ETAL 2406 CENTRAL PARK DR LODI CA 95242 3205 2932060 GROVE BARBARAW TR 2410 CENTRAL PARK DR LODI CA 95242 3205 2932061 YACOPETTI, MARJORIEJ PO BOX 2152 LODI CA 95241 2152 2932062 APPLING DONALD RTR PO BOX 1555 WOODBRIDGE CA 95258 0 HARO, SAL JAMES TR & 2932063 EMILY M T 2401 CENTRAL PARK DR LODI CA 95242 3206 FORNEY, CHARLES A & 2932064 MAWS B TR 2397 CENTRAL PARK DR LODI CA 95242 0 2932065 HANDEL LEON E TR ETAL 10155E KETTLEMAN LN WDI CA 95240 0 SCHULENBURG,ROBERT 2932066 W TR 15740 MOORE RD LODI CA 95242 9262 KERNER, MARLO L & HAZE 2932067 M 2430 CENTRAL PARK DR LODI CA 95242 320 Page 8 of 10 PH Mailing ListforWestside DevelopmentAgreement Termination 2932068 BAUSERMAN, GEORGE L & CAROLK 2434 CENTRAL PARK DR LODI CA 95242 3205 2932069 KRONEMANN, LINDA L TR 2438 CENTRAL PARK DR LODI CA 95242 3205 2932070 1 HUKILL, ANNETTE M TR GEORGE S CHALMERS 1234 HEARTWOOD DR ROHNERT PARK CA 94928 0 2932071 PHILLIPS, LESLIE TR HERMANOTTER REV TRUST 2446 CENTRAL PARK DR LODI CA 95242 3205 2932072 WILLIAMS, ELIZABETHN TR ETAL PO BOX 1064 WOODBRIDGE CA 95258 0 2932073 1 EMLER, LYDIA M TR 2462 CENTRAL PARK DR LODI CA 95242 3207 2932074 THOMASON, BOB M & DONNA D TR 2466 CENTRAL PARK DR LODI CA 95242 0 2932075 MERRILL, H LTR 2470 CENTRAL PARK DR LODI CA 95242 0 2932076 MOREHEAD SKIP R ETAL 2474 CENTRAL PARK DR LODI CA 95242 3207 2932077 BLAUFUS, JOHN L& LAURI M 2478 CENTRAL PARK DR LODI CA 95242 3207 2932078 ARMKNECHT JANETTE TR 5595 SAN ANTONIO ST PLEASANTON CA 94566 0 2932079 DUNCAN, HAROLD W & NONA E TR 2486 CENTRAL PARK DR LODI CA 95242 0 2932080 EWOLDT, DONALD D & ETHEL L 2490 CENTRAL PARK DR LODI CA 95242 3209 2932081 BEWLEY, JOSEPH & MONIQUE 2494 CENTRAL PARK DR LODI CA 95242 3209 2932082 SOLARI, ANNETTA M TR ETAL 2498 CENTRAL PARK DR LODI CA 95242 0 2932083 CONN JANET L .TR PO BOX 738 LODI CA 95241 2932084 POLLARD, ROBERTE & CORINNE C 2485 CENTRAL PARK DR LODI CA 95242 320 2932085 GARVEY, SHARON A TR 2481 CENTRAL PARK DR LODI CA 95242 320 PEABODY, DERRIL E& 2477 CENTRAL PARK DP4LODI I CA 95244 320 Page 9 of 10 PH Mailing List for Westside DevelopmentAgreement Termination SYLVIA L SWIFT 2932087 ISWIFT. SYLVIALTR IFAMILYTRUST (PCBOX 1977 IMINDEN INV 894231 0 2932088 HOPE, BETTY L TR 2469'CENTRAL PARK DR LODI CA 95242 3208 KING, NORMAN D & 2932089 LAQUITA J TR 2465 CENTRAL PARK DR LODI CA 95242 0 BRUSA, SELDON C & 2932090 ELIZABETHTR 2461 CENTRAL PARK DR LODI CA 95242 3208 PARKVIEW TERRACE 12346 2932091 HOMEOWNERASS CENTRAL PARK DR LODI I CA 1 95242 0 Page 10 cf 10