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2010/07/22 Planning Commission Resolution (7)PLANNING COMMISSION RESOLUTION NO. 2010-23 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROHNERT PARK, CALIFORNIA, RECOMMENDING APPROVAL OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ROHNERT PARK, SONOMA MOUNTAIN VILLAGE, LLC/CODDING ENTERPRISES, L.P. FOR DEVELOPMENT OF THE PROPERTY LOCATED AT VALLEY HOUSE DRIVE AND BODWAY PARKWAY (APN'S 46-051040, 46-051-042, and 46-051-045) IN ROHNERT PARK, CA WHEREAS, Government Code § 65864, et seq., authorizes the City of Rohnert Park to enter into development agreements which will provide certainty, definition and commitment to developers as well as to necessary public improvements required by development; WHEREAS, Sonoma Mountain Village, LLC/Codding Enterprises (collectively, "Developer") submitted applications to the City of Rohnert Park for a General Plan Amendment, Planned Development (including related Conditional Use Permit), and rezoning for real property located at Valley 1 -louse Drive and Bodway Parkway (APN'S 46-051-040, 46-051-042, and 46- 051-045), (the "Property"); and WHEREAS, the proposed applications would allow development of the Property, which includes 1,892 residential units, approximately 825,307 square feet of commercial space, and approximately 23.5 acres of park space (the "Project"); and WHEREAS, in connection with the Project, Developer and City staff have negotiated a proposed development agreement ("Development Agreement") in accordance with the requirements of Government Code § 65864, et seq., and Chapter 17.21, "Development Agreement Procedure," of the Rohnert Park Municipal Code ("RPMC"), for the Property. The Development Agreement negotiated by Developer and the City is attached to this Resolution as Exhibit A; and WHEREAS, the Development Agreement, among other things, sets forth the effective date and term of the agreement; applicable fees; applicable rules, regulations and policies; required infrastructure improvements; affordable housing obligations; prevailing wage rules; provisions on amendments, annual review and default; and other miscellaneous provisions; and WHEREAS, the Planning Commission reviewed the final E1R prepared for the Project; recommended its certification by the City Council; and has otherwise carried out all requirements for the Project pursuant to CEQA; and WHEREAS, pursuant to California State Law and the RPMC, public hearing notices were mailed to all property owners within an area exceeding a three hundred foot radius of the subject property and a public hearing was published for a minimum of 10 days prior to the first public hearing in the Community Voice. WHEREAS, on July 22, 2010, the Planning Commission held a public hearing at which time interested persons had an opportunity to testify either in support or opposition to the proposed Development Agreement; and WHEREAS, the Planning Commission has reviewed and considered the information contained in proposed Development Agreement. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Rohnert Park makes the following findings, determinations and recommendations with respect to the proposed Development Agreement: Section 1. The above recitations are true and correct. Section 2. The Planning Commission has recommended City Council approval of the Final EIR for the Project (including Development Agreement), and adoption of associated CEQA Findings, Statement of Overriding Considerations, and the Mitigation Monitoring and Reporting Program, as described in Planning Commission Resolution No. 2010-19, approved on July 22, 2010 concurrently with the Planning Commission's approval of this Resolution. Section 3. rindings for Adoption of Development Agreement. The Planning Commission in recommending approval to the City Council of Planning Application No. PL2005-047PD, Development Agreement for Sonoma Mountain Village hereby makes the following findings: A. A duly noticed public bearing regarding the Development Agreement was held by the Planning Commission on July 22, 2010, in conformance with the notice provisions of Government Code §§ 65090 and 65091 and the requirements of the RPMC. B. The applicant has proposed amendments to the General Plan and related land use entitlements for the Project which the Planning Commission has concurrently reviewed and considered in conjunction with its review of the Development Agreement. The proposed Development Agreement is consistent with the General Plan, as amended, and would direct the Project's development in an orderly manner that benefits the City. NOW, THEREFORE, BE IT FURTHER RESOLVED that, based on the findings set forth in this Resolution and the evidence in the staff report, the above -referenced CEQA Findings, and all other Project applications considered by the Planning Commission concurrently with the proposed Development Agreement, the Planning Commission hereby recommends that the City Council approve the Development Agreement, substantially in the form set form set forth at Exhibit A hereto. DULY AND REGULARLY ADOPTED on this 22nd day of July, 2010 by the City of Rohnert Park Planning Commission by the following vote: AYES: 3 NOES: ABSENT: 2* ABSTAIN: AHANOTU Y ARMSTRONG AB* BORBA AR NILSON Y NORDIN Y *Azmstrong: Absent/Recused Gregory Nordin, Vice -Chairperson John or Chai son, R hnert Park Planning Commission Attest: Susan Azevedo, Rccordi g Secretary RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Rohnert Park 130 Avrarn Avenue Rohnert Park, CA 94928-2486 Attention: City Clerk Space Above This Line Reserved for Recorder's Use Exempt from Recording Fee Per Government Code Section 27383 DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF ROHNERT PARK "` 1 SONOMA MOUNTAIN VILLAGE, LLC CODDING ENTERPRISES, L.P. 1290666v3D 80078/0053 TABLE OF CONTENTS ARTICLE 1. DEFINITIONS. Section 1.01 Definitions. Page ..........................................4 a ARTICLE 2. EFFECTIVE DATE AND TERM............................................................................9 Section2.01 Effective Date....................................................................................................9 Section2.02 Term...................................................................................................................9 Section 2.03 Developer Representations and Warranties.....................................................10 ARTICLE 3. DEVELOPMENT OF PROPERTY........................................................................1 I Section3.01 Vested Rights...................................................................................................I I Section3.02 Applicable Law ......... ............................ .................................. ......................... I I Section 3.03 Development Timing......................................................................................11 Section 3.04 Issuance of Building Permits In Accordance with City's Growth ManagementProgram......................................................................................12 Section 3.05 Reservations of Authority................................................................................12 Section 3.06 Regulation by Other Public Agencies...............................................................13 Section 3.07 Life of Project Approvals.................................................................................13 Section 3.08 Vesting Tentative Maps...................................................................................14 Section 3.09 Developer's Right to Rebuild...........................................................................14 Section 3.10 No Conflicting City Enactments......................................................................14 Section 3.11 Initiatives and Referenda.................................................................................15 Section 3.12 Environmental Mitigation................................................................................15 Section3.13 Subdivision Maps.............................................................................................16 Section 3.14 State and Federal Law......................................................................................17 ARTICLE 4. FINANCING AND PUBLIC IMPROVEMENTS.................................................18 Section 4.01 Taxes, Assessments, Fees and Exactions.........................................................18 Section 4.02 Regional Traffic Improvement Fee..................................................................19 Section 4.03 Public Facilities Financing Plan.......................................................................20 Section 4.04 Financing Mechanisms for Public Facilities .............. 21 Section 4.05 Public Maintenance Fees.................................................................................23 Section 4.06 Financing Mechanisms for Private Improvements..........................................24 Section 4.07 Pedestrian Walkways and Bicycle Paths.........................................................24 Section 4.08 Roadway Impact Fees......................................................................................26 Section 4.09 Roadway Improvements..................................................................................26 Section 4.10 Dedications to City and Public Improvements................................................26 Section 4.11 Park Improvements..........................................................................................30 Section 4.12 Entrance Monument.........................................................................................33 Section 4.13 Economic Impact Fee......................................................................................33 Section 4.14 Additional Service Personnel Fee....................................................................33 Section 4.15 Sewer Pump Station Fee..................................................................................34 Section 4.16 Climate Action Plan Fee..................................................................................34 Section4.17 Fee Escalation..................................................................................................34 Section 4.18 Business Incubator...........................................................................................34 Section 4.19 Existing Building Footprints and East Side Sewer Trunk Line.......................35 1290666v3D 80078/0053 TABLE OF CONTENTS (continued) Page Section 4.20 Application of Fees to Second Units...............................................................36 Section 4.21 Contribution Toward Public Safety Response Vehicle...................................36 Section 4.22 Alternate Calculation for Per Unit Fees...........................................................36 ARTICLE 5. DEVELOPMENT STANDARDS and REQUIREMENTS...................................38 Section 5.01 Compliance with State and Federal Law.........................................................38 Section 5.02 ................ Prevailing Wage Requirements..................................................... ...38 Section 5.03 Green Building and Smart Growth..................................................................38 Section. 5.04 Sale Tax Point of Sale Designation.................................................................39 Section 5.05 Affordable Housing Plan.................................................................................39 ARTICLE 6. MORTGAGEE PROTECTION..............................................................................39 Section 6.01 Mortgagee Protection.......................................................................................39 Section 6.02 Mortgagee Not Obligated................................................................................39 Section 6.03 Notice of Default to Mortgagee.......................................................................39 ARTICLE 7. COOPERATION AND IMPLEMENTATION......................................................40 Section 7.01 Subsequent Project Approvals.........................................................................40 Section 7.02 Processing Applications for Subsequent Project Approvals ............................40 Section 7.03 Administration of Subsequent Project Approvals............................................41 Section 7.04 Changes and Amendments to Project Approvals.............................................42 Section 7.05 Other Government Permits..............................................................................43 Section 7.06 Mitigation Measures........................................................................................43 Section 7.07 Cooperation in the Event of Legal Challenge..................................................43 ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE.......................................................44 Section8.01 Assignment......................................................................................................44 Section8.02 Right to Assign................................................................................................44 Section 8.03 Release of Transferring Developer..................................................................45 ARTICLE 9. DEFAULT; REMEDIES; TERMINATION..........................................................45 Section9.01 Breach..............................................................................................................45 Section9.02 Default. ............................................................................................. ............... 46 Section 9.03 Withholding of Permits....................................................................................46 Section9.04 Remedies..........................................................................................................46 Section9.05 Periodic Review...............................................................................................47 Section 9.06 Enforced Delay; Extension of Time of Performance.......................................48 Section 9.07 Resolution of Disputes.....................................................................................49 Section 9.08 Surviving Provisions........................................................................................49 Section 9.09 Indemnity and Hold Harmless.........................................................................49 ARTICLE 10. MISCELLANEOUS PROVISIONS.....................................................................49 Section 10.01 Incorporation of Recitals and Introductory Paragraph.....................................49 Section10.02 Findings............................................................................................................49 Section10.03 Severability......................................................................................................49 Section10.04 Construction.....................................................................................................50 Section 10.05 Joint and Several Obligations..........................................................................50 Section 10.06 Covenants Running with the Land...................................................................50 ii 1290666v3D 80078/0053 TABLE OF CONTENTS (continued) Page Section10.07 Notices.............................................................................................................50 Section 10.08 Entire Agreement, Counterparts and Exhibits.................................................51 Section 10.09 Recordation Of Development Agreement.......................................................52 Section 10.10 No Joint Venture or Partnership......................................................................52 Section10.11 Waivers............................................................................................................52 Section10.12 California Law.................................................................................................52 iii 1290666v3D 80078/0053 LIST OF EXHIBITS: Exhibit A Site Map of Property Exhibit B Legal Description of Property Exhibit C Project Phasing Map Exhibit D Municipal Services Plan Exhibit E-1 Pedestrian Walkways and Bicycle Paths Plan Exhibit E-2 SMART Path Plan Exhibit F Water Storage Guidelines Exhibit G Water Storage Facility and Tire Station Site Depiction Exhibit H Non -Project Stormdrain Depiction Exhibit T Existing Building Footprints Exhibit J Affordable Housing Plan Exhibit K Soccer Field Scope of Work Exhibit L Site 1 Depiction and Legal Description Exhibit M Site 2 Depiction and Legal Description. zv 1290666v3D 80078/0053 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the day of 2010, by and among SONOMA MOUNTAIN VILLAGE, LLC, a California limited liability company ( "SMV"), CODDING ENTERPRISES, L.P., a California limited partnership ("Co(lding"), and the CITY OF ROHNERT PARK, a California municipal corporation ("City"). SMV and Codding are sometimes collectively referred to herein as "Developer," and City and Developer are sometimes referred to herein as a "Party '► and collectively as "Parties." RECITALS A. 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 enacted California Government Code Section 65864, et seg. ("Development Agreement Statute"), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code Section 65865, City has adopted procedures and requirements for the consideration of development agreements (City Municipal Code Chapter 17.21). This Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. Codding is the fee owner of that certain real property consisting of approximately 175 acres within the City of Rohnert Park, as depicted on the Site Map attached hereto as Exhibit A, and legally described in Exhibit B attached hereto ( "Property "). D. SMV is a business entity formed and controlled by Codding for the purpose of developing and marketing the project to be located on the Property which is the subject of this Agreement. E. Developer proposes to develop on the Property a fully physically integrated, mixed-use, pedestrian oriented community providing diverse residential opportunities as well as a commercial center with a public plaza, parks, open space, other public amenities and infrastructure, including on- and off-site public improvements ("Project"), in the manner described in City's 2000 General Plan, as amended through the Effective Date ( "General Plait the Sonoma Mountain Village Planned Development Zoning District ("SMV P -D Zoning District") as established by that certain Sonoma Mountain Village Final Development Plan (►►SMV Final Development Plan "), and in compliance with City's Public Facilities Finance Plan, as it may be amended from time to time ("PFFP"). The Project is comprised of six Phases, each of which is described in the SMV Final Development Plan and shown on the Site Map attached as Exhibit A and more particularly described in Section 1.01 below: Phase 1-A, Phase 1-B, Phase 1-C, Phase 1-D, Phase 2, and Phase 3 (collectively, the "Project Components"). 1290666v317 8007810053 F. Prior to approval of this Agreement, City has taken numerous actions in connection with the development of the Project on the Property. These include: 1. Environmental Impact Report. The environmental impacts of the Project, including the Existing Project Approvals and alternatives to the Project and its location, have properly been reviewed and assessed by City pursuant to the California Environmental Quality Act, California Public Resources Code Section 21000 et seq.; California Code of Regulations Title 14, Section 15000 et seq. ("CEQA Guidelines"); and City's local guidelines promulgated thereunder (hereinafter collectively referred to as "CEQA "). On 52010, pursuant to CEQA and in accordance with the recommendation of City's Planning Commission ( "Planning Commission "), the City Council of City ( "City Council") certified an Environmental Impact Report for the Project ("EIR "). As required by CEQA, City adopted written findings and a Mitigation Monitoring and Reporting Program (►►MMRP") on , 2010, pursuant to Resolution No. 2. General Plan Amendment. On , 2010, in accordance with the recommendation of the Planning Commission, City Council adopted Resolution , amending the General Plan. 3. Municipal Code Amendment. On , 2010, in accordance with the recommendation of the Planning Commission, City Council adopted Ordinance No. establishing Chapter 17.06 Article XV and XV.A, the Form -Based Codes for Special Areas and the SMV P -D Zoning District respectively, of the City Municipal Code. 4. SMV P -D Zoning District. On , 2010, in accordance with the recommendation of the Planning Commission, City Council adopted Ordinance No. approving the SMV Final Development Plan and establishing the SMV P -D Zoning District, which covers the entirety of the Property. 5. Conditional Use Permit. On , 2010, in accordance with the recommendation of the Planning Commission, City Council adopted Ordinance No. approving a Conditional Use Permit, subject to certain Conditions of Approval, for the Project. 6. Existing Project Approvals. The approvals and development policies described in this Recital F are collectively referred to herein as the "Existing Project Approvals. " G. Subsequent to approval of this Agreement, City anticipates that applications for additional land use approvals, entitlements, and permits will be submitted to implement and operate the Project ( "Subsequent Project Approvals "). H. This Agreement furthers the public health, safety and general welfare in that the provisions of this Agreement are consistent with the General Plan, as amended, the SMV P -D Zoning District, and the SMV Final Development Plan. For the reasons recited herein, City and Developer have further determined that the Project is a development for which this Agreement is appropriate. This Agreement will eliminate uncertainty regarding Existing Project Approvals 2 1290666v3D 8007810053 and Subsequent Project Approvals, thereby encouraging planning for, investment in and commitment to use and development of the Property. Continued use and development of the Property in accordance with this Agreement is anticipated to, in turn, provide the following substantial benefits and contribute to the provision of needed infrastructure for area growth, thereby achieving the goals and purposes for which the Development Agreement Statute was enacted: 1. Provide for the orderly development of the Property and the surrounding community. 2. Contribute to the balanced land -use base anticipated by the General Plan and provide an effective connection between Project areas and other areas of City and surrounding communities. 3. Result in the construction of a minimum number of Affordable Units equal to 15% of the total number of market rate residential units and Affordable Units within the Project (254 deed -restricted Affordable Units if 1,694 total Project units are approved), plus an additional approximately 198 deed -restricted affordable Second Units, for a total of approximately 452 Affordable Units and affordable Second Units (which represents almost 24% of the total number of market rate residential units and Affordable Units within the Project). 4. Provide infrastructure improvements that will benefit the Property and the surrounding community. 5. Provide needed market -rate housing to help meet current local housing demand as well as anticipated future demand for housing. 6. Provide open space, parks and recreational improvements and amenities that will benefit future property owners and the surrounding community. 7. Provide neighborhood -serving commercial, retail, office and public facilities space as set forth in the Project Approvals and this Agreement. 8. Ensure, through payment of Maintenance Fees (as defined below) and fees required by the PFFP ("PFFP Fees "), that the residential component of the Project does not negatively impact City's ability to provide for and fund necessary capital improvements and services and that the Project meets General Plan Growth Management and Open Space goals and policies. I. The Parties intend through this Agreement to allow the Developer to develop and operate the Project in accordance with the Existing Project Approvals and the Applicable Law (as defined below), and that any Subsequent Project Approvals and the imposition of any new impact fees, other fees, or monetary and non -monetary exactions should be governed by the terms of this Agreement. J. City Council has found that this Agreement is consistent with the General Plan, as amended pursuant to Resolution , and the SMV Final Development Plan, and has 3 1290666v3D 80078/0053 conducted all necessary proceedings in accordance with City's rules and regulations for the approval of this Agreement. K. On , 2010, City Council, at a duly noticed public hearing, adopted Ordinance No. , approving and authorizing the execution of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: ARTICLE 1. DEFINITIONS Section 1.01 Definitions. "Access Easements" means such temporary or permanent construction and staging, access, utility, and other easements from the nearest public roadway over adjacent land owned by Developer, which City determines are necessary or desirable for construction of and City and public access to the applicable Soccer Field. "Additional Service Personnel Fee" shall have the meaning set forth in Section 4.14. "Adjustment Date" shall have the meaning set forth in Section 4.17. "Administrative Project Amendment" shall have the meaning set forth in Section 7.04. "Advanced Costs" shall have the meaning set forth in Section 4.04B(3). "Affiliated Party" shall have the meaning set forth in Section 8.02. "Affordable Housing Plan" shall have the meaning set forth in Section 5.05. "Affordable Units" means residential units to be rented or sold subject to affordability restrictions as set forth in the Affordable Housing Plan. "Agreement" shall have the meaning set forth in the introductory paragraph preceding the Recitals. "Alternate Per Unit Fee Calculation" shall have the meaning set forth in Section 4.22. "Applicable Law" shall have the meaning set forth in Section 3.02. "Architect Fees" shall have the meaning set forth in Section 4.01 G. "Assignee" shall have the meaning set forth in Section 8.02. "Rodway Parkway Impact Fee" shall have the meaning set forth in Section 4.08. 4 1290666v3D 80078/0053 "Business Incubator" shall have the meaning set forth in Section 4.18. "CEQA"shall have the meaning set forth in Recital F. "CEQA Guidelines" shall have the meaning set forth in Recital F. "CFD" shall have the meaning set forth in Section 4.0413. "CFD .Bonds" shall have the meaning set forth in Section 4.0413. "CFD Election" shall have the meaning set forth in Section 4.0413. "Camino Colegio Impact Fee" shall have the meaning set forth in Section 4.0813. "Changes in the Law" shall have the meaning set forth in Section 3.14. "City" shall have the meaning set forth in the introductory paragraph preceding the Recitals. "City Council" shall have the meaning set forth in Recital F. "City Law" shall have the meaning set forth in Section 3.10. "City Manager" means the City Manager of City. "Climate Action Plan Fee" shall have the meaning set forth in Section 4.16. "Codling" means Codding Enterprises, L.P., a California limited partnership, and its permitted successors and assigns. "Concurrent/Out-of Order Phasing" shall have the meaning set forth in Section 3.13C(4). "Conditions Precedent" shall have the meaning set forth in Section 4.11 B(4)a. "Consultant Fees" shall have the meaning set forth in Section 4.01 F. "Consumer Price Index" shall have the meaning set forth in Section 4.17. "CPIAdjustment" shall have the meaning set forth in Section 4.17. "Cure Period" shall have the meaning set forth in Section 9.01. "Default" shall have the meaning set forth in Section 9.02. "Developer" means SMV and Codding, jointly and severally. "Development Agreement Statute" shall have the meaning set forth in Recital A. 1290666v3D 80078/0053 "Development Services Director" means the Development Services Director of City. "East Side Sewer Trunk Line Extension" means the approximately 24" gravity sewer pipeline extending from the intersection of Avram Avenue and Commerce Boulevard to the intersection of East Cotati Avenue and Snyder Lane, and all appurtenances thereto. "Economic Impact Fee" shall have the meaning set forth in Section 4.13. "Effective Date" shall have the meaning set forth in Section 2.01. "EIR" shall have the meaning set forth in Recital F. "Eligible Cost" shall have the meaning set forth in Section 4.03C. "Entrance Monument" shall have the meaning set forth in Section 4.11B(4)b. "Existing Building Footprints" shall have the meaning set forth in Section 4.19B. "Existing Project Approvals" shall have the meaning set forth in Recital F. "Existing Sewer Capacity" shall have the meaning set forth in Section 4.19B. "Extended Cure Period" shall have the meaning set forth in Section 9.01. "Extended Term" shall have the meaning set forth in Section 2.02B. "Federal/State Compliance Fees" shall have the meaning set forth in Section 4.01B. "Federal/State Permits" shall have the meaning set forth in Section 3.14B. "Fire Station" shall have the meaning set forth in Section 4.1 OD. "Fire Station Site" shall have the meaning set forth in Section 4.10E. "General Plan" shall have the meaning set forth in Recital E. "Growth Management Program" shall have the meaning set forth in Section 3.04. ",Initial Term" shall have the meaning set forth in Section 2.02A. "Maintenance Fees" shall have the meaning set forth in Section 4.05A. "Mello -Roos Act" shall have the meaning set forth in Section 4.04B. "Mitigation Fee Act" shall have the meaning set forth in Section 4.02. "WRY" shall have the meaning set forth in Recital F. "Mortgage" shall have the meaning set forth in Section 6.01. 6 1290666v3D 80078/0053 "Mortgagee" shall have the meaning set forth in Section 6.01. "Municipal Services Plan" shall have the meaning set forth in Section 3.13C(2). "Non -administrative Project Amendment" shall have the meaning set forth in Section 7.04A(2). "Non -Project Stormdrain" shall have the meaning set forth in Section 4.1 OC. "One -Half Per Unit Fee Sum" shall have the meaning set forth in Section 4.22B(3). "One -Half True -Up" shall have the meaning set forth in Section 4.228(3). "Other Local Agency Compliance Fees" shall have the meaning set forth in Section 3.10. "Party/Parties" shall have the meaning set forth in the introductory paragraph preceding the Recitals of this Agreement. "Pavement Maintenance/Street Repaving Fee" shall have the meaning set forth in Section 4.0513(1). "PFFP" shall have the meaning set forth in Recital E. "PFFP Fees" shall have the meaning set forth in Recital H. "Phase 1-A" shall have the meaning set forth in the SMV Project Description, and shall correspond to that portion of the Project to be developed on the area of the Property identified on Exhibit C as Phase I -A. "Phase I -B" shall have the meaning set forth in the SMV Project Description, and shall correspond to that portion of the Project to be developed on the area of the Property identified on Exhibit C as Phase I -B. "Phase 1-C" shall have the meaning set forth in the SMV Project Description, and shall correspond to that portion of the Project to be developed on the area of the Property identified on Exhibit C as Phase I -C. "Phase I -D" shall have the meaning set forth in the SMV Project Description, and shall correspond to that portion of the Project to be developed on the area of the Property identified on Exhibit C as Phase I -D. "Phase 2" shall have the meaning set forth in the SMV Project Description, and shall correspond to that portion of the Project to be developed on the area of the Property identified on Exhibit C as Phase 2. "Phase 3" shall have the meaning set forth in the SMV Project Description, and shall correspond to that portion of the Project to be developed on the area of the Property identified on Exhibit C as Phase 3. h 1290666v3D 80078/0053 "Planning Commission" shall have the meaning set forth in Recital F. "Prevailing Wage Laws" shall have the meaning set forth in Section 5.02. "Private Infrastructure" shall have the meaning set forth in Section 4.06. "Processing Fees" shall have the meaning set forth in Section 4.01 E. "Project" shall have the meaning set forth in Recital E. "Project Approvals" shall have the meaning set forth in Section 3.01. "Project Components" shall have the meaning set forth in Recital E. "Project Phasing Map" means the map depicting Proj ect Phase boundaries attached hereto as Exhibit C. "Property" shall have the meaning set forth in Recital C. "Public Facilities" shall have the meaning set forth in Section 4.04A. "Public Safety Response Contribution" shall have the meaning set forth in Section 4.21. Public Service Impact Fee" shall have the meaning set forth in Section 4.05B(2). "Regional Traffic Fee" shall have the meaning set forth in Section 4.02A. "Second Unit" means an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons. It shall include permanent provisions for living, sleeping, eating, cooking and sanitation on the same parcel as a single- family dwelling is situated. "Sewer Pump Station Fee" shall have the meaning set forth in Section 4.15. "Site" means Site 1 or Site 2, as applicable given the context. "Site I " shall have the meaning set forth in Section 4.1 1 B(1). "Site 2" shall have the meaning set forth in Section 4.11B(1). "Site I Costs" shall have the meaning set forth in Section 4.11 B(2)b. "Site 1 Soccer Field" shall have the meaning set forth in Section 4.11B(2)a. "Site 2 Soccer Field" shall have the meaning set forth in Section 4.11B(3)a. "Site Map" means the map of the Property depicting the various Project Components attached hereto as Exhibit A. S 1290666v3D 80078/0053 "Site Swap" shall have the meaning set forth in Section 4.11B(3)b. "SMART Path" shall have the meaning set forth in Section 4.07B. "SMART Project" shall have the meaning set forth in Section 4.07B. "SMART Station" shall have the meaning set forth in Section 4.07B. "SMV Final Development Plan" shall have the meaning set forth in Recital E. "SMV P -D Zoning District" shall have the meaning set forth in Recital E. "Soccer Field " shall have the meaning set forth in Section 4.118(1). "Special Tax" shall have the meaning set forth in Section 4.04B. "Subdivision Map Act" shall have the meaning set forth in Section 3.09. "Subsequent Discretionary Approvals" shall have the meaning set forth in Section 7.01 B. "Subsequent Project Approvals" shall have the meaning set forth in Recital G. "Subsequent Ministerial Approvals" shall have the meaning set forth in Section 7.01A. "Term" shall have the meaning set forth in Section 2.02. "Total Per Unit Fee Sum" shall have the meaning set forth in Section 4.22A. "Total Unit True -Up" shall have the meaning set forth in Section 4.22B(4). "True -Up" shall have the meaning set forth in Section 4.22C. "Water/Sewer Fees" shall have the meaning set forth in Section 4.01 D. "Water Storage Facility" shall have the meaning set forth in Section 4.1 OA. "Water Storage Facility Site" shall have the meaning set forth in Section 4.1 OB. ARTICLE 2. EFFECTIVE DATE AND TERM Section 2.01 Effective Date. This Agreement shall become effective upon the date that the ordinance approving this Agreement becomes effective ( "Effective Date"). Section 2.02 Term. The "Tenn" of this Agreement shall be the Initial Term together with the Extended Term. A. Initial Term. The Term of this Agreement shall commence upon the Effective Date and shall extend for a period of ten (10) years thereafter ( "Initial Term "). The Initial Term has been established by the Parties as a reasonable estimate of the time required to 9 1290666v3U 80078/0053 develop the Project, including all on- and off-site public improvements, and obtain the public benefits of the Project. B. Extended Term. Provided neither City nor Developer have terminated this Agreement, City and Developer agree that it may be mutually desirable for the Initial Term to be extended. Accordingly, Developer may request in writing that City extend the Initial Term of this Agreement for up to two (2) additional three (3) year period ("Extended Term"). Such written request may be delivered to City not earlier than two hundred seventy (270) days nor later than one hundred twenty (120) days prior to the termination date of the Initial 'T'erm. C. City Review of Request for Extended Term. Upon receipt of such request, City shall undertake a review of Developer's good faith compliance with the terms of this Agreement in the same manner as set forth in Section 9.05 for a periodic review of this Agreement. Developer and City shall comply with the provisions of Section 9.05 with respect to such review so that it can be completed prior to the expiration of the Initial Term. City may deny, condition or shorten the time of Developer's request for tae Extended Term if, following such review, City Council of City determines, in the exercise of its legislative discretion, any of the following: (i) Developer is in default under this Agreement or any event has occurred which with the passage of time or giving of notice or both would constitute a default by Developer hereunder; (ii) Developer has not satisfactorily completed construction and dedication of the Water Storage Facility, as provided in Section 4.10A and Section 4.10B; (iii) Developer has failed to fulfill any of its obligations with respect to the Soccer Field, as provided in Section 4.11 B; (iv) Developer has not dedicated the land comprising the Fire Station Site and/or has not funded all construction costs for the Fire Station, as provided in Section 4.1 OD and Section 4.10E; (v) Developer has failed to fulfill its obligations with respect to the SMART Path to be constructed on-site and off-site, as provided in Section 4.0713; (vi) Developer has not fully satisfied all other material requirements and conditions of the Project Approvals; or (vii) any delinquent unpaid property taxes or assessments, including any delinquent installment payments supporting land -secured bonds, are payable with respect to the Property. If the Initial Term of this Agreement is extended in accordance with the provisions of this Section 2.02, City shall record an instrument giving notice of the Extended Term and the termination date thereof. D. Termination Following Expiration. Following the expiration of the Term, or the earlier completion of development of the Project and all of Developer's obligations in connection therewith, this Agreement shall be deemed terminated and of no further force and effect, subject, however, to the provisions of Section 9.08 hereof. Section 2.03 Developer Representations and Warranties. Codding represents and warrants to City that, as of the Effective Date, Codding is the sole fee owner of the Property, and that no other person or entity holds any legal or equitable interests in the Property. SMV and Codding and their respective managing members each further represent and warrant that: A. As of the Effective Date, SMV and Codding: (i) are each duly organized and validly existing under the laws of the State of California; (ii) have each qualified and been authorized to do business in the State of California and have duly complied with all requirements pertaining thereto; (iii) are each in good standing and have all necessary powers under the laws of the State of California to own property and in all other respects enter into and perform the 10 1290666v3n 80078/0053 undertakings and obligations of Developer under this Agreement; and (iv) are not in default with respect to payment of any general or special property taxes or assessments or other property based fees allocable to the Property. B. No approvals or consents of any persons are necessary for the execution, delivery or performance of this Agreement by SMV and Codding and their respective managing members, except as have been obtained; C. The execution and delivery of this Agreement and the performance of the obligations of SMV and Codding hereunder have been duly authorized by all necessary limited liability company action and all necessary member approvals have been obtained; and D. This Agreement is a valid obligation of SMV and Codding and is enforceable in accordance with its terms. ARTICLE 3. DEVELOPMENT OF PROPERTY Section 3.01 Vested Rights. The Property is hereby made subject to the provisions of this Agreement. All development of or on the Property, or any portion thereof, shall be undertaken only in compliance with the Existing Project Approvals, Subsequent Project Approvals, Applicable Law and the provisions of this Agreement. Developer shall have a vested right to develop the Property in accordance with the Existing Project Approvals, the Subsequent Project Approvals, Applicable Law and this Agreement. The Project shall be subject to all Subsequent Project Approvals (which, upon final approval, shall be deemed part of the Existing Project Approvals hereunder). The Existing Project Approvals and the Subsequent Project Approvals are sometimes hereinafter referred to as the "Project Approvals. " Section 3.02 Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the development of the Property shall be those set forth in the Project Approvals and this Agreement, and, with respect to matters not addressed by these documents, those laws, rules, regulations, official policies, standards and specifications (including City ordinances and resolutions), to the extent not inconsistent with the Project Approvals, governing permitted uses, building locations, timing of construction, densities, design, heights, fees, and exactions in force and effect on the Effective Date ( "Applicable Law "). Prior to the Effective Date of this Agreement, the Parties shall prepare two (2) sets of the Project Approvals and Applicable Laws applicable to the Project as of the Effective Date, one (1) set for City and one (1) set for Developer, to which shall be added from time to time, Subsequent Project Approvals, so that if it becomes necessary in the future to refer to any of the Project Approvals or Applicable Law, there will be a common set available to the Parties. Failure to include in the sets of Project Approvals and Applicable Law any rule, regulation, policy, standard or specification that is within the Applicable Law and Project Approvals as described in this provision shall not affect the applicability of such rule, regulation, policy, standard or specification. Section 3.03 Development Timing. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Phases of the Project will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, absorption, completion and other similar factors. 11 1240666v3D 80078/0053 In particular, and not in any limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. The City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later -adopted initiative restricting the timing of development prevailing over such parties' agreement, it is the Parties' desire to avoid that result by acknowledging that Developer shall have the vested right to develop the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its business judgment, subject to the terms, requirements and conditions of the Existing Approvals and this Agreement. Developer will use its best efforts, in accordance with its own business judgment and taking into consideration market conditions and other economic factors influencing Developer's business decision, to commence or to continue development, and to develop the Project in a regular, progressive and timely manner in accordance with the provisions of Section 3.13C below and all other provisions and conditions of this Agreement and the Existing Approvals. Section 3.04 Issuance of Building.Permits In Accordance with City's Growth Management Program. Developer acknowledges the legality and validity of, covenants not to challenge, and agrees to comply with the provisions of City's Growth Management Program (City Municipal Code Section 17.19 et seq.) ("Growth Management Program"), which regulates and limits the number of market rate residential building permits that City may issue each year. City has determined that three hundred fifty (350) market rate residential units are exempt from City's Growth Management Program under City Municipal Code Section 17.19.040(F)(5), which exempts infill projects or portions thereof that consist of the redevelopment of an existing property from a non-residential use to a residential use. In accordance with City's Growth Management Program and subject to the limitations of this Section 3.04, up to three hundred fifty (350) building permits issued for market rate residential units shall be exempt from the Growth Management Program limitations. In addition, Developer shall be issued up to one hundred fifty (150) building permits for residential units each calendar year during the Term; provided, however, the total allocation of building permits for residential units within the Project shall not exceed a cumulative total of one thousand six hundred ninety- four (1,694) permits and issuance of such building permits shall be in accordance with the terms of this Agreement. Building permits which are not used during the calendar year in which they are issued may be used in any subsequent calendar year during the Term of this Agreement. Developer shall submit application to City and pay all applicable fees then due prior to issuance of any such building permits. The building permits allocated to Developer shall be used exclusively in connection with development of the Project on the Property and may not be transferred to any other property or properties. Section 3.05 Reservations of Authority. A. The Parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions contained in this Agreement are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed to reserve to City all such power and authority which cannot be restricted by contract. Notwithstanding the foregoing reservation of City, it is the intent of City and Developer that this Agreement shall be construed to provide Developer with the maximum rights affordable by law, including but not limited to, the Development 12 1290666v3D 80078/0053 Agreement Statute and the Subdivision Map Act, except as expressly provided elsewhere in this Agreement. B. Notwithstanding any other provision of this Agreement to the contrary, the following regulations and provisions shall apply to the development of the Property: (1) Processing fees and charges of every kind and nature imposed by City to cover the actual costs to City of processing applications for Project Approvals or for monitoring compliance with any Project Approvals granted or issued, as such fees and charges are adjusted from time to time. (2) Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, provided such procedures are uniformly applied on a city-wide basis to all substantially similar types of development projects and properties. (3) Regulations governing construction standards and specifications including City's building code, plumbing code, mechanical code, electrical code, fire code and grading code, and all other uniform construction codes then applicable in City at the time of permit application. (4) New City Laws which may be in conflict with this Agreement or the Project Approvals but which are necessary to protect the public health and safety, provided such new City Laws are uniformly applied on a city-wide basis to all substantially similar types of development projects and properties. (5) New City Laws applicable to the Property, which do not conflict with this Agreement or the Project Approvals, provided such new City Laws are uniformly applied on a city-wide basis to all substantially similar types of development projects and properties. Section 3.06 Regulation by Other Public Agencies. City and Developer acknowledge and agree that other public agencies not within the control of City possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Developer shall, at the time required by Developer in accordance with Developer's construction schedule, apply for all such other permits and approvals as may be required by other governmental or quasi - governmental entities in connection with the development of, or the provision of services to, the Project. Developer shall also pay all required fees when due to such public agencies. Developer acknowledges that City does not control the amount of any such fees. City shall cooperate with Developer in Developer's effort to obtain such permits and approvals; provided, however, City shall have no obligation to incur any costs, without compensation or reimbursement, or to amend any City policy, regulation or ordinance in connection therewith. Section 3.07 Life of Project Approvals. The term of any and all Project Approvals shall automatically be extended for the longer of the Term of this Agreement or the term otherwise applicable to such Project Approvals. 13 1290666v3D 80078/0053 Section 3.08 Vesting Tentative Maps. If any tentative map heretofore or hereafter approved in connection with development of the Property is a vesting map under the Subdivision Map Act, Government Code Section 66410, et seq., ( "Subdivision Map Act") and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to Developer for development of the Project, then and to that extent all rights and protections afforded Developer under the laws and ordinances applicable to vesting maps shall survive. Any tentative map prepared for the Property will comply with the requirements of Government Code Section 66473.7 and shall include a condition that sufficient water supply is available to serve the subdivision created by such map. Section 3.09 Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild portions of the Project at any time within the Term of this Agreement should it become necessary due to natural disaster or changes in seismic requirements. Such renovations or reconstruction shall be processed as a Subsequent Project Approval. Any such renovation or rebuilding shall be subject to all design, density and other limitations and requirements imposed by this Agreement, and shall comply with the Project Approvals, the building codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA. Section 3.10 No Conflicting City Enactments. Except as and to the extent required by State or Federal law; or as may be reasonably necessary to comply with requirements of, and/or pass through rate and/or connection fee increases established by, other local governmental agencies (other than fees addressed by the Regional Traffic Fee, as described at Section 4.02A, below), including sub -regional sewer and water system connection fees established by the City of Santa Rosa ( "Other Local Agency Compliance Fees "); or as otherwise provided in this Agreement, City shall not impose on the Project any ordinance, resolution, rule, regulation, standard, official policy, condition, or other measure (each, individually, a "City Law") that is in conflict with the Applicable Law, this Agreement or the Project Approvals or that reduces the development rights or assurances provided by this Agreement. Additionally, City agrees not to undertake or approve any alteration, revision, or amendment to the SMV P -D Zoning District without Developer's prior written consent; and City agrees not to impose conditions on Project Approvals in a manner which is inconsistent or conflicts with the SMV P -D Zoning District or this Agreement. Without limiting the generality of the foregoing, any City Law enacted or adopted after the Effective Date of this Agreement, shall be deemed to conflict with this Agreement or reduce the development rights or assurances provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project: A. . Reduce the number of market rate residential units permitted to be developed on the Property; B. Reduce the square footage of commercial development permitted to be developed within the Project; C. Change any land use designation or permitted use of the Property; D. Limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water 14 1290666v3D 80078/0053 connections or sewage capacity rights, sewer connections, etc.) for the Project in a manner that is inconsistent with or more restrictive than the limitations including or imposed by the Project Approvals, Applicable Law or this Agreement; E. Limit or control the Iocation, configuration or size of lots, buildings, structures, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in or imposed by the Project Approvals, Applicable Law or this Agreement; F. Limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, except as set forth in this Agreement, Applicable Law or the Project Approvals; or G. Impose on the Project or Developer any fees or exactions other than those permitted by this Agreement, Applicable Law or the Project Approvals. Section 3.11 Initiatives and Referenda. If any City Law is enacted or imposed by a citizen -sponsored initiative or referendum, which City Law would conflict with the Project Approvals, Applicable Law or this Agreement or reduce the development rights or assurances provided by this Agreement, such City Law shall not apply to the Property or Project; provided, however, the Parties acknowledge that City's approval of this Agreement is a legislative action subject to referendum. Without limiting the generality of any of the foregoing, no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, building permits or other entitlements to use that are approved or to be approved, issued or granted by City shall apply to the Property or Project. Developer agrees and understands that City does not have authority or jurisdiction over any other public agency's ability to grant governmental approvals or permits or to impose a moratorium or other limitations that may affect the Project, City shall cooperate with Developer and, at Developer's expense, shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City, except to submit to vote of the electorate initiatives and referendums required by law to be placed on a ballot, shall not support, adopt or enact any City Law, or take any other action which would violate the express provisions or spirit and intent of this Agreement or the Project Approvals. Section 3.12 Environmental Mitigation._ The Parties understand that the EIR is intended to be used not only in connection with the Existing Project Approvals, but also in connection with the Subsequent Project Approvals needed for the Project. Consistent with applicable CEQA streamlining policies, City acknowledges its obligation, in connection with Subsequent Project Approvals, not to require a supplemental or subsequent EIR, mitigated negative declaration, or negative declaration, unless required by Public Resources Code Section 21166, and CEQA Guideline 15161 or 15162. To the extent supplemental or additional environmental review is required in connection with Subsequent Project Approvals, Developer acknowledges that City may require additional mitigation measures that were not foreseen at the time this Agreement was executed. 15 1290666v3D 80078/0053 Section 3.13 Subdivision Maps. A. A subdivision within the Project, which meets the definition of "subdivision" in Government Code Section 66473.7(a)(1), shall include as a condition of approval a requirement that a sufficient water supply shall be available as required by Government Code Section 66473.7(b)(1). The Parties agree that this provision complies fully with Section 65867.5(c) of the Development Agreement Statute. B. The Parties intend that the final subdivision maps for the Project will be prepared and submitted by Developer in phases such that the number of residential lots for which a final map has been recorded will at all times track the number of residential building permits allocated and issued to Developer. Accordingly, unless otherwise approved by City Manager or his or her designee in his or her sole discretion, no final subdivision map shall be considered for approval or be approved by City to the extent the sum total of all previously created residential lots plus the number of lots shown on the proposed final map exceed the sura total of all residential building permits previously issued to Developer plus the maximum number of residential building permits that may be allocated to Developer pursuant to Section 3.05 above. C. Notwithstanding the foregoing, the Parties understand and agree to the following: (1) Pursuant to Government Code Section 66428(a)(2), portions of the Property which are dedicated to City as parks, open space, public facilities, recreational uses, and/or infrastructure may be conveyed independent from other subdivision maps for the Project; provided, however, that such dedications shall be conveyed prior to or concurrently with the final map in which the proposed dedications are located. (2) In conjunction with any subdivision within the Project, Developer shall, at a minimum, comply with the provisions of the Municipal Services Plan, attached hereto as Exhibit D, which, among other things, requires Developer to show basic capacity and infrastructure necessary to supply the particular Phase being subdivided ( "Municipal Services Plan "). (3) Developer has organized the Project into phases (Phases 1-A, 1-B, 1-C, 1-D, 2, and 3), and each such Phase corresponds to separate portions of the Property as provided in the SMV Final Development Pian and as depicted on the Project Phasing Map attached as Exhibit C hereto. The Parties acknowledge that Developer intends to submit a large lot tentative tract map to establish all Phases as separate parcels for development, with each such Phase to be further subdivided through the filing of one or more subsequent tentative tract maps. (4) The Project shall be developed in Phases as provided in the SMV Final Development Plan and as depicted on the Project Phasing Map. Notwithstanding the foregoing to the contrary, development of any particular Phase may occur concurrently with that of any other Phase, or may occur out of order ("ConcurrentlOut-of-Order Pleasing"), provided that (a) Developer shall obtain approval by City of tentative tract maps corresponding to such Concurrent/Out-of-Order Phasing, (b) Developer shall comply with all conditions of approval 16 1290666v3D 80078/0053 imposed by City on any such tentative tract maps, and (c) such Concurrent/Out-of-Order Phasing shall not violate any requirement of the City Municipal Code or provision of this Agreement. (5) During the course of development of the Project, the Parties acknowledge that certain revisions of, amendments to, and deviations from the Phases depicted in the Project Phasing Map may be appropriate and beneficial to Developer and/or City. To the extent permitted by Applicable Law and consistent with this Agreement, revisions of, amendments to, and/or deviations from the Project Phasing Map may be approved in the following manner: (i) a revision, amendment, and/or deviation that is minor in nature, acceptable to City, consistent with this Agreement, permitted by Applicable Law, and will result in no new significant impacts not addressed in the EIR shall be administratively approved by City Manager or his or her designee; and (ii) a revision, amendment and/or deviation that is not minor in nature shall be approved by City Council. Upon written request of Developer for a revision of, amendment to, and/or deviation from the Project Phasing Map, City Manager or his or her designee, in his or her sole and absolute discretion, shall determine whether the request is minor in nature, with the exception of alterations to Phase boundaries which shall be deemed minor in nature. This Section 3.13C(5) is limited to revisions of, amendments to, and deviations from the Phases depicted in the Project Phasing Map; all other changes and amendments shall be subject to Section 7.04. Section 3.14 State and Federal Law. A. As provided in Section 65869.5 of the Development Agreement Statute, this Agreement shall not preclude the applicability to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in State or Federal laws or by changes in laws, regulations, plans or policies of special districts or other governmental entities, other than City, created or operating pursuant to the laws of the State of California ( "Changes in the Law"). In the event Changes in the Law prevent or preclude compliance with one (1) or more provisions of this Agreement, the Parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and City and Developer shall agree to such action as may be reasonably required to preserve the purpose and intent of this Agreement. This Agreement and the Project Approvals shall remain in full force and effect unless and until amended in accordance with the requirements of this Agreement, and, in any event, this Agreement and the Project Approvals shall remain in full force and effect to the extent the same are not inconsistent with such laws or regulations. Nothing in this Agreement shall preclude City or Developer from contesting by any available means (including administrative or judicial proceedings) the applicability to the Project any such Changes in the Law. Notwithstanding the foregoing, if Changes in the Law preclude or substantially limit or delay performance in a manner that makes the Project economically infeasible, the Party adversely affected, in its sole and absolute discretion, may terminate this Agreement by providing written notice of such termination to the other Party. B. The Parties acknowledge that Developer has or will be submitting applications with various State and/or Federal agencies in connection with other approvals needed in order to undertake and complete the Project ("Federal/State Permits"). City agrees that it will not oppose, object, or otherwise protest the applications for Federal/State Permits, 17 1290666v3D 80078/0053 provided that such applications and the Federal/State Permits sought thereby are not inconsistent with the terms of the Project Approvals and this Agreement. Furthermore, City agrees to provide reasonable assistance to Developer for such Federal/State Permits, provided that Developer shall reimburse City for any costs incurred by City thereby. ARTICLE 4. FINANCING AND PUBLIC IMPROVEMENTS Section 4.01 Taxes, Assessments, Fees and Exactions. A. Developer agrees to pay all taxes, fees, assessments and exactions which are payable by Developer under this Agreement, including Federal/State Compliance Fees, Other Local Agency Compliance Fees, Processing Fees, Consultant Fees, Architect Fees, Regional Traffic Fees, PFFD Fees and the Maintenance Fees. With the exception of the foregoing fees and except as otherwise provided by this Agreement, City may not impose any new, increased or modified taxes, assessments, impact fees or other- monetary and non -monetary exactions on the Project, the Property or the Developer. B. City may charge and Developer agrees to pay any new, increased or modified taxes, assessments, impact fees or other monetary and non -monetary exactions, whether imposed as a condition of or in connection with any Subsequent Project Approvals or otherwise, which are uniformly imposed and reasonably necessary to comply with the requirements of any Federal or State statute or regulation which is enacted or adopted after the Effective Date of this Agreement ("FederallState Compliance Fees"). C. City may charge and Developer agrees to pay any new, increased or - modified taxes, assessments, impact fees or other monetary and non -monetary exactions, whether imposed as a condition of or in connection with any Subsequent Project Approvals or otherwise, which are uniformly imposed and reasonably necessary to comply with the requirements of, and/or pass through, any Other Local Agency Compliance Fees. Notwithstanding the foregoing, the provisions of this Section 4.01 C shall not apply to taxes, assessments, impact fees, or other monetary or non -monetary exactions which are satisfied by Developer's payment of the Regional Traffic Fee imposed under this Agreement. D. City may charge and Developer agrees to pay all water and sewer connection fees (" WaterlSewer Fees "), which are in force and effect on a City-wide basis at the time those Water/Sewer Fees are payable at the rates then in effect. E. City may charge and Developer agrees to pay all processing fees, including application and inspection and monitoring fees ("Processing Fees"), for land use approvals, grading and building permits, general plan maintenance fees, and other permits and entitlements, which are in force and effect on a City-wide basis at the time those permits, approvals or entitlements are applied for on any or all portions of the Project, and which are intended to cover the actual costs of processing the foregoing; provided, however, that Developer retains the right to challenge increases in such fees above the amounts in effect on the Effective Date as excessive under state law. 18 1290666v3D 80078/0053 F. In addition to charging the foregoing Processing Fees, City may, in its sole discretion, contract with one (1) or more outside inspectors, engineers or consultants to perform all or any portion of the monitoring, inspection, testing and evaluation services to be performed in connection with construction and development of the Project ( "Consultant Fees"). Developer shall pay to City, within thirty (30) days following City's written demand therefor, the full amount of all Consultant Fees, plus a twenty percent (20%) City administration charge. The Consultant Fees, together with the associated administrative charge, shall be in addition to, and not in lieu of, the Processing Fees; provided, however, City agrees not to double -charge Developer (through the imposition of both a Processing Fee and Consultant Fee) for any individual monitoring, inspection, testing or evaluation service. G. City may engage one (1) or more outside architectural firms to review and evaluate Developer's architectural plans and drawings for the Project, to ensure that the Project complies with the approved architectural guidelines, and to advise City and the Planning Commission in connection with design review. City shall cooperate with Developer in establishing a scope of work and budget(s) for said architectural firm(s). City agrees that the scope of work to be undertaken by the firm(s) shall be reasonable in light of the size, type and complexity of the Project. Developer shall pay to City, within thirty (30) days following City's written demand therefor, the full amount of all costs and fees charged by such outside architects ("Architect Fees"), plus a twenty percent (20%) City administration charge. In addition, Developer shall pay to City the actual cost of all City staff time incurred in connection with the review of Developer's architectural plans and drawings. Section 4.02 Regional Traffic Improvement Fee. A. Developer agrees to pay, at the time of issuance of a building permit for each residential and/or commercial unit or building within the Project, any future regional traffic improvement impact fee enacted by City (or by City, other area municipalities and/or the County of Sonoma) pursuant to the Mitigation Fee Act (Government Code Section 66000, et seq.) ( "Mitigation Fee Act") that is consistently applied on a city-wide basis to all substantially similar types of development projects. If no regional traffic impact fee has been enacted at the time of issuance of a building permit for such residential or commercial unit or building, then Developer shall pay City, at the time of permit issuance, a fee ("Regional Traffic Fee") equal to Two Thousand Seven Hundred and Fifty Dollars ($2,750) for each market rate residential unit to mitigate the regional traffic impacts of the Project, subject to CPI Adjustment as provided in Section 4.17. Developer shall be entitled to a credit against the Regional Traffic Fee for Developer's actual out-of-pocket costs paid to unaffiliated third parties in connection with Developer's construction and installation of City -approved regional traffic improvements, if any. For purposes of this Section 4.02, City -approved regional traffic improvements shall include regional roadway and traffic improvements that mitigate regional traffic impacts identified in the EIR, as selected by City from time to time in its discretion. Roadway and traffic improvements included within the PFFP or required by the Project Approvals or the MMRP, shall not be considered City -approved regional traffic improvements for purposes of this Section 4.02. All Regional Traffic Fees paid by Developer shall be held by City in a separate account and used exclusively for City -approved regional traffic improvements which mitigate regional traffic impacts identified in the EIR. If, within fifteen (l 5) years of the Effective Date of this Agreement, such Regional Traffic Fees have not been committed in writing or expended by City 19 1290666v3D 80078/0053 for the construction of regional traffic improvements that meet the criteria set forth above, City shall return such unexpended and uncommitted Regional Traffic Fees to Developer. City in its sole discretion shall have the option of transferring any fees paid under this Section to the Sonoma County Transportation Authority or other agency for the purpose of planning, designing, and/or constructing regional traffic improvements. B. In consideration of Developer's agreement to pay the Regional Traffic Fee as provided in Section 4.02A, above, City covenants that for the five (5) year period commencing on the Effective Date and continuing until the fifth (5th) anniversary thereof, City will not enter into any development agreement pursuant to the Development Agreement Statute for any residential development immediately adjacent to the SMV P -D Zoning District, unless such development agreement contains a provision obligating the developer of such project to pay a regional traffic improvement fee, the amount of which shall be determined by City in its reasonable discretion based upon the project's regional traffic impacts, as identified in the applicable CEQA document for the project. City's obligations under this Section 4.02B shall immediately terminate in the event that City, by itself or in cooperation with other area municipalities, enacts a regional traffic improvement impact fee pursuant to the Mitigation Fee Act. Section 4.03 Public Facilities Financing Plan. A. City has prepared and adopted the PFFD in order to identify capital facilities necessary to serve new development, and to develop a comprehensive strategy for managing the financing of such facilities, among other purposes. Developer shall participate in the PFFP and any amendments thereto applicable to the Project. Developer and City agree that the terms and provisions of the PFFD shall apply to the financing of public improvements necessary to serve the Project. A financing plan for financing all in -tract improvements shall be submitted by Developer in conjunction will any and all tentative tract map applications for the Project. B. Developer shall pay City the PFFP Fees in effect at time of issuance of each building permit. Developer further agrees to and accepts the "fair share" methodology for allocating costs among planned development projects, including the Project, and existing development within City as set forth in the PFFP as of the Effective Date. Developer acknowledges and agrees that City may update the amount of the PFFP Fees from time to time, as City deems necessary and appropriate. Developer hereby covenants not to sue City in connection with, and waives any and all rights to challenge, the PFFP, including any updates to the PFFP, on any grounds whatsoever. C. Notwithstanding any provision of the PFFP to the contrary, Developer shall be entitled to receive credits against PFFP Fees for those improvements included in the PFFP and constructed by Developer, at the lesser of: (i) Developer's actual out-of-pocket cost and expenses paid to unaffiliated third parties in connection with the construction and installation of such improvements, or (ii) the designated cost amounts for such improvements set forth in the PFFP at the time City approves the plans for such improvements ( "Eligible Cost"). To the extent the aggregate Eligible Cost of all PFFP improvements constructed by Developer exceeds Developer's total PFFP Fee obligation with respect to the Project, City and Developer shall enter 20 1290666v3D 80078/0053 into a separate reimbursement agreement, in a form reasonably acceptable to City Attorney, whereby Developer will be reimbursed from available PFFP finds paid in the future by third party developers at the time such funds are paid to City. City shall have the right to use PFFD funds paid by other developers for certain critical infrastructure facilities before reimbursements are made available to Developer. Developer shall maintain and make available to City and its representatives, for review and/or audit from time to time, records of all costs and expenses which are subject to potential reimbursement pursuant to the reimbursement agreement. D. City covenants and agrees that until all such fees are credited or reimbursed, City will administer the PFFD in a consistent manner and will require developers of all residential and commercial projects within City to either pay their respective share of PFFP fees, determined in accordance with the PFFP as amended from time to time, or construct PFFP improvements in an amount equal to their respective share. Section 4.04 Financing, Mechanisms for Public Facilities. A. Public Facilities. Developer shall finance the design and construction of those public facilities necessary or desired by City in connection with the Project, including (i) off-site public improvements required under this Agreement, including the East Side Sewer Trunk Line Extension, subject to Section 4.19; and (ii) on-site public improvements, including the Water Storage Facility, Fire Station, SMART Path, Non -Project Stormdrain, and Soccer Field (collectively, "Public Facilities"). B. Community Facilities District Formation. The Parties acknowledge that Developer's sources of funding for the Public Facilities have not been determined. Developer is currently evaluating its options, and the Parties contemplate that the Public Facilities may be funded by a community facilities district ( "CFD ") pursuant to the Mello -Roos Community Facilities Act of 1982 (Government Code Sections 53311, et seg.) ("Mello -Roos Act"). While Developer has the option of funding the Public Facilities privately or by other means, Developer may, at Developer's sole and absolute discretion, elect to fund such construction through the establishment of a CFD ( "CFD Election "). Immediately following Developer's CFD Election, Developer shall provide notice to City of its determination to fund the Public Facilities by a CFD, in which case financing for the Public Facilities shall be provided by: (i) the formation of a CFD for the Property pursuant to the Mello -Roos Act, (ii) the issuance of bonds by the CFD ("CFD Bonrls"), the proceeds of which would be used to construct and/or acquire the Public Facilities upon completion of their construction, to the extent the Proposed Public Facilities legally and feasibly may be financed and/or paid utilizing this method of financing, and (iii) an annual levy by the CFD of a special tax ("Special Tax") sufficient to pay principal and interest on the CFD Bonds and annual administration, engineering, and inspection costs associated with the CFD, which CFD special tax shall be secured by recordation in the Official Records of the County of Sonoma of continuing liens against the Property. CFD districts will not be formed in phases unless the City Manager, in his or her sole and absolute discretion, allows the phasing of such CFD districts; however, City agrees to work with Developer to phase bond sales as necessary to satisfy the demands of the public credit market. Upon making such CFD Election, Developer shall have agreed to the following: 21 1290666v3D 80078/0053 (1) Developer's Consent. Developer shall irrevocably consent to the formation of a CFD, the issuance of CFD Bonds, the imposition of taxes against the Property with respect thereto, and the apportionment of the costs and expenses of the Public Facilities, and waives any and all right of protest or objection with respect thereto. Developer has agreed to the financing provisions set forth in this Section 4.04 and to perform the obligations hereunder in exchange for the consideration and benefits provided to Developer by City under this Agreement, including the vested right to develop the Property. Developer acknowledges and agrees that CFD Bonds shall not be issued to fund any on-site public improvements or any other infrastructure or fees other than the Public Facilities. (2) City's Reservation of Discretion. It is expressly acknowledged, understood and agreed by the Parties that (i) City shall act independently, reserving full and complete discretion with respect to formation of any CFD, (ii) nothing in this Agreement is intended to or shall abrogate or delegate City's discretionary powers or limit City's ability to adopt goals and policies with respect to formation of CFD's, (iii) City undertakes no obligation or commitment to form a CFD, and (iv) nothing in this Agreement is intended to or shall prejudge or commit to City regarding the findings and determinations to be made with respect thereto. Without limiting the generality of the foregoing, the Parties agree that the overall property tax rate (inclusive of property taxes, special taxes and assessments) for each parcel included within the CFD shall in no event exceed 1.75%. (3) Advance of Expenses; Reimbursement. Developer shall advance to City the actual out of pocket costs of formation of the CFD, sale of CFD Bonds, and other costs and expenses associated with the CFD ("Advanced Costs"). Such Advanced Costs may include, without limitation, legal, financial, appraisal and engineering costs and expenses associated with (i) formation of the District; (ii) determination of the rate and method of apportionment and levy of the Special Tax; (iii) review and approval of the plans and specifications for construction of the Public Facilities; (iv) determination of the value of property; (v) sale of CFD Bonds; and (vi) any other costs or expenses reasonably incurred in connection with the CFD. All such Advanced Costs, together with those reasonable out-of- pocket legal, engineering and financial services costs incurred by Developer directly related to establishment and implementation of the CFD which have been approved by City Manager or his or her designee in his or her reasonable discretion and which may lawfully be financed under the Mello -Roos Act and other applicable law, shall be reimbursed to Developer from proceeds of the sale of CFD Bonds. (4) Costs if No CFD Formed. In the event that City is unable to make the legally required findings in connection with the formation of the CFD and the issuance of CFD Bonds for any reason, City shall not be liable for any resulting costs to Developer and Developer shall nonetheless be responsible for constructing all of the Public Facilities at its expense (but subject to potential reimbursement of excess Eligible Costs as provided in Section 4.03C. above) regardless of whether the cost thereof exceeds Developer's PFFP Fee obligation. (5) Notification of Fees, Taxes, and Assessments. Developer shall provide advance and ongoing actual and conspicuous notice, in a forrn reasonably acceptable to City, of any and all fees, taxes, and assessments to be charged to any and all purchasers of real property interests in the Project. Developer shall provide potential homeowners with a written 22 1290666v3D 80078/0053 and itemized notice of such projected costs and the manner in which they will be charged to the potential homeowner, which notice the potential homeowner shall sign. Developer shall retain a copy of each signed notice in Developer's files indefinitely and shall provide a copy of each such signed notice to City's Development Services Director. (6) Developer's Cooperation. In connection with the establishment and implementation of the CFD, Developer (i) will execute all necessary petitions and ballots and waive all election waiting and protest periods at City's request and prior to the issuance of any building permit on any Phase of the Project; (ii) support City's adoption of local policies related to use of CFD financing; (iii) cooperate in the development of rate and method of apportionment or assessment formula; (iv) allow special tax liens to encumber all Phases of the Project in order to accomplish the required construction projects. (7) Limited Liability of City. Notwithstanding any other provision of this Agreement, City shall not be liable for or obligated to pay any costs or expenses in connection with the CFD or the Public Facilities except to the extent monies are available (from Advanced Costs, PFFP Fees collected in accordance with the PFFP, proceeds of CFD Bonds, or Special Taxes) and specifically authorized by law for payment of such costs or expenses. Section 4.05 Public Maintenance Fees. A. Developer shall pay public maintenance fees ( "Maintenance Fees") to offset the projected fiscal deficit to City's General Fund created by the residential development within the Project to comply with the General Plan policies and goals. B. The following Maintenance Fees shall be paid by Developer: (1) A fee ("Pavement Maintenance/Street Repaving Fee") equal to Two Hundred and Eighty -Six Dollars ($286) per residential unit for the purpose of mitigating the street maintenance and street pavement impacts of the Project, subject to CPI Adjustment as provided in Section 4.17. (2) A fee ( "Public Service Impact Feel') equal to One Thousand Three Hundred and Six Dollars ($1,306) per residential unit for the purpose of mitigating the additional service costs of City as a result of the Project, subject to CPI Adjustment as provided in Section 4.17. Payment of this Public Service Impact Fee and the Additional Service Personnel Fee under Section 4.14 together shall satisfy and conclusively discharge Developer's Obligations over service personnel mitigation requirements imposed pursuant to the EIR. C. Developer shall pay to City the Pavement Maintenance/Street Repaving Fee and Public Service Impact Fee at the following times: (i) initially, at the time of issuance of the building permit for each residential unit within the Project; and (ii) subsequently, not later than April 30 each year following the year of initial payment and continuing in perpetuity, provided that at least twelve (12) months shall elapse between the date of initial payment and the first subsequent payment. Developer shall ensure the on-going payment of the Maintenance Fees by establishment of service districts, property owner and homeowner associations, or other mechanisms which shall be responsible for making the annual Maintenance Fees payment. The 23 1290666v3D 80078/0053 Maintenance Fee funding mechanism shall be subject to City approval, and all relevant documents, agreements, and, as applicable, property owner and homeowner association documents, including the conditions, covenants and restrictions, shall expressly provide language to that effect in addition to language that the City shall be a third party beneficiary with the right to independently enforce such associations' obligations, which language shall be reviewed and approved by the City Attorney. D. Satisfaction of Contribution Obligations. Payment of all applicable Pavement Maintenance/Street Repaving Fees and Public Service Impact Fees shall satisfy and conclusively discharge Developer's obligations to contribute toward any City general fund maintenance annuity, excluding any sewer and water enterprise funds and other utility funds, which Developer might otherwise be obligated to contribute toward in the absence of this Section 4.05. Section 4.06 Financing Mechanisms for Private Improvements. Prior to approval of any final map within the Project, Developer shall prepare and submit to City Manager or his or her designee for review and approval a plan, that shall include establishment of property owner and homeowner associations, to ensure payment of the on-going costs of operation, maintenance, repair and replacement of all private open space, private recreation and private parks, private landscaped areas and private streets and alleys, and all water quality detention basins and other private utilities included within such final map ("Private Infrastructure"). In proposing a particular plan to City, Developer shall demonstrate to the satisfaction of City Manager or his or her designee (in his or her reasonable discretion) that funding of such on-going costs is economically sound and feasible; approval of the mechanism for funding such ongoing costs by the California Department of Real Estate shall create a presumption that such funding mechanism is economically sound and reasonable. The property owner and homeowner associations (and not City) shall be solely responsible for bearing all costs in connection with maintenance, operation, repair and replacement of such Private Infrastructure. City shall be named as an express third party beneficiary under all property owner and homeowner association documents with the right to independently enforce such associations' obligation to pay all costs of maintaining, operating and repairing the Private Infrastructure. The form of Developer's homeowner and property owner association documents, including conditions, covenants and restrictions, shall be subject to review and approval by City Attorney, not to be unreasonably withheld or delayed. Section 4.07 Pedestrian Walkways and Bicycle Paths. A. Developer shall construct, at Developer's expense, and reserve for public use all pedestrian walkways and bicycle paths provided in the SMV Final Development Plan, as further described in Exhibit E-1 hereto. All such pedestrian walkways and bicycle paths shall be owned and maintained by Developer and/or Developer's successor in interest, with public use secured through access easements dedicated to City or otherwise in a form reasonably acceptable to the City Attorney. B. Developer shall use its best efforts to complete construction of, and dedicate to City or other government agency with jurisdiction, ownership, and/or control thereof, a pedestrian walkway and bicycle path ( "SMART Path ") commencing at the northwest corner 24 1290666v3D 80078/0053 of the Property and continuing to the future Sonoma -Marin Area Transit station ( "SMART Station ") planned for development at the railroad alignment on East Cotati Avenue, which SMART Path is further described in Exhibit E-2 hereto (the SMART Path and SMART Station are collectively referred to herein as the "SMART Project"). The Parties acknowledge that the SMART Project is part of a regional transportation project, approved by the voters of Sonoma County and Marin County, which calls for the development of a regional light rail system, development and enhancement of pedestrian and bicycle transportation routes, and related transportation features. The Parties further acknowledge that SMART is organized as a public agency with various governmental powers to plan for the project, acquire property for the project, and otherwise construct, develop, and operate the project. The SMART Path shall be subject to public use secured through access easements dedicated to City or other government agency with jurisdiction, ownership, and/or control thereof, or otherwise in a form reasonably acceptable to the City Attorney. (1) The Parties acknowledge that neither City nor Developer own certain portions of the property on which the SMART Path is proposed, and that future development of the SMART Station has not been set and is contingent upon funding and other factors beyond the Parties' control. Development of certain portions of the SMART Path is therefore contingent upon City acquiring the subject right-of-way or such other events which would enable Developer's construction to occur. Construction and dedication of the SMART Path shall occur in conjunction with future development of the SMART Station, with completion to coincide with the initial operational date of the SMART Station. (2) Developer represents that: (i) SMART intends to develop a portion of its project along its right-of-way located on the Property, a portion of which coincides with the SMART Path; (ii) Developer has been engaged in discussions with SMART on such development; and (iii) SMART's plans for such development are consistent with the Developer's plans for the Project, including the SMART Path as described in Exhibit E-2. (3) In order to ensure that the Project is developed in conformance with the Parties wishes described above, the Parties agree that, prior to City's approval of a final tract map for Phase 1-A, Developer and SMART shall enter into a memorandum of understanding or similar binding agreement in a form approved by City, providing for the following: (i) Developer's or SMART's design and development of a pedestrian walkway and bicycle path on and around SMART's right-of-way on the Property from Railroad Avenue to East Cotati Boulevard which is consistent with the SMART Path described in SMV Final Project Description and Exhibit E-2; (ii) Developer's dedication to SMART of a public access easement for said pedestrian walkway and bicycle path; and (iii) funding of the SMART Path whereby SMART will fund all portions within its right-of-way on the Property and Developer will fund all other portions on the Property. (4) The Parties agree that, to the extent any proposed tentative tract map for the Project encompasses the SMART Path, completion of that portion of the SMART Path, and, as applicable, City's or SMART's acceptance of the related public access easement therefor, shall be required prior to approval of the corresponding final tract map. l41 1290666v3D 80078/0053 (5) Notwithstanding anything to the contrary in this Section 4.07B, should Developer be unable to, despite its best efforts, develop the SMART Path prior to December 31, 2014, Developer shall pay City an amount equal to the full estimated cost of developing the SMART Path (excluding the cost of acquisition of any right of way) as determined by the City Engineer. Section 4.08 Roadway Impact Fees. A. Developer agrees to pay a fee equal to One Million One Hundred Eighty Thousand Two Hundred and Eleven Dollars ($1,180,211) for the purpose of mitigating roadway impacts on Bodway Parkway caused by the Project ("Bodway Parkway Impact Fee"), as follows: (i) Five Hundred Ninety Thousand One Hundred and Six Dollars ($590,106) shall be paid to City prior to the issuance of the eight hundredth (800th) residential building permit for the Project; and (ii) Five Hundred Ninety Thousand One Hundred and Five Dollars ($590,105) prior to the issuance of the nine hundred forty-seventh (947th) residential building permit for the Project. B. Developer agrees to pay a fee equal to One Million Seven Hundred and Eleven Thousand Three Hundred Sixty -One Dollars ($1,711,361) for the purpose of mitigating roadway impacts on Camino Colegio caused by the Project ("Camillo Colegio Impact Fee"), as follows: (i) Eight Hundred Fifty -)Five Thousand Six Hundred Eighty -One Dollars ($855,681) shall be paid to City prior to the issuance of the one thousandth (1,004t1h) residential building permit for the Project; and (ii) Eight Hundred Fifty -Five Thousand Six Hundred Eighty -One Dollars ($855,680) prior to the issuance of the one thousand three hundred and twenty-seventh (1,327th) residential building permit for the Project. Section 4.09 Roadway Improvements. Developer, at its expense, shall construct and thereafter dedicate to City roadway improvements extending Bodway Parkway from Valley House Drive to Railroad Avenue, as provided for in the PFFP. Construction of the Bodway Parkway improvements shall be completed and the roadway open for public use prior to issuance of the first certificate of occupancy for Phase 2 of the Project. The Parties acknowledge that City, may, in its sole discretion, opt to design and construct the Bodway Parkway improvements, and in such event Developer agrees to pay to City, prior to issuance the first building permit for Phase 2 of the Project, the costs and expenses, including staff time incurred in connection with " such permitting, design, construction and installation of the Bodway Parkway improvements. Section 4.10 Dedications to City and Public Improvements, A. Water Storage Fes. Developer, at its expense, shall design, construct and thereafter dedicate in fee to City a water storage facility within the Property to serve the Project in accordance with the Water Storage Guidelines attached hereto as Exhibit F and to the satisfaction of the City Manager and his or her designee ("Water Storage Facility"). Such dedication shall include any nonexclusive access easements over adjacent land owned by Developer which may be necessary for City's access from the nearest public roadway. Developer acknowledges that its timely construction and dedication of the Water Storage Facility is necessary to ensure the provision of adequate fire flow to the Project, or portion thereof under construction, as determined by City Fire Chief. The Water Storage Facility shall be depicted in 26 1290666v3D 80078/0053 the tentative tract map for Phase 1-B; however, the Parties agree and acknowledge that construction and dedication of the Water Storage Facility to City, including casements related thereto, shall be conditions of approval for all tentative tract maps. The Parties agree that no final map for any Phase of the Project shall be approved or filed until the Water Storage Facility has been completed, and all associated land and easements dedicated to City as required in this Section 4.1 OA and Section 4.1 OB. B. Ac uisition of Water Storage Facility Site. In conjunction with Developer's dedication of the Water Storage Facility to City, Developer shall transfer, and City shall acquire, a fee interest in and to an approximately 0.75 acre Water Storage Facility site and related nonexclusive access easements (collectively, the "Water Storage Facility Site"). Developer has proposed to City as the location of the Water Storage Facility Site that certain property depicted and identified as the Water Storage Facility Site in Exhibit G attached hereto. City is evaluating this proposed location, and Developer agrees that if City approves the proposed location, the property depicted s the Water Storage Facility Site in Exhibit G attached hereto shall be the Water Storage Facility Site. The closing of the Water Storage Facility Site transfer and acquisition will take place through an escrow established with a title company selected by City. The closing shall occur so as to coincide with Developer's completion and/or satisfaction of all other conditions of approval for the first final map of the Project, on a date mutually acceptable to the Parties. Developer shall cause the Water Storage Facility Site to be conveyed to City free and clear of all recorded and unrecorded non -monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and other exceptions to or defects in title, excepting only the lien for current, non -delinquent property taxes. Developer shall pay all costs required to place title in the condition described herein and shall convey the Water Storage Facility Site to City by a standard title company form grant deed, except that the deed shall recite that the transfer is in lieu of acquisition by eminent domain. All escrow charges and recording fees shall be borne by Developer. City shall pay the cost of its owners policy of title insurance. Escrow agent shall pay and charge Developer for that portion of current property taxes and assessments and any penalties and interest thereon allocable to the period prior to the close of escrow. The portion of current property taxes which would otherwise be allocable to the period after the close of escrow shall not be allocated, as City is exempt from payment of property taxes. Developer shall have the sole right, after close of escrow, to apply to the Sonoma County Tax Collector for refund of any excess property taxes which have been paid by Developer with respect to the Water Storage Facility Site. The obligation of City to complete the acquisition of the Water Storage Facility Site shall be subject to the satisfaction, or written waiver by City, of the following conditions: (i) Developer shall deliver through escrow an executed, acknowledged and recordable grant deed sufficient to convey fee title to City as set forth in this Section 4. l OB; (ii) Developer shall deliver through escrow a non -foreign transferor declaration duly executed and in a form reasonably acceptable to escrow agent; (iii) a title company reasonably acceptable to City shall be prepared to deliver to City an ALTA standard or, at City's election, an extended coverage owner's policy of title insurance showing fee title to the Water Storage Facility Site vested in City in the condition described in this Section 4.l OB with insurance coverage in the amount of the fair 27 1290666v3D 80078/0053 market value of the Water Storage Facility Site as reasonably determined by City; and (iv) City shall have approved the soils and environmental condition of the Water Storage Facility Site. C. Non -Project Stormdrain. A private storrndrain currently exists on the Property and, as part of the Project, will be relocated as depicted on the Non -Project Stormdrain Depiction attached hereto as Exhibit H. The private stormdrain, as relocated, shall be referred to herein as the "Nora -Project Stornidi•ain." The Parties acknowledge that the Non -Project Stormdrain does not service the Property, nor will it service any portion of the Project upon Project completion and stormdrain relocation. City agrees to accept ownership of the Non - Project Stormdrain, and any necessary access and real 'property easements therefor, upon dedication thereof from Developer. Such dedication shall be an irrevocable offer to dedicate in a form reasonably acceptable to City Attorney. Prior to City's recordation of the irrevocable offer to dedicate the Non -Project Stormdrain, Developer, at its expense, shall cause all recorded and unrecorded monetary liens and all recorded and unrecorded non -monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and other exceptions to or defects in title, excepting only the lien for current, non -delinquent property taxes, to be removed from title. D. Fire Station. Developer shall fund all costs and expenses associated with the permitting, design, construction and installation of a fire station/public safety facility to serve the Project and other areas within City ("Fire Station "), to the satisfaction of City Manager or his or her designee, as follows: (i) commencing upon DeveIoper's submission of the tentative map including the three hundred and thirty-sixth {336t1i) residential building permit for the Project, Developer shall reimburse City, within thirty (30) days of City's written request therefor, all of City's costs and expenses, including staff time, incurred in connection with permitting and design of the Fire Station; (ii) commencing upon the issuance of the three hundred and thirty- sixth (3361") residential building permit for the Project, Developer shall reimburse City, within thirty (30) days of City's written request therefor, all of City's costs and expenses, including staff time, incurred in connection with permitting, design, construction and installation of the Fire Station. In addition, prior to issuance of the three hundred and thirty-sixth (336"') residential building permit for the Project, Developer shall design, construct and fully improve that portion of 2nd Street between Camino Colegio and A Street. Notwithstanding the immediately preceding sentence, if the City so chooses, it may, in conjunction with development of the Fire Station, improve that portion of 2" d Street between Camino Colegio and A Street, and Developer shall reimburse City for its costs and expenses, including staff time, incurred in connection with such improvement. Developer acknowledges that its timely funding of the foregoing costs and expenses and improvement of the portion of 2"d Street between Camino Colegio and A Street are necessary to ensure that the Fire Station can be installed by such time as City Fire Chief, or his or her designee, determines the Fire Station is necessary to provide adequate fire service to the Project, or portion thereof under construction. The Fire Station shall be within that portion of the Property reserved as Phase 1-B, but its construction and dedication of land and easements to City shall be conditions of approval for all tentative tract maps. The Parties agree that no final map for any Phase of the Project shall be approved or filed until the Fire Station has been completed, and all associated land and easements dedicated to City as required herein. Provided that Developer meets its funding obligations under Section 4.1 ODand this Section 4.1 OE, and subject to enforced delays as provided in Section 9.06, City shall diligently pursue permitting, design, construction and installation of the Fire Station. 28 1290666v3D 80078/0053 E. Dedication of Fire Station Site. (1) Developer shall transfer, and City shall acquire, a fee interest in and to an approximately 1.3 acre Fire Station site, and related nonexclusive access easements (collectively, the " Fire Station Site"). Developer has proposed to City as the location of the Fire Station Site that certain property depicted and identified as the Fire Station Site in Exhibit G attached hereto. City intends to evaluate the proposed location, and Developer agrees that if City approves the proposed location, the property identified as the Fire Station Site in Exhibit G attached hereto shall be the Fire Station Site. (2) The Fire Station Site transfer and acquisition will take place through an escrow established with a title company selected by City. The escrow closing shall occur as soon as practicable following the Effective Date, on a date mutually acceptable to the Parties, but in any event prior to issuance of the. first certificate of occupancy for any residential unit or commercial space within the Project. Developer shall cause the Fire Station Site to be conveyed to City free and clear of all recorded and unrecorded non -monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and other exceptions to or defects in title, excepting only the lien for current, non -delinquent property taxes. Developer shall pay all costs required to place title in the condition described herein and shall convey the Fire Station Site to City by a standard title company form grant deed, except that (for tax purposes only) the deed shall recite that the transfer is in lieu of acquisition by eminent domain. All escrow charges and recording fees shall be borne by Developer. City shall pay the cost of its owners policy of title insurance. (3) Escrow agent shall pay and charge Developer for that portion of current property taxes and assessments and any penalties and interest thereon allocable to the period prior to the close of escrow. The portion of current property taxes which would otherwise be allocable to the period after the close of escrow shall not be allocated, as City is exempt from payment of property taxes. Developer shall have the sole right, after close of escrow, to apply to the Sonoma County Tax Collector for refund of any excess property taxes which have been paid by Developer with respect to the Fire Station Site. (4) The obligation of City to accept dedication of the Fire Station Site shall be subject to the satisfaction, or written waiver by City, of the following conditions: (i) Developer shall deliver through escrow an executed, acknowledged and recordable grant deed sufficient to convey fee title to City as set forth in this Section 4.10E; (ii) Developer shall deliver through escrow a non -foreign transferor declaration duly executed and in a form reasonably acceptable to escrow agent; (iii) a title company reasonably acceptable to City shall be prepared to deliver to City an ALTA standard or, at City's election, an extended coverage owner's policy of title insurance showing fee title to the Fire Station Facility Site vested in City in the condition described in this Section 4.10E with insurance coverage in the amount of the fair market value of the Fire Station Site as provided hereinabove; and (iv) City shall have approved the soils and environmental condition of the Fire Station Site. F. No Additional Purchase Price. Developer's construction of the Water Storage Facility, funding of the Fire Station, transfer of the Water Storage Facility Site and Fire Station Site to City, and dedication of the Non -Project Stormdrain shall be in consideration of 29 1290666v3D 80078/0053 City's performance of its obligations set forth in this Agreement, and neither City nor City's designee shall be required to pay any additional fee or purchase price in connection therewith; provided, however, that Developer shall be entitled to a credit of costs, including staff time, incurred in connection with development and construction of the Fire Station, exclusive of any land costs, pursuant to Section 4.03C to offset PFFP Fees which Developer would otherwise be obligated to pay. G. No Maintenance Oblip-ations for Public Infrastructure. Except as expressly provided otherwise in this Agreement, nothing in this Agreement shall obligate Developer to maintain or fund the maintenance expenses of the Water Storage Facility or Water Storage Facility Site, the Fire Station or Fire Station Site, or the Non -Project Stormdrain. Section 4.11 Park Improvements. A. Public Parks and Open Space. Developer, at its expense, shall construct and reserve for public use all parks and open space areas provided in the SMV P -D Zoning District as more particularly described in the SMV Final Development Plan. All such public parks and open space areas shall be owned by Developer and/or Developer's successor in interest, with public use secured through access easements dedicated to City or otherwise in a form reasonably acceptable to City Attorney. Reservation of public parks and open space areas shall be depicted in the tentative tract maps for each future phase of the Project, and their construction shall be conditions of approval for such tentative tract maps, so that construction and dedication of all such parks and open space areas will be completed in conjunction with Developer's completion of each such future Project Phase. To that end, no final map for any portion of the Project shall be approved or recorded until either all public parks and open space areas depicted in its corresponding tentative tract map have been completed and reserved for public use as required herein, or a subdivision improvement agreement in a form acceptable to City is entered into in accordance with Applicable Laws. B. Soccer Field. (1) Developer Obligation. Developer, at its sole cost and expense, shall construct or fund construction of, an international all-weather soccer field including site preparation work and construction of those improvements identified in the Soccer Field Scope of Work ( "Soccer Field"). The Soccer Field Scope of Work is attached hereto as Exhibit K. As further set forth below, the Soccer Field may be located at "Site 1" as depicted and described in Exhibit L or at "Site 2" as depicted and described in Exhibit M, and it is possible that a Soccer Field will initially be constructed at Site 1 and another Soccer Field will later be constructed at Site 2 with an ensuing Site Swap (defined in Section 4.118(3) below). The defined terms "Site l" and "Site 2" include any current or future improvements {including the Soccer Field at such Site) together with existing or future Access Easements associated with such Site. In all events, costs associated with Soccer Field construction (including site preparation, governmental fees, and compliance with Applicable Law) at either Site shall be borne solely by Developer. In no event, however, shall Developer be responsible for ongoing Soccer Field operation and maintenance costs. All Soccer Field work undertaken by or on behalf of Developer shall be performed by contractors duly licensed by, and in good standing under the law of, the State of California, and otherwise in accordance with Applicable Law and this Agreement. 30 3290666v3D 80078/0053 (2) Site 1 Soccer Field. a. Construction by Developer. Developer shall undertake and complete construction of a Soccer Field at Site I ("Site I Soccer Field") by the earlier of (i) December 31, 2012 or (ii) issuance of the two -hundredth (200`x) residential building permit for the Project. b. Construction by City_. Notwithstanding the foregoing, and at any time before Developer completes construction of the Site I Soccer Field, City has the right and option, in its sole discretion, to purchase Site I from Developer and undertake construction of the Site 1 Soccer Field. As a material part of this Agreement and pursuant to Section 4.11 B(2)b, Developer hereby grants to City the option to purchase Site 1 for the sum of One Dollar ($1.00); each Party agrees to and acknowledges the sufficiency of such consideration. Developer's sale of Site 1, and City's purchase thereof, shall be conducted as provided in Section 4.11B(4). City shall exercise such right and option by giving Developer written notice of City's intent to purchase Site 1 from Developer and construct the Site 1 Soccer Field thereon. City shall provide Developer with an invoice all of City's actual costs (including for contractors, consultants, legal fees, and staff time calculated at City's fully loaded cost) incurred in connection with the Site 1 Soccer Field and Site I purchase ("Site I Costs") within one (1) year after City's completion of the Site I Soccer Field. Developer shall reimburse City for all Site I Costs by the earlier of (i) by December 31, 2012 or (ii) issuance of the two -hundredth (200`x') residential building permit for the Project. (3) Site 2 Soccer Field. a. Construction by Developer. If neither Developer nor City has completed construction of the Site 1 Soccer Field, Developer shall undertake and complete construction of a Soccer Fuld at Site 2 ("Site 2 Soccer Field") before completion of Phase 1-C of the Project. If City has completed construction of the Site I Soccer Field, Developer may undertake and complete construction of the Site 2 Soccer Field before completion of Phase 1-C of the Project. Subject to Developer's completion of the Site 2 Soccer Field, and other conditions including those identified in Section 4.11B(3)b, Developer shall have the right institute the Site Swap (defined in Section 4.11B(3)b below), which shall be conducted as provided in Section 4.1 IB(4). b. Site Swap. Subject to Developer's completion of the Site 2 Soccer Field as provided in this Agreement, the City engineer's acceptance of the improvements, and satisfaction of the Conditions Precedent (defined in Section 4.1 IB(4)a below), and so long as Developer is not in material default under this Agreement, then at any time after City's purchase of Site 1 but before completion of Phase I -C of the Project, Developer shall have the right institute a purchase and sale transaction wherein Developer purchases Site 1 from City, and City purchases Site 2 from Developer in a concurrent, bilateral property exchange ("Site Swap"). If Developer desires to institute the Site Swap, Developer shall give City written notice of Developer's intent to repurchase Site I from City and sell Site 2 to City. The purchase price for Site I shall be the sum of One Dollar ($1.00) and the purchase price for Site 2 the sum of One Dollar ($1.00); each Party agrees to and acknowledges the sufficiency of such consideration; each Party agrees to and acknowledges the sufficiency of such consideration. The bilateral 31 1290666v3D 80078/0053 nature of the Site Swap is a material term of this Agreement, absent which Developer's right to institute the Site Swap shall fail. This Site Swap is not intended, nor shall it be construed, to encumber Site 1 in favor of Developer or Site 2 in favor of City. In all events, any Developer right to institute the Site Swap shall automatically terminate upon the earlier of (i) substantial completion of Phase 1-C of the Project, (ii) expiration or earlier termination of this Agreement, (iii) voluntary or involuntary termination of Developer's interest in or right to convey Site 2 to the City upon the terms provided in Section 4.11B(4), or (iv) Developer's failure to timely remit the Site 1 Costs to City. (4) Conduct of Sale. a. Conditions Precedent. City's obligation to purchase Site 1, and each Party's obligation to participate in the Site Swap, shall be subject to the satisfaction, or written waiver by it, of each of the following: (i) the selling Party shall deliver through escrow an executed, acknowledged and recordable grant deed sufficient to convey fee title of the applicable Site to the other Party as set forth herein; (ii) the selling Party shall deliver through escrow a non -foreign transferor declaration duly executed and in a form reasonably acceptable to escrow agent; (iii) a title company reasonably acceptable to the purchasing Party shall be prepared to deliver to such Party an ALTA standard or, at such Party's election, an extended coverage owner's policy of title insurance showing fee title to the applicable Site being sold as vested in such Party in the condition described herein, with insurance coverage in an amount requested by the purchasing Party; and (iv) the purchasing Party shall have approved the soils and environmental condition of the Site it is purchasing (. In addition, City's obligation to participate in the Site Swap is subject to the provisions of Section 4.11 B(3)b. All of the foregoing are referred to herein as "Conditions Precedent". b. Conveyance, Condition of Title. Subject to satisfaction of the Conditions Precedent in favor of the purchasing Party, upon City's exercise of its option to purchase Site 1 and/or Developer's institution of the Site Swap, as applicable, the selling Party shall cause the Site it is selling to be conveyed to the purchasing Party free and clear of all recorded and unrecorded non -monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and other exceptions to or defects in title, excepting only the lien for current, non -delinquent property taxes and the Access Easements. Developer shall pay all costs required to place title in the condition described herein. Each selling Party shall convey the Site it is selling to the purchasing Party by a standard title company form grant deed. To the extent Soccer Fields have been constructed by the selling Party, such Party shall assign to the purchasing Party any assignable, unexpired warranties and shall provide to the purchasing Party as -built drawings of the Soccer Fields and other Site improvements, C. Taxes and Assessments. Escrow agent shall pay and charge Developer for current property taxes and assessments and any penalties and interest thereon allocable to the period of Developer's ownership (whether before or after close of escrow, as applicable) of the Site being transferred. No portion of property taxes shall be allocated to City, as City is exempt from payment of property taxes. Developer shall have the right, after close of escrow, to apply to the Sonoma County Tax Collector for refund of any excess property taxes which have been paid by Developer with respect to either Site. 32 1290666v3D 80078/0053 d. Closing-, Escrow Fees. Conveyance of any Site shall take place through an escrow established with a title company selected by City. The closing of City's purchase of Site 1 shall occur on a date acceptable to City in its sole discretion. The closing of the Site Swap shall occur on a date mutually acceptable to the Parties. All escrow charges and recording fees shall be borne by Developer, and Developer shall bear each Party's cost: of its owners policy of title insurance. Section 4.12 Entrance Monument. Prior to issuance of a residential building permit for Phase 1-C of the Project, Developer shall design, construct and install a City entrance monument ("Entrance Monument") at the intersection of Valley House Drive and Bodway Parkway. The design and Iocation of the Entrance Monument shall be approved by the City Council prior to construction and installation of the Entrance Monument. The amount expended by Developer for the Entrance Monument shall not be credited towards the PUP Fees. The Parties acknowledge that the cost of designing, constructing, and installing the Entrance Monument shall be equal to but not more than thirty thousand dollars ($30,000). Section 4.13 Economic Impact Fee. Developer agrees to pay, at the time of issuance of a building permit for each residential unit within the Project, a fee ("Economic Impact Fee") equal to Four Thousand Dollars ($4,000) for the purpose of mitigating economic impacts of the Project related to loss of industrially -zoned land, subject to CPI Adjustment as provided in Section 4.17. All Economic Impact Fees paid by Developer shall be held by City in a separate account and used exclusively for City's economic development efforts; provided, however, that Developer shall reserve a portion of the Economic Impact Fee otherwise owed to City, as follows: A. Commencing on the Effective Date, and continuing through 2017, Developer shall withhold the following amounts of the Economic Impact Fee: Effective Date through December 31, 2010____------------ 1,500 January 1, 2011 through December 31, 2013: ------------- January 1, 2014 through December 31, 2015:..,.,_____$1,000 January 1, 2016 through December 31, 2017: ......... 1- $500 January 1, 2018 through end of the Term_ ................ _ $0 B. All such funds withheld by Developer shall be devoted exclusively to economic development within Property, such as economic development and financial support of the Business Incubator as provided at Section 4.18 herein. Section 4.14 Additional Service Personnel Fee. Developer agrees to pay, at the time of issuance of a building permit for each residential unit within the Project, a fee ( "Additional Service Personnel Fee") equal to Five Hundred Twenty -Eight Dollars ($528) for the purpose of mitigating City's costs for additional service personnel required by the Project, subject to CPI Adjustment as provided in Section 4.17. W 1290666v3D 80078/0053 Section 4.15 Sewer Pump Station Fee. Developer agrees to pay a fee ("Seiver Pump Station Fee") equal to Seventeen Thousand Two Hundred Seventy -Six Dollar ($17,276) for the purpose of reimbursing City's increased costs in sewer pump station operations caused by the Project, subject to CPI Adjustment as provided in Section 4.17. The Sewer Pump Station Fee shall be paid annually not later than April 30 each year following the Effective Date and shall be required in perpetuity. Developer shall ensure the on-going payment of the Sewer Pump Station Fee by establishment of service districts, property owner and homeowner associations, or other mechanisms which shall be responsible for snaking the annual Sewer Pump Station Fee payment. The Sewer Pump Station Fee funding mechanism shall be subject to City approval, and all relevant documents, agreements, and, as applicable, property owner and homeowner association documents, including the conditions, covenants and restrictions, shall expressly provide language to that effect, which language shall be reviewed and approved by the City Attorney. Section 4.16 Climate Action Plan Fee. Developer agrees to pay, at the time of issuance of a building permit for each residential unit within the Project, a fee ("Climate Action Plan Fee") equal to Two Hundred Seventy -One Dollars and Twenty -Six Cents ($271.26) for the purpose of mitigating the Project's impacts on City's greenhouse gas production, subject to CPI Adjustment as provided in Section 4.17. Payment of the Climate Action Plan Fee shall satisfy and conclusively discharge Developer's obligations over municipal greenhouse gas mitigation requirements imposed pursuant to the EIR. All Climate Action Plan Fees paid by Developer shall be held by City in a separate account and used exclusively for City's efforts to reduce greenhouse gasses in accordance with its adopted Climate Action Plan or other City -approved greenhouse gas reduction programs. Section 4.17 Fee Escalation. The following fees shall be subject to annual adjustment to reflect regular increases in cost and other escalations related to inflation ( "CPI Adjustment "): (i) the Regional Traffic Fee; (ii) the Pavement Maintenance/Street Repaving Fee; (iii) the Public Service Impact Fee; (iv) the Roadway Impact Fees (Rodway Parkway Impact Fee and Camino Colegio Impact Fee); (v) the Economic Impact Fee; (vi) the Additional Service Personnel Fee; (vii) the Sewer Pump Station Fee; and (viii) the Climate Action Plan Fee. All such fees shall be subject to periodic adjustment as follows: the amounts shall be increased on the first anniversary of the Effective Date and year thereafter (each, an "Adjustment Date") to equal the sum of (i) the initial amounts set forth above, plus (ii) the product obtained by multiplying such amount by the percentage increase in the Consumer Price Index measured from the measuring month nearest the Effective Date, to the measuring month nearest the Adjustment Date; provided, however, in no event shall the amounts be reduced below the initial amounts set forth above. As used herein, the term "Consumer Price Index" means the United States Department of Labor's Bureau of Labor Statistics Consumer Price Index, All Urban Consumer, All Items, San Francisco -Oakland - San .lose, California (1982-1984 equals 100), or the successor of such index. Section 4.18 Business Incubator. The Parties acknowledge that a business incubator known as the Sonoma Mountain Village Business Cluster ( "Business Incubator") currently operates in a portion of the Property pursuant to a lease between SMV and the Business Incubator, that the Business Incubator provides key and important benefits to City by encouraging economic development, and that a goal of this Agreement is to establish a means by which the Business Incubator can continue operating and be incorporated into the Project. In order to advance this goal, the Parties agree as follows: 34 1290666v3D 80078/0053 A. To the extent the Business Incubator's total revenue in any fiscal year is less than Seven Hundred Fifty -Five Thousand Dollars ($755,000), SMV shall provide a pro rata reduction in rent which the Business Incubator would otherwise owe over the subsequent fiscal year (i.e., $1 reduced rent for each $1 the Business Incubator's total revenue falls below $755,000), provided that no such pro rata reduction in rent shall exceed Two Hundred Thousand Dollars ($200,000) for any fiscal year. Any such Fent reduction shall be apportioned over the succeeding twelve (12) month fiscal year so as to apply equally and uniformly each month during that period. B. As used herein, total revenue means actual annual revenue reported by the Business Incubator for the preceding fiscal year, but shall not include: (i) any funds received by the Business Incubator from City or the Community Development Commission of the City of Rohnert Park; or (ii) any funds received by the Business Incubator from grant -malting agencies or entities which restrict the use of such funds for non -operational expenses. C. The Parties agree that SMV may, in Developer's sole and absolute discretion, utilize the Economic Impact Fees withheld pursuant to Section 4.1313 above toward funding any rent reductions provided in this Section 4.18. Section 4.19 Existing Building Foolprints and East Side Sewer Trunk Line A. Developer acknowledges that there is a lack of sewer infrastructure sufficient to service the Project, that the PFFP provides for development of a sewer trunk line ( "East Side Sewer Trunk Line ") which will expand sewer infrastructure within the City sufficient to service the Project and other pending development projects in the City, and that development of the East Side Sewer Trunk Line is necessary for the Project. Developer further acknowledges that City is contemplating removing the East Side Sewer Trunk Line project from the PFFP and into City's Sewer Capacity Charge Program, and Developer shall have no objection to such move. Accordingly, and except as provided in Section 4.19, below, the Parties agree that City shall not issue any building permit for the Project unless and until the East Side Sewer Trunk Line has been constructed and is operational. B. The Parties acknowledge that municipal and utility services are currently provided to those portions of the Property ( "Existing Building Footprints ") which were previously developed pursuant to City approvals which pre -date this Agreement as reflected in the Existing Building Footprints Depiction attached hereto as Exhibit 1. Furthermore, because the Existing Building Footprints already receive adequate municipal and utility service, the Parties acknowledge that future development on the Existing Building Footprints need not be contingent upon completion of the East Side Sewer Trunk Line Extension, provided that the intensity of sewer flow from Existing Building Footprints does not exceed the capacity of existing sewer infrastructure serving the Property ( "Existing Sewer Capacity"). C. The Existing Sewer Capacity affords sewer flows up to 73,300 gallons per day average dry weather flow in the Existing Building Footprints. D. Notwithstanding any contrary provisions within Article 4 above, City will not withhold any building permit, certificate of occupancy, or other Subsequent Project Approval 35 1290666v3D 80078/0053 for any work, improvement, or use on or within the Existing Building Footprints solely because the East Side Sewer Trunk Line Extension has not been completed, provided that the Existing Sewer Capacity is not exceeded. E. The Parties acknowledge that, while development of the East Side Sewer Trunk Line is a necessary prerequisite for development of the Project (beyond Existing Building Footprints, as described above), nothing herein obligates, mandates, or otherwise requires Developer to fund, construct, or develop the East Side Sewer Trunk Line, or requires Developer to participate in the funding, construction, or development of the East Side Sewer Trunk Line undertaken by entities not a party to this Agreement. Notwithstanding the foregoing, however, Developer agrees and acknowledges that if a district is formed to fund, construct, or develop the East Side Sewer Trunk Line, Developer shall participate in such district. Furthermore, the Parties acknowledge that, should Developer or one or more other entities develop the East Side Sewer Trunk Line, City intends that the East Side Sewer Trunk Line will be dedicated to City and maintained as a City facility. To that end, nothing herein obligates, mandates, or otherwise requires Developer to own, maintain, or to participate in the ownership or maintenance of, the East Side Sewer Trunk Line should it be developed in the future. Section 4.20 Application of Fees to Second Units. All second units shall be exempt from the fees provided in this Article 4 which are charged, imposed, levied, or assessed on a per- unit basis. Section 4.21 Contribution Toward Public Safety Response Vehicle. Developer agrees to pay, on or before December 31, 2012, a contribution ("Public Safety Response Contribution ") of up to Two Hundred Thousand Dollars ($200,000) for the purpose of assisting City's acquisition of a new public safety response vehicle, including associated upgrading and/or modifying as deemed necessary by City, in its sole and absolute discretion. In consideration of Developer's payment of the Public Safety Response Contribution, City agrees to cause a graphic (composed of image(s), logo(s), and/or text) to be imprinted at a reasonably conspicuous location on the side of said vehicle, for the purpose of indicating Developer's financial contribution toward the vehicle. The content, type, and size of the graphic shall be determined by Developer, but shall not be greater in size than twelve (12) inches by thirty-six (36) inches, and shall be subject to City's prior review and approval, which approval shall not be unreasonably withheld. Section 4.22 Alternate Calculation for Per Unit Fees. The Parties acknowledge that certain benefits may be derived by affording Developer an alternate means to pay the Regional Traffic Fee which would otherwise be paid by Developer on a per unit basis ( "Alternate Per Unit Fee Calculation "). The Alternative Per Unit Fee Calculation shall not include any fees other than the Regional Traffic Fee. The Parties agree that Developer shall have the option, but not the obligation, to utilize the following method in paying such fees for development of units pursuant to any given future tentative tract map: A. ' If Developer elects to utilize the Alternate Per Unit Fee Calculation for development of a given tentative tract map, Developer shall provide notice to City of its election at the time of its submittal of the pertinent tentative tract map in which all residential units proposed for development pursuant to that tentative tract map shall be identified, and the sum of all fees which would otherwise be charged on a per unit basis for all such units shall be 36 1290666v3D 80078/0053 identified. Such sum ( "Total Per Unit Fee Sum ") shall constitute the entire amount of per unit fees which Developer would otherwise pay for all residential units proposed with said tract. If Developer fails to provide notice to City of its election to utilize the Alternative Per Unit Fee Calculation at the time of its submittal of the pertinent tentative tract map to City, then Developer shall pay all Regional Traffic Fees on a per unit basis and not pursuant to the Alternative Per Unit Fee Calculation. B. Developer shall apportion the Total Per Unit Fee Sum among all residential units within the tract in the manner which would most -effectively benefit development therein, as determined by Developer; provided, however, that such apportionment shall be subject to the following: (1) No residential unit shall be apportioned Regional Traffic Fees which are less than twenty-five percent (25%) of the total amount of per unit fees which Developer would otherwise pay in connection for such unit in the absence of this Section 4.22. (2) The sung of all apportioned Regional Traffic Fees for all residential units within the tract shall equal the Total Per Unit Fee Sum for such tract. (3) Regional Traffic Fees shall be apportioned such that, upon issuance of fifty percent (50%) of the building permits for residential units proposed for the tract, actual Regional Traffic Fees paid as of that date will equal or exceed one-half ('/z) of the Total Per Unit Fee Sum for the tract ("One -Half Per Unit Fee Sum"). In the event actual fees paid as of that date do not equal or exceed the One -Half Unit Fee Sum, Developer shall, within ten (10) calendar days of such determination, pay to City a "One -Half True -Up " which shall be an amount equal to the difference between the One -Half Per Unit Fee Sum and actual Regional Traffic Fees paid as of that date. (4) Prior to the earlier of (i) issuance of the final building permit for residential units proposed for the tract, or (ii) release of bonds under the subdivision agreement relating the pertinent tract, actual Regional Traffic Fees paid as of that date will equal or exceed the Total Per Unit Fee Sung for the tract. In the event actual Regional Traffic Fees paid as of that date do not equal or exceed the Total Per Unit Fee Sum, Developer shall, within ten (10) calendar days of such determination, pay to City a "Total Unit True -Up" which shall be an amount equal to the difference between the Total Per Unit Fee Sum and the actual fees paid as of that date. C. If Developer seeks to transfer any interest in any portion within a tract in which Developer has elected to utilize the Alternative Per Unit Fee Calculation, Developer shall, prior to any such transfer, pay to Coty a "True Up"which shall bring Developer current on all Regional Traffic Fees as if paid on per unit basis. D. If Developer fails to strictly comply with this Section 4,22, Developer shall thereafter have no right to utilize the Alternative Per Unit Fee Calculation for any subsequent tract maps of the Project. 37 1290666v3D 80078/0053 ARTICLE 5. DEVELOPMENT STANDARDS AND REQUIREMENTS Section 5.01 Compliance with State and Federal Law. Developer, at its sole cost and expense, shall comply with requirements of, and obtain all permits and approvals required by, regional, State and Federal agencies having jurisdiction over the Project. Section 5.02 PrevailingWave Re uirements. A. Developer acknowledges and agrees that all improvements paid for directly or indirectly with the proceeds of CFD Bonds or other public funds will constitute construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds as provided under California Labor Code Section 1720. Accordingly, Developer shall comply with, and cause its contractors and subcontractors to comply with, all State Labor Code requirements and implementing regulations of the Department of Industrial Relations pertaining to "public works," including the payment of prevailing wages in connection with development of the Project (collectively, "Prevailing Wage Laws "). Developer shall require the contractor for the Project or any portion thereof involving any such publicly financed improvements, to submit, upon request by City or County, as applicable, certified copies of payroll records to City, and to maintain and make records available to City and its designees for inspection and copying to ensure compliance with Prevailing Wage Laws. Developer shall also include in each of its contractor agreements, a provision in form acceptable to City, obligating the contractor to require its contractors and/or subcontractors to comply with Prevailing Wage Laws, and to submit, upon request by City, certified copies of payroll records to City and to maintain and make such payroll records available to City and its designees for inspection and copying during regular business hours at the Property or at another location within City. B. Developer shall defend (with counsel reasonably acceptable to City), indemnify, assume all responsibility for, and hold harmless City and its officers, officials, employees, volunteers, agents and representatives from and against any and all present and future liabilities, obligations, orders, claims, damages, fines, penalties and expenses (including attorneys' fees and costs) arising out of or in any way connected with Developer's or its contractors' obligations to comply with all Prevailing Wage Laws, including all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781. Section 5.03 Green..Building and Smart Growth. Developer shall cooperate and work with City to establish "green" (i.e., environmentally sensitive) and "smart growth" development standards and requirements in accordance with the General Plan, the SMV Final Development Plan, and the SMV P -D Zoning District, sufficient to ensure that (i) all single-family detached units will achieve a minimum of 100 points, (ii) all single-family attached units will achieve a minimum of 90 points, and (iii) all multifamily units shall achieve a minimum of 80 points under the "Build It Green 2005 Edition of the New Home Construction Green Building Guidelines" adopted by City Council on March 14, 2006 by Resolution 2006-67. Such standards and requirements shall address issues including sustainable site planning, safeguarding water quality 38 1290666v3D 80078/0053 and water efficiency, optimizing energy performance, conserving and recycling materials and resources, and improving indoor environmental quality. Each of the above specified minimum point requirements shall include a minimum of 10 points for recycled water, community and innovation credits. In addition, Developer or its successor with respect to the Commercial Core shall cooperate with City to develop green building standards for the Commercial Core commercial and mixed-use buildings, which shall be incorporated into the development area plan for the Commercial Core. The Commercial Core development area plan shall be subject to review and approval by City Council in its reasonable discretion. Section 5.04 Sale Tax Point of Sale Desi nation. Developer shall use good faith efforts to require all persons and entities providing bulk lumber, concrete, structural steel and pre- fabricated building components, such as roof trusses, to be used in connection with the construction and development of, or incorporated into, the Project, to designate City as the sole point-of-sale for purposes of computing sales taxes due under the Bradley -Burns Uniform Local Sales and Use Tax Law (Revenue & Taxation Code Sections 7200, et seq. and implementing regulations) on the sale of such bulk construction and building materials and components. Section 5.05 Affordable Housing Plan. Developer shall comply with the provisions of the Affordable Housing Plan for the Project, attached hereto as Exhibit J ("Affordable Housing Plan "). Developer's compliance with all provisions of the Affordable Housing Plan shall be deemed to satisfy Developer's obligations under City's inclusionary zoning ordinance (City Municipal Code Section 17.07.020(N)). ARTICLE 6. MORTGAGEE PROTECTION Section 6.01 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 the Agreement, including the lien of 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 of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee"), who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise. Section 6.02 Mortgagee Not Obligated. Notwithstanding the provisions of Section 6.01 above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any use except in full compliance with the Project Approvals nor to construct any improvements thereon or institute any uses other than those uses or improvements provided for or authorized by the Agreement, or otherwise under the Project Approvals. Section 6.03 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City agrees to use its best efforts to deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given .to Developer with 39 1290666v3D 80078/0053 respect to any claim by City that Developer has committed an event of default, and if City makes a determination of noncompliance hereunder, City shall likewise use its best efforts to serve notice of such noncompliance on such Mortgagee concurrently with service thereon on Developer. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in City's notice. If a Mortgagee shall be required to obtain possession in order to cure any default, then vis-a-vis the Mortgagee, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure but in no event may this period exceed one hundred twenty (120) days from City's notice. ARTICLE 7. COOPERATION AND IMPLEMENTATION Section 7.01 Subsequent Project Approvals. Developer and City acknowledge and agree that Developer intends to submit applications for Subsequent Project Approvals, including both Subsequent Ministerial Approvals and Subsequent Discretionary Approvals. In connection with any Subsequent Project Approval, City shall exercise its discretion in accordance with Applicable Law, the Project Approvals and, as provided by this Agreement, including the reservations of authority set forth in Section 3.05. A. Subsequent Ministerial Approvals ( "Subsequent Ministerial Approvals ") are permits or approvals that are required by Applicable Law and that are to be issued upon compliance with uniform, objective standards and regulations. They include applications for road construction permits or authorizations; grading and excavation permits; building permits, including electrical, plumbing, mechanical, Title 24 Electrical, and Title 24 Handicap permits or approvals; certificates of occupancy; encroachment permits; water connection permits; and any other similar permits required for the development and operation of the Project. B. All other Subsequent Project Approvals, including amendments of the Project Approvals, site development plan approvals, Commercial Core development area plan, improvement agreements, architectural review permits, use permits, lot line adjustments, subdivision maps, preliminary and final development plans, rezonings, development agreements, permits that are not Subsequent Ministerial Approvals, resubdivisions, and any amendments to, or repealing of, any of the foregoing, are Subsequent Discretionary Approvals ( "Subsequent Discretionary Approvals"). Section 7.02 Processing Applications for Subsequent Project - ct Approvals. A. Developer acknowledges that City cannot begin processing applications for Subsequent Project Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to cavy out its obligations hereunder; and (ii) cause Developer's planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other materials required under Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent Project Approvals. .E 129066601) 80078/0053 B. Upon submission by Developer of all appropriate applications and processing fees for any pending Subsequent Project Approval, City shall, to the full extent allowed by law, promptly and diligently, subject to City ordinances, policies and procedures regarding hiring and contracting, commence and complete all steps necessary to act on Developer's currently pending Subsequent Project Approval applications including: (i) providing at Developer's expense and subject to Developer's request and prior approval, reasonable overtime staff assistance, additional staff and/or staff consultants for concurrent, expedited planning and processing of each pending Subsequent Project Approval application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on any such pending Subsequent Project Approval application. C. With the Existing Project Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Applications for Subsequent Ministerial Approvals that are consistent with this Agreement and the Existing Project Approvals shall be processed and considered in a manner consistent with the vested rights granted by this Agreement and shall be deemed to be tools to implement those final policy decisions, and shall be approved by City so long as they are consistent with this Agreement and the Existing Project Approvals. While City expressly reserves its discretion with respect to all Subsequent Discretionary Approvals, City agrees that it shall not use its authority in considering any application for a Subsequent Discretionary Approval to change the policy decisions reflected by the Existing Project Approvals or otherwise to prevent or frustrate the further development of the Project as set forth in the Existing Project Approvals. D. Nothing herein shall limit the ability of City to require the necessary reports, analysis or studies to assist in determining that the requested Subsequent Ministerial Approval is consistent with this Agreement and the Existing Project Approvals. If City determines that an application for a Subsequent Ministerial Approval is not consistent with this Agreement or the Existing Project Approvals and should be processed as an application for a Subsequent Discretionary Approval rather than a Subsequent Ministerial Approval, City shall specify in writing the reasons for such determination and may propose a modification which would be processed as a Subsequent Ministerial Approval. Developer shall then either modify the application to conform to this Agreement and the Existing Project Approvals, as the case may be, or City shall process the application as an application for a Subsequent Discretionary Approval; provided, however, that Developer shall have the right to dispute City's determination pursuant to Section 9.07 hereof. E. City shall process Developer's applications for Subsequent Project Approvals to the fullest extent allowed by Applicable Law and Developer may proceed with Subsequent Project Approvals as provided for herein to the fullest extent allowed by Applicable Law. Section 7.03 Administration of Subsequent Project Approvals. A. Subsequent Ministerial Approvals shall be reviewed and processed by City in accordance with Applicable Law. If City denies any application for a Subsequent Ministerial Approval, City must specify in writing the reasons for such denial and may suggest a modification which would be approved. Any such specified modifications must be consistent with the Existing Project Approvals and Applicable Law, and City shall approve the application 41 1290666v3118007 8/0053 if it is subsequently resubmitted for City review and addresses the reason for the denial in a manner that is consistent with this Agreement, the Project Approvals and Applicable Law. B. Applications for Subsequent Discretionary Approvals shall be reviewed and processed by City in accordance with Applicable Law. If City denies any application for a Subsequent Discretionary Approval, City must specify in writing the reasons for,�Pch denial and may suggest a modification which would be approved. Any such specified modifications must be consistent with this Agreement and Applicable Law, and City shall consider the application if it is subsequently resubmitted for City review and addresses the reason for the denial in a manner that is consistent with this Agreement, the Project Approvals and Applicable Law. Section 7.04 Changes and Amendments to Project Approvals. A. Given the long term build -out of the Project, the Parties acknowledge that modifications or amendments to the Project Approvals may be appropriate and mutually desirable. To the extent permitted by Applicable Law, any Project Approval may, from time to time, be amended or modified in the following manner: (1) Upon the written request of Developer for an amendment or modification to a Project Approval, the Development Services Director or his or her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the Development Services Director or his or her designee finds that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the EIR, the amendment shall be determined to be an "Administrative Project Amendment" and the Development Services Director or his or her designee may approve the Administrative Project Amendment consistent with City's procedures for such administrative actions, including any requirements for notice, public hearing and appeal rights. Without limiting the generality of the foregoing, lot line adjustments; reductions in the density, intensity, scale or scope of the Project that do not affect either Developer's obligations to provide affordable housing or neighborhood serving commercial/retail uses or change the scope of development from that contemplated in this Agreement; alterations in vehicle circulation patterns or vehicle access points which do not adversely affect capacity or service levels; substitutions of comparable landscaping for any landscaping shown on any final development plant or landscape plan; variations in the location of structures that do not substantially alter the design concepts of the Project; variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project; and minor adjustments to the Property or legal description of subdivision limits or lots shall be treated as Administrative Project Amendments. (2) Any request of Developer for an amendment or modification to a Project Approval which is determined by the Development Services Director or his or her designee not to be an Administrative Project Amendment as set forth above shall be deemed a "Non -administrative Project Amendment" and shall be subject to review, consideration and action pursuant to the Project Approvals, Applicable Law and this Agreement, as applicable. M 1290666v3D 800"7810053 (3) Neither Administrative nor Non -administrative Project Amendments shall require an amendment to this Agreement. B. Parcel Adiustments:, Approval of Phased Final Maps. City and Developer acknowledge that as the development of the Project proceeds, Developer will submit tentative tract maps for various Phases and other portions of the Project and that, subsequent to the filing of such maps, it may be necessary to adjust the configuration of subdivision lots as shown on the originally -filed maps. Section 7.05 Other Government Permits. City shall cooperate with Developer, to the extent appropriate and as permitted by law, in Developer's efforts to obtain, as may be required, permits and approvals from other governmental or quasi -governmental entities. Section 7.06 Mitigation Measures. Developer and City shall comply with the MMRP as it applies to the Project. Section 7.07 Cooperation in the Event of Legal Challenge. A. City and Developer, at Developer's sole cost and expense, shall cooperate in the event of any court action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, any Existing Project Approvals or any Subsequent Project Approvals and City shall, upon request of Developer, appear in the action and defend its decision, except that City shall not be required to be an advocate for Developer. To the extent that Developer determines to contest or defend such litigation challenges, Developer shall reimburse City, within ten (10) days following City's written demand therefor, which may be made from time to time during the course of such litigation, all costs incurred by City in connection with the litigation challenge, including City's administrative, legal and court costs, provided that City shall either: (a) elect to joint representation by Developer's counsel; or (b) retain an experienced litigation attorney, require such attorney to prepare and comply with a litigation budget, and present such litigation budget to Developer prior to incurring obligations to pay legal fees in excess of $30,000. If Developer defends any such legal challenge, Developer shall indemnify, defend, and hold harmless City and its officials and employees from and against any claims, losses, or liabilities assessed or awarded against City by way of judgment, settlement, or stipulation. Nothing herein shall authorize Developer to settle such legal challenge on terms that would constitute an amendment or modification of this Agreement, any Existing Project Approvals or any Subsequent Project Approvals, unless such amendment or modification is approved by City in accordance with applicable legal requirements, and City reserves its full legislative discretion with respect thereto. B. In addition, City shall have the right, but not the obligation, to contest or defend such litigation challenges, in the event that Developer elects not to do so. If City elects to contest or defend such litigation challenges, Developer shall bear all related costs and expenses, including City's attorney fees, up to a maximum amount of One Hundred Thousand Dollars ($100,000), and, in addition, shall indemnify, defend, and hold harmless City and its officials and employees from and against any claims, losses, or liabilities assessed or awarded against City by way of judgment, settlement, or stipulation, without regard to the above dollar amount cap. 43 1290666v3D 80078/0053 ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE Section 8.01 Assignanent. No sale, transfer or assignment of all or a portion of the Property, or creation of a joint venture or partnership, shall require the amendment of this Agreement. Section 8.02 Right to Assi n. A. Because of the necessity to coordinate development of the entirety of the Property pursuant to the SMV Final Development Plan and the SMV P -D Zoning District, particularly with respect to the provision of on- and off-site public improvements and public services, certain restrictions on the right of Developer to assign or transfer its interest under this Agreement with respect to the Property, or any portion thereof, are necessary in order to assure the achievement of the goals, objectives and public benefits of the SMV P -D Zoning District and this Agreement. Developer agrees to and accepts the restrictions set forth in this Section 8.02 as reasonable and as a material inducement to City to enter into this Agreement. For purposes of this Section 8.02, a change in the identity of the initial managing member of SMV, or the initial managing member of Codding, (including the sale or transfer, in the aggregate, of the controlling stock or interest in said managing member) shall be deemed a transfer by Developer subject to the provisions of this Section. Developer shall have the right to sell, transfer, ground lease or assign the Property in whole or in part (provided that no such partial transfer shall violate the provisions of the Subdivision Map Act) to any person, partnership, joint venture, firm, company or corporation (any of the foregoing, an "Assignee") subject to the written consent of City; provided that Developer may assign its rights under this Agreement without the consent of City to any corporation, limited liability company, partnership or other entity which is controlling of, controlled by, or under common control with SMV and/or Codding, and "control," for purposes of this definition, means effective management and control of the other entity, subject only to major events requiring the consent or approval of the other owners of such entity ("Affiliated Party "). City's consent shall not be unreasonably withheld, delayed or conditioned, and City shall consent if the Assignee reasonably demonstrates to City that it is able to perform the obligations of Developer under this Agreement. Assignee shall succeed to the rights, duties and obligations of Developer only with respect to the parcel or parcels of all or a portion of the Property so purchased, transferred, ground leased or assigned, and Developer shall continue to be obligated under this Agreement with respect to all portions of the Property retained by Developer, and with respect to the dedication and installation of all infrastructure improvements to be provided by Developer, pursuant to the Project Approvals, and the PFFP. B. The sale, transfer, lease or assignment of any right or interest under this Agreement shall be made only together with the sale, transfer, ground lease or assignment of all or a part of the Property. Concurrently with any such sale, transfer, ground lease or assignment, Developer shall (i) notify City in writing of such sale, transfer or ground lease; and (ii) Developer and Assignee shall provide a written assignment and assumption agreement in form reasonably acceptable to City Attorney pursuant to which Assignee shall assume and succeed to the rights, duties and obligations of Developer with respect to the parcel or parcels of all or a portion of the Property so purchased, transferred, ground leased or assigned. 1290666v3D 8007810053 C. Subject to City's written consent as provided in Section 8.02A, City, upon request of Developer or Assignee, and following compliance with the notification provisions above, shall provide Assignee with a certificate of agreement compliance, stating that this Agreement remains valid and in full force and effect and is binding upon City, Developer and the Assignee as of the last Annual Review pursuant to the provisions of Section 9.05, except that if City knows of any non-compliance, City shall not be required to issue a certificate of Agreement compliance. Section 8.03 Release of Transferrin Develo er. Except with respect to a Permitted transfer and assignment under Section 8.01 to an Affiliated Party, notwithstanding any sale, transfer or assignment of all or a portion of the Property, Developer shall continue to be obligated under this Agreement as to all or the portion of the Property so transferred unless City is satisfied the Assignee is fully able to comply with Developer's obligations under this Agreement (both financially and otherwise) and Developer is given a release in writing. Developer shall provide to City all information reasonably necessary for City to determine the financial and other capabilities of Assignee. Such release shall be provided by City upon DeveIoper's full satisfaction of all of the following conditions: A. City is reasonably satisfied that Assignee is fully able to comply with Developer's obligations under this Agreement (both financially and otherwise). B. A showing by Developer that Developer no longer has a legal or equitable interest in the porion of the Property (which may be all of the Property) for which a release is requested. C. Developer is not then in Default under this Agreement and has received no Notice to Cure. D. Developer has provided City with notice and the fully executed assignment and assumption agreement. E. Assignee provides City with security equivalent to any security previously provided by Developer to secure performance of its obligations hereunder, if any. Notwithstanding any other provision hereof to the contrary, if Developer only transfers a portion of the Property, then Developer shall continue to be obligated under this Agreement with respect to the balance of the Property not so transferred. ARTICLE 9. DEFAULT; REMEDIES; TERMINATION Section 9.01 Breach. Subject to extensions of time under Section 9.06 or by mutual consent in writing, the failure or delay by either Party to perform any term or provision of this Agreement shall constitute a breach of this Agreement. In the event of alleged breach of any terms or conditions of this Agreement, the Party alleging such breach shall give the other Party notice in writing specifying the nature of the breach and the manner in which said breach or default may be satisfactorily cured, and the Party in breach shall have thirty (30) days following such notice ( "Cure Period") to cure such breach, except that in the event of a breach of an 45 1290666v3D 80078/0053 obligation to make a payment, the Party in breach shall have ten (10) days to cure the breach. If the breach is of a type that cannot be cured within thirty (30) days, the breaching Party shall, within a thirty (30) day period following notice to the non -breaching Party, notify the non - breaching Party of the time it will take to cure such breach which shall be a reasonable period under the circumstances ("Extended Care Period"); commence to cure such breach; and be proceeding diligently to cure such breach. Subject to the provisions of Section 9.06, the Extended Cure Period shall in no event exceed one hundred twenty (120) days unless otherwise agreed by the parties. During the Cure Period or Extended Cure Period, the Party charged shall not be considered in default for purposes of termination or institution of legal proceedings; but City's right to refuse to issue a permit or Subsequent Project Approval, under Section 9.03, shall not be limited by this provision. The failure of any Party to give notice of any breach shall not be deemed to be a waiver of that Party's right to allege any other breach at any other time. Section 9.02 Default. If the breaching Party has not cured such breach within the Cure Period or the Extended Cure Period, if any, such Party shall be in default ("Default"), and the non -breaching Party, at its option, may terminate the Agreement, institute legal proceedings pursuant to this Agreement and shall have such remedies as are set forth in Section 9.04 below. Section 9.03 Withholding of Permits. In the event of a Default by Developer, or following notice of breach by Developer and during the Cure Period or Extended Cure Period, upon a finding by City Planning Director that Developer is in serious and substantial breach, City shall have the right to refuse to issue any permits or other approvals to which Developer would otherwise have been entitled pursuant to this Agreement. This provision is in addition to and shall not limit any actions that City may take to enforce the conditions of the Project Approvals. Section 9.04 Remedies. A. In the event of a Default by City or Developer, the non -defaulting Party shall have the right to terminate this Agreement upon giving notice of intent to terminate pursuant to Government Code Section 65868 and regulations of City implementing such Section. Following notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code Section 65867 and City regulations implementing said Section. Following consideration of the evidence presented in said review before City Council, either Party alleging Default by the other Party may give written notice of termination of this Agreement to the other Party. Termination of this Agreement shall be subject to the provisions of Section 9.09 hereof. B. City and Developer agree that in the event of Default by City, the Parties intend that the primary remedy for Developer shall be specific performance of this Agreement. A claim by Developer for actual monetary damages against City may only be considered if specific performance is not granted by the Court. In no event shall Developer be entitled to any consequential punitive or special damages. If City issues an Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by Developer in the future, and if Developer then fails to satisfy such condition, City shall be entitled to specific performance for the purpose of causing Developer to satisfy such condition. 46 1290666v3D 80078/0053 C. In addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with the purpose of this Agreement except as limited by Section 9.04B. above. Any such legal action shall be brought in the Superior Court for Sonoma County, California. Section 9.05 Periodic Review. A. The annual review date for this Agreement shall be initiated during the month of April of each year of the Term of this Agreement, commencing with April, 2010. Developer shall initiate the annual review required by City Municipal Code Section 17.21.050, by submitting a written request at least sixty (60) days prior to the Development Services Director. Developer shall also provide evidence as determined necessary by the Director to demonstrate good faith compliance with the provisions of this Agreement. However, failure to initiate the annual review within thirty (30) days of receipt of written notice to do so from City shall not constitute a Default by Developer under this Agreement, unless City has provided actual notice and opportunity to cure and Developer has failed to so cure. B. The annual review required by Government Code Section 65865.1 and the City Municipal Code shall be conducted as provided herein: (1) The Development Services Director shall review Developer's submission to ascertain whether Developer has complied in good faith with the terms of this Agreement, including a performance evaluation to determine whether the Project is meeting the performance standards for the Project and an MMRP evaluation to analyze the Project's compliance with the mitigation measures adopted in the EIR. If the Director finds good faith compliance by Developer with the terms of this Agreement, the Director shall so notify Developer and the Planning Commission in writing and the review for that period shall be concluded. If the Director in his or her sole and absolute discretions deems it necessary to refer the matter to the Planning Commission, either because he or she is not satisfied that the Developer is performing in accordance with the material terms and conditions of this Agreement or otherwise, the Director shall refer the matter to the Planning Commission for a decision and notify Developer in writing at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission. (2) The Planning Commission shall conduct a hearing at which Developer must submit evidence that it has complied in good faith with the terms and conditions of this Agreement. The findings of the Planning Commission on whether Developer has complied with this Agreement for the period under review shall be based upon substantial evidence in the record. If the Planning Commission determines that, based upon substantial evidence, Developer has complied in good faith with the terms and conditions of this Agreement, the review for that period shall be concluded. If the Planning Commission determines that, based upon substantial evidence, Developer has not complied in good faith with the terms and conditions of this Agreement, the Planning Commission shall forward its report and recommendation to City Council. 47 1290666v3D 80078/0053 (3) City Council shall notify the Developer in writing of its intention to conduct a hearing on whether Developer has complied in good faith with the terms and conditions of this Agreement and whether the Agreement should be modified or terminated. The notice shall include the time and place of the hearing, a copy of the Planning Commission's report and recommendation, and any other information City Council considers necessary to inform Developer of the nature of the proceeding. Developer shall be given an opportunity to be heard at the hearing. If City Council determines that Developer has complied in good faith with the terms and conditions of this Agreement, the review for that period shall be concluded. If, however, City Council determines, based upon substantial evidence in the record, that there are significant questions as to whether Developer has complied in good faith with the terms and conditions of this Agreement, City Council may continue the hearing and shall notify Developer of City's intent to meet and confer with Developer within thirty (3 0) days of such determination, prior to taking further action. Following such meeting, City Council shall resume the hearing in order to further consider the matter and to make a determination, regarding Developer's good faith compliance with the terms and conditions of the Agreement and to tape those actions it deems appropriate, including but not limited to, termination of this Agreement, in accordance with California Government Code Section 65865.1 and the City Municipal Code. C. Failure of City to conduct an annual review shall not constitute a waiver by City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual review. D. If, after an annual review, City finds Developer has complied in good faith with this Agreement, City shall promptly following Developer's request issue to Developer a certificate of compliance certifying that Developer has so complied through the period of the applicable annual review. The Certificate of Compliance must be in recordable form and must contain such information as may be necessary to impart constructive notice of City's finding. Developer may record the Certificate of Compliance in the Official Records of the County of Sonoma. Section 9.06 Enforced Delay-, Extension of Time of Performance. Subject to the limitations set forth below, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of the other Party; or acts or failures to act of any other public or governmental agency or entity (other than the acts or failures to act of City which shall not excuse performance by City). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause (but in any event shall not exceed a cumulative total of three (3) years), if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. The Parties agree that the commencement of any litigation concerning this Agreement, the Ordinance approving this Agreement or any of the Existing Project Approvals shall constitute cause for an extension of time for performance of obligations under this Agreement up to a maximum of three (3) years, and that the Initial Term of this Agreement shall be automatically extended for the 48 1290666v3D 8007810053 period such litigation is pending (subject, however, to the 3 year maximum extension), and that such litigation extension shall not be included in the calculation of the three (3) year cumulative total referenced in the immediately preceding sentence. Developer acknowledges that adverse changes in economic conditions, either of Developer specifically or the economy generally, changes in market conditions or demand, and/or inability to obtain financing or other lack of funding to complete the work of on-site and off-site improvements shall not constitute grounds of enforced delay pursuant to this Section 9.06. Developer expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Effective Date. Section 9.07 Resolution. of Disputes. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at City's request, meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 9.07 shall in any way be interpreted as requiring that Developer and City and/or City's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings. Section 9.08 Surviving, Provisions. In the event this Agreement is terminated, neither party shall have any further rights or obligations hereunder, except for those obligations of Developer set forth in Section 5.02 (Prevailing Wage), 7.07 (Cooperation in the Event of Legal Challenge), and Section 9.09 (Indemnify and Hold Harmless). Section 9.09 Indemnity and Hold Harmless. Developer shall indemnify and hold City and its elected and appointed officers, agents, employees, and representatives harmless from and against any and all claims, costs, liabilities and damages (including attorneys fees and costs) for any bodily injury, death, or property damage resulting directly or indirectly from the approval or implementation of this Agreement the development and construction of the Project by or on behalf of Developer, or from any operations performed under this Agreement, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, agents or employees, except to the extent such claims, costs and liabilities arise from the active negligence or willful misconduct of City, its elected and appointed officers, agents, employees, representatives, contactors or subcontractors. ARTICLE 10. MISCELLANEOUS PROVISIONS Section 10.01 Incorporation of Recitals and introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 10.02 Findings. City hereby finds and determines that execution of this Agreement furthers public /health, safety and general welfare and that the provisions of this Agreement are consistent with the General Plan. Section 10.03 Severabilit . If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and Me 1290666v3D 80078/0053 provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, the party adversely affected may (in its sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party. Section 10.04 Construction. Each reference in this Agreement to this Agreement or any of the Existing Project Approvals or Subsequent Ministerial or Discretionary Approvals shall be deemed to refer to the Agreement, Project Approval or Subsequent Ministerial or Discretionary Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Unless the context clearly requires otherwise, (i) the plural and singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (iv) "or" is not exclusive; (v) "include," "includes" and "including" are not limiting and shall be construed as if followed by the words "without limitation," and (vi) "days" means calendar days unless specifically provided otherwise. Section 10.05 Joint and Several Obligations. The Parties intend that the Property be developed as a physically integrated Project. In recognition of such integration, SMV and Codding agree that they shall be jointly and severally liable for all obligations of Developer under this Agreement. Section 10.06 Covenants Runnin with the Land. All of the provisions contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Property or Project, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including California Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Property and is binding upon the Developer of all or a portion of the Property and each successive Developer during its development of such Property or portion thereof. Section 10.07 Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by facsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or 50 1290666v3D 80078/0053 on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to City: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928-2486 Attention: City Manager Tel: (707) 588-2223 With copies to: City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928-2486 Attention: Development Services Director Tel: (707) 588-2236 and City of Rohnert Park 130 Avram Avenue Rohnert Park, CA 94928-2486 Attention: City Attorney Tel: (707) 5882214 If to Developer: Codding Enterprises 1400 Valley House Drive, Suite 100 Rohnert Park, CA 94928 Attention: Richard Pope Tel: (707) 795-3550 With a copy to: Alvarez-Glasman & Colvin 6795 Washington St. Building D - Suite R Yountville, CA 94599 Attention: Matthew M. Gorman Tel: (707) 542-4833 Section 10.08 Entire Agreement,_ Counterparts and Exhibits. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. This Agreement, together with the attached Exhibits, constitutes the final and exclusive understanding 51 1290666v3D 80078/0053 and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. The Exhibits attached to this Agreement are incorporated herein for all purposes: Section 10.09 Recordation Of Development A reg ement. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after City enters into this Agreement, City Clerk shall record an executed copy of this Agreement in the Official Records of the County of Sonoma. Section 10.10 No Joint Venture or Partnership. It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Existing Project Approvals or Subsequent Project Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Existing Project Approvals, Subsequent Project Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. Section 10.11 Waivers. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. Section 10.12 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written. [SIGNATURES ON FOLLOWING PAGE] 52 1290666v3D 80078/0053 Approved as to Form: By: City Attorney Attest: By: City Clerk CITY: City of Rohnert Park, a municipal corporation City Manager Date Signed: DEVELOPER: Sonoma Mountain Village, LLC, a California limited liability company By: Title: and Codding Enterprises, L.P., a California limited partnership By. _ Title: 53 1290666v3D 80078/0053 Exhibit A. Site Map of Property Ju1a t t.iatu 11 S 0 M D SONOMA MOUNTAIN VILLA43E ONE PLANET. ONE PLACE. UGEND Land Use and Zoning T3 Sub -Urban Zone TS Spee4l: Madmum BullAhg H[ia4isoFl Story NOT A PART OF KGM AT*4 PUN TI General Urban Zane TS Urban Genter Zone ® T6 Urban Core tone CS CMc Space Zone CPCivk Parking Zane CB Clvk i MWIng Zone i ShopfrontReAulmd Shopfront Rewmmended GRARftiC SCALE IMRi{Y NOT A PART OF KGM AT*4 PUN EXHIBIT B Sonoma Mountain Village Legal Description Sonoma Mountain Village Project located at Valley House Drive and Bodway Parkway (APN's 46-051-040, 46-051-042 and 46-051-045) in Rohnert Park, CA. Exhibit C. Project Phasing Map �? � FOFA1tlV10K%YIF�✓Fi 0 May 2i, 2070 IFROW S 0 X10 SONOMA MWJNTAIN VILLAGE ONE PLAN .'3, ONE F -LACE - se 1 NOT A PAFF OF REGULATINGPLAN Ell wLtvxous[Fa 0FF GRAP}iICSCAL£ o iro toF �i° �i° 1 3 �IxTfFTa EXHIBIT D Municipal Services Plan for Sonoma Mountain Village It is intended that the Sonoma Mountain Village Planned Development will be developed in three phases; Phase 1, Phase 2 and Phase 3. Phase 1 will further be divided into sub -phases; Phase 1A, Phase 16, Phase 1C, and Phase 1D. The phasing plan has been carefully developed to allow maximum use of existing infrastructure, to provide minimal impact to ongoing office and commercial uses on the existing site, and to pian for orderly build -out of the development. The purpose of this narrative is to discuss the relative make-up of the phases, and how infrastructure needs will be met. Phased Tentative Maps will be prepared and processed as necessary to provide more detailed analyses of the utilities, and allow for appropriate review for compliance with the California Environmental Quality Act (CEQA) as each phase of the project is implemented. The phases discussed in this narrative match those proposed in the Final Development Plan, and are presented in Figure 1. /additional input to this plan includes the Water Plan for Sonoma Mountain Village, dated August 5, 2009, and the City of Rohnert Park Assessment District 05-01 (Sewer Force Main Project No. 2003-11), Final Engineer's Report dated June 14, 2005. This report will review the infrastructure needs for the phases for Sanitary Sewer, Domestic Water, Reclaimed Water, Storm Drainage Conveyance and Storm Drainage Treatment. The entire project consists of approximately 1,694 residential units (plus an additional 198 accessory units); 425,978 square feet of office space; 107,329 square feet of retail space. Other uses proposed for the project include a 25,000 square foot theater; 30,000 square foot health club; a 100 -room hotel; several parking structures; a 35,000 square foot civic building (fire station); 39,472 square feet of Restaurant space; 15,000 square foot child care facility, 11,528 square feet of enclosed promenade; and several park sites throughout the community. Phase 1A: Phase 1A is located at the northeast corner of the project site, as shown in Figure 2. Portions of the site of Phase 1A were previously developed as part of the Agilent facility. Several existing buildings from that development will remain in place (in future Phase ID) during the development of Phase 1A. Phase 1A will consist of approximately 672 total residential units; 285,978 square feet of office space; 149,224 square feet of retail space/grocery space; and additionally a 25,000 square foot theater; a 45,000 square foot grocery store, (included in the retail square footage), a 30,000 square foot health club; 15,000 square foot child care facility; a 560 -space parking structure and a 2.05 acre public park. Phase 1A focuses on adaptive re -use of existing structures; the build -out of the Village Square, new retail buildings, parking structures, health club and residential units. The new Village Square will create the future hub of Sonoma Mountain Village, and is an important part of establishing the character and image of Sonoma Mountain Village. Sanitary Sewer: Phase 1A will discharge wastewater flows through the future Phase 1B into the City Pump Station located in the northwest corner of the property along Camino Colegio, and into the City sewer system. The existing system downstream from the pump station is flowing at full capacity and cannot accept any new flows. Sonoma Mountain Village is one of many development projects that have BKF Engineers Page 1 May 27, 2010 �YC �f$ 'ire u1 BKf FIGURE 1 Y; N C.I�fMN1\ lvp, 5T[ app MWJS CRQ% G M%E OVERALL PHASING PLAN 500 0 500 1000 SCALE: 1"=500' Ate;' N ;b0 8 ;FNFG , e 1 I Q e r S7REET, .. �: ..v, 4TREc7 u1 BKf FIGURE 1 Y; N C.I�fMN1\ lvp, 5T[ app MWJS CRQ% G M%E OVERALL PHASING PLAN 500 0 500 1000 SCALE: 1"=500' been identified to contribute towards a new gravity trunk sewer line (l=ast Side Trunk Sewer Main) that has been designed, but not yet constructed, to allow additional flows. It is anticipated that, once complete, the trunk sewer line will establish sufficient capacity for Sonoma Mountain Village. Domestic Water: A domestic waterline currently exists in Camino Colegio, and runs to the corner of Camino Colegio and Bodway. A new tank will be installed to ensure adequate storage exists on site to address emergency and fire demands. A new line will be extended down Bodway to the southern limit of Phase 1A, and a loop system will be created and constructed with Phase 1A. Additional 12 -inch main lines are anticipated that will connect: the new tank to the existing Sonoma County Water Agency aqueduct that runs along the western edge of the project site; the new tank to the existing main in Camino Colegio and; the new tank to the project. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Reclaimed Water: Reclaimed water is currently located in Camino Colegio, adjacent to the site. A reclaimed water main will be extended to the site to provide for connection of the park areas and common landscaping anticipated In Phase 1A. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Storm Drainage Conveyance: Much of Phase 1A drains to the north into an existing system in Camino Colegio and the post -project drainage will continue to utilize the existing system. Peak run-off rates from Phase 1A during the 10, 25 and 100 -year storm events will be equal to or less than the peak run-off rates from the site in Its existing condition during the 10, 25 and 100 -year storm events, since the existing Phase 1A area is predominantly pavement and buildings. A portion of Phase 1A will be discharged to the west, through future Phase 113 and into an existing culvert that passes under the railroad'tracks. Detention for peak flow attenuation will be required for the line that discharges through Phase 1B to the west. Additionally, a portion of the 50 -inch storm drain line that carries off-site flows from the east will be relocated under the extended Valley House Parkway in this phase. Storm Drainage Treatment: Storm drainage runoff in Phase 1A will be treated using various methods which may include, rain gardens, green roofs, bioswales, bioretention areas or mechanical systems. Treatment may be provided at the source or on a regional basis depending on particular conditions. Stormwater will be treated to the extent necessary to meet current guidelines set forth by the California State Water Board, the Regional Water Quality Control Board, the Sonoma County Water Agency and the City of Rohnert Park. Roadway Infrastructure: All internal streets required for Phase 1A will be constructed as part of the Phase 1A development. Major connectors to the public street system will include M Street at Bodway Parkway and Valley House Drive, and 11v' Street at Camino Colegio and Manchester Avenue. BKF Engineers Page 2 May 27, 2010 z M.�P3.4 i.=Ffi ucuaiaa,e `:::` i ena+nar vw�,s�i is l } mMGCT fB m' Sem Hm (2) EAd�AST�iAm SUMOORT ADWILLJACENT USES, PER 250 250 0 250 500 PHASE, OFF SITE WATER MART TO BE INSTALLED IN BODWAY PARKWAY. METERED CONNECTIONS WILL BE MADE BODWAY PARKWAY AS EUSMO 9- MAN FN STREM ARE NCONSSTiRUCTE� SCALE: 1"=250' ERR .B kF i� x txm.w aVR ss[ ,e6 ounrt wcv. a a.!.e we (ro) see-uee LE9�N2 PHASING LINE _ SANITARY SEWER LINE ------ ALTERNATE SANRARY.SEWER LINE . —so— STOW BRAIN LINE -. (E) STORM DRAIN LINE ..:"" • SANITARY SEWER MANHOLE " • STORM DRAB! MANHOLE ■ STORM DRAIN CATCH BASIN Hm (2) EAd�AST�iAm SUMOORT ADWILLJACENT USES, PER 250 250 0 250 500 PHASE, OFF SITE WATER MART TO BE INSTALLED IN BODWAY PARKWAY. METERED CONNECTIONS WILL BE MADE BODWAY PARKWAY AS EUSMO 9- MAN FN STREM ARE NCONSSTiRUCTE� SCALE: 1"=250' ERR .B kF i� x txm.w aVR ss[ ,e6 ounrt wcv. a a.!.e we (ro) see-uee FIGURE 2 PHASE IA INFRASTRUCTURE :�—vwLg,c q KU _ sc— So s� , s,, .VALLEY m1 _m sn , �_ sn as _so DRIVE r SEE p}ULSE T' m m• tar - IEITJAFSaff.:.:- FIGURE 2 PHASE IA INFRASTRUCTURE :�—vwLg,c q KU Phase 1B.- Phase B:Phase 113 is in the northwest corner of the property and is shown in Figure 3. It will consist of 347 residential units; 1,667 square feet of retail/grocery space; and a 7.06 acre park area. Phase 113 major features may include a fire/police station on approximately 1 acre to be dedicated to the city. Sanitary Sewer: Phase 18 will discharge wastewater flows into the City Pump Station located in the northwest corner of the property, within Phase 113 along Camino Colegio, and into the City sewer system. Stubs will be extended to future phases for future tie-ins. As previously discussed, the existing system downstream from the pump station is flowing at full capacity and cannot accept any new flows. It is anticipated that, once complete, the East Side Trunk Sewer Main will provide sewer capacity for all of Sonoma Mountain Village, Including Phase 16 to be served by the city sewer system. Domestic Water: A domestic waterline currently exists in Camino Colegio, and runs to the corner of Camino Colegio and Bodway Parkway. Anew line will be extended down Bodway to the southern limit of Phase 1A, and a loop system will be created and constructed with Phase 1B. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village. Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Reclaimed Water: Reclaimed water will be extended from Phase 1A adjacent to Phase 1B. A reclaimed water main will be extended into the site to provide for connection of the park areas and common landscaping anticipated in Phase 1B. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Storm Drainage Conveyance: Phase 1B in general drains to the north and west. A portion of the site will be collected and conveyed to the west, and piping will be extended through Phase 1B to a Storm drainage detention area along the west edge of Phase 1B. A small portion of Phase 1B may connect to the existing storm drain trunk line that traverses the southern portion of Phase 1B from east to west. Peak run-off rates from Phase 18 during the 10, 25 and 100 -year storm events will be equal to or less than the peak run-off rates from the site in its existing condition during the 10, 25 and IOD -year storm events. Also included in Phase 113 will be relocation of the western portion of the existing 60 -inch storm drain line that traverses the site from east to west. Storm Drainage Treatment: Storm drainage runoff in Phase 113 will be treated using various methods which may include, rain gardens, green roofs, bloswales, bioretention areas or mechanical systems. Treatment may be provided at the source or on a regional basis depending on particular conditions. Stormwater will be treated to the extent necessary to meet current guidelines set forth by the California State Water Board, the Regional Water Quality Control Board, the Sonoma County Water Agency and the City of Rohnert Park. BKF Engineers Page 3 May 27, 2010 Roadway.Infrastructure: All internal streets required for Phase 1B will be constructed as part of the Phase 113 development. Phase 1B will be connected to the external street system by M Street, which is anticipated to have been connected to Bodway Parkway in Phase 1A; and by 2'd Street at Camino Colegio, across from the driveway to the Windsong Condominiums. Fire Station: A fire station will be installed at the northern limit of the project, adjacent to the existing City water well site and Camino Colegio. (See Figure 3) BKF Engineers Page 4 May 27, 2010 1. PMATE WATER MARTS VALL BE CONSTRUCTED IN EACH STREET TO SUPPORT ADJACENT USES, PER PHASE, OFF 97 WATER MAIN TO BE MSTALLEO M BODWAY PARKWAY. METERED CONNECTIONS WILL BE MADE TO EX3SW4G M MAIN M CAMMO COLEGIO AND BODWAY PARKWAY AS STREETS ARE CONSTRUCTED. owBkF iyrr�Flr�'rTh�� \\i - RMWATED BD" Sit WAIN Wil.- 8B �'m—m—', m— SEE PHASE 1ti 55 STUB FOR r-,—' HA 5708: ••� ••••.}I PHASE 7CCCR PHASE 1O' CI Ss slue"Fok mt AM FIGURE 3 PHASE 1B INFRASTRUCTURE cowtcT To SH HORiH 200 0 200 400 SCALE: 1"=200' Phase 1C: Phase 1C bisects the existing site and stretches from Bodway Parkway on the east to the railroad tracks on the western boundary, as shown in Figure 4, Phase 1C will consist of 286 residential units; 10,000 square feet of office space; 35,910 square feet of retail/grocery space; a 91,000 square foot hotel, and a 5.64 acre park area. Phase 1C major features will include an all-weather international soccer field in the park area, new retail, and a 100 -room hotel. Timing on this development would depend on the extent of mitigations required for the phase, including environmental mitigation of potential habitat areas. Sanitary Sewer: Phase 1C will discharge wastewater flows through what will be existing sewer improvements within Phase 113 into the City Pump Station located in the northwest corner of the property along Camino Colegio, and into the City sewer system. Stubs will be extended to future phases for future tie-ins. As previously discussed, the existing system downstream from the pump station is flowing at full capacity and cannot accept any new flows. it is anticipated that, once complete, the East Side Trunk Sewer Main will provide sewer capacity for all of Sonoma Mountain Village to be served by the city sewer system. Domestic Water: A domestic waterline currently exists in Camino Colegio, and runs to the corner of Camino Colegio and Bodway. A new line will be extended down Phase 113 to the southern limit of Phase 1C, and a loop system will be created and constructed with Phase 1C. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Reclaimed Water: Reclaimed water will be extended to the site through Phase 1B and 1A to provide for connection of the park areas and common landscaping anticipated in Phase 1C. Ample supply capacity . exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 20.08 for the City of Rohnert Park. Storm Drainage Conveyance: Phase 1C in general drains to the west and will continue this pattern post - development. Piping will be extended to a storm drainage detention area along the west edge of Phase 1C. Treated water will be discharged to the existing, dual 48 -inch storm drain lines that pass underneath the railroad tracks. Peak run-off rates from Phase 1C during the 10, 25 and 100 -year storm events will be equal to or less than the peak run-off rates from the site in its existing'condition during the 10, 25 and 100 -year storm events. Storm Drainage Treatment; Storm drainage runoff in Phase 1C will be treated using various methods which may include, rain gardens, green roofs, bioswaies, bioretention areas or mechanical systems. Treatment may be provided at the source or on a regional basis depending on particular conditions. Stormwater will be treated to the extent necessary to meet current guidelines set forth by the California State Water Board, the Regional Water Quality Control Board, the Sonoma County Water Agency and the City of Rohnert Park. Roadway Infrastructure: All internal streets required for Phase 1C will be constructed as part of the Phase 1C development. Phase 1C will be connected to the external street system by M Street, which is BKF Engineers Page 5 May 27, 2010 anticipated to have been connected to Bodway Parkway in Phase 1A, and by 2"d Street, which is anticipated to have been connected to Camino Colegio in Phase 1B. BKF Engineers Page 6 May 27, 2010 �- i�i� f. VATESTRI WATER MAINS WILL BE CONSTRUCTED IN PHkkG LINE EACH [AGH STREET TO 91fPA0RT ADJACENT USES, PER T_ SANtARY SEWER LINE - - PHASE. OFF WE WATER MAN TO BE RSTACLED IN __.._m--...- MOM DRAM LINE DATO CONNECTIONS MADEODSTINO S' MAIN IN CAMINNO COLEG€O AND � � � � (E) SORM ORASN LINE 204 0 200 400 BODWAY PARKWAY AS STREETS ARE CONSTRUCTED. s SANITAY SEWER MANHOLE ..r • STORMORAIN MANHOLE ■ STDRM'}RAIN CATCH BASIN SCALE: 1"=20fl' ,Uwaqi B k F is a FIGURE 4 tW M cAtrom KCL �lyV+ CRA G !!o! = �Ep M rue (m) ►ee.ffM PHASE iC INFRASTRUCTURE VALLEY HOUSE CON I NM l DRI VE _ 'PHASE 18" e ro ro "iiia s sn�a +• asrAum (E) SD STUB i (cr .. .:_ .+ tSFINEei'Ta (E) 55 57SIB .«,.,,s _ i LreM PHASE to a TH - CORRECTE - .:. �,:r , _ SEE PHASE 3 `SS stuB STU70 : I UNbERGROlAub tETE?flM + ...CONKCT....... ... . VAULTS RAM TO BE + t , SOW CfAK7RUC1ist U}METt . ; PHASE It, .•:. �':' PHA#E tC tg � PDR ro aIITPAu. . IFF PHASE 2 .tort PRABE 2•- i�i� f. VATESTRI WATER MAINS WILL BE CONSTRUCTED IN PHkkG LINE EACH [AGH STREET TO 91fPA0RT ADJACENT USES, PER T_ SANtARY SEWER LINE - - PHASE. OFF WE WATER MAN TO BE RSTACLED IN __.._m--...- MOM DRAM LINE DATO CONNECTIONS MADEODSTINO S' MAIN IN CAMINNO COLEG€O AND � � � � (E) SORM ORASN LINE 204 0 200 400 BODWAY PARKWAY AS STREETS ARE CONSTRUCTED. s SANITAY SEWER MANHOLE ..r • STORMORAIN MANHOLE ■ STDRM'}RAIN CATCH BASIN SCALE: 1"=20fl' ,Uwaqi B k F FIGURE 4 tW M cAtrom KCL �lyV+ CRA G !!o! = �Ep M rue (m) ►ee.ffM PHASE iC INFRASTRUCTURE Phase 1D: Phase 113 is shown in Figure 5 and will consist of 102 residential units; 130,000 square feet of office space; 1,666 square feet of retail/grocery space and a 240 -space parking structure. The timing of the parking garage may depend on requirements of the City for parking. Phase 1D focuses on adaptive re- use of existing structures from the former Agilent project to build a parking structure and townhomes. Timing would depend on the intentions of existing commercial tenants, and their existing yard areas and ability for re -use. Sanitary Sewer: Phase ID will discharge wastewater flows through what will be existing sewer improvements within Phase 1B into the City Pump Station located in the northwest corner of the property along Camino Colegio, and into the City sewer system. As previously discussed, the existing system downstream from the pump station is flowing at full capacity and cannot accept any new flows. It is anticipated that, once complete, the East Side Trunk Sewer Main will provide sewer capacity for all of Sonoma Mountain Village to be served by the city sewer system. Domestic Water: A domestic waterline will be extended to Phase 1D, and a loop system will be created and constructed with Phase 113 and Phase 1A to serve Phase 1D. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Reclaimed Water: Reclaimed water will be extended to the site through Phase 113 to provide for connection of the park areas and common landscaping anticipated in Phase 1D. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Storm Drainage Conveyance: Phase 1D in general drains to the south, then to the west. The site will be collected and conveyed to the west, through Phase 1B to a storm drainage detention area along the west edge of Phase 1B. Discharge from the treatment area will flow to the existing, dual 48 -inch pipes that pass underneath the railroad tracks. Peak run-off rates from Phase 1D during the 10, 25 and 100 - year storm events will be equal to or less than the peak run-off rates from the site in its existing condition during the 10, 25 and 100 -year storm events. Storm Drainage Treatment: Storm drainage runoff in Phase 1D will be treated using various methods which may include, rain gardens, green roofs, bioswales, bioretention areas or mechanical systems. Treatment may be provided at the source or on a regional basis depending on particular conditions. Stormwater will be treated to the extent necessary to meet current guidelines set forth by the California State Water Board, the Regional Water Quality Control Board, the Sonoma County Water Agency and the City of Rohnert Park. Roadway Infrastructure: All internal streets required for Phase 11) will be constructed as part of the Phase 1D development. Phase 11) is internal to the overall project and has no direct connections to the external street system, though it will utilize the 2"d Street and le Street connections at Camino Colegio and the M Street connection to Bodway Parkway, which will have been made in previous project phases. BKF Engineers Page 7 May 27, 2010 B k F °'— FIGURE 5 T>nI PHASE 1D INFRASTRUCTURE NORTH 150 D 150 300 SCALE: 1"=150' PHASING LINE SANITARY SEWER UNE ^-so^-'-- STOW DRAIN LM • SANITARY SEWER MANHOLE • STORM DRAIN MANHOLE ■ STORM DRAIN CATCH BASIN Nm 7. PRIVATE WATER MAINS WILL BE CONSTRUCTED IN EACH STREET TO SUPPORT ADJACENT USES, PER PHASE. OT't•' SITE WATER MAN TO BE INSTALLED IN BODWAY PARKWAY. METERED CONNECTIONS WILL BE MADE TO EIDSTTNG W MAIN IN CAMINO COLETYO AND BDDWAY PARKWAY AS STREETS ARE CONSTRUCTED. 1 F _ EXISTING PHASE 1B . '. I = , 1......._. _ .. i {, f O � � ss sm EXISTING PHASE IA CONKCT TO - co s6 s" PHASE ID .. COt1FlECT TO M ss snm i., , 1{ . J . r ' tl r B k F °'— FIGURE 5 T>nI PHASE 1D INFRASTRUCTURE NORTH 150 D 150 300 SCALE: 1"=150' PHASING LINE SANITARY SEWER UNE ^-so^-'-- STOW DRAIN LM • SANITARY SEWER MANHOLE • STORM DRAIN MANHOLE ■ STORM DRAIN CATCH BASIN Nm 7. PRIVATE WATER MAINS WILL BE CONSTRUCTED IN EACH STREET TO SUPPORT ADJACENT USES, PER PHASE. OT't•' SITE WATER MAN TO BE INSTALLED IN BODWAY PARKWAY. METERED CONNECTIONS WILL BE MADE TO EIDSTTNG W MAIN IN CAMINO COLETYO AND BDDWAY PARKWAY AS STREETS ARE CONSTRUCTED. Phase 2: Phase 2 is shown in Figure 6 and will consist of 214 residential units; 1,667 square feet of retail /grocery space; and an 8.39 acres approximate park area. Phase 2's major features include a long linear park extending in a north -south direction. Sanitary, Sewer_ Phase 2 will discharge wastewater flows through previously developed phases into the City Pump Station located in the northwest corner of the property along Camino Colegio, and into the City sewer system. ' As previously discussed, the existing system downstream from the pump station is flowing at full capacity and cannot accept any new flows. it is anticipated that, once complete, the East Side Trunk Sewer Main will provide sewer capacity for all of Sonoma Mountain Village to be served by the city sewer system. Domestic Water: A domestic waterline currently exists in Camino Colegio, and runs to the corner of Camino Colegio and Bodway. A new line will be extended down Bodway to the southern limit of Phase 2, and a loop system will be created and constructed with Phase 2. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Reclaimed Water: A reclaimed water main will be extended to the site to provide for connection of the park areas and common landscaping anticipated in Phase 2. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&I in July, 2008 for the City of Rohnert Park. Storm Drainage Conveyance_ Phase 2 in general drains to the south across Railroad Avenue through a culvert near the PG&E substation in the southwest corner of the site. The area will continue to drain through this facility, post development. Storm drainage run-off will be detained in the linear park in the median of IP Street. Peak run-off rates from Phase 2 during the 10, 25 and 100 -year storm events will be equal to or less than the peak run-off rates from the site in its existing condition during the 10, 25 and 100 year storm events. Storm Drainage Treatment: Storm drainage runoff in Phase 2A will be treated using various methods which may include, rain gardens, green roofs, bioswales, bloretention areas or mechanical systems. Treatment may be provided at the source or on a regional basis depending on particular conditions. Stormwater will be treated to the extent necessary to meet current guidelines set forth by the California State Water Board, the Regional Water Quality Control Board, the Sonoma County Water Agency and the City of Rohnert Park. Roadway Infrastructure: All internal streets required for Phase 2 will be constructed as part of the Phase 2 development. Phase 2 will not have any direct connections to the external streets, but will utilize the 2°d Street connection at Camino Colegio and the M Street connection to Bodway Parkway, which will have been made in previous project phases. BKF Engineers Page 8 May 27, 2010 PHASTNC LINE -----r-�-- SANITARY SEWER UNE —^^m-- STORM DRAKE LINE • SANITARY SEWER MANHOLE • STORM DRAIN MANHOLE • STORM DRAKE CATCH BASIN NOTE T. PRIVATE WATER MANS WILL BE CONSTRUCTED rR EACH STREET TO SUPPORT ADJACENT USES, PER PHASE. W SITE WATER MAIN TO BE INSTALLED IN BODWAY PARKWAY. METERED CONNECTIONS WILL BE MADE TO E)=NG r MAIN IN CAMINO COLE= AND BODWAY PARKWAY AS.STREETS ARE CONSTRUCTED. (Z 250 0 250 500 SCALE. 1"=25D' ,w BKF @.uu.E...� , I,s — to" Y Curm lY WA. St[ 40 m (YAj /�M m , 9;= FIGURE 6 PHASE 2INFRASTRUCTURE `SD STDG FOR PHASE 3 SD SW FOR �E'Nilsl= 3 ss -sin TOR' \—Vx 'AOROVlIU I S" COR Phase 3• Phase 3 is shown in Figure 7 and will consist of 271 residential units; 1,667 square feet of retail/grocery space; and a 1.34 acre park area. Phase 3 is comprised mainly of residential construction, and is at the south-easterly corner of the project, and is the final phase to be constructed. Sanitary. Sewer: Phase 3 will discharge wastewater flows through previously developed phases into the City Pump Station located in the northwest corner of the property along Camino Colegio, and into the City sewer system. As previously discussed, the existing system downstream from the pump station is flowing at full capacity and cannot accept any new flows. It is anticipated that, once complete, the hast Side Trunk Sewer Main will provide sewer capacity for all of Sonoma Mountain Village to be served by the city sewer system. Domestic Water: A domestic waterline will be extended down Bodway to the southern limit of Phase 3, and a loop system will be created and constructed with Phase 3. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Reclaimed Water: Reclaimed water will be extended to the site to provide for connection of the park areas and common landscaping anticipated in Phase 3. Ample supply capacity exists to serve this phase, per the Draft Water Supply Assessment for the Sonoma Mountain Village Project, prepared by PBS&J in July, 2008 for the City of Rohnert Park. Storm Drainage Conveyance: Phase 3 in general drains through the Phase 2 area and to the south across Railroad Avenue through a culvert near the PG&E substation in the southwest corner of the site. The area will continue to drain through this facility, post development. Storm drainage run-off will be detained in the linear park in the median of 11th Street. Peak run-off rates from Phase 3 during the 10, 25 and 100 -year storm events will be equal to or less than the peak run-off rates from the site in its existing condition during the 10, 25 and 100 -year storm events. Storm Drainage Treatment: Storm drainage runoff in Phase 3 will be treated using various methods which may include, rain gardens, green roofs, bioswales, bloretention areas or mechanical systems. Treatment may be provided at the source or on a regional basis depending on particular conditions. Stormwater will be treated to the extent necessary to meet current guidelines set forth by the California State Water Board, the Regional Water Quality Control Board, the Sonoma County Water Agency and the City of Rohnert Park. Roadway Infrastructure: All internal streets required for Phase 3 will be constructed as part of the Phase 3 development. The major connection to the external street system will occur through the extension of Bodway Parkway from Valley House Drive to the southern edge of the Phase, where it will meet the proposed 2'd Street. An additional connection will be at the 11th Street connection to Camino Colegio, which will have been constructed in a previous phase. BKF Engineers Page 9 May 27, 2010 �Bkf FIGURE 7 "� PHASE S INFRASTRUCTURE mt PHASING UK e SAMTARY SEWER LINE ----so-- STORM DRAIN LINE • SAMTARY SEWER MANHOLE • STORM DRAIN MANHOLE ■ STORM DRAIN CATCH SASIN NQTE 1. PRIVATE WATER MAINS WILL BE CONSTRUCTED IN EACH STREET TO SUPPORT ADJACENT USES, PER PHASE. OFF SITE WATER MAIN TO RE INSTALLED IN SOOWAY PARKWAY. METERED CONNECTIONS WILL BE MADE TO MnNG 8' MAIN iN CAMINO COLEGIO AND BODWAY PARKWAY AS STREETS ARE CONSTRUCTED. NORTH SEE PHASfe 4C 200 0 200 400 —r eora= m: SCALE: 1"=200' 00NAW i lE} ss sm KEY MAP 4 _ ± cc) ss I g k{ caNNEc TO ma (psly'rnn3^ E 0 —50 SD le W—m s-. $ t T f CONN TO _= EES CO W-= m SM # I [' ;t :t 3 t ,.r s[ PAAss A R cONNecT to r S CONNm TO a ,. t t [ i�un STNS m /-CONNECT TO i .. t oN5eTM -r CONNECT T4- EE7ss COW= TO TEm uH I 1 �Bkf FIGURE 7 "� PHASE S INFRASTRUCTURE mt PHASING UK e SAMTARY SEWER LINE ----so-- STORM DRAIN LINE • SAMTARY SEWER MANHOLE • STORM DRAIN MANHOLE ■ STORM DRAIN CATCH SASIN NQTE 1. PRIVATE WATER MAINS WILL BE CONSTRUCTED IN EACH STREET TO SUPPORT ADJACENT USES, PER PHASE. OFF SITE WATER MAIN TO RE INSTALLED IN SOOWAY PARKWAY. METERED CONNECTIONS WILL BE MADE TO MnNG 8' MAIN iN CAMINO COLEGIO AND BODWAY PARKWAY AS STREETS ARE CONSTRUCTED. NORTH � •rw x 200 0 200 400 —r SCALE: 1"=200' KEY MAP t � , May 18, 2010 ; of S 0 illi 0' SONOMA MOUNTAIN VILLAGE ONE PLANET. ONE PLACE Exhibit E-1, Pedestrian Walkways and Bicycle Paths Plan ■ To Lano sten On ... BICYCLE CIRCULATION PLAN .... Ps0p0sed Gass 1 alhelane o e o o Psaposed Class, 91kel.atle (5lsbject to SMART apptwall © Reco...led8uIS" n m i rolues.,cw.m Fr. .r««H comnww Rail lhle '� « . .. s.. . S. • ,• T — - — - - loft l �d� r ' Stwmms a�Mnd 9gm RW** 1 s mph design speed, with shm 9eg�+em up to 20uO, N(71APARFOF <� � A1111%tea _ � I RE1s111R1liG}LW I 20 mph design speed. 5htn0sy and signs ft-' CLss2hN:WsesOn 6wh sides 2s mph design speed. i t �asatl "to 2s "o de -AM spend. N06Nm ia0 I s; ianti 15 mph de,lgn speed. NOIs&e lanes. none END PEDESTRIAN PATH EXHIBIT E-2 PROPOSED S.M.A.R.T. .. ........ PATH PLAN GO'( r II i3I JULY 2010 J. ... ...... .... T Win B k -F F; <,,..... i t 1 I 1ZT ' p-, 0 lF ENGINEERS I SURVEYORS I PLANNERS ......... . ... . . . . . . . . . . ........... —v>ls i S'l-1 jrj'� "'p L -J . ..... j 7 T-7 J ....... . ............ .. .. .. .. ...... .. ...... ........ TO S.M.A.R.T. R/W (OPTION C) TO S.M.A.R.T. R/W (OPTION 8) SONOMA MOUNTAIN VILLAGE To S TO S.M.A.R.T. R/W (OPTION A) J ............ 7 p . ......... .. . .... —EXISTING PEDESTRIAN PATH ON CODDING PROPERTY ... ......... . ..... ------- ---- ...... . .......... .. .. . .. .... ......... .. .. . .. . ........... BEGIN PEDESTRIAN PATH ................... a...,..........-...,......-.....,.. . .. ....... . ........ .. . ............ ........ .... . ...... . SW 400. 0 Boo .,,.EAST RAILROAD AVE C4 =Ed feet (*5W4PedEAb.dw9 EXHIBIT F WATER TANK GUIDELINES The Tank shall be a minimum size of 0.97 million gallons and provide stored potable water to meet the following requirements: Tank equalization (25% of Maximum Day demand), Emergency Reserve (Average Day demand) and Fire reserve (2,500 gpm for 4 hours — commercial). The Tank shall be a welded steel tank conforming to AWWA D100-05 WELDED CARBON STEEL TANKS FOR WATER STORAGE. All appurtenances shall meet City Standards and AWWA standards. All designs and improvements shall be to the satisfaction of the City Engineer and the Department of Health. A minimum of 12 foot clear shall be provided around the tank at all points. This area shall be paved. The Tank shall be entirely above ground. Interior coating systems shall be three coat polyamide epoxy coating system that is certified it) accordance with NSF/ANSI 61 for contact with potable water in water storage tanks of the size being coated. The coating system shall be suitable for application in three even coats of 3-5 mils dry film thickness (DFT), for a total minimum of 9 mils DFT, or better coating system as approved by the City Engineer. A cathodic protection system shall be incorporated into the tank. Pressurizing pumps shall have sufficient back-up such that the largest pump can be out of service and all flow and pressure requirements can be met. Pumps shall be high efficiency. Motors shall be high efficiency variable speed motors. All above ground piping shall be ductile iron. The pump for the tank shall have emergency back-up power, a generator. All mechanical equipment shall be enclosed in a building. The site shall be fenced to a height of % feet. Fencing shall be commercial galvanized vinyl coated chain link or other fencing as approved by the City. I I I 1 EXISTING EXISTING SEWER PUMP STATION CITY WELL CAMINO COLEGIO F— w w H U) Z cv w cn O 0 Ix CL A WATER JANK SITE USA TANK STORAGE DIAMETER 95' HEIGHT 2W STORAGE tO6 MILLION GALLONS LOT a 0.75 AC Z NOTES, 1. FOR STORAGE VOLUME REFER TO THE 'SONOMA MOUNTAIN VILLAGE, PRELIMINARY WATER DISTRIBUTION REPORT'. PREPARED BY BKF ENGINEERS DATED APRIL 23. 2010. Sub!'ect EXHIBIT G 1646 N CALIFORNIA BLVD, STE 400 WATER STORAGE F'AC I L I TY SITE PLAN :®BKF WALNUT CREEK, CA 94596 Job No. 20065064 -. PH. (925) 940-2200 6 10 FAX: (925) 940-2299 By }�W Date 10_ Ch k d . CM ESHEET I OF I CAMINO COLEGIO jy 0 y% � 'y RELOCATED STORM DRAIN WTIiIN FU NRE ROADWAY INFRASTRUCTURE �AEMSTING • t , \ STORM DRAIN I � 0 �% o` ' 1 , r 1 • 1 � 1 • j 1 E NORTH 1! ioBKF mmml 9w�I�rwrrwr 1�u■i■� RAILROAD AVENUE 1646 N. CALIFORNIA SUITE 400 WALNUT CREEK, CA 94596 925-940-2200 925-940-2299 (FAX) Q a CL Subject EXHIBIT H NDN-PIZQJECT STORMDRAIN DEPICTION Job No. 20065064 By 9Date 6 10 10 Chkd.0 SHEET OF 1 nw Exhibit I Developed Portion of Site APN # 046-051.045 98,06 Acres total I EXHIBIT J AFFORDABLE HOUSING PLAN (SONOMA MOUNTAIN VILLAGE) I. INTRODUCTION The Project has been designed to substantially increase the housing stock in the City and to help alleviate the City's need for housing affordable to very low-, low-, and moderate -income households (as such terms are defined at Section 17.07.020(N)(2) of the City of Rohnert Park Municipal Code). Subject to potential adjustment as provided in Section VIII., below, Developer agrees to provide a total of 254 Affordable Units in the Project, consisting of 221 standard Affordable Units, plus an additional 66 Second Dwelling Units (one-half of which count toward Developer's total Affordable Unit count; RPMC § 17.07.020(N)(4)(c)(2)(iii)). Unless otherwise defined herein, capitalized terms contained in this Affordable Housing Plan shall have the meaning given to such terms in the Development Agreement. IL SUMMARY OF INCLUSIONARY HOUSING REQUIREMENTS Section 17.07.020(N) of the City of Rohnert Park Municipal Code establishes a housing trust fund and imposes an inclusionary requirement or an in -lieu fee on developers of residential development projects ("Inclusionary Housing Provisions'D. The Inclusionary Housing Provisions require Developer to reserve at least fifteen percent (15°1a) of all dwelling units as affordable units ("Affordable Units"). (RPMC § 17.07.020(N)(4)(a).) The Project will provide for development of a total of 1,694 dwelling units. Thus, as applied to the Project, the Inclusionary Housing Provisions require that a total of 254 Affordable Units be developed for the Project. Pursuant to the Inclusionary Housing Provisions, Affordable Units developed as part of rental housing shall . be affordable to very low- and low-income households (RPMC § 17.07.020(N)(4)(a)(i)); Affordable Units developed as part of for -sale housing shall be affordable to low- and moderate -income households (RPMC § 17.07.020(N)(4)(a)(ii)).1 Additionally, the Inclusionary Housing Provisions permit a developer to satisfy its obligations through an "alternative equivalent action," which includes the donation of vacant land to a non- profit affordable housing developer, and development of second dwelling units (provided that 1 The Inclusionary Housing Provisions define the varying levels of affordability as follows: • Very low-income households: Households with incomes of up to fifty percent (50%) of median income • Low-income households: Households with incomes of up to eighty percent (80%) of median income. • Moderate -income households: Households with incomes of up to one -hundred and twenty percent (120%) of median income. (See RPMC § 17.07.020(N)(2).) second dwelling units may satisfy no more than one-half ('/z) of the total inclusionary requirements, at a ratio of two (2) affordable units counting toward every one (1) Affordable Unit required). (RPMC § 17.07.020(N)(4)(c)(2)(i), (iii).) Based on these requirements, Developer will satisfy its obligations under the Inclusionary Housing Provisions as follows: A. Dedication of Land for Affordable Housing Development: Developer will dedicate one or more parcels of vacant land for development of a total of at least 221 Affordable Units. Developer will either develop the 221 Affordable Units on the dedicated parcel(s), or will donate such parcel(s) to one or more non-profit housing developers for development of the 221 Affordable Units (or portion thereof which Developer does not develop). B. Development of Second Dwelling Units: Of the 198 second units to be developed for the Project, 66 will be reserved as Affordable Units, allowing a total of 33 Affordable Units to be counted toward Developer's inclusionary housing requirements. C. Timing for Affordable Housing Development: To ensure that Developer causes the 254 Affordable Units provided herein to be promptly developed, Developer shall cause the Affordable Units to be developed progressively as other elements of the Project are construction, according to the timing provided at Section VI., below. D. Restricting Sale Price on Rental Housing Sites: Developer will not dedicate any parcel for development of Affordable Units until Developer has first recorded covenants against such parcel which ensure, to the satisfaction of City, that the Affordable Units proposed to be developed thereon will be restricted as rental housing for very low- and low-income households. E. Restricting Sale Price on -For -Sale Housing Sites: Developer will not dedicate any parcel for development of Affordable Units until Developer has first recorded covenants against such parcel which ensure, to the satisfaction of City, that the Affordable Units proposed to be developed thereon will be restricted as for -sale housing for low- and moderate -income households. F. Applicability of Inclusionary Housing Provisions: All requirements of the Inclusionary Housing Provisions concerning issuance of certificates of occupancy, restrictions on rental and sale price of Affordable Units, household income restrictions, and enforcement will apply in the development of Affordable Units by Developer. The foregoing obligations shall be governed by, and subject to, the further requirements provided hereinbelow. M. AFFORDABLE HOUSING SITES) 2 A. Obligation to Dedicate Land. Developer shall dedicate one or more parcels ("Affordable Housing Sile(s)") for development of no less than two hundred and twenty-one (221) Affordable Units. The Affordable Housing Site(s) shall be located entirely on the Property, shall be identified by Developer in future tentative tract maps for the Project, and shall be formed as legal parcels in conformance with the timing requirements provided at Section VI., below. Each future tentative tract map shall identify the total number of Affordable Units to be developed on each Affordable Housing Site(s) proposed for that tract, and no tentative tract map shall be deemed complete or accepted for processing by City unless the City determines, in its reasonable discretion, that: (i) the number of Affordable Units proposed in the tentative tract map is sufficient to satisfy the timing requirements provided at Section VI., below; and (ii) the Affordable Housing Site(s) is/are of adequate size, configuration, and location to accommodate the number of Affordable Units proposed in the tentative tract map. B. Obligation to Construct. Developer shall construct or cause to be constructed the Affordable Units on the Affordable Housing Site(s) in accordance with plans and specifications approved by the City. Concurrently with recordation of the first final map for each tract in which Affordable Housing Site(s) have been designated, Developer shall transfer the fee interest in each such Affordable Housing Site(s) to an affordable housing developer selected by Developer and approved by the City Manager or his or her designee in his or her reasonable discretion. The City Manager or his or her designee shall not withhold approval provided the proposed affordable housing developer (i) has at least five (5) year's experience in the development, ownership; operation and management of similar size affordable rental housing projects, (ii) does not have any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, and (iii) has the financial capability to develop and operate the Affordable Housing Site(s). Developer shall remain obligated to construct each such Affordable Housing Site(s) and shall, therefore, retain the right and option to repurchase each such Affordable Housing Site(s) from the designated affordable housing developer. If any designated affordable housing developer has not commenced construction of the subject Affordable Housing Site(s), as demonstrated by the pouring of foundations, within three (3) years of issuance of the first building permit for the Project, Developer, at its expense, will repurchase the Affordable Housing Site(s) from the designated affordable housing developer and commence and complete the construction of the Affordable Housing Site(s) as soon as possible, but in any event within six (6) years after issuance of the first building permit for the Project. Developer acknowledges and agrees that City shall have the right to withhold issuance of building permits in conformance with the timing requirements of Section VI., below, until such time as construction of the necessary Affordable Housing Site(s) has/have been satisfactorily completed as evidenced by a final certificate of occupancy. C. Affordability. Subject to adjustment as provided in Section VIII., below, the Affordable Housing Site(s) shall, upon Project completion, provide a total of 221 Affordable Units. The Affordable Housing Site(s) shall be used either as rental housing or for -sale Dousing; subject to the following requirements: 1. If operated as rental housing, fifty percent (50%) of the Affordable Units in the Affordable Housing Site(s) shall be rented to very low-income households at an. affordable rent; and the remaining fifty percent (50%) of such Affordable Units shall be rented to low-income households at an affordable rent. 2. If sold as for -sale housing, fifty percent (50%) of the Affordable Units in the Affordable Housing Site(s) shall be sold to low-income households at an affordable price; and the remaining fifty percent (50%) of such Affordable Units shall be sold to moderate -income households at an affordable price. 3. The Inclusionary Housing Provisions shall govern all determinations as to income level, affordability, and occupancy. 4. The Affordable Housing Site(s) shall be subject to affordability restrictions as provided in the inclusionary Housing Provisions and hereinbelow. D. Affordable Housing Agreement. The affordability restrictions shall remain in place for a minimum of fifty-five (55) years (for rental housing) or forty-five (45) years (for for -sale housing). Developer or its designated affordable housing developer shall enter into an agreement ("Affordable Housing Agreement's with City, in a form and content acceptable to the City Attorney, which shall be recorded against the Affordable Housing Site(s) prior, to the issuance of a certificate of occupancy for any Affordable Unit proposed for that Affordable Housing Site(s). Among other things, the Affordable Housing Agreement shall include the following terms: If the Affordable Housing Site(s) is/are operated as rental housing 1. The requirement to construct the Affordable Housing Site(s) as provided herein; 2. Provisions restricting the rental of Affordable Units within the Affordable Housing Site(s) to low- and very low-income households at an affordable rent for a period of fifty-five (55) years; 3. Non-discrimination covenants; 4. Provisions requiring income certification before the lease of any Affordable Units and recertification every year thereafter; 5. Provisions requiring the submittal of certificates of continuing program compliance to the City on at least an annual basis; f 6. Restrictions- on the ability to transfer the Affordable Apartment Complex; 4 7. Maintenance and management requirements, including City remedies following notice and opportunity to cure; 8. Provisions regarding the marketing of the Affordable Apartments, including any approved preference program, as set forth in Section 2 (E) below; and 9. Provisions restricting the use of the Social Services (defined below) space to approved Social Services uses. If the Affordable Housing Sites Ware sold as for -sale housing: 1. The requirement to construct the Affordable Housing Site(s) as provided herein; 2. Provisions restricting the sale of the Affordable Units within the Affordable Housing Site(s) to low- and moderate -income. households at an affordable sale price for a period of forty-five (45) years; 3. Non-discrimination covenants; 4. Provisions requiring income certification before the sale of any Affordable Units; 5. Restrictions on the ability to transfer the Affordable Units; 6. A phasing plan acceptable to the City Manager that indicates the location and unit size of each Affordable Unit, and the timing of the development of the Affordable Units in relation to the market rate units within Affordable Housing Site(s); 7. Provisions requiring homebuyers to execute and record, as appropriate, resale and refinance restrictions, disclosure statements and a performance deed of trust; and B. A form of Resale and Refinance Restriction Agreement that includes, among other things, provisions requiring that the Affordable Unit be sold to a low- or moderate -income household at an affordable sales price for a period of forty-five (45) years, refinance limitations, provisions prohibiting the rental of the Affordable Unit, and an option to purchase at an affordable sales price in favor of City the event of a default by the owner. . E. Ouality/Standards. If operated as rental housing, the Affordable Housing Site(s) shall be of high architectural quality, well landscaped, effectively and aesthetically designed and constructed in a workmanlike manner with professionally rendered finishes comparable to first-class market rate apartment projects located in the City of Rohnert Park. Each Affordable Housing Site shall include a mix of unit sizes. At least thirty-five percent (3511/o) of the Affordable Units in an Affordable Housing Site shall be 2-bedroom/2-bath units, and at least fifteen percent (15°/0) shall be 3-bedroom/2-bath units or larger; no more than fifteen percent (15%) of the Affordable Units in any Affordable Housing Site may be studio/1-bath units. 5 If sold as for -sale housing, the Affordable Housing Site(s) shall be indistinguishable from the market rate units in exterior and interior design, quality, materials, finishes, fixtures and architectural elements (other than interior flooring materials, countertops, cabinetry and appliances which shall be high quality, but need not be identical to the market rate condominiums), as well as number and proportion of bedroom types. The Affordable Units shall be dispersed throughout their respective phase. Sixty-six percent (66%) of the Affordable Units within any Affordable Housing Site shall be 2-bedroom/2-bath units; and thirty-four percent (34%) shall be 3-bedroom/2-bath units. F. Marketing/Implementation. Developer or its designated affordable housing developer shall prepare and implement a marketing and implementation plan for the rental or sale of the Affordable Units in the Affordable Housing Site(s). Each plan must be in a form and content reasonably acceptable to the City and include, among other things, the following: If the Affordable Housing Site(s) is/are operated as rental housing: 1. A plan to market the Affordable Units to eligible households; 2. Procedures for the rental of the Affordable Units, including the slotting of applications and creation of a waiting list, eligibility determination, income certification and annual re -certifications; and 3. To the extent permitted by law, a preference program, whereby Developer shall give preference in the rental of the Affordable Units first to nurses, Cotati/ Rohnert Parr Unified School district staff and faculty, peace officers and persons employed as firefighters, who live or work in the City; second to other income qualified City municipal employees; third to income qualified employees of Sonoma State University; fourth to persons who live and work in Rohnert Park; fifth to persons who live in Rohnert Park; sixth to persons who work in Rohnert Park; and seventh to all others. If the Affordable Housing Site(s) islare sold as for -sale housing: 1. A plan to market the Affordable Units to eligible households; 2. Procedures for the sale of the Affordable Units, including a process for slotting applications and creating a waiting list, the development of a homebuyer class to educate homeowners on their rights and obligations, a process for working with and approving loans and lenders, a procedure for determining eligibility and a process for executing all documents; and 3. To the extent permitted by law, a preference program, whereby Developer shall give preference in the sale of the Affordable Units first to nurses; Cotati/Rohnert Park Unified School district staff and faculty, peace officers and persons employed as firefighters, who live or work in the City; second to other income qualified City municipal employees; third to income qualified employees of 2 Sonoma State University; fourth to persons who live and work in Rohnert Park; fifth to persons who Jive in Rohnert Park; sixth to persons who work in Rohnert Park; and seventh to all others. V. SECOND DWELLING UNITS A. Obligation to Construct. In addition to the Affordable Units to be construction on the Affordable Housing Site($), Developer shall construct or have constructed no less than sixty six (66) second dwelling units ( "Second Dwelling Units") which shall each be Affordable Units. Each Second Dwelling Unit shall be located on a parcel which a primary market rate residential unit has been constructed. Second Dwelling Units shall be identified by Developer in future tentative tract maps for the Project, and shall be constructed in conformance with the timing requirements provided at Section VI., below. Each future tentative tract map shall identify the total number of Second Dwelling Units to be reserved as Affordable Units for that tract. 13. Affordability. To the extent any of the Second Dwelling Units are rented or leased to third parties, the Second Dwelling Units shall be rented to low-income households at an affordable rent. C. Affordable Housing Agreement. The affordability restrictions for Second Dwelling Units shall remain in place for a minimum of fifty-five (55) years. Developer shall enter into an Affordable Housing Agreement with City, in a form and content acceptable to the City Attorney, which shall be recorded against each parcel on which a Second Dwelling Unit is proposed; the Affordable Housing Agreement shall be recorded prior to the issuance of a certificate of occupancy for any unit on the parcel. Among other things, the Affordable Housing Agreement for Second Dwelling Units shall include the following terms: 1. The requirement to construct the Second Dwelling Units as provided herein; 2. Provisions requiring the Second Dwelling Units, if rented or leased to a third party, to be occupied by low-income households at an affordable rent; 3. Non-discrimination covenants; 4. A phasing plan acceptable to the City that indicates the location and unit size of each Second Dwelling Unit and the timing of the development of the Second Dwelling Units in relation to the market rate units within the tract; 5. Provisions requiring the purchaser of each Second Dwelling Unit to execute a Rental Restriction Agreement that, among other things, remains in force and effect for a period of fifty-five (55) years and obligates the purchaser, if the Second Dwelling Unit is rented or leased, to rent or lease the Second Dwelling 7 Unit only to a Jow-income household at an affordable rent, to obtain tenant income certification before renting or leasing the Second Dwelling Unit, and to provide City with the tenant's income and other information documenting compliance with the agreement upon request. D. OuaIity/Standards. Each Second Dwelling Unit shall be constructed on a parcel on which a market rate unit is being constructed and shall be a minimum of three hundred and fifty (350) and a maximum of seven hundred (700) square feet in size. The Second Dwelling Units shall be of high architectural quality, effectively and aesthetically designed and constructed in a workmanlike manner with professionally rendered finishes. The exterior design, quality, materials, finishes and architectural elements shall be consistent with those of the corresponding market rate unit. Interior finishes such as flooring materials, countertops, cabinetry and appliances shall be high quality, but need not be identical to the corresponding market rate unit. V1. TEMNG FOR CONSTRUCTION To ensure that development of the 254 Affordable Units keeps pace with overall construction of the Project, City shall withhold building permits for residential units as follows: I. Prior to the First Building Permit for a Residential Unit: Developer shall have either (i) submitted a conceptual proposal to City providing for its development of at least sixty (60) Affordable Units, or (ii) produce evidence that it has submitted or received a letter of intent to or from a qualified non-profit affordable housing developer for the development of at least sixty (60) Affordable Units. 2. Prior to the 50th Building Permit for a Residential Unit: Developer shall have either (i) submitted plans to City providing for its development of at least sixty (60) Affordable Units, or (ii) produced evidence that it has entered into a binding contract with one or more qualified non-profit affordable housing developer(s) for the development of at least sixty (60) Affordable Units (or portion thereof which Developer does not develop). 3. Prior to 100th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have completed all steps necessary for the issuance of building permits for the first thirty (30) Affordable Units. 4. Prior to 150th. Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for the first thirty (30) Affordable Units. 5. Prior to 250th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional thirty (30) Affordable Units, such that a total of sixty (60) Affordable Units have been developed to -date. 6. Prior to 450th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional thirty (30) Affordable Units, such that a total of ninety (90) Affordable Units have been developed to -date. 7. Prior to 650th Permit fora Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional thirty (30) Affordable Units, such that a total of one hundred and twenty (120) Affordable Units have been developed to -date. 8. Prior to 850th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional thirty (30) Affordable Units, such that a total of one hundred and fifty (150) Affordable Units have been developed to -date. 9. Prior to 1 050th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional thirty (30) Affordable Units, such that a total of one hundred and eighty (180) Affordable Units have been developed to -date. 10. Prior to 1250th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional thirty (30) Affordable Units, such that a total of two hundred and ten (210) Affordable Units have been developed to -date. 11. Prior to 1450th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional thirty (30) Affordable Units, such that a total of two hundred and forty (240) Affordable Units have been developed to -date. 12. Prior to 1 650th Permit for a Residential Unit: Developer and/or the non-profit affordable housing developer(s) shall have constructed and completed all steps necessary for the issuance of certificates of occupancy for an additional fourteen (14) Affordable Units, such that all required Affordable Units (two hundred and fifty-four (254)) are developed. V. COMPLIANCE MONITORING Commencing one year after the Effective Date and every year through the Term, Developer shall submit an annual implementation plan to the City summarizing the status of compliance with the Affordable Housing Plan, including status of construction and sale or rental of the Affordable Units and status of construction of the affordable Second Dwelling Units. VI. DEVELOPER'S OBLIGATION - The obligations set forth in this Affordable Housing Plan are the obligations of Developer, who shall be responsible for fulfilling them at Developer's sole cost and expense. Neither City nor the 9 Rohnert Park Community Development Agency will have any .obligation to assist in the development of any of the Affordable Units or Second Dwelling Units, Developer shall provide any and all subsidies necessary to construct the Affordable Units and Second Dwelling Units and to comply with all provisions of this Affordable Housing Plan. VII. PRIORITY The Affordable Housing Agreements described above shall be superior to any mortgage, deed of trust, lien or other encumbrance (other than the lien for current taxes or assessments not yet due) recorded against the Property, and shall be enforceable against any party who has acquired its title by foreclosure, trustee's sale, voluntary conveyance or otherwise. If so requested by City, Developer or its successor shall execute and agree to the recording of a subordination -agreement evidencing the provisions of this Section'VIL VIII. ADJUSTMENT Developer's obligation to provide 254 Affordable Units assumes development of 1,440 market rate residential dwelling units within the Project (not including any associated market rate secondary units). In the event that the anticipated total number of market rate dwelling units is reduced through subdivision mapping or other approval processes, the number of Affordable Units required to be developed within the Project will be reduced proportionately, with any fractional units rounded up to the nearest whole number. (For example, if the number of market rate units is decreased to 1,200, Developer shall be required to produce 213 Affordable Units). 10