Agenda packet — Livermore City Council, October 24, 2022 (part 2 of 3)

EXHIBIT B
276
park and the Memorial for the Association, the Association developed and proposed an offer to help the City meet those needs. To that end, the Association made the following offer to the City.

The Association offered the following:

1. Modify the Original Agreement to allow Area A to be used for affordable housing purposes for seniors with a preference for veterans, in addition to public purposes;

2. Modify the Original Agreement to allow the City, either itself or through a partnership or support of a third -party non - profit agency, and /or others, develop affordable housing for seniors with a preference for veterans in Area A;

3. Modify the Original Agreement to allow the City to dispose of portions of Area A that - are -not used -for civic center purposes to third -party non- profit agencies for the development of affordable housing for seniors with a preference for veterans and not for private gain;
in exchange for the following:

The City granting an easement to the Association in the downtown area designated by the Association in " Exhibit D" ( " Easement ") to this First Amendment for a park and the Park Amenities defined in the section below to be constructed in that portion of the Easement Designed " Park Area." The Association agrees and understands that the City, by itself or in partnership with a third party, may develop cultural facilities and commercial uses in those portions of the Easement designated " Cultural Facility Area" and " Commercial Use Area ", respectively, and may dispose of the those easement areas for those purposes. The purpose of the Easement is to ensure the obligations and requirements for the park and Park Amenities in the Park Area run with the land and allow the Association to have input on the integration of cultural facilities being considered ( such as a science and society center, a black box theater, and open space support) and commercial uses in those designated areas adjacent to the park and the Memorial to ensure they integrate with the Park Area defined in the section below in an appealing manner;

2. The City, at its own expense, designing a park in that portion of the Easement identified in Exhibit D as the " Park Area" that does and includes the following items which are collectively referred to as the " Park Amenities ":
a. The park shall be named " Stockmen' s Park" and the name shall not be changed without the Association' s prior written approval; b. Is designed in the shape of a horseshoe with the toe of the horseshoe abutting Livermore Avenue;

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c. Includes level grassy areas and concrete pathways that can be used for gathering and community events;
d. Includes a monument located within the inner edges of the horseshoe branches recognizing the transition of cowboys to soldiers in the defense of the United States;
e. Includes a memorial to the Association' s Livermore heritage; f. Includes a memorial for or dedicated to the residents of Murray and Pleasanton Townships who honorably served in the armed forces of the United States;
g. Includes a memorial to Livermore residents who honorably served in the armed forces of the United States in times of peace and times of war; and,
h. Includes a wrought iron or metal trellis or archway at the park' s entrance along Livermore Avenue in a style that closely matches the metal design elements currently existing in the adjacent Blacksmith Square;

3. The design of the park and the Park Amenities must be acceptable to the Association and approved by the Association in writing;

4. The City expending up to $ 500, 000 to construct the park and Park Amenities in the Park Area of the Easement, and commencing construction thereon on or before January 1, 2025, and thereafter diligently pursuing completion of construction, and ultimately completing the construction within 18 months of its commencement. The City' s right to construct, or for a City partner to construct, affordable housing on Area A is contingent upon the earlier of the City either depositing $ 500, 000 in escrow to construct the park and Park Amenities, or the City commencing construction of the park and Park Amenities. Notwithstanding the foregoing, the City may undertake efforts to make the necessary amendments to the City's general plan and zoning for Area A to enable land use entitlements to be secured for affordable housing on Area A, and to undertake efforts by the City or third -party non - profit agencies and /or others to apply to the City for entitlements to develop affordable housing in Area A, provided no work to construct affordable housing on Area A is commenced before the condition precedent in this section has been satisfied. In the event affordable housing is constructed in Area A, but the City does not complete construction of the park and Park Amenities as set forth herein, the City shall be subject to the penalties in Section 10 of the Original Agreement for that portion of Area A occupied by the affordable housing. Once constructed, the City will be responsible, at no cost to the Association, for the regular upkeep of the park and Park Amenities, including its maintenance, repair, and replacement, which shall be at a level consistent with other parks maintained by the City. The failure of the City to adequately maintain or repair the park and Park Amenities shall entitle Association to the remedies set forth in Section 10 of the Original Agreement, as amended;

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5. The City providing the Association the opportunity to comment and provide input on the cultural facilities to be constructed by the City, or constructed by a third party to whom the City has transferred property, in that portion of the Easement identified in Exhibit D as the " Cultural Facility Area." The purpose of the Association' s opportunity to comment and provide input is to ensure the cultural facilities do not overshadow the park and Memorial and integrate with the Park Area in an appealing manner;

6. The City providing the Association the opportunity to comment and provide input on the commercial uses to be constructed by a third party to whom the City has transferred property in those portions of the Easement identified in Exhibit D as the " Commercial Use Areas." The purpose of the Association' s opportunity to comment and provide input is to ensure the commercial uses do not overshadow the park and Memorial and integrate with the Park Area in an appealing manner.

The Association' s offer would allow the City to continue using Area A for public purposes, and preclude the use of Area A for market -rate residential housing and commercial uses that are not related to the public purposes and public interest for the civic center.

The Association' s offer would also allow all areas of the Easement to be used for parking prior to the construction of the park facilities, cultural facilities, and commercial uses in those designated areas. The Association' s offer would also allow the Cultural Facility Area and the Commercial Use Areas to be used as a park if the location is no longer needed for parking, prior to the construction of a cultural facility or commercial facility, respectively. In addition, the City may utilize the Easement for public infrastructure that does not interfere with other uses allowed in the Easement, or with the rights of the Association pursuant to the Easement.

City and Association desire to enter into the First Amendment to the Original Agreement for the City to accept the Association' s offer.

AGREEMENT
NOW, THEREFORE, City and Association hereby agree that the aforementioned recitals are true and correct and further agree as follows:

1. City and Association agree that all obligations under the Original Agreement have been satisfied, except for the City's development of a park and the Memorial on Area A.

2. Association has made an offer to the City, and the City hereby accepts the Associations' offer, to modify the Original Agreement to expand the uses for Area A to allow it to be used for affordable housing purposes for seniors with a preference for veterans, as set forth in this First Amendment.

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3. Section 1 of the Original Agreement is hereby revised to read as follows:

The Association shall deed Area A to the City to be used for a civic center, parks and recreation, and for affordable housing. The City agrees that all of Area A will be used only for public purposes in the best interest of the community and for affordable housing purposes for seniors with a preference for veterans. The City expressly agrees it will not use any part of Area A for market rate housing purposes, and it will not use any part of Area A for commercial uses that are not related to the public purposes and public interest for the civic center, subject to the penalties in Section 10."

4. Section 14 of the Original Agreement is hereby revised to read as follows:

It is mutually agreed that except so far as the Association' s activities under this contract are concerned, Area A and B are to be used only for public purposes and affordable housing for seniors with a preference for veterans, and not for private gain, except when public facilities or buildings are leased by the City for events of public interest."

5. The Original Agreement is hereby revised to add Section 15 to read as follows:

The City may use Area A for affordable housing purposes as set forth herein, either by itself or through a partnership or through the support of a third -party non - profit agency and /or others, to develop affordable housing in Area A. The Association acknowledges that the City's use of Area A for affordable housing includes the right to dispose of portions of Area A that are not used for civic center purposes to third - party non - profit agencies for the development of affordable housing and not for private gain."

6. The Original Agreement is hereby revised to add Section 16 to read as follows:

In consideration for allowing the City to use Area A for affordable housing purposes for seniors with a preference for veterans, the City shall grant an easement to the Association for the downtown area designated in " Exhibit D" ( " Easement ") for a park and the Park Amenities defined in the. Section 17 below. The purpose of the Easement is to ensure the obligations and requirements for the park and Park Amenities run with the land and allow the Association to have input on the integration of cultural facilities and commercial uses adjacent to the park and the Memorial to ensure the cultural facilities do not overshadow the park and Memorial and integrate with the Park Area in an appealing manner. For the purposes of this agreement, cultural facilities means a science and society center, a black box theater, a structure to provide open space support, and similar uses."

7. The Original Agreement is hereby revised to add Section 17 to read as follows:

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The City, at its own expense, shall design a park in that portion of the Easement identified in Exhibit D as the " Park Area" that does and includes the following items which are collectively referred to as the " Park Amenities ":
a. The park shall be named " Stockmen' s Park" and the name shall not be changed without the Association' s prior written approval; b. Is designed in the shape of a horseshoe with the toe of the horseshoe abutting Livermore Avenue;
c. Includes level grassy areas and concrete pathways that can be used for gathering and community events;
d. Includes a monument located within the inner edges of the horseshoe branches recognizing the transition of cowboys to soldiers in the defense of the United States;
e. Includes a memorial to the Association' s Livermore heritage; f. Includes a memorial for or dedicated to the residents of Murray and Pleasanton Townships who honorably served in the armed forces of the United States;
g. Includes a memorial to Livermore residents who honorably served in the armed forces of the United States in times of peace and times of war; and,
h. Includes a wrought iron or metal trellis or archway at the park' s entrance along Livermore Avenue in a style that closely matches the metal design elements currently existing in the adjacent Blacksmith Square.

The memorials above may consist of bronze plaques, marble or other stone works, or other similar landmark objects, and are intended to generally memorialize the groups identified above and not necessarily the names of individuals. The monument is intended be more substantial and in the form of a statute or sculpture."

8. The Original Agreement is hereby revised to add Section 18 to read as follows:

The City' s design of the park and the Park Amenities must be acceptable to the Association and approved by the Association in writing."

9. The Original Agreement is hereby revised to add Section 19 to read as follows:

The City shall expend up to $ 500, 000 to construct the park and Park Amenities in the Park Area of the Easement, and commence construction thereon on or before

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EXHIBIT B
281
January 1, 2025, and thereafter diligently pursuing completion of construction, and ultimately completing the construction within 18 months of its commencement. The City's right to construct, or for a City partner to construct, affordable housing on Area A is contingent upon the earlier of the City either depositing $ 500, 000 in escrow to construct the park and Park Amenities, or the City commencing construction of the park and Park Amenities. Notwithstanding the foregoing, the City may undertake efforts to make the necessary amendments to the City' s general plan and zoning for Area A to enable land use entitlements to be secured for affordable housing on Area A, and to undertake efforts by the City or third -party non - profit agencies and /or others to apply to the City for entitlements to develop affordable housing in Area A, provided no work to construct affordable housing on Area A is commenced before the condition precedent in this section has been satisfied. In the event affordable housing is constructed in Area A, but the City does not complete construction of the park and Park Amenities as set forth herein, the City shall be subject to the penalties in Section 10 of the Original Agreement for that portion of Area A occupied by the affordable housing. Once constructed, the City will be responsible, at no cost to the Association, for the regular upkeep of the park and Park Amenities, including its maintenance, repair, and replacement at a level consistent with other parks maintained by the City. The failure of the City to adequately maintain or repair the park and Park Amenities shall entitle Association to the remedies set forth in Section 10 for a breach of this Section 19."

10. The Original Agreement is hereby revised to add Section 20 to read as follows:

The City shall provide the Association the opportunity to comment and provide input on the cultural facilities to be constructed by the City, or constructed by a third party to whom the City has transferred property, in that portion of the Easement identified in Exhibit D as the " Cultural Facility Area." The purpose of the Association' s opportunity to comment and provide input is to ensure the cultural facilities do not overshadow the park and Memorial and integrate with the Park Area in an appealing manner."

11. The Original Agreement is hereby revised to add Section 21 to read as follows:

The City shall provide the Association the opportunity to comment and provide input on the commercial uses to be constructed by a third party to whom the City has transferred property in those portions of the Easement identified in Exhibit D as the Commercial Use Areas." The purpose of the Association' s opportunity to comment and provide input is to ensure the commercial uses do not overshadow the park and Memorial and integrate with the Park Area in an appealing manner."

12. The Original Agreement is hereby revised to add Section 22 to read as follows:

The Easement may be used for parking prior to the construction of the park facilities, cultural facilities, and commercial uses in those respective areas

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EXHIBIT B
282
designated in Exhibit D. In addition, the Cultural Facility Area and the Commercial Use Area may be used as a park if the location is no longer needed for parking, prior to the construction of a cultural facility or commercial facility, respectively. The City may utilize the Easement for public infrastructure that does not interfere with other uses allowed in the Easement, or with the rights of the Association pursuant to the Easement."

13. Section 10 of the Original Agreement is hereby revised to add an additional paragraph to the existing to read as follows:

In the event the City fails to maintain and repair the park and Park Amenities as required by section 19, Association shall provide written notice of breach to the City with a demand to cure. In the event the City fails to implement the cure or provide information to the Association demonstrating that a breach has not occurred, within 30 days of the date the written notice is delivered, then the Association may, but is not required to:
a. Perform the maintenance and repairs identified in the notice of breach; and may,
b. Provide documentation to the City showing the actual reasonable costs incurred for the maintenance and repair work identified in the notice and performed by the Association. The City shall be responsible for reimbursing Association for the costs of the work, plus an additional 10% of the costs for arranging the repairs and maintenance. The City shall deliver the reimbursement to the Association within 30 days of the date the documentation for the work is delivered to the City."

14. The Original Agreement is hereby revised to add Section 23 to read as follows:

The following standard terms and conditions are incorporated into this agreement:
a. California Law. This agreement shall be governed by and construed in accordance with the laws of the State of California.
b. Notices. All notices and demands shall be given in writing by registered or certified mail, postage prepaid, and return receipt requested. Notices shall be considered given forty -eight ( 48) hours after such mailing. Notices shall be addressed as appears below for the respective party, provided that if any party gives notice of a change of address or name, notices to the giver of that notice shall thereafter be given as demanded in that notice.

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283
City:

Attn: City Manager
City of Livermore
1052 S. Livermore Avenue
Livermore, California 94550
With a copy to:

Attn: City Attorney
City of Livermore
1052 S. Livermore Avenue
Livermore, California 94550
Association:

Attn: President
Livermore Stockmen' s Rodeo Association
P. O. Box 180
Livermore, California 94551
With a copy to:

Attn: Attorney for Livermore Stockmen' s Rodeo Association Rien, Adams & Cox
39 S. Livermore Avenue
Livermore, California 94550
c. Successors and Assigns. Each party hereto binds himself, his partners, successors, assigns, agents, and representatives to the other party hereto and to the partners, successors, assigns, agents, and representatives of such other party with respect to all covenants, agreements, and obligations contained in this agreement. Neither party to this agreement shall assign this agreement, or any of its duties or obligations set forth in this agreement, without the prior written consent of the other.
d. Attorney' s Fees. If legal action or arbitration is required to enforce any of the terms or conditions set forth in this agreement, then the prevailing party shall, in addition to all other relief available, be entitled to recover reasonable attorney' s fees.
e. Counterparts. This agreement may be signed in counterpart and each counterpart shall be deemed an original instrument. This agreement shall become effective on the signing thereof by all parties.

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Complete Agreement. This agreement represents the entire agreement of the parties which completely sets forth the obligations of the parties. Both parties acknowledge, warrant, and understand that there are no statements, representations, inducements, or agreements made between the parties, except for those expressly set forth herein. No amendment, clarification, supplement, or termination of this agreement shall be valid unless in writing and signed by the parties.
g. Partial Invalidity. If any provision or portion of this agreement shall be deemed invalid, it is agreed that such invalidity shall effect only such provision or portion thereof, and the remainder of this agreement shall remain in full force and effect."

15. The revisions in this First Amendment are prospective and only apply after the execution of this First Amendment. Unless otherwise stated herein, this First Amendment does not and shall not relieve the parties of the terms and conditions of the Original Agreement as written and in effect prior to this First Amendment.

16. If there are any conflicts between the provisions in this First Amendment and the provisions in the Original Agreement, the provisions of this First Amendment shall control.

17. Except as revised above, the Original Agreement shall remain in full force and effect.

Signatures and Attachment List on the Next Page

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In concurrence and witness whereof, and in recognition of the mutual consideration provided therefore, the parties have caused this First Amendment to be executed on the date first written above.

CITY OF LIVERMORE
arc Robert
City Manager
APPROVE29AS TO FORM:

MW Alcala
Attorney
Attachments:

Exhibit A — Area " A" Property Description and Maps
Exhibit D — Easement

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EXHIBIT B
286
EXHIBIT " A"
AREA " A"
PARCEL 1: All that certain, real property situate;. lying afia b ing In die, Township of Murray, County of' Alameda, State- of California; and particula'r'ly described, as follows, to -wit:

Lots 17„ 18 and 19 and- all that' portion of lot 23 of' the Smith and Grant Tract, which lies northwesterly of a line drawn parallel with: the northwestern line of said lot 23 and distant at riglht angles 25 feet southeasterly therefrom, as said lots and tract are shown on the- "Map of Addition No, 3 of the Town of Livermore" filed April 9, . 1878 in Book 6 of Maps, at page 3, in the office of the County Recorder of Alameda County.

PARCEL 2: All those certain lots pieces or parcels of land,., situate, lying, and being in the State of California, and bounded and particularly described as follows, to- wit:

Lots Numbers Fifteen ( 15) , Sixteen ( 16), Twenty= four( U), Twenty -five 25), Twenty - six ( 26),. Twenty - seven (' 27), Twenty - eight ( 28), Twenty - nitre 29), and Thirty (30), of the Smith and Grant Tract,:. as the same are delineated, on a certain Map entitled, " Map• of ,Addition No.:. 3,•. to the Town of Livexmore", filed April 9th, 1878 in the office of the County Recorder. of Alameda County. ( Liber 6 of Map's at page 3);...
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EXHIBIT B
287
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EXHIBIT B
289
LEGEND

BOUNDARY
P. 0. B. POINT OF BEGINNING
SQ. FT SQUARE FEET
RAILROAD . A VENUE'
N69 °30'00 "E 186.385'
R- 450. 000'
L°2Z
s22N
N
O
3r
0 r
r. 0
zo
N34

PARK AREA
82, 148- 4 SQ. FT.
cirY OF LiVERMORE
2018-
S69 030' 00 " W 117. 819`
S6300 ' r
1 R = 10.

LAND
L= 10
SHp, A
Q
0 60 120 No. 6441
I inch = 60 Pt. CA11
0o
o°
67, 494'
R
39 48
L - 13. 8:

CtJ
Z
P. 0. B.
k~-
N69 ° 30' 00 " E

4. 078'
SCOTT A. SHORTLIDGE, P. L. S 6441
JANUARY 22, 2018 SHEET 1 OF 4

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
1 1

FOR RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588 PARK AREA PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300 SCALE: [ SATE: JOB NO.:

CITY OF LIVERMORE, ALAMEDA COUNTY, CALIFORNIA 1" = 60 JANUARY 22, 2018 151084. 45 G I" 20151151064 745IMAPPINGIPIA7SWPAW AREA. DW 111712018 3.- 0& W PM AN NEZONCH N
A O
3 MAROON BEAR, LP
Q)
zW
a 2003 - 450990
0 R
0 z
N69 030'00 "E 113.516'
N34

PARK AREA
82, 148- 4 SQ. FT.
cirY OF LiVERMORE
2018-
S69 030' 00 " W 117. 819`
S6300 ' r
1 R = 10.

LAND
L= 10
SHp, A
Q
0 60 120 No. 6441
I inch = 60 Pt. CA11
0o
o°
67, 494'
R
39 48
L - 13. 8:

CtJ
Z
P. 0. B.
k~-
N69 ° 30' 00 " E

4. 078'
SCOTT A. SHORTLIDGE, P. L. S 6441
JANUARY 22, 2018 SHEET 1 OF 4

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
1 1

FOR RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588 PARK AREA PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300 SCALE: [ SATE: JOB NO.:

CITY OF LIVERMORE, ALAMEDA COUNTY, CALIFORNIA 1" = 60 JANUARY 22, 2018 151084. 45 G I" 20151151064 745IMAPPINGIPIA7SWPAW AREA. DW 111712018 3.- 0& W PM AN NEZONCH

EXHIBIT B
290
LEGEND

BOUNDARY
P. 0. B. POINT OF BEGINNING
P. 0. G POINT OF COMMENCEMENT
S0. FT. SQUARE FEET

RAILROAD AVENUE
P. 0. B. P. 0. C.

N69 030' 00 "E 110. 007' S69030' 00 "W

76.378' - --
R= 450. 000,
L=03031' 01 ,
L= 27,622
0 N'
Z
N..
3 0
0 0
6 12' 02'

CULTURAL

FACILITY I'
AREA
27,217f SOFT. N
a
AW
O N S
S` o
Z
O
a= 17046' 19
L= 102. 359'
0 60 120
1 inch = 60 ft.

R
o
R= 40.000'
140 049' 09"
L= 98.310'
N18 040' 51 "E{
S10002' 06 " W

19.313'
AHD S
SHa
L N M
No. 6441
OF

MAROON BEAR, LP
2003 -- 450990

PARK AREA
Z
C
C' R
SCOTT A. SHORTLIDGE, P.L. S. 6441
JANUARY 22, 2018
SHEET 2 OF 4

EXHIBIT D
PLAT TO ACCOMPANY LEGAL DESCRIPTION 1 1

FOR RUGGERI- JENSEN -AZAR
ENGINEERS PLANNERS " SURVEYORS

CULTURAL FACILITY AREA
4690
ONE: ( D5) SUITE 200 PLE925) 2 7 9
94588
PHONE: ( 925 227 - 9100 FAX: ( 925) 227 - 9300
SCALE: DATE: JOB O..

CITY OF LIVERMORE, ALAMEDA COUNTY, CALIFORNIA 1" = 60' JANUARY 22, 2018 151084. 45 a 1" 201311 51004 MWAMNOPLAT810U( T M FAGWJTYM 11VI2016? 3.'26: 12 PM XHN KNZONC' 1

EXHIBIT B
291
LEGEND

BOUNDARY
P. 0. B. POINT OF BEGINNING
P. 0. C. POINT OF COMMENCEMENT
SO. FT. SQUARE FEET

CULTURAL

FACILITY
ARfA
0 60 120
1 inch = 60 ft.

A VENUE
P.O.B.
k
51 o
o
a
z
R= 40.000'
R6 CR5
R = 375 000'
R =138.
h

PARK AR A
FOR CURVE AND o
PAND
sHO,
s!
c

LINE TABLES ,
o
SEE SKEET 2
w m
No. 6441
4- .MAROON BEAR, LP
0 2003 - 450990
COMMERCIAL USE :

AREAS A, B & C
7,947± SQ. FT.

P. 0. B.

N69 °30' 00 "E 11,37516'
N20030' 00 "W

49.695'
rn
h
N
Q)
Q3
P. 0. C.

BLDG b
SITE D
S20 030' 00 "E
S69 °30'00 "W

20.266'
P.O. B.

L2'
tit
L4 ` cn
c.a
tv o
COMMERCI.

USE AREA
4,99t± SQ. FT.

SCOTT A. SHORTLIDGE, P.L. S. 6441
JANUARY 22, 2018 SHEET 3 OF 4

EXHIBIT D
PLAT TO ACCOMPANY LEGAL DESCRIPTION A 1

FOR RUGGERI- JENSEN -AZAR
ENGINEERS PLANNERS • SURVEYORS

COMMERCIAL USE AREAS
4690 CHABOT
VE, SUITE 200 PLE925) 227 9
94588
PHONE: ( 925 227 - 9100 FAX: ( 925 227 - 9300
SCALE: DATE; OB NF:

CITY OF LIVERMORE, ALAMEDA COUNTY, CALIFORNIA 1" = 60 JANUARY 22, 2018 151084. 45 G,' W20i51T51084 T45WAPPJNMPLAWCAMMMAC USE AAEASDIK 112212010 3;37,•46 PM JOHN KNEI0410H

EXHIBIT B
292
Radial Bearing Table
Line Bearinq
Rl N45 03756 0E
R2 N2500100 " E
R3 N082242 "W
R4 N04 *27' 15 " W
R5 N14 048' 32 "W
R6 N20012' 19 "W
R7 N79 18'30 "E
R8 N1870' 56 "E
R9 N41051' 41 " W
R10 N43 04322 "W
R11 N53 °38'21 " W
R12 N86 040' 57 "E
Line Table
Line Distance
L 1
Bearing
N69 030100 20.236'
L2 N69T8' 58 "E 18. 154'
L3 N20 °30'00 "W 10. 069'
L4 N69030' 00" E 4. 078'
Curve Table
Curve Radius Delta Length
Cl 50. 000' 20 °34' 56" 17.961'
C2 120.000' 3302542" 70.012'
C3 138.000' 1071' 17" 24.940'
C4 375.000' 5T3'47" 35.320'
C5 40, 000' 61907'34" 42.674'
C6 300. 000' 1051' 41 " 9. 746'
C7 100.000' 9 °5459" 17.308'
C8 44.000' 39 °40'42" 30 471'

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

COMMERCIAL USE AREAS

CITY OF LIVERMORE, ALAMEDA COUNTY, CALIFORNIA
USE AREASDW 112212018 3.•1854 PM JOHN
SHEET 4 OF 4
1 1

RUGGERI- JENSEN -AZAR
ENGINEERS " PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
1" = 60' 1 JANUARY 22, 2018 1 151084. 45

EXHIBIT B
293
EXHIBIT " D"
Real property situate in the City of Livermore, County of Alameda, State of California and being portions of New Parcel " A" described in the Grant Deed to the City of Livermore recorded on 2018 under Document No. 2018 -_ , Official Records
of Alameda County and more particularly described as follows:

PARK AREA:

Beginning at the most easterly northeasterly corner of said parcel, said corner being on the westerly line of South Livermore Avenue, said corner also being the southeasterly corner of the parcel of land described in the deed to Maroon Bear, LP, recorded in Document No. 2003- 450990, Official Records of Alameda County; thence along the easterly line of first said New Parcel A for the following three ( 3) courses: 1) South 20 °30' 00" East 100. 000 feet, 2) North 69 °30' 00 "East 4. 078 feet and 3) South 39 °10' 40" East 80. 839 feet; thence across said parcel the following nine ( 9) courses:
1) Southeasterly along a non - tangent curve to the right, which a radial bears North 66 °44' 55" West to the radius point, having a radius of 20. 000 feet, a central angle of 39 °48' 03" and an arc length of 13. 893 feet,
2) South 63 °03' 08" West 67. 494 feet,
3) along a tangent curve to the right having a radius of 10. 000 feet, a central angle of 59 °59' 46" and an arc length of 10. 471 feet,
4) North 56 °57' 06" West 13. 858 feet,
5) South 63 °03' 08" West 143. 255 feet,
6) South 69 °30' 00" West 117. 819 feet,
7) North 20 °30' 00" West 180. 264 feet,
8) Northeasterly along a non - tangent curve to the left, which a radial bears North 34 °43' 03" West to the radius point, having a radius of 450. 000 feet, a central angle of 03 °31' 01" and an arc length of 27. 622 feet and
9) North 20 °30' 00" West 111. 338 feet to the northerly line of said parcel, last said line also being the southerly line of Railroad Avenue;
thence along last said line North 39 °30' 00" East 186. 385 feet to the westerly line of said parcel of land described in the deed to Maroon Bear, LP ( 2003 - 450990); thence along last said line and the southerly line of last said parcel ( 2003- 450990) South 20 °30' 00" East 106. 412 feet and North 69 °30' 00" East 113. 516 feet to the Point of Beginning.

EXHIBIT B
294
EXHIBIT " D"
Containing 82, 148 square feet of land, more or less.

CULTURAL FACILITY AREA:

Commencing at the westerly northeasterly corner of said New Parcel A, said corner being on the southerly line of Railroad Avenue, said corner also being the northwesterly corner of the parcel of land described in the deed to Maroon Bear, LP, recorded in Document No. 2003- 450990, Official Records of Alameda County;
thence along the northerly line of New Parcel A, last said line also being the southerly line of Railroad Avenue, South 69 030' 00" West 76. 378 feet for the Point of Beginning hereof; thence across New Parcel A for the following eight ( 8) courses:
1) South 20 °30' 00" East 59. 920 feet,
2) westerly, southerly and easterly along a non - tangent curve to the left, which a radial bears South 20 °30' 00" East to the radius point, having a radius of 40.000 feet, a central angle of 140 °49' 09" and an arc length of 98. 310 feet, 3) South 10 °02' 06" West 19. 313 feet,
4) South 20 °30' 00' East 122. 670 feet,
5) southwesterly along a non- tangent curve to the right, which a radial bears North 31 °19' 27" West to the radius point, having a radius of 330. 000 feet, a central angle of 17 °46' 19" and an arc length of 102. 359 feet,
6) North 20 °30' 00" West 156. 382 feet,
7) northeasterly along a non - tangent curve to the left, which a radial bears North 34 °43' 03" West to the radius point, having a radius of 450. 000 feet, a central angle of 03 °31' 01" and an arc length of 27. 622 feet and
8) North 20 °30' 00" West 111. 338 feet to the northerly line of New Parcel A; thence along last said line North 69 °30' 00" East 110. 007 feet to the Point of Beginning.

Containing 27, 217 square feet of land, more or less.

COMMERCIAL USE AREAS A, B, AND C:

Beginning at the westerly northeasterly corner of New Parcel A, said corner being on the southerly line of Railroad Avenue, said corner also being the northwesterly corner of the parcel

EXHIBIT B
295
EXHIBIT " D"
of land described in the deed to Maroon Bear, LP, recorded in Document No. 2003- 450990, Official Records of Alameda County;
thence along the westerly and southerly lines of last said parcel ( 2003- 450990) South 20 °30' 00" East 106. 412 feet and North 69 °30' 00" East 113. 516 feet to the easterly line of said New Parcel A, last said line also being the westerly line of South Livermore Avenue; thence along last said line South 20 °30' 00" East 54.934 feet; thence across New Parcel A for the following seven ( 7) courses:
1) South 69 °30' 00" West 20. 266 feet,
2) northwesterly along a non - tangent curve to the left, which a radial bears South 45 037' 56" West to the radius point, having a radius of 50. 000 feet, a central angle of 20 °34' 56" and an arc length of 17. 961 feet,
3) westerly along a non - tangent curve to the left, which a radial bears South 25 °03' 00" West to the radius point, having a radius of 120. 000 feet, a central angle of 33 °2542" and an arc length of 70. 012 feet,
4) westerly along a non - tangent curve to the left, which a radial bears South 04 °27' 15" East to the radius point, having a radius of 138. 000 feet, a central angle of 10 °21' 17" and an arc length of 24.940 feet,
5) westerly along a non - tangent curve to the left, which a radial bears South 14 °4832" East to the radius point, having a radius of 375. 000 feet, a central angle of 05 °23' 47" and an arc length of 35. 320 feet,
6) northwesterly along a non - tangent curve to the left, which a radial bears South 79 °18' 30" West to the radius point, having a radius of 40. 000 feet, a central angle of 61 007' 34" and an arc length of 42. 674 feet and
7) North 20 °30' 00" West 68. 695 feet to the northerly line of said New Parcel A, last said line also being the southerly line of Railroad Avenue;
thence along last said line North 69 °30' 00" East 51. 378 feet to the Point of Beginning.

Containing 7, 947 square feet of land, more or less.

COMMERCIAL USE AREA D:

Beginning at the westerly terminus of a line segment of the easterly line of said New Parcel A described by the course North 69 °30' 00" East 4. 078 feet, said line segment also being the westerly line of South Livermore Avenue;

EXHIBIT B
296
EXHIBIT " D"
Thence along last said line segment and said westerly line of South Livermore Avenue North 69 °30' 00" East 4. 078 feet and South 39 °10' 40" East 69. 213 feet; Thence crossing New Parcel A for the following six (6) courses:
1) South 63 °04' 20" West 87. 250 feet,
2) North 20 °30' 00" West 49. 695 feet,
3) Northeasterly along a non - tangent curve to the left, which a radial bears North 41051' 41" West to the radius point, having a radius of 300.000 feet, a central angle of 01 °51' 41" and an arc length of 9. 746 feet,
4) Northeasterly along a tangent compound curve to the left, which a radial bears North 43043' 22" West to the radius point, having a radius of 100. 000 feet, a central angle of 09 °54' 59" and an arc length of 17. 308 feet,
5) Northeasterly along a tangent compound curve to the left, which a radial bears North 53 °38' 21" West to the radius point, having a radius of 44.000 feet, a central angle of 39 °40' 42" and an arc length of 30. 471 feet,
6) North 69 030' 00" East 18. 221 feet and
Thence South 20 °30' 00" East 10.064 feet to the Point of Beginning.

Containing 4,991 square feet of land, more or less.

See Exhibit D — Plat to Accompany Legal Description which is attached hereto and made a part hereof.

END OF DESCRIPTION
This description and its accompanying plat were prepared by or under the direction of:

Scott Shortlidge, LS 6441 Date

EXHIBIT B
297

EXHIBIT D

COMMERCIAL PROPERTY PLAT MAP AND LEGAL DESCRIPTION
10/ 03/ 2018 D

EXHIBIT B
298
EXHIBIT " D"

LEGAL DESCRIPTION
CULTURAL FACILITY USE AREA:

Commencing at the westerly northeasterly corner of said New Parcel A, said corner being on the southerly line of Railroad Avenue, said corner also being the northwesterly corner of the parcel of land described in the deed to Maroon Bear, LP, recorded in Document No. 2003 - 450990, Official Records of Alameda County;
thence along the northerly line of New Parcel A, last. said line also being the southerly line of Railroad Avenue, South 69 °30' 00" West 76. 378 feet for the Point of Beginning hereof; thence across New Parcel A for the following eight ( 8) courses:
1) South 20 °30' 00" East 59. 920 feet,
2) westerly, southerly and easterly along a non - tangent curve to the left, which a radial bears South 20 °30' 00" East to the radius point, having a radius of 40. 000 feet, a central angle of 140 °49' 09" and an arc length of 98. 310 feet,
3) South 10 °02' 06" West 19. 313 feet,
4) South 20 °30' 00" East 122. 670 feet,
5) southwesterly along a non - tangent curve to the right, which a radial bears North 31 °19' 27" West to the radius point, having a radius of 330. 000 feet, a central angle of 17 °46' 19" and an arc length of 102. 359 feet,
6) North 20 030' 00" West 156. 382 feet,
7) northeasterly along a non - tangent curve to the left, which a radial bears North 34 °43' 03" West to the radius point, having a radius of 450.000 feet, a central angle of 03 °31' 01" and an arc length of 27. 622 feet and
8) North 20 °30' 00" West 111. 338 feet to the northerly line of New Parcel A, being the southerly line of the aforesaid Rail Road Avenue;
thence along last said line North 69 °30' 00" East 110. 007 feet to the Point of Beginning.

Containing 27, 217 square feet of land, more or less.

COMMERCIAL USE AREAS A, B, AND C:

Beginning at the westerly northeasterly corner of New Parcel A, said corner being on the southerly line of Railroad Avenue, said corner also being the northwesterly corner of the parcel of land described in the deed to Maroon Bear, LP, recorded in Document No. 2003 - 450990, Official Records of Alameda County;
PAGE 1 OF 6

EXHIBIT B
299
EXHIBIT " D"

LEGAL DESCRIPTION
Thence crossing New Parcel A for the following six ( 6) courses:
1) South 63 °04' 20" West 87. 250 feet,
2) North 20 °30' 00" West 49. 695 feet,
3) Northeasterly along a non - tangent curve to the left, which a radial bears North 41 °51' 41" West to the radius point, having a radius of 300. 000 feet, a central angle of 01 °51' 41" and an arc length of 9. 746 feet,
4) Northeasterly along a tangent compound curve to the left, which a radial bears North 43 °43' 22" West to the radius point, having a radius of 100. 000 feet, a central angle of 09 °54' 59" and an arc length of 17. 308 feet,
5) Northeasterly along a tangent compound curve to the left, which a radial bears North 53 °38' 21" West to the radius point, having a radius of 44. 000 feet, a central angle of 39 °40' 42" and an arc length of 30. 471 feet,
6) North 69 °30' 00" East 18. 221 feet and.

Thence South 20 °30' 00" East 10. 064 feet to the Point of Beginning.

Containing 4,991 square feet of land, more or less.

APN 98- 289 -2 -1, 98- 289 -20 & PORTIONS OF APN' s 97 -1 -32, 98- 289 -2 -1, 98- 289 -18, 98- 289 - 19, 98- 289- 21
See Exhibit D — Plat to Accompany Legal Description which is attached hereto and made a part hereof.

END OF DESCRIPTION
This description and its accompanying plat were prepared by or under the direction of:

PAr; F 9 nF F
Ft S
r1

EXHIBIT B
300
LEGEND

BOUNDARY
P. 0. B. POINT OF BEGINNING
SQ. FT. SQUARE FEET
L1= 03 31
L= 27. 622
ofN
o
p
51 RAILROAD A VENUE
N69 030' 00 "E 186. 385'
T—
N34

PARK AREA
82, 148f SQ. FT.

CITY Or LIVERMORE
569 030' 00 " W 117819
0 60 12
1 inch = 60 ft,
I WN i 1
CA
pie
1 PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

PARK AREA

CITY OF LIYERMORE, ALAMEDA COUNTY, CALIFORNIA
G \" 2015\ 151084 745 MAPPING\ KAIS PARK ARFA. DW 21812018 4.' 55.' 23 PM JOHN KNEZONCH o
0 o

67. 494'
cWl3
R = 20•
3904
C
P. 0. B.
hl—
N69 * JO' 00" E

4. 078'
rs
s
o
CR
6441
SHEET 1 OF 4
1m, 11

RUGGERI- JENSEN - AZAR
ENGINEERS " PLANNERS " SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
SCALE: DATE: JOB NO.:
1" = 60, MARCH 13, 2018 151084. 45
PAGE 3OF6
N
o
W

MARDDN BEAK, LP
o
0 2003 - 450990
0 0
0 z
V'
N69 °30' 00 "E 113.516'
N34

PARK AREA
82, 148f SQ. FT.

CITY Or LIVERMORE
569 030' 00 " W 117819
0 60 12
1 inch = 60 ft,
I WN i 1
CA
pie
1 PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

PARK AREA

CITY OF LIYERMORE, ALAMEDA COUNTY, CALIFORNIA
G \" 2015\ 151084 745 MAPPING\ KAIS PARK ARFA. DW 21812018 4.' 55.' 23 PM JOHN KNEZONCH o
0 o

67. 494'
cWl3
R = 20•
3904
C
P. 0. B.
hl—
N69 * JO' 00" E

4. 078'
rs
s
o
CR
6441
SHEET 1 OF 4
1m, 11

EXHIBIT B
301
LEGEND
BOUNDARY.

P. O.B. POINT OF BEGINNING
P. 0. C. POINT OF COMMENCEMENT
SQ. FT. SQUARE FEET
R =450. 000
A =03 °3101,
L= 27.622
O
R
N
Z
N
0 0
z
N34
GENERAL NOTE.-

1. THE BUILDABLE FOOTPRINT WITHIN

THE CULTURAL FACILITY AREA SHALL
NOT EXCEED 20,100 SQUARE FEET.

RAILROAD A VENUE
P. 0. B. P. 0. C.

N69 030' 00 "E 110. 007' S69 030' 00 "W
2 CULTURAL

FACILITY
USE
z
Z = 17 ° 46' 19"
L= 102. 359'
0 60 120
1 inch = 60 ft.

AREA

6. 378'
27,217-4 SQ. FT.

NOTE 1)
z z
Z = 17 ° 46' 19"
L= 102. 359'
0 60 120
1 inch = 60 ft.

N
W
0 0
f
R= 40. 000'
140 049' 09"
L= 98. 310'
N18 040' 51 " E(
S10002' 06 " W

19. 313'

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

CULTURAL FACILITY USE AREA
CITY OF UVERMORF._ MAMMA MITNTY C' ATJFnRNTA
M4ROON BEAR, LP
8003-- 450990
CITi Or LIVE" RjV0RE'
2O1a
COM1l9ERCJAL
USE" AREAS
B,& C

COMMERCIAL

USE AREA D
03 b
Z
r
C" R
SHEET 2 OF 4
PAGE 4OF61
A VL

RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON. CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
If '
UAIL; ' OUt5 NW
I" — an' LJAOru „ 7ma , rl, no. Ar

6. 378'
N
W
0 0
f
R= 40. 000'
140 049' 09"
L= 98. 310'
N18 040' 51 " E(
S10002' 06 " W

19. 313'

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

CULTURAL FACILITY USE AREA
CITY OF UVERMORF._ MAMMA MITNTY C' ATJFnRNTA
M4ROON BEAR, LP
8003-- 450990
CITi Or LIVE" RjV0RE'
2O1a
COM1l9ERCJAL
USE" AREAS
B,& C

COMMERCIAL

USE AREA D
03 b
Z
r
C" R
SHEET 2 OF 4
PAGE 4OF61
A VL

RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON. CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
If '
UAIL; ' OUt5 NW
I" — an' LJAOru „ 7ma , rl, no. Ar

EXHIBIT B EXHIBIT D
302
FOR CURVE/ LINE TABLES SEE SHEET 4
LEGEND GENERAL NO TES.-
BOUNDARY 1. THE BUILDABLE FOOTPRINT WITHIN THE COMMERCIAL USE P. 0. B. POINT OF BEGINNING AREAS A, B & C SHALL NOT EXCEED 5, 700 SQUARE FEET.

P. 0. C. POINT OF COMMENCEMENT 2. THE BUILDABLE FOOTPRINT WITHIN THE COMMERCIAL USE SQ.FT. SQUARE FEET AREA D SHALL NOT EXCEED 2,900 SQUARE FEET.

FLAILROAD AVENUE
P. 0. B.

N69 030' 00 "E

51. 378' N
o

NIAROOK BEAR, LP
R o ( NOTE 1) 0 8003 - -x50990

COMMERCIAL USE
o AREAS A, B & C
N°
7,947± SQ.FT.

P. 0. B.

R= 40.000'
N69 °30'00 "E 113. 5
R= 375.000'

CULTURAL

FACILITY
USE

AREA PARK AREA
N.
0 60 120
1 inch = 60 ft.

EXHIBIT D
120. 000'
N20 030' 00 "W

49. 695' --

CITY OF' LIVERMORE
2018-

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

COMMERCIAL USE AREAS
Ct3
Q
P. 0. C.

BLDG
SITE D
S20 030' 00 "E

54.934'
L1 10
0 12
L2
g P.O. B.
6)
L4 , G
w
NOTE 2) o
w Po
cn
250
S642a " W
COMMERCI.

USE AREA
4, 991f SQ. FT.

SHEET 3 OF 4
PAGE 5 OF 61;
1 RUGGERI- JENSEN -AZAR

ENGINEERS - PLANNERS I SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
CITY OF LIVERMORE. ALAMEDA COUNTY. CALIFORNIA 1 1" = so' 1 MARCH 13. 2018 1 151084. 45

EXHIBIT B
jjj
303
W L1( - tn 1 )
r n.

EXHIBIT B
304

EXHIBIT E

DRAFT PARCEL MAP FOR PROPERTY
10/ 03/ 2018 E

EXHIBIT B
305
TENTATIVE PARCEL MAP 10926

CITY OF LIVERMORE, ALAMEDA COUNTY, CALIFORNIA
w
o F
z"
m

RAILROAD AVENUE
aIIro3' 35" 1J5H' N69 JO " 00' E ) 0.5. 1'
R_.

L: 142Y w` 12. 4' CUL - 1A1 kWAd
F t R£ OESTRIAN ESMT IXm
PARCEL 2
r1= 8) 53' 04'
L - 361'
Flo`
r
II zI. 3' I
i 5' wE
ea. o• sa6 13D

PARCEL I
P RN E ^ sEME^°
I 9LJJ9 S3 i (
2018- 0) 696))
1149'
2I' EME &
PEDESTRIAN ESMr I ' y I
I I ? I PARCEL 6
I I
1!. 053 3E
y roil I I
PARCEL 3 MAROON BEAR, LP
7, 1411 — 2003- 450990
PARCEL 5
39, 912 GF3
I I I
JJ22" _ _ 1149'

EAST - WEST STREET
OLT BE OEOICATED Al A PUBLIC ROADWAY)
489. _ 8' _ _ _ _ _ _ _ _ _ 2-1 ` —__
N6JLD5J

DESIGNATED BEAR MAROON

DESIGNATED - REMAINDER PARCEL
REMAINDER PARCEL 3 6x. 522 SF3
IR
I '
N69 J0' " E Z6 B"
b b. fiE 020 °3000 " W 4
1 Ng0. 40 07'
2 ti p
y O U U W u
j ti
ANGLE

FIRST STREET
PARCEL 4
p
L =R- 7135' 4, 51'
0 tOmen- AM
80 120
Z
A
5135' oros12 ° Os5TEw a
qtt OF IT—
031R S RE' CIAIO
915) 960 - 1 45x1
2 LAND SURKYOR RUGGE - JENSEN
4690 CHABOT MW, SUITE 1W
PI£ ASANTON. CA 94568
9151 1- 9100
J ASSESSAP' S PARCEL NUMBERSCONTACT' 1 SCOP S40RRI0( S, 110441 09)- 0001- 026 - 01, 09> - 0001- 026 - 02, 097- 0001 - 026 - 02. 097- 0001 - OJ2, 097 - 0001- 036, 098- 0189- OOI - 01,
098- 0289 - OIB 098 - 0289- 019, 098 - 0189 - 020,
d9H- 0289 - 021

4. PROPERTY DESCRIPTION: NEW PARCEL ' A " PER ( 2016- O1a0J9)

3. EXISRNC USE: RE- AND U CANT
6 PROPOSED USE
J. GENERAL PLAN LANG USE
PUB!/ C PARK, PARKING, RETAIL AND PUe( IC FAgf/ nE5
DO111 AREA SP£gFIC PLAN ( DAJ
I fXLSnNC ZONING: TO. SP£ C/ FlC PUN ( OSPJ
9 PRCP03E0 2CW / NG DONN( ONN SPECtt) C PLAN ( OaP)
ILL GRO55 AREq: 194, 0931 SWA11-
rOrAL C? YPROPERrY)
II. N£ T LOT AREA: 171. 13915QFr.

PARCELS I INRWGN 0)
12 TOTAL NUMBER OF PRL— I PARCELS 6
IJ SMALLESI LOT SIZE d, 1003 SOFT
UTAIIk3
a. WATER:

4. SANIrARY

CALIFORNIA WATER SEANCE COMPANY
1XIOPE
c. ST0. 4Al GRAIN:

A, GAS qN0 ELECIMC
e 2lFPHG9T`
L cA6LE M
I6 NO NPROV£ MENrS OR GRAgNG IS PROPOSED
qtt CF LItERMORE
PA— GAS AND FIEC) RlC
A & roucn9r r
IpM nll9 APPlICA npV.

W
T) m

RUGGERI- JENSEN - AZAR
IL
IIIP+N_) E° TC z'.. I . TAx` isis) " s3 °0, 666

EXHIBIT B
306

EXHIBIT F

CITY FEES
10/ 03/ 2018

EXHIBIT B
307

EXHIBIT F
LIVERMORE VILLAGE SITE FEE ESTIMATE SUMMARY - With Credits by Bldg SF* Monday, October 22, 2018
Fee Estimate Subtotal $ 194, 417. 94 $ 65, 225. 17 $ 94, 204. 90 $ 189, 106. 98 $ 542, 954. 98 Previous Development Credit $ 300, 000. 00
Restroom Construction Credit $ 50, 000. 00
Total Fee Estimate $ 192, 954. 98
Parking In Lieu Estimate $ 499, 500
Parking In Lieu Credits $ 468, 800
Total Parking Fees Estimate $ 30, 700
Actual fees paid will be based on total building square footage and related construction details. Fees charged
will be based on the cost of the fee at the time the fee is paid
1 City and County Storm Drainage fees. No Fees required because new impervious surface is less than existing Future Future Future Future Retail A, B, C, D
Retail A Retail B Retail C Retail D Subtotal
1 City Storm Drainage Fee (
1)
2 County Storm Drainage Fee (
1)
3 Sanitary Sewer Connection Fees 12, 450. 50 4, 761. 90 3, 574. 20 10, 715. 20 31, 501. 80 4 Park Facilty Fee 7, 180. 91 2, 746. 46 2, 061. 44 6, 180. 06 18, 168. 88 5 City Water Connection Fee - N/A Calwater 0. 00 0. 00 0. 00 0. 00 0. 00 6 ACWFC Zone 7 Connection Fee - 1" Domestic 42, 255. 00 0. 00 42, 255. 00 28, 170. 00 112, 680. 00 7 ACWFC Zone 7 Connection Fee - 3/ 4" Domestic 0. 00
8 ACWFC Zone 7 Connection Fee - 3" Domestic (
2)

0. 00
9 ACWFC Zone 7 Connection Fee - 1" Irigation 0. 00 0. 00 0. 00 28, 170. 00 28, 170. 00 10 ACWFC Zone 7 Connection Fee - 1. 5" Irrigation 0. 00 11 Low Income Housing Impact Fee 4, 657. 16 1, 781. 21 1, 336. 94 4, 008. 06 11, 783. 38 13 Traffic Impact Fee 38, 337. 45 14, 662. 79 11, 005. 64 32, 994. 13 97, 000. 00 13 Tri- Valley Transportation Development Fee 11, 474. 65 4, 388. 67 3, 294. 06 9, 875. 36 29, 032. 74 14 Social / Human Services Facility Fee 16. 83 6. 44 4. 83 14. 48 42. 57 15 City Wide General Plan Recovery Cost 1, 312. 35 501. 93 376. 74 1, 129. 44 3, 320. 46 16 Encroachment Permit Fee 0. 00
17 Encroachment Permit Inspection Fee 0. 00
18 School Mitigation Fees 2, 052. 65 785. 07 589. 26 1, 766. 56 5, 193. 54 19 Engineering Plan Check Fees 0. 00
20 Downtown specific plan cost recovery 1, 043. 15 398. 97 299. 46 897. 76 2, 639. 34 21 Downtown revitalization fee 60, 637. 30 23, 191. 74 17, 407. 321 52, 185. 921 153, 422. 28 22 Building Permit Fee Estimate 13, 000.00 12, 000.00 12, 000. 001 13, 000.001 50, 000. 00 23 Art in Public Places- No fee if art installed
Fee Estimate Subtotal $ 194, 417. 94 $ 65, 225. 17 $ 94, 204. 90 $ 189, 106. 98 $ 542, 954. 98 Previous Development Credit $ 300, 000. 00
Restroom Construction Credit $ 50, 000. 00
Total Fee Estimate $ 192, 954. 98
Parking In Lieu Estimate $ 499, 500
Parking In Lieu Credits $ 468, 800
Total Parking Fees Estimate $ 30, 700
Actual fees paid will be based on total building square footage and related construction details. Fees charged
will be based on the cost of the fee at the time the fee is paid
1 City and County Storm Drainage fees. No Fees required because new impervious surface is less than existing

EXHIBIT B
308

EXHIBIT G

GRANT DEED
10/ 03/ 2018 G

EXHIBIT B
309
RECORDING REQUESTED BY:

Order No.

Escrow No.

Loan No.

WHEN RECORDED MAIL TO:

City Clerk
City of Livermore
1052 South Livermore Avenue
Livermore, CA 94550
MAIL TAX STATEMENTS TO:

SAME AS ABOVE
APN # ,

EXHIBIT G

ABOVE THIS LINE FOR RECORDER' S USE
The Undersigned grantor( s) declare( s):

CITY TRANSFER TAX $
DOCUMENTARY TRANSFER TAX $
SURVEY MONUMENT FEE $
Computed on the consideration or value or property conveyed; OR Computed on the consideration or value less liens or encumbrances remaining a t time of sale.

GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, The City of Livermore, A Municipal Corporation
hereby Grant( s) in fee to
Red Bear Management, Inc.
the real property in the City of Livermore
County of Alameda, State of California, as described as

FOR PLAT MAP AND LEGAL DESCRIPTION
SEE EXHIBITS " A" AND " B" ATTACHED HERETO AND MADE A PART HEREOF POWER OF TERMINATION ( Civil Code section 885. 010)
IN THE EVENT THAT RED BEAR PROPERTY MANAGEMENT, INC., OR ITS SUCCESSORS OR

ASSIGNS, FAILS TO COMMENCE CONSTRUCTION OF THE IMPROVEMENTS AS SET FORTH AND DEFINED IN SECTION 10. 4 OF THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY AND RED BEAR PROPERTY MANAGEMENT, INC. FOR THE TRANSFER OF THE

PROPERTY HEREIN DESCRIBED, THEN THE PROPERTY HEREIN DESCRIBED SHALL REVERT TO

THE CITY OF LIVERMORE, OR ITS SUCCESSORS OR ASSIGNS, FREE AND CLEAR OF ANY CLAIMS OF RED BEAR PROPERTY MANAGEMENT, INC., OR ITS SUCCESSORS OR ASSIGNS.

City of Livermore, a municipal corporation
Signature:

EXHIBIT B
310
Name: Title:

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California
County of
On before me, , a Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person( s) whose name( s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity( ies), and that by his /her /their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

EXHIBIT B
311

EXHIBIT A AND B
EXHIBIT " D"

LEGAL DESCRIPTION
CULTURAL FACILITY USE AREA:

Commencing at the westerly northeasterly corner of said New Parcel A, said corner being on the southerly line of Railroad Avenue, said corner also being the northwesterly corner of the parcel of land described in the deed to Maroon Bear, LP, recorded in Document No. 2003 - 450990, Official Records of Alameda County;
thence along the northerly line of New Parcel A, last. said line also being the southerly line of Railroad Avenue, South 69 °30' 00" West 76. 378 feet for the Point of Beginning hereof; thence across New Parcel A for the following eight ( 8) courses:
1) South 20 °30' 00" East 59. 920 feet,
2) westerly, southerly and easterly along a non - tangent curve to the left, which a radial bears South 20 °30' 00" East to the radius point, having a radius of 40. 000 feet, a central angle of 140 °49' 09" and an arc length of 98. 310 feet,
3) South 10 °02' 06" West 19. 313 feet,
4) South 20 °30' 00" East 122. 670 feet,
5) southwesterly along a non - tangent curve to the right, which a radial bears North 31 °19' 27" West to the radius point, having a radius of 330. 000 feet, a central angle of 17 °46' 19" and an arc length of 102. 359 feet,
6) North 20 030' 00" West 156. 382 feet,
7) northeasterly along a non - tangent curve to the left, which a radial bears North 34 °43' 03" West to the radius point, having a radius of 450.000 feet, a central angle of 03 °31' 01" and an arc length of 27. 622 feet and
8) North 20 °30' 00" West 111. 338 feet to the northerly line of New Parcel A, being the southerly line of the aforesaid Rail Road Avenue;
thence along last said line North 69 °30' 00" East 110. 007 feet to the Point of Beginning.

Containing 27, 217 square feet of land, more or less.

COMMERCIAL USE AREAS A, B, AND C:

EXHIBIT B
312
EXHIBIT " D"

Thence South 20 °30' 00" East 10. 064 feet to the Point of Beginning.

Containing 4,991 square feet of land, more or less.

END OF DESCRIPTION
This description and its accompanying plat were prepared by or under the direction of:

PAr; F 9 nF F
Ft S
r1

EXHIBIT B
313
LEGEND

BOUNDARY
P. 0. B. POINT OF BEGINNING
SQ. FT. SQUARE FEET
L1= 03 31
L= 27. 622
ofN
o
p
51 RAILROAD A VENUE
N69 030' 00 "E 186. 385'
T—
N34

PARK AREA
82, 148f SQ. FT.

CITY Or LIVERMORE
569 030' 00 " W 117819
0 60 12
1 inch = 60 ft,
I WN i 1
CA
pie
1 PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

PARK AREA

CITY OF LIYERMORE, ALAMEDA COUNTY, CALIFORNIA
G \" 2015\ 151084 745 MAPPING\ KAIS PARK ARFA. DW 21812018 4.' 55.' 23 PM JOHN KNEZONCH o
0 o

67. 494'
cWl3
R = 20•
3904
C
P. 0. B.
hl—
N69 * JO' 00" E

4. 078'
rs
s
o
CR
6441
SHEET 1 OF 4
1m, 11

MARDDN BEAK, LP
o
0 2003 - 450990
0 0
0 z
V'
N69 °30' 00 "E 113.516'
N34

PARK AREA
82, 148f SQ. FT.

CITY Or LIVERMORE
569 030' 00 " W 117819
0 60 12
1 inch = 60 ft,
I WN i 1
CA
pie
1 PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

PARK AREA

CITY OF LIYERMORE, ALAMEDA COUNTY, CALIFORNIA
G \" 2015\ 151084 745 MAPPING\ KAIS PARK ARFA. DW 21812018 4.' 55.' 23 PM JOHN KNEZONCH o
0 o

67. 494'
cWl3
R = 20•
3904
C
P. 0. B.
hl—
N69 * JO' 00" E

4. 078'
rs
s
o
CR
6441
SHEET 1 OF 4
1m, 11

EXHIBIT B
314
LEGEND
BOUNDARY.

P. O.B. POINT OF BEGINNING
P. 0. C. POINT OF COMMENCEMENT
SQ. FT. SQUARE FEET
R =450. 000
A =03 °3101,
L= 27.622
O
R
N
Z
N
0 0
z
N34
GENERAL NOTE.-

1. THE BUILDABLE FOOTPRINT WITHIN

THE CULTURAL FACILITY AREA SHALL
NOT EXCEED 20,100 SQUARE FEET.

RAILROAD A VENUE
P. 0. B. P. 0. C.

N69 030' 00 "E 110. 007' S69 030' 00 "W
2 CULTURAL

FACILITY
USE
z
Z = 17 ° 46' 19"
L= 102. 359'
0 60 120
1 inch = 60 ft.

AREA

6. 378'
27,217-4 SQ. FT.

NOTE 1)
z z
Z = 17 ° 46' 19"
L= 102. 359'
0 60 120
1 inch = 60 ft.

N
W
0 0
f
R= 40. 000'
140 049' 09"
L= 98. 310'
N18 040' 51 " E(
S10002' 06 " W

19. 313'

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

CULTURAL FACILITY USE AREA
CITY OF UVERMORF._ MAMMA MITNTY C' ATJFnRNTA
M4ROON BEAR, LP
8003-- 450990
CITi Or LIVE" RjV0RE'
2O1a
COM1l9ERCJAL
USE" AREAS
B,& C

COMMERCIAL

USE AREA D
03 b
Z
r
C" R
SHEET 2 OF 4
PAGE 4OF61
A VL

RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON. CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
If '
UAIL; ' OUt5 NW
I" — an' LJAOru „ 7ma , rl, no. Ar

6. 378'
N
W
0 0
f
R= 40. 000'
140 049' 09"
L= 98. 310'
N18 040' 51 " E(
S10002' 06 " W

19. 313'

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

CULTURAL FACILITY USE AREA
CITY OF UVERMORF._ MAMMA MITNTY C' ATJFnRNTA
M4ROON BEAR, LP
8003-- 450990
CITi Or LIVE" RjV0RE'
2O1a
COM1l9ERCJAL
USE" AREAS
B,& C

COMMERCIAL

USE AREA D
03 b
Z
r
C" R
SHEET 2 OF 4
PAGE 4OF61
A VL

RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON. CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
If '
UAIL; ' OUt5 NW
I" — an' LJAOru „ 7ma , rl, no. Ar

EXHIBIT B
315
FOR CURVE/ LINE TABLES SEE SHEET 4
LEGEND GENERAL NO TES.-
BOUNDARY 1. THE BUILDABLE FOOTPRINT WITHIN THE COMMERCIAL USE P. 0. B. POINT OF BEGINNING AREAS A, B & C SHALL NOT EXCEED 5, 700 SQUARE FEET.

P. 0. C. POINT OF COMMENCEMENT 2. THE BUILDABLE FOOTPRINT WITHIN THE COMMERCIAL USE SQ.FT. SQUARE FEET AREA D SHALL NOT EXCEED 2,900 SQUARE FEET.

FLAILROAD AVENUE
P. 0. B.

N69 030' 00 "E

51. 378' N
o

NIAROOK BEAR, LP
R o ( NOTE 1) 0 8003 - -x50990

COMMERCIAL USE
o AREAS A, B & C
N°
7,947± SQ.FT.

P. 0. B.

R= 40.000'
N69 °30'00 "E 113. 5
R= 375.000'

CULTURAL

FACILITY
USE

AREA PARK AREA
N.
0 60 120
1 inch = 60 ft.

EXHIBIT D
120. 000'
N20 030' 00 "W

49. 695' --

CITY OF' LIVERMORE
2018-

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

COMMERCIAL USE AREAS
Ct3
Q
P. 0. C.

BLDG
SITE D
S20 030' 00 "E

54.934'
L1 10
0 12
L2
g P.O. B.
6)
L4 , G
w
NOTE 2) o
w Po
cn
250
S642a " W
COMMERCI.

USE AREA
4, 991f SQ. FT.

SHEET 3 OF 4
PAGE 5 OF 61;
1 RUGGERI- JENSEN -AZAR

EXHIBIT B
316
W L1( - tn 1 )
r n.

EXHIBIT B
317

EXHIBIT H

INSURANCE REQUIREMENTS
10/ 03/ 2018 H

EXHIBIT B
318

INSURANCE REQUIREMENTS

1. General

EXHIBIT H
Developer is required to procure and provide proof of insurance coverage required by these Insurance Requirements in the form of certificates and endorsements. The required insurance must cover the activities of the Developer, its Contractor and Subcontractors relating to or arising from the project described in the agreement to which these requirements are attached ( "Project "), and must remain in full force and effect at all times during the period covered by the Agreement until the date of Acceptance. All required insurance must be issued by a company licensed to do business in the State of California, and each such insurer must have an A. M. Best' s financial strength rating of "A" or better and a financial size rating of "VII" or better, and be approved by the City Attorney and City' s Risk Manager before the Agreement is awarded. ( Any waiver may only apply under written waiver from the Risk Manager.)

2. Required policies and limits.

The following insurance policies and limits are required for this Contract:

2. 1. General.

Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and /or limits must be available to the additional insured.

Furthermore, the requirements for coverage and limits must be ( 1) the minimum coverage and limits specified in the Contract Documents; or ( 2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

2. 2. Limits.

The limits of required insurance may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance must contain or be endorsed to contain a provision that the coverage will also apply on a primary and noncontributory basis for the benefit of the City before the City's own insurance or self - insurance may be called upon to protect it as a named insured.

3. Minimum Scope of Insurance.

Coverage must be at least as broad as the following:

3. 1. Insurance Services Office Commercial General Liability coverage: ( a) Blanket contractual liability; ( b) Broad form property coverage; and ( c) Personal injury;

3. 2. Insurance Services Office form covering Automobile Liability, code 1 ( any auto);

3. 3. Workers' Compensation insurance as required by the State of California and Employer' s Liability insurance. A waiver of subrogation is required for Workers'

EXHIBIT B
319
Compensation insurance; and

3. 4. Other. Any other insurance coverages and limits required in the Contract Documents.

4. Minimum Limits of Insurance.

Contractor must maintain limits no less than:

4. 1. General Liability: $5, 000, 000 per occurrence for bodily injury, personal injury and property damage and a $ 10, 000, 000 aggregate. If Commercial General Liability insurance or other form with a general aggregate liability is used, either the general aggregate limit must apply separately to this Project or must be designated as project specific, or the general aggregate limit must be twice the required occurrence limit.

4. 2. Automobile Liability: $ 2,000, 000 per accident for bodily injury and property damage.

4. 3. Workers' Compensation /Employer' s Liability: In conformance with California state requirements including $ 1, 000,000 Employers' Liability per accident, per employee for bodily injury or disease. A waiver of subrogation is required for Workers' Compensation.

4.4. Builder's Risk Insurance: The Builder's Risk Insurance policy must be issued on occurrence basis, for all -risk coverage on a 100% completed value basis on the insurable portion of the Project for the benefit of the City. This insurance must protect the Contractor and the City against risks of damage to buildings, structures, and materials and equipment. Builder's Risk insurance must name the City as loss payee. The policy must contain a provision that in the event of payment for any loss under the coverage provided, the insurance company will have no rights of recovery against the Contractor and the City. The Builder' s Risk policy must insure against all risks of direct physical loss or damage to property from any external cause. Allowable exclusions, if any, must be as specified in the Special Conditions and approved by the City' s Risk Manager.

4. 5. Completed Operations: Contractor shall maintain insurance as required by this contract for a minimum of five years following the completion of this Project. In the event the Contractor fails to obtain or maintain completed operations coverage as required by this agreement, the City of Livermore at its sole discretion may purchase the coverage required and the cost will be paid by the Contractor. Completed Operations endorsement or coverage shall be at least as broad as Insurance Services Office CG 20 37. Contractor shall require and verify that all subcontractors or other parties hired for this Agreement purchase and maintain coverage for indemnity and insurance requirements at least as broad as specified in this Agreement to the extent they apply to the scope of the subcontractor' s work with the same Certificate of Insurance requirements and naming as additional insureds all parties to this Agreement. Contractor shall include the following language in their agreements with Subcontractors: " Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under the Agreement. Subcontractor further agrees to include the same

EXHIBIT B
320
requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub - subcontractor to the extent they apply to the scope of the subcontractor' s work. A copy of the City Contract Document Indemnity and Insurance provisions will be furnished to the Subcontractor upon request." Contractor shall provide proof of such compliance and verification to the City upon request.

5. Deductibles and Self- Insured Retentions

5. 1. City Approval. Any deductibles or self- insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claims administration and defense expenses.

5. 2. Self- Insured Retention. Policies containing any self- insured retention ( " SIR ") provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

5. 3. Copies. The City reserves the right to obtain a full certified copy of any insurance policy and endorsement. Failure to exercise this right shall not constitute a waiver of right to exercise later.

6. Other Insurance Provision Requirements.

The required general liability and automobile policies are to contain, or be endorsed to contain the following provisions:

6. 1. The City, its officers, officials, employees, agents and designated volunteers are to be covered as additional insureds as respects alleged liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers.

6. 2. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or designated volunteers.

6. 3. Contractor must furnish properly executed Certificates of Insurance from insurance companies acceptable to the City and signed copies of the specified endorsements for each policy before beginning Work under the Contract. That documentation must clearly evidence all coverages required above including specific evidence of separate endorsements naming the City and must provide that such insurance shall not be materially changed, terminated or allowed to expire in accordance with policy provisions by written notice and certified mail, return receipt requested, has been filed with the Risk Manager. Contractor shall replace such certificates for policies expiring before completion of Work.

EXHIBIT B
321

7. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A. M. Best's rating of no less than A:

VII.

8. Cross - Liability.

The Liability policy shall include a cross - liability or severability of interest endorsement.

9. Failure to Maintain Insurance Coverage.

If Contractor, for any reason, fails to maintain the required insurance coverage, it shall be deemed a material breach of contract. The City, at its sole option, may terminate this agreement and obtain damages from the Contractor resulting from the breach.

Alternatively, the City may purchase the required insurance coverage, and without further notice to Contractor, the City may deduct from sums due to Contractor any premium costs advanced by the City for the insurance.

10. Primary and Non - Contributory.

For any claims related to this Project, the Contractor' s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and designated volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or designated volunteers shall be excess of the Contractor' s insurance and shall not contribute with it.

The additional insured coverage under the Contractor's policy shall be " primary and noncontributory" and will not seek contribution from the City's insurance or self- insurance and shall be at least as broad as CG 20 01 04 13.

11. Subcontractors.

Contractor must require that every level of Subcontractor and every entity performing Work on the Project to be contractually bound to meet all of the requirements of the Contract Documents to the same extent as the Contractor, to the extent the requirements apply to such Work. Contractor shall require that every level of Subcontractor and every entity performing Work on the Project contractually provide the Contractor and City the right to enforce all applicable requirements of the Contract Documents, including all indemnity and insurance requirements. Contractor must require all Subcontractors and entities performing Project Work to provide valid certificates of insurance and required endorsements before beginning any Work and proof of such compliance to the City if requested.

12. Subrogation Waiver.

Contractor waives subrogation rights against City regardless of the applicability of any insurance proceeds, must require all Subcontractors, every entity performing Project Work, or others involved in any way with the Work to do likewise.

EXHIBIT B
322

13. Verification of Coverage.

Contractor must furnish the City with original endorsements effecting coverage required by the Contract Documents. The endorsements are to be signed by a person authorized by the insurer to bind coverage on its behalf.

END OF DOCUMENT

EXHIBIT B
323

EXHIBIT I

MEMORANDUM OF DDA
10/ 03/ 2018

EXHIBIT B
324

EXHIBIT I

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Livermore
1052 South Livermore Avenue
Livermore, CA 94550
Attn: Director Community and Economic Development
No fee for recording pursuant
to Government Code Section 27383

MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT

THIS MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT the " Memo of DDA ") is made as of October _, 2018, by and between the City of Livermore, a municipal corporation ( the " City ") and Red Bear Property Management, Inc., a California corporation ( " Developer ") to confirm that the City and the Developer are parties to that certain Disposition and Development Agreement dated as of October _, 2018, as may be amended from time to time ( the ' DDA "). The DDA concerns the sale of real property in Livermore, California, which real property is described in the attached Exhibit D and the development of approximately 8, 600 square feet of commercial buildings. The DDA is a public document and may be reviewed at the in the office of the City Clerk of the City of Livermore. In the event, and to the extent, that any of the terms or provisions of this Memo of DDA are inconsistent with the terms or provisions of the DDA, the terms and provisions of the DDA shall govern and prevail.

IN WITNESS WHEREOF, the City and Developer have executed this Agreement by duly authorized representatives, all on the date first written above.

Date:

APPROVED AS TO FORM
10/ 04/ 2018
City:

By:

Its:

DEVELOPER:

Name:

Title:

EXHIBIT B
325
Exhibit D
Property Description
304 \23\ 2402353. 2

EXHIBIT B
326
EXHIBIT " D"

LEGAL DESCRIPTION
CULTURAL FACILITY USE AREA:

Commencing at the westerly northeasterly corner of said New Parcel A, said corner being on the southerly line of Railroad Avenue, said corner also being the northwesterly corner of the parcel of land described in the deed to Maroon Bear, LP, recorded in Document No. 2003 - 450990, Official Records of Alameda County;
thence along the northerly line of New Parcel A, last. said line also being the southerly line of Railroad Avenue, South 69 °30' 00" West 76. 378 feet for the Point of Beginning hereof; thence across New Parcel A for the following eight ( 8) courses:
1) South 20 °30' 00" East 59. 920 feet,
2) westerly, southerly and easterly along a non - tangent curve to the left, which a radial bears South 20 °30' 00" East to the radius point, having a radius of 40. 000 feet, a central angle of 140 °49' 09" and an arc length of 98. 310 feet,
3) South 10 °02' 06" West 19. 313 feet,
4) South 20 °30' 00" East 122. 670 feet,
5) southwesterly along a non - tangent curve to the right, which a radial bears North 31 °19' 27" West to the radius point, having a radius of 330. 000 feet, a central angle of 17 °46' 19" and an arc length of 102. 359 feet,
6) North 20 030' 00" West 156. 382 feet,
7) northeasterly along a non - tangent curve to the left, which a radial bears North 34 °43' 03" West to the radius point, having a radius of 450.000 feet, a central angle of 03 °31' 01" and an arc length of 27. 622 feet and
8) North 20 °30' 00" West 111. 338 feet to the northerly line of New Parcel A, being the southerly line of the aforesaid Rail Road Avenue;
thence along last said line North 69 °30' 00" East 110. 007 feet to the Point of Beginning.

Containing 27, 217 square feet of land, more or less.

COMMERCIAL USE AREAS A, B, AND C:

EXHIBIT B
327
EXHIBIT " D"

Thence South 20 °30' 00" East 10. 064 feet to the Point of Beginning.

Containing 4,991 square feet of land, more or less.

END OF DESCRIPTION
This description and its accompanying plat were prepared by or under the direction of:

PAr; F 9 nF F
Ft S
r1

EXHIBIT B
328
LEGEND

BOUNDARY
P. 0. B. POINT OF BEGINNING
SQ. FT. SQUARE FEET
L1= 03 31
L= 27. 622
ofN
o
p
51 RAILROAD A VENUE
N69 030' 00 "E 186. 385'
T—
N34

PARK AREA
82, 148f SQ. FT.

CITY Or LIVERMORE
569 030' 00 " W 117819
0 60 12
1 inch = 60 ft,
I WN i 1
CA
pie
1 PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

PARK AREA

CITY OF LIYERMORE, ALAMEDA COUNTY, CALIFORNIA
G \" 2015\ 151084 745 MAPPING\ KAIS PARK ARFA. DW 21812018 4.' 55.' 23 PM JOHN KNEZONCH o
0 o

67. 494'
cWl3
R = 20•
3904
C
P. 0. B.
hl—
N69 * JO' 00" E

4. 078'
rs
s
o
CR
6441
SHEET 1 OF 4
1m, 11

MARDDN BEAK, LP
o
0 2003 - 450990
0 0
0 z
V'
N69 °30' 00 "E 113.516'
N34

PARK AREA
82, 148f SQ. FT.

CITY Or LIVERMORE
569 030' 00 " W 117819
0 60 12
1 inch = 60 ft,
I WN i 1
CA
pie
1 PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

PARK AREA

CITY OF LIYERMORE, ALAMEDA COUNTY, CALIFORNIA
G \" 2015\ 151084 745 MAPPING\ KAIS PARK ARFA. DW 21812018 4.' 55.' 23 PM JOHN KNEZONCH o
0 o

67. 494'
cWl3
R = 20•
3904
C
P. 0. B.
hl—
N69 * JO' 00" E

4. 078'
rs
s
o
CR
6441
SHEET 1 OF 4
1m, 11

EXHIBIT B
329
LEGEND
BOUNDARY.

P. O.B. POINT OF BEGINNING
P. 0. C. POINT OF COMMENCEMENT
SQ. FT. SQUARE FEET
R =450. 000
A =03 °3101,
L= 27.622
O
R
N
Z
N
0 0
z
N34
GENERAL NOTE.-

1. THE BUILDABLE FOOTPRINT WITHIN

THE CULTURAL FACILITY AREA SHALL
NOT EXCEED 20,100 SQUARE FEET.

RAILROAD A VENUE
P. 0. B. P. 0. C.

N69 030' 00 "E 110. 007' S69 030' 00 "W
2 CULTURAL

FACILITY
USE
z
Z = 17 ° 46' 19"
L= 102. 359'
0 60 120
1 inch = 60 ft.

AREA

6. 378'
27,217-4 SQ. FT.

NOTE 1)
z z
Z = 17 ° 46' 19"
L= 102. 359'
0 60 120
1 inch = 60 ft.

N
W
0 0
f
R= 40. 000'
140 049' 09"
L= 98. 310'
N18 040' 51 " E(
S10002' 06 " W

19. 313'

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

CULTURAL FACILITY USE AREA
CITY OF UVERMORF._ MAMMA MITNTY C' ATJFnRNTA
M4ROON BEAR, LP
8003-- 450990
CITi Or LIVE" RjV0RE'
2O1a
COM1l9ERCJAL
USE" AREAS
B,& C

COMMERCIAL

USE AREA D
03 b
Z
r
C" R
SHEET 2 OF 4
PAGE 4OF61
A VL

RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON. CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
If '
UAIL; ' OUt5 NW
I" — an' LJAOru „ 7ma , rl, no. Ar

6. 378'
N
W
0 0
f
R= 40. 000'
140 049' 09"
L= 98. 310'
N18 040' 51 " E(
S10002' 06 " W

19. 313'

EXHIBIT D

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

CULTURAL FACILITY USE AREA
CITY OF UVERMORF._ MAMMA MITNTY C' ATJFnRNTA
M4ROON BEAR, LP
8003-- 450990
CITi Or LIVE" RjV0RE'
2O1a
COM1l9ERCJAL
USE" AREAS
B,& C

COMMERCIAL

USE AREA D
03 b
Z
r
C" R
SHEET 2 OF 4
PAGE 4OF61
A VL

RUGGERI- JENSEN - AZAR

ENGINEERS PLANNERS SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON. CA 94588
PHONE: ( 925) 227 - 9100 FAX: ( 925) 227 - 9300
If '
UAIL; ' OUt5 NW
I" — an' LJAOru „ 7ma , rl, no. Ar

EXHIBIT B
330
FOR CURVE/ LINE TABLES SEE SHEET 4
LEGEND GENERAL NO TES.-
BOUNDARY 1. THE BUILDABLE FOOTPRINT WITHIN THE COMMERCIAL USE P. 0. B. POINT OF BEGINNING AREAS A, B & C SHALL NOT EXCEED 5, 700 SQUARE FEET.

P. 0. C. POINT OF COMMENCEMENT 2. THE BUILDABLE FOOTPRINT WITHIN THE COMMERCIAL USE SQ.FT. SQUARE FEET AREA D SHALL NOT EXCEED 2,900 SQUARE FEET.

FLAILROAD AVENUE
P. 0. B.

N69 030' 00 "E

51. 378' N
o

NIAROOK BEAR, LP
R o ( NOTE 1) 0 8003 - -x50990

COMMERCIAL USE
o AREAS A, B & C
N°
7,947± SQ.FT.

P. 0. B.

R= 40.000'
N69 °30'00 "E 113. 5
R= 375.000'

CULTURAL

FACILITY
USE

AREA PARK AREA
N.
0 60 120
1 inch = 60 ft.

EXHIBIT D
120. 000'
N20 030' 00 "W

49. 695' --

CITY OF' LIVERMORE
2018-

PLAT TO ACCOMPANY LEGAL DESCRIPTION
FOR

COMMERCIAL USE AREAS
Ct3
Q
P. 0. C.

BLDG
SITE D
S20 030' 00 "E

54.934'
L1 10
0 12
L2
g P.O. B.
6)
L4 , G
w
NOTE 2) o
w Po
cn
250
S642a " W
COMMERCI.

USE AREA
4, 991f SQ. FT.

SHEET 3 OF 4
PAGE 5 OF 61;
1 RUGGERI- JENSEN -AZAR

EXHIBIT B
331
W L1( - tn 1 )
r n.

EXHIBIT B
332

EXHIBIT J

SCHEDULE OF PERFORMANCE
10/ 03/ 2018

EXHIBIT B
333
Commercial - DDA Schedule of Performance EXHIBIT J
Prior to Close of Escrow Due Date Status Who Reference Doc/ Section Preliminary Pro Forma 23- Sep -19 Developer DDA Section 2. 1 a Obtain Entitlements and Reciprocal Access Easement 23- Sep -19 Developer / City DDA Section2. 1 b Determine Insurance Requirements per Activity 23- Sep -19 City DDA Section2. 1e Deposit Purchase Price into Escrow 23- Sep -19 Developer DDA Section2. 1f Deed restriction on 39 S. Livermore Ave. for public parking 23- Sep -19 Developer DDA Section2. 1g Deed Restriction for Public Restroom 23- Sep -19 Developer DDA Section2. 1h Parcel Map PM Finagled 23- Sep -19 City DDA Section2. 2a Right of Entry to Property for Developer 23- Sep -19 City DDA Section2. 3 PreConditions to Begin of Construction Project
Develop and Staff Approval of Concept Plans 22- Apr -19 Developer / City DDA Section4. 5 City Approval of Entitlement Plans 20- Aug -19 City DDA Section5. 1 Submit Construction and Building Permit Plans 17- Feb -20 Developer / City City Fees Paid 20- Apr -20 Developer DDA Section5. 2
Obtain Building Permit 20- Apr -20 Developer DDA Section5. 4 Existing Temporary Parking Lot vacated 28- Apr -20 City Construction of Project
Begin Construction 5- May -20 Developer
Complete Construction 22- Dec -20 Developer
Due Dates assume CC Approval of DDA on October 22, 2018. If CC approval is delayed the due dates should be extended on a day for day basis.

EXHIBIT B
334

EXHIBIT K

SCOPE OF DEVELOPMENT AND CITY GUIDELINES
10/ 03/ 2018 L

EXHIBIT B
335
EXHIBIT " K"

SCOPE OF DEVELOPMENT
Red Bear Property Management ( Red Bear) will maximize land use of the property consistent with the Downtown Specific Plan and the goals articulated by the City Council upon its selection of Red Bear to negotiate for the Disposition and Development Agreement. Red Bear will construct the development of the property consistent with any City entitlements and requirements for the project.

The project will consist of approximately 8, 600 square feet of commercial buildings on approximately 12, 938 square feet of the property. The project will utilize architecture and design elements compatible with Blacksmith Square. Building walls adjacent to Stockmen' s Park will be oriented towards the park so that tenant spaces actively interface with Stockmen' s Park.

The project will include its own trash enclosure and collection facilities. At such time as the L Street Parking Garage Compactor Facility becomes available for business use, the project may utilize these facilities, subject to standard City fees and requirements for use, which are applicable to all businesses users.

Red Bear will also construct public improvements related to the improvements consisting of: frontage improvements, public art, and public access to Stockmen' s Park to and from Railroad Avenue and S. Livermore Avenue.

EXHIBIT B
336

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA AN ORDINANCE APPROVING DEVELOPMENT AGREEMENT ( DA) 19- 002 WITH

RED BEAR PROPERTY MANAGEMENT, INC FOR THE DOWNTOWN

COMMERCIAL PROJECT

THE CITY COUNCIL OF THE CITY OF LIVERMORE DOES ORDAIN AS FOLLOWS:

Section 1. The Planning Commission held a duly noticed public hearing on August 20, 2019, to consider adoption of the Development Agreement and by its Resolution No. 20- 19, attached hereto as Exhibit A, recommended that the City Council approve Development Agreement 19- 002.

Section 2. The City Council considered the findings made by the Planning Commission for approval of the Development Agreement in Planning Commission Resolution No. 20- 19 and, based on the City Council' s own independent review and considerations, hereby adopts the same findings by reference.

Section 3. The City Council considered the environmental review in Resolution No. 2020- 180 and instructed staff to file a Notice of Determination with the Alameda County Clerk if the Development Agreement was approved.

Section 4. The Development Agreement is consistent with the General Plan. the Downtown Specific Plan and the Livermore Development Code Chapter 9. 04.

Section 5. Pursuant to Government Code section 65864, et seq.. the City Council approves that certain document under City Application Number Development Agreement 19- 002 and entitled " Development Agreement Blacksmith Square Expansion" Development Agreement"), attached hereto as Exhibit B.

Section 6. The City Manager is hereby authorized to sign the Development Agreement, attached hereto as Exhibit B. on behalf of the City of Livermore.

Section 7. Staff is instructed to file a Notice of Determination with the Alameda County Clerk.

Section 8. The City Clerk is directed to record the Development Agreement within ten days after the effective date of the Development Agreement.

Section 9. The documents that constitute the record of proceedings upon which this decision is based can be found in the City Clerk' s Office, 1052 S. Livermore Avenue, Livermore, California.
1 ORDINANCE NO. 2106

EXHIBIT C
337
Section 10. If any part of this ordinance is declared unconstitutional or invalid by a court, such unconstitutionality or invalidity shall not affect any of the remaining parts.

Section 11. This ordinance, or a comprehensive summary thereof, shall be published once in a newspaper of general circulation of the city of Livermore within fifteen days after its adoption and shall take effect and be in force no earlier than thirty days from and after its adoption and upon execution by all parties of the Development Agreement.

The foregoing ordinance was introduced at the regular meeting of the City Council of the City of Livermore held on October 26, 2020, by the following vote:

AYES: Council Members Carling, Coomber, Munro. Vice Mayor Woerner, Mayor Marchand
NOES: None
ABSENT None
ABSTAIN: None
The ordinance was adopted at the regular meeting of the City Council held on November 9, 2020, by the following vote:

AYES: Council Members Carling, Coomber, Munro, Vice Mayor Woerner, Mayor Marchand
NOES: None
ABSENT: None
ABSTAIN: None
S4 . itaz4/ 41044e
Mayor, City of Livermore
ATT ST: APPROVED AS TO FORM:
fit I. CA
Marie Weber KilnCilley
City Clerk Senior Assistant City Attorney
Date: November 10, 2020
Exhibit A - Planning Commission Resolution No. 20- 19
Exhibit B - Development Agreement No. 19- 002
2 ORDINANCE NO. 2106

EXHIBIT C
338

EXHIBIT A

IN THE PLANNING COMMISSION

OF THE CITY OF LIVERMORE

STATE OF CALIFORNIA

A RESOLUTION RECOMMENDING APPROVING
Development Agreement ( DA) 19- 002
Blacksmith Square Expansion
Authorizing execution of a Development Agreement ( DA19- 002) with Red Bear Property Management, Inc. to construct an approximately 8, 600 square foot expansion of Blacksmith Square for commercial uses on the southwest corner of South Livermore Avenue and Railroad Avenue.

Location: 29 South Livermore Avenue and 2139 Railroad Avenue The City received an application for Development Agreement ( DA) 19- 002.

A public notice was mailed to neighboring property owners and published in a newspaper of local circulation.

The Planning Commission held a noticed public hearing on August 20, 2019, considered the staff recommendation for approval, and heard public testimony NOW THEREFORE, BE IT RESOLVED that, based on the whole record before it, the Planning Commission of the City of Livermore recommends the City Council find the environmental impacts of Development Agreement ( DA) 19- 002 were analyzed by and are consistent with the 2019 Addendum to the Downtown Specific Plan 2009 Subsequent Environmental Impact Report.

BE IT FURTHER RESOLVED that the Planning Commission finds the following based upon the information presented for Development Agreement ( DA) 19- 002:

1. The Development Agreement provides benefit to the City.

Finding: The development of the proposed commercial project will implement the community' s vision for the Downtown and help activate Stockmen' s Park. Upon completion, the project will support the City' s economic development goals for Downtown, provide employment opportunities, and provide the City with additional revenue in the form of increased property and sales taxes

2. The Development Agreement is consistent with the purpose, intent, goals. policies, programs, and land use designations of the General Plan, any applicable Specific Plan, and the Development Code.
1- Resolution No. 20- 19

EXHIBIT C
339

EXHIBIT A
1 Finding: The project site is designated as Downtown Area in the General Plan.

The Downtown Area designation is a general designation that applies to the area traditionally known as Downtown Livermore. The Downtown Area seeks to provide a unique, pedestrian- friendly shopping environment supported by higher- intensity residential development. The area supports a variety of mixed uses, including commercial, office, entertainment, lodging, and residential. which are implemented through the Downtown Specific Plan [ Livermore General Plan Land Use Element. p. 3- 22]. The future development of a commercial space on this site is consistent with the land use designation and General Plan goals for the Downtown Area.

The project site is located in the Downtown Core, Subareas 2 and 3 of the Downtown Specific Plan. The purpose of the Downtown Core is to revitalize the City' s historic core area as the center of the City of Livermore [ Downtown Specific Plan, Downtown Core p. 1] . The intent of this Plan Area is to, " promote the continued development and revitalization of the City' s pedestrian- oriented Downtown district that serves as the center of the Livermore Community, its most unique shopping district, and as a neighborhood hub for the residences within and surrounding it." [ Id.] To support this objective, the Downtown Core permits a variety of specialty retail, restaurant, and residential uses and is intended to be the most densely developed part of the City. Various commercial retail uses are permitted in Subareas 2 and 3 of the Downtown Core. Therefore, the proposed use is consistent with the Downtown Specific Plan.

The Development Agreement secures Red Bear' s right to develop and use the property in accordance with the City' s General Plan, Downtown Specific Plan, and Livermore Development Code in effect at the time of the effective date of the Development Agreement.

3. The Development Agreement complies with the requirements of the Government Code Sections 65864 through 65869. 5.

Finding: Development Agreement ( DA) 19- 002 complies with the requirements of Government Code Sections 65864 through 65869. 5 ( e. g. including but not limited to: DA 19- 002 is prepared pursuant to procedures established by the City, which are in the Development Code; the City is entering into DA 19- 002 with persons authorized to represent the individuals with a legal interest in the property to be developed; DA 19- 002 establishes a duration, which is 30 years: DA 19- 002 is being reviewed in a noticed public hearing; and DA 19- 002 is not in a coastal plan area).

BE IT FURTHER RESOLVED by the Planning Commission of the City of Livermore that, based on the above findings, Development Agreement ( DA) 19- 002 is recommended to the City Council for approval.

The documents that constitute the record of proceedings upon which this decision is based can be found in the Community Development Department, 1052 S. Livermore Avenue, in Livermore, California.
2- Resolution No. 20- 19

EXHIBIT C
340

EXHIBIT A
On the motion by Commissioner Bjorklund, seconded by Commissioner Anderson, the foregoing Resolution was adopted at the Planning Commission meeting of August 20, 2019, by the following vote:

AYES: ANDERSON. BJORKLUND, BONANNO, STEIN.

NOES: NONE.

ABSENT: NONE.

RECUSED: FAGUNDES.

Gina Bon nno, Chairperson
by Steve Stewart, Planning Manager
Secretary to the Planning Commission
3- Resolution No. 20- 19

EXHIBIT C
341

EXHIBIT B

RECORDING REQUESTED B Y AND
WHEN RECORDED RETURN To: jt
City Clerk
City of Livermore
1052 S. Livermore Avenue
Livermore, CA 94550
DEVELOPMENT AGREEMENT ( DA) 19-002
Blacksmith Square Expansion
it
This Development Agreement (" Agreement") is entered into on 20 , between the City of Livermore, a municipal corporation, (" City") and Red Bear Property Management Inc., an incorporated company(" Developer").

RECITALS
This Development Agreement is based on the following facts:

A. The City has the authority to enter into a development agreement under Government Code section 65864 et seq. (" Development Agreement Statutes") and Chapter 9. 04 of the Livermore Development Code in order to vest certain rights in the Developer and to meet certain public purposes of the local government.

B. The City is the owner of approximately 0. 3 acres of property located on portions of 29 South Livermore Avenue and 2139 Railroad Avenue in the City of Livermore, County ofAlameda, described more specifically in Exhibit A, attached hereto (" Property"). On October 22, 2018, the City and the Developer entered into a Disposition and Development Agreement to articulate their respective obligations for the sale and development of the Property. The Disposition and Development Agreement, and any amendments thereto, is hereby referred to as the DDA for the purposes of this Agreement. The Developer has expended, and will continue to expend, significant funds to design the Project ( defined below in recital D, Section 2) in anticipation of the purchase of the Property as required by the DDA, and to then construct the Project. The Developer has a legal and equitable interest in the Property which is the subject ofthis Agreement.

C. The Developer and the City desire to enter into this Agreement in order to facilitate the development of Property within the Downtown Core.

D. On October 22, 2018, the City Council approved a Disposition and Development Agreement ( DDA) with the Developer, which established the terms for the sale and development of the City- owned sites to the Developer and the responsibilities of each of the parties. Upon Development Agreement for the Blacksmith Square Expansion Page I of 7

EXHIBIT C
342
EXHIBIT B 1
transfer of the Property from the City to the Developer, the Developer shall then also be known as the" Property Owner" when that term is used in this Agreement.

E. The City Council finds that the Blacksmith Square expansion will provide substantial public benefits and help attain certain public objectives, including without limitation: ( i) development of the Downtown Core, which will revitali7P the downtown area; ( ii) provide a long- term source of employment opportunities; ( iii) provide the City with additional revenue in the form of increased real property taxes; and ( iv) activate Stockmen' s Park and provide a place for residents and visitors to enjoy shopping and dining.

F. This Agreement will promote and encourage the development ofthe Property by providing the Developer and its creditors with a greater degree of certainty ofthe Developer's ability to expeditiously and economically complete the development effort for the Project, and the parties agree that the consideration to be received by the City pursuant to this Agreement and the rights secured to the Developer hereunder constitute sufficient consideration to support the covenants and agreements of the City and the Developer. By entering into this Agreement, the City desires to allow the Developer to design, apply for, and, if approved, to develop the Project pursuant to this Agreement, the DDA, the land- use ordinances, rules, regulations and policies applicable on the" Effective Date," as defined in Section 3, and to vest in Developer, to the fullest extent possible under the law, all possible development entitlements in order to complete the Project
G. The commercial space the Developer proposes in connection with the Property has been extensively reviewed and considered by the City and its officers, agencies and departments. That commercial use has been found to accommodate the City' s recommendations and suggestions in order to protect the public' s interest and to enhance the desirability, from the publics perspective, of the Project and commercial use.

H. The City conducted duly noticed public hearings on this Agreement pursuant to Government Code section 65867 and Livermore Development Code sections 9. 04. 040 and

9.04.050 and found that the provisions ofthis Agreement and its purposes are consistent with the objectives, policies, general land uses and programs specified in the City' s General Plan and Downtown Specific Plan.

I. This Agreement was adopted by ordinance of the City Council, after notice and public hearings before the Planning Commission and City Council and after City Council adoption/ approval of the 2009 Subsequent Environmental Impact Report for the Downtown Specific Plan Amendments and Regional Performing Arts Theater ( the " Previous EIR") [ LSA ( March 2019) California Environmental Quality Act( CEQA) Revised Addendum for the Downtown Specific Plan Amendment Project; Livermore, California, State Clearing House No. 2008092085, in accordance with the California Environmental Quality Act, Public Resources Code section 21000 et seq.

NOW, THEREFORE, the City and Developer hereby agree that the aforementioned recitals are true and correct and further agree as follows:

Development Agreement for the Blacksmith Square Expansion

Page 2 of 7 ends

EXHIBIT C
343

EXHIBIT B

1. The Property. The Property which is the subject of this Agreement is described in recital B above and Exhibit A, attached hereto.

2. The Project. Developer will construct an expansion of Blacksmith Square. The architecture of the new buildings will be consistent with the existing buildings at Blacksmith Square and interface with Stockmen' s Park.

3. Effective Date. The effective date of this Agreement is the later of( a) thirty ( 30) days after the date the Ordinance approving this Agreement is adopted by the City Council, or( b) if a referendum petition is timely and duly circulated, filed and qualified, the date the election results on the ballot measure by City voters approving this Agreement are certified by the City Council in the manner provided by the Elections Code. This Agreement shall be executed by the City within ten ( 10) days after the effective date and recorded as provided in Government Code Section 65868. 5

4. Term. The term of this Agreement is thirty ( 30) years, beginning on the effective date.

The Agreement may be extended as provided for in the Development Agreement Statutes and the Livermore Development Code, subject to the written consent of the City and the Developer as Property Owner following transfer of the Property as set forth in the DDA. The Developer shall comply with the requirements set forth in the Schedule of Performance set forth in the DDA between the City and the Developer._

5. Vested Development Rights. Subject to this Agreement and during the life of this Agreement, the Property Owner has the right to develop and use the Property in accordance with:
a. The City' s General Plan, Downtown Specific Plan, and the Livermore Development Code in effect on the effective date. For reference, the Downtown Area Land Use Designation from the General Plan, and the Downtown Core Land Use Map and Downtown Core Development Standards from the Downtown Specific Plan are attached hereto as Exhibit B;
b. All other City policies, ordinances, resolutions, rules, regulations and standards applicable to development or use of the Property on the effective date, except that Property Owner shall:
1) Pay the processing and development impact fees consistent with the Disposition and Development Agreement in effect at the time those fees are paid; 2) Comply with Building Code requirements in effect on a city- wide basis at the time of construction;
3) Comply with construction and technical design standards or specifications for public improvements which are applicable city- wide; 4) Comply with changes in City laws, regulations, plans or policies applicable city- wide, the terms of which are found by the City Council, based on substantial evidence, to be necessary to protect members of the public from a ' condition dangerous to their health or safety;
Development Agreementfor the Blacksmith Square Expansion

Page 3 of 7 ends

EXHIBIT C
344

EXHIBIT B
I
5) Comply with a change in City law, regulations, plans or policies which is:
i) Specifically mandated by state or federal law, or by any regional 1 governmental agency that has legal authority over the City under state law or a joint powers agreement; or
ii) A result of or in response to state or federal law, or regional agency action, made necessary in order for the City to avoid losing or not receiving substantial funding or other substantial public benefits or facilities that would be available to the City only if it makes such a change; or
iii) Specifically mandated by, or necessary for compliance with or implementation of, the terms of any permit, entitlement or other authorization necessary for the development of the Property issued or granted to the City, County and/or Property Owner by any federal, state or regional agency;
6) Following any subsequent environmental review, comply with required mitigation measures; and
c. All subsequent Project approvals which are consistent with this Agreement. d. Developer acknowledges that execution of this Agreement by the City does not constitute approval of any required permits, applications, or allocations, and in no way limits the discretion ofthe City in the permit, allocation, and approval process.

6. Periodic Review. Review of the Agreement shall be made annually, consistent with Government Code section 65865. 1 and Livermore Development Code Chapter 9. 04.

7. Amendments. The Agreement may be amended by the parties consistent with the procedures set forth in the Development Agreement Statutes and the Livermore Development Code, as they are amended from time-to- time.

8. Remedies for Default. If a party is in default under this Agreement, the other party may pursue one or more of the following courses of action, after 30 days' written notice to the other party ( or such longer period as may be required to cure the default so long as such party commences the cure within such 30-day period and diligently pursues the cure to completion):
a) waive the default; ( b) in the City' s case, pursue administrative remedies including denial or otherwise withholding issuance of building permits, certificates of occupancy or other approvals; c) pursue judicial remedies; or( d) terminate this Agreement.

9. No Damages Relief Against the City. The parties acknowledge that the City would not have entered into this Agreement had it been exposed to damage claims from Developer for any breach thereof. As such, the parties agree that in no event shall Developer be entitled to recover damages against City for breach of this Agreement. To the extent permitted by law, specific enforcement of this Agreement is the proper and desirable remedy.

Development Agreementfor the Blacksmith Square Expansion

Page 4 of 7 ends

EXHIBIT C
345

EXHIBIT B

10. Recordation: Binding Effect, This Agreement shall be recorded in the office of the County Recorder and shall be binding upon and inure to the benefit of successors in interest to the parties. Where there is more than one Property Owner, the obligations are joint and several.

11. Legal Action: Attorney' s Fees, Ifthe City chooses to defend any third party claim or suit challenging any action taken by the City with regard to this Agreement or any procedure or aspect of the City' s approval of the development of the Project, including the environmental review process, the Developer in its capacity as either Developer or Property Owner agrees to reimburse the City for its reasonable atomey' s fees, expert witness fees, and related costs as the City may incur in connection with its retention of outside counsel, and for any award of court costs or fees against the City. The City has the right to choose and retain such legal counsel as the City deems appropriate. After expenses reach $ 100,000, and each $ 100,000 thereafter, the parties will confer to review the status of the litigation and their options for proceeding or settling, and they will negotiate in good faith about how the expenses will be allocated. The Developer in its capacity as the Developer or Property Owner shall have no obligation to reimburse the City for costs incurred after the date on which the Developer or Property Owner give the City written notice of their decision to settle a case, even ifthe City does not agree to the settlement.

Iflegal action is brought by one of the parties to enforce a provision of this Agreement, the prevailing party is entitled to reasonable attorney' s fees, expert witness fees, and court costs.

12. Notices. The address of each party for the purpose of all notices permitted or required by this Agreement follows:

To City: City of Livermore
1052 South Livermore Avenue
Livermore, CA 94550
Attention: Community Development Director
With a
copy to: City Attorney
City of Livermore
1052 South Livermore Avenue
Livermore, CA 94550
To Developer: Red Bear Property Management, Inc.
5955 Coronado Lane
Pleasanton, CA 94588
Attn: Mike Madden
With a copy to: Address/ If Needed]
Development Agreement for the Blacksmith Square Expansion

Page 5 ends

EXHIBIT C
346

EXHIBIT B
The written address of either party set forth above may be changed by written notice given not less than five ( 5) days prior to the date such change is to be in effect. All notices under this Agreement shall be in writing, shall be properly addressed and shall be sent by personal delivery, United States mail ( registered, certified, or Express Mail, return receipt requested and postage prepaid), or by overnight courier delivery service. All such notices shall be considered delivered: ( i) if personally delivered, on the date of delivery; ( ii) if sent by United States mail in the manner prescribed above, on the date shown on the return receipt for acceptance or rejection; or ( iii) if sent by overnight courier delivery service, on the date of delivery or attempted delivery as shown by the written delivery record of such service. j

13. Severability. If any term, provision, condition, or covenant ofthis Agreement, or the application thereof to any party or circumstances, shall to any extent be held invalid or unenforceable, the remainder ofthe instrument, or the application of such term, provision, condition or covenants or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby and each term and provision ofthis Agreement shall be valid and enforceable to the fullest extent permitted by law.

14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument.

Development Agreement for the Blacksmith Square Expansion

Page 6 of 7 ends

EXHIBIT C
347

EXHIBIT B
IN WITNESS WHEREOF, the parties have signed this Development Agreement on the dates indicated below.

DEVE
a
tllG+ 5L thomu ki, , l1t3 nvc'wsDEVE OPER:

RED BEAR PROPERTY MANAGEMENT,
Inc., a California Corporation
By:

Notary Acknowledgment Required)
Date: / jj// 6/ 245 Title:_

CITY OF LIVERMORE
By:

Date: Marc Roberts, City Manager
Attest: Approved as to Form:

City Clerk Assistant/ City Attorney
Exhibits:

A Property Description
B General Plan Downtown Area Land Use Designation; Downtown Land Use Map; Downtown Core Development Standards
Development Agreementfor the Blacksmith Square Expansion

Page 7 of 7 ends

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348

EXHIBIT B
CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the Identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California
County of Al Or ' v' v't- edC:
f rr
On 0 CO b4 [ (al 2bZGbefore me, l b-e t
f Klotz)-4-7 pc.- b4/ t;
Dote
A AA
Here Insert Name and Title of th Officer
personally appeared _ l l I e l' c e_t M Ctd d.en
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person( s) whose name( s) is/ are subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/their authorized capacrty( ies). and that by his/ her/ their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the
uuRAAL$ERT
laws of the State of California that the foregoing
Notary Public- California paragraph is true and correct.

Alameda County
t
Commission r 2287490 [ WITNESS my hand and official seal.

My Comm. Expires May 4, 2023
Signature da-4-- - CLL-6-.1"±—
Place Notary Seal and/ or Stomp Above Signature of Notary Public

OPTIONAL
Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.

Description of Attached Document
Title or Type of Document be / op,n, rr•t r-teerrycect
Document Date: OG 710-t.r- Loa 2-02- 0 Number of Pages: 7 Signer( s) Other Than Named Above:

Capacity( ies) Claimed by Signer( s)
Signer' s Name: 14{ 1 c. teee l $ A ado. CA Signer' s Name:

Corporate Officer- Title( s): PreSidit 0 Corporate Officer - Title( s):

Partner - 0 Limited 0 General 0 Partner- 0 Limited 0 General O Individual 0 Attorney in Fact 0 Individual 0 Attorney in Fact o Trustee Guardian or Conservator Trustee 0 Guardian or Conservator O Other- 0 Other:

Sigler is Representing: Red l esi. ' Signer is Representing:
o-oa~ Nse H
02018 National Notary Association

EXHIBIT C
349
If

EXHIBIT B
EXHIBIT " A"

BLACKSMITH SQUARE EXPANSION
RAILRoAO AVENUE PARCEL 5
VESTING TENTATIVE TRACT MAP 8574
1 14
1 , BEAR MAROON, LP
7003- 450990
f
EX. PARK I t

EASEMENT
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EXHIBIT A
IL0/6t-'
PROPERTY" RUGGERI- JENSEN- AZAR
BLACKSMITH SQUARE EXPANSION ENGINEERS • PLANNER, • SURVEYORS 6090 04080T CONE. MITE 200 I' LG4OMITON. CA 94500
PHONE: ( 925) 227- 9' 00 FAX 925) - 777 2300
SCAPHONE: DATE: J08 NO.:

CITY OF LIVERMORE, ALAMEDA COUNTY. CALIFORNIA 1" a 60' 9/ 18/ 2020 I151084.67 Exhibit A, Page 1 of I

EXHIBIT C
350

EXHIBIT B
EXHIBIT " B"
General Plan Downtown Area Land Use Designation
Downtown Specific Plan Downtown Core Land Use Map and Development Standards
Exhibit B. Page 1 of 28

EXHIBIT C
351

EXHIBIT B

CITY OF LIVERMORE

GENERAL PLAN
LAND USE E L _ MEN T
of and benefit to the surrounding neighborhood, and medium density residential development consistent with the Urban High-3 Residential land use designation ( 14 to 18 du/ acre).

Neighborhood serving commercial uses are typically locally-based stores or small scale shops selling various types of merchandise. Larger planned or strip commercial centers with regional or national retailers would not be considered appropriate for this designation. ( Reso. 2010- 034)
Mixed- Use
Mixed-use development allows or encourages different but compatible uses to be located in dose proximity to each other. A common example of mixed- use is a two- or three- story building with retail or office space on the ground floor and apartments on the upper floors.

Mixed- use development provides housing dose to jobs and services, thereby reducing the need to drive and encouraging people to walk or bike to their destination. Mixed- use development is also often located around transit services, increasing transit usage and reducing automobile dependency.

Land Use Designations
Downtown Area( DA)
The Downtown Area (DA) designation is a general designation that applies to the area traditionally known as Downtown Livermore. The DA seeks to provide a unique, locallyoriented, pedestrian- friendly shopping environment. Higher- intensity residential development of a density that will support the predominantly commercial environment is integral to the economic viability of this district This area encompasses approximately 270 acres and supports a variety of mixed uses, including commercial, office, entertainment, cultural arts, lodging, and residentiaL Anticipated maximum development potential in the DA analyzed in the Final Environmental Impact Report (F. IR) prepared and certified in 2003 and the Subsequent FEIR certified in 2009 for the General Plan and Downtown Specific Plan, by land use, is as follows: Commercial— 1, 000, 000 square feet; Office— 356, 000 square feet, Entertainment— 2, 500 performance art seats and up to 15 movie theater screens; Lodging — 300 rooms; and Residential — 3, 600 units ( Reso. 2009- 055). Land uses, development, and redevelopment in the Downtown Area shall be implemented through a specific plan. More specific designations, development standards, design requirements, and land use specifications applicable to the Downtown are provided in the Downtown Specific Plan. 3-22
Exhibit B, Page 2 of28

EXHIBIT C
352

EXHIBIT B

CITY OF LIVERMORE

GENERAL PLAN

LAND USE ELEMENT
The initial maximum residential development potential within the Downtown Area shall be 2, 000 new units as of February 2004. After approval of 1, 400 new residential units, the City Council shall review the progress of the implementation of the specific plan. The City Council shall consider increasing the maximum number of new dwellings to 3, 259 from the February 2004 base number, for a build-our total of 3,600 residential units, unless there is a compelling reason not to implement the build- out scenario analyzed in the WEIR prepared and certified for the 2003 General Plan and Downtown Specific Plan.

Neighborhood Mixed--Use (NM)
The Neighborhood Mixed- Use designations arc intended to help improve the pedestrian orientation of Livermore' s neighborhoods by providing neighborhood commercial services within walking distance of existing residents and integrating housing with commercial development on a single site. Neighborhood serving commercial uses are typically locally- based stores or small scale shops selling various types of merchandise, as well as small- scale food service uses such as a local market, deli, or coffee shop. Mixed residential and commercial land uses are required at these sites. Projects developed primarily for residential uses must provide a minimum of 20- percent floor area for commercial uses. Section H (New Mixed-Use Neighborhoods) discusses particular requirements for two specific mixed- use planning areas, being the East Side Transitional Areas and the Greenville BART Transit Oriented Development ( TOD) Area. ( Reso. 2010- 034) Parcels designated Neighborhood Mixed- Use are TT)C receiving areas. As with all of the residential receiving areas described above, developers can achieve a baseline density for residential development on land with these classifications without complying with the City' s TDC Ordinance. To exceed the baseline density, developers must comply with the WC Ordinance, but in no event can developments exceed the maximum density allowed by these designations. The letters preceding each classification correspond to Figure 3- 4 (1DC Receiving Sites) indicating the location of these TDC areas.

Type K—Neighborhood Mixed- Use Low Density ( NML)
A maximum of .30 FAR is allowed for the commercial portion development on these sites.

The residential baseline density is 2 du/ ac — 3 du/ ac ( maximum density when developers 3- 23
Erhibil B, Page 3 of 28

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359
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EXHIBIT C
360

EXHIBIT B
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EXHIBIT C
361
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EXHIBIT B
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EXHIBIT C
362
f

EXHIBIT B
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EXHIBIT C
363

EXHIBIT B
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EXHIBIT C
364

EXHIBIT B
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EXHIBIT C
365

EXHIBIT B
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EXHIBIT C
366
I

EXHIBIT B
mN
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EXHIBIT C
367
i

EXHIBIT B EF
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EXHIBIT C
368
EXHIBIT B 1
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EXHIBIT C
369

EXHIBIT B
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EXHIBIT C
370

EXHIBIT B
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EXHIBIT C
371

EXHIBIT B
up caa) 1.N0
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y C Oa 4
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EXHIBIT C
372

EXHIBIT B
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EXHIBIT C
373

EXHIBIT B
C op
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EXHIBIT C
374

EXHIBIT B
u, a, to ao
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EXHIBIT C
375
1 EXHIBIT B i
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EXHIBIT C
378
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
September 28, 2022
Steve Stewart, Planning Manager
Community Development Department
City of Livermore
1052 S. Livermore Avenue
Livermore, CA 94550
Dear Steve Stewart:

RE: HCD’s Review of the City of Livermore’s Disposition and Development Agreement with Red Bear Property Management, Inc. for the Development of Certain Real Properties Located on the Southwest Corner of South Livermore Avenue and Railroad Avenue in Downtown Livermore
Thank you for contacting the California Department of Housing and Community Development (HCD) regarding the parcels of property that are approximately 5.5 acres, bounded by Railroad Avenue, Livermore Avenue, First Street, and L Street, commonly referred to as Livermore Village Site (APNs 098-0289-002-01, 098-0289-019, and 098- 0289-020) (Property), located in the City of Livermore (City). HCD reviewed the Disposition and Development Agreement (DDA) between the City and Red Bear Property Management, Inc (Developer), and other documentation you provided.

HCD also considered the City’s claim that the Property is subject to the Surplus Land Act (SLA) as it existed on December 31, 2019, because the Property qualifies for the “grandfathering exemption” under Government Code section 54234, subdivision (a)(1) (Grandfathering Exemption). As explained below, HCD finds that the Property qualifies for the “Grandfathering Exemption” under Government Code section 54234, subdivision (a)(1), so long as the disposition of the Property is completed by December 31, 2022.

Analysis
According to Government Code section 54234, subdivision (a)(1), surplus land is subject to the SLA as it existed on December 31, 2019, provided the disposition of the surplus land meets the following requirements:
(i). The local agency entered into an ENA or legally binding agreement to dispose of the property prior to September 30, 2020.

EXHIBIT D
379
Steve Stewart, AICP, Planning Manager

Page 2 ends

(ii). The disposition of the Property to the party that had entered into the ENA or legally binding agreement (or its successors or assigns) is completed by December 31, 2022.

Disposition and Development Agreement of the Property
On October 22, 2018, the City Council adopted Resolution No. 2018-185 authorizing the city manager to execute the DDA between the City and the Developer. On May 30, 2019, the City and Developer executed the DDA for purposes of the City selling the Property and the Developer acquiring and developing the Property.

Merger and Subdivision of APNs 098-0289-002-01, 098-0289-019, and 098-0289-020 On April 17, 2018, the City recorded a Grant Deed, which merged certain City-owned parcels, including the Property, and created one parcel identified as APN 098-0289- 021-001. Subsequently, the City re-subdivided APN 098-0289-021-001, which created nine new parcels including APNs 098-0289-026 and 098-0289-027. Based on the additional documentation provided, HCD finds that the parcels that now will be disposed of to the Developer are identified as APNs 098-0289-026 and 098-0289-027.

Conclusion and Next Steps
After reviewing the documentation provided, HCD finds that, because the City entered into a legally binding agreement as of September 30, 2019, the parcels now identified as APNs 098-0289-026 and 098-0289-027 (Subject Property) qualify for the “grandfathering exemption” under Government Code section 54234, subdivision (a)(1).

Therefore, the disposition of the Subject Property is subject to the SLA as it existed on December 31, 2019, provided the disposition of the Subject Property to the Developer is completed by December 31, 2022.

After the City has completed the disposition of the Property, it must provide HCD documentation demonstrating that the disposition was completed by December 31, 2022, for HCD’s records.

If you have any questions or need additional technical assistance, please contact Public Lands at [email protected].

Sincerely,
Laura Nunn
Senior Manager, Housing Accountability Unit
Housing Policy Development

EXHIBIT D
380
1 RESOLUTION NO.

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION FINDING THE COMMERCIAL PROJECT IS CONSISTENT

WITH PRIOR ENVIRONMENTAL REVIEW FOR CEQA, AND AUTHORIZING

EXECUTION OF AN AMENDED AND RESTATED DISPOSITION AND

DEVELOPMENT AGREEMENT WITH RED BEAR PROPERTY MANAGEMENT, INC. FOR DEVELOPMENT OF A DOWNTOWN COMMERCIAL PROJECT;

AUTHORIZING THE CITY MANAGER TO EXECUTE ALL OTHER
DOCUMENTS NECESSARY TO IMPLEMENT THAT AGREEMENT; AND

AUTHORIZING STAFF TO EXECUTE ALL NECESSARY DOCUMENTS TO CONFORM THE STOCKMEN’S PARK EASEMENT WITH THE COMMERCIAL

PROJECT AND FOR ALL OTHER PROJECTS ON THE PARK SITE
(APNs 098-0289-026 and 098-0289-027)
On October 22, 2018, the City Council adopted Resolution No. 2018-185 authorizing the city manager to execute a Disposition and Development Agreement between the City and Red Bear Property Management, Inc. for developing approximately 8,600 square feet of new retail and restaurant space. The agreement implemented the Downtown Plan approved by the City Council in early 2018.

On November 9, 2020, the City Council adopted Ordinance No. 2106 approving a Development Agreement with Red Bear Property Management, Inc. for the Downtown Commercial Project. This agreement secured Red Bear’s right to develop and use the property in accordance with the City’s General Plan, Downtown Specific Plan, and Livermore Development Code for a term of 30 years.

The City and Red Bear Property Management, Inc. desire to enter into an amended agreement to sell the City-owned property to Red Bear Property Management, Inc. for the construction of a downtown commercial project including approximately 12,835 square feet of new commercial space (“Commercial Project”).

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it finds the Disposition and Development Agreement with Red Bear Property Management, Inc. is consistent with, and analyzed by, scope of the addendums adopted by City Council on September 10, 2018 by Resolution 2018-153, May 13, 2019 by Resolution 2019-064, and October 26, 2020 by Resolution 2020-178, and the 2004 Downtown Specific Plan Environmental Impact Report, and the 2009 Downtown Specific Plan Subsequent Environmental Impact Report.

No new or more severe significant impacts were identified for the project that was not identified in the 2004 Final EIR and 2009 Subsequent EIR, and no new mitigation measures would be required for the downtown plan. For all environmental topics addressed in the addendums, there were no substantial changes in environmental circumstances that would result in new or more severe significant environmental effects than were identified and evaluated in the 2004 Final EIR and 2009 Subsequent EIR.

The City Council of the City of Livermore directs the City Clerk to file a Notice of Determination with the Alameda County Clerk.
381
2 RESOLUTION NO.

BE IT FURTHER RESOLVED by the City Council of the City of Livermore that the City Manager is authorized to execute, on behalf of the City of Livermore, the Amended and Restated Disposition and Development Agreement with Red Bear Property Management, Inc. for development of the downtown commercial project, attached hereto as Exhibit A, and all other documents necessary to implement that agreement
BE IT FURTHER RESOLVED by the City Council of the City of Livermore that the City Manager is authorized to execute on behalf of the City of Livermore all documents necessary to conform the Stockmen’s Park Easement with the Commercial Project and all other projects approved by the City Council for the Stockmen’s Park site.

On motion of , seconded by , the foregoing
resolution was passed and adopted on October 24, 2022, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
/s/ Jason R. Alcala
Marie Weber Jason R. Alcala
City Clerk City Attorney
Exhibit A – Amended and Restated Disposition and Development Agreement 382
10-12-22

AMENDED AND RESTATED DISPOSITION

AND DEVELOPMENT AGREEMENT
by and between

CITY OF LIVERMORE
and
RED BEAR PROPERTY MANAGEMENT, Inc.

Retail/Commercial Project
Blacksmith Square, Stockmen’s Park
Downtown Livermore
(Resolution Number ___________)
Prior Agreements:

1. Disposition and Development Agreement, dated May 30, 2019, approved by City Council Resolution No. 2018-185.

EXHIBIT A
383

TABLE OF CONTENTS
Page
i
10-12-22
ARTICLE 1. DEFINITIONS ............................................................................................................ 4 Section 1.1 Definitions............................................................................................................... 4 Section 1.2 Exhibits. ................................................................................................................ 11 ARTICLE 2. PREDISPOSITION REQUIREMENTS ................................................................... 12 Section 2.1 City's Conditions Precedent to Close of Escrow. ................................................. 12 Section 2.2 Developer's Conditions Precedent to Close of Escrow. ........................................ 13 Section 2.3 Access for Investigations. ..................................................................................... 13 ARTICLE 3. DISPOSITION OF THE PROPERTY ..................................................................... 14 Section 3.1 Purchase and Sale. ................................................................................................ 14 Section 3.2 Purchase Price. ...................................................................................................... 14 Section 3.3 Opening Escrow; Costs of Escrow. ...................................................................... 14 Section 3.4 Closing and Closing Deliverables. ........................................................................ 14 Section 3.5 Close of Escrow. ................................................................................................... 15 Section 3.6 Additional Escrow Instructions............................................................................. 16 Section 3.7 Condition of the Property...................................................................................... 16 Section 3.8 Real Estate Commissions. ..................................................................................... 21 Section 3.9 Challenge to this Agreement or the Entitlements. ................................................ 21 Section 3.10 Parcel Map for the Property. ................................................................................ 21 ARTICLE 4. IMPROVEMENTS AND DESIGN REQUIREMENTS .......................................... 21 Section 4.1 Improvements. ...................................................................................................... 21 Section 4.2 Design in Conformance with Project Documents. ................................................ 21 Section 4.3 Additional Permits and Approvals. ....................................................................... 22 Section 4.4 City Review. ......................................................................................................... 22 Section 4.5 Basic Concept Drawings ....................................................................................... 22 Section 4.6 Public Restroom Facility....................................................................................... 22 ARTICLE 5. PRECONDITIONS TO COMMENCEMENT OF CONSTRUCTION ................... 22 Section 5.1 Approvals. ............................................................................................................. 23 Section 5.2 City Fees. .............................................................................................................. 23 Section 5.3 Execution and Recordation of Reciprocal Access Easement. .............................. 23 Section 5.4 Building Permits. .................................................................................................. 24 Section 5.5 Updates to Title Policy.......................................................................................... 24 Section 5.6 Insurance. .............................................................................................................. 24 ARTICLE 6. CONSTRUCTION OF THE IMPROVEMENTS .................................................... 24

EXHIBIT A
384

TABLE OF CONTENTS
Page
ii
10-12-22
Section 6.1 Commencement of Construction. ......................................................................... 24 Section 6.2 Completion of Construction. ................................................................................. 24 Section 6.3 Construction Pursuant to Scope of Development and Project Documents. .......... 24 Section 6.4 Mechanics' Liens. .................................................................................................. 25 Section 6.5 Compliance with Applicable Law. ....................................................................... 25 Section 6.6 Progress Reports. .................................................................................................. 25 Section 6.7 Entry by City. ........................................................................................................ 25 Section 6.8 Non-Discrimination During Construction; Equal Opportunity. ........................... 26 Section 6.9 Insurance Requirements. ....................................................................................... 26 Section 6.10 Certificate of Occupancy. .................................................................................... 26 ARTICLE 7. OBLIGATIONS WHICH CONTINUE THROUGH AND BEYOND THE COMPLETION OF CONSTRUCTION ................................................................... 27 Section 7.1 Commercial Use.................................................................................................... 27 Section 7.2 Community Facility Maintenance District for Downtown Core Improvements. . 27 Section 7.3 Maintenance. ......................................................................................................... 27 Section 7.4 Developer To Indemnify City. .............................................................................. 27 Section 7.5 Hazardous Materials. ............................................................................................ 28 Section 7.6 No Liability for Breaches of Security. .................................................................. 31 Section 7.7 Non-Discrimination. ............................................................................................. 31 Section 7.8 CFD Assessment. .................................................................................................. 31 Section 7.9 Deed Restriction.................................................................................................... 31 Section 7.10 Survival………………………………………………………………………….32
ARTICLE 8. ASSIGNMENT AND TRANSFERS ........................................................................ 32 Section 8.1 Definitions............................................................................................................. 32 Section 8.2 Purpose of Restrictions on Transfer. ..................................................................... 32 Section 8.3 Prohibited Transfers. ............................................................................................. 32 Section 8.4 Permitted Transfers. .............................................................................................. 33 Section 8.5 Effectuation of Permitted Transfers. ..................................................................... 34 ARTICLE 9. SECURITY FINANCING AND RIGHTS OF HOLDERS ...................................... 34 Section 9.1 Encumbrances. ...................................................................................................... 34 Section 9.2 Holder Not Obligated to Construct. ...................................................................... 35 Section 9.3 Notice of Default and Right to Cure. .................................................................... 35 Section 9.4 Cure of Developer Defaults. ................................................................................. 36 Section 9.5 Failure of Holder to Complete Improvements. ..................................................... 37 Section 9.6 Right of the City to Cure. ...................................................................................... 37 Section 9.7 Right of the City to Satisfy Other Liens. .............................................................. 37 Section 9.8 Holder to be Notified. ........................................................................................... 37 Section 9.9 Modifications. ....................................................................................................... 37 Section 9.10 Estoppel Certificates. .......................................................................................... 38

EXHIBIT A
385

TABLE OF CONTENTS
Page
iii
10-12-22
Section 9.11 Participation in Insurance and Condemnation Proceedings................................ 38 Section 9.12 Multiple Encumbrance Holders. ......................................................................... 38 ARTICLE 10. DEFAULT AND REMEDIES ................................................................................ 38 Section 10.1 Application of Remedies..................................................................................... 39 Section 10.2 Fault of City. ....................................................................................................... 39 Section 10.3 Fault of Developer. ............................................................................................. 39 Section 10.4 Right of Reverter................................................................................................. 40 Section 10.5 Rights and Remedies Cumulative. ...................................................................... 41 Section 10.6 Survival. .............................................................................................................. 42 ARTICLE 11. GENERAL PROVISIONS ...................................................................................... 42 Section 11.1 Identity of Developer. ......................................................................................... 42 Section 11.2 Notices, Demands and Communications. ........................................................... 43 Section 11.3 Non-Liability of Officials, Employees and Agents. ........................................... 43 Section 11.4 Enforced Delay. .................................................................................................. 43 Section 11.5 Delegation of Authority. ..................................................................................... 44 Section 11.6 Cooperation, On-going Technical/Schedule Consultation, Related Agreements in the DDA. ........................................................................................................... 44 Section 11.7 Inspection of Books and Records. ...................................................................... 44 Section 11.8 Title of Parts and Sections. ................................................................................. 44 Section 11.9 Applicable Law. .................................................................................................. 45 Section 11.10 Severability. ...................................................................................................... 45 Section 11.11 Legal Actions. ................................................................................................... 45 Section 11.12 Binding Upon Successors; Covenants to Run With Land. ............................... 45 Section 11.13 Parties Not Co-Venturers. ................................................................................. 45 Section 11.14 Entire Understanding of the Parties. ................................................................. 45 Section 11.15 Counterparts. ..................................................................................................... 45 Section 11.16 Amendments. .................................................................................................... 46 Section 11.17 Recordation of Memorandum of Amended and Restated Disposition and Development Agreement. ..................................................................................... 46 Section 11.18 Standard of Approval. ....................................................................................... 46 Section 11.19 Effectiveness of Agreement. ............................................................................. 46 Section 11.20 Interpretation. .................................................................................................... 46 Section 11.21 No Gift or Dedication. ...................................................................................... 46

EXHIBIT A
386
1 10-12-22

AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT

THIS AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT
AGREEMENT (this "Agreement") is made as of October __, 2022, by and between the City of Livermore, a municipal corporation ("City"), and Red Bear Property Management, Inc., a California corporation ("Developer"), (each of City and Developer is a “Party,” and collectively they are the “Parties”) with reference to the following facts, purposes, and understandings.

RECITALS
A. These Recitals refer to and utilize certain capitalized terms that are defined within this Agreement.

B. The City is the owner of a certain parcels of property that are approximately 5.5 acres, bounded by Railroad Avenue, Livermore Avenue, First Street, and L Street, and that is commonly referred to as the “Livermore Village Site.”
C. On January 30, 2018, the City Council approved the Downtown Plan, a copy of which is attached hereto as Exhibit A, that provides for, among other things, the development of the Livermore Village Site. The Downtown Plan contemplates a public park with provisions for a science center, a black box theater, and retail space within the park area of the Livermore Village Site.

D. On January 30, 2018, the City Council granted a park easement to the Livermore Stockmen’s Rodeo Association (recorded in the Official Records on April 18, 2018 as County Recorder number 2018076967) and amended said easement on June 6, 2022 (recorded in the Official Records on June 23, 2022 as County Record number 2022116128) (“Park Easement”), a copy of which is attached hereto as Exhibit B.

E. The Park Easement is subject to the terms and conditions set forth in the specific agreement between the City and the Livermore Stockmen’s Rodeo Association titled Third Amendment to Agreement for the Development of the Rodeo Grounds and Sunken Garden Area as a Civic Center and Parks and Recreation Area (“LSRA Agreement”) Dated June 6, 2022 that was first amended January 30, 2018, and amended a second time September 27, 2019, a copy of which is attached hereto as Exhibit C.

F. The Park Easement designates commercial use areas within the Easement identified as commercial use areas A, B, C, and D in Exhibit B. The commercial use areas A, B, C, and D, are collectively referred to in this Agreement as the “Commercial Property,” the plat map and legal description for which from the Park Easement is attached as Exhibit D.

G. The LSRA Agreement states that the purpose of the Park Easement is to ensure, among other things, the Livermore Stockmen’s Rodeo Association will have input on the development of the Commercial Property adjacent to Stockmen’s Park to ensure its development integrates with the park area in an appealing manner and to ensure that its development does not overshadow the park and its memorial. The LSRA Agreement and Park Easement contemplate and allow for the City transfer of the Property to a third party.

EXHIBIT A
387
2 10-12-22
H. The City is the owner of the City-owned parcels located on the southwest corner of South Livermore Avenue and Railroad Avenue in downtown Livermore (APNs: 098-0289-22, 098-0289-028, 098-0289-29, Veterans Way, and APNs: 098-0289-023 through 27), that are within the Park Easement granted to the Livermore Stockmen’s Rodeo Association.

I. The Commercial Property areas to be conveyed from the City to the Developer (“Property”) consisting of Parcel 5 of Tract Map 8574, recorded on December 23, 2020, in Book 365 of Maps at Pages 15-19 of Official County Records and Parcel C of Parcel Map 11239 recorded May 24, 2022 in Book 354 of Maps at Pages 95-97 of Official County Records., as more particularly described in Exhibit D attached to this Agreement.

J. On April 27, 2019, the City circulated a request seeking qualifications from developers interested in designing and constructing commercial retail uses on the Property to implement the Downtown Plan.

K. On June 18, 2018, the City selected the Developer for the disposition of the Property for its development to implement the Downtown Plan consistent with the Livermore General Plan, the Downtown Specific Plan, the Livermore Development Code, the Livermore Municipal Code, City design standards and guidelines, and other City guidelines, standards, and requirements for development (collectively “City Regulations”).

L. On June 18, 2018, the City Council adopted resolution no. 2018-088 authorizing the City Manager to execute for the City, an Exclusive Negotiating Rights Agreement with Developer to negotiate this Agreement to:
• Maximize land use of the Property consistent with the Downtown Specific Plan and the goals articulated by the City Council upon its selection of Developer to negotiate for this Agreement;
• Develop the Property in a timely and efficient manner; and, • Construct the development On the Property consistent with any City entitlements and requirements for the project, including the Downtown Specific Plan.

M. On October 22, 2018, the City Council adopted resolution no. 2018-185 authorizing execution of a Disposition and Development Agreement between the City of Livermore and Red Bear Property Management for the disposition of City owned parcels and development of downtown commercial property and authorizing the City Manager to execute a Disposition and Development Agreement and other documents necessary to effectuate the purposes of the that agreement. The City and Red Bear Property Management executed that agreement dated May 30, 2019, (“Original Disposition and Development Agreement”). The Original Disposition and Development Agreement included the following provisions for the sale of the property and development of the commercial project:
• Construction and operation of 8,600 square feet of commercial retail space on approximately 12,938 square feet of the Property;

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• Building design that is compatible with Blacksmith Square and actively interfaces with Stockmen’s Park;
• Contributions to Stockmen’s Park maintenance;
• Public restrooms; and
• Schedule of Performance
N. Now, based on further analysis of the site development options, the Developer desires to develop the Property with the following considerations:
• Construct approximately 12,834 square feet of commercial retail space on approximately 24,790 square feet of the Property;
• Utilize architecture and design elements compatible with Blacksmith Square; • Configure building walls for the commercial buildings adjacent to the Stockmen’s Park so that they are oriented toward Stockmen’s Park and designed to incorporate window and door openings so tenant spaces actively interface with Stockmen’s Park; • Revised Schedule of Performance; and,
• Construct public improvements related to the Improvements consisting of: frontage improvements, public art, public access to Stockmen’s Park to and from Railroad Avenue and South Livermore Avenue, and public restrooms incorporated into the project.

O. The Developer also proposes to participate in the formation of, or annexation of the Property into, a community facilities district, or other assessment district, formed to fund the maintenance of Stockmen’s Park and other designated downtown public facilities P. The City desires to sell to the Developer the Property depicted and described in Exhibit D, and Developer desires to acquire said Property from the City, upon the terms and conditions set forth in this Agreement, and the City and Developer desire to amend and restate the Original Disposition and Development Agreement for that purpose.

Q. The City has determined that the Developer has the necessary expertise, skill, and ability to carry out the commitments contained in this Agreement.

R. Pursuant to CEQA, the City (in its capacity as "lead agency") has prepared, reviewed, and certified the Addendum to the 2009 Subsequent Environmental Impact Report, Subsequent Environmental Impact Report dated March 2009, and Downtown Specific Plan Environmental Impact Report dated February 9, 2004.

S. The Parties wish to clarify the scope of the City’s present and future responsibilities and obligations with respect to Contamination (as hereafter defined) at, on, in, under or entering onto or emanating from the Property.

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NOW, THEREFORE, the City and the Developer agree that the aforementioned recitals are true and correct, and further agree as follows:

ARTICLE 1.

DEFINITIONS
Section 1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, the following capitalized words shall have the following meanings:
(a) "Affiliate" shall mean any Person which directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, the Developer.
(b) "Agreement" shall mean this Amended and Restated Disposition and Development Agreement.
(c) “Applicable Law(s)” means laws, regulations, statutes, codes, rules, orders, permits, policies, licenses, certifications, decrees, standards, or interpretations imposed by any Governmental Authority that apply to this Agreement and/or the Property. (d) “Appurtenances” shall mean all rights, privileges and easements appurtenant to the Property, including, without limitation (to the extent in existence), all minerals, oil, gas, and other hydrocarbon substances on or under the Property, as well as development rights, air rights, riparian rights and water rights which the City may own and which relate to the Property and any rights-of-way or other appurtenances affecting the Property. (e) “Building Permit” shall mean an excavation, demolition, grading, foundation, or other building permit issued by the City in connection with the construction of the Improvements.
(f) “CEQA” shall mean the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.), and its implementing guidelines. (g) “Certificate of Occupancy” shall mean that certificate issued by the City to the Developer to allow occupancy of the Improvements.
(h) “CFD” shall mean the community facility district created pursuant to the Mello-Roos Community Facilities Act of 1982.
(i) “City” shall mean the City of Livermore,
(j) “City Event of Default” shall mean any default by the City as more particularly described in Section 10.2.
(k) “City Fees” shall mean the estimated fees listed in Exhibit E, which fees are estimates only and will be finally determined at the issuance of the Building Permit.

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(l) “Claim(s)” means any liability, loss, demand, damage, encumbrance, cause of action of any kind, order, subpoena, obligation, cost, royalty, fee, assessment, duty, requirement, charge, penalty, fine, judgment, interest, and award (including recoverable legal counsel fees and cost of litigation of the Person asserting the claim), whether arising by law, contract, tort, voluntary settlement, or in any other manner. For clarity, Claims do not include the initial inability to collect or obtain rent prior to the receipt of the Certificate of Occupancy due to Environmental Conditions, Remediation or Mitigation but do include any delay or inability to collect rent due to Environmental Conditions, Remediation or Mitigation after receipt of the Certificate of Occupancy.
(m) "Close of Escrow" shall have the meaning set forth in Section 3.5. (n) "Compactor Facility" shall mean a trash facility to be located in close proximity to the L Street Parking Garage.
(o) “Contamination” or “Contaminated” means any Hazardous Materials or any other hazardous or toxic material, substance, chemical or waste, contaminant, emission, discharge or pollutant or comparable material listed, identified or regulated pursuant to any federal, state or local law, ordinance or regulation which has as a purpose the protection of health, safety or the environment, including, but not limited to, trichloroethene (“TCE” and its degradation products such as cis-1,2-dichloroethene and vinyl chloride), perchloroethylene (“PCE” and its degradation products such as TCE, cis-1,2-dichloroethene and vinyl chloride), and other volatile organic compounds (“VOCs”), and/or petroleum or petroleum products or wastes and/or perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) substances (including similar and/or related substances), resulting from any cause, release, or source whether located on or off of the Property.
(p) “Control” shall mean (i) direct or indirect management or control of the managing member or members in the case of a limited liability company; (ii) direct or indirect management or control of the managing general partner or general partners in the case of a partnership and (iii) (a) boards of directors that overlap by fifty percent (50%) or more of their directors, or (b) direct or indirect control of a majority of the directors in the case of a corporation.
(q) “Developer” shall mean Red Bear Property Management, Inc., or any transferee of the Developer in accordance with Section 8.4. (r) “Developer Event of Default” shall mean any default by the Developer as more particularly described in Section 10.3, subject to any applicable notice and cure rights set forth therein.
(s) “Effective Date” shall mean the date which is the later of (i) the date this Agreement is executed by the Developer and (ii) the date this Agreement is approved and executed by the City, which later date of execution shall be written in the first paragraph of this Agreement by City.
(t) “Entitlements” shall mean, collectively, zoning approvals, site plan review, design review, conditional use permit, and any other discretionary approvals required for

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construction of the Improvements. For purposes of this Agreement, “Entitlements” do not include demolition, grading, building or other ministerial permits or approvals. (u) “Environment” means all forms of fauna, flora, soil, natural resources; surface, subsurface, or ground waters; land, ground, surface, or subsurface strata; ambient air; or any other environmental medium, including the indoor environment, contained within, affecting the Property or operations thereon or associated in any way with Environmental Conditions. (v) “Environmental Condition(s)” means Contamination at, on, in, under or entering onto or emanating from the Property which such Contamination was released (or continues to be released) into the Environment prior to the Close of Escrow (or continues to be released into the Environment from pre-Close of Escrow releases or disposals into utilities or into the Environment). Notwithstanding the foregoing, Environmental Conditions for the purposes of this Agreement do not include Contamination from uses on the Property after Close of Escrow or as between the Parties, such Contamination is proven to originate from property on Blacksmith Square (specifically 21 and 25 S. Livermore Avenue) owned by Developer. (w) “Environmental Laws” means any Applicable Law relating to pollution; the protection of the Environment; the release, emission, discharge, or disposal of any material or chemical substance; human health or safety; Hazardous Materials; natural resource damage; product registration; hazard communication, each as from time to time has been or may be amended or adopted before or after the Effective Date, including, but not limited to any of the following: (A) the Occupational Safety and Health Act, 29 U.S.C.A. §651, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.A. §6901, et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. §9601, et seq.; the Clean Water Act, 33 U.S.C.A. §1251, et seq.; the Clean Air Act, 42 U.S.C.A. §7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §3001, et seq.; the Toxic Substances Control Act, 15 U.S.C.A. §2601, et seq.; the Oil Pollution Act of 1990, 33 U.S.C.A. §2701, et seq. and (B) the California Underground Storage of Hazardous Substances Act, H & S C §§ 25280, et seq.; the California Hazardous Substances Account Act, H & S C §§ 25300, et seq.; the California Hazardous Waste Control Act, H & S C §§ 25100, et seq.; the California Safe Drinking Water and Toxic Enforcement Act, H & S C §§ 24249.5, et seq.; and the Porter-Cologne Water Quality Act, Wat C §§ 13000, et seq. (x) “Environmental Obligation(s)” means and includes all of the following, regardless of the sole, joint, or concurrent negligence, breach of contract, breach of warranty, strict liability, regulatory liability, statutory liability, or other fault or responsibility of any Person: (A) Claims and Losses incurred relating to any Environmental Condition; (B) Claims and Losses relating to Mitigation and/or Remediation; (C) Claims and Losses incurred resulting from injury or death to natural Persons caused by the exposure or alleged exposure to Hazardous Materials (including expenses associated with claims investigation, testing, assessment and monitoring); (D) Claims relating to the presence, release, emission, or discharge of Hazardous Materials, pollution, contaminant, or other regulated substances in or into the Environment; (E) Claims, Losses, or any increase in the cost of the Project due to or associated in any way with any delays by City in implementing or paying for any Remediation or Mitigation on or off of the Property; (F) Claims or Losses due to the initial inability to collect or obtain rent or any delay at any time in the ability to collect or obtain rent from the Project, when such inability or delay is associated in any way with Remediation and/or Mitigation. Notwithstanding the foregoing,

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Environmental Obligations for the purposes of this Agreement, do not include Contamination from uses on the Property after Close of Escrow or, as between the Parties, such Contamination is proven to originate from property on Blacksmith Square (specifically 21 and 25 S. Livermore Avenue) owned by Developer. Except for the exclusions contained in the prior sentence, the Environmental Conditions do include Contamination on, from, or related to other property owned at any time by the City and/or for which the City in the past, now, or in the future, had, has, or will have any alleged relationship due to the City’s ownership of property or as the result of a release by the City. Neither this definition, nor any provision in this Agreement is intended to create a right for a third-party beneficiary.
(y) "Escrow" shall mean the escrow opened with the Escrow Holder to close the transactions described in Article 3.
(z) "Escrow Holder" shall mean escrow company approved by the City and Developer.
(aa) "Final Construction Drawings" shall mean final drawings for the construction of the Improvements used to obtain a Building Permit from the City for the construction of the Improvements.
(bb) “Governmental Authority” means the United States of America, the State of California, the County, the City, and any agency, authority, court, department, commission, board, bureau, or instrumentality of any of them and specifically includes the San Francisco Bay Regional Water Quality Control Board (Regional Board).
(cc) "Grant Deed" shall mean the grant deed by which the City conveys its fee estate in the Property and Appurtenances to the Developer. A form of the Grant Deed is attached to this Agreement as Exhibit F.
(dd) "Hazardous Materials" shall mean:
(1) Those substances included within the definitions of "hazardous substances", "Hazardous Materials", "toxic substances", or "solid waste" in the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) ("CERCLA"), as amended by Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499 100 Stat. 1613) ("SARA"), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§6901 et seq.) ("RCRA"), and the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq., and in the regulations promulgated pursuant to said laws, all as amended; (2) Those substances listed in the United States Department of Transportation Table (49 CFR 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) as hazardous substances (40 CFR Part 302 and amendments thereto);
(3) Any material, waste or substance which is (A) petroleum, (B) asbestos, (C) polychlorinated biphenyls, (D) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (33 U.S.C. §§1321) or listed

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pursuant to Section 307 of the Clean Water Act (33 U.S.C. §§ 1317); (E) flammable explosives; or (F) radioactive materials.
“Hazardous Materials” also includes, but is not limited to, all of the following: (1) a hazardous substance, as defined in Section 25281 or 25316 of the California Health and Safety Code; (2) a hazardous waste, as defined in Section 25117 of the California Health and Safety Code; (3) a waste, as defined in Section 470 of the California Health and Safety Code or as defined in Section 13050 of the California Water Code; and/or (4) any substance or material that is defined or designated as a hazardous waste, material or substance by any other applicable Environmental Laws, including, without limitation, PFAS/PFOS substances (including similar and/or related substances), asbestos, petroleum (including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), petroleum-based products and petroleum additives and derived substances, lead-based paint, mold, fungi or bacterial matter, polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive matter, and chemicals which may cause cancer or reproductive toxicity; any toxic or hazardous waste, material or substance or any oil or pesticide listed in, covered by, or regulated pursuant to, any state or local law, ordinance, rule or regulation applicable to the Property, as heretofore or hereafter amended; and, such other substances, materials and wastes which are or become regulated as hazardous or toxic under applicable local, state or federal law, or the United States government, or which are classified as hazardous or toxic under federal, state, or local laws or regulations.

The term “Hazardous Materials” shall not include: construction materials, gardening materials, household products, office supply products or equipment, food service or preparation equipment or materials or janitorial supply products or equipment customarily used in the construction, maintenance, rehabilitation, use, occupancy or management of a commercial property, to the extent which the same are used and stored in accordance with all applicable environmental ordinances and regulations.
(ee) “Hazardous Materials Laws” shall mean environmental and health and safety laws, regulations, ordinances, administrative decisions, common law decisions (whether federal, state, or local) with respect to Hazardous Materials, including those relating to soil and groundwater conditions.
(ff) “Improvements” shall mean collectively the buildings and related works described in Article 4 of this Agreement, and as further defined in the Scope of Development, Project Documents, Entitlements, Final Construction Drawings, and other related permits and approvals for the commercial uses contemplated by this Agreement for the Property’s development. For clarity, Improvements include Mitigation. (gg) “Insurance Requirements” shall mean the insurance requirements for the Developer and its contractors and subcontractors contained in Exhibit G. (hh) “License Agreement” shall mean that agreement contained in Exhibit K for access between City and Developer (which is assignable by Developer according to its terms) to the Property for work associated with complying with any Environmental Laws or as directed or requested by any Governmental Agency with respect to any Environmental Law or Hazardous

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Material Laws or otherwise at the request of Developer all with respect to any matter involving Contamination or an Environmental Condition
(ii) “Loss” means any and all claims, suits, proceedings, actions, demands, liabilities, obligations, damages, penalties, fines, costs and expenses, but expressly excluding any fees and disbursements by and for attorneys, experts and consultants unless incurred by City as a result of any failure by Developer to perform any of its obligations under this Agreement. (jj) “Memorandum of Amended and Restated Disposition and Development Agreement” shall mean the memorandum of this Agreement, substantially in the form of Exhibit H
(kk) “Mitigation” shall mean any measure, whether active or passive, intended to reduce, positively affect, manage, remove, eliminate, reverse, or prevent vapor intrusion of Contamination into indoor air and includes but is not limited to vapor barriers, soil vapor management systems, HVAC systems/HVAC system modifications, sewer controls and any other control and management technologies.
(ll) "Official Records" shall mean the Official Records of Alameda County. (mm) "Parties" shall mean the City and the Developer.
(nn) "Party" shall mean either the City or the Developer depending on the context.
(oo) "Permitted Exceptions" shall mean the following exceptions to title with respect to the Property:
(1) the lien of any non-delinquent property taxes and assessments; (2) the Park Easement and all other existing easements over, under and across the Property for ingress and egress and public utilities, which do not preclude Developer's intended use of the Property;
(3) any incidental easements or other matters affecting title which do not preclude or materially impair Developer's intended use of the Property; (4) applicable building and zoning laws and regulations; (5) the provisions of this Agreement;
(6) other matters created by, through or under Developer; and (7) such other exceptions to title as may hereafter be mutually approved by the City and the Developer.

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(pp) "Person" or "Persons" shall mean any individual, partnership, joint venture, corporation, limited liability company, limited liability partnership, trust or other entity, private or public with the power and authority to act and conduct business on its own behalf. (qq) "Pro Forma" shall mean the preliminary sources and uses for the development of the Project delivered by the Developer under separate confidential cover. (rr) "Project" shall collectively mean (i) the Property and (ii) the Improvements.
(ss) "Project Documents" shall mean the site plan, elevations and landscaping plans submitted by the Developer to enable the Developer to obtain the Entitlements for the Improvements, together with and all conditions of approval associated with the Entitlements. (tt) "Property" shall mean the Commercial Property area depicted in the Park Easement located on the southwest corner of South Livermore Avenue and Railroad Avenue in downtown Livermore, and more particularly described in Recital I and Exhibit D attached to this Agreement to be transferred from the City to the Developer. (uu) "Purchase Price" shall have the meaning set forth in Section 3.2. (vv) "Reciprocal Access Easement" shall mean a permanent easement agreement between the Developer and the City, for public access over the relevant properties to the public restroom facility designated for public use pursuant to Section 5.3. The easement may be amended by agreement of the parties thereto, pursuant to which permanent easements are granted for access and encroachments between, by, and among the Property, the Park Easement, and the science center and blackbox theater contemplated for the Park Easement, for the construction, operation, repair and maintenance of utilities and utility lines (including sewers, water and gas pipes and systems, electrical power conduits, telephone conduits, lines and wires), storm drains and equipment, surface water runoff, landscaping, pedestrian access, and such other easements consistent with the Project Documents or as may be agreed upon by the Parties to implement the Downtown Plan and the uses contemplated by the Park Easement and the LSRA Agreement.
(ww) “Remediation” or “Remediate” shall mean any and all actions required to be taken under the Environmental Law to address Environmental Conditions, including investigation, monitoring, removal, corrective action, response action, Mitigation, treatment, decontamination, or cleanup of (1) Hazardous Materials, (2) pollution, or (3) Contamination, present or alleged to be present in the Environment.
(xx) "Schedule of Performance" shall mean the summary schedule of actions to be taken by the Parties pursuant to this Agreement to achieve the disposition of the Property to the Developer and the construction of the Project, as the same or components of the same may be extended pursuant to this Agreement. The Schedule of Performance is attached to this Agreement as Exhibit I
(yy) “Site Management Plan” or “SMP” shall mean any plan or directive issued by a Governmental Authority with respect to managing Contamination on the Property.

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(zz) "Scope of Development" shall mean the Improvements described in Article 4 for this Agreement, which includes the Scope of Development attached to this Agreement as Exhibit J, and the Downtown Specific plan Design Guidelines, as refined in the Project Documents for the Improvements.
(aaa) "Security Financing Interests" shall have the meaning set forth in Section

9.1. (bbb) "Outside Date" shall mean the last date for the commencement of construction as more particularly described in the Schedule of Performance. (ccc) “Title Company" shall mean title company approved by the City and Developer.
(ddd) "Title Policy" has the meaning set forth in Section 2.2(f). (eee) "Transaction Documents" shall mean, collectively, the Grant Deed, the Memorandum of Amended and Restated Development Agreement, and the Commercial Property Description as depicted in Exhibit D.
(fff) “Transfer” shall mean a transfer of this Agreement or an interest in the Developer, as more particularly described in Section 8.1.

Section 1.2 Exhibits. The following exhibits are attached to and incorporated into this Agreement:

Exhibit A: Downtown Plan.

Exhibit B: Park Easement.

Exhibit C: LSRA Agreement
Exhibit D: Property.

Exhibit E: City Fees.

Exhibit F: Grant Deed.

Exhibit G: Insurance Requirements.

Exhibit H: Memo of Amended and Restated DDA.

Exhibit I: Schedule of Performance.

Exhibit J: Scope of Development
Exhibit K: License Agreement

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ARTICLE 2.

PREDISPOSITION REQUIREMENTS
Section 2.1 City’s Conditions Precedent to Close of Escrow. As conditions precedent to the Close of Escrow for the Property, the predisposition conditions set forth in this Section 2.1 must first be met by the times specified for such conditions in the Schedule of Performance (as such times may be extended pursuant to Section 11.4 or other provisions of this Agreement) or, if no time is so specified, on or before the Close of Escrow. Satisfaction of these conditions depends on performance by the Developer. Only the City can waive satisfaction of the conditions in this Section 2.1.
(a) The Developer shall provide the City with the preliminary development Pro Forma setting forth the Developer’s current estimate of sources and uses of funds for development of the Improvements. The Pro Forma is intended to serve as a guide for the review of the Developer’s financing commitments. The Pro Forma and the information contained therein are privileged documents of the Developer containing trade secrets, private personal information, and/or the contents of real estate appraisals, engineering and/or feasibility estimates, evaluations and other proprietary information. No later than the time specified in the Schedule of Performance, the Developer has submitted a true copy of each letter of interest or letter of intent, which may be binding or non-binding, from lenders, mortgage brokers and/or equity partners to provide funds in the amounts necessary, together with the funds of Developer, to fully finance the projected costs of development of the Improvements. The City shall not make an exact copy of the Pro Forma, but may make such notes to record pertinent information from the Pro Forma to guide the City’s determinations relative to the adequacy of the Pro Forma, which notes shall likewise be treated as privileged to the extent the notes reflect the Developer’s private personal information, and/or the contents of real estate appraisals, engineering and/or feasibility estimates, evaluations and other proprietary information. The City shall return the original Pro Forma to the Developer upon the Developer’s request.
(b) The Developer has obtained all Entitlements.
(c) There is no existing, pending or threatened litigation, suit, action or proceeding before any court or administrative agency affecting the City or the Developer or the Property that would, if adversely determined, materially adversely affect the Property or the Developer’s or the City’s ability to perform their obligations under this Agreement or the Developers’ ability to develop and operate the Improvements. (d) There shall exist no condition, event or act, which would constitute a Developer Event of Default or which, upon the giving of notice or the passage of time, or both, would constitute a Developer Event of Default.
(e) Within the time specified in the Schedule of Performance, the Developer shall furnish to the City the type and amounts of insurance specified in Exhibit G. The City shall be named as additional insured on the policies specified therein. The Developer shall require that all worker compensation insurance policies carried by the general contractor and subcontractors working on the Improvements include a waiver of subrogation in favor of the City.

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(f) The Developer has deposited the Purchase Price into Escrow. (g) RESERVED.
(h) RESERVED.

Section 2.2 Developer’s Conditions Precedent to Close of Escrow. As conditions precedent to the Close of Escrow for the Property, the predisposition conditions set forth in this Section 2.2 must first be met by the times specified for such conditions in the Schedule of Performance (as such times may be extended pursuant to Section 11.4 or other provisions of this Agreement) or, if no time is so specified, on or before the Close of Escrow. Satisfaction of these conditions in Section 2.2(a) depends on performance by the City. Only the Developer can waive satisfaction of the conditions contained in this Section 2.2. (a) The City has prepared and recorded in the Official Records a parcel map for the Property that includes the Commercial Property depicted in the Park Easement. (b) The Developer has obtained all Entitlements.
(c) RESERVED.
(d) There is no existing, pending or threatened litigation, suit, action or proceeding before any court or administrative agency affecting the City or the Developer or the Property that would, if adversely determined, materially adversely affect the Property or the Developer’s or the City’s ability to perform their obligations under this Agreement or the Developers’ ability to develop and operate the Improvements. (e) There shall exist no condition, event or act which would constitute a City Event of Default or which, upon the giving of notice or the passage of time, or both, would constitute a City Event of Default.
(f) The is irrevocably and unconditionally committed to issue to Developer the Title Policy, free and clear of all liens, and subject only to the Permitted Encumbrances, within thirty (30) days of Close of Escrow. As used in this Agreement, the term “Title Policy” shall mean an ALTA extended coverage owner’s policy of title insurance in the amount of the Purchase Price insuring fee simple title to the Property, subject only to the Permitted Encumbrances.

Section 2.3 Access for Investigations. Prior to Close of Escrow, the City grants to the Developer and the Developer’s agents the right to enter upon the Property for the exclusive purpose of conducting geotechnical and environmental studies and investigations. Such entry shall be made only during regular business hours and upon not less than five (5) business days’ advance telephonic, email, or written facsimile notice to the City’s Community Development Director. Prior to exercise of the right of entry, the Developer shall provide the City with satisfactory evidence, in the form of a certificate of insurance, that the Developer’s agents who obtain access to the Property are insured under comprehensive general liability and automobile liability insurance policy or policies in a manner acceptable to the City in its reasonable discretion. The Developer shall indemnify and defend the City, and its elected officials, officers,

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directors, employees, contractors, consultants, attorneys, agents, and designated volunteers (collectively the “Indemnified Parties”) against, and hold the Indemnified Parties and the Property harmless from and against, any and all costs, expenses (including, without limitation, attorneys’ fees), damages, claims, liabilities, liens (including, without limitation, mechanics liens) encumbrances and charges to the extent such arise out of or are in any way directly related to any entry by the Developer or the Developer’s agents upon the Property, but only to the extent such matters do not arise from the gross negligence or willful misconduct of the City or other Indemnified Party, from pre-existing conditions of the Property, or from Developer’s discovery of any information potentially having a negative impact on the Property. The foregoing obligation of the Developer shall survive the expiration or termination of this Agreement. The City shall cooperate with the Developer in obtaining, for the benefit of the Developer, reliance letters from the appropriate parties with respect to any third party reports or studies commissioned or obtained by the City with respect to the Property.

ARTICLE 3.

DISPOSITION OF THE PROPERTY
Section 3.1 Purchase and Sale. Provided the predisposition requirements set forth in Article 2 and the additional closing conditions set forth in Section 3.4 have been satisfied or waived, the City shall sell to the Developer, and the Developer shall purchase from the City, the Property pursuant to the terms, covenants, and conditions of this Agreement.

Section 3.2 Purchase Price. The purchase price for the Property shall be Fifty Thousand Dollars ($50,000) to be paid by the Developer at the Close of Escrow (the “Purchase Price”). This purchase price reflects the cost of the Developer’s participation in the Community Facility Maintenance District for Downtown Core Improvements, the cost of providing and maintaining a restroom facility for public use, the restrictions in design requiring the building improvements to front onto and activate Stockmen’s Park, and the standards established by the Schedule of Performance.

Section 3.3 Opening Escrow; Costs of Escrow. To accomplish the transfer and conveyance of the Property from the City to the Developer, by the date specified in the Schedule of Performance, the Parties shall establish an escrow and execute and deliver to the Escrow Holder written instructions that are consistent with this Agreement. The City shall pay or cause to be paid (i) one half (½) of any escrow fee charged by the Escrow Holder and (ii) any and all City and County real estate documentary transfer taxes. The Developer shall pay (a) one half (½) of any escrow fee charged by the Escrow Holder, (b) all costs of the Title Policy (and any endorsements) issued based thereon, and (c) any recording fees. Each Party shall be responsible for the payment of its own attorney’s fees, copying expenses and other costs incurred in connection with the negotiation of this Agreement and the consummation of the transaction contemplated hereunder. Any other closing costs and all prorations (if any) shall be split and accounted for as customary in Alameda County, California, for commercial real estate transactions.

Section 3.4 Closing and Closing Deliverables. Subject to the satisfaction or waiver of the closing conditions to, and the predisposition requirements for, the Close of Escrow set forth in Section 2.1 and Section 2.2, the Close of Escrow shall occur and the City shall convey, and the

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Developer shall accept conveyance of, fee simple title to the Property and Appurtenances pursuant to the Grant Deed. At or before Close of Escrow, the City and the Developer, as applicable, shall deliver to the Title Company and Escrow Holder the following:
(a) The Developer shall deposit: (i) the Purchase Price, (ii) originals of each of the Transaction Documents executed and acknowledged (as applicable) by the Developer, and (iii) any other documents that may be reasonably requested by the Escrow Holder and the Title Company and that are customarily delivered in connection with the closing of real estate transactions in Alameda County, and any other documents that may be necessary in order to consummate the transactions contemplated under this Agreement. (b) The City shall deposit: (i) originals of each of the Transaction Documents executed and acknowledged (as applicable), (ii) a FIRPTA Certificate, and (iii) any other documents that may be reasonably requested by the Escrow Holder and the Title Company and that are customarily delivered in connection with the closing of real estate transactions in Alameda County, and any other documents that may be necessary in order to consummate the transactions contemplated under this Agreement.

Section 3.5 Close of Escrow. Subject to the satisfaction or waiver of the closing conditions to, and the predisposition requirements for, the Close of Escrow set forth in Section

2.1 and Section 2.2 and provided that all of the documents and other items set forth in Section

3.4 have been deposited with Escrow Holder, Escrow Holder shall do all of the following:
(a) Complete all blank spaces, if any, in the Transaction Documents, including the effective dates thereof;
(b) Attach to all applicable Transaction Documents final and accurate legal descriptions consistent with the Title Policy;
(c) Deliver copies of fully executed originals of the Transaction Documents to the appropriate parties, including certified copies of the recordable Transaction Documents showing recording information; and
(d) Cause to be recorded or distributed (as more particularly described below) the following documents:
(1) Record in the Official Records the Grant Deed conveying the Property to the Developer;
(2) Record in the Official Records the Memorandum of Amended and Restated Disposition and Development Agreement;
(3) RESERVED;
(4) File any informational reports required by Internal Revenue Code Section 6045(e), as amended, and any other applicable requirements; (5) Deliver the FIRPTA Certificate, if any, to the Developer;

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(6) Forward to both the Developer and the City a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited with Escrow Holder, with such recording and filing date and information endorsed thereon to the extent applicable;
(7) Issue the Title Policy to Developer or irrevocably and unconditionally commit to issue the Title Policy to the Developer within thirty (30) days of Close of Escrow; and
(8) Distribute or record such other documents as may be specified in the Parties' escrow instructions, if any.

The date on which the Escrow Holder completes the recordation of all of the recordable documents listed in this Section 3.5 shall be the "Close of Escrow." Section 3.6 Additional Escrow Instructions. The Parties shall execute such further or additional escrow instructions as Escrow Holder may require or that any such Party desires.

Such further or additional escrow instructions shall not require the imposition of any additional obligations or liabilities on a Party, unless agreed to by the Party, and shall not modify the provisions of this Agreement (unless the Parties otherwise expressly provide for such modification in such further or additional escrow instructions).

Section 3.7 Condition of the Property.
(a) "As Is" Conveyance.
(1) THE DEVELOPER SPECIFICALLY ACKNOWLEDGES
AND AGREES THAT THE CITY IS CONVEYING THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND THAT THE DEVELOPER IS NOT RELYING ON

ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT)

EXPRESS OR IMPLIED, FROM THE CITY AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION: (A) THE QUALITY,

NATURE, ADEQUACY AND PHYSICAL CONDITION OF THE PROPERTY (INCLUDING, WITHOUT LIMITATION, TOPOGRAPHY, CLIMATE, AIR, WATER

RIGHTS, WATER, GAS, ELECTRICITY, UTILITY SERVICES, GRADING, DRAINAGE, SEWERS, ACCESS TO PUBLIC ROADS AND RELATED CONDITIONS); (B) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF SOILS,

GEOLOGY AND GROUNDWATER, (C) THE EXISTENCE, QUALITY, NATURE,

ADEQUACY AND PHYSICAL CONDITION OF UTILITIES SERVING THE

PROPERTY, (D) THE DEVELOPMENT POTENTIAL OF THE PROPERTY, AND THE

PROPERTY'S USE, HABITABILITY, MERCHANTABILITY, OR FITNESS,

SUITABILITY, VALUE OR ADEQUACY OF THE PROPERTY OR ANY

PARTICULAR PURPOSE, (E) THE ZONING OR OTHER LEGAL STATUS OF THE

PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON THE USE

OF THE PROPERTY, (F) THE COMPLIANCE OF THE PROPERTY OR THEIR

OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS,

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STATUTES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF

ANY GOVERNMENTAL OR QUASI-GOVERNMENTAL ENTITY OR OF ANY

OTHER PERSON OR ENTITY, (G) THE CONDITION OF TITLE TO THE PROPERTY. THE DEVELOPER AFFIRMS THAT THE DEVELOPER HAS NOT

RELIED ON THE SKILL OR JUDGMENT OF THE CITY OR ANY OF ITS ELECTED

OFFICIALS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS,

CONSULTANTS, ATTORNEYS, AGENTS, OR DESIGNATED VOLUNTEERS TO

SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND

THAT THE CITY MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE. THE DEVELOPER ACKNOWLEDGES THAT IT SHALL

USE ITS INDEPENDENT JUDGMENT AND MAKE ITS OWN DETERMINATION AS

TO THE SCOPE AND BREADTH OF ITS DUE DILIGENCE INVESTIGATION

WHICH IT SHALL MAKE RELATIVE TO THE PROPERTY AND SHALL RELY

UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL,

ECONOMIC AND LEGAL CONDITION OF THE PROPERTY (INCLUDING,

WITHOUT LIMITATION, WHETHER THE PROPERTY IS LOCATED IN ANY AREA

WHICH IS DESIGNATED AS A SPECIAL FLOOD HAZARD AREA, DAM FAILURE

INUNDATION AREA, EARTHQUAKE FAULT ZONE, SEISMIC HAZARD ZONE,

HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY). THE DEVELOPER UNDERTAKES AND ASSUMES

ALL RISKS ASSOCIATED WITH ALL MATTERS PERTAINING TO THE

PROPERTY'S LOCATION IN ANY AREA DESIGNATED AS A SPECIAL FLOOD

HAZARD AREA, DAM FAILURE INUNDATION AREA, EARTHQUAKE FAULT

ZONE, SEISMIC HAZARD ZONE, HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY.
(2) Developer's Release of City. Except with respect to the obligations of the City under this Agreement, and the Transaction Documents, and except as otherwise expressly set forth in this Agreement (and for clarity, specifically excluding any third-party claim or loss related in any way to the Environmental Conditions, Environmental Obligations, Remediation or Mitigation), the Developer, on behalf of itself and anyone claiming by, through or under the Developer hereby waives its right to recover from and fully and irrevocably releases the City, and its elected officials, officers, directors, employees, contractors, consultants, attorneys, agents, and designated volunteers (the "Released Parties") from any and all claims, responsibility and/or liability that the Developer may have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to (i) the condition (including any construction defects, errors, omissions or other conditions, latent or otherwise), valuation, salability or utility of the Property, or their suitability for any purpose whatsoever, and (ii) any information furnished by the Released Parties under or in connection with this Agreement. (3) Scope of Release. Except as otherwise expressly set forth in this Agreement (and for clarity, expressly excluding any third-party claim or loss related in any way to the Environmental Conditions, Environmental Obligations, Remediation, or Mitigation), the release set forth in Section 3.7(a)(2) hereof includes: (a) claims of which the Developer is presently unaware or which the Developer does not presently suspect to exist which, if known by the Developer, would materially affect the Developer's release of the Released Parties; (b) the

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Developer specifically waives the provision of any statute or principle of law that provides otherwise; (c) in this connection and to the extent permitted by law, the Developer agrees, represents and warrants that the Developer realizes and acknowledges that factual matters now unknown to the Developer may have given or may hereafter give rise to such causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and the Developer further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that the Developer nevertheless hereby intends to release, discharge and acquit the City from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses; and (d) accordingly, the Developer, on behalf of itself and anyone claiming by, through or under the Developer, hereby assumes the above-mentioned risks and hereby expressly waives any right the Developer and anyone claiming by, through or under the Developer, may have under Section 1542 of the California Civil Code, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE

CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT

THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM

MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Developer's Initials: __________
(4) Exception for Contamination; City’s Responsibilities Concerning Contamination.
(A) Notwithstanding the foregoing, the City acknowledges the existence of Contamination on and off of the Property. Consequently, the City agrees that it is now and will at all times remain responsible as owner of the Property prior to the Close of Escrow for such Contamination, the Environmental Conditions, and the Environmental Obligations in any way alleged to be related to or associated with the Property. Further, for clarity the City agrees, as between the Parties, that it will, at all times, perform all Remediation and is solely responsible for and shall pay all costs associated in any way with Remediation, Mitigation, the Environmental Conditions and the Environmental Obligations for the commercial use of the Property. Such costs include (but are not limited to), are, for example, those described in Section 1.1 (x). The City agrees to make commercially reasonable and diligent efforts to Remediate the Environmental Conditions for the commercial use of the Property in a timely fashion in accordance with applicable laws and regulations (including but not limited to Environmental Laws) and timely achieve “no further action” or “closure” status for the Property, i.e., no further action other than customary operation and maintenance associated with Mitigation and/or an SMP as those terms are defined herein for comparable Regional Board supervised projects. Further, the City agrees to make commercially reasonable and diligent efforts to promptly Remediate the Environmental Conditions and promptly pay for any required Mitigation or modifications to existing Mitigation should any no “further action” or “closure” for the Property be “reopened” (or a new matter related in any way to the Environmental Conditions be initiated) by any Governmental Authority, except for a “reopening” due to action or inaction by the Developer, or an agent or tenant of Developer. The City will, at all times, cooperate with

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Developer in performing the foregoing and agrees to make best efforts to: i) comply with the License; ii) cooperate with Developer’s work on the Property; and iii) not unreasonably interfere with Developer’s activities or the Project. For further clarity, the City is not obligated, and has no responsibility, to Developer for: (a) Contamination, Environmental Conditions, or Environmental Obligations that arise due to a change in the Property’s use from commercial use to residential use; (b) as between the Parties, such Contamination is proven to originate from property on Blacksmith Square (specifically 21 and 25 S. Livermore Avenue) owned by Developer; and (c) Contamination from uses on the Property after Close of Escrow. Except for the exclusions contained in the prior sentence, the City is obligated and is responsible for Contamination on, from, or related to other property owned at any time by the City and/or for which the City in the past, now, or in the future, had, has, or will have any alleged relationship due to the City’s ownership of property or as the result of a release by the City. For further clarity, Developer is and shall remain responsible, at its sole cost, for the operation, maintenance, repair, and replacement of Mitigation measures as Improvements beginning five (5) calendar years after the completion of the installation of such Mitigation, with the express understanding that the City is responsible for the same for the first five (5) calendar years. (B) The City agrees to comply with all Environmental Laws with respect to the Environmental Conditions and the Environmental Obligations. Further, for clarity, the City agrees, as between the Parties, that it will, at all times, perform and is solely responsible to pay all costs to comply with Environmental Laws for the commercial use of the Property.

Such costs include, but are not limited to Remediation (including soil excavation, vapor management systems, vapor extraction systems., etc.) for the commercial use of the Property, and the City agrees that it will be responsible for the costs of any additional excavation, construction, operating or maintenance reasonably attributable to the Environmental Conditions (such as, for example, the incremental cost to dispose of excavated contaminated soil or groundwater over the cost to dispose of non-contaminates soil or groundwater; the incremental cost of a larger HVAC system to mitigate vapor intrusion over the cost of a standard HVAC system; the cost to prevent sub-surface vapors intruding from an elevator pit over no requirement to otherwise do so; the cost of a specialized vapor barrier over the cost of a standard moisture barrier, etc.). To the extent possible or permitted by law or regulation, all manifests for Contaminated soil and/or Contaminated groundwater removed from the Property will not identify Developer as the generator and City (or its agents) shall be identified as the sole generator, shall be responsible for obtaining any necessary EPA generator identification number, and shall dispose of any such Contamination at an appropriately licensed disposal facility. City ensure that all work associated with the Environmental Conditions the Environmental Obligations, will be supervised, directed and performed by consultants, contractors, and/or other vendors each of whom shall be duly licensed, qualified, and insured environmental professionals who shall perform consistent with service standards adhered to at environmental projects in the San Francisco Bay Area that involve complexity comparable to those associated with the Property. Contractors and consultants performing work on the Property pursuant to this Agreement shall carry no less than the amounts and types of insurance commonly carried by contractors and consultants work on environmental projects in the San Francisco Bay Area that involve complexity comparable to those associated with the Property. Prior to the commencement of any work on the Property by City after Close of Escrow, Developer shall be provided with reasonable and customary documentation confirming that such contractors and consultants have such insurance and that Developer has additional insured status under all

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policies where such status is customary for similar work. City waives all rights of recovery against Developer on account of loss and damage occasioned to City and its consultants, contractors and agents to the extent that such loss or damage is insured or is required to be insured against under any of the required insurance policies. City and its consultants, contractors and agents will, on obtaining policies of insurance pertaining to the Property, give notice to its insurance carriers that this waiver of subrogation is contained in this Agreement and will cause each insurance policy carried by it pertaining to the Property to provide that the insurance company acknowledges acceptance of the foregoing waiver (i.e., waiver of subrogation) of claims. For further clarity, the City is not obligated, and has no responsibility, to Developer for:
(a) Contamination, Environmental Conditions, or Environmental Obligations that arise due to a change in the Property’s use from commercial use to residential use; (b) as between the Parties, such Contamination is proven to originate from property on Blacksmith Square (specifically 21 and 25 S. Livermore Avenue) owned by Developer; and, (c) Contamination from uses on the Property after Close of Escrow. Except for the exclusions contained in the prior sentence, the City is obligated and is responsible for Contamination on, from, or related to other property owned at any time by the City and/or for which the City in the past, now, or in the future, had, has, or will have any alleged relationship due to the City’s ownership of property or as the result of a release by the City. For further clarity, Developer is and shall remain responsible, at its sole cost, for the operation, maintenance, repair, and replacement of Mitigation measures as Improvements beginning five (5) calendar years after the completion of the installation of such Mitigation, with the express understanding that the City is responsible for the same for the first five (5) calendar years.
(C) It is possible that the Regional Board may require a Site Management Plan for the commercial use of the Property that will identify, based on the Property’s history, Contamination that could be discovered during the Project or thereafter. The methodology and assumed exposure pathways identified in the SMP will be consistent with the City’s commercial remediation goals for the Environmental Conditions. The City and Developer will cooperate in the development of the SMP; the SMP shall not unreasonably interfere with the development or long-term operation and/or maintenance of the Project, but may include Mitigation (which may be required by the Regional Board). (D) After close of escrow, Developer shall receive all
correspondence between any Governmental Authority and the City with respect to the Environmental Conditions and/or Environmental Obligations and City shall provide Developer no less than five (5) business days advance notice of any meeting between City and any Governmental Authority with respect to the same and Developer may, at its option, attend such meetings. Developer will be provided with copies of all reports in any way related to Environmental Conditions and/or Environmental Obligations. For each submittal by the City to any Governmental Authority that concerns to any extent the Environmental Conditions and/or Environmental Obligations, the City shall provide Developer no less than ten (10) business days to review and provide comments on the submittal. The Parties shall meet and confer in good faith during that period to consider an comments or requested changes. (b) No-Third Party Benefit. Nothing in this section is intended to create, nor does it to create, not shall in be interpreted to create, a right for a third-party beneficiary. (c) Survival. The provisions of this section shall survive the Close of Escrow and any termination of this Agreement.

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Section 3.8 Real Estate Commissions. The City shall not be liable for any real estate commissions or brokerage fees that may arise from this Agreement. The Developer represents that it has not obtained or engaged the services of a real estate broker in this transaction. If a real estate commission is claimed through either Party in connection with the transaction contemplated by this Agreement, then the Party through whom the commission is claimed shall indemnify, defend and hold the other Party harmless from any liability related to such commission. The provisions of this Section shall survive termination of this Agreement.

Section 3.9 Challenge to this Agreement or the Entitlements. In the event a claim is filed in a court of competent jurisdiction regarding the validity of this Agreement or to the City's action in issuing the Entitlements for the Improvements, which claim proves successful, or in the event a referendum is initiated with respect to the validity of this Agreement or to the City's action in issuing the Entitlements for the Improvements, which referendum proves successful, upon sixty (60) days prior written notice the Developer may elect to not proceed with the Project.

If Developer elects not to proceed with the Project pursuant to the preceding sentence, promptly following delivery of such written notice Developer will convey the Property to the City and the City will reacquire the Property and acquire the Developer's interest in Project related work product by paying the Purchase Price. Upon the required payment by the City, the Developer will assign its interest in the plans and specifications for the Improvements and all engineering and architect contracts to the City, without representation or warranty.

Section 3.10 Parcel Map for Property. The City has subdivided the Property consistent with the Downtown Core Plan and as depicted in the Park Easement. In the event the Developer elects to subdivide or merge one or more of the Property parcels with its adjacent property commonly known as Blacksmith Square, the Developer shall prepare an appropriate parcel map and to ensure those portions of the merged parcel(s) that are within the Park Easement continue to lie within the Commercial Property areas depicted in the Park Easement. The developer shall prepare all required documents to amend the LSRA Agreement and Park Easement and be responsible for all other associated costs with amending said documents.

ARTICLE 4.

IMPROVEMENTS AND DESIGN REQUIREMENTS
Section 4.1 Improvements. Within the time specified in the Schedule of Performance, the Developer shall construct commercial buildings on approximately 13,423 square feet of the Property, utilizing architecture and design elements compatible with Blacksmith Square, and configuring the building walls adjacent to the Stockmen’s Park so that they are oriented toward Stockmen’s Park and designed to incorporate window and door openings so tenant spaces actively interface with Stockmen’s Park, as more specifically described in the Scope of Development, attached as Exhibit J to this Agreement and the City’s Downtown Specific Plan Design Guidelines.

Section 4.2 Design in Conformance with Project Documents. In designing and constructing the Improvements, the Developer shall cause all subsequent design documents prepared by the Developer to be substantially consistent with the Scope of Development and City Design Guidelines attached as Exhibit J, and the Project Documents. In addition, the Project design shall include the provision of restroom facilities, which shall be open and available to the

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public. The restroom may be part of a tenant space or a stand-alone facility, but restroom users will not be required to be customers or tenants of the commercial project. The Scope of Development, City Design Guidelines, and the Project Documents shall establish the baseline design standards from which the Developer shall prepare the Final Construction Drawings.

Section 4.3 Additional Permits and Approvals. Within the time specified in the Schedule of Performance (as such times may be extended pursuant to Section 11.4 or by mutual agreement of the Parties or by other provisions of this Agreement), Developer shall obtain all Entitlements, permits, and approvals necessary to construct the Improvements. All applications for such Entitlement, permits, and approvals shall be consistent with the approved Project Documents. The Developer acknowledges that execution of this Agreement by the City does not constitute approval by the City of any required permits, applications, or allocations, and in no way limits the discretion of the City in the permit, allocation, and approval process. The City shall provide reasonable assistance to the Developer in securing such permits and approvals.

Section 4.4 City Review. The Developer shall be solely responsible for all aspects of the Developer's conduct in connection with the Improvements, including, but not limited to, the design of the Improvements, the quality and suitability of the Project Documents related to the Improvements, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the City with reference to the Project is solely for the purpose of determining whether the Developer is properly discharging its obligations to the City under this Agreement, and should not be relied upon by the Developer or by any third parties as a warranty or representation by the City as to the quality of the design or construction of the Improvements.

Section 4.5 Basic Concept Drawings. The Developer submitted Basic Concept Drawings in July 2021, for the City’s review and approval as property owner transferring the Commercial Property to the Developer, and not in the City’s exercise of its municipal regulatory authority. The City found the Basic Concept Drawings consistent with the Scope of Development and City Design Guidelines and approved them on August 20, 2022.

Section 4.6 Public Restroom Facility. A deed restriction shall be executed and recorded in favor of the City and burdening the Property, or a portion thereof, to require that upon development there shall be a public restroom facility on the Property that is open and available to the public between 10:00 a.m. and dusk, every day of the week. The deed restrictions shall provide that the Developer or its successor shall be responsible, at its own cost and expense, for all aspects of constructing, owning, operating, maintaining and replacing the public restroom.

The deed restriction must be approved by the City and must include a clause stating that it cannot be altered without the City’s prior written consent. The City and Developer shall, cooperate in good faith to agree upon, execute, acknowledge (as applicable), deliver, and record (as applicable) the deed restriction for the public restroom facility prior the earlier of the issuance of a building permit for construction of the Project or February 6, 2023, as set forth in the Schedule of Performance, whichever occurs first.

ARTICLE 5.

PRECONDITIONS TO COMMENCEMENT OF CONSTRUCTION

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Section 5.1 Approvals. All applicable Entitlements, permits, and approvals necessary to construct the Improvements have been obtained.

Section 5.2 City Fees. All applicable pre-development City Fees have been paid. The Developer shall be responsible for all Development Impact fee costs at time of building permit.

The current estimated cost of these fees is $1,132,568. The Developer shall be entitled to development fee credits for utility connections and other impact fees from the previous commercial use of the Property based upon the fee rates at the time of building permit. The current estimated value of these credits is $490,416. The Developer shall be eligible for an additional credit of $272,465 recognizing the costs associated with the construction costs and fees associated with the provision of restroom facilities which are available to the public. The Developer shall also be responsible for the payment of the City’s Parking In-Lieu Fee based upon the fee rate at the time of building permit. The current estimated Parking In-Lieu Fee is $952,740. The Developer is entitled to Parking In-Lieu Fee Credits based upon the fee rate at the time of building permit. The current estimated value of this credit is $362,949 recognizing a further portion of the project’s contribution to publicly available restroom facilities, credit for City provision of eight new surface parking in the vicinity of the property, and the Developer’s deed restriction at 39 South Livermore Avenue (APN 097-0001-033) to require that 23 parking spaces on that property shall be open and available to the public. The deed restriction shall provide that the 23 parking spaces shall be available for public use on a first come first served basis subject to the City’s regulations for off-street parking, and shall not be reserved or assigned to individual tenants or users. The deed restriction must be approved by the City and must include a clause stating that it cannot be altered without the City’s prior written consent. Upon recordation of said deed restriction, the City shall satisfy and pay the Parking In-Lieu Fee Credit obligation in this Section 5.2 on behalf of the Developer for the Property as the fee at the time of the building Permit. The City and Developer shall cooperate in good faith and agree upon, execute, acknowledge, deliver, and record the deed restriction shall be recorded prior the earlier of the issuance of a building permit for construction of the Project or February 6, 2023, as set forth in the Schedule of Performance, whichever occurs first. The Parking In-Lieu Fees shall be paid no later than building occupancy. Payment of the Parking In-Lieu fees proportional for each building may be phased with each building occupancy. The Developer shall be entitled to an additional credit up to $15,000 to cover production costs related to three Downtown Artistic Renderings. The Downtown Artistic Renderings include two eye-level views and one aerial view. The Downtown Artistic Renderings show visual perspectives of the Downtown Core Plan following buildout of the Blacksmith Square expansion, Quest science center, and SPARC black box theater. Actual credit for the Downtown Artistic Renderings will be based upon invoices for rendering production services. The Developer shall be entitled to an additional credit up to $15,000 for additional Downtown Artistic Renderings. Finally, the Developer shall be entitled to an additional $120,000 credit to cover construction costs related to remediation of hazardous materials.

Section 5.3 Execution and Recordation of Reciprocal Access Easement. As a condition to commencement of construction of the Project, the Reciprocal Access Easement shall have been agreed to by all applicable parties, and executed, acknowledged (as applicable) and delivered by all applicable parties, and recorded (as applicable) in the Official Records. The City and Developer shall, , cooperate in good faith to agree upon, execute, acknowledge (as

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applicable), deliver, and record (as applicable) the Reciprocal Access Easement prior the earlier of the issuance of a building permit for construction of the Project or February 6, 2023, as set forth in the Schedule of Performance, whichever occurs first.

Section 5.4 Building Permits. Building Permits to enable the Project to be constructed have been issued by the City or are ready to issue.

Section 5.5 Updates to Title Policy. It is anticipated that, prior to commencing construction of the Project, Developer will obtain updates to the Title Policy necessary to reflect Security Financing Instruments and other encumbrances contemplated by this Agreement, placed in connection with the construction of the Improvements. The City shall cooperate with Developer in connection with such updates to the Title Policy and any such title policies for Encumbrance Holders, including, without limitation, delivering such documents as may be reasonably requested by the Title Company with respect to the same.

Section 5.6 Insurance. The Developer shall procure, maintain, and furnish to the City evidence of the type and amounts of insurance specified in Exhibit G for the term of this Agreement. The City shall be named as additional insured on the commercial general liability policies specified therein.

ARTICLE 6.

CONSTRUCTION OF THE IMPROVEMENTS
Section 6.1 Commencement of Construction. The Developer shall commence construction of the Improvements within the time set forth in the Schedule of Performance.

Construction shall be deemed to commence on the date physical work on the Property starts pursuant to a valid Building Permit from the City.

Section 6.2 Completion of Construction. The Developer shall diligently prosecute to completion the construction of the Improvements and shall complete construction of the Improvements within the time set forth in the Schedule of Performance. The Developer shall be solely responsible for the construction of the Improvements by the time set forth for such completion in the Schedule of Performance, including all costs of design and construction.

Section 6.3 Construction Pursuant to Scope of Development and Project Documents. (a) The Developer shall construct the Improvements in accordance with the Scope of Development, the Project Documents, the approved Final Construction Drawings, and the terms and conditions of all City and other governmental approvals. (b) The Developer shall submit or cause to be submitted for the City’s approval as property owner transferring the Property to the Developer, and not in the City’s regulatory capacity, any proposed change in the Final Construction Drawings which materially changes the size, location, or elevations of the Improvements, including the landscape and/or hardscape, or signage of the Improvements, or which materially changes the quality or appearance of the exterior materials of the Improvements, or which would require an amendment to any Entitlements prior to making such change. The City shall reasonably approve or disapprove a proposed material change within fifteen (15) days after receipt by the City. Failure

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to approve or disapprove within fifteen (15) days shall be deemed to be disapproval of such change. If the City rejects the proposed material change and upon the Developer's request, the City shall provide the Developer with the specific reasons therefor, and the approved Final Construction Drawings shall continue to control.
(c) No change which is required for compliance with building codes, government health and safety regulations or other applicable laws or regulations, or to comply with changes or corrections required of the Developer in the plan check process shall be deemed material. However, the Developer must submit to the City any change that is required for such compliance within ten (10) days after making such change, and such change shall become a part of the approved Final Construction Drawings, binding on the Developer.

Section 6.4 Mechanics' Liens. The Developer shall indemnify the City and hold the City harmless against and defend the City in any proceeding related to any mechanic's lien, stop notice or other claim brought by a subcontractor, laborer or material supplier who alleges having supplied labor or materials in the course of the construction of the Improvements by the Developer. The City shall indemnify the Developer and hold the Developer harmless against and defend the Developer in any proceeding related to any mechanic's lien, stop notice or other claim brought by a subcontractor, laborer or material supplier who alleges having supplied labor or materials in the course of the City conducting Remediation or any other activity associated with the Environmental Obligations on or related to the Property. These indemnity obligations shall survive the issuance of a Certificate of Occupancy by the City and the termination of this Agreement.

Section 6.5 Compliance with Applicable Law. The Developer shall cause all work performed in connection with construction of the Improvements to be performed in compliance with (a) all applicable laws, ordinances, rules and regulations of federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter, and (b) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and the Developer shall be responsible for the procurement and maintenance thereof, as may be required of the Developer and all entities engaged in the work of constructing the Improvements.

Section 6.6 Progress Reports. Until a Certificate of Occupancy has been issued by the City, the Developer shall provide the City with periodic progress reports, as reasonably requested by the City (but not more than once every calendar month), regarding the status of the construction of the Improvements. Such report shall consist of an executive summary of the work to date, including, but not limited to, the causes for any delays and the work that is anticipated for the following month, a reasonable number of construction photographs taken since the last report submitted to the City, and shall be in form reasonably acceptable to the City.

Section 6.7 Entry by City. Until a Certificate of Occupancy has been issued by the City, the Developer shall permit the City, upon reasonable prior notice, through its officers, agents, or employees, to enter the Property during normal business hours to inspect the work of construction to determine that such work is in substantial conformity with the Scope of

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Development, the Project Documents, and the approved Final Construction Drawings or to inspect the Property for compliance with this Agreement. The City is under no obligation to (a) supervise construction, (b) inspect the Property, or (c) inform the Developer of information obtained by the City during any inspection. The Developer shall not rely upon the City for any supervision or inspection. The rights granted to the City pursuant to this Section 6.7 are in addition to any rights of entry and inspection the City may have in the exercising of its municipal regulatory authority.

Section 6.8 Non-Discrimination During Construction; Equal Opportunity. The Developer (for purposes of this Section 6.8, the term “Developer” shall include Developer’s contractors), for itself, its successors and assigns, and transferees agrees that in the construction of the Project provided for in this Agreement:
(a) The Developer will not discriminate against any employee or applicant for employment because of race, color, religion, creed, national origin, ancestry, disability, actual and perceived, medical condition, age, marital status, sex, sexual orientation, Acquired Immune Deficiency Syndrome (AIDS), actual or perceived, or retaliation for having filed a discrimination complaint (“Nondiscrimination Factors”). The Developer will take affirmative steps to ensure that applicants are employed by the Developer or its applicable contractor, and that its employees are treated without regard to the Nondiscrimination Factors during employment including, but not limited to, activities of: upgrading, demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Developer or its applicable contractor shall post in conspicuous places, available to its employees and applicants for employment, the applicable nondiscrimination clause set forth herein.
(b) The Developer will ensure that its or its applicable contractor's solicitations or advertisements for employment are in compliance with the aforementioned nondiscrimination factors.

Section 6.9 Insurance Requirements. Developer, its contractors, subcontractors and/or agents shall procure, maintain, and furnish, or cause to be furnished, to the City duplicate originals of the insurance policies or other written evidence of binding coverage, complete with additional insured and loss payee endorsements, as applicable pursuant to Exhibit G.

Section 6.10 Certificate of Occupancy. Upon the Developer’s completion of construction for that portion of the Improvements to be constructed on particular parcel of the Property, the City shall issue the Developer a Certificate of Occupancy for that improvement on the corresponding parcel of the Property. Once the Developer receives Certificates of Occupancy from the City for each of the Improvements to be constructed on a particular parcel of the Property, then that parcel will no longer be subject to the Security Financing Interests more particularly described in Article 9, except for the provisions in that Article 9 that continue through and beyond the completion of the construction or otherwise survive as provided for in this Agreement.

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ARTICLE 7.

OBLIGATIONS WHICH CONTINUE THROUGH

AND BEYOND THE COMPLETION OF CONSTRUCTION
Section 7.1 Commercial Use. The Developer covenants to use the Property only for the development and operation of commercial uses authorized by the Downtown Specific plan for a term of not less than thirty (30) years following the date of the issuance of the Certificate of Occupancy without the prior written approval of the City, which shall not be unreasonably withheld or delayed.

Section 7.2 Community Facility Maintenance District for Downtown Core Improvements. The Developer agrees to participate in a maintenance district or districts created to fund the maintenance of Stockmen’s Park and other designated downtown public facilities (“Downtown Core Maintenance District”). The Downtown Core Maintenance District and assessment shall be placed onto the Property no earlier than one (1) year following the issuance of the Certificate of Occupancy and shall be placed on the annual tax bill of the Property in the approximate initial amount not to exceed $22,000 and increasing annually thereafter at the percent year-over-year change in the Consumer Price Index For All Urban Consumers – San Francisco Area plus one percent (1%). The assessment for the Downtown Core Maintenance District shall be apportioned to each parcel of the Property as provided for in the methodology for the district’s assessment.

Section 7.3 Maintenance. The Developer hereby agrees that, after the Close of Escrow and prior to completion of construction of the Improvements, the Improvements shall be maintained in a neat and orderly condition and in accordance with industry health and safety standards, and that, once the Improvements are completed, they shall be maintained in accordance with industry standards as to both external and internal appearance of the buildings, and common areas. At all times, the Developer shall maintain or cause to be maintained the Improvements in good repair and working order, and in a neat, clean and orderly condition, including the walkways and landscaping, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, and replacements. In the event that there arises a condition in contravention of the above maintenance standard, then the City shall notify the Developer in writing of such condition, giving the Developer thirty (30) days from receipt of such notice to commence and thereafter diligently to proceed to cure said condition. In the event the Developer fails to cure or commence to cure the condition within the time allowed, the City shall have the right to perform all acts necessary to cure such a condition. The City shall receive from the Developer the City’s reasonable cost in taking such action and shall provide reasonable evidence of such costs to the Developer.

Section 7.4 Developer To Indemnify City.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT

WITH RESPECT TO THE ENVIRONMENTAL CONDITIONS AND THE
ENVIRONMENTAL OBLIGATIONS, the Developer shall indemnify, defend (with counsel approved by the City) and hold harmless the City, and its elected officials, officers, directors, employees, contractors, consultants, attorneys, agents, and designated volunteers (collectively, the “Indemnitees”) from and against any and all liabilities, losses, costs, expenses (including

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without limitation attorneys’ fees and costs of litigation), claims, demands, actions, suits, causes of action, writs, judicial or administrative proceedings, penalties, deficiencies, fines, orders, judgments and damages (all of the foregoing collectively “Claims”) which in any manner, directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, result from, or relate to: (i) approval of this Agreement and/or the Improvements; (ii) performance of this Agreement on the part of the Developer or any contractor or subcontractor of Developer; and/or (iii) the development, operation, maintenance or management of the Improvements, whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that the City does not and shall not waive any rights against Developer which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by the City, or Developer’s deposit with the City of any of the insurance policies described in this Agreement.
(b) The Developer shall pay immediately upon the Indemnitees’ demand any amounts owing under this indemnity. The duty of Developer to indemnify includes the duty to defend the Indemnitees or, at the Indemnitees’ choosing, to pay the Indemnitees’ costs of its defense in any court action, administrative action, or other proceeding brought by any third party arising from the Improvements. The Indemnitees shall have reasonable approval rights regarding decisions with respect to their representation in any legal proceeding, including, but not limited to, the selection of attorney(s). Developer’s obligations set forth in this Section shall survive the issuance of the Certificate of Occupancy by the City, and termination of this Agreement. Notwithstanding the foregoing, Developer’s indemnification obligations set forth in this Section 7.4 shall not apply to Claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees, or any Claims arising from the activities of any Indemnitee on the Property, or any Claims arising from the breach by the City of any of its obligations under this Agreement or the Transaction Documents.

Section 7.5 Hazardous Materials.
(a) Certain Covenants and Agreements. Following possession of the Property, the Parties covenant and agree that:
(1) The Developer shall not knowingly permit the Property or Improvements, or any portion thereof, to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials or otherwise knowingly permit the presence of Hazardous Materials in, on or under the Property (other than with respect the Environmental Conditions, with the express understanding that the Developer is not permitting the Environmental Conditions to be on the Property) in violation of any applicable law;
(2) Other than with respect the Environmental Conditions, with the express understanding that the Developer is not permitting the Environmental Conditions to be on the Property, the Developer shall keep and maintain the Property and Improvements, and each portion thereof, in compliance with, and shall not cause or permit the Property or Improvements, or any portion thereof, to be in violation of, any Hazardous Materials Laws ;

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(3) With respect the Environmental Conditions as defined herein and any Hazardous Materials released on the Property after Developer takes possession of the Property, upon receiving actual knowledge of the same the Developer shall within ten (10) days advise the City in writing of: (A) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer or the Property or Improvements pursuant to any applicable Hazardous Materials Laws; (B) any and all claims made or threatened by any third party against the Developer or the Property or Improvements relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in the foregoing clause (A) and this clause (B) are hereinafter referred to as “Hazardous Materials Claims”); (C) the presence of any Hazardous Materials in, on or under the Property in such quantities which require reporting to a government agency; or (D) the Developer’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property (other than the Environmental Conditions) or Improvements or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property or Improvements under any Hazardous Materials Laws. (b) Indemnity from Developer. Without limiting the generality of the indemnification set forth in Section 7.4, the Developer hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the City) the City, and its elected officials, officers, directors, employees, contractors, consultants, attorneys, agents, and designated volunteers from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith (including, but not limited to, reasonable attorney’s fees and expenses), arising directly or indirectly, in whole or in part, out of: (1) the failure of the Developer, its agents, employees, or contractors to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials other than the Environmental Conditions into, on, under or from the Property or Improvements at any time following the Close of Escrow; (2) other than the Environmental Conditions, the presence in, on or under the Property or Improvements of any Hazardous Materials or any releases or discharges of any Hazardous Materials into, on, under or from the Property; or (3) other than the Environmental Conditions, any activity carried on or undertaken on or off the Property of Improvements, subsequent to the Close of Escrow, and whether by the Developer or any employees, agents, contractors or subcontractors of the Developer at any time occupying or present on the Property, in connection with the handling, treatment, removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials at any time located or present on or under the Property (collectively “Indemnification Claims”). The foregoing indemnity shall not apply to any Environmental Conditions or Contamination released or detected at any time prior to Close of Escrow from, on, or at any location, including, but not limited to, the Property, but shall apply only to any Contamination due directly and solely to Hazardous Materials released on the Property after Developer takes possession of the Property that are detected on or under the Property, or affecting any natural resources, and to any Contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials after Close of Escrow, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws.

Notwithstanding the foregoing, Developer’s indemnity under this Section 7.5(b) shall apply to

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any Environmental Conditions related to the Contamination that are the result of actions by the Developer or its agents or tenants that impede, interfere, obstruct, or otherwise compromise a Mitigation, but shall not apply to any Claims to the extent arising solely from the gross negligence or willful misconduct of any of the City, its board members, officers, employees, or contractors. Developer’s obligations set forth in this Section shall survive the issuance of the Certificate of Occupancy by the City, and termination of this Agreement. (c) Indemnity from City. At all times, the City hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the Developer) the Developer, and its officers, directors, employees, members, contractors, consultants, attorneys, agents, and permitted transferees under Section 8, from and against any and all claims, losses, demands, allegations, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, Governmental Agency requests/requirements, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith (including, but not limited to, reasonable attorney’s, consultant, and expert witness fees, and expenses), arising directly or indirectly, in whole or in part, out of: (1) the failure of the City, its agents, employees, or contractors to comply with any Environmental Law relating in any way whatsoever to the Environmental Conditions at any time whether before or after the Close of Escrow; (2) the presence of Contamination in, on or under the Property or Improvements; (3) the, Environmental Conditions and/or Environmental Obligations; (4) implementing and/or complying with any Regional Board or Governmental Authority’s requirement, demand, or request made at any time with respect to the Environmental Conditions; (5) any incremental Improvement, construction, operating, or maintenance cost reasonably attributable to the Environmental Conditions (e.g., specialized materials necessitated by the presence of residual VOCs or VOC vapors, larger capacity HVAC systems, vapor barrier, etc., with the express understanding that, if, for any reason, Developer determines, in its sole discretion, that it is in its best interest that a vapor barrier be installed as a mitigative measure, the City shall pay all costs associated with such installation); (6) the failure of any Remediation or the failure to implement or pay for any Remediation or Mitigation; (7) impacts of the Environmental Conditions on (x) any persons or entities not party to this Agreement and (y) any property other than the Property, and/or (z) natural resources (collectively, “Third Party Claims” with Third Party Claims including but not being limited to claims asserted by any Governmental Authority whether before or after issuance of any “no further action” or other “closure” document with respect to the Property or any properties); (8) any activity carried on or undertaken on or off the Property at any time in connection with the handling, treatment, removal, storage, decontamination, cleanup, transport or disposal of Contamination or any Hazardous Materials associated with the Environmental Conditions; (collectively “Indemnification Claims”). The foregoing indemnity shall further apply to any Contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport, or disposal of any such Hazardous Materials associated with the Environmental Conditions, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws. Notwithstanding the foregoing, City’s indemnity under this Section 7.5(c) shall not apply to any Claims to the extent arising solely from the gross negligence or willful misconduct of any of the Developer, its officers, employees, or contractors, nor shall it apply to any claims related Environmental Conditions due to actions by the Developer or its agents or tenants that impede, interfere, obstruct, or otherwise compromise a Mitigation. City’s obligations set forth in this Section shall survive the issuance of

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the Certificate of Occupancy by the City, and termination of this Agreement. In the event this indemnity is judicially determined to exceed that permitted by Applicable Law, then such indemnity shall be construed as to preserve the maximum indemnity permitted thereby.

Section 7.6 No Liability for Breaches of Security The foregoing and anything to the contrary contained in this Agreement notwithstanding, the City and Developer shall have no liability to the other Party, or any obligation to indemnify the other Party for any third party claims, for any injury to person or property caused by the acts of third persons in connection with any alleged breach of or failure to provide reasonable security, including criminal acts or other losses, nor shall this Agreement establish any duty owed in tort to, or standard of care in tort as to, either Party or any third party.

Section 7.7 Non-Discrimination.
(a) The Developer covenants and agrees for itself, its successors and its assigns in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or persons on any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code. All deeds, leases, or contracts for the sale, lease, sublease, or other transfer of the Property shall contain or be subject to the nondiscrimination or non-segregation clauses hereafter prescribed.
(b) Notwithstanding subdivision (a), with respect to familial status, subdivision (a) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in subdivision (a) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to subdivision (a).
(c) Developer's obligations set forth in this Section shall survive the issuance of the Certificate of Occupancy by the City, and termination of this Agreement.

Section 7.8 CFD Assessment. Nothing is this Agreement is intended to prevent the Developer from passing-through all or a portion of any CFD assessment applicable to the tenants occupying the Improvements.

Section 7.9 Deed Restriction. The Parties acknowledge that the Regional Board may require the recordation of a Covenant and Environmental Restriction (“Covenant”) that: (a) runs with the land pursuant to California Civil Code Section 1471, (b) specifies that groundwater at the Site may not be used without prior Regional Board authorization, (c) requires compliance with an SMP and Mitigation, as those terms are defined in this Agreement, and/or (c) contains other provisions that are routinely required by the Regional Board on comparable sites. If the Regional Board requires such a Covenant, then, within the sooner of (x) a deadline imposed by the Regional Board, or (y) thirty (30) calendar days after a certificate of occupancy is issued for

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the Project, Developer shall cause to be recorded in the Alameda County Recorder’s Office a Covenant the terms of which are mutually acceptable to the Parties, and the Regional Board.

Neither Party shall unreasonably withhold its acceptance of the Covenant’s terms. The Covenant shall include, but not be limited to, a commercially reasonable notice to future owners of all or any portion of the Property confirming (i) the existence and Remediation and/or Mitigation of the Environmental Conditions; and (ii) any obligations future landowners may have in connection with ongoing risk management protocols described in the SMP applicable to the Site.

Section 7.10 Survival. The provisions of this section shall survive the termination of this Agreement.

ARTICLE 8.

ASSIGNMENT AND TRANSFERS
Section 8.1 Definitions. As used in this Article 8, the term "Transfer" shall mean:
(a) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode of form, of or with respect to this Agreement, or of the Property, or any part thereof or any interest therein or of the Improvements constructed thereon, or any contract or agreement to do any of the same; or
(b) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, of or with respect to more than a fifty percent (50%) ownership interest in the Developer, or any contract or agreement to do any of the same.

Section 8.2 Purpose of Restrictions on Transfer. This Agreement is entered into solely for the purpose of development and operation of the Improvements on the Property and their subsequent use in accordance with the terms of this Agreement. The qualifications and identity of the Developer are of particular concern to the City, in view of:
(a) The importance of the redevelopment of the Property to the general welfare of the community; and
(b) The fact that a Transfer as defined in Section 8.1 above is for practical purposes a transfer or disposition of the Property.

It is because of the qualifications and identity of the Developer that the City is entering into this Agreement with the Developer and that Transfers are permitted only as provided in this Agreement.

Section 8.3 Prohibited Transfers. The limitations on Transfers set forth in this Article 8 shall apply from the Effective Date of this Agreement until the issuance of a Certificate of Occupancy by the City as more particularly described in Section 6.10. Except as expressly permitted in this Agreement, the Developer represents and agrees that the Developer has not made or created and will not make or create or suffer to be made or created, any Transfer, either voluntarily or by operation of law, without the prior approval of the City, which shall not be unreasonably withheld, conditioned, or delayed. Any Transfer made in contravention of this

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Section 8.3 shall be void and shall be deemed to be a default under this Agreement, whether or not the Developer knew of or participated in such Transfer.

Section 8.4 Permitted Transfers. Notwithstanding the provisions of Section 8.3, the following Transfers shall be permitted (subject to satisfaction of the conditions of Section 8.5), so long as such Transfer is permitted under, and accomplished in accordance with this Agreement:
(a) Any Transfer creating a Security Financing Interest (defined in Section

9.1).
(b) Any Transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest.
(c) Any Transfer resulting directly from the death or mental incapacity of an individual.
(d) The conveyance or dedication of a portion of the Property to any public entity, including a public utility, required to allow for the development of the Project. (e) The granting of temporary or permanent easements or permits to facilitate development of the Project.
(f) A Transfer to an Affiliate of Developer.
(g) Any Transfer contemplated by or permitted pursuant to any other provision of this Agreement,
(h) The lease of any space within the Improvements to a third party. (i) Any Transfer resulting in up to ninety percent (90%) in the aggregate of the direct or indirect ownership or beneficial interests in Developer, provided that, following such Transfer, Red Bear Property Management, Inc. (or any Affiliate of such entity, “Red Bear”) remains in Control of Developer.
(j) A Transfer otherwise approved by the City.

As a condition of the City approval of a Transfer described in Section 8.4(f) and Section

8.4(g) above, the transferee must concurrently assume the obligations of the Developer under this Agreement. As a condition of the City’s approval of a Transfer described in Section 8.4(f) above, the City must review and approve the transferee’s organizational documents for the purposes of determining that such transferee is an Affiliate of the Developer. As a condition of the City’s approval of a Transfer described in Section 8.4(i) above, the City must review and approve Developer’s organizational documents for the purposes of determining that Red Bear remains in Control.

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Section 8.5 Effectuation of Permitted Transfers.
(a) Other than as permitted in Section 8.4, no Transfer of a direct interest in this Agreement shall be permitted unless, at the time of the Transfer, the person or entity to which such Transfer is made, by an agreement reasonably satisfactory to the City and in form recordable among the land records, expressly agrees to perform and observe, from and after the date of the Transfer, the obligations, terms and conditions of this Agreement; provided, however, that no such transferee shall be liable for the failure of its predecessor to perform any such obligation. The City shall grant or deny approval of a proposed Transfer within sixty (60) days of receipt by the City of the Developer’s request for approval of a Transfer, which request shall include evidence of the proposed transferee’s business expertise and financial capacity. Subject to the provisions of Section 11.5 of this Agreement, failure by the City to approve or disapprove the proposed Transfer within sixty (60) days after receipt of the Developer’s written request shall be deemed to be approval of the proposed Transfer by the City. (b) Any assignment of rights and/or delegation of obligations under this Agreement in connection with a Transfer of a direct interest in this Agreement (whether or not the City approval is required) shall be in writing executed by Developer and the assignee or transferee, which written agreement shall name the City as an express third party beneficiary with respect to such agreement (the "Assumption Agreement") with a copy thereof delivered to the City within thirty (30) days after the effective date thereof. Upon Transfer of a direct interest in this Agreement pursuant to an Assumption Agreement, the assignor shall be relieved of liability with respect to any such obligations relating to the Project accruing from and after the date of such assignment or Transfer. Notwithstanding the foregoing, unless such assignee specifically assumes pursuant to the Assumption Agreement the obligations under this Agreement to indemnify the City with respect to the Property and Improvements, the assignor will retain such obligations and remain jointly and severally liable for such indemnity obligations with such assignee; however, in the event of such an assumption of the indemnification obligation, Developer shall be released from all liability under such indemnity obligations.

ARTICLE 9.

SECURITY FINANCING AND RIGHTS OF HOLDERS
Section 9.1 Encumbrances. Mortgages, deeds of trust, assignment of rents and security agreements, and other real and personal property security instruments to secure the funds necessary for acquisition of the Property, or the construction and permanent financing of the Property or Improvements, and any other expenditures incurred in connection with the design, construction and operation of the Property or Improvements, are permitted to be placed upon the Property or any personal property thereon or therein or the limited liability company interests in Developer. Such permitted security instruments and related interests shall be referred to “s "Security Financing Interests". The Developer shall promptly notify the City of any Security Financing Interest that has been or will be created or attached to Developer’s fee simple interest in the Property or the limited liability company interests in Developer. The foregoing notwithstanding, until the Developer is entitled to issuance of a Certificate of Occupancy as more particularly described in Section 6.10, the Developer may place Security Financing Interests only for the purpose of securing acquisition of the fee interest and for development, construction and permanent financing. As used herein: (a) “Encumbrance Holder” shall mean the holder of record

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of any Security Financing Interest; (“) "Foreclosure Transfer" shall mean any transfer of all or a portion of the Property or of any associated personal property or limited liability company interests in Developer pursuant to any judicial or non-judicial foreclosure or other enforcement of remedies under or with respect to a Security Financing Interest, or by voluntary deed or assignment or other transfer in lieu thereof; and "Foreclosure Transferee" shall mean any transferee (including without limitation an Encumbrance Holder) which acquires title in the Property or interest therein or of any associated personal property or of the limited liability company interests in Developer pursuant to a Foreclosure Transfer.

Section 9.2 Holder Not Obligated to Construct. No Encumbrance Holder or Foreclosure Transferee is obligated to construct or complete any Improvements, or to guarantee such construction or completion. Nothing in this Agreement shall be deemed to permit or authorize any such Encumbrance Holder or Foreclosure Transferee to devote the Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or Improvements provided for or authorized by this Agreement. A Developer Event of Default or other breach will not defeat or render invalid any Security Financing Interest. No Encumbrance Holder or Foreclosure Transferee of any Security Financing Interest shall be personally liable for the performance or observance of any covenants or conditions to be performed by the Developer under this Agreement, any Transaction Document or any Project Documents unless and until such Encumbrance Holder or Foreclosure Transferee acquires the Developer’s interest in the Property and at the election of Encumbrance Holder or Foreclosure Transferee enters into a new agreement with the City. The City agrees that such Encumbrance Holder or Foreclosure Transferee may sell, assign, or otherwise dispose of any interest to which it has so succeeded or which it has so acquired. Upon such sale, assignment or disposition, such Encumbrance Holder or Foreclosure Transferee shall be released from all obligations and liabilities of the Developer whatsoever arising under this Agreement, any Transaction Document or any other document from and after the date of such sale, assignment or disposition.

Section 9.3 Notice of Default and Right to Cure. Whenever the City pursuant to its rights set forth in Article 10 delivers any notice to the Developer of the occurrence of a Developer Event of Default or any other matter which may give rise to a right of termination or other claim “a "Cure Notice"), the City shall not exercise any remedy available to it unless and until each of the following have occurred: (a) a Cure Notice describing the is provided to each and every then-existing Encumbrance Holder that has notified the City in writing of (i) its interest in receiving such a notice, and (ii) its address for the receipt of such notice; and (b) such Developer Event of Default remains uncured after the expiration of the applicable cure period set forth in Section 9.4. The Cure Notice shall be sent simultaneously with any similar notice or notices of a Developer Event of Default that the City may be required to provide to Developer pursuant to Article 10. An Encumbrance Holder shall have the right and the power to cure any Developer Event of Default specified in a Cure Notice within the cure periods set forth in Section 9.4 below, and, if such Developer Event of Default is so cured, this Agreement shall remain in full force and effect. Nothing contained in this Agreement shall be deemed to permit or authorize any Encumbrance Holder or Foreclosure Transferee to undertake or continue the construction or completion of the Improvements or any other work (beyond the extent necessary to conserve or protect such improvements or construction already made) without first having expressly assumed in writing the Developer’s obligations to the City under this Agreement. The Encumbrance Holder in that event must agree to complete, in the manner provided in this

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Agreement, the construction of the Improvements. Any such Encumbrance Holder properly completing construction of the Improvements pursuant to this Section 9.3 shall assume all rights and obligations of Developer under this Agreement and shall be entitled, upon written request made to the City, to a Certificate of Occupancy from the City.

Section 9.4 Cure of Developer Defaults. Developer Events of Default may be cured by any Encumbrance Holder in the following manner within the following time frames:
(a) For all Developer Events of Default, an Encumbrance Holder shall have (a) sixty (60) days after the later of (i) its receipt of the earliest Cure Notice issued by the City to such Encumbrance Holder setting forth such Developer Event of Default, or (ii) expiration of the applicable Cure Period set forth in Section 10.3(b) to cure such Developer Event of Default if such Developer Event of Default can reasonably be cured by an Encumbrance Holder within such sixty (60)-day period; or (b) if an Encumbrance Holder has promptly commenced to cure such Developer Event of Default within such applicable period and has been diligently prosecuting the same, but such Developer Event of Default cannot reasonably be cured by such Encumbrance Holder within such applicable period, then such Encumbrance Holder shall be provided with such additional time as is necessary to complete the cure, provided such Encumbrance Holder continues to diligently pursue such cure to completion. (b) If a Developer Event of Default cannot practicably be cured by an Encumbrance Holder without the need for such Encumbrance Holder to obtain possession of the Property or any portion thereof or to obtain control of the Developer, or if a Developer Event of Default cannot be cured by an Encumbrance Holder (for example, the insolvency of Developer), then, in each case, if at least one Encumbrance Holder has delivered to the City within sixty (60) days after its receipt of a Cure Notice a written undertaking wherein such Encumbrance Holder agrees (1) that it will commence foreclosure proceedings forthwith, and (2) will cure or obtain an agreement from the Foreclosure Transferee that such Foreclosure Transferee will cure such Developer Event of Default (to the extent that it can be cured) upon completion of the foreclosure and the resultant Foreclosure Transfer, and if thereafter any such Encumbrance Holder actually commences foreclosure proceedings and prosecutes the same thereafter with due diligence, then the cure period shall not commence until completion of such foreclosure proceedings and the resultant Foreclosure Transfer; provided, that if said Encumbrance Holder is prevented from commencing or continuing foreclosure proceedings by any bankruptcy stay, or any order, judgment or decree of any court or regulatory body of competent jurisdiction, and said Encumbrance Holder diligently seeks release from or reversal of such stay, order, judgment or decree, then the cure period shall not commence until such stay, order, judgment or decree is released or reversed, and such foreclosure proceedings and the resultant Foreclosure Transfer are thereafter actually commenced and prosecuted thereafter with due diligence to completion.

Upon completion of any such Foreclosure Transfer, the Foreclosure Transferee (whether such Foreclosure Transferee is the Encumbrance Holder or another party) shall have until the expiration of the applicable cure periods set forth in this Section 9.4 to cure the Developer Event of Default giving rise to such Foreclosure Transfer, to the extent curable by such Foreclosure Transferee (unless such Developer Event of Default has already been cured), and any other Developer Events of Default that may then exist and be curable by such Foreclosure Transferee.

The Encumbrance Holder shall have the right to terminate its foreclosure proceedings hereunder in the event of a cure of a Developer Event of Default giving rise to such foreclosure

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proceedings. If an Encumbrance Holder or a Foreclosure Transferee obtains possession through foreclosure proceedings and assumes obligations to construct Improvements, the Schedule of Performance will be extended as needed to account for the time expended by such Encumbrance Holder or Foreclosure Transferee to commence and then complete such foreclosure proceedings.

Upon the curing of any Developer Event of Default by an Encumbrance Holder or Foreclosure Transferee within the time provided in this Section 9.4, the City’s right to pursue any remedies for the cured Developer Event of Default shall terminate.

Section 9.5 Failure of Holder to Complete Improvements. Subject to Section 10.3(b), in any case where after a default by the Developer in completion of construction of the Improvements under this Agreement, the Encumbrance Holder or Foreclosure Transferee, having first exercised its option to construct and also obtained possession of the Property or control of Developer, has not proceeded diligently with construction within six (6) months after obtaining possession of the Property, the City shall be afforded those rights against such Encumbrance Holder or Foreclosure Transferee it would otherwise have against the Developer under this Agreement.

Section 9.6 Right of the City to Cure. In the event of a default or breach by the Developer of a Security Financing Interest prior to the completion of construction of the Improvements, and if the Encumbrance Holder or Foreclosure Transferee has not exercised its option to complete the construction of the Improvements, the City may cure such default, provided that Developer is given ten (10) days prior notice of the City’s intention to cure such default and does not thereafter immediately commence and continue with due diligence to complete to cure such default, and provided that City’s right to cure shall be coterminous with the Developer’s cure rights under the Security Financing Interest. In such event, the City shall be entitled to reimbursement from the Developer of all reasonable costs and expenses incurred by the City in curing the default.

Section 9.7 Right of the City to Satisfy Other Liens. After the Close of Escrow and after the Developer has had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the Property, or any portion thereof, which is not permitted under this Agreement, and has failed to do so, in whole or in part, the City shall, upon at least ten (10) d’ys' prior written notice to the Developer, have the right to satisfy any such lien or encumbrances; provided, however that nothing in this Agreement shall require the Developer to pay or make provision for the payment of any tax, assessment, lien, or charge so long as the Developer in good faith shall contest the validity or amount thereof and so long as such delay in payment shall not subject the Property or any portion thereof to forfeiture or sale.

Section 9.8 Holder to be Notified. To the extent deemed necessary by the City, the Developer shall use good faith efforts to insert each applicable term contained in this Article 9 related to Security Financing Interest or the rights of Encumbrance Holders into each Security Financing Interest or shall procure acknowledgement of such terms by each prospective Encumbrance Holder prior to its coming into any security right or interest in the Property or portion thereof.

Section 9.9 Modifications. If an Encumbrance Holder should, as a condition of providing financing or funding for development of all or a portion of the Improvements or other

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portions of the Project, request any modification of this Agreement, the Transaction Documents or any documents in order to protect its interests in the Project, the City shall consider such request in good faith consistent with the purpose and intent of this Agreement and the rights and obligations of the Parties under this Agreement. In addition, (a) the City agrees to cooperate reasonably with each Encumbrance Holder or prospective Encumbrance Holder in confirming or verifying the rights and obligations of each Encumbrance Holder under this Agreement, the Transaction Documents, and the Project Documents, and (b) the City agrees to cooperate reasonably with Developer in including the provisions of this Article 9 in the Reciprocal Access Easement.

Section 9.10 Estoppel Certificates. Either Party, at any time and from time to time following Close of Escrow, within fifteen (15) days of receipt of a written request from the other Party, shall execute and deliver to such Party a written statement that, to the knowledge of the certifying Party (i) this Agreement, the Transactions Documents and the Project Documents are in full force and effect and binding obligation of the Parties, (ii) this Agreement, Transaction Documents, and the Project Documents have not been amended or modified, or if so amended or modified, identifying the amendments or modifications, and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing the nature of any such defaults.

Section 9.11 Participation in Insurance and Condemnation Proceedings. It is agreed, notwithstanding any other provision of this Agreement to the contrary, that, at all times while a Security Financing Interests remains in effect, all policies of insurance required to be maintained by the Developer under this Agreement or otherwise in effect for the Project contain a standard mortgagee protection endorsement, and the Encumbrance Holder shall be entitled to hold the originals of all such policies. The Encumbrance Holder shall be entitled to participate in the settlement or adjustment of any losses covered by such policies of insurance and no such settlement or adjustment shall be accepted or approved without the specific consent in writing of such Encumbrance Holder. In addition, at all times while a Security Financing Interests remains in effect, the Encumbrance Holder shall be entitled to participate in any settlement of or any stipulation of judgment with respect to any condemnation proceeds affected all or any portion of the Property or any agreement to sell all or any portion of the Property in lieu of condemnation, and no such settlement, stipulation or agreement shall be made or entered into without the specific consent in writing of such Encumbrance Holder.

Section 9.12 Multiple Encumbrance Holders. If at any time there is more than one Security Financing Interest constituting a lien on the Property or any interest therein, the lien of the Encumbrance Holder prior in time to all others shall be vested with the rights under this Article 9 to the exclusion of the holder of any other Security Financing Interest; provided, however, that if the holder of a senior Security Financing Interest fails to exercise the rights set forth in this Article 9, each holder of a junior Security Financing Interest shall succeed to the rights set forth in this Article 9 only if the holders of all Security Financing Interests senior to it have failed to exercise the rights set forth in this Article 9.

ARTICLE 10.

DEFAULT AND REMEDIES

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Section 10.1 Application of Remedies. The provisions of this Article 10 shall govern the Parties' remedies for breach of this Agreement.

Section 10.2 Fault of City.
(a) Event of Default. Following notice and cure as more particularly described in Section 10.2(b) below, each of the following events constitutes “a "City Event of Default" and a basis for the Developer to take action against City:
(1) The City fails to convey the Property as provided in this Agreement and the Developer is otherwise entitled by this Agreement to such conveyance. (2) The City breaches any other material provision of this Agreement. (b) Notice and Cure Procedure; Remedies. Upon the occurrence of any of the above-described events, the Developer shall first notify the City in writing of its purported breach or failure, giving the City thirty (30) days from receipt of such notice to cure such breach or failure. In the event the City does not then cure the default within such thirty (30)-day period (or, if the default is not reasonably susceptible of cure within such thirty (30)-day period, the City fails to commence the cure within such period and thereafter to prosecute the cure diligently to completion), then the Developer shall be entitled to any rights afforded it in law or in equity by pursuing any or all of the following remedies: (1) terminating this Agreement by written notice to the City; (2) prosecuting an action for damages (subject to the limitation of liability more particularly described in Section 11.3, and excluding punitive damages and consequential damages); or (3) seeking any other remedy available at law or in equity (excluding punitive damages and consequential damages), including, without limitation, an action for specific performance.

Section 10.3 Fault of Developer.
(a) Event of Default. Following notice and cure as more particularly described in Section 10.3(b) below, each of the following events constitutes “a "Developer Event of Default" and a basis for the City to take action against the Developer:
(1) The Developer does not attempt diligently and in good faith to cause satisfaction of the conditions in Article 2 benefiting the Developer within the reasonable control of the Developer by the time set forth in the Schedule of Performance. (2) The Developer fails to construct the Improvements in accordance with in Article 6 within the time set forth in the Schedule of Performance. (3) The Developer has breached its obligations under Section 7.1. (4) Prior to the issuance of a Certificate of Occupancy for the Improvements as more particularly described in Section 6.10, the Developer attempts or completes a Transfer except as permitted under Article 8.

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(5) The Developer's: (1) filing for bankruptcy, dissolution, or reorganization, or failure to obtain a full dismissal of any such involuntary filing brought by another party before the earlier of final relief or ninety (90) days after the filing; (2) making a general assignment for the benefit of creditors; (3) applying for the appointment of a receiver, trustee, custodian, or liquidator, or failure to obtain a full dismissal of any such involuntary application brought by another party before the earlier of final relief or ninety (90) days after the filing; (4) insolvency as evidenced by an entered decree by a court of competent jurisdiction; or (5) failure, inability or admission in writing of its inability to pay its debts as they become due. (6) Following the Close of Escrow and prior to the issuance of a Certificate of Occupancy for the Improvements, the Developer defaults under any Security Financing Interest, has not cured such default within the applicable cure period contained in such agreement evidencing such Security Financing Interest and the applicable Encumbrance Holder has elected in writing to accelerate the debt secured by such Security Financing Interest. (7) The Developer breaches any other material provision of this Agreement.
(b) Notice and Cure Procedure. Upon the happening of any of the abovedescribed events the City shall first notify the Developer in writing of its purported breach or failure, giving the Developer thirty (30) days from receipt of such notice to cure such breach or failure. If the Developer does not cure the default within such thirty (30)-day period (or if the default is not reasonably susceptible of being cured within such thirty (30)-day period, the Developer fails to commence the cure within such period and thereafter to prosecute the cure diligently to completion), then the City shall be afforded all of its rights at law or in equity by taking any or all of the following remedies: (1) terminating this Agreement by written notice to the Developer; (2) prosecuting an action for damages (subject to the limitation of liability more particularly described in Section 11.3, and excluding specific performance, punitive damages and consequential damages); or (3) seeking any other remedy available at law or in equity (excluding punitive damages and consequential damages). If the City elects to terminate this Agreement, the provisions of this Agreement that are specified to survive such termination shall remain in full force and effect.

Section 10.4 Right of Reverter. Following the Close of Escrow, if the Developer fails to commence the construction of the Improvements by the Outside Date (as the Outside Date may be extended pursuant to Section 11.4 or other provisions of this Agreement), then the City may, in addition to other rights granted in this Agreement, re-enter and take possession of the Property with all improvements on the Property, and revest in the City the estate previously conveyed to the Developer by the City with respect to the Property subject to the provisions set forth below. The City’s rights under this Section 10.4 shall terminate and be of no further force and effect once the City issues a Certificate of Occupancy as more particularly described in Section 6.10.

The interest created pursuant to this Section 10.4 shall be “a "Power of Termination" as defined in California Civil Code Section 885.010. The City’s Power of Termination shall be subordinate and subject to and be limited by and shall not defeat, render invalid, or limit:

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(a) Any Security Financing Instrument with respect to the Property; or (b) Any rights or interests provided in this Agreement for the protection of the holder of a Security Financing Interest with respect to the Property. (c) Any leases affecting the Property as of the date of such termination.

Upon revesting in the City of title to the Property as provided in this Section 10.4, the City shall, pursuant to its responsibilities under state law, use its best efforts to resell the Property as soon as possible, in a commercially reasonable manner and consistent with the objectives of such law, to a qualified and responsible party or parties (as reasonably determined by the City) who will assume the obligation of making or completing such improvements as are acceptable to the City in accordance with the uses specified for the Property and in a manner satisfactory to the City. Upon such resale of the Property the proceeds thereof shall be applied as follows:
(1) First to reimburse the City on its own behalf for all costs and expenses incurred by the City, including but not limited to salaries of personnel and legal fees incurred in connection with the recapture, management, and resale of the Property (but less any income derived by the City from any part of the Property in connection with such management); all taxes, installments of assessments payable prior to resale, and water and sewer charges with respect to the Property (or, in the event the Property is exempt from taxation or assessment or such charges during the period of ownership by the City, an amount equal to the taxes, assessments, or charges that would have been payable if the Property was not so exempt); any payments made or necessarily to be made to discharge any encumbrances or liens existing on the Property at the time of revesting of title in the City or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Developer, its successors or transferees; expenditures made or obligations incurred with respect to the making or completion of the Property or any part thereof; and any amounts otherwise owing the City by the Developer and its successors or transferee. (2) Second, to reimburse the Developer, its successor or transferee, up to the amount equal to: the Purchase Price for the Property, plus the fair market value of the Improvements the Developer has placed on the Property, less any funds paid by the City to remove any encumbrances or liens and gains or income withdrawn or made by the Developer from the Property or the improvements thereon. Notwithstanding the foregoing, the amount calculated pursuant to this paragraph (2) shall not exceed the fair market value of the Property together with the Improvements thereon as of the date of the default or failure which gave rise to the City’s exercise of the right of reverter.
(3) Third, any balance remaining after such reimbursements shall be retained by the City as its property.

The rights established in this Section 10.4 are to be interpreted in light of the fact that the City will convey the Property to the Developer for development and not for speculation.

Section 10.5 Rights and Remedies Cumulative. Except as otherwise provided, the rights and remedies of the Parties are cumulative, and the exercise or failure to exercise any right

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or remedy shall not preclude the exercise, at the same time or different times, of any right or remedy for the same default or any other default.

Section 10.6 Survival. Upon termination of this Agreement under this Article 10, the following provisions of this Agreement shall survive: Section 2.3, Section 3.7, Section 3.8, Section 6.4, Section 6.8, Section 7.4, and Section 7.5. This Section 10.6 exists for reference purposes only, and does not alter the scope or nature of the surviving provisions.

ARTICLE 11.

GENERAL PROVISIONS
Section 11.1 Identity of Developer. The Developer represents and warrants to the City as of the Effective Date and as of the Close of Escrow, as follows:
(a) Organization. The Developer is a corporation, duly organized, validly existing and in good standing under the laws of California with full power and authority to conduct its business as presently conducted and to execute, deliver and perform its obligations under this Agreement.
(b) Authorization. The Developer has taken all necessary action to authorize its execution, delivery and, subject to any conditions set forth in this Agreement performance of the Agreement. Upon the Effective Date of this Agreement, this Agreement shall constitute a legal, valid and binding obligation of the Developer, enforceable against the Developer in accordance with its terms, subject to all applicable bankruptcy laws and laws affecting the rights of creditors generally.
(c) No Conflict. The execution, delivery and performance of this Agreement by the Developer does not and will not conflict with, or constitute a violation or breach of, or constitute a default under (i) the charter or incorporation documents of the Developer, (ii) any applicable law, rule or regulation binding upon or applicable to the Developer, or (iii) any material agreements to which the Developer is a party.
(d) No Litigation. To the Developer’s actual knowledge, there is no pending or threatened litigation, suit, action or proceeding before any court or administrative agency affecting the Developer or the Property that would, if adversely determined, materially and adversely affect the Developer or the Property or the Developer’s ability to perform its obligations under this Agreement or to develop and operate the Project. (e) No Material Adverse Change. There has been no material adverse change in the financial condition of the Developer since the Effective Date. (f) Default Under Other Agreements. There is no event, act or omission which constitute, or but for the passage of time or the giving of notice, or both, would constitute a breach, violation or default by Developer under any agreement materially related to the development or operation of the Property or Improvements, including but not limited any other partnership agreement, joint venture agreement, or loan agreement.

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Until the Close of Escrow, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 11.1 not to be true, immediately give written notice of such fact or condition to the City. Upon the Developer’s Transfer prior to the Close of Escrow, the Developer shall cause the Developer’s assignee to update the representations and warranties set forth above.

Section 11.2 Notices, Demands and Communications. Formal notices, demands, submittals and communications between the City and the Developer shall be sufficiently given if, and shall not be deemed given unless, delivered personally, or dispatched by certified mail, return receipt requested, or by reputable overnight delivery service with a receipt showing date of delivery, to the principal offices of the City and the Developer as follows:

City: City of Livermore
1052 S. Livermore Avenue
Livermore, California 94550
Attn: City Manager
Developer Red Bear Property Management, Inc.
5955 Coronado Lane
Pleasanton, CA 94588
Attn: Mike Madden
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section 11.2. Delivery shall be deemed to have occurred at the time indicated on the receipt for delivery or refusal of delivery.

Section 11.3 Non-Liability of Officials, Employees and Agents. The Parties acknowledge that neither Party would have entered into this Agreement had it been exposed to damage claims from the other Party for any breach thereof. As such, the Parties agree that in no event shall either Party be entitled to recover damages against the other Party for breach of this Agreement. In addition, no member, partner, beneficial interest holder, official, officer, director, employee, contractor, consultant, attorney, agent, or designated volunteer of a Party shall be personally liable to the other Party, or any successor in interest to the other Party, in the event of any default or breach or for any amount or on any obligation under the terms of this Agreement.

Section 11.4 Enforced Delay. In addition to specific provisions of this Agreement, performance by any Party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement or the Schedule of Performance shall be extended, where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority (except for restrictions or priorities established by the Party required to perform the action required under this Agreement); litigation; unusually severe weather; inability to secure

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necessary labor, materials or tools; or acts or the failure to act of the City or any other public or governmental agency or entity including breaches by the City under this Agreement, any Transaction Document, or Project Document; or any other cause beyond the affected Party’s reasonable control (except that acts or the failure to act of a Party shall not excuse performance by such Party, including without limitation the Developer's inability to obtain financing for the Project or the economic infeasibility of the Project“ ("Force Majeure"). An extension of time for Force Majeure shall only be for the period of the enforced delay, which period shall commence to run from the time of the notification of the delay by the Party requesting the extension to the other Party. The Party requesting an extension of time under this Section 11.4 shall give notice promptly following knowledge of the delay to the other Party. If, however, notice by the Party claiming such extension is sent to the other Party more than thirty (30) days after knowledge of the commencement of the delay, the period shall commence to run upon the earlier of (i) thirty (30) days prior to the giving of such notice or (ii) the date that the other Party received knowledge of the events giving rise to the delay. Notwithstanding the foregoing, the City shall be responsible for the costs of any delay due to Environmental Obligations as defined in Section 1.1 (x).

Section 11.5 Delegation of Authority. Upon approval of this Agreement by the City Council, the City Manager is authorized to execute any and all and Transaction Documents, including but not limited to the recording in the Official Records the parcel map for the Property.

Section 11.6 Cooperation, On-going Technical/Schedule Consultation, Related Agreements. The Parties acknowledge that achieving the purposes of this Agreement will require ongoing cooperation among them and may require preparation and execution of documents or agreements that were not fully anticipated and specifically described in this Agreement. The Parties therefore agree to participate in meetings to keep each other apprised of any developments that may impact their performance under this Agreement or accomplishing the objectives of this Agreement. Neither the need for such cooperation nor the failure of this Agreement to comprehensively anticipate and provide for such additional documents or agreements shall be deemed a defect in this Agreement or an indication that the Parties had not reached an enforceable agreement as of the Effective Date. Rather, the Parties agree to cooperate in the preparation and execution of such other, related and commercially reasonable agreements as may arise in connection with promptly fulfilling the purposes and intent of this Agreement provided that such secondary agreements do not substantially change the scope or cost of the obligations negotiated by the Parties pursuant to this Agreement or diminish the benefits provided for in this Agreement.

Section 11.7 Inspection of Books and Records. The City has the right at all reasonable times and upon five (5) business days prior written notice to inspect the books, records and all other documentation of the Developer pertaining to its obligations under this Agreement. Such books, records and documentation are privileged documents of the Developer containing trade secrets, private personal information, and/or the contents of real estate appraisals, engineering and/or feasibility estimates, evaluations, and other proprietary non-public information.

Section 11.8 Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting

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any part of its provision. References to "Articles" and "Sections" are to sections of this Agreement, unless otherwise specifically provided.

Section 11.9 Applicable Law. This Agreement shall be interpreted under and pursuant to the laws of the State of California.

Section 11.10 Severability. If any term, provision, covenant or condition of this Agreement is held in a final disposition by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability.

Section 11.11 Legal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, each Party shall bear their own attorneys' fees and no attorneys' fees may be awarded to the Party prevailing in the action.

Section 11.12 Binding Upon Successors; Covenants to Run With Land. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the Parties; provided, however, that there shall be no Transfer except as permitted in under the terms of this Agreement. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any successor, heir, administrator, executor, successor, or assign of such Party who has acquired an interest in compliance with the terms of this Agreement or under law.

The terms of this Agreement shall run with the land, and shall bind all successors in title to the Property until the termination of this Agreement, except that the provisions of this Agreement that are specified to survive termination of this Agreement shall run with the land in perpetuity and remain in full force and effect following such termination. Every contract, deed, or other instrument hereafter executed covering or conveying the Property, or any portion thereof, shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the City expressly releases the Property, or the applicable portion of the Property, from the requirements of this Agreement.

Section 11.13 Parties Not Co-Venturers. Nothing in this Agreement is intended to or does establish the Parties as partners, co-venturers, or principal and agent with one another.

Section 11.14 Entire Understanding of the Parties. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the conveyance of the Property and the development of the Project, and expressly supersedes the Exclusive Negotiating Rights Agreement dated July 26, 2018, and the Original Disposition and Development Agreement between the City and Red Bear Property Management.

Section 11.15 Counterparts. This Agreement may be executed in counterparts and multiple originals.

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Section 11.16 Amendments. The Parties can amend this Agreement only by means of a writing signed by both Parties.

Section 11.17 Recordation of Memorandum of Amended and Restated Disposition and Development Agreement. The Parties consent to the recordation of the Memorandum of Amended and Restated Disposition and Development Agreement in the Official Records against the Developer’s interest in the Property.

Section 11.18 Standard of Approval. Any consents or approvals required or permitted under this Agreement shall not be unreasonably withheld or made, except where it is specifically provided that a sole discretion standard applies.

Section 11.19 Effectiveness of Agreement. This Agreement is dated for convenience only and shall only become effective on the Effective Date.

Section 11.20 Interpretation. The use in this Agreement of the words “including”, “such as” or words of similar import when following any general term, statement or matter shall not be construed to limit such statement, term or matter to the specific statements, terms or matters, whether or not language of non-limitation, such as “without limitation” or “but not limited to”, or words of similar import, is used with reference thereto.

Section 11.21 No Gift or Dedication. Except as otherwise specified herein, this Agreement shall not be deemed to be a gift or dedication of any portion of the Property to the general public, for the general public, or for any public use or purpose whatsoever. Except as provided for the REA, the Developer shall have the right to prevent or prohibit the use of or access to any portion of the Project by any member of the general public.

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[SIGNATURES ON THE FOLLOWING PAGE]

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WHEREFORE, the Parties have executed this Agreement as of the date first above written.

Date:

City:

By:

Marianna Marysheva
Its: City Manager

APPROVED AS TO FORM
By:

Jason R. Alcala, City Attorney
DEVELOPER:

RED BEAR PROPERTY MANAGEMENT,
Inc., a California Corporation
By:

By:

Name:

Title:

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THIRD AMENDMENT TO

AGREEMENT FOR THE DEVELOPMENT OF THE RODEO GROUNDS

AND SUNKEN GARDEN AREA

AS A CIVIC CENTER AND PARKS AND RECREATION AREA
THIS THIRD AMENDMENT, made and entered into this 01 day of t7Mit 2022, by and between the City of Livermore, a municipal corporation ( hereinafter referred to as "City"), and the Livermore Stockmen' sRodeo Association, a California Corporation, hereinafter referred to as " Association").

RECITALS
On January 8, 1962, in exchange for due consideration, the City and Association entered into an agreement (" Original Agreement") to, among other things, transfer 33 acres of real property ("Civic Center Property") from the Association to the City to be developed as a civic center and a park and recreation facility.

The Association transferred the property to the City with the expectation that a portion of the Civic Center Property would be used as a memorial to the residents of Murray and Pleasanton Townships who served in the armed forces ofthe United States. As of January 2018, the City had not developed a park or the memorial on the Civic Center Property.

On January 30, 2018, the City and Association entered into a first amendment to the Original Agreement (" First Amendment"). The purpose of the First Amendment was:

A. To allow:

1. A portion of the Civic Center Property to be used for affordable housing purposes for seniors with a preference for veterans, in addition to public purposes;

2. The City, either itself or through a partnership or support of a third -party nonprofit agency, and/ or others, to develop affordable housing for seniors with a preference for veterans in that portion of the Civic Center Property;

3. The City to dispose of portions of the Civic Center Property to third -party nonprofit agencies for the development of affordable housing for seniors with a preference for veterans and not for private gain; and,
B: To require:

1. The City to grant a park easement to the Association in the downtown area for Stockmen' sPark and a Memorial subject to the terms and conditions set forth in the First Amendment and the boundaries of the easement set forth in Exhibit D to the First Amendment;

Page 1 of 4 ends

Livermore City CouncilOctober 24, 2022

Livermore City Council
October 24, 2022