20221206-cc-agenda-packet-with-presentation — Menlo Park City Council, December 6, 2022 (part 2 of 4)

Page F-1.135
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Mitigation Measures Action Timing Implementing
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• Treatment of Native American human remains consistent with state law and recommendations of the NAHCappointed Most Likely Descendant (“MLD”) and Modified ConnectMenlo EIR Mitigation Measure CULT-4.
• Laboratory methods, including artifact cataloging and special analyses.
• Thresholds for decision making if there is a conflict among tribal or archeological monitors regarding the
identification or treatment of TCRs. Specifically, if there is a conflict between the archeological monitor and the
tribal monitors, deference shall be given to the
preferences of the tribal monitors, subject to applicable law in the event of the discovery of Native American
human remains, provided that those preferences do not
require Project redesign or result in unreasonable
construction delay. If there is a conflict among the tribal monitors, the soil containing the potential TCR will be evaluated in accordance with applicable law and, if
appropriate, shall be stockpiled in accordance with the soil protocol in the ATMTPP while the disagreement is
being resolved.
• Provisions for reporting (e.g., Tribal Monitoring Closure Report) and artifact treatment in consultation with the Consulting Tribes in the event of significant finds.
• Pre-designated confidential reburial area(s) that will serve to reinter any Native American human remains
encountered during construction (excluding existing,
known reburial sites, which shall be preserved in place pursuant to Mitigation Measure TCR-1.1) with
appropriate level of privacy for visitation by the
Consulting Tribes, in an area not open to the public.
• Treatment protocols that detail the appropriate
procedures, methods, and reports to be completed if
significant archaeological or tribal cultural materials, Page F-1.136
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including Native American burials, are encountered. The archeological significance of a resource shall not be
determinative of whether the resource is a TCR, the level of impact to a TCR, or the significance of a TCR.
• Soil treatment protocols that preserve cultural soil onsite where feasible, including:
o Subject to the requirements of DTSC or other agencies with jurisdiction and the reasonable preferences of
the MLD in accordance with applicable law,
prohibiting the removal of cultural soil from the main
Project Site. The determination of which soils are
cultural soils shall be made by the tribal monitors.
o Requiring only clean, engineered fill to be used on the main Project Site. Under no circumstances should soil
from another culturally significant area be used on
this Project Site.
o The tribal monitors shall have the right to request
that any cultural soils excavated from native soil on
the main Project Site be relocated to an area on the
main Project Site located away from the
construction zone, where the tribal monitors shall
be given the opportunity during active construction
work hours to sift the cultural soil to identify and
remove any tribal cultural items and Native
American human remains, which tribal cultural
items and Native American human remains shall be
treated in accordance with the ATMTPP. Any tribal
cultural resources obtained from sifting shall be
reburied in the reburial area, subject to the
reasonable preferences of the MLD in accordance
with Public Resources Code Section 5097.98 and
other applicable law. Any tribal monitors
performing this work (1) must have the requisite
training or experience to do so, including training
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or experience with regard to work in
environmentally impacted soil (which shall include
at a minimum HAZWOPR certification), and (2)
shall be paid at the rate specified for this work in
the applicable Tribal Monitoring Agreement.

Following sifting and removal of TCRs, the soil can
be reused at the same or a different location within
the main Project Site.
• Specifications for archeological and tribal cultural
resources sensitivity training for construction workers and superintendents that meet the following standards:
o Occurs prior to the start of any ground-disturbing
activity or site work on the Project Site or for off-site improvements.
o Training shall be required for all construction
personnel participating in ground-disturbing
construction to alert them to the archaeological and
tribal cultural sensitivity of the area and provide
protocols to follow in the event of a discovery of
archaeological materials or tribal cultural resources.

Training shall be provided en masse to such personnel
at the start of construction of the Project, and training shall be repeated when new personnel participating in
ground-disturbing site work start work.
o Includes, for job site posting, a document (“ALERT
SHEET”) that summarizes the potential finds that
could be exposed, the protocols to be followed, and
the points of contact to alert in the event of a
discovery that is presented as part of the training.
o Requires the contractor to ensure that all workers
requiring training are in attendance.
o Requires training for all contractors and subcontractors that is documented for each permit Page F-1.138
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and/or phase of a permit that requires grounddisturbing activities onsite. o For work in the Core and the existing known reburial
area, additional worker training shall also be required for workers who will work on the surface or who will
drive directly over the Core or work in the existing
known reburial area.
• Work plan for the use of ground penetrating radar (GPR) and forensic canine detection (FCD) that meets the
following standards:
o Upon conclusion of building demolition and the
removal of surface improvements within the
Perimeter, the Project Sponsor shall retain a qualified team of FCD survey providers and a GPR operator to
perform a survey of the Perimeter before grading,
trenching, or other earthwork commences.
o A minimum of seven calendar days prior to the FCD or
GPR survey, the Project Sponsor or their designee
shall notify the Consulting Tribes of the schedule to
afford sufficient time to be present during the survey.

Should the Consulting Tribe(s) choose not to attend,
the FCD or GPR survey may continue as scheduled.

Where the FCD or GPR survey will occur within 100
feet of known burials or reburials (which know
reburials shall remain in place in accordance with
Mitigation Measure TCR-1.1), use of the FCD or GPR
and presence of tribal monitors shall be dictated by
the MLD for those prior discoveries.
o The results of the FCD and GPR surveys shall be
provided to the Consulting Tribes within fourteen
calendar days after completion of the survey reports.

Measures to protect TCRs identified as a result of the
surveys shall be implemented in accordance with the
Project mitigation measures and ATMTPP.

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o In the event of the discovery of Native American
human remains other than known reburials, the
procedures in Modified ConnectMenlo Mitigation
Measure CULT-4 will apply.
• Procedures for the event of an inadvertent discovery
during construction, which require the archaeological and tribal monitors to review, identify, and evaluate TCRs to determine if a discovery is a historical resource and/or unique archaeological resource, or a TCR, under CEQA.

These procedures shall include, at a minimum:
o Criteria for identifying cultural soils.
o Impose a stop work radius of 100 feet around the
discovery; work can continue outside of the stop-work
radius while the discovery is being addressed. If the
archaeological and tribal monitors agree that the find
does not constitute a TCR, work can resume
immediately, and no notifications are required.
o Notify the City, Consulting Tribes, and Project Sponsor within 24 hours of the discovery.
o Complete a discovery form to document the location,
nature, and condition of the discovery.
o Consult on the discovery to determine appropriate
treatment, which may include any combination of
avoidance, preservation in place, rapid recovery and
reburial, and/or documentation. In no circumstance
other than the express written recommendation of the
MLD shall Native American human remains be
removed from the Project Site. Curation and data
recovery shall not be allowed, unless curation or data
recovery is (i) in compliance with the
recommendation of the MLD for Native American
human remains in accordance with Public Resources
Code Section 5097.98 and other applicable law or, (ii)
agreed upon by the tribal monitors per the protocols
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in the ATMTPP for TCRs that are not Native American
human remains.

Project Mitigation Measure TCR-1.3: Post-Construction
Preservation in Place of Tribal Cultural Resources. Prior to the issuance of the first certificate of occupancy for any occupied building within the Campus District, the Project Sponsor shall record deed restrictions over the Core, confidential locations of existing known reburials, and the pre-designated reburial area (“Project Reburial Area”) to restrict development or other activities identified in the deed restrictions that would disturb TCRs or Native American human remains in the future.

The area included in the deed restrictions shall be described by a licensed surveyor prior to recording. Because
archaeological and tribal cultural resource site locations are restricted from public distribution, the deed restrictions shall cite an “environmentally sensitive area.” A copy of the recorded deed restrictions that include the Core and any predesignated reburial site shall be provided to the City for retention in a confidential project file. A copy of the deed restrictions shall be provided to the Northwest Information Center of the California Historical Resources Information System.

The restriction on the deed for the Core and Project Reburial Area shall prohibit the following activities directly on the Core or Project Reburial Area (excluding activities in cantilevered or spanned structural elements) after completion of
construction of the Proposed Project, subject to applicable building code and life safety access requirements and
necessary facilities maintenance, service, and repairs:
• Active recreational activities and structures, including, but not limited to, sports, field games, running, biking, and play equipment.
• Domesticated animals other than security/service animals. • Vehicles.

Post-construction
preservation and
recording of deed
restrictions over
the Core, known
reburials, and
Project Reburial
Area.

Prior to the issuance
of the first
certificate of
occupancy for any
occupied building
within the Campus
District
Project Sponsor/
licensed surveyor
CDD
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• Surface penetrations below the upper geogrid.
• Altering the surface or general topography of the Core or Project Reburial Area except for maintenance of the
engineered soil cap, landscaping, facilities, circulation, and utilities included within the cap.
• In the unlikely event that any activity needs to occur below the area of the upper geogrid in the event of an emergency, the Consulting Tribes will be immediately notified and given a reasonable opportunity (consistent with the nature of the emergency) to have a tribal monitor present.

Project Mitigation Measure TCR-1.4: Project Reburial Area Access. Within 30 days after the recording of the deed
restrictions over the dedicated reburial area(s), the Project Proponent shall extend a written offer to the Consulting Tribes to execute a tribal access agreement to allow for permitted access to the Project Reburial Area for the purposes of tribal visitation, subject to the parameters below. The Project Proponent shall provide a copy of the offer letter and if accepted by the Consulting Tribe(s), the executed
agreement(s), to the City for retention in a confidential Project file. This mitigation measures shall be considered satisfied upon delivery of the offer letter to the Consulting Tribes, even if the Consulting Tribe(s) declined to enter into the agreement.

The owners’ association shall manage the Project Reburial Area in accordance with the terms and conditions of the deed restrictions, access agreements, Project mitigation measures, and Project conditions of approval, subject to applicable building code and life safety access requirements and
necessary facilities maintenance, service, and repairs.

Access to the reburial area established for the Project will be controlled. The following conditions apply:
• Access to the Project Reburial Area will be available following completion of construction of the Proposed
Project, including the Project Reburial Area, subject to Provide a written
offer to execute a
tribal access
agreement for
permitted access
to the Project
Reburial Area.

Within 30 days after
the recording of the
deed restrictions
Following
completion of
construction and
ongoing during
operation of the
Project
Project Sponsor/
owner’s
association
/consulting
tribe(s)
CDD
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notification and access requirements to be specified in an access agreement.
• Visitation shall comply with all rules applicable to publicly accessible open space within the Proposed Project except as otherwise specified in an access agreement.
• Visitation shall not obstruct or otherwise interfere with the passage of vehicles or the operation of the facility. • Parking shall be limited to public parking spaces.
• Visitation shall not include activities or uses that conflict with the deed restriction or reasonable preferences of the Most Likely Descendent; provided that the Project
Proponent shall work in good faith to ensure that all
Consulting Tribes are provided access to the Project
Reburial Area in accordance with the terms of the access agreement.
• Visitation shall not present a risk to human life or safety. • Visitation shall not include abandonment of materials or objects other than ceremonial, religious, or funerary
offerings specified in an access agreement.
• Visitation shall be subject to restriction as necessary to respond to any security threat, pandemic or similar health risk, or emergency condition. Visitation shall not be
unreasonably restricted.

IMPACT BEING ADDRESSED: Human Remains. The Proposed Project could disturb human remains, including those interred outside of dedicated cemeteries. (Impact TCR-2)
Project Mitigation Measure TCR-2.1. Avoid and Preserve in Place Known Reburials. The locations of known previous
reburials of Native American human remains shall be
restricted from future ground disturbance, as required by Mitigation Measure TCR-1.3.

Avoid and
preserve in place
known reburials.

See above
(Mitigation Measure
TCR-1.3).

See above
(Mitigation
Measure TCR1.3).

See above
(Mitigation
Measure TCR-1.3).

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Mitigation Measure CULT-4: (Modified ConnectMenlo EIR).

Comply with State Regulations Regarding the Discovery of Human Remains at the Project Site. Procedures of conduct following the discovery of human remains citywide have been mandated by Health and Safety Code Section 7050.5, Public Resources Code Section 5097.98, and the California Code of Regulations Section 15064.5(e) (CEQA). According to the provisions in CEQA, if human remains are encountered at the site, all work in the immediate vicinity of the discovery shall cease and necessary steps to ensure the integrity of the immediate area shall be taken. The San Mateo County Coroner shall be notified immediately. The coroner shall then
determine whether the remains are Native American. If the coroner determines the remains are Native American, the coroner shall notify the NAHC within 24 hours, which will, in turn, notify the person the NAHC identifies as the Most Likely Descendant (MLD) in connection with any human remains.

Further actions shall be determined, in part, by the desires of the MLD. The Project Sponsor, the Project archaeologist, and the MLD shall make all reasonable efforts to develop an agreement for the treatment, with appropriate dignity, of human remains and associated or unassociated funerary
objects, including those associated with known and unknown Native American burial locations (CEQA Guidelines Section 15064.5[d]). The agreement should address appropriate
actions for when remains are discovered, including
excavation, removal, recordation, analysis, custodianship, and final disposition of the remains and associated or unassociated funerary objects. The MLD will have 48 hours to make
recommendations regarding the disposition of the remains following notification from the NAHC of the discovery. If the MLD does not make recommendations within 48 hours, or the owner does not accept the recommendation of the MLD in
accordance with Public Resources Code 5097.98(e), the owner Comply with state
regulations
regarding the
discovery of
human remains at
the Project Site.

Initiated after a find
is made during
construction, with
regularly scheduled
site inspections
thereafter
Project Sponsor/
San Mateo County
Coroner
CDD
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shall, with appropriate dignity, reinter the remains in an area of the property secure from further disturbance. Alternatively, if the owner does not accept the MLD’s recommendations, the owner or the descendent may request mediation by the NAHC.

Page F-1.145
RESOLUTION NO. XXXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENLO PARK

APPROVING AN AMENDMENT TO THE CIRCULATION MAP OF THE MENLO

PARK GENERAL PLAN
WHEREAS, in 2016, the City of Menlo Park (“City”) updated its General Plan when it adopted ConnectMenlo, which contains the City’s new Land Use Element and Circulation Element; and WHEREAS, when the City adopted the ConnectMenlo General Plan, the City also certified an Environmental Impact Report providing a program-level analysis of the development potential envisioned for the entire City, including the increased development potential in the Bayfront Area; and
WHEREAS, the City received an application requesting to redevelop an approximately 59-acre industrial site (the “Main Project Site”) plus three parcels (within two sites) west of Willow Road (the “Hamilton Parcels,” and, collectively with the Main Project Site, the “Project Site”) as a multi-phase, mixed-use development consisting of up to 1.6 million square feet of office and accessory uses (a maximum of 1,250,000 square feet for office use and the balance for accessory uses), up to 1,730 multifamily dwelling units, up to 200,000 square feet of retail sues, an up to 193-room hotel, and associated open space and infrastructure (the “Project”); and WHEREAS, an amendment to the General Plan Circulation Map is necessary to modify the circulation plan with regard to the locations for new street connections to the surrounding roadway network, as well as the locations of public rights-of-way, paseos, and a proposed multiuse pathway within the Main Project Site; and WHEREAS, the proposed project includes a variant in the event that approval by outside agencies with jurisdiction (Caltrans)and acquisition of necessary real property rights are is not obtained for the Hamilton Avenue realignment and therefore, an alternate General Plan Circulation Map amendment is necessary; and
WHEREAS, the proposed amendments to the General Plan Circulation Map areis consistent with the General Plan goals, policies, and programs, including Policy LU-1.2 which states, “Integrate regional land use planning efforts with development of an expanded transportation network focusing on mass transit rather than freeways, and encourage development that supports multimodal transportation. The proposed amendments areis also consistent with the policies under Goal CIRC-2, which states, “Increase accessibility for and use of streets by pedestrian, bicyclists, and transit riders,” and Goal CIRC-4, which states, “Improve Menlo Park’s overall health, wellness, and quality of life through transportation enhancements.” The new roadway connections to the surrounding roadway network and the proposed paseos and multiuse pathways will provide new routes for bicyclists and pedestrians through the Main Project Site, encouraging the use of multimodal transportation. The multi-use pathways and paseos will also increase accessibility and use of the streets by pedestrians and bicycles, and the proposed roundabout connection will provide an additional route to the Main Project Site for bicyclists, pedestrians, and vehicles; and
WHEREAS, all required public notices and public hearings were duly given and held according to law; and
ATTACHMENT C Page F-1.146
WHEREAS, an Environmental Impact Report (EIR) was prepared for the Project (SCH:
2019090428), including an amendment to the General Plan Circulation Map and the Project Variants, and certified by the City Council on _______________, 2022 in accordance with the provisions of the California Environmental Quality Act (CEQA) and the CEQA Guidelines.

Findings and a statement of overriding considerations were adopted by the City Council on _______________, 2022, by Resolution No. ______, and are incorporated herein by this reference; and
WHEREAS, the analysis in the Project EIR tiered from the ConnectMenlo Final EIR as appropriate and as further described in each environmental topic section in the EIR; and

WHEREAS, after notice having been lawfully given, a public hearing was scheduled and held before the Planning Commission of the City of Menlo Park on October 24, 2022 and continued to November 3, 2022, to review and consider the Project, including the proposed amendments to the General Plan Circulation Map, whereat all persons interested therein might appear and be heard; and
WHEREAS, the Planning Commission of the City of Menlo Park, having fully reviewed, considered, and evaluated all the testimony and evidence submitted in this matter, voted affirmatively to recommend to the City Council of the City of Menlo Park to approve the amendment to the General Plan Circulation Map; and
WHEREAS, after notice having been lawfully given, a public hearing was scheduled and held before the City Council of the City of Menlo Park on _______________, 2022, to review and consider the Project, including the proposed amendments to the General Plan Circulation Map, whereat all persons interested therein might appear and be heard; and WHEREAS, the City Council of the City of Menlo Park having fully reviewed, considered, and evaluated all the testimony and evidence submitted in this matter, including the recommendation of the Planning Commission, voted affirmatively to approve the amendments to the General Plan Circulation Map.

NOW, THEREFORE, BE IT RESOLVED that the City Council finds the foregoing recitals are true and correct, and they are hereby incorporated by reference into this Resolution.

BE IT FURTHER RESOLVED that the City Council of the City of Menlo Park hereby approves the amendments to the General Plan Circulation Map, as depicted by and attached hereto as Exhibit A and in the event that the Applicant does not receive approval of outside agencies for the Hamilton Avenue realignment, then the General Plan Circulation Map depicted in Exhibit B shall become effective. Exhibits A and B are, and incorporated herein by this reference.

I, Judi A. Herren, City Clerk of Menlo Park, do hereby certify that the above and foregoing City Council Resolution was duly and regularly passed and adopted at a meeting by said City Council on the fifteenth sixth day of NovemberDecember, 2022, by the following votes:

AYES:

NOES:

ABSENT:

Page F-1.147
ABSTAIN:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of said City on this __ day of NovemberDecember, 2022.

Judi A. Herren, City Clerk
Exhibits:

A. General Plan circulation map
A.B. General Plan circulation map, no Hamilton Avenue realignment Page F-1.148
Main Street
Main Street
North Loop Road
Willow Road East Loop Road
Adams Court
Hamilton Avenue
Ivy Drive
Park Street
West Street Main Street
O’Brien Drive
Main Street
Center Street
East Street
SamTrans Corridor
LEGEND
BoulevardMain StreetAvenue - Mixed UseMixed Use CollectorNeighborhood CollectorLocal AccessMulti-use PathwayMulti-use Pathway - FuturePaseo

WILLOW VILLAGE
Menlo Park, CA
Peninsula Innovation Partners
0 100 200 300 500 700'1" = 100' at 24" x 36"
2 min. Walk 1/2 ac
1/8 ac
November 23, 2022
General Plan Circulation Map

EXHIBIT A
Page F-1.149
Main Street
North Loop Road
East Loop Road Willow Road
Adams Court
Hamilton Avenue
Ivy Drive
Park Street
West Street Main Street
O’Brien Drive
Center Street
East Street
SamTrans Corridor
LEGEND
BoulevardMain StreetAvenue - Mixed UseMixed Use CollectorNeighborhood CollectorLocal AccessMulti-use PathwayMulti-use Pathway - FuturePaseo

WILLOW VILLAGE
Menlo Park, CA
Peninsula Innovation Partners
0 100 200 300 500 700'1" = 100' at 24" x 36"
2 min. Walk 1/2 ac
1/8 ac
November 23, 2022
General Plan Circulation Map: No Hamilton Avenue Realignment /PUF
5IFDJSDVMBUJPODPOGJHVSBUJPOEFQJDUFEPOUIJT(FOFSBM 1MBO$JSDVMBUJPO.BQ/P )BNJMUPO 3FBMJHONFOU7BSJBOUTIBMMBQQMZJOTUFBEPGUIFDPOGJHVSBUJPOEFQJDUFEPOUIF(FOFSBM1MBO$JSDVMBUJPO.BQJOUIFFWFOUUIBUBMMBQQMJDBCMF BHFODJFTXJUIKVSJTEJDUJPOPWFSUIFQSPQPTFESFBMJHONFOUPGUIFJOUFSTFDUJPOPG)BNJMUPO"WFOVFBOE8JMMPX 3PBEIBWFOPUJTTVFEBMMOFDFTTBSZBQQSPWBMTPSJGUIF QSPQFSUZPXOFSJTVOBCMFUPPCUBJOTVGGJDJFOUSFBMQSPQFSUZSJHIUT GPSUIFSFBMJHONFOU

EXHIBIT B
Page F-1.150
RESOLUTION NO. XXXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENLO PARK APPROVING FINDINGS AND CONDITIONS FOR AN “A” VESTING

TENTATIVE PARCEL MAP FOR THE MAIN PROJECT SITE FOR THE WILLOW VILLAGE MASTER PLAN PROJECT CONSISTING OF UP TO 1.6 MILLION SQUARE FEET OF OFFICE AND ACCESSORY USES, UP TO 1,730
MULTIFAMILY DWELLING UNITS, UP TO 200,000 SQUARE FEET OF RETAIL USES, AN UP TO 193 ROOM HOTEL, AND ASSOCIATED OPEN SPACE AND

INFRASTRUCTURE
WHEREAS, the City received an application requesting to redevelop an approximately 59-acre industrial site (the “main Project Site”) plus three parcels (within two sites) west of Willow Road (the Hamilton Parcels, and collectively with the main Project Site, the “Project Site”) as a multiphase, mixed-use development consisting of up to 1.6 million square feet of office and accessory uses (a maximum of 1,250,000 square feet for office uses and the balance for accessory uses), up to 1,730 multifamily dwelling units, up to 200,000 square feet of retail, an up to 193-room hotel, and associated open space and infrastructure (the “Project”); and WHEREAS, an “A” Vesting Tentative Parcel Map creating legal non-buildable parcels for financing and conveyancing purposes and the construction of project-serving infrastructure improvements is proposed for the main Project Site; and WHEREAS, all required public notices and public hearings were duly given and held according to law; and
WHEREAS, an Environmental Impact Report (EIR) was prepared for the Project and certified by the City Council on _______________, 2022 (SCH: 2019090428), in accordance with the provisions of the California Environmental Quality Act (CEQA) and the CEQA Guidelines.

Findings and a statement of overriding considerations were adopted by the City Council on _______________, 2022, by Resolution No. ______, and are incorporated herein by this reference; and
WHEREAS, after notice having been lawfully given, a public hearing was scheduled and held before the Planning Commission of the City of Menlo Park (the “Planning Commission”) on October 24, 2022 and continued to November 3, 2022, to review and consider the Project, including the “A” Vesting Tentative Parcel Map for the main Project Site, whereat all persons interested therein might appear and be heard; and
WHEREAS, the Planning Commission, having fully reviewed, considered, and evaluated all the testimony and evidence submitted in this matter, voted affirmatively to recommend to the City Council of the City of Menlo Park (the “City Council”) to approve the “A” Vesting Tentative Parcel Map for the main Project Site; and
WHEREAS, after notice having been lawfully given, a public hearing was scheduled and held before the City Council on _______________, 2022, to review and consider the Project, including the “A” Vesting Tentative Parcel Map for the main Project Site, whereat all persons interested therein might appear and be heard; and
ATTACHMENT D Page F-1.151
WHEREAS, the City Council, having fully reviewed, considered, and evaluated all the testimony and evidence submitted in this matter, voted affirmatively to approve the “A” Vesting Tentative Parcel Map for the main Project Site.

NOW, THEREFORE, BE IT RESOLVED that the City Council finds the foregoing recitals are true and correct, and they are hereby incorporated by reference into this Resolution.

BE IT FURTHER RESOLVED that the City Council of the City of Menlo Park hereby approves the “A” Vesting Tentative Parcel Map for the main Project Site subject to conditions (Exhibit A), and subject to final approval of the rezoning for the Project. This approval is pursuant to the Subdivision Map Act and City of Menlo Park Municipal Code Section 15.20.050:

1. The proposed “A” Vesting Tentative Parcel Map for the main Project Site is technically correct and in compliance with all applicable State regulations, City General Plan, Zoning and Subdivision Ordinances, and the State Subdivision Map Act.

2. The proposed “A” Vesting Tentative Parcel Map for the main Project Site, including the contemplated design and improvements, is consistent with applicable General Plan goals and policies, in particular the goals for the Bayfront Area set forth in the General Plan Update (“ConnectMenlo”). The Project is consistent with the land use designations described in the General Plan and would be consistent with City General Plan policies as well as City Zoning Ordinance requirements for master-planned projects at the proposed density and for the types of use.

3. The Project Site is physically suitable for the proposed master-planned development, including the proposed density of development, and the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage or substantially injure fish or wildlife or their habitat. The Project is consistent with the density and uses for the site set forth in the General Plan. The Project Site is in a heavily urbanized area of the City currently occupied by developed/landscaped areas that include various urban uses and does not include any aquatic habitat. The Project would not cause substantial environmental damage to the already disturbed Project Site and would not substantially injure the limited wildlife that access the site or their habitat.

4. The design of the subdivision or types of improvements is not likely to cause serious public health or safety problems. The Project would comply with General Plan goals and policies, City Zoning and Subdivision Ordinances, and other applicable regulations designed to prevent serious health or safety problems.

5. The design of the subdivision or the type of improvements does not conflict with easements, acquired by the public at large, for access through or use of property within the proposed subdivision because alternate easements for access or use will be provided that are substantially equivalent to ones previously acquired by the public.

6. The Project is not subject to flood and inundation hazards and is not located within a slide area. The Project Site is located within the 100-year flood hazard zone. However, the contemplated Project design and improvements will be elevated so as to mitigate flood hazards, and the Project would comply with applicable requirements designed to mitigate flood hazards and address future sea level rise.

Page F-1.152
I, Judi A. Herren, City Clerk of Menlo Park, do hereby certify that the above and foregoing City Council Resolution was duly and regularly passed and adopted at a meeting by said City Council on the fifteenth sixth day of NovemberDecember, 2022, by the following votes:

AYES:

NOES:

ABSENT:

ABSTAIN:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of said City on this __ day of NovemberdDecember, 2022.

Judi A. Herren, City Clerk
Exhibits:

A. Draft main project site vesting tentative map conditions

Page F-1.153
Willow Village “A” Map
Conditions of Approval

1. As used in these Conditions of Approval:
a. “Applicant” shall mean Peninsula Innovation Partners, LLC. b. “Property Owner(s)” shall mean Peninsula Innovation Partners and its successors in interest to all or any part of the Project site. c. “Project” shall mean the development of approximately 1.8 million sf of nonresidential uses, composed of up to 1.6 million sf of office and accessory uses in the Campus District (consisting of up to 1.25 million sf of office space, with the balance of space for accessory use [up to 350,000 sf if the office sf is maximized], in multiple buildings) and up to approximately 200,000 sf of commercial/retail space; up to approximately 1,730 multi-family residential units; an up to 193-room hotel; and up to approximately 20 acres of open space at full buildout, including approximately 8 acres of publicly accessible parks, paths, and trails.

2. The Applicant shall comply with the applicable mitigation measures identified in Mitigation Monitoring and Reporting Program for the Project.

3. Prior to Parcel Map approval, Applicant shall pay all Public Works fees. Refer to City of Menlo Park Master Fee Schedule.

4. Applicant shall complete all of the following Temporary Improvements prior to removal of existing distribution improvements:
a. Domestic Water lines – The existing water system within the Willow Village main Project Site (“Main Project Site”) is comprised of 10” diameter mains with two points of connection off Willow Road and one point of connection each off Adams Court and O’Brien Drive. Prior to the removal of any of the above-described water distribution lines that provide service to off-site parcels, the Applicant shall design and construct a temporary 2,100 LF 16” diameter water main in a general alignment from Adams Court traversing north along the east side of Main Project Site, then along the northern boundary, then south generally aligned between existing Buildings MPK 47 and 48 to connect to the existing 10” main within existing Hamilton Avenue. Depending to the final alignment, sections of this distribution pipe, when designed and constructed to minimum City specifications, located within City public rights-of-way and City easements, and consistent with the Willow Village Hydraulic Evaluation shall be accepted as public improvements and as operatable components of the permanent domestic water distribution system.

Prior to the demolition of the existing domestic distribution water lines through the main Project site that serve development east of the Main Project site, Applicant shall design and construct a second temporary 12-inch domestic water EXHIBIT A Page F-1.154
distribution pipeline generally parallel to the southern boundary of the Main Project Site, providing connectivity from Willow Road to O’Brien Drive near the southeasterly corner of the Main Project Site. This pipeline will connect to an existing pipeline in O’Brien and a 10” pipe entering the site along the southern boundary of the Main Project Site.

In the event any of the above temporary improvements are designed and constructed to the minimum specifications of the City, the City shall accept the temporary improvements within public rights-of-way and City easements as permanent public improvements.

All Domestic water distribution improvements shall conform to the recommendations contained within the West Yost Willow Village Hydraulic Evaluation dated February 3, 2022.
b. Natural Gas Line – The Main Project Site contains an existing primary gas line that crosses through the Main Project Site from Willow Road to the east along Hamilton Avenue and Hamilton Court and continues to the east providing service to the properties east of the Main Project Site. Prior to the demolition and removal of said existing gas line, the Applicant shall construct and make operational a replacement gas main, subject to the approval of PG&E.

Documentation of PG&E approval shall be provided to the Engineering Division prior to demolition of said existing gas line.

5. Demolition of Improvements
Applicant shall prepare and submit Demolition Plans to the City prior to the approval of the Parcel Map; however, in the event that Applicant files multiple Parcel Maps, the Demolition Plans, at a minimum, shall depict the demolition of all existing improvements within the boundaries of each Parcel Map. Prior to recordation of each Parcel Map, all existing buildings within the boundaries of that Parcel Map shall be removed unless a building is completely within the confines of a created parcel boundary and is retained for temporary use during the construction of the project improvements. In the event any building is retained for temporary purposes, the Applicant shall provide utility services and vehicular access subject to the approval of the Public Works Director. Additionally, surety for the demolition of said building(s), in amount agreed upon by the Public Works Director shall be provided prior to recordation of the Parcel Map which boundaries include said building.

6. Site Improvement Work
a. Department of Toxic Substance Control (DTSC) Approval: Prior to the commencement of ground disturbance activities within the Residential/Shopping District, the Property Owner shall have received approval of the Willow Village Removal Action Work Plan (RAW), Site Management Plan (SMP) and Health and Safety Plan (HSP) for the Residential/Shopping District from DTSC. Prior to Page F-1.155
commencement of ground disturbance activities within each the Campus District and the Town Square District, the Property Owner shall have received DTSC approval of the SMP and HSP for each the Campus District and the Town Square District, as applicable. Documentation of compliance shall be provided to the Building, Planning, and Engineering Divisions prior to commencement of ground disturbance activities.
b. Site Improvement Work
i. Prior to the recordation of each Parcel Map, Applicant shall prepare and submit for City approval: Improvement Plans for all Main Project Siteserving improvements within that Parcel Map, which shall include Mass Grading, Utilities, On-site Circulation Improvements consisting of Roadways and Intersection Improvements and Public Realm Landscaping and Street Furnishings. Submittal of a Parcel Map is not a prerequisite for obtaining City approval of any of the above-mentioned plans.
ii. Construction Agreement: In the event construction of site improvements commences in advance of approval of a Parcel Map that would require a Subdivision Improvement Agreement, prior to commencing construction of the site improvements, the Applicant shall enter into a Construction Agreement with the City. Approval shall not be unreasonably withheld or conditioned so long as the following is provided: adequate security in favor of the City for completion of construction of the site improvements, provisions for dedicating improvements to the City upon completion, and permits for the replacement with a Subdivision Improvement Agreement. iii. Imported Fill: The imported fill must meet the City of Menlo Park’s requirements. Documentation demonstrating that the fill meets the City’s requirements must be submitted to and approved by the Building Official or their designee prior to fill being brought on site. Fill requirements are outlined in CBC appendix J section J107 as adopted in MPMC Section

12.06.020.
c. Willow Road Improvements
i. The Applicant shall coordinate with City staff on the design of the Willow Road Improvements prior to submittal of the first Parcel Map, and .

Applicant shall submit Willow Road Improvement Plans to the City for approval no later than concurrent with the submittal of the first Parcel Map. The Applicant shall coordinate with City staff on the design of the Willow Road Improvements prior to submittal of the first Parcel Map. The Willow Road Improvement Plans shall be comprised of the below listed “Willow Road Improvements” within Caltrans’ right-of-way.

Improvement Plans shall include surface improvements, traffic signals, bicycle lanes, utility improvements, striping and signage improvements and other frontage improvements addressing both sides of Willow Road.

Page F-1.156
The City shall cooperate with Applicant in its efforts to obtain encroachment permits and other applicable approvals from Caltrans.

1. Realigned Willow Road/Hamilton Avenue intersection

2. New Willow Road/Park Street intersection

3. Class IV bicycle lanes on Willow Road

4. Bicycle and pedestrian connections across Willow Road (e.g. turning movements for bicyclists, crosswalks, pedestrian refuges)

3.5. Wayfinding for bicyclists and pedestrians (e.g. signage, bicycle signals) to the Main Project Site
ii. Prior to City authorization of Applicant submittal of the Willow Road Improvement Plans to Caltrans, City staff will provide an update on the design of the improvements to the City Council to allow for City Council input on the design of the Willow Road Improvements for consideration by Caltrans. The Applicant shall provide the City 30-day notice of the submittal of Willow Improvement Plans and the City staff shall endeavor to provide such update no later than 60 days following Applicant’s submittal to the City of the proposed Willow Road Improvement Plans. iii. Prior to the issuance of the first permit for the Site Improvement Work, the Applicant shall submit Willow Road Improvement Plans to Caltrans and apply for encroachment permit approvals no later than 30 days after City reviews and authorizes in writing the submittal to Caltrans.; iv. Applicant shall submit documentation of Caltrans’ approval of the encroachment permit prior to the City approval of said Willow Road Improvement Plans.
v. Applicant shall complete Willow Road Improvements prior to the certificate of occupancy for the first building on the Main Project Site. vi. In the event construction of the Willow Road Improvements is delayed due to circumstances outside of the Applicant’s reasonable control, the Public Works Director may grant an extension based on substantial evidence from the Applicant that the delay is based on external circumstances, and the Applicant demonstrates a good faith effort to complete the improvements. Any extension would be based on an agreed upon timeline by the Public Works Director and the Applicant. d. SF PUC Approvals: Prior to issuance of the building permit for the first building on the Main Project Site, the Applicant shall obtain San Francisco Public Utilities Commission (“SF PUC”) approval for a lease, license, easement agreement, or other authorization to permit the construction and operation of the following proposed public improvements concurrently with separate or combined applications. In pursuit of the necessary approvals the City shall be the applicant for public improvements that require approval and granting a lease, license, easement agreement, or other authorization from SF PUC.

Page F-1.157
i. Main Street/O’Brien Drive roundabout intersection improvements within the SF PUC right of way.
ii. Installation of a 48-inch storm drain within the Menlo Park Storm Drain Channel and filling of said channel partially located within SF PUC rightof-way. e. Prior to the construction of the O’Brien Drive/Main Street roundabout intersection improvements, Applicant shall acquire an easement for public right-of-way purposes from properties affected by the alignment of the proposed improvement.
f. Prior to certificate of occupancy for the first building on the Main Project Site, the applicant shall complete the Willow Road and SF PUC Improvements to satisfaction of the City Engineer and SF PUC.
g. In the event construction of the SF PUC Improvements is delayed due to circumstance outside of the Applicant’s reasonable control, the Public Works Director may grant an extension based on substantial evidence from the Applicant that the delay is based on external circumstances, and the Applicant demonstrates a good faith effort to complete the improvements. Any extension would be based on an agreed upon timeline by the Public Works Director and the Applicant.

7. Prior to Parcel Map approval or the commencement of soil disturbing activities, whichever occurs first, Applicant shall prepare and submit plans for soil disturbance area for: 1) construction safety fences around the periphery of the construction area, 2) dust control, 3) air pollution control, 4) erosion and sedimentation control, 5) tree protection fencing, 6) traffic control plans shall provide accommodation for safe pedestrian and bicycle travel through the construction zone and 7) construction vehicle parking. The plans shall be subject to review and approval by the Building, Engineering, and Planning Divisions. The fences and erosion and sedimentation control measures shall be installed according to the approved plan prior to commencing soil disturbing activities.

8. Prior to each Parcel Map approval, the Applicant shall prepare and submit Improvement Plans for the applicable Parcel Map to the Engineering, Utilities, and Planning Divisions for approval. Improvement Plans are required for all project serving off-site infrastructure improvements, including Willow Road Improvements, and shall incorporate the following:
a. Improvement Plans shall include, at minimum, specifications, engineer’s cost estimates, and all engineering calculations necessary to substantiate the design of the following improvements: proposed roadways, drainage improvements, utilities, traffic control devices, required retaining walls, sanitary sewers, storm water conveyance improvements, pump/lift stations, street lightings, landscaping and other project improvements. All public improvements shall be designed and constructed to the satisfaction of the Engineering Division. Submittal of a Parcel Page F-1.158
Map is not a prerequisite of obtaining City approval of the any of the abovementioned plans. Improvement Plans shall also provide the following:
• Existing Topography (NAVD 88’)
• Demolition Plan
• Site Plan (including easement dedications, if applicable) • Construction Parking Plan
• Grading and Drainage Plan
• Utility Plan
• Off-site Improvement Plan
• Erosion Control Plan / Tree Protection Plan
• Planting and Irrigation Plan
• Construction Details (including references to City Standards) i. Grading and drainage plans shall demonstrate how post-construction runoff conveyed into storm drains shall not exceed existing site runoff levels. A Hydrology Report will be required to the satisfaction of the Engineering Division.
ii. Landscape Screening: Landscaping shall screen all public utility equipment that is installed within the public rights-of-way and cannot be placed underground, subject, however, to the requirements of the Menlo Park Fire Protection District, the West Bay Sanitary District, PG&E, and any other applicable agencies regarding utility clearances and screening. The Improvement Plans shall depict new public utility installation’s exact locations of any meters, back flow prevention devices, transformers, junction boxes, relay boxes and other equipment boxes installed within the public right of way or public easement area.

The Improvement Plans shall also depict landscape screening. The screening shall be compatible and unobtrusive and subject to the review and approval of the Planning Division which approval will be required prior to the City’s approval of the Improvement Plans.
iii. Public Realm Landscape Plans: Improvement Plans shall include detailed landscape plans for the public realm areas of the Main Project Site, as shown on Exhibit G5.18 Conceptual Public Realm Tree Planting Plan of the Willow Village Master Plan including the size, species, and location including an irrigation plans for review and approval by the Planning, Engineering, Transportation Divisions and City Arborist. The Landscape Plan sheets shall include public realm onsite landscaping (including heritage tree replacements if applicable) for the respective area that the plans address. All Landscape Plans shall include measures addressing adequate sight distance visibility, screening for above grade utilities within the rights-of-way with labels Page F-1.159
for the utility boxes sizes and heights, and documentation confirming compliance with the Water Efficient Landscaping Ordinance (Municipal Code Chapter 12.44) subject to review and approval by the Engineering Division. The Landscape Plans shall substantially comply with Sheets G5.18, G5.19, and G5.20 in the masterplan plan set.

Heritage tree replacements (in accordance with section 10.7 of the CDP) shall be identified on the Landscape Plans and subject to review and approval by the City Arborist.
iv. Truck Route Plan: The Applicant shall submit a truck route plan concurrent with the Improvement Plan set approval for the scope of construction as evidenced by said improvement plans and based on the City’s Municipal Code requirements, for review and approval by the Transportation Division. The Applicant shall also submit a permit application and pay applicable fees relating to the truck route plan, to the satisfaction of the Public Works Director or designee.
v. Construction and Demolition Debris: As applicable, the Applicant shall comply with the requirements of Chapter 12.48 (Salvaging and Recycling of Construction and Demolition Debris) of the City of Menlo Park Municipal Code, subject to review and approval by the Building Official or designee.
vi. Erosion and Sedimentation Control: Concurrent with Improvement Plan submittal the Applicant shall submit a plan for construction of safety fences around the periphery of the construction area and a demolition Erosion and Sedimentation Control Plan. The fences and erosion and sedimentation control measures shall be installed according to the plan prior to commencing construction. The plans shall be reviewed and approved by the Engineering, Building, and Planning Divisions prior to issuance of a demolition permit.
vii. Tree Protection: Trees in the vicinity of the construction project that are to remain shall be protected pursuant to the Heritage Tree Ordinance section 13.24.030.
i. The Project Arborist shall provide a tree protection verification letter to the City Arborist prior to the start of demolition/construction activities. The tree protection verification letter shall include photos of the installed tree protection measures as specified by the Project Arborist and identify that the Arborist will conduct monthly
inspections of the protective measures. During the
monthly inspection the Arborist shall assess and monitor Page F-1.160
the effectiveness of the Tree Protection Plan and provide recommendations for additional care or treatment. The
Project Arborist shall provide a monthly inspection report to the City Arborist and Planning Division to document
compliance and for the City Arborist review and input on any recommendations for additional care.
b. Green Infrastructure: The Improvement Plans shall include Green Infrastructure in the form of a stormwater treatment area to treat runoff from the public and private street rights-of-way. The treatment area shall be located within the landscape area between the curb and sidewalk. Sizing and design shall conform to San Mateo Countywide Water Pollution Prevention Program design templates and technical guidance and be approved by the Engineering Division.
c. Water Efficient Landscape Ordinance: The Applicant shall provide documentation indicating the amount of irrigated landscaping within the Improvement Plans for the area of Parcel Map within the Main Project Site. If the project proposes more than 500 square feet of irrigated landscaping, it is subject to the City's Water Efficient Landscaping Ordinance (Municipal Code Chapter 12.44). Submittal of a detailed landscape plan would be required concurrently with the submittal of Improvement Plan Set subject to review and approval by the Engineering Division.

9. Prior to approval of the Improvements Plans, all potential utility conflicts shall be potholed by Applicant with actual depths documented on the Improvement Plans submitted for City review and approval.

10. For areas that have undergone site clearing and have remaining exposed soil by the start of the wet season (October 1 through April 30), the Applicant shall implement a winterization program to minimize the potential for erosion and sedimentation. As appropriate to the site and status of construction, winterization requirements shall include inspecting/maintaining/cleaning all soil erosion and sedimentation controls prior to, during, and immediately after each storm event; stabilizing disturbed soils through temporary or permanent seeding, mulching, matting, tarping or other physical means; rocking unpaved vehicle access to limit dispersion of mulch onto public right-of-way; and covering/tarping stored construction materials, fuels, and other chemicals. Plans to include proposed measures to prevent erosion and polluted runoff from all site conditions shall be submitted for review and approval of the Engineering Division prior to beginning site clearing activities.

11. The Applicant shall retain a civil engineer to prepare "as-built" or "record" drawings of public improvements, and the drawings shall be submitted in AutoCAD and Adobe PDF formats to the Engineering Division prior to dedication and acceptance of improvements.

12. All public right-of-way improvements, including frontage improvements and the dedication of easements and public right-of-way, shall be completed to the satisfaction of Page F-1.161
the Engineering Division prior acceptance of such public improvements. Frontage improvements, limited to sidewalks, landscape and urban furnishing, on a fronting parcel can be deferred until completion of construction on the adjacent parcel, provided that such improvements are secured under a separate Improvement Agreement and commensurate surety for completion of said improvements has been provided, subject to review and approval of the Public Works Director. Project serving private improvements depicted within the Improvement Plan set, consisting of frontage improvements, streets, utilities, landscape improvements and dedication of easements shall be completed to the satisfaction of the Engineering Division prior to the issuance of the first building occupancy. Upon Applicant’s/Property Owner’s completion of these improvements, Applicant/Property Owner shall offer for dedication to City such improvements as completed and City shall promptly accept the completed improvements and release to the Applicant/Property Owner any surety bonds or other security posted in connection with performance thereof in accordance with the terms of such bonds.

13. Prior to Parcel Map approval, the Applicant shall enter into a Subdivision Improvement Agreement and provide performance bonds for the completion of the improvements as shown on the approved project Improvement Plans. The Applicant shall obtain an encroachment permit from the appropriate reviewing and permitting jurisdiction prior to commencing any work within the public right-of-way or public easements.

14. Heritage Tree Replacements: The Applicant is permitted to remove up to 276 heritage trees on the Project Site and 16 heritage trees for construction of the new O’Brien intersection, as determined by the Project Arborist in the Tree Survey Report dated August 16, 2022 and shown on Sheets G1.06-1.09 and Appendix 9 of the Project Plans.

A minimum of value of $3,413,400 in heritage tree replacements are required for the Project Site. Heritage tree replacements shall be a minimum of 24-inch box size and are required to be planted at grade. The number of heritage tree replacements shall be tracked by the City and Applicant in accordance with the compliance matrix, dated June 23, 2022 and on file with the City.

15. Any Final Map/Parcel Map that includes an irrevocable offer of dedication for rights-ofway or other public facilities, shall be approved by and dedication accepted by the City Council.

16. Each Final Map/Parcel Map shall contain the final street names for the proposed streets that are offered for dedication or otherwise established on said map. The street names shown in the Vesting Tentative Map shall be considered “placeholders.”

17. Prior to the Final Map/Parcel Map action by the City Council, the applicant shall provide the Public Works Department with preferred and alternate street names for review by the City Council.

18. The City has approved this Map in conjunction with a Development Agreement. During the term of the Development Agreement, this Map shall be subject to the terms and Page F-1.162
conditions of the Development Agreement and, in the event of a conflict, the terms and conditions of the Development Agreement shall prevail.

19. Bicycle infrastructure and connections shall be substantially consistent with the Conceptual Plans from the Willow Village Masterplan plan set (dated October 19, 2022) and shall include signage, bicycle facilities, and striping per best practice complete streets design guidance that emphasizes designing for all ages and abilities and City standards.
a. Multi-use paths that connect the Main Project Site to the Willow Road Improvements shall include striping and signage to minimize conflicts between bicyclists and pedestrians, per best practice complete streets design guidance that emphasizes designing for all ages and abilities and City standards, subject to review and approval of the Public Works Director or their designee. b. The transition from multi-use paths to other bicycle infrastructure (e.g. Class II or Class III facilities) within the Main Project Site shall include appropriate signage, striping, and/or bicycle signals, per best practice complete streets design guidance that emphasizes designing for all ages and abilities and City standards, subject to review and approval by the Public Works Director or their designee.

18.20. If the No-Hamilton Avenue Realignment Variant takes effect in accordance with the Project’s Conditional Development Permit and Development Agreement, the Willow Village “A” Map shall be revised generally consistent with Sheet G4.08 of the Willow Village Masterplan plan set.

Page F-1.163
RESOLUTION NO. XXXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENLO PARK

APPROVING FINDINGS AND CONDITIONS FOR A VESTING TENTATIVE

SUBDIVISION MAP FOR THE HAMILTON AVENUE REALIGNMENT PORTION

OF THE WILLOW VILLAGE MASTER PLAN PROJECT CONSISTING OF UP TO 1.6 MILLION SQUARE FEET OF OFFICE AND ACCESSORY USES, UP TO 1,730 MULTIFAMILY DWELLING UNITS, UP TO 200,000 SQUARE FEET OF RETAIL USES, AN UP TO 193 ROOM HOTEL, AND ASSOCIATED OPEN

SPACE AND INFRASTRUCTURE
WHEREAS, the City received an application requesting to redevelop an approximately 59-acre industrial site (the “main Project Site”) plus three parcels (within two sites) west of Willow Road (the “Hamilton Parcels,” and collectively with the main Project Site, the “Project Site”) as a multiphase, mixed-use development consisting of up to 1.6 million square feet of office and accessory uses (a maximum of 1,250,000 square feet of office uses and the balance for accessory uses), up to 1,730 multifamily dwelling units, up to 200,000 square feet of retail, an up to 193-room hotel, and associated open space and infrastructure (the “Project”); and WHEREAS, a Vesting Tentative Subdivision Map for a subdivision is proposed for the Hamilton Avenue realignment proposed as part of the Project (“Hamilton VTM”); and WHEREAS, all required public notices and public hearings were duly given and held according to law; and
WHEREAS, an Environmental Impact Report (EIR) was prepared for the Project and certified by the City Council on _______________, 2022 (SCH: 2019090428), in accordance with the provisions of the California Environmental Quality Act (CEQA) and the CEQA Guidelines.

Findings and a statement of overriding considerations were adopted by the City Council on _______________, 2022, by Resolution No. ______, and are incorporated herein by this reference; and
WHEREAS, after notice having been lawfully given, a public hearing was scheduled and held before the Planning Commission of the City of Menlo Park (the “Planning Commission”) on October 24, 2022 and continued to November 3, 2022, to review and consider the Project, including the Hamilton VTM, whereat all persons interested therein might appear and be heard; and
WHEREAS, the Planning Commission, having fully reviewed, considered, and evaluated all the testimony and evidence submitted in this matter, voted affirmatively to recommend to the City Council of the City of Menlo Park (the “City Council”) to approve the Hamilton VTM; and WHEREAS, after notice having been lawfully given, a public hearing was scheduled and held before the City Council on _______________, 2022, to review and consider the Project, including the Hamilton VTM, whereat all persons interested therein might appear and be heard; and
WHEREAS, the City Council, having fully reviewed, considered, and evaluated all the testimony and evidence submitted in this matter, voted affirmatively to approve the Hamilton VTM.

ATTACHMENT E Page F-1.164
NOW, THEREFORE, BE IT RESOLVED that the City Council finds the foregoing recitals are true and correct, and they are hereby incorporated by reference into this Resolution.

BE IT FURTHER RESOLVED that the City Council of the City of Menlo Park hereby approves the Hamilton VTM subject to conditions (Exhibit A) for the Project. This approval is pursuant to the Subdivision Map Act and City of Menlo Park Municipal Code Section 15.20.050:

1. The Hamilton VTM is technically correct and in compliance with all applicable State regulations, City General Plan, Zoning and Subdivision Ordinances, and the State Subdivision Map Act.

2. The proposed Hamilton VTM, including the contemplated design and improvements, is consistent with applicable General Plan goals and policies, in particular the goals for the Bayfront Area set forth in the General Plan Update (“ConnectMenlo”). The Project is consistent with the land use designations described in the General Plan and would be consistent with City General Plan policies as well as City Zoning Ordinance requirements for master-planned projects at the proposed density and for the types of use.

6. The Project is subject to flood and inundation hazards but is not located within a slide area.

The Project Site is located within the 100-year flood hazard zone. However, the contemplated Project improvements will be designed so as to mitigate flood hazards, and the Project would comply with applicable requirements designed to mitigate flood hazards and address future sea level rise.

SEVERABILITY
If any term, provision, or portion of these findings or the application of these findings to a particular situation is held by a court to be invalid, void, or unenforceable, the remaining provisions of these findings, or their application to other actions related to the Project, shall continue in full force and effect unless amended or modified by the City. //
//
//
//
Page F-1.165
I, Judi A. Herren, City Clerk of Menlo Park, do hereby certify that the above and foregoing City Council Resolution was duly and regularly passed and adopted at a meeting by said City Council on the fifteenth sixth day of NovemberDecember, 2022, by the following votes:

AYES:

NOES:

ABSENT:

ABSTAIN:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of said City on this __ day of NovemberDecember, 2022.

Judi A. Herren, City Clerk
Exhibits:

A. Draft Hamilton Avenue parcels vesting tentative map conditions Page F-1.166
Conditions of Approval – Parcels west of Willow Road
Standard Conditions
Prior to Parcel Map Approval

1. Prior to approval of the Parcel Map the Applicant shall comply with all requirements of the Building Division, Engineering Division, and Transportation Division that are directly applicable to the project.

2. Applicant shall prepare and submit Demolition Plans to the City prior to the approval of the Parcel Map. The Demolition Plans, at a minimum, shall depict the demolition of all existing improvements within Parcel 1 that would conflict with the proposed reconfigured Parcel 1.

3. Prior to recordation of the Parcel Map, any existing buildings/structures that conflict with future proposed parcel boundaries of the Parcel Map shall be demolished subject to City approved Demolition Plans and Permit.

4. Prior to Parcel Map approval, Applicant shall submit plans for: 1) construction safety fences
around the periphery of the construction area on private property, 2) dust control, 3) air pollution control, 4) erosion and sedimentation control, 5) tree protection fencing, and 6) construction vehicle parking. The plans shall be subject to review and approval by the Building, Engineering, and Planning Divisions. The fences and erosion and sedimentation control measures shall be installed according to the approved plan prior to commencing construction.

5. Prior to Parcel Map approval, Applicant shall submit a Grading and Drainage Plan which may be included in the Improvement Plan set for review and approval. Post-construction runoff into the storm drain shall not exceed preconstruction runoff levels. A Hydrology Report calculating post construction performance will be required to the satisfaction of the Engineering Division.

6. Prior to Parcel Map approval, the Applicant shall submit engineered Off-Site Improvement Plans (including plans, specifications & engineer’s cost estimates), for approval by the Engineering Division, showing the infrastructure necessary to serve the Project. The Off-Site Improvement Plans shall include, but are not limited to, all engineering calculations necessary to substantiate the design of proposed realigned Hamilton Avenue improvements and associated relocation of utilities, traffic control devices, street lighting, and streetscape landscaping improvements, and shall incorporate the following:
a. The Off-Site Improvement Plans shall depict a realigned Menlo Park Utilities 12 inch domestic water mainline in an alignment within Willow Road. b. The Applicant shall extend the existing 10 foot shared bicycle/pedestrian path within Parcel 2 along Willow Road to the realigned Willow Road/Hamilton Avenue intersection improvements.

EXHIBIT A Page F-1.167
c. The relocated Bus Stop on Willow Road shall accommodate the proposed Class IV bicycle lanes on Willow Road and necessary ADA accommodations, including a bus shelter.
d. Off-Site Improvement Plans shall include, but are not limited to:
• Existing Topography (NAVD 88’)
• Demolition Plan
• Site Plan (including easement dedications, if applicable) • Construction Parking Plan
• Grading and Drainage Plan
• Utility Plan
• Off-site Improvement Plan
• Erosion Control Plan / Tree Protection Plan
• Planting and Irrigation Plan
• Construction Details (including references to City Standards) e. All public improvements shall be designed and constructed to the satisfaction of the Engineering Division.

7. Green Infrastructure: The Off-Site Improvement Plans shall include Green Infrastructure in the form of a stormwater treatment area along the project’s frontage to treat runoff from the public right-of-way. The treatment area shall be located within the landscape area between the curb and sidewalk. Sizing and design shall conform to San Mateo Countywide Water Pollution Prevention Program design templates and technical guidance and be approved by the Engineering Division.

8. Landscape Screening: Landscaping shall screen all public utility equipment that is installed within the public rights-of-way and cannot be placed underground, subject, however, to the requirements of the Menlo Park Fire Protection District, the West Bay Sanitary District, PG&E, and any other applicable agencies regarding utility clearances and screening. The Off-Site Improvement Plans shall depict new utility installations, exact locations of any meters, back flow prevention devices, transformers, junction boxes, relay boxes and other equipment boxes installed within the public right of way or public easement area. The Off-Site Improvement Plans shall also depict the landscape screening. The screening shall be compatible and unobtrusive and subject to the review and approval of the Engineering and Planning Divisions; which approval will be required prior to the City’s approval of the Off-Site Improvement Plans.

9. Stormwater Management Report: Prior to Parcel Map approval, the applicant shall submit a Storm Water Management Report for the public right-of-way that meets the requirements of the San Mateo County’s C.3 Stormwater Technical Guidance Manual.

10. Prior to Parcel Map approval, Applicant shall provide documentation indicating the amount of irrigated landscaping within the public right-of-way. If the project proposes more than 500 square feet of irrigated landscaping, it is subject to the City's Water Efficient Landscaping Ordinance (Municipal Code Chapter 12.44). A detailed landscape plan shall be included in the Off-Site Improvement Plans and shall be subject to review and approval by the Engineering Division.

Page F-1.168

11. Prior to Parcel Map approval, Applicant shall submit a plan for any new utility installations or upgrades for review and approval of the Planning, Engineering and Building Divisions. The plan shall show locations of all meters, back flow prevention devices, transformers, junction boxes, relay boxes, and other equipment boxes.

12. Prior to Parcel Map approval, Applicant shall pay all Public Works fees. Refer to City of Menlo Park Master Fee Schedule.

13. Prior to Parcel Map approval, the Applicant shall enter into a Subdivision Improvement Agreement and provide a performance bond for the completion of the off-site improvements as shown on the approved Off-Site Improvement plans. The Applicant shall obtain an encroachment permit, from the appropriate reviewing jurisdiction, prior to commencing any work within the right-of-way or public easements.

14. Prior to Parcel Map approval, Applicant shall submit draft updates to the recorded February 25, 1999, Covenants, Conditions and Restrictions (CC&Rs) to the City for review and approval by the Engineering Division, Planning Division and City Attorney.

The CC&Rs shall include amendments for the maintenance of storm water treatment improvements either within and/or adjacent to the Project site or constructed to serve the Project.

Prior to Construction

15. Prior to the commencement of the construction of public improvements, the Applicant shall obtain approval of the Willow Road Improvements encroachment permit from Caltrans as follows:
a. Submit a substantially complete set of Willow Road Improvement Plans to the City concurrent with the approval of the Willow Village Phase I Improvement Plans. The “Willow Road Improvement Plans” shall be comprised of the following improvements within Caltrans’ right-of-way:

1. Realigned Willow Road/Hamilton Avenue intersection;

2. New Willow Road/Park Street intersection; and

3. Class IV bicycle lanes on Willow Road.

Willow Road Improvement Plans shall include surface improvements, traffic signals, bicycle lanes, utility improvements, striping and signage improvements and other frontage improvements addressing both sides of Willow Road. The City shall cooperate with Applicant in its efforts to obtain an encroachment permit and other applicable approvals from Caltrans.
b. Caltrans Approval: Applicant shall submit applications to Caltrans no later than 30 days after City approval of the Willow Road Improvement Plans, and diligently pursue approvals.

Page F-1.169

16. Truck Route Plan: The Applicant shall submit a truck route plan concurrent with the approval of the Off-Site Improvement Plan set based on the City’s municipal code requirements, for review and approval by the Transportation Division. The Applicant shall also submit a permit application and pay fees, if applicable, relating to the truck route plan, to the satisfaction of the Public Works Director.

During Construction

17. Salvaging and Recycling of Construction and Demolition Debris: For demolition of the existing improvements and the segment of Hamilton Avenue that is to be demolished, the Applicant shall comply with the requirements of Chapter 12.48 (Salvaging and Recycling of Construction and Demolition Debris) of the City of Menlo Park Municipal Code, which compliance shall be subject to review and approval by the Building Official or designee.

18. For areas that have undergone site clearing and have exposed soil by the start of the wet season (October 1 through April 30), the Applicant shall implement a winterization program to minimize the potential for erosion and sedimentation. As appropriate to the site and status of construction, winterization requirements shall include inspecting/maintaining/cleaning all soil erosion and sedimentation controls prior to, during, and immediately after each storm event; stabilizing disturbed soils through temporary or permanent seeding, mulching, matting, tarping or other physical means; rocking unpaved vehicle access to limit dispersion of much onto public right-of-way; and covering/tarping stored construction materials, fuels, and other chemicals. Erosion Plans shall include proposed measures to prevent erosion and polluted runoff occurring from site conditions shall be submitted for review and approval of the Engineering Division prior to beginning site clearing activities.

19. Stormwater Pollution Prevention Program Best Management Practices (BMPs) for construction shall be implemented to protect water quality, in accordance with the approved Stormwater Pollution Prevention Plan (SWPPP). BMP plan sheets are available electronically for inserting into Project plans.

Additional General Conditions

20. Within two years from the date of approval of the tentative parcel map, the Applicant shall submit a Parcel Map for City approval and recordation or apply for an extension of time consistent with section 66463.5(a) of the Subdivision Map Act.

21. The Applicant shall adhere to the Subdivision Map Act and Chapter 15 of the City's Municipal Code.

22. West Bay Sanitary District Requirements: The Property Owner shall comply with all regulations of the West Bay Sanitary District that are directly applicable to the Project.

Page F-1.170

23. Menlo Park Fire Protection District Requirements: The Property Owner shall comply with all Menlo Park Fire Protection District regulations governing site improvements, Fire Code compliance, and access verification that are directly applicable to the Project.

24. During the design phase of the construction drawings, all potential utility conflicts shall be potholed with actual depths recorded on the improvement plans submitted for City review and approval.

25. The Applicant shall retain a civil engineer to prepare "as-built" or "record" drawings of public improvements, and the drawings shall be submitted in AutoCAD and Adobe PDF formats to the Engineering Division prior to Final Occupancy.

Project-Specific Conditions

1. The Parcel Map shall indicate and provide irrevocable offers of right-of-way dedication and public easements, as shown on tentative map dated October 7, 2022.

2. “No Objection” letters shall be provided to the City from all utilities companies prior to abandonment of public right of ways and public utility easements.

3. The existing Hamilton Avenue roadway shall remain operational until the cutover to the new alignment.

Page F-1.171
ORDINANCE NO. XXXX

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MENLO PARK

AMENDING THE CITY ZONING MAP, REZONING CERTAIN PROPERTIES TO ADD A CONDITIONAL DEVELOPMENT (“X”) COMBINING DISTRICT, AND

APPROVING A CONDITIONAL DEVELOPMENT PERMIT FOR THE WILLOW

VILLAGE MASTER PLAN PROJECT
The City Council of the City of Menlo Park does ordain as follows:

SECTION 1.

The City Council of the City of Menlo Park hereby finds and declares as follows:

A. The City received an application requesting to redevelop an approximately 59-acre industrial site (the “main Project Site”) plus three parcels (within two sites) west of Willow Road (the “Hamilton Parcels” and collectively, with the main Project Site, the “Project Site”) as a mixeduse development consisting of up to 1.6 million square feet of office and accessory uses (a maximum of 1,250,000 square feet for office uses and the balance for accessory uses), up to 1,730 multifamily dwelling units, up to 200,000 square feet of retail uses, an up to 193- room hotel, and associated open space and infrastructure (the “Project”).

B. Amendment of the City zoning map is necessary to modify the circulation plan with regard to the locations for new street connections to the surrounding roadway network as well as the locations of public rights-of-way and paseos and the inclusion of multi-use pathways within the main Project Site as shown in Exhibit A, attached hereto and incorporated herein by this reference.

C. Rezoning of the main Project Site as shown in Exhibit A is necessary to add a conditional development (“X”) combining district, thereby allowing special regulations and conditions to be added at the main Project Site (combined with the base O-B and R-MU-B regulations) as part of the proposed Project.

D. The Project is eligible for a Conditional Development Permit under Menlo Park Municipal Code section 16.82.055(1) in that the main Project Site is more than one acre and is not located in the SP-ECR/D district.

E. Approving the Conditional Development Permit is necessary to authorize development of the Project on the main Project Site, including variants of the Project, including to authorize certain modifications to the requirements of the O and R-MU zoning districts for the Project in accordance with Municipal Code Section 16.82.050, authorize a master planned project in accordance with Municipal Code Sections 16.43.055 and 16.45.55, authorize bonus level development and require the provision of community amenities in accordance with Municipal Code Sections 16.43.060 through .070 and 16.45.60 through 70, approve uses identified in the Conditional Development Permit in accordance with Menlo Park Municipal Code sections 16.43.020 through .040, 16.45.020 through .040, and 16.78.030, approve waivers to Bird Friendly Design requirements pursuant to Municipal Code Sections 16.43.140(6) and

16.45.130(6), approve transportation demand management plans in accordance with Municipal Code Sections 16.43.100 and 16.45.90, establish a procedure for future consideration and approval of a Master Sign Program to establish signage standards and guidelines, and approve an exception to the unbundled parking requirement pursuant to Municipal Code Section 16.45.080(1).

F. The proposed amendment to the City zoning map and rezoning of the main Project Site, as shown in Exhibit A, as well as the approval of the Conditional Development Permit, would promote a mixed-use live/work/play environment through the inclusion of multifamily housing, including affordable residential units, along with office, retail, hotel and recreational uses at the density and intensity envisioned in the ConnectMenlo General Plan (“General Plan”).

ATTACHMENT F Page F-1.172
G. The proposed amendment of the City zoning map and rezoning of the main Project Site, as shown in Exhibit A, as well as the Conditional Development Permit are consistent with the General Plan, including the land use designations for the main Project Site.

SECTION 2.

An Environmental Impact Report (EIR) was prepared for the Project and certified by the City Council on _______________, 2022 (SCH# 2019090428), in accordance with the provisions of the California Environmental Quality Act (CEQA) and the CEQA Guidelines. Findings and a statement of overriding considerations were adopted by the City Council on _______________, 2022, by Resolution No. ______, and are incorporated herein by this reference. The analysis in the Project EIR tiered from the ConnectMenlo Final EIR, as appropriate and as further described in each environmental topic section in the EIR.

SECTION 3.

The Planning Commission of the City of Menlo Park (the “Planning Commission”) held a duly noticed public hearing on October 24, 2022 and continued to November 3, 2022, to review and consider the Project, including the proposed amendment to the zoning map and the rezoning of the main Project Site, as shown on Exhibit A, and the Conditional Development Permit, whereat all interested persons had the opportunity to appear and comment.

SECTION 4.

The Planning Commission, having fully reviewed, considered, and evaluated all the testimony and evidence submitted in this matter, voted affirmatively to recommend to the City Council of the City of Menlo Park (the “City Council”) to approve the Project with recommended modifications, including the proposed amendment to the zoning map and the rezoning of the main Project Site, as shown on Exhibit A, as well as the Conditional Development Permit. In considering the Project, the Planning Commission considered and gave due regard to the nature and condition of all adjacent uses and structures and the impact of the Project thereon, and in relation to the effect upon the immediate neighborhood and the City. In accordance with Municipal Code Sections 16.82.030, 16.78.020, and 16.82.440, the Planning Commission found that approval of the Conditional Development Permit, including all uses permitted therein, would be consistent with the ConnectMenlo General Plan and would not be detrimental to the health, safety, morals, comfort and general welfare of the persons residing or working in the neighborhood of the Project, would not be unreasonably incompatible with uses permitted in surrounding areas, and would not be injurious or detrimental to property and improvements in the neighborhood or the general welfare of the City. The diesel emergency generators would meet the requirements of all reviewing and permitting agencies. The expanded construction hours include requirements to limit noise generating activities outside of the typical construction hours unless determined by the Building and Planning Divisions that an exception for specific activities is necessary (e.g. offsite evening/night work or other on-site activities that cannot occur during the typical construction hours). The Planning Commission further found that the public convenience or necessity would be served by the issuance of licenses to sell alcohol contemplated by the Conditional Development Permit and that the outdoor seating contemplated by the Conditional Development Permit would maintain unimpeded pedestrian access on the public right-of-way.

SECTION 5.

The City Council held a duly noticed public hearing on _____________, 2022, to review and consider the Project, including the proposed amendment to the zoning map and the rezoning of the main Project Site, as shown in Exhibit A, as well as the Conditional Development Permit, whereat all interested persons had the opportunity to appear and comment.

Page F-1.173
SECTION 6.

After due consideration of the proposed amendment to the zoning map and the rezoning of the main Project Site, as shown in Exhibit A, the Conditional Development Permit, public comments, the Planning Commission’s recommendation, the staff report, and other substantial evidence in the record, the City Council finds that the proposed amendment of the zoning map and rezoning of properties and the Conditional Development Permit as identified herein are consistent with the ConnectMenlo General Plan and are appropriate. In considering the Project, the City Council considered and gave due regard to the nature and condition of all adjacent uses and structures and the impact of the Project thereon, and in relation to the effect upon the immediate neighborhood and the City. In accordance with Municipal Code Sections 16.82.030, 16.78.020, and 16.82.440, the City Council further finds that approval of the Conditional Development Permit, including all uses permitted therein, would not be detrimental to the health, safety, morals, comfort and general welfare of the persons residing or working in the neighborhood of the Project, would not be unreasonably incompatible with uses permitted in surrounding areas, and would not be injurious or detrimental to property and improvements in the neighborhood or the general welfare of the City. The City Council further finds that the public convenience or necessity would be served by the issuance of licenses to sell alcohol contemplated by the Conditional Development Permit, and that the outdoor seating contemplated by the Conditional Development Permit would maintain unimpeded pedestrian access on the public right-of-way.

SECTION 7.

The zoning map of the City of Menlo Park is hereby amended to modify the circulation plan with regard to the locations for new street connections to the surrounding roadway network as well as the location of public rights-of-way and paseos, and the inclusion of multi-use pathways, within the main Project Site, as shown in Exhibit A.

SECTION 8.

The zoning map of the City of Menlo Park is hereby amended such that certain real properties shown in Exhibit A are rezoned to add a conditional development (“X”) combining district.

Specifically, the parcels identified in Exhibit B are rezoned to O-B-X to add an X combining district; the parcels identified in Exhibit C are rezoned to R-MU-B-X to add an X combining district. This X combining district is consistent with the General Plan, which allows the uses permitted in the combining district at the density and intensity proposed and encourages the type of live/work/play environment promoted by the X combining district in the Bayfront Area.

SECTION 9.

The Conditional Development Permit (Exhibit D) is hereby approved, authorizing development of the Project on the main Project Site. The Conditional Development Permit is consistent with the General Plan, which allows the uses permitted in the O-B-X and R-MU-B-X districts at the density and intensity proposed and encourages the type of live/work/play environment promoted by the X combining districts in the Bayfront area. Pursuant to Menlo Park Municipal Code section 16.56.030, the Conditional Development Permit establishes development regulations for the main Project Site, and the number of dwelling units, floor area ratio, and floor area limit authorized thereunder do not exceed the development regulations set forth in the O-B and RMU-B districts. The Conditional Development Permit, including all uses permitted therein, would not be detrimental to the health, safety, morals, comfort and general welfare of the persons residing or working in the neighborhood of the Project, would not be unreasonably incompatible with uses permitted in surrounding areas, and would not be injurious or detrimental to property and improvements in the neighborhood or the general welfare of the City SECTION 10. The Conditional Development Permit (Exhibit D) approves:

Page F-1.174
1) a master planned development that allows residential density, floor area ratio, and open space requirements at the bonus level to be calculated in the aggregate across the site but at levels which do not exceed what would be permitted if the site were developed in accordance with the O-B-X and R-MU-B-X districts, pursuant to Menlo Park Municipal Code sections 16.43.055 and 16.45.055;
2) bonus level development on the main Project Site and community amenities in accordance with the Development Agreement between City and Applicant, as well as Menlo Park Municipal Code sections 16.43.060, 16.45.060, 16.43.070, and 16.45.070; 3) all uses identified in the Conditional Development Permit in accordance with the terms thereunder and Menlo Park Municipal Code sections 16.43.020 through .040, 16.45.020 through .040, and 16.78.030;
4) waivers to Bird Safe Design requirements pursuant to Menlo Park Municipal Code sections

16.43.140(6)(H) and 16.45.130(6)(H) as provided in the Conditional Development Permit; 5) modifications to the requirements of the O-B and R-MU districts identified in the Conditional Development Permit to secure special benefits possible through comprehensive planning of large development, to allow relief from the monotony of standard development, and to permit the application of new and desirable development techniques, pursuant to Menlo Park Municipal Code section 16.82.050;
6) the transportation demand management plans identified in the Conditional Development Permit pursuant to Menlo Park Municipal Code sections 16.43.100 and 16.45.090; 7) all variants of the Project as identified in the Conditional Development Permit, including the No Willow Road Tunnel Variant, No Hamilton Avenue Realignment Variant, and Onsite Recycled Water Variant, which modify certain features or aspects of the Project based upon the election of the applicant or upon the potential action or inaction of agencies other than the City or of property owners outside the main Project Site; 8) establishment of a procedure for future consideration and approval of a Master Sign Program by the Planning Commission to establish signage standards and guidelines; and 9) an exception to the unbundled parking requirement pursuant to Municipal Code Section

16.45.080(1) for the Project’s affordable units.
10) allowance for expanded construction work hours, provided the construction activities comply with the noise limitations set forth in Chapter 8.06 (Noise) of the Municipal Code and mitigation measures Modified ConnectMenlo NOISE-1c, NOI-1.1 and NOI-1.2, unless determined by the Building and Planning Divisions that an exception for specific activities is necessary (e.g. offsite evening/night work or other on-site activities that cannot occur during the typical construction hours). Noise is allowed to exceed the City’s 85 decibel at 50 foot for any one piece of equipment requirement for construction equipment such as pile drivers, subject to compliance with Modified ConnectMenlo NOISE-1c, NOI-1.1 and NOI-1.2 in the EIR.

SECTION 11.

This ordinance shall become effective thirty (30) days after the date of its adoption. Within fifteen (15) days of its adoption, the ordinance shall be posted in three (3) public places within the City of Menlo Park, and the ordinance, or a summary of the ordinance prepared by the City Attorney, shall be published in a local newspaper used to publish official notices for the City of Menlo Park prior to the effective date.

Page F-1.175
INTRODUCED on the fifteenth sixth day of NovemberDecember, 2022.

PASSED AND ADOPTED as an ordinance of the City of Menlo Park at a regular meeting of said City Council on the __ day of NovemberDecember, 2022, by the following votes:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:
________________________
Betsy Nash, Mayor
ATTEST:
_________________________
Judi A. Herren, City Clerk
Exhibits:

A. Plat and legal – site
B. Plat and legal – office
C. Plat and legal – R-MU
D. Conditional development permit
Page F-1.176
FREYER & LAURETA, INC. Page 1 of 2

LEGAL DESCRIPTION

WILLOW VILLAGE SITE

MENLO PARK, CALIFORNIA
The land referred to is situated in the City of Menlo Park, County of San Mateo, State of California and is described as follows:

BEGINNING at the southwesterly corner of Parcel S; as shown on that certain map entitled “Menlo Industrial Center, City of Menlo Park, San Mateo County, California” filed in the office of the County Recorder of San Mateo County, State of California, on October 1, 1979, in Volume 99 of Maps at Pages 81-83, thence,
North 22°05'00" East, 120.17 feet; thence,
North 24°45'44" East, 143.14 feet; thence,
Along a tangent curve to the left, having a radius of 1,536.52 feet, length of 74.34 feet, and a delta angle of 02°46'19"; thence,
North 22°05'00" East, 864.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,032.50 feet, length of 55.72 feet, and a delta angle of 03°05'31"; thence,
North 25°35'47" East, 2.12 feet; thence,
North 19°19'09" East, 144.98 feet; thence,
North 22°05'00" East, 71.06 feet; thence,
North 84°59'41" East, 1,324.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,1509.17 feet, length of 251.79 feet, and a delta angle of 01°15'13"; thence,
EXHIBIT A Page F-1.177
FREYER & LAURETA, INC. Page 2 of 2
South 10°08'21" West, 1,612.25 feet; thence,
South 88°08'54" West, 1,612.25 feet; thence,
North 79°51'49" West, 668.96 feet to the POINT OF BEGINNING.

Containing 2,577,434.20 square feet (59.17 acres), more or less.

September 30, 2022
Page F-1.178
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FREYER & LAURETA, INC. Page 1 of 2

LEGAL DESCRIPTION

OFFICE (O)

MENLO PARK, CALIFORNIA
The land referred to is situated in the City of Menlo Park, County of San Mateo, State of California and is described as follows:

North 25°35'47" East, 2.12 feet; thence,
North 19°19'09" East, 144.98 feet; thence,
North 22°05'00" East, 71.06 feet; thence,
North 84°59'41" East, 1,324.41 feet; thence,
Along a tangent curve to the left, having a radius of 11,509.17 feet, length of 251.79 feet, and a delta angle of 01°15'13"; thence,
South 10°08'21" West, 1,612.25 feet; thence,
South 88°08'54" West, 899.78 feet; thence,
North 10°08'21" East, 391.79 feet; thence,
North 36°24'32" West, 124.47 feet; thence,
Along a curve to the left, having a radius of 60.00 feet, length of 93.25 feet, a delta angle of 89°02'37", and a radial bearing of North 36°24'32" West; thence,
Along a tangent curve to the right, having a radius of 40.00 feet, length of 31.82 feet, and a delta angle of 45°34'23"; thence,
North 10°07'14" East, 176.74 feet; thence,
Along a tangent curve to the right, having a radius of 30.00 feet, length of 47.12 feet, and a delta angle of 90°00'00"; thence,
EXHIBIT B Page F-1.180
FREYER & LAURETA, INC. Page 2 of 2
South 79°52'46" East, 664.42 feet; thence,
Along a tangent curve to the right, having a radius of 40.00 feet, length of 31.82 feet, and a delta angle of 45°34'23"; thence,
Along a tangent curve to the left, having a radius of 60.00 feet, length of 283.94 feet, and a delta angle of 271°08'46"; thence,
Along a tangent curve to the right, having a radius of 40.00 feet, length of 31.82 feet, and a delta angle of 45°34'23"; thence,
North 79°52'46" West, 664.42 feet; thence,
Along a tangent curve to the right, having a radius of 30.00 feet, length of 47.12 feet, and a delta angle of 90°00'00"; thence,
North 10°07'14" East, 104.42 feet; thence,
Along a tangent curve to the left, having a radius of 140.00 feet, length of 190.68 feet, and a delta angle of 78°02'17"; thence,
North 67°55'03" West, 133.87 feet; thence,
Along a tangent curve to the left, having a radius of 735.00 feet, length of 301.93 feet, and a delta angle of 23°32'13"; thence,
Along a tangent curve to the right, having a radius of 30.00 feet, length of 38.55 feet, and a delta angle of 73°37'09" to the TRUE POINT OF BEGINNING.

Containing 1,624,516.57 square feet (37.29 acres), more or less.

October 17, 2022
Page F-1.181
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OF SHEETS JOB NO. SHEET PROJ. ENGR: CHECKED: DCF DESIGNED: SCALE: AS SHOWN DATE: 10/17/2022 DRAWN: RJL SURVEYORS www.freyerlaureta.com CIVIL ENGINEERS 150 Executive Blvd Suite 4200 San Francisco, CA 94134 (415)534-7070 CONSTRUCTION MANAGERS DESCRIPTION DATE EXHIBIT B OFFICE (O) 2 2 Page F-1.183
FREYER & LAURETA, INC. Page 1 of 1

LEGAL DESCRIPTION

RESIDENTIAL MIXED USE (R-MU)

MENLO PARK, CALIFORNIA
The land referred to is situated in the City of Menlo Park, County of San Mateo, State of California and is described as follows:

BEGINNING at the southwesterly corner of Parcel S; as shown on that certain map entitled “Menlo Industrial Center, City of Menlo Park, San Mateo County, California” filed in the office of the County Recorder of San Mateo County, State of California, on October 1, 1979, in Volume 99 of Maps at Pages 81-83, thence,
North 22°05'00" East, 120.17 feet; thence,
North 24°45'44" East, 143.14 feet; thence,
Along a tangent curve to the left, having a radius of 1,536.52 feet, length of 74.34 feet, and a delta angle of 02°46'19"; thence,
North 22°05'00" East, 829.11 feet; thence,
Along a curve to the left, having a radius of 30.00 feet, length of 9.98 feet, a delta angle of 19°03'50", and a radial bearing of South 24°04'08" East; thence,
North 84°59'42" East, 13.25 feet; thence,
Along a tangent curve to the right, having a radius of 675.00 feet, length of 319.12 feet, and a delta angle of 27°05'15"; thence,
South 67°55'03" East, 133.87 feet; thence,
Along a tangent curve to the right, having a radius of 80.00 feet, length of 108.96 feet, and a delta angle of 78°02'17"; thence,
South 10°07'14" West, 401.15 feet; thence,
Along a tangent curve to the right, having a radius of 40.00 feet, length of 31.82 feet, and a delta angle of 45°34'23"; thence,
Along a tangent curve to the left, having a radius of 60.00 feet, length of 190.70 feet, and a delta angle of 182°06'08"; thence,
South 36°24'32" East, 124.47 feet; thence,
South 10°08'21" West, 391.79 feet; thence,
South 88°08'54" West, 283.17 feet; thence,
North 79°51'49" West, 668.96 feet to the POINT OF BEGINNING.

Containing 824,596.48 square feet (18.93 acres), more or less.

October 17, 2022
EXHIBIT C Page F-1.184
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OF SHEETS JOB NO. SHEET PROJ. ENGR: CHECKED: DCF DESIGNED: SCALE: AS SHOWN DATE: 10/17/2022 DRAWN: RJL SURVEYORS www.freyerlaureta.com CIVIL ENGINEERS 150 Executive Blvd Suite 4200 San Francisco, CA 94134 (415)534-7070 CONSTRUCTION MANAGERS DESCRIPTION DATE EXHIBIT B RESIDENTIAL MIXED USE (R-MU) 2 2 Page F-1.186
1 DRAFT CONDITIONAL DEVELOPMENT PERMIT (“CDP”)

WILLOW VILLAGE MASTER PLAN PROJECT

1. GENERAL INFORMATION

1.1. Applicant: Peninsula Innovation Partners, LLC (“Applicant”) or its successors or assigns

1.2. Project Description: General Plan Circulation Map Amendment, Zoning Ordinance Map Amendment, Rezoning, Development Agreement, Conditional Development Permit, Architectural Control, Vesting Tentative Subdivision Maps, Heritage Tree Removal Permits, Zoning Ordinance Modifications, Bird-Friendly Design Waivers, Willow Village Transportation Demand Management (TDM) Plan, and Below Market Rate Housing Agreements, to demolish approximately 1 million square feet (sf) of existing nonresidential uses and construct:

1. Approximately 1.8 million sf of nonresidential uses, composed of up to 1.6 million sf of office and accessory uses in the Campus District (consisting of up to 1.25 million sf of office space, with the balance of space for accessory uses [up to 350,000 sf if the office sf is maximized], in multiple buildings) and up to 200,000 sf of commercial/retail space;

2. Up to approximately 1,730 multi-family residential units, inclusive of 312 below market rate units;

3. An up to 193-room hotel; and

4. Minimum of 857,000 sf of open space at full buildout, including a minimum of 360,000 sf of publicly accessible parks, paths, and trails.

The above elements are collectively referred to as “Project”.

1.3. Project Site: The project site consists of approximately 59 acres identified by the Assessor’s Parcel Numbers listed in Section 1.4 herein, and generally is bounded by the currently inactive Dumbarton Rail Corridor to the north, an existing life science complex to the east (Menlo Park Labs Campus), the San Francisco Public Utilities Commission (SFPUC) Hetch Hetchy right-of-way to the south, and Willow Road to the west (“Project Site”). The existing project site parcels are shown on Exhibit A attached hereto and are more particularly described in Exhibit B attached hereto.

The Project also includes three parcels on two sites west of Willow Road. Hamilton Avenue Parcel North includes the existing Belle Haven Shopping Center (1401 Willow Road and 871-883 Hamilton Avenue) and Hamilton Avenue Parcel South includes the existing Chevron service station (1399 Willow Road). These parcels are not subject to this CDP; however, these parcels would be subject to and affected by specific off-site improvements and project actions (e.g. realignment of Hamilton Avenue).

1.4. Assessor’s Parcel Numbers: 055-440-010; 055-440-020; 055-440-030; 055-440-040; 055-440-090; 055-440-110; 055-440-130; 055-440-190; 055-440-210; 055-440-230; EXHIBIT D Page F-1.187
2 055-440-260; 055-440-300; 055-440-310; 055-440-320; 055-440-330; 055-440-050; 055-440-340; 055-440-350

1.5. Property Owner(s): Peninsula Innovation Partners and its successors in interest to all or any part of the Project Site (“Property Owner”)

1.6. Zoning: O-B-X (Office-Bonus, Conditional Development), R-MU-B-X (Residential MixedUse-Bonus, Conditional Development)

1.7. Conditions Precedent:

1.7.1. Property Owner’s obligations set forth herein are expressly conditioned on the resolution of all legal challenges, if any, to the Project’s entitlements. Notwithstanding any legal challenges, Property Owner’s obligations as set forth herein are expressly conditioned on Property’s Owner’s election, in its sole discretion, to commence construction of the Project.

1.7.2. Development of the Project, and all references in this CDP to the City’s Municipal Code, Zoning Ordinance, and future conditions of approval and fees, shall be subject to vested rights pursuant to common law, the Subdivision Map Act, and the Development Agreement.

2. PROJECT PLANS AND DEVELOPMENT STANDARDS

2.1. Project Plans:

2.1.1. Development of the Project shall substantially conform with the Willow Village Master Plan plans submitted by Applicant dated October 19, 2022, consisting of 66 plan sheets and Appendices 1 through 10, recommended for approval by the Planning Commission on [date], and approved by the City Council on [date] (“Project Plans”), except as modified by the conditions contained herein and/or in accordance with Section 8 (Changes) of this CDP.

2.1.2. Attached as Exhibit D is a glossary of technical reports and documents supporting implementation of this CDP.

2.1.3. Prior to the issuance of building permits for each building in the Project, and in accordance with Section 12.2, below, Property Owner shall submit architectural control plans (ACPs) for the building/site for review and approval by the Planning Commission in accordance with Municipal Code Section 16.68.020. As part of the architectural control review, the Community Development Department shall track compliance with the Development Standards set forth in Section 2.3 below through a compliance matrix, dated 6/23/22 and on file with the Page F-1.188
3 City that may be updated from time to time to ensure compliance with this CDP and Municipal Code requirements.

2.2. Definitions: As used in this CDP and the Project Plans:

2.2.1. “Standards”. Standards are objective measures with which all architectural control plans (ACPs) must substantially conform, subject to Changes to the CDP granted in accordance with and defined in Section 8 herein. Standards may be minimum or maximum
development parameters that development must fall within, or may be prescriptive requirements for objective Project design features.

2.2.2. “Conceptual Plans”. Items labeled as Conceptual Plans are intended to convey the general vision and design intent of the Project, while allowing flexibility in interpretation and implementation.

Conceptual Plans serve as guidelines for general orientation and organization of land uses and transportation and open space networks, general scale and massing of development, and overall architectural themes. All ACPs should be materially consistent with the vision and design intent conveyed by Conceptual Plans but need not comply with the specific details.

2.2.3. “Illustrative Plans and Renderings”. Items labeled as Illustrative Plans and Renderings depict one possible example of development that would substantially conform with the Standards and be materially consistent with the vision and design intent conveyed by the Conceptual Plans. Illustrative Plans and Renderings are not determinative of the ultimate configuration, building orientation, massing, architectural and landscaping details, parking design, etc.

ACPs may vary from these depictions.

2.2.4. “Architectural Control Plan” (“ACP”). ACPs provide architectural drawings of the proposed building or structure, proposed landscaping or other treatment of grounds around such building or structure, and proposed design of, and access to, required parking facilities, in accordance with Municipal Code Section 16.68.020.

ACPs should generally include site plans, floor plans, elevations, square footage diagrams, height calculations, color and materials, etc.

The ACPs shall comply with the City’s Application Submittal Guidelines. All ACPs shall substantially conform to the Standards and be materially consistent with the vision and design intent conveyed by the Conceptual Plans, subject to Modifications granted in accordance with Section 4 and/or Changes granted in accordance with Section 8 herein.

2.2.5. “Phase 1”. Project Site improvements under Phase 1 encompass structure demolition, surface improvements, and utility Page F-1.189
4 improvements within the Phase 1 and Phase 2 areas on the main Project Site. Specifically, Phase 1 would include:
a. Demolition of structures on the parcels south of Hamilton Avenue to support the realignment of Hamilton Avenue west of Willow Road and the new intersection at Willow Road.
b. Street improvements including realignment of the Hamilton Avenue and Willow Road intersection, Park Street, West Street, Main Street from O’Brien Drive to Hamilton Avenue, North Loop Road, and East Loop Road, each with a full complement of utilities to serve the Project and Willow Road Tunnel.
c. Grading and construction of primary circulation improvements (i.e., the streets and infrastructure necessary to serve Phase 1) to raise the Project Site above the flood hazard designation and ensure sea-level rise resiliency.
d. Construction of components associated with the Town Square District and the Campus District in the northern portion of the Project Site, including approximately 172,000 sf of hotel space (up to approximately 193 rooms); construction of the entirety of the office and accessory uses, the Elevated Park, and up to 200,000 sf of retail uses, including the grocery store; construction of the Town Square and the Town Square parking garage;
construction of the North Garage and South Garage as part of the Campus District; and construction within the
Residential/Shopping District of 1,044 residential units, the Publicly Accessible Park, and the Dog Park.

2.2.6. “Phase 2”. Phase 2 construction would encompass the construction of the balance of the Residential/Shopping District, provide 686 residential units, and construct Willow Road Tunnel, if Applicant so elects. Phase 2 site improvements would also include construction of Center Street and East Street, along with the installation of the infrastructure necessary to serve Phase 2.

2.2.7. “Square footage” or “sf” shall have the same meaning as the definition of Gross Floor Area (16.04.325) of the Zoning Ordinance.

2.3. Development Standards

2.3.1. Dwelling Units shall not exceed 100 dwelling units per acre for a not to exceed total of 1,730 units.

2.3.2. Maximum building square footage shall be calculated in accordance with Municipal Code Section 16.04.325 (Gross floor area),) and shall not exceed:

Page F-1.190
5 2.3.2.1. Office and accessory uses: 1,600,000 square feet in accordance with Sheet G3.03 of the Project Plans (consisting of a maximum of up to 1,250,000 square feet of office space, with the balance of space for accessory uses, in multiple buildings)

2.3.2.2. Retail uses: 200,000 square feet in accordance with Sheet G3.03 of the Project Plans

2.3.2.3. Residential uses: 1,696,406 square feet for 1,730 dwelling units in accordance with Sheet G3.03 of the Project Plans.

2.3.3. Hotel: 193 rooms in accordance with Sheet G3.03 of the Project Plans

2.3.4. Areas of private rights-of-way shall be included in the calculation of the maximum density and intensity (gross floor area) as shown on Sheet G3.02 of the Project Plans.

2.3.5. Building heights shall not exceed the maximum heights provided on Sheet G3.04 of the Project Plans.

2.3.6. Development standards identified in the Project Plans as CDP standards are incorporated by reference herein.

2.3.6.1. The calculation of height (average) and maximum height shall comply with Zoning Ordinance Sections 16.43.050 and 16.45.050.

2.3.7. Parking shall be provided in accordance with the standards set forth on Sheet G4.01 of the Project Plans and in compliance with Zoning Ordinance Sections 16.43.090 and 16.45.080, subject to the Modification for senior parking (below). This CDP grants an exception for unbundled parking for senior below market rate residential units.

This CDP also authorizes shared parking on the main Project Site in accordance with Sheet G4.01 of the Project Plans.

2.3.8. Open Space shall be provided in accordance with the standards set forth on Sheet G3.05 of the Project Plans. The Project shall provide a minimum of 360,000 sf of publicly accessible open space, consisting of 285,970 sf of open space required by the R-MU/O zoning and 74,030 sf of publicly accessible open space in excess of the RMU and O zoning district requirements (“Excess Publicly Accessible Open Space”)

2.3.8.1. The Excess Publicly Accessible Open Space will be provided in the Community Park and/or the Dog Park and/or Parcel 3. ACPs containing the Community Park, the Dog Park, and Parcel 3 will be required to document the amount of Excess Publicly Accessible Open Space provided in each ACP.

Page F-1.191
6 2.3.9. Roof Mounted Equipment except photovoltaic or solar panels, shall be fully screened and integrated into the design of the building consistent with Zoning Ordinance Section 16.08.095, and shall also comply with the noise requirements of that same section.

2.3.10. Ground Mounted Equipment shall be screened and integrated into the site design to the satisfaction of the Planning Division. The ground mounted equipment shall comply with the noise requirements in Chapter 8.06 (Noise) of the Municipal Code.

2.3.11. Building Setbacks shall be measured from the public right-of-way or public access easements. Private right-of-ways shall be treated as public right-of-ways for setback purposes.

3. USES

3.1. Permitted uses on the Project Site: The following uses are permitted on the Project Site pursuant to this CDP without the need for further administrative, special, or conditional use or special event permits:

3.1.1. Existing Uses

3.1.1.1. Notwithstanding the rezoning of the main Project Site and adoption of this CDP, existing uses and structures on the main Project Site that remain shall not be considered nonconforming and may continue (including after any period of discontinuance and without amortization) and be maintained, repaired, altered, restored if destroyed by catastrophe, subject to any applicable procedural review provisions of the Zoning Ordinance not contained in Chapter 16.80 and provided there is no increase in square footage. Existing use permits and architectural control permits shall remain valid until demolition (whole or partial) occurs.

3.1.2. Town Square District

3.1.2.1. Hotel

3.1.2.2. Banks and other financial institutions providing retail banking services (including credit unions and ATMs)

3.1.2.3. Eating and drinking establishments, including the sale of beer, wine, and alcohol (e.g., spirits and liquor other than beer and wine) in accordance with Section 3.6 herein, and/or that have live entertainment, and/or establishments that are portable (i.e. not permanent)

3.1.2.4. Retail sales establishments, excluding the sale of beer, wine, and alcohol except those uses identified in accordance with Section 3.6 herein Personal services, excluding tattooing, piercing, palm-reading, or similar services

3.1.2.5. Recreational facilities privately operated, less than 20,000 square feet Page F-1.192
7 3.1.2.6. Outdoor seating and tables (including those intended to be used for consumption of food and beverages), in accordance with Section 5.2

3.1.2.7. Emergency generators and associated use and storage of diesel fuel for up to 12 generators on the main project site in accordance with Sheet G6.07 of the Project Plans and the Hazardous materials information forms, generator supplemental forms (dated August 8, 2022) and agency referral forms.

Generator size, type, and locations shall be substantially in conformance with the Project Plans and supporting documents and shall comply with the requirements and conditions of the San Mateo County Environmental Health Services Division, Menlo Park Fire Protection District, West Bay Sanitary District, and the City of Menlo Park Building and Planning Divisions.

3.1.2.8. Bonus level development (e.g. height, density, and intensity) in accordance with Sections 16.43.040(1) and 16.43.060 and/or 16.45.040(10) and 16.45.060 of the Zoning Ordinance.

3.1.2.9. Public utilities, in accordance with Chapter 16.76 of the Zoning Ordinance. Any above ground utilities or appurtenances shall be screened with appropriate fencing, mesh enclosures, and/or like materials compatible with surrounding improved environment, or painted with appropriate colors compatible with surrounding improved environment.

3.1.2.10. Open space, private and publicly accessible, in accordance with Zoning Ordinance Sections 16.43.130(4) and 16.45.120(4).

3.1.2.11. CommunityLocal events including but not limited to farmers’ markets, movie nights, concerts, community block parties, and food trucks, provided the activities comply with Chapter 8.06 (Noise) of the Municipal Code, and provided that communitysuch events that require the use of City public services (e.g. police monitoring or control, street closure, traffic control, parking needs that will exceed capacity of the venue, or interfere with normal use and operation of right-of-ways for travel) require a special event permit per Chapter 8.60 of the Municipal Code.

3.1.2.12. Private special events not to exceed 26 in a calendar year, subject to Section 5.3, provided that private special events that require the use of City public services (e.g. police monitoring or control, street closure, traffic control parking needs that will exceed capacity of the venue, or interfere with normal use and operation of right-of-ways for travel) require a special event permit per Chapter 8.60 of the Municipal Code.

3.1.2.13. Parking structures, above and below-grade

3.1.2.14. Cellular telecommunications facilities provided the facilities are fully screened and/or integrated into a building or site feature and the facilities comply with all applicable Federal and State regulations

3.1.2.15. Other uses determined by the Community Development Director to be similar and compatible uses based on the following criteria:
• The activities involved in or equipment or materials employed in the use are the same or substantially similar to the uses expressly authorized by this CDP;
• The use is compatible with surrounding uses; and
• The use is consistent with the stated purpose of this CDP.

Page F-1.193
8 3.1.3. Residential/Shopping District

3.1.3.1. Multiple dwellings

3.1.3.2. Eating establishments, including the sale of beer, wine, and alcohol in accordance with Section 3.6 herein, and/or that have live entertainment, and/or establishments that are portable (i.e. not permanent)

3.1.3.3. Retail sales establishments, excluding the sale of beer, wine, and alcohol except those uses identified in accordance with Section 3.6 herein, including those greater than 20,000 square feet of gross floor area

3.1.3.4. Personal services, excluding tattooing, piercing, palm-reading, or similar services

3.1.3.5. Outdoor seating and tables (including those intended to be used for consumption of food and beverages) subject to Section 5.2

3.1.3.6. Movie theater and/or live theater

3.1.3.7. Recreational facilities, privately operated, including those greater than 20,000 square feet in gross floor area

3.1.3.8. Emergency generators and associated use and storage of diesel fuel for up to 12 generators on the main project site in accordance with Sheet G6.07 of the Project Plans and the Hazardous materials information forms, generator supplemental forms (dated August 8, 2022), and agency referral forms.

Generator size, type, and locations shall be substantially in conformance with the Project Plans and supporting documents and shall comply with the requirements of the San Mateo County Environmental Health Services Division, Menlo Park Fire Protection District, West Bay Sanitary District, and the City of Menlo Park Building and Planning Divisions.

3.1.3.9. Bonus level development (e.g. height, density, and intensity) in accordance with Sections 16.43.040(10) and 16.43.080 or 16.45.040(10) and

16.45.060 of the Zoning Ordinance.

3.1.3.10. Public utilities, in accordance with Chapter 16.76 of the Zoning Ordinance. Any above ground utilities or appurtenances shall be screened with appropriate fencing, mesh enclosures, and/or like materials compatible with surrounding improved environment, or painted with appropriate colors compatible with surrounding improved environment.

3.1.3.11. Open space, private and publicly accessible, in accordance with Zoning Ordinance Sections 16.43.130(4) and 16.45.120(4)

3.1.3.12. CommunityLocal events including but not limited to farmers’ markets, movie nights, concerts, community block parties, and food trucks, provided the activities comply with Chapter 8.06 (Noise) of the Municipal Code and provided that communitysuch events that require the use of City public services (e.g. police monitoring or control, street closure, traffic control, parking needs that will exceed capacity of the venue, or interfere with normal use and operation of right-of-ways for travel) require a special event permit, per Chapter 8.60 of the Municipal Code.

3.1.3.13. Private special events not to exceed 26 in a calendar year, subject to Section 5.3, provided that private events that require the use of City public services (e.g. police monitoring or control, street closure, traffic control, parking needs that will exceed capacity of the venue, or interfere with normal Page F-1.194
9 use and operation of right-of-ways for travel) require a special event permit, per Chapter 8.60 of the Municipal Code.

3.1.3.14. Parking structures, above and below-grade

3.1.3.15. Temporary dialysis center consistent with the improvements depicted on Conceptual Dialysis Center Temporary Location Sheet in Exhibit 5.

3.1.3.16. Cellular telecommunications facilities provided the facilities are fully screened and/or integrated into a building or site feature and the facilities comply with all applicable Federal and State regulations

3.1.3.17. Other uses determined by the Community Development Director to be similar and compatible uses based on the following criteria:
• The activities involved in or equipment or materials employed in the use are the same or substantially similar to the uses expressly authorized by this CDP;
• The use is compatible with surrounding uses; and
• The use is consistent with the stated purpose of this CDP.

3.1.4. Campus District

3.1.4.1. Administrative and professional offices (including amenity uses) and accessory uses, including those greater than 250,000 square feet in gross floor area:
• Office amenity uses intended to serve employees, contractors, and visitors, including, without limitation, the following facilities to serve onsite workers and visitors: food service facilities, ATMs, dry cleaners, fitness facilities, personal services (excluding tattooing, piercing, palmreading, or similar services), wellness facilities (including medical and dental)and wellness facilities (including medical and dental), provided that ATMs, dry cleaners, and massage facilities are not permitted in the office amenity space, and permanent third-party branded eating establishments as well as permanent third-party branded retail are not permitted in the office amenity space, except for private special events permitted by this CDP. Nothing in this Section 3.1.4.1 limits retail uses that are open to the public.
• Accessory uses include, without limitation, the following types of spaces:
meeting/collaboration space, orientation space, training space, event space, breakout space, incubator space, a business center, event building (including pre-function space, collaboration areas, and meeting/event rooms), a visitor center, experience center, production/ demonstration areas, a film studio, catering and culinary spaces affiliated with accessory uses, gathering spaces, terraces and private gardens, and space for other accessory uses

3.1.4.2. Eating establishments, including the sale of beer, wine, and alcohol in accordance with Section 3.6 herein, live entertainment, and/or establishments that are portable

3.1.4.3. Personal services, excluding tattooing, piercing, palm-reading, or similar services
Page F-1.195
10 3.1.4.4. Outdoor seating and tables (including those intended to be used for consumption of food and beverages) subject to Section 5.2.

3.1.4.5. Emergency generators and associated use and storage of diesel fuel for up to 12 generators on the main project site in accordance with Sheet XXG6.07 of the Project Plans and the Hazardous materials information forms, d generator supplemental forms (dated August 8, 2022), and agency referral forms. Generator size, type, and locations shall be substantially in conformance with the Project Plans and supporting documents and shall comply with the requirements of the San Mateo County Environmental Health Services Division, Menlo Park Fire Protection District, West Bay Sanitary District, and the City of Menlo Park Building and Planning Divisions.

3.1.4.6. Bonus level development (e.g. height, density, and intensity) in accordance with Sections 16.43.040(10) and 16.43.060 and/or 16.45.040(10) and 16.45.060 of the Zoning Ordinance.

3.1.4.7. Public utilities, in accordance with Chapter 16.76 of the Zoning Ordinance. Any above ground utilities or appurtenances shall be screened with appropriate fencing, mesh enclosures, and/or like materials compatible with surrounding improved environment, or painted with appropriate colors compatible with surrounding improved environment.

3.1.4.8. Open space, private and publicly accessible, in accordance with Zoning Ordinance Sections 16.43.130(40) and 16.45.120(4).

3.1.4.9. CommunityLocal events including but not limited to farmers’ markets, movie nights, concerts, community block parties, and food trucks, provided the activities comply with Chapter 8.06 (Noise) of the Municipal Code, and provided that communitysuch events that require the use of City public services (e.g. police monitoring or control, street closure, traffic control, parking needs that will exceed capacity of the venue, or interfere with normal use and operation of right-of-ways for travel) require a special event permit per Chapter 8.60 of the Municipal Code.

3.1.4.9.3.1.4.10. MCS Community Events as defined in Section 5.3.I of the Development Agreement

3.1.4.10.3.1.4.11. Private special events subject to the Event Management Plan (provided the activities comply with Chapter 8.06 (Noise) of the Municipal Code and do not require the use of City public services (e.g. police monitoring or control, street closure, traffic control), and do not require parking needs that will exceed capacity of the venue, or interfere with normal use and operation of right-of-ways for travel) including:
• Multiple day private special events located primarily indoors, without a special event permit
• Private special events with attendance expected to exceed 150 people that will use the Elevated Park (limited to 26 per year), without a special event permit provided the noise limits of Chapter 8.06 are complied with. • Private special events as provided in a special event permit approved by the City, as outlined in Chapter 8.60 of the Municipal Code

3.1.4.11.3.1.4.12. Parking structures, above and below-grade

3.1.4.12.3.1.4.13. Cellular telecommunications facilities Page F-1.196
11 3.1.4.13.3.1.4.14. Other uses determined by the Community Development Director to be similar and compatible uses based on the following criteria:
• The activities involved in or equipment or materials employed in the use are the same or substantially similar to the uses expressly authorized by this CDP;
• The use is compatible with the surrounding uses; and
• The use is consistent with the stated purpose of this CDP.

3.2. Additional Permitted uses on the Project Site: All permitted uses listed in the O and RMU zoning districts unless superseded by this CDP.

3.3. Additional administratively permitted uses on the Project Site: All administratively permitted uses listed in the O and R-MU zoning districts, and not specifically authorized by Section 3.1, are permitted with an administrative permit.

3.4. Additional special uses on the Project Site: Special uses in accordance with Chapter

16.78 and not specifically authorized by Section 3.1 herein are permitted with a use permit.

3.5. Additional conditionally permitted uses on the Project Site: All Conditionally permitted uses listed in the O and RMU zoning districts, and not specifically authorized by Section

3.1 herein, are permitted with a use permit.

3.6. Beer, Wine, and Alcohol Uses: Beer, wine, and alcohol uses shall be permitted as provided in sections 3.6.5, 3.6.6, and 3.6.7, subject to receipt of all required permits from the Bureau of Alcoholic Beverage Control (ABC). All other beer, wine, and alcohol uses shall require an administrative or use permit per the requirements of Zoning Ordinance Chapters 16.43 and 16.45.

3.6.1. Any citation or notification of violation by the ABC of the applicable ABC permit shall be grounds for suspension or revocation of the administrative/conditional use permits granted to the applicable user.

3.6.2. Prior to building permit issuance, the applicant shall comply with the applicable requirements of the Building Division, Engineering Division, and Transportation Division that are directly applicable to the sale of beer, wine, and alcohol.

3.6.3. A minimum of 90 days prior to the commencement of any sale of beer, wine, and alcohol for uses permitted through this CDP, the applicant shall submit documentation of an application for the permit with the ABC, a site plan and floor plan/seating plan, and project description letter for review and approval of the Community Development Director and the Chief of Police or their designee for conformance with this CDP, and compliance with the City of Menlo Park Municipal Code.

Page F-1.197
12 3.6.3.1. The submittal materials shall identify the location of alcohol use/sale/storage, barriers to define the extent of the alcohol use/service, and hours of operation, and any other information deemed necessary to evaluate the design appropriateness, conformance with this CDP, and compliance with the City of Menlo Park Municipal Code of the request as determined by the Community Development Director or Chief of Police or their designees.

3.6.4. The City shall track the number of active licenses within the Project site using the tracking matrix dated June 23, 2022 and on file with the City.

3.6.5. Town Square District

3.6.5.1. Hotel
Maximum of four ABC licenses, provided all requirements of the California ABC and City are met. If the ABC determines that a public convenience and necessity finding is required, the Planning Commission shall review the request through an administrative permit or use permit based on license type and request, in accordance with the requirements of the Zoning Ordinance. • Hotel operations including in-room mini-bar, pool, lounges • Off-site sale of beer, wine, and alcohol for a hotel gift shop within the hotel
• Eating Establishments (e.g. bona fide eating place) including beer, wine and alcohol
• Drinking Establishments (e.g. bar or tavern) including beer, wine and alcohol
• Special events including beer, wine, and alcohol (e.g., events in conferences rooms, ballroom space, outdoor locations)

3.6.5.2. Town Square
Maximum of three ABC licenses for uses identified below for the Town Square District, excluding off-sale and on-sale public premises (e.g. bar or tavern) and not including ABC licenses associated with the hotel, provided all requirements of the California ABC and City are met. If the ABC determines that a public convenience and necessity finding is required, the Planning Commission shall review the request through an administrative permit or use permit based on license type and request, in accordance with the requirements of the Zoning Ordinance.

• Eating Establishments (e.g. bona fide eating places) including beer, wine and alcohol
• CommunityLocal events including beer and wine only (farmer’s market, art festival, etc.)

3.6.6. Residential/Shopping District
Page F-1.198
13 Maximum of eight ABC licenses for Residential/Shopping District, excluding off-sale and on-sale public premises (e.g. bar or tavern), provided all requirements of the California ABC and City are met. If the ABC determines that a public convenience and necessity finding is required, the Planning Commission shall review the request through an administrative permit or use permit based on license type and request, in accordance with the requirements of the Zoning Ordinance.

3.6.6.1. Grocery Store
• Off-site sale of beer, wine, and alcohol for full service grocery stores greater than 20,000 square feet
• Tasting Room: On-site consumption of sample amounts of beer and wine in a restricted area inside the grocery store, proximate to the alcoholic beverage section. The tasting room must be enclosed by a wall and shall not include seating.
• Micro-Brewery or Café, including beer and wine only.

3.6.6.2. Ground Floor Retail
• Eating Establishments (e.g. bona fide eating places) including beer, wine and alcohol

3.6.6.3. Community Park
• CommunityLocal events including beer and wine only (farmer’s market, art festival, etc.)

3.6.7. Campus District
Maximum of four ABC licenses for Campus District, excluding off-sale and onsale public premises (e.g. bar or tavern), provided all requirements of the California ABC and City are met. If the ABC determines that a public convenience and necessity finding is required, the Planning Commission shall review the request through an administrative permit or use permit based on license type and request, in accordance with the requirements of the Zoning Ordinance

3.6.7.1. Campus District Retail
• Eating Establishments (e.g. bona fide eating places) including beer, wine and alcohol

3.6.7.2. Meeting and Collaboration Space and Other Accessory Space • Special events including beer, wine, and alcohol

3.6.7.3. Elevated Park
• Special events including beer and wine only

3.6.7.4. Main Street
Page F-1.199
14 • CommunityLocal events including beer and wine only (farmer’s market, art festival, etc.)

4. MODIFICATIONS TO O AND RMU DISTRICT REQUIREMENTS AND SIGNAGE

REGULATIONS

4.1. Unless enumerated in this section, each building within the Project Site shall comply with the requirements of the O (Office) and R-MU (Residential Mixed-Use) zoning districts. Where a standard or requirement listed below is inconsistent with the Zoning Ordinance, the standard in this CDP takes precedence. In accordance with Zoning Ordinance Section 16.82.050, this CDP authorizes the following modifications (“Modifications”) to the City Zoning Ordinance requirements of the RMU and O districts, which are included in the Zoning Ordinance Modification Request dated September 2, 2022:

4.2. Parcel 1 (Hotel)

4.2.1. No building modulations required along Willow Road or Main Street facades.

4.2.2. Required stepback of 10 feet; allow Shade trellis and parapet within stepback zone(s).

4.2.2.1. Roof trellises within the stepback area shall be included in the calculation of height (maximum and average) for the building.

4.2.3. No public entrances required along Willow Road or Main Street facades. Allow public entrances along West Street.

4.2.4. Minimum setback from back of public easement to be 1 foot, 6 inches for Willow Road

4.2.5. Along Willow Road, allow maximum building projection to extend 4 feet, 6 inches from the required setback.

4.2.6. Along West Street, allow maximum building projection to extend 8 feet from the required setback.

4.2.7. Allow 40% Ground Floor transparency along West St.

4.2.8. Allow 15% frontage landscaping.

4.2.9. Maximum setback of 30 feet along Hotel Service Road.

4.2.10. Maximum setback of 50 feet along West Street.

4.3. Parcel 1 (MCS)
Page F-1.200
15 4.3.1. No building modulations required along North Loop Road.

4.3.2. No building setback or stepback required along North Loop Road.

4.4. Parcel 1 (Office)

4.4.1. No stepbacks required for office garages; stepback required at a height not to exceed 70 feet for 30% of office building facades.

4.4.2. Office buildings 02, 03, 05 and 06 stepback required at a height not to exceed 70 feet and garages not required to have stepbacks or a base height.

4.4.3. Office buildings may have a consistent roofline without modulation.

4.4.4. No requirement for above ground garages to be screened or located behind buildings;

4.4.5. No building entrances required for office buildings along East Loop Road and South Garage.

4.4.6. Allow garage facades along East Loop Road and Main Street to have a minimum modulation of one per 200 feet.

4.5. Parcel 1 (Town Square)

4.5.1. Allow 75 feet maximum length Ground Floor pedestrian passthrough at grade level along Main Street façade, with a minimum of one per facade.

4.5.2. Buildings less than three stories may have a consistent roofline without modulation.

4.5.3. Maximum setback from public easement or property line to be 32 feet along West Street and Main Street.

4.6. Parcel 2

4.6.1. Allow for (i) Maximum base height (including 10-foot increase within the flood zone) to be 71 feet above average natural grade and (ii) roof trellises within stepback areas.

4.6.1.1. Roof trellises within the stepback area shall be included in the calculation of height (maximum and average) for the building.

Page F-1.201
16 4.6.2. Major modulation on Park St. to be a minimum of 8 feet deep.

4.6.3. Two-way garage entrances may be up to 30 feet wide.

4.6.4. Spacing can be up to 138 feet between two building entrances and up to 200 feet from corner to building entrance.

4.6.5. Roof modulation not required for the West St. and Main St. elevations.

4.6.6. No façade minor modulations are required on the Willow Road elevation.

4.7. Parcel 3

4.7.1. Maximum Base Height (including 10-foot increase within the flood zone) to be up to70to 70 feet above average natural grade.

4.7.2. Allow for (i) stepbacks of 8 feet minimum depth, (ii) projections into stepback area, and (iii) projections (awnings) of up to 8 feet.

4.7.3. Maximum allowable building height of 85 feet.

4.7.4. Allow grouped vehicle access locations along Center Street and West Street, without the minimum separation distance.

4.7.5. Allow for (i) major modulations along Main Street to be between 5 feet and 6 feet deep, (ii) major modulations along Center Street to begin at Level 3.

4.7.6. Building may have consistent roofline without modulation.

4.7.7. Maximum Setbackssetbacks on Main Street to be 75 feet.

4.8. Parcel 4

4.8.1. Maximum Base Height (including 10-foot increase within the flood zone) to be up to 70 feet above natural grade.

4.8.2. Minimum Stepbacksstepbacks of 6 feet; Minimumminimum stepback percentage to be 70% of the façade.

4.8.3. Minimum of one major modulation allowed per 250 feet of façade length.

4.8.4. Maximum of 115 feet spacing between minor modulations.

Page F-1.202
17 4.8.5. Minimum height between ground-level finished floor to secondlevel finished floor along street to be 18 feet.

4.9. Parcel 5

4.9.1. Maximum base height (including 10-foot increase within the flood zone) to be up to 70 feet.

4.10. Parcel 6

4.10.1. Minimum Stepbackstepback of 5 feet.

4.10.2. No minor modulation requirement along Park Street façade for levels 3-6.

4.10.3. Maximum base height (including 10-foot increase within the flood zone) to be 60 feet above average natural grade.

4.10.4. Roof modulations may be between 2 feet and 3 feet.

4.11. Parcel 7

4.11.1. Minimum Stepbackstepback of 8 feet.

4.11.2. No minor modulation requirement on Park Street.

4.11.3. Building may have consistent roofline without modulation.

4.11.4. Provide 36approximately 38 of the total required 60 parking spots in a shared arrangement with Parcel 6.

4.11.5. Allow (i) 0.5:1 covered bicycle parking and (ii) 10% additional short-term bicycle parking of the provided long-term spaces.

4.11.6. Allow biotreatment planting adjacent to building frontage.

4.12. Transportation Demand Management

4.12.1. The trip reduction requirement through TDM for the Project shall require a minimum a 20 percent reduction from gross Institute of Traffic Engineers (ITE) Trip Generation Rates for the mixed-use component of the Project (i.e., the Town Square and
Residential/Shopping Districts combined), and compliance with the Trip Cap for the Office Campus (defined below).

4.13. Recycled Water Use
Page F-1.203
18 4.13.1. Temporarily defer enforcement of the Zoning Ordinance Sections

16.43.140(3)(E) and 16.45.140(3)(E) potable water demand reduction requirements until the earlier of the date recycled water is available to meet the project’s nonpotable water demand, or the date specified in the project’s development agreement by which the project is required to begin utilizing recycled water for nonpotable uses.

4.13.2. During the period of deferred enforcement, the project will implement a water conservation plan approved by the city that shall be submitted to the Planning Division 120 days prior to the granting of occupancy for the first building and shall be approved by the City’s Public Works and Community Development Directors prior to the granting of occupancy for the first building.

4.14. Parking

4.14.1. Permit parking for senior units at a rate of 0.5 space per unit.

4.15. Signage

4.15.1. Authorize signage on the main Project Site pursuant to a Master Sign Program to identify the maximum permitted signage by parcel/building and develop sign design guidelines in lieu of compliance with the requirements of Municipal Code Chapter 16.92 and Sections 16.43.120(3) and 16.45.120(3), subject to review and approval of the Master Sign Program by the Planning Commission.

5. PERFORMANCE STANDARDS

5.1. Live Entertainment

5.1.1. The following standards apply to the Town Square and Residential/Shopping Districts. These standards exclude special events that are addressed under subsection 5.3 Special Events.

5.1.2. Live entertainment shall be confined to the tenant space and outdoor seating areas and shall not exceed the permitted occupancy.

Sounds shall not exceed the Menlo Park Municipal Code, Chapter

8.06 (Noise). Live entertainment shall be limited to tenant’s hours of operation.

5.2. Outdoor Seating

5.2.1. Outdoor Seating is permitted throughout the main Project Site.

The following performance standards apply to Outdoor Seating within the Town Square District and Residential/Shopping District and adjacent to the publicly accessible retail in the Campus District. If Page F-1.204
19 desired by the tenant, or if required by other regulatory agencies with jurisdiction, Outdoor Seating shall be enclosed by a fence or containment. A building permit may be required for certain features associated with the Outdoor Seating.

5.2.2. Outdoor Seating areas shall be limited to use at eating and/or drinking establishments.

5.2.3. Outdoor Seating areas shall be adjacent to the building they serve. Sidewalk seating areas shall not exceed the frontage of the business that they serve.

5.2.4. Outdoor Seating areas shall not encroach into publicly accessible open spaces unless the outdoor seating is open to the public and not controlled by a private business.

5.2.5. Outdoor Seating areas shall comply with all applicable provisions of the Americans with Disabilities Act (ADA) and state and local implementing regulations and the universal access requirements of the California Building Code.

5.2.6. No outdoor preparation of food or beverages is permitted in Outdoor Seating areas, except as permitted for outdoor propane barbeques pursuant to California Health and Safety Code.

5.2.7. Portable toilets are not permitted in Outdoor Seating areas, except as authorized through a temporary event or use permit pursuant to Municipal Code Section 8.06.060.

5.2.8. Outdoor Seating areas shall not obstruct or restrict access to public utilities.

5.2.9. Tables, chairs, and any other furniture/fixtures placed within Outdoor Seating areas shall not obstruct or block access to fire protection equipment.

5.2.10. All fixtures, furniture, and structures in Outdoor Seating areas shall comply with the following criteria:

5.2.10.1. Umbrellas/shade structures shall be compatible in design with the adjacent retail tenant’s storefront. They shall not exceed 15 feet in height, shall be temporary/removable, and shall not block any path of travel.

5.2.10.2. Table and chairs in Outdoor Seating areas shall be compatible in design with the adjacent retail tenant’s storefront. They shall not extend beyond the tenant fencing/containment and shall not impede any path of travel.

Page F-1.205
20 5.2.10.3. Outdoor heaters, speakers, and lighting in Outdoor Seating areas shall be compatible in design with the adjacent retail tenant’s storefront and shall not impede any path of travel.

5.2.10.4. All fixtures, furniture, and structures used in Outdoor Seating areas shall be of substantial construction to withstand outdoor use, and maintained in good condition, quality, and repair at all times.

5.2.10.5. Electric radiant heaters are allowed within Outdoor Seating areas. Natural or propane gas heaters are not permitted.

5.2.10.6. All exterior surfaces within Outdoor Seating areas shall be kept clean at all times.

5.2.11. Outdoor Seating areas shall be on the same elevation as the adjacent sidewalk. Raised platforms are not permitted.

5.2.12. Outdoor speakers for background music in Outdoor Seating areas will comply with Noise Ordinance Section 08.06.30.

5.2.13. Fences or containment shall be decorative in nature and constructed from wrought iron, tubular steel, wood, or other mix of durable materials; shall not exceed 3 feet, 4 inches in height unless otherwise required by a regulatory agency (e.g. CA ABC); and shall not restrict pedestrian access into building entries, public path of travel, or other publicly accessible seating areas.

5.2.14. Planters are encouraged in combination with fences. Planters shall be self-watering and designed to prevent irrigation runoff.

5.2.15. Outdoor Seating shall not restrict bicycle and pedestrian access along street frontages.

5.2.16. Outdoor Seating plans shall be submitted to the City for review and approval by the Planning and Engineering Divisions prior to installation of Outdoor Seating. These plans may be submitted concurrent with a building permit application, if required for the installation.

5.3. Special Events

5.3.1. Special events and temporary permits shall comply with Chapter

8.60 and Section 8.06.060 of the Menlo Park Municipal Code, except as provided below. Special events are permitted within the Town Square and Residential/Shopping Districts, including set up and break down, between the hours of 8am-10pm, every day of the week.

Page F-1.206
21 5.3.2. Town Square and Residential/Shopping Districts

5.3.2.1. Farmers market shall be limited to a total of 52 per calendar year.

5.3.2.2. All other community and private events shall be limited to a total of 52 per calendar year.

5.3.2.3. Emergency vehicle access routes through the Town Square shall be kept clear and unobstructed for the duration of any special event.

5.3.3. Campus District

5.3.3.1. Special Events within the Campus District shall be subject to the Event Management Plan, and shall not be subject to the provisions of section 5.3.2 above and not open to the general public.

5.3.4. Commercial Storefronts

5.3.4.1. Commercial storefronts are allowed customization based on the following criteria, subject to obtaining an administrative architectural control permit to be reviewed and granted by the Community Development Director or their designee concurrent with the building permit application, if applicable:
• The tenant is allowed to change or modify the façade materials and color from finished grade to the level 2 floor plate. All modifications shall be compatible with the architectural character.
• The tenant is allowed to change or modify the storefront glazing and entries to suit their program or brand. Rollup, sliding and swinging doors are allowed.
• The tenant is allowed to change or modify the awnings at their lease space.
• The tenant is allowed to change or modify the exterior lighting with their lease space. All lights shall be LED with a maximum color temperature of 3000k. Downlights may be added to awning. Lighting shall be concealed within structure of awning and match in color.

5.3.4.2. Decorative commercial string lights are allowed in conjunction with outdoor seating areas only. Lights shall be commercial grade and suitable for exterior applications. Lights need to be hardwired to a power source.

Extension cords are allowed. Lights shall be LED with a maximum color temperature of 3000k.

5.3.4.3. All commercial signage is governed by the Willow Village Master Sign Program.

Page F-1.207
22 5.4. Pump Station Screening

5.4.1. The pump station and supporting equipment will require screening and sound attenuation per the following criteria:

5.4.1.1. The pump station and supporting equipment shall be located within an enclosure that is architecturally compatible to the adjacent buildings and landscape context.

5.4.1.2. The pump station enclosure shall be made of a material and color that recedes into the landscape.

5.4.1.3. The pump station enclosure shall be designed with a minimum setback of 8’ from all adjacent walks or other pedestrian areas.

5.4.1.4. The pump station enclosure shall be at a minimum to the height of the equipment, and be fully covered provided the enclosure meets the requirements of the West Bay Sanitary District.

5.4.1.5. The enclosure shall be designed with sound attenuation to comply with Chapter 8.06 of Menlo Park’s Municipal Code.

5.4.1.6. The pump station enclosure shall be screened from pedestrian walks, plazas, and view with adequate vegetation.

6. SIGNS

6.1. Master Sign Program. The Project shall comply with Chapter 16.92 of the Zoning Ordinance or submit a project-specific Master Sign program which shall be subject to review and approval by the Planning Commission prior to installation of any onsite mixed use or commercial signage.

6.1.1. The Master Sign Program shall identify the maximum square footage of signage for each parcel/building within the project site and set design guidelines for signage.

7. RECORDATION AND EFFECTIVE DATE

7.1. The Willow Village CDP shall be recorded in the Official Records of the County of San Mateo, State of California.

7.2. The Willow Village CDP shall be in full force and effect on the effective date of the ordinance approving the CDP.

8. CHANGES TO CONDITIONAL DEVELOPMENT PERMIT
Page F-1.208
23 8.1. Changes to this CDP (including the Project Plans) shall be processed at the written request of the Property Owner with all applicable plans and fees, to the Planning Department for review as follows:

8.1.1. Substantially Consistent Changes are made at the staff level and include any modifications that Property Owner makes or proposes to make to this CDP (including the Project Plans) that are in substantial compliance with and/or substantially consistent with the Project approvals based on the determination that the proposed change(s) is consistent with other building and design elements of the CDP, and will not have an adverse impact on the character and aesthetics of the Property. The determination as to whether a requested change is a Substantially Consistent Change will be made by the Community Development Director (in his/her reasonable discretion). Substantially consistent changes do not affect permitted uses, the density or intensity of uses, restrictions and requirements relating to subsequent discretionary actions, monetary obligations, or conditions or covenants limiting or restricting the use of the Property or similar material elements. The Community Development Director or his/her designee shall act on Substantially Consistent Changes administratively, without public notice or hearing.

8.1.2. Minor Changes are any modifications that Property Owner makes or proposes to make to this CDP (including the Project Plans) that are made at the staff level, but the Planning Commission is provided information regarding these changes. The determination as to whether a requested change is a Minor Change is determined by the Community Development Director (in his/her reasonable discretion). A Minor Change is similar in nature to a Substantially Consistent Change, except that Minor Changes are more visible to the general public and result in minor exterior changes to the Project aesthetics (e.g. site layout, location of uses, etc.). Any member of the Planning Commission may request within seven days of receipt of the informational notice that the item(s) be reviewed by the Planning Commission to determine whether the proposed changes are considered a Minor Change. If the Planning Commission does not request review, the Community Development Director or his/her designee shall act on Minor Changes administratively.

8.1.3. Major Changes are any modifications that Property Owner makes or proposes to make to this CDP (including the Project Plans) that do not constitute Substantially Consistent Changes or Minor Changes.

Major Changes are reviewed by the Planning Commission as a Regular Business item, and publicly noticed. Major Changes include, but are not limited to, significant changes to the exterior appearance of the buildings or appearance of the Property, changes to the project plans (e.g. site access, roadway and pedestrian/bicycle infrastructure Page F-1.209
24 design, etc.), which are determined by the Community Development Director (in his/her reasonable discretion) to not constitute Substantially Consistent Changes or Minor Changes to the Conceptual Plans and this CDP. The Planning Commission's decision shall be based on the determination that the proposed modification is compatible with other building and design elements or onsite/offsite improvements of the CDP and would not have an adverse impact on safety and/or the character and aesthetics of the site. Planning Commission decisions on Major Changes may be appealed to the City Council. City Council shall have final authority to approve Major Changes.

8.1.4. Changes for Project Variants are permitted subject to staff review of the resulting on site changes to the Project Plans and this CDP. The Project Variants are permitted without any additional discretionary actions by the City. The following process for the on-site changes are required:

8.1.4.1. If the Willow Road Tunnel is removed, the on-site changes would be reviewed as a Substantially Consistent Change or Minor Change depending on the scope of the changes. No further discrertionarydiscretionary review of the Willow Road Tunnel is required. To ensure the community is aware of the removal of the Willow Road Tunnel, the Community Development Director shall notify the Planning Commission and City Council of this change for informational purposes only.

8.1.4.2. If the applicant does not receive outside agency approval to realign Hamilton Avenue, the associated on-site revisions to the proposed project would be reviewed through an ACP. The review would be limited to the on-site changes based on the revised circulation and locations of building/site features.

8.1.5. Architectural Control Plans (ACPs) for future buildings and site features (e.g. publicly accessible park and dog park) are required for each individual building/site. The Planning Commission shall review the ACPs through an architectural control application. The Applicant is required to submit an architectural control application and pay all applicable fees for the Planning Division's review of the proposed ACPs, subject to review and approval by the Planning Commission.

The Planning Commission's action will be based on substantial conformance with this CDP and the required findings for architectural control, as enumerated in Chapter 16.68.020 (Architectural Control) of the Zoning Ordinance.

8.1.6. Amendments to this CDP (including the Project Plans) that involve material relaxation of the development standards identified in Section 2, material changes to the uses identified in Section 3, Page F-1.210
25 exceedance of the signage maximum square footages identified in the Master Sign Program pursuant to Section 6, or material modifications to the conditions of approval identified in Sections 10 through 21 (in each case, other than changes deemed to be Substantially Consistent Changes pursuant to Section 8.1.1 , Minor Changes pursuant to Section 8.1.2, or Major Changes pursuant to Section 8.1.3), constitute CDP amendments that require public hearings by the Planning Commission and City Council. Such revisions might also require modifications to the Project Plans and/or Willow Village Development Agreement. Any application for amendment to the CDP shall be made by the Property Owner, in writing with all applicable plans and fees, to the Planning Department for review and recommendation by the Planning Commission at a public hearing. The Planning Commission shall forward its recommendation to the City Council for action on proposed amendment(s) to the CDP.

9. TRANSPORTATION MEASURES

9.1. Consistent with the Project proposal and to minimize environmental and community impacts resulting from utilization of the Project Site, Property Owner shall enforce a trip cap (“Trip Cap”) for the Campus District.

9.1.1. Trip Cap: The Property Owner shall comply with the Trip Cap, which sets the maximum number of morning and evening peak vehicle trips and daily vehicle trips for the Campus District, as set forth in Exhibit 3.

9.1.2. Monitoring: The Property Owner shall comply with the parameters and requirements of the Trip Cap as specified in the Willow Village Campus District Trip Cap Monitoring and Enforcement Policy. The Trip Cap applies to the Campus District only.

9.1.3. Implementation: The Trip Cap counting equipment shall be installed in good working order prior to issuance of a certificate of occupancy for the first office building, unless otherwise approved, to the satisfaction of the Public Works Director.

9.2. The Property Owner shall implement the Willow Village Transportation Demand Management (TDM) Plan, which includes TDM components for the Campus District and the Town Square and Residential/Shopping Districts.

9.2.1. Monitoring: The Property Owner shall comply with the Willow Village TDM Compliance Plan which provides recommendations regarding annual monitoring provisions for the Campus District and the Town Square and Residential/Shopping Districts, including the additional residential trip reduction required by the Mitigation Monitoring and Reporting Program for the Project. The Campus Page F-1.211
26 District shall be monitored daily through the Trip Cap and the Town Square and Residential/Shopping Districts shall be monitored annually. The Property Owner shall document compliance with the trip reduction requirements of this CDP through the TDM Compliance Plan in Exhibit 4.

9.3. The Property Owner shall comply with EIR Mitigation Measure TRA-2, which requires the residential land use of the Project to achieve a 36% reduction from gross ITE trip generation rates (resulting in a total of 6,023 average daily trips for the residential uses).

9.3.1. Monitoring: The Property Owner shall comply with the Village TDM Compliance Plan.

10. CONSTRUCTION PERMITS SEQUENCING:

10.1. The following outlines the basic sequencing of site development construction permits related to the Project. Completion of each site development phase (e.g., the Voluntary Remediation Work, the Site Improvement Work, etc.) is determined by the scope of the approved improvement plans. Completion of the site improvements to City standards is necessary prior to the dedication and acceptance of the public improvements. Upon Applicant’s/Property Owner’s completion of public infrastructure, Applicant/Property Owner shall offer for dedication to City such public infrastructure as completed, and City shall promptly accept the completed public infrastructure and release to Applicant/Property Owner any bonds or other security posted in connection with performance thereof in accordance with the terms of such bonds, and thereafter City shall maintain the public infrastructure. Applicant/Property Owner may offer dedication of public infrastructure, as identified in the Site Improvement Plans, in phases and the City shall not refuse to accept such phased dedications or refuse phased releases of bonds or other security so long as all other conditions for acceptance have been satisfied. Circulation improvements providing access to the Project Site as well as on-site access improvements as documented within the approved improvement plans shall be completed prior to the issuance of any temporary or initial Certificate of Occupancy for buildings within the applicable phase.

10.2. Implementation of Willow Village anticipates two overarching construction work phases. The initial efforts pertain to construction of Site Improvements, per Sections

10.2.1-10.2.4 below, primarily comprised of project serving infrastructure improvements, documented in Improvement Plan Sets (Plans, Specifications and Estimates). The second phase of project implementation pertains to the construction of vertical/building improvements. The construction of vertical improvements may overlap with completion of Site Improvements; however, building final permit sign-off/Certificate of Occupancy is dependent on the completion of the Site Improvements associated with the Map Phase in which the subject Vertical improvements are located. At Applicant’s election, Improvement Plan sets may be prepared and submitted for plan check and approval as independent plan sets in the following formats:

10.2.1. Demolition Plans of existing improvements

10.2.2. Grading Plans
Page F-1.212
27 10.2.3. Streets, Utilities and Streetscape Improvements

10.2.4. Park and Open Space Improvements

10.3. At Applicant’s election, plan check and issuance of building permits, may be processed in incremental submittals such as the following, subject to review and acceptance of the Building Division:

10.3.1. Civil Engineering, grading, utilities

10.3.2. Foundation design including piles and pile caps, if proposed

10.3.3. Structural design

10.3.4. Core and Shell

10.3.5. Interior improvements

10.3.6. Site improvements and landscaping

10.4. Voluntary Remediation Work

10.4.1. Implementation of Removal Action Workplan (“RAW”) The primary objective of the RAW is to evaluate potential management practices with the proposed plans to redevelop the Project Site with residential use while protecting the health of future occupants/users. The California Department of Toxic Substances Control (DTSC) approved RAW identifies a preferred removal action most appropriate for the Residential/Shopping District of the Site, as prior remedial actions did not anticipate residential land uses. It is anticipated that DTSC will approve the RAW upon certification of the Willow Village EIR. The applicant is required to implement the remedial actions identified in the final approved RAW prior to issuance of any building or encroachment permits from the City for the Project. Documentation of an approved RAW shall be provided to the Building Division prior to issuance of any building permits for the Project

10.4.2. Site Management Plan (“SMP”) The purpose of the SMP is to establish appropriate management practices/protocols for handling impacted soil, soil vapor, and ground water that may be encountered during development activities. It is anticipated that DTSC will approve the SMP upon the certification of the Willow Village Project EIR. The applicant shall implement the management practices and protocols of the SMP during Project construction. Documentation of an approved SMP shall be provided to the Building Division prior to issuance of any building permits for the Project.

10.4.3. In the event remedial efforts are not completed during the grading phase, and DTSC allows for phased remediation, then as part of each complete building permit application submittal, the grading plans shall document any necessary soil remediation efforts in compliance with the approved site management plan and work plans by DTSC. These plans shall be submitted to the City for reference purposes. Any excavation related to soils remediation shall require issuance of a Page F-1.213
28 building permit from the City. DTSC approval of remediation shall be provided to the Building Division prior to issuance of any building permits.

10.4.4. Vapor Intrusion Mitigation Plan (VIMP”) The purpose of the VIMP is to identify the measures that will be implemented for the planned development to effectively eliminate potential vapor intrusion concerns into future buildings. The VIMP is building specific to identify measures that will be implemented by building and is reviewed and approved by DSTC prior to the issuance of building permits.

Documentation of DTSC review and approval shall be provided to the Building Division prior to building permit issuance. The VIMP plans shall be incorporated for “reference only” into applicable building permit plan sets.

10.5. Subdivision Mapping and Project Serving Improvements

10.5.1. Willow Village proposes a two-step subdivision approach to facilitate the development of the Project. The initial subdivision consists of a Large Lot Parcel Map “A” Map. The primary purpose of the “A” Map is to create legal parcels for potential financing and conveyance purposes, but that are not buildable, reserve and offer for dedication future public rights of way and public easements and provide project serving backbone infrastructure improvements consisting of grading plans, street improvements, utility improvements and streetscape improvements. The “A” map may be filed in multiple maps. The subsequent subdivision process that creates buildable parcels is referred to as a “B” Map. Both Parcel and Final Maps are anticipated to create buildable parcels within the Office District/Town Square District and Residential/Shopping District. All obligations specific to each Parcel or Tract Map are documented as conditions of approval to each map. In the event the required project serving improvements are not completed prior to approval and recordation of the Parcel Map or Final Map, the subdivider shall enter into a Public/Subdivision Improvement Agreement with the City of Menlo Park and provide the appropriate amount of surety guaranteeing the completion of said improvements to the satisfaction of the City Engineer.

10.5.2. The Applicant shall submit for a Final Map/Parcel Map for the “A Map” to the Public Works Department for review and approval, documenting compliance with the Vesting Tentative Map.

10.5.3. The Applicant shall submit public improvement plans prior to or concurrent with the Final Map/Parcel Map for the “A Map” subject to review and approval of the Engineering, Building, and Planning Divisions.

Page F-1.214
29 10.5.4. The Applicant shall construct the public improvements/backbone infrastructure in compliance with the conditions of approval for the Vesting Tentative Map

10.5.5. The Applicant shall coordinate the public improvement plans/backbone infrastructure and the Final Map plans with the Hamilton Avenue Parcels Vesting Tentative Map and associated public improvement plans.

10.6. Willow Road Tunnel

10.6.1. This CDP approves the Willow Road Tunnel Variant in addition to the Project, subject to the review process for on-site changes outlined in Section 8 of this CDP. In the event the Applicant proposes to construct Willow Road Tunnel Improvements, the following process shall apply:

10.6.2. Applicant shall submit to the City Improvement Plans detailing the proposed Willow Road Tunnel consisting of vehicle travel lanes to accommodate bi-directional vehicular travel of Project Transit vehicles, separated pedestrian and bicycle lanes, portal improvements on eastern portion of the MPK 20 site connecting to Bayfront Expressway Tunnel and a tunnel approach consisting of dedicated bicycle and improvements within Willow Village Site.

10.6.3. Applicant shall submit Willow Road Tunnel Improvement Plans to the Community Development and Public Works Departments for review and preliminary design acceptance, prior to submittal to Caltrans and SamTrans.

10.6.4. Following City review and preliminary design acceptance, the Applicant shall submit Willow Road Tunnel Improvement Plans to Caltrans and SamTrans and apply for encroachment permit and/or other required approvals which may coincide with the City’s more detailed building permit review of the Willow Road Tunnel Improvement Plans for the portions of the tunnel on private property (i.e. Project Site and West Campus).

10.6.5. Applicant shall process a Modification, as applicable, to the West Campus Conditional Development Permit for the portions of the tunnel portal and associated improvements on West Campus, which City shall approve if it substantially conforms to the Willow Road Tunnel Improvement Plans.

Page F-1.215
30 10.6.6. Applicant shall apply jointly with SamTrans to California Public Utilities Commission (CPUC) for a GO-88(b) authorization to permit an undercrossing below the Dumbarton Rail corridor.

10.6.7. Applicant shall submit documentation of Caltrans’ approval of encroachment permit, the SamTrans approval of the encroachment permit, and CPUC’s approval of a GO-88(B) authorization to the Public Works and Community Development Departments for review prior to approval and issuance of said Willow Road Tunnel Improvement Plans.

10.6.8. Applicant shall obtain necessary permits, at the Applicant’s sole cost, from Caltrans and SamTrans and provide documentation to the Community Development and Public Works Departments prior to issuance of building permits for the tunnel approach and other improvements on private property, including the Project Site and the West Campus Site.

10.6.9. Public Access Easements: Concurrent with complete plan set submittal for construction of the Willow Road Tunnel, the Applicant shall submit a plat and legal description for a public access easement(s) on property it owns or controls for utilization of the Willow Road Tunnel to the satisfaction of the Public Works Director. The form of public access easement shall permit Applicant to establish reasonable rules and regulations governing its use and to temporarily suspend access to the Willow Road Tunnel in case of emergencies.

The acceptance of the deed or dedication requires Menlo Park City Council approval prior to final inspection.

10.6.10. The Willow Road Tunnel shall be open 24 hours a day for bicyclists and pedestrian access, except when temporarily suspended in case of emergencies or maintenance. If the Willow Road Tunnel will be closed for planned maintenance the Applicant shall provide the Public Works Director with written notice 72 hours in advance.

10.6.11. Maintenance Agreement: Prior to approval of building permit final inspection for the Willow Road Tunnel, the Applicant shall enter into a Maintenance Agreement with the City to maintain the Willow Road Tunnel, including but not limited to typical cleaning and repairs, at the Applicant’s sole cost.

10.6.12. Applicant is responsible for payment of Caltrans and Samtrans permitting, licensing, and other fees associated with the review and approval of the Willow Road Tunnel Improvement Plans.

10.7. Elevated Park Segment Over Willow Road
Page F-1.216
31 10.7.1. The Applicant shall submit to the City Improvement Plans depicting the segment of the Elevated Park that crosses Willow Road consisting of a raised landscaped park open to the public with stair and elevator access points on both sides of Willow Road connecting pedestrian and bicycle users.

10.7.2. Applicant shall submit Elevated Park Improvement Plans to the Community Development and Public Works Departments for review and preliminary design acceptance, prior to submittal for Caltrans.

10.7.3. Following City review and preliminary design acceptance, Applicant shall submit the Elevated Park Improvement Plans to Caltrans and apply for encroachment permit approvals which may coincide with the City’s more detailed review of the Elevated Park over Willow Road Improvement Plans for compliance with the ACP for the Elevated Park.

10.7.4. Applicant shall submit documentation of Caltrans’ approval of encroachment permit prior to the City approval of said Segment of the Elevated Park over Willow Road.

10.7.5. Applicant shall complete Segment of the Elevated Park over Willow Road Improvements prior to the issuance of the last Phase 2 building Certificate of Occupancy and permit sign off.

10.7.6. Maintenance Agreement: Prior to approval of building permit final inspection for the Elevated Park Segment over Willow Road, the Applicant shall enter into a Maintenance Agreement with the City to maintain the Willow Elevated Park Segment, including but not limited to typical cleaning and repairs, at the Applicant’s sole cost.

10.7.7. Applicant shall obtain necessary permits, at the Applicant’s sole cost, from Caltrans and other agencies that have jurisdiction and provide documentation to the Community Development and Public Works Departments prior to issuance of building permits for the segment of the Elevated Park spanning over Willow Road including other improvements on private property, including the Project Site and the Willow/Hamilton Parcel.

10.7.8. Public Access Easements: Concurrent with complete plan set submittal for construction of the Elevated Park, the Applicant shall submit a plat and legal description for a public access easement(s) on property it owns or controls to the satisfaction of the Public Works Director. The form of public access easement shall permit Applicant to establish reasonable rules and regulations governing its use and to temporarily suspend access to the Elevated Park in case of Page F-1.217
32 emergencies. The acceptance of the deed or dedication requires Menlo Park City Council approval prior to final inspection.

10.7.9. Extensions: In the event construction of the Elevated Park is delayed due to circumstance outside of the Applicant’s reasonable control, the Public Works Director may grant an extension based on substantial evidence from the Applicant that the delay is based on external circumstances, and the Applicant demonstrates a good faith effort to complete the improvements. Any extension would be based on an agreed upon timeline by the Public Works Director and the Applicant.

10.7.10. If the segment of the Elevated Park that crosses Willow Road is not approved by outside agencies prior to the development of Phase 2, Applicant shall have no further obligation to construct the segment of the Elevated Park over Willow Road and shall instead (1) pay a community amenity fee in the amount of TenTwenty Million ThreeSeven Hundred Sixty NineThirty Eight Thousand ThirtyOneSixty-Two Dollars ($ 10,369,03120,738,062) and (2) ensure that the vertical transportation system (i.e, elevators, stairs, etc.) at the westerly side of the Elevated Park is located reasonably proximate to the eastern side of Willow Road, taking into account Project design and utility considerations, consistent with the requirements of the Willow Village Development Agreement.

10.8. Vertical Building Phase – The vertical building construction phasing shall conform to Exhibit D of the Development Agreement.

11. BIRD SAFE DESIGN

11.1. Bird-Safe Design: For purposes of addressing the potential for avian collision risk associated with the Project, the Project shall comply with the following:

11.1.1. The “beneficial project features” identified in the Willow Village Master Plan Bird-Safe Design Assessment prepared by H.T. Harvey & Associates for Peninsula Innovation Partners (October 19, 2021) (“Bird-Safe Design Assessment”) as identified in Appendix A to the Bird-Safe Design Assessment.

11.1.2. City Bird-Safe Design Requirements

11.1.2.1. Except as provided in Section 11.1.2.2, the City Bird-Safe Design Requirements identified in Mitigation Measure BIO-1 of the ConnectMenlo:

General Plan Land Use & Circulation Elements and M-2 Area Zoning Update Environmental Impact Report (ConnectMenlo EIR), certified by the City of Menlo Park in 2016 and codified in Sections 16.43.140(6) and 16.45.130(6) of the City’s Municipal Code (collectively referred to as the “City Bird-Safe Page F-1.218
33 Design Requirements”), as described in Sections 5.2.2.1, 5.3.2.1, 5.4.2.1,

5.5.2.1, and 6.2.2 of the Bird-Safe Design Assessment.

11.1.2.2. The Alternative Measures Proposed, as described in Sections 5.2.2.2,

5.3.2.2, 5.4.2.2, 5.5.2.2, and 6.2.2 of the Bird-Safe Design Assessment, in accordance with the Planning Commission approval of waivers to the referenced City Bird-Safe Design Requirements.

11.1.2.3. The “lighting design principles,” as described in Section 6.2.1 of the BirdSafe Design Assessment.

11.1.2.4. The mitigation measures applicable to avian collision impacts identified in the Mitigation Monitoring and Reporting Program for the Project.

11.1.3. Bird-Friendly Design Waivers: In accordance with Zoning Ordinance Sections 16.43.140(6)(H) and 16.45.130(6)(H), this CDP authorizes waivers to the City Zoning Ordinance requirements for BirdFriendly Design in the RMU and O districts as provided with the BirdSafe Design Assessment. Future waivers may be considered and approved by the Planning Commission provided that the proposed waivers do not conflict with the provisions of this CDP.

11.1.4. Prior to City approval of each ACP for the Project, a qualified biologist shall review the final ACP to confirm that the above features, requirements, alternative measures, and mitigation measures, or other alternative features, requirements, alternative measures, and mitigation measures proposed by the applicant and reasonably acceptable to the qualified biologist, are incorporated into the ACP, such that Project impacts due to bird collisions would be less than significant under CEQA and comply with the intent of the City’s Zoning Ordinance requirements, as indicated in the Bird-Safe Design Assessment. The qualified biologist shall submit its report and findings to the Planning Division for review and acceptance prior to action on each individual ACP.

12. PROJECT SPECIFIC CONDITIONS – GENERAL

12.1. The following project specific conditions generally apply to every building permit and construction phase unless a specific building or phase is identified. Each subsequent permit shall be reviewed by the Community Development and Public Works Departments for compliance with these conditions prior to building permit issuance.

Compliance shall be documented by the applicant in the appropriate form as determined by the applicable City department or division.

12.2. Architectural Control Plan Approval: Per Section 2.2.4, an Applicant shall submit for individual parcels within the O and R-MU District complete Architectural Control Plans in accordance with Menlo Park Municipal Code Section 16.68.020 and materially Page F-1.219
34 consistent with the vision and design intent conveyed by the Conceptual Plans, subject to applicable Modifications granted in accordance with Section 4 and Changes granted in accordance with Section 8 herein. Per Section 8.1.4, at time of each ACP submittal, the Property Owner will have the ability to submit additional bird-safe waivers, to be reviewed by a qualified biologist, so long as those waivers are demonstrated to be less than significant under the Willow Village Project EIR. Through the ACP review process the Applicant may request additional project modifications subject to Changes granted in accordance with Section 8 herein. Approval of the Architectural Control Plans is a prerequisite to building permit issuance.

12.3. Future Conditions: The City’s Planning, Building, Engineering, and Transportation Divisions shall review each ACP for substantial conformance with this CDP. The City may impose additional conditions of approval related to building design or conditions necessary to ensure compliance with applicable Building Code or health and safety regulations. Conditions within this CDP would continue to apply to all future ACPs and any future conditions shall be consistent with this CDP, the DA, the MMRP, and Vesting Tentative Maps for the Masterplan.

12.4. Below Market Rate Housing Agreement: Concurrently with the recordation of the Willow Village Development Agreement and this CDP, the Applicant shall record the Project-Wide Willow Village Below Market Rate Housing Agreement and subsequent parcel specific BMR agreements shall be recorded prior to issuance of the first building permit for the associated vertical construction.

12.5. Public Realm Lighting: Building and parcel specific lighting plans shall comply with Sheets G5.22 through G5.33 of the Project Plans and be included in all applicable permits.

12.6. Outside Agency Compliance: Prior to issuance of each building permit, the Applicant shall comply with all Sanitary District, Menlo Park Fire Protection District, and utility companies’ regulations that are directly applicable to the Project. Documentation of compliance shall be submitted to the Building Division prior to building permit issuance.

12.7. Condition Compliance: Prior to the issuance of each building permit, the Applicant shall submit documentation of compliance with all conditions of approval on the plans or in supporting documents for review and approval of the Public Works and Community Development Departments. Any request for a modification in the timing of a specific condition shall be made in writing with a detailed explanation and requested alternative timing to the Community Development Director for review based on conformance with Section 8 (Changes) of this CDP.

12.8. Fees: All outstanding and applicable fees associated with the processing of this Project shall be paid prior to the issuance of any building permit for the Project.

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35 12.9. Construction Fencing: The Applicant shall submit a plan for construction safety fences around the periphery of the construction area or the periphery of the Project Site including the installation of Temporary Noise Abatement sound barriers consistent with Mitigation Measure NOI-1.2 concurrent with the building permit for each phase of construction or site development activities. The fences shall be installed according to the plan prior to commencing construction for each individual construction phase or each building. The plan shall be reviewed and approved by the Building and Planning Divisions prior to issuance of a demolition permit for each building.

12.10. Site Upkeep: Property Owners shall keep their respective properties on the Project Site in a clean and sanitary condition at all times, maintain its site in a fashion that does not constitute a public nuisance and that does not violate any provision of the City of Menlo Park Municipal Code.

12.11. Truck Route Plan: The Applicant shall submit a truck route plan concurrent with the building permit application for each stage of construction based on the City’s municipal code requirements, for review and approval by the Transportation Division.

The Applicant shall also submit a permit application and pay applicable fees relating to the truck route plan, to the satisfaction of the Public Works Director

12.12. Salvaging and Recycling of Construction and Demolition Debris: For each building, the Property Owner shall comply with the requirements of Chapter 12.48 (Salvaging and Recycling of Construction and Demolition Debris) of the City of Menlo Park Municipal Code, which compliance shall be subject to review and approval by the Building Division.

12.13. Water Efficient Landscape Ordinance: Simultaneous with the submittal of each complete building permit application, the Applicant shall provide documentation indicating the amount of irrigated landscaping. If the project proposes more than 500 square feet of irrigated landscaping, it is subject to the City's Water Efficient Landscaping Ordinance (Municipal Code Chapter 12.44). Submittal of a detailed landscape plan is required concurrently with the submittal of each complete building permit application and subject to review and approval of the Engineering Division.

12.14. Landscape Screening: Landscaping shall screen all public utility equipment that is installed within the public and private rights-of-way and cannot be placed underground, subject, however, to the requirements of the Menlo Park Fire Protection District, the West Bay Sanitary District, PG&E, and any other applicable agencies regarding utility clearances and screening. The Improvement Plans shall depict new utility installations exact locations of any meters, back flow prevention devices, transformers, junction boxes, relay boxes and other equipment boxes installed within the public right of way or public easement area in the event said above ground utility installations are depicted within the Improvement Plans. The screening shall be compatible and unobtrusive and subject to the review and approval of the Planning Division which approval will be required prior to the City’s approval of the Improvement Plans.

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36 12.15. Hydrology Report: Simultaneous with the submittal of each complete building permit application, the Applicant's design professional shall evaluate the Project's impact to the City's storm drainage system and prepare a Hydrology Report to the satisfaction of the City Engineer or Director of Public Works, or designee. Postconstruction runoff into the storm drain shaII not exceed pre-construction runoff levels.

12.16. Stormwater Management Report: Simultaneous with the submittal of each complete building permit application, the applicant shall submit a Storm Water Management Report that meets the requirements of the San Mateo County’s C.3 Stormwater Technical Guidance Manual for review and approval of the City’s Engineering Division.

12.17. FEMA Compliance: The Project Site is in Flood Zone AE and must be designed and constructed in compliance with current FEMA regulations, the City’s Flood Damage Prevention Ordinance, and Zoning Ordinance Sections 16.43.140(4) and16.45.130(4) (Hazard Mitigation and Sea Level Rise Resiliency).

12.17.1. Concurrent with the building permit submittal, the Applicant shall submit a FEMA Conditional Letter of Map Revision-Fill (CLOMR-F) application to the Public Works Department for review and approval.

In accordance with the National Flood Insurance Program (NFIP), Section 65.5, the Applicant shall prepare supporting data, including relevant hydraulic and hydrologic analyses, delineation of floodplain boundaries and all other information required by FEMA to review and evaluate the request for a CLOMR-F. Upon receiving City approval, the Applicant shall submit the CLOMR-F application to FEMA.

12.17.2. Prior to issuance of any building permit the Applicant shall obtain a CLOMR-F from FEMA.

12.17.3. The Applicant shall submit an elevation certificate to the Engineering Division prior to final signoff of the foundation inspection for each building.

12.17.4. When construction is complete, appropriate as-built data must be supplied to FEMA for a permanent LOMR-F to be issued. The applicant shall submit the LOMR-F application to FEMA, with a copy to the Engineering Division, within 30 days of Certificate of Occupancy for each building.

12.18. Heritage Tree Protection: Improvement Plans shall include tree protection plans for any construction phase that retains existing heritage trees subject to review and approval of the City Arborist and Planning Division.

12.19. Heritage Tree Removals: The applicant is permitted to remove 276 heritage trees at the main Project Site, 6 heritage trees along O’Brien Drive, 7 heritage trees on 1305 Page F-1.222
37 O’Brien Drive, and 3 heritage trees on 1330 O’Brien Drive, subject to the following conditions.

12.19.1. Heritage tree removal permits were conditionally approved by the City Arborist on 6/28/22 (HTR Permit Nos 2022-00057 and 2022- 00058).

12.19.2. Heritage tree removal permits associated with additional property owners shall not be issued until the City receives written authorization from affected property owners.

12.19.3. Removals of conditionally approved heritage trees may not occur prior to issuance of demolition permits, authorization of all affected property owners, and/or the effective date of this CDP.

12.20. Heritage Tree Replacements: The Applicant is permitted to remove up to 276 heritage trees on the Project Site and 16 heritage trees for construction of the new O’Brien intersection, as determined by the Project Arborist in the Tree Survey Reports dated August 16, 2022 (and shown on Sheets G1.06-G1.09 and Appendix 9) of the Project Plans. A minimum of value of $3,413,400 in heritage tree replacements are required for the Project Site. Heritage tree replacements shall be a minimum of 24-inch box size and are required to be planted at grade. The number of heritage tree replacements shall be tracked by the City and Applicant in accordance with the compliance matrix, dated 6/23/22 and on file with the City and subject to the approval of the City Arborist and Planning Division.

12.21. Title 12 Compliance: Simultaneous with the submittal of each complete building permit application, the applicant shall submit plans to the Building Division verifying that the project complies with all applicable Municipal Code Title 12 (Buildings and Construction) requirements for review and approval.

12.22. Building Codes Compliance: The project is subject to the California Building Code, the California Building Standards Code and any adopted Reach Codes and/or local building code ordinances in effect at the time of each complete building permit application submittal, unless otherwise regulated by the development agreement and this CDP.

12.23. CalGreen Compliance: The project is subject to the California Green Building Standards Code (CalGreen) and any local amendments to the Code in effect at the time of submittal of each complete building permit application, unless otherwise regulated by the development agreement and this CDP.

12.24. Natural Gas Usage: Prior to submittal of a complete building permit application for the superstructure, the Applicant shall apply for an exception to use natural gas, if applicable, for nonresidential kitchens (such as for-profit restaurants and cafeterias), subject to the criteria in Chapter 12.16 of the Municipal Code and the City’s Reach code administrative guidelines. Exceptions for natural gas usage in commercial kitchens Page F-1.223
38 require review and approval of the Environmental Quality Commission and are appealable to the City Council. If exceptions are not granted by the Environmental Quality Commission or City Council, the plans shall be revised to remove all natural gas improvements.

12.25. Unit plans: Each complete building permit application that includes residential units shall include all unit plans to be fully drawn and detailed including mirrored plans.

Further, all residential building plans are required to include drawings for mirrored units including structural, mechanical, electrical, and plumbing plan sheets.

12.26. Deferred submittals: All deferred submittals other than trusses are to be approved by the Building Official or their designee prior to submittal of each complete building permit application.

12.27. Menlo Park Fire Protection District: Each occupancy and unit set forth in the Plans shall have the required fire protection systems, allowable building height and separations per Table 508.4 of the 2019 California Building Code (CBC) or whichever CBC is in effect at the time of building permit submittal. Simultaneous with the submittal of a complete building permit application, the applicant shall include documentation that the Plans have been reviewed and approved by the Menlo Park Fire Protection District.

12.28. Electric Vehicle Space: Each complete building permit application shall include construction documents needed to identify the location of electric vehicle (EV) spaces per the CalGreen code and any local amendments in effect at the time of submittal of a complete building permit application unless otherwise regulated by the development agreement and this CDP.

12.29. Pedestrian Protection: Each complete building permit application shall include pedestrian protection along the public right-of-way with sidewalks, as required per Section 3306 of the 2019 CBC or the CBC in effect at the time of submittal of a complete building permit application.

12.30. Adjoining Properties: Each complete building permit application shall include details regarding protection of adjoining property, as required per Section 3307 of the 2019 CBC or the CBC in effect at the time of submittal of each complete building permit application.

12.31. Sanitary Sewer: Each complete building permit application shall include details demonstrating that all sanitary sewer lines will gravity feed to the sewer mains in the public right-of-way unless otherwise approved by the Building Official or their designee.

12.32. Simultaneous with the submittal of each complete building permit application, the applicant shall submit plans for: 1) construction safety fences around the periphery of the construction area, 2) dust control, 3) air pollution control, 4) erosion and sedimentation control, 5) tree protection fencing, and 6) construction vehicle parking.

The plans shall be subject to review by the Engineering, Planning, and Building Divisions and the City’s Building Official or their designee shall approve the Plans Page F-1.224
39 subject to input by City staff. The safety fences, dust and air pollution control measures, erosion and sedimentation control measures, and tree protection measures shall be installed according to the approved plan prior to commencing construction and implemented throughout the duration of construction at the project site

12.33. Erosion Control: No later than upon the submittal of a complete building permit application, the Applicant shall submit plans that include proposed measures to prevent erosion and polluted runoff from all site conditions, subject to review and approval of the Building Division. During construction, if construction is not complete by the start of the wet season (October 1 through April 30), the Applicant shall implement a winterization program to minimize the potential for erosion and sedimentation. As appropriate to the site and status of construction, winterization requirements shall include inspecting/maintaining/cleaning all soil erosion and sedimentation controls prior to, during, and immediately after each storm event; stabilizing disturbed soils through temporary or permanent seeding, mulching, matting, tarping or other physical means; rocking unpaved vehicle access to limit dispersion of soil onto public right-of-way; and covering/tarping stored construction materials, fuels, and other chemicals. A site specific winterization plan implemented during construction would be subject to review by the Engineering, Building, and Planning Divisions and subject to approval by the Building Official or their designee with input from City staff. The winterization plan would be in addition to any required erosion control plan.

12.34. Stationary Noise Source Compliance Data (Non-roof mounted equipment):

Concurrent with the Core and Shell building permit phase submittal for each building, the Property Owner shall provide a plan that details that all on-site stationary noise sources comply with the standards listed in Section 8.06.030 of the City’s Noise Ordinance. This plan shall be subject to review and approval by the Planning and Building Divisions prior to each building permit issuance.

12.35. Stationary Noise Source Compliance Data (Roof mounted equipment):

Concurrent with the Core and Shell building permit phase submittal for each building, the Property Owner shall provide a plan that details that all roof-mounted stationary noise sources comply with the standards listed in Section 16.08.095 of the City’s Zoning Ordinance. This plan shall be subject to review and approval by the Planning and Building Divisions prior to each building permit issuance.

12.36. Building Construction Street Impact Fee: Prior to issuance of each building permit, the Property Owner shall pay the applicable Building Construction Street Impact Fee, to the satisfaction of the Public Works Director.

12.37. Accessibility: All pedestrian pathways shall comply with applicable Federal and State accessibility requirements, to the satisfaction of the Public Works Director and Building Official.

12.38. Prior to issuance of the building permit for the senior below market rate building, the applicant shall submit documentation of an agreement for up to 36approximately 38 off-site spaces within the adjacent building on residential parcel 6 to the Planning and Page F-1.225
40 Building Divisions for review and approval. The agreement shall be recorded with the San Mateo County Assessor Recorder’s office prior to the granting of Certificate of Occupancy for the senior below market rate building.

12.39. The grocery store shall be a minimum of 35,000 square feet in size.

13. Ongoing Compliance Monitoring

13.1. Water Supply Assessment (WSA) Compliance: Twelve months following the date of the issuance of the certificate of occupancy, the Property Owner/Manager for each parcel shall submit documentation to the City to confirm that potable water usage for the parcel does not exceed the estimated potable water consumption for the parcel documented in the WSA dated February 2022, prepared by West Yost Associates. The estimated total potable water consumption for the Project at full buildout is 94 million gallons per year, a net increase of 75 million gallons and each building shall be reviewed for compliance with its prorated/fair share water usage based on square footage, units, or hotel rooms. The Public Works Director shall review the documentation along with City records for potable water usage at the Project Site to confirm that potable water usage does not exceed the estimated potable water usage in the WSA. In the event that actual water consumption exceeds the WSA, a water conservation program, as approved by the City’s public works director, shall be implemented. Twelve (12) months after City approval of the water conservation program, the building owner shall submit data and information sufficient to allow the city to determine compliance with the conservation program. If water consumption exceeds the budgeted amount, the City’s public works director may prohibit the use of water for irrigation or enforce compliance as an infraction pursuant to Chapter 1.12 of the Municipal Code until compliance is achieved. This section shall not be effective during the period of deferred enforcement established by section 4.13 of this CDP.

13.2. Long-term Maintenance Provisions

13.2.1. Stormwater Operations and Maintenance Agreement for Private Property: Prior to temporary/initial certificate of occupancy for each building, the Property Owner shall enter into, or amend the existing Operations and Maintenance Agreement with the City, as applicable.

The Operations and Maintenance Agreement shall establish a stormwater treatment system maintenance program (to be managed by the Property Owner) that includes annual inspections of any infiltration features and stormwater detention devices (if any), and drainage inlets, flow through planters, and other Best Management Practices (BMP). There may be separate Operations and Maintenance Agreements for each individual parcel within the Project Site, or one combined agreement as may be determined by the City and Applicant.

The Operation and Maintenance Agreements shall be subject to review and approval of the City Attorney and the Public Works Director and shall be recorded prior to final inspection of the Tenant Improvement phase for each building. An annual report documenting Page F-1.226
41 the inspection and any remedial action conducted shall be submitted to the Public Works Department for review. This condition shall be in effect for the life of the Project.

13.2.2. Stormwater Operations and Maintenance Agreement for Rights of Way and the Public Realm: Prior to the certificate of occupancy for each building, the Owners’ Association shall enter into, or amend the existing Operations and Maintenance Agreement with the City, as applicable. The Operations and Maintenance Agreement shall establish a stormwater treatment maintenance program (to be managed by the Owners’ Association) that includes annual inspections of any infiltration features and stormwater detention devices (if any), and drainage inlets, flow through planters, and other Best Management Practices (BMP). There may be separate
Operations and Maintenance Agreements for each individual parcel within the Project Site, or one combined agreement as may be determined by the City and Applicant. The Operation and Maintenance Agreements shall be subject to review and approval of the City Attorney and the Public Works Director and shall be recorded prior to final inspection of the Tenant Improvement phase for each building.

An annual report documenting the inspection and any remedial action conducted shall be submitted to the Public Works Department for review. This condition shall be in effect for the life of the Project.

13.2.3. Landscape Maintenance: Site landscaping shall be maintained by the entities described in Section 13.2.4, below, and to the satisfaction of the Community Development Director. Significant revisions to site landscaping shall require review by the Building Official, Public Works Director, City Arborist, and Community Development Director to confirm the proposed changes comply with accessibility and exiting requirements, stormwater requirements and substantially conform with the Project Plans consistent with the procedure outlined in Section 8, Changes.

13.2.4. Maintenance Obligations

13.2.4.1. City: Once constructed, the Applicant/Property Owner shall dedicate the following improvements to the City, after which time the City shall be responsible for maintaining the public improvements.
• All public streets and utility improvements per Sheet G6.04 of the Project Plans (Conceptual Operations and Maintenance Responsibility Diagram) as follows:
• Park street
• The portion of West Street south of Main Street
• The southern half of East Loop
• The portion of Main Street between Willow Road and West Street and Park Street to the intersection of O’Brien Drive.

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42 13.2.4.2. Applicant: The Applicant shall be responsible for maintaining the following improvements for the life of the Project in accordance with the standards that would be submitted in conjunction with the review and approval of the Improvement Plans.
• The Elevated Park
• Town Square
• The Willow Road Tunnel

13.2.4.3. Owners’ Association: Prior to the first Certificate of Occupancy for the first building, an Owners’ Association shall be formed for purposes of maintaining the following improvements. Following its formation, the Owners’ Association shall be responsible for maintaining the following improvements for the life of the Project in accordance with the standards that would be submitted in conjunction with the review and approval of the Improvement Plans.

1. All privately-owned, publicly accessible open space other than the areas identified in Section 13.2.4.2, per Sheet G6.04 (Conceptual Operations and Maintenance
Responsibility Diagram) of the Project Plans.

2. Private Streets and Utilities as follows:
a. North Loop Road
b. Segment of East Loop north of the Adams
Court Intersection
c. Main Street between the intersection of
West Street and Park Street
d. Center Street
e. East Street
f. Willow Road Tunnel, if constructed

13.3. City shall cooperate with Applicant in implementing all of the conditions of this CDP, including to alter responsibility for ongoing maintenance and compliance obligations as necessary (e.g., alter responsibilities between Applicant, Property Owner, Owners’ Association).

13.4. Power and Communications Requirements: The Property Owner shall comply with all regulations of PG&E and other applicable communication providers (e.g., AT&T and Comcast) that are directly applicable to the Project.

13.5. Public Open Space Access: Simultaneous with the submittal of a complete building permit application, the Applicant shall submit a plat and legal description and proposed form of irrevocable easement agreement for public utilization of the Publicly Accessible Open Space, including the publicly accessible multi-use pathway(s), to the satisfaction of the Public Works Director and City Attorney. The form of irrevocable easement shall ensure, to the satisfaction of the City, that the Applicant has reasonable control over the Publicly Accessible Open Space and that the Publicly Accessible Open Page F-1.228
43 Space is accessible to the general public, in perpetuity during reasonable hours of each day of the week and at a minimum from sunrise to 30 minutes after sunset in compliance with Section 8.28.133 of the Municipal Code, except as otherwise provided in the Open Space Operating Rules to be prepared in accordance with Section 19.

Publicly accessible open space and frontage landscaping that is part of each parcel, and identified in the ACP, shall be open prior to certificate of occupancy.

13.5.1. The irrevocable easement agreement requires City Manager approval and shall be recorded with the County of San Mateo prior to granting of the first unit and/or building occupancy.

13.6. On-site Pedestrian Deterrents and Safety Features: In the Campus District, the on-site pedestrian deterrent materials and color shall be consistent with the materials and colors used for the adjacent Campus District building and landscape palette as approved through the ACP process. In publicly accessible open space and adjacent to publicly accessible private streets, perimeter safety fencing and roadway barricades shall be consistent with the overall character of the publicly accessible open space to the satisfaction of the Community Development Director.

13.7. Generator Screening: To the extent generators are placed on the exterior of the buildings, the Property Owner shall screen all generators prior to certificate of occupancy for each building, to the satisfaction of the Planning Division. Screening shall be to the height of the generator and enclose all four sides of the generator.

Buildings may be used for all or part of the enclosure.

13.8. Refuse and Recyclables: The Project shall comply with Zoning Ordinance Sections 16.43.140(5) and 16.45.130(5) and the City’s implementing regulations.

Documentation of preliminary compliance shall be submitted with each ACP and confirmed prior to issuance of each applicable building permit, subject to review and approval of the Sustainability and Planning Divisions. Ongoing compliance shall be demonstrated by Applicant through zero waste assessments and established benchmarks for waste reduction as part of the City’s implementing guidelines, subject to review and approval of the Sustainability Division.

13.8.1. All garbage bins and carts shall be located within a trash enclosure that meets the requirements of the solid waste disposal provider, and the City Public Works Department and Planning Division for the lifetime of the Project. If additional trash enclosures are required to address the on-site trash bin and cart storage requirements of the Property Owner, a complete building permit submittal shall be submitted inclusive of detailed plans, already approved by the solid waste disposal provider, for review and approval of the Planning Division and the Public Works Department prior to each building permit issuance.

13.8.2. Concurrent with the submittal of each complete building permit application that requires waste and recycling collection services, the Page F-1.229
44 applicant shall provide documentation of approval of the refuse and recycling locations by the City’s waste and recycling provider (e.g.

Recology), subject to review and approval of the Sustainability and Planning Divisions.

13.8.3. All garbage and recycling bins located outside buildings shall include a cover to reduce windborne refuse. The covers may be full or partial, provided that refuse cannot become windborne from the receptacle, subject to review and approval by the Planning and Sustainability Divisions. All exterior garbage and recycling bins shall be frequently emptied on a routine schedule to reduce the possibility of overflowing refuse.

13.9. Event Parking Management Plan: The Project shall comply with the Event Parking Management Plan, dated October 15, 2022 and on file with the City.

13.10. Construction Hours: 13.10. Construction Hours: Construction activities may take place outside of the typical construction hours of 8:00 a.m. to 6:00 p.m. Monday through Friday, provided the construction activities comply with the noise limitations set forth in Chapter 8.06 (Noise) of the municipal code and mitigation measures Modified ConnectMenlo NOISE-1c, NOI-1.1 and NOI-1.2, unless determined by the Building and Planning Divisions that an exception for specific activities is necessary (e.g. offsite evening/night work or other on-site activities that cannot occur during the typical construction hours). Prior to the issuance of a building permit for each individual phase, the Property Owner shall submit a construction work plan and acoustical analysis to the City documenting the expected work hours and compliance with the Noise Ordinance (Chapter 8.06), the project MMRP, and any noise ordinance exceptions subject to review and approval of the Building and Planning Divisions. Noise is allowed to exceed the City’s 85 decibel at 50 foot for any one piece of equipment requirement for construction equipment such as pile drivers, subject to compliance with Modified ConnectMenlo NOISE-1c, NOI-1.1 and NOI-1.2 in the EIR.

13.11. Diesel Generators: Except as provided for in Section 3 of this CDP, any additional diesel generators require review and approval of an administrative permit per the requirements of the Zoning Ordinance.

13.12. Food deliveries to retailers (including grocery) and restaurant and loading hours:

Deliveries of food to retailers (including the grocery) and restaurants are permitted at all hours and are exempt from noise standards in accordance with Municipal Code Section

8.06.040(d).

13.13. EPA Energy Star Portfolio Manager: Simultaneous with the submittal of each complete building permit application, the applicant shall enroll in EPA Energy Star Building Portfolio Manager. Prior to building permit final approval, the applicant shall submit documentation showing compliance to the satisfaction of the Planning and Building Divisions.

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45 13.14. Energy Requirements: Prior to issuance of the first building permit for building or site feature (e.g. publicly accessible park), the applicant shall submit plans and supporting documentation to the Building and Planning Divisions documenting that the project meets one hundred percent of its energy demand (electricity and natural gas), as required by Chapter 16.45.130(2) of the Zoning Ordinance, through the combination of the following measures and to the satisfaction of the Building and Planning Divisions:

13.14.1. On-site energy generation;

13.14.2. Purchase of 100% renewable electricity through Peninsula Clean Energy or Pacific Gas and Electric Company in an amount equal to the annual energy demand of the project;

13.14.3. Purchase and installation of local renewable energy generation within the City of Menlo Park in an amount equal to the annual energy demand of the project;

13.14.4. Purchase of certified renewable energy credits and/or certified renewable energy offsets annually in an amount equal to the annual energy demand of the project.

13.15. The Project Site shall meet one hundred percent (100%) of its energy demand (electricity and natural gas) in accordance with Zoning Ordinance sections

16.45.130(2)(A) (RMU District) and 16.43.140(2)(A) (O District) for the life of the Project.

13.15.1. Concurrent with the submittal of each building permit, the applicant shall document energy demand through the compliance tracker dated 6/23/22 and on file with the City, which verifies the amount of carbon-free energy generated on site compared to the projected amount of non-carbon-free energy used by the Project, to achieve the Zoning Ordinance requirements of 100% renewable energy across the project site.

13.15.2. The Applicant/Project Owner shall document compliance with Zoning Ordinance sections 16.45.130(2)(A) (RMU District) and

16.43.140(2)(A) (O District) on a schedule determined by the Applicant/Project Owner and the City, based on the construction schedule for the Project.

14. OFF SITE IMPROVEMENTS

14.1. Transportation Impact Fee (“TIF”): The current estimated total transportation impact fee based on the maximum development potential is $39,728,599.82 (subject to adjustments for the actual proposed development) ("TIF Obligation”). The Applicant shall complete off-site circulation improvements identified as the responsibility of the Project through the TIA and included in the TIF (“TIF In Lieu Improvements”) in lieu of paying the TIF. The City and Applicant shall establish the estimated cost of the TIF In Lieu Improvements prior to issuance of the first building permit. The TIF In Lieu Improvements shall reduce the TIF Obligation dollar for dollar. In the event the estimated cost of the TIF In Lieu Improvements is less than the TIF Obligation, the difference will be prorated across all buildings on the Project Site and paid at the time of building permit issuance for each building. Credit for existing buildings will be allocated Page F-1.231
46 by location of the new building. The TIF rates are subject to adjustment on July 1st of each year based on the ENR Construction Cost Index % for San Francisco. In the event that another development project is also obligated to construct the improvement and undertakes construction of the improvement, the Applicant would not be credited for said improvement.

14.2. Applicant shall perform, construct and complete, at the Applicant’s own expense, the transportation improvements in Sections 14.5 and 14.6, prior to issuance of the first certificate of occupancy for the Project.

14.3. To determine the estimated TIF In Lieu Improvements cost, the Applicant shall submit detailed estimates of costs, including design, engineering, and permitting costs, to the Director of Public Works or designee of said transportation improvements.

Pursuant to MPMC 13.26.80 the Applicant shall be entitled to credit and/or reimbursement for said transportation improvements.

14.4. Should the final expenses for the TIF In Lieu Improvements exceed the Project estimated TIF payment (determined in 14.1) the TIF Obligation would be adjusted accordingly. If the final expenses (e.g. actual cost) for the TIF In lieu Improvements included in the City’s TIF program exceed the Project’s TIF Obligation, the City and the Applicant shall enter into a reimbursement agreement, which will provide for the Applicant to be reimbursed by the City from available TIF revenues. The reimbursement of the TIF would be made, within 180 days of submittal of the actual cost documentation from the applicant, subject to review and acceptance of the cost documentation by the Public Works Director.

14.5. TIF In Lieu Improvements:

14.5.1. Willow Road and Bay Road – The TIF proposes to modify the southbound approach at this intersection to two left-turn lanes and one right-turn lane and to modify the westbound approach to add a right-turn lane. With these improvements under project conditions, the critical movement delay at the local approach would be reduced to lower than no project conditions. To ensure safe bicycle and pedestrian movements, the project would be required to construct the right turn lane, separated bikeway or other City approved bikeway and pedestrian improvements, and associated signal modifications. This improvement would address the adverse effect on the intersection due to project traffic. This improvement requires Caltrans approval. The Applicant shall construct the improvement prior to certificate of occupancy of the first building on the main Project Site. If Caltrans approval has not been obtained or the intersection improvements have not been completed prior to certificate of occupancy of the first building on the main Project Site, but the Applicant demonstrates that it has worked diligently to pursue agency approvals and completion of construction to the satisfaction of the Director of Public Works or Page F-1.232
47 designee, the Applicant shall continue to pursue approval and construction for a period of five years from the date of issuance of the first vertical construction building permit. If the Applicant continues to work diligently to the satisfaction of the Director of Public Works or designee, but has not yet obtained approval or been able to construct the improvement, then the Applicant shall be relieved of responsibility to construct the improvement and the Applicant shall submit the TIF in Lieu costs subject to any increases based on the ENR Construction Cost Index % for San Francisco.

14.6. Non-TIF intersection improvements

14.6.1. O’Brien Drive and Kavanaugh Drive – The applicant shall work with the City of East Palo Alto to install traffic calming measures to discourage the use of Kavanaugh Drive, which is a residential street, and encourage vehicles to use O’Brien Drive and Adams Drive instead. The cost of the development of the traffic calming plan and implementation of the measures shall not exceed $500,000.

14.6.2. Adams Drive and O’Brien Drive - Design and construct a new traffic signal, appropriate pedestrian and bicycle accommodation should be provided at this intersection. This includes the proposed Class II bicycle lanes along O’Brien Drive between Willow Road and University Avenue, pedestrian countdown timers, Americans with Disabilities Act (ADA) compliant curbs, and bicycle detection loops.

14.6.3. Any project(s) approved within 10 years of the approval date of the Willow Village Master Plan project and required to implement the same Non-TIF Intersection improvement in Section 14.6.2 shall reimburse the Project Applicant for its proportional fair share of the improvement costs. The City shall require and condition such projects to reimburse the Project Applicant for its proportional fair share of the improvement costs.

14.7. Cumulative Intersection Improvements

14.7.1. For the following cumulative intersection improvements, the Applicant shall provide a conceptual plan and a cost estimate (including design engineering) for approval by the Transportation Division to determine the fair share contribution. Applicant shall not be required to construct these improvements.

14.7.1.1. Willow Road & Hospital Plaza/Durham Street – Restripe northbound Durham Street as a shared left-through lane and right-turn lane, and add a northbound right turn overlap phase. The fair share contribution for the intersection improvement, calculated as 25% of the cost estimate, shall be paid prior to the issuance of a building permit
Page F-1.233
48 14.8. Fair Share Payment for Intersections within EPA

14.8.1. University Avenue and Bay Road - The project would reduce its adverse effect on the traffic operations at this intersection by making a fair share (34%) monetary contribution towards modifications to bring the intersection to pre-project conditions including the addition of an exclusive eastbound right-turn lane and a second eastbound left-turn lane on University Avenue, adding a second northbound left-turn lane on Bay Road, adding a second westbound left-turn lane on University Avenue, and modify signal phasing. Partial improvement of this intersection is included in the Menlo Park TIF. The Applicant will receive $5,073.49 credit towards their fair share payment. The Applicant shall provide a conceptual plan of the improvement and a cost estimate (including design engineering) for approval by the Transportation Division to determine the fair share contribution. The fair share contribution for the intersection improvement shall be paid to the City of Menlo Park prior to the issuance of a building permit. If these funds are not used within a 5-year period, the Applicant may request the funds be returned from East Palo Alto.

14.8.2. US 101/University Avenue Interchange - Plans to widen the northbound approach on Donohoe Street at the US 101 northbound off-ramp to accommodate four through lanes to improve the vehicular throughput at this intersection. This improvement will require median modifications and narrowing the southbound Donohoe Street approach to Cooley Avenue to include two through lanes and a full length left-turn lane. In addition, the traffic signals will be coordinated with adjacent traffic signals on Donohoe Street. Additionally, plans to install a new traffic signal at the US 101 northbound on-ramp and Donohoe Street and Bayshore Road and Euclid Avenue to coordinate with other closely spaced traffic signals along Donohoe Street. Along with new traffic signals, appropriate pedestrian and bicycle accommodation will be provided. This includes pedestrian countdown timers, Americans with Disabilities Act (ADA) compliant curbs, and bicycle detection loops. In order to align with the proposed driveway for the University Plaza Phase II site on the north side of Donohoe Street, the US 101 on-ramp will be shifted approximately 30 feet to the south. In addition, the northbound approach on Donohoe Street will be restriped to accommodate a short exclusive left-turn pocket (approximately 60 feet in length), a shared left-through lane, and a shared through-right lane. These improvements would require widening of the US 101 northbound on-ramp to accommodate two lanes that taper down to a single lane before this ramp connects with the loop on-ramp from eastbound University Avenue. A northbound right turn only will also be added to Bayshore Road and Euclid Avenue. Because the improvements in this corridor are all Page F-1.234
49 interconnected and dependent on each other to work, the recommended improvement measure would be for the Project sponsor to contribute its fair share to improvements at all six intersections in this corridor. Fair share is calculated as the percentage of net project traffic generated of the overall cumulative traffic growth at this intersection. The fair share will be applied to the cost estimates approved by the City of East Palo Alto to determine the fair share contribution. Partial improvement of the University and Donohoe intersection is included in the Menlo Park TIF. The Applicant will receive $10,147 credit towards their fair share payment. The fair share contribution for these intersection improvements shall be paid to the City of Menlo Park prior to the issuance of a building permit. If these funds are not used within a 5-year period, the Applicant may request the funds be returned from East Palo Alto.
a. Donohoe Street & Cooley Avenue: 10% fair share
b. Donohoe Street & US 101 Northbound Off-Ramp: 24% fair share c. Donohoe Street & University Avenue: 31% fair share
d. Donohoe Street & US 101 Northbound On-Ramp: 8% fair share e. Donohoe Street/Bayshore Road & Euclid Avenue: 2% fair share

15. PROJECT SPECIFIC CONDITIONS – NO HAMILTON AVENUE REALIGNMENT

VARIANT

15.1. No Hamilton Avenue Realignment Variant. This CDP approves the No Hamilton Avenue Realignment Variant in addition to the Project, subject to the requirements for Changes in Section 8. If all applicable agencies with jurisdiction over the proposed realignment of the intersection of Hamilton Avenue and Willow Road have not issued all necessary approvals, or if Applicant is unable to obtain sufficient real property rights, for the proposed realignment as depicted in Conceptual Vehicular Circulation Concept – Variant exhibit G4.08 prior to the completion of the backbone infrastructure,: (i) the intersection of Hamilton Avenue and Willow Road and the proposed circulation network east of Willow Road within the Project Site would be revised generally consistent with Exhibit G4.08 to accommodate retaining the Willow Road/Hamilton Avenue intersection in its current alignment; (ii) Property Owner shall nonetheless be permitted to construct the Project, as reconfigured in accordance with Exhibit G4.08, in accordance with this CDP.; and (iii) maximum building square footage shall be recalculated in accordance with Municipal Code Section 16.04.325 (Gross floor area) and maximum allowed gross floor area and floor area ratios shall be recalculated based on the area of public right-ofway dedication shown on the revised Parcel Map utilizing the calculations and ratios identified on Sheets G1.5 and G3.02 of the Project Plans, provided that in no case shall the maximum allowable gross floor area, floor area ratios, and density exceed the maximums permitted in this CDP., The City shall cooperate with Applicant in its effortsin connection with any modifications to modify this CDP or other Project entitlements necessary to construct the Project as reconfigured pursuant to this section.

16. PROJECT SPECIFIC CONDITIONS – PG&E IMPROVEMENTS
Page F-1.235
50 16.1. Applicant shall coordinate with PG&E to implement improvements to upgrade the distribution power capacity at its Ravenswood substation to meet the Project Site’s diversified projected power demand through an interconnection and new distribution conduit feeders to provide power to the Project Site. Applicant shall be responsible for fees due to PG&E as outlined in the applicable tariff regulations. Prior to the issuance of the first new building certificate of occupancy for the Project Site, Applicant shall provide documentation to the City that PG&E has completed the initial phase of power upgrades and reinforcements, as evidenced by PG&E’s notice that the first new building on the Project Site is ready to be energized.

17. PROJECT SPECIFIC CONDITIONS – WEST BAY SANITARY DISTRICT

IMPROVEMENTS

17.1. Waste Water Conveyance Improvements: Applicant shall comply with regulations of the West Bay Sanitary District that are directly applicable to the Project in the design and construction of wastewater conveyance improvements, and submit documentation to the Planning and Building Divisions prior to issuance of each building permit. The West Bay Sanitary District Improvements serving the Project Site will be depicted on the Willow Village Improvement Plan set, subject to approval by West Bay Sanitary District.

17.2. Recycled Water: Applicant shall coordinate with West Bay Sanitary District in its efforts to design and construct the Bayfront Recycled Water Plant, described in the EIR as the Resource Recovery Center (“Recycled Water Plant”). Applicant shall enter into an agreement with West Bay Sanitary District which acknowledges Applicant’s fair share financial commitment along with the District’s performance metrics to construct and operate the Recycled Water Plant. Applicant shall provide evidence that agreement has been entered into with the District prior to issuance of the building permit for the first new building on the Project Site. Provided that Applicant has entered into the agreement with West Bay Sanitary, if West Bay Sanitary has not completed the Recycled Water Plant such that it can deliver recycled water to the Project Site when demand for non-potable water is created, the City shall energize the recycled water distribution lines within the Project Site with potable water and Property Owner shall be permitted to use potable water for non-potable purposes at the Project Site until such time as West Bay Sanitary District is able to provide non-potable water, or as provided in Section 17.3. Additionally, pursuant to section 4.13 of this CDP, Applicant shall prepare and submit a water conservation plan that addresses potable water use during the interim period from the initial building occupancy until West Bay energizes the Recycled Water Supply. The water conservation plan shall address the frequency of potable water use reporting, acknowledge that the project shall comply with any demand reduction measures established and enforced by the City applicable to other similarly situated water users. This plan shall be submitted prior to the issuance of the initial temporary certificate of occupancy only in the event recycled water is not available concurrent with the final inspection and shall be subject to review and approval of the Public Works Director.

Page F-1.236
51 17.3. Onsite Recycled Water Variant: This CDP approves the Onsite Recycled Water Variant in addition to the Project, subject to the requirements for Changes in Section 8.

In the event that West Bay Sanitary District has not completed the Recycled Water Plant such that it can deliver recycled water to the Project Site by 24 months after the issuance of a Certificate of Occupancy for the initial building within Phase 1 of the Project, or in the event that the West Bay Sanitary District abandons the proposed Recycled Water Plant before that date, the Applicant shall provide written notice to the Public Works Director that the Applicant intends to construct an Alternative Recycled Water Treatment facility capable of meeting the projected non-potable water peak demand for the Project. Within 60 months after notice is provided to the City Public Works Director, the Applicant shall complete an Alternative Recycled Water treatment facility for the production of recycled water through the capture of wastewater, including blackwater, from all proposed buildings on the Project Site.

17.3.1. Following steps are the anticipated:

17.3.1.1. Submittal of Concept Plans to Community Development and Public Works Departments for review within 90 days from submittal of Alternative Recycled Water Treatment Facility notice.

17.3.1.2. Submittal of construction documents 12 months after City Approval of Concept Plans.

17.3.1.3. Submittal Title 22 Engineering Report and obtain approvals/permits from the State Division of Drinking Water (DDW), from the Regional Board, and a discharge permit from West Bay Sanitary District.

17.3.1.4. Commence construction of Alternative Recycled Water Facility within 90 days of approval of necessary permits required to commence construction.

18. PROJECT SPECIFIC CONDITIONS – SFPUC ROUNDABOUT

18.1. Applicant shall obtain San Francisco Public Utilities Commission (“SFPUC”) approval for a lease, license, easement agreement, or other authorization to permit the construction and operation of the proposed Main Street/O’Brien Drive roundabout intersection improvement and drainage improvements (“SFPUC Improvements”) within the SF PUC right of way prior to issuance of the first building permit for the Project Site.

The City shall be the applicant for public improvements that require approval and granting a lease, license, easement agreement, or other authorization from SFPUC.

18.2. Applicant shall submit to the City Improvement Plans detailing the proposed SFPUC improvements consisting of O’Brien Drive right-of-way realignment, new connection to the Project Site, creation of a roundabout within the right-of-way, and drainage improvements within the SFPUC right-of-way.

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52 18.3. Applicant shall submit SFPUC Improvement Plans to the Community Development and Public Works Departments for review and preliminary design acceptance, prior to submittal to SFPUC.

18.4. Following City review and preliminary design acceptance, the Applicant shall submit SFPUC Improvement Plans to the SFPUC and apply for all applicable review and approvals.

18.5. Applicant shall obtain necessary permits and approval from SFPUC and provide documentation to the Community Development and Public Works Departments prior to issuance of the building permit for the first building.

18.6. Applicant shall construct all SFPUC roadway improvements prior to certificate of occupancy for the first building on the Project Site.

18.7. Applicant shall construct drainage improvements within the SFPUC right-of-way concurrent with the roadway improvements to ensure that stormwater drainage is not disrupted.

18.8. In the event construction of the SF PUC Improvements is delayed due to circumstance outside of the Applicant’s reasonable control, the Public Works Director may grant an extension based on substantial evidence from the Applicant that the delay is based on external circumstances, and the Applicant demonstrates a good faith effort to complete the improvements. Any extension would be based on an agreed upon timeline by the Public Works Director and the Applicant.

19. PROJECT SPECIFIC CONDITIONS – OPERATING RULES FOR PUBLICLY

ACCESSIBLE OPEN SPACE

19.1. Prior to opening the Publicly Accessible Open Space to the public, the Property Owner or Owners’ Association, as applicable, shall prepare Operating Rules for the Publicly Accessible Open Space, including the Elevated Park, which shall set forth reasonable rules and restrictions regarding the public’s access to and use of the Publicly Accessible Open Space per the requirements of this CDP, subject to review and approval of the Directors of Community Development and Public Works, City Manager or their designee, and City Attorney. The Operating Rules may include without limitation provisions such as: (a) permitting the Property Owner or Owners’ Association, as applicable, to reasonably restrict or prohibit public access and use as reasonably necessary to (i) ensure security of the Project Site and persons or property within or around the Project Site and (ii) preclude activities that unreasonably disrupt non-public uses in the Project; (b) providing exclusive use by Property Owner for a specified number of private events; and (c) providing terms of use for community use of the Publicly Accessible Open Space. The Operating Rules shall include a provision that prohibits balloons in the Elevated Park.

20. PROJECT SPECIFIC CONDITIONS – MITIGATION MEASURES
Page F-1.238
53 20.1. The Property Owner shall comply with all mitigation measures identified in the EIR and the associated Mitigation Monitoring and Reporting Program for the Project attached hereto as Exhibit 6.

21. GENERAL CONDITIONS

21.1. School Impact Fee: Prior to issuance of each building permit, the Property Owner shall pay the applicable School Impact Fee for the building in effect at the time of payment and submit documentation of payment to the Building Division prior to issuance of each building permit.

21.2. Menlo Park Municipal Water: The Property Owner shall comply with all requirements of Menlo Park Municipal Water that are directly applicable to the Project and document compliance prior to issuance of each building permit.

21.3. Leadership in Energy and Environmental Design: The Property Owner shall design and certify buildings greater than 25,000 square feet in size for LEED Gold (Residential/Shopping District and Campus District) and buildings between 10,000 and 25,000 square feet in size for LEED Silver (Town Square District) certification, in accordance with Zoning Table 16.45.130(1)(B) and (C) (RMU District) and

16.43.140(1)(B) (O District). Buildings on the Project Site of less than 10,000 sf would not be certified under LEED. Each building shall be certified within one year of Certificate of Occupancy and documentation shall be provided to the Planning Division.

At its discretion, the Property Owner may certify buildings less than 25,000 square feet in size for LEED Gold.

21.4. Lighting: Concurrent with building permit submittal for each individual building as appropriate, the Property Owner shall submit a lighting plan, including photometric contours, manufacturer’s specifications on the fixtures, and mounting heights to ensure safe access and to illustrate the light and glare do not spillover to neighboring properties, to the satisfaction of the Planning, Engineering, Transportation, and Building Divisions.

21.5. The City has approved this CDP in conjunction with a Development Agreement. During the term of the Development Agreement, the CDP shall be subject to the terms and conditions of the Development Agreement and, in the event of a conflict, the terms and conditions of the Development Agreement shall prevail.

21.6. This CDP is being provided in exchange for the provision and effectuation of the Willow Village Community Amenities as defined and outlined in the Development Agreement and in accordance with the timing/phasing provided in Exhibits ___D and ___F of the Development Agreement, as they may be amended from time to time.

Provision and timing of said Willow Village Community Amenities are a condition of this CDP and this requirement shall survive any termination of the Development Agreement.

21.7. Covenants Run with the Land: All of the conditions contained in this CDP shall run with the land comprising the Project Site and shall be binding upon, and shall inure Page F-1.239
54 to the benefit of the Applicant and its heirs, successors, assigns, devisees, administrators, representatives and lessees, except as otherwise expressly provided in this CDP. Upon transfer, sale, or assignment of all or any portion of the Project Site to another owner, the Applicant shall be released from its obligations pursuant to this CDP with regard to the transferred, sold, or assigned property that arise or accrue subsequent to the effective date of the transfer, sale and/or assignment.

21.8. Severability: If any condition of this CDP, or any part hereof, is held by a court of competent jurisdiction in a final judicial action to be void, voidable or unenforceable, such condition, or part hereof, shall be deemed severable from the remaining conditions of this CDP and shall in no way affect the validity of the remaining conditions hereof.

Notwithstanding the foregoing, in the event that any provision of this CDP is found to be unenforceable, void or voidable which materially impairs Applicant’s ability to construct the Project, Applicant may terminate this CDP upon providing written notice to the City.

21.8.21.9. Indemnification. The Applicant or permittee shall defend, indemnify, and hold harmless the City of Menlo Park or its agents, officers, and employees from any claim, action, or proceeding against the City of Menlo Park or its agents, officers, or employees to attack, set aside, void, or annul an approval of the Planning Commission, City Council, Community Development Director, or any other department, committee, or agency of the City concerning a development, variance, permit, or land use approval; provided, however, that the Applicant’s or permittee’s duty to so defend, indemnify, and hold harmless shall be subject to the City’s promptly notifying the Applicant or permittee of any said claim, action, or proceeding and the City’s full cooperation in the Applicant’s or permittee’s defense of said claims, actions or proceedings. In the event of a conflict between this indemnification language and the indemnification language included in the Development Agreement, the Development Agreement shall control. This indemnification language shall only control in the event the Development Agreement is no longer in effect.

21.9.21.10. Exhibits: The exhibits referred to herein are deemed incorporated into this CDP in their entirety.

EXHIBITS
Exhibit 1: Legal Description (To be incorporated prior to recordation) Exhibit 2: Plat Map (To be incorporated prior to recordation) Exhibit 3: Trip Cap Monitoring and Enforcement Policy (Staff Report Attachment T) (Staff Report Attachment M)
Exhibit 4: TDM Compliance Plan (November 15, 2022 Staff Report Attachment U) Exhibit 5: Glossary of Supporting Documents
Exhibit 6: Mitigation Monitoring and Reporting Program (Staff Report Attachment B
Page F-1.240
IRV #4880-8706-3352 v5
ORDINANCE NO. XXXX

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MENLO PARK FOR

APPROVAL OF THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF

MENLO PARK AND PENINSULA INNOVATION PARTNERS, LLC FOR THE

WILLOW VILLAGE PROJECT
The City Council of the City of Menlo Park does ordain as follows:

SECTION 1.

This Ordinance is adopted under the authority of Government Code Section 65864 et seq. and pursuant to the provisions of City Resolution No. 4159, which establishes procedures and requirements for the consideration of developments within the City of Menlo Park (“City”). This Ordinance incorporates by reference that certain Development Agreement for the Willow Village Project (the “Development Agreement”) by and between the City and Peninsula Innovation Partners, LLC (“Applicant”) attached hereto as Exhibit A (Staff Report Attachment A10) and incorporated herein by this reference.

SECTION 2.

The City, as lead agency, prepared an Environmental Impact Report (“EIR”) pursuant to the California Environmental Quality Act (“CEQA”) that examined the environmental impacts of the redevelopment of the approximately 59-acre industrial site (the “Main Project Site”) plus three parcels (within two sites) west of Willow Road (the “Hamilton Parcels” and collectively, with the Main Project Site, the “Project Site”). On ____________ __, 202_, by Resolution No. _____, the City Council certified the EIR, made certain findings, and adopted a Mitigation Monitoring and Reporting Plan, which Resolution together with the EIR are incorporated herein by reference. The City Council finds that the Development Agreement is within the scope of the EIR.

SECTION 3.

As required by Resolution No. 4159, the Planning Commission reviewed the Development Agreement at a duly and properly noticed public hearing held on October 24, 2022 and continued to November 3, 2022 and recommended that the City Council adopt this ordinance.

As part of its recommendation to the City Council, the Planning Commission determined that the Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan; is compatible with the uses authorized in and the regulations prescribed for the land use district in which the Project Site is located; is in conformity with public convenience, general welfare and good land use practice; will not be detrimental to the health, safety and general welfare of the City or the region surrounding the City; and will not adversely affect the orderly development of property or the preservation of property values within the City.

SECTION 4.

The City Council held a duly and properly noticed public hearing on the Development Agreement on __________ __, 2022. The City Council finds that the following are the relevant facts concerning the Development Agreement:

1. The General Plan designates the Main Project Site for Office and Mixed-Use Residential land uses and Hamilton Parcels for Retail/Commercial land uses. The Main Project Site is zoned O-B-X and R-MU-B-X, and the Hamilton Parcels are zoned C-2-S.

2. The Applicant proposes a unified development on the Main Project Site consisting of approximately 59 acres.

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3. The Applicant proposes to demolish the existing buildings on the Main Project Site and redevelop the Project Site with the subsequent construction of a mixed-use development consisting of up to 1.6 million square feet of office and accessory uses (a maximum of 1,250,000 square feet for offices and the balance for accessory uses), up to 1,730 multifamily dwelling units, up to 200,000 square feet of retail uses, an up to 193-room hotel, and associated open space and infrastructure (the “Project”).

4. The Applicant proposes to provide numerous community amenities, some of which are on the list of community amenities adopted by the City Council and some of which have been agreed upon by City and the Applicant in the Development Agreement, as specified in further detail in the Development Agreement. The Development Agreement’s requirement for the Applicant to implement community amenities allow the Applicant to develop the Main Project Site with an increased floor area ratio, density, and height in the R-MU-B-X district and increased floor area ratio and height in the O-B-X district. The Applicant submitted an application identifying the amount of bonus development sought, an appraisal of the fair market value of the gross floor area of the bonus level of development compared to the fair market value of the base level development, and the projected value of the proposed community amenities. The City’s economic consultant conducted a peer review analyzing and revising the values. Based upon such City-determined values, the value of the community amenities set forth in the Development Agreement will equal or exceed half the difference between the value of the base and bonus level development scenarios.

SECTION 5.

As required by Section 302 of Resolution No. 4159 and based on an analysis of the facts set forth above, the staff report to the City Council, the presentation to the Council, supporting documents, and public testimony, the City Council hereby adopts the following as its findings:

1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan because the Project will create a live/work/play environment that will place office, residential and commercial uses in close proximity to one another. As described in the EIR, the Project will be consistent with the land use designations and the goals and polices of the General Plan.

2. The Development Agreement is compatible with the uses authorized in and the regulations prescribed for the O-B-X, R-MU-B-X, and C-2-S districts in which the Project Site is located because the Project includes office buildings, mixed use residential and retail buildings providing high density residential housing to serve both the office buildings and existing community housing needs and neighborhood-serving retail, and open space. As described in the EIR, the Project will be consistent with the development regulations of the applicable zoning districts, including the use of bonus level development and a master-planned project to provide creative designs, orderly development, and optimal use of open space while maintaining and achieving the City General Plan vision for the Bayfront Area.

3. The Development Agreement is in conformity with public convenience, general welfare and good land use practices because the Project is consistent with the General Plan and zoning designations for the Project Site and appropriate utilities and services can be provided for the Project.

4. The Development Agreement will not be detrimental to the health, safety and general welfare of the City or the region surrounding the City.

5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values within the City.

6. The Development Agreement will promote and encourage the development of the Project by providing a greater degree of certainty with respect thereto by establishing the regulations concerning land use development, timing and sequencing of Project development and the payment of fees.

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7. The Development Agreement will result in the provision of public benefits by the Applicant, including, but not limited to, payments to the City to offset lost revenue from the hotel in the event of construction delays (i.e. gap payment); financial commitments to ongoing job training and career experience programs; and stakeholder support for Dumbarton Rail Corridor Project and Dumbarton Forward.

8. The community amenities proposed in the Development Agreement have a value of at least fifty percent (50%) of the fair market value of the additional gross floor area of the bonus level development in accordance with Menlo Park Municipal Code Sections 16.43.070 and

16.45.070, and include, but are not limited to, additional funding for affordable housing, workforce housing, grocery, pharmacy services and banking uses, dining and entertainment uses, a shuttle to transport Bayfront residents to the Project Site, funding for air quality and noise monitors in the Belle Haven neighborhood, and community use of open space within the Project, including the elevated park and town square.

SECTION 6.

Based upon the above findings of fact, the Development Agreement for the Project is hereby approved, subject to such minor, conforming and clarifying changes consistent with the terms thereof as may be approved by the City Manager in consultation with the City Attorney. The City Council hereby authorizes the Mayor to execute the Development Agreement and all documents required to implement the Development Agreement on behalf of the City.

SECTION 7.

No later than ten days after this ordinance is effective and has been executed by all parties, the City Clerk shall record with the San Mateo County Recorder a copy of the Development Agreement, as required by Government Code Section 65868.5.

SECTION 8.

If any section of this ordinance, or part hereof, is held by a court of competent jurisdiction in a final judicial action to be void, voidable or enforceable, such section, or part hereof, shall be deemed severable from the remaining sections of this ordinance and shall in no way affect the validity of the remaining sections hereof.

SECTION 9.

PASSED AND ADOPTED as an ordinance of the City of Menlo Park at a regular meeting of said City Council on the __ day of NovemberDecember, 2022, by the following votes:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:
________________________
Betsy Nash, Mayor
ATTEST:
_________________________
Judi A. Herren, City Clerk
Exhibits:

A. Form of development agreement for the Willow Village project by and between the City and Peninsula Innovation Partners, LLC
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Menlo Park
701 Laurel Street
Menlo Park, CA 94025
Attn: City Clerk
Exempt from recording fee per
Govt. Code §6103 and 27383
Space Above This Line Reserved for Recorder’s Use

DEVELOPMENT AGREEMENT
by and between the

CITY OF MENLO PARK,
a California municipal corporation
and

PENINSULA INNOVATION PARTNERS, LLC
a Delaware limited liability company
regarding the
Willow Village Master Plan Project
Dated: ________________, 2022
EXHIBIT A Page F-1.245
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS...........................................................................................................4 Section 1.1 Definitions. .................................................................................................4 ARTICLE 2 EFFECTIVE DATE AND TERM...........................................................................11 Section 2.1 Effective Date ...........................................................................................11 Section 2.2 Term..........................................................................................................11 Section 2.3 City Representations and Warranties........................................................14 Section 2.4 Developer Representations and Warranties..............................................14 ARTICLE 3 DEVELOPMENT OF PROPERTY ........................................................................15 Section 3.1 Vested Rights............................................................................................15 Section 3.2 Development and Design Standards.....................................................1516 Section 3.3 Reservations of Authority.........................................................................16 Section 3.4 Regulation by Other Public Agencies...................................................1617 Section 3.5 Life of Project Approvals .........................................................................17 Section 3.6 Initiatives ..................................................................................................17 Section 3.7 Timing of Development........................................................................1718 Section 3.8 Changes in the Law ..................................................................................18 Section 3.9 Expansion of Development Rights .......................................................1819 Section 3.10 No Reservation of Sanitary Sewer or Potable Water Capacity ................19 Section 3.11 Project Approvals and Applicable City Regulations................................19 Section 3.12 Written Verification of Sufficient Water Supply..................................1920 ARTICLE 4 OTHER RIGHTS AND OBLIGATIONS OF THE PARTIES...........................1920 Section 4.1 Developer Fees. ....................................................................................1920 Section 4.2 Fee Credits............................................................................................2021 Section 4.3 Reimbursements from Other Developers .............................................2021 Section 4.4 CFDs.........................................................................................................21 Section 4.5 Public Infrastructure .................................................................................23 Section 4.6 Prevailing Wage Requirements ................................................................23 Section 4.7 Taxes and Assessments.........................................................................2425 ARTICLE 5 COMMUNITY AMENITIES; PUBLIC BENEFITS; TERMS

REGARDING MAINTENANCE AND COMPLETION OF PROJECT
IMPROVEMENTS.........................................................................................................25 Page F-1.246
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Section 5.1 Bonus Development Community Amenities........................................2526 Section 5.2 Leasing of Space for Bonus Development Community Amenities..........29 Section 5.3 Public Benefits......................................................................................2930 Section 5.4 Maintenance of Publicly Accessible Open Space ................................3133 Section 5.5 Maintenance of Elevated Park Segment Over Willow Road and Willow Road Tunnel.............................................................................3133 Section 5.6 Sales Tax Point of Sale Designation.....................................................3133 Section 5.7 BMR Housing True Up Payment .........................................................3234 Section 5.8 Hamilton Avenue Realignment ................................................................35 ARTICLE 6 ANNUAL REVIEW............................................................................................3335 Section 6.1 Periodic Review....................................................................................3335 ARTICLE 7 MORTGAGEE PROTECTION ..........................................................................3536 Section 7.1 Mortgagee Protection............................................................................3536 Section 7.2 Mortgagee Not Obligated .....................................................................3537 Section 7.3 Notice of Default to Mortgagee; Right to Cure....................................3537 Section 7.4 No Supersedure.....................................................................................3638 Section 7.5 Technical Amendments to this Article 7 ..............................................3638 ARTICLE 8 AMENDMENT OF AGREEMENT AND EXISTING APPROVALS ..............3638 Section 8.1 Amendment of Agreement By Mutual Consent ...................................3638 Section 8.2 Requirement for Writing.......................................................................3638 Section 8.3 Amendments to Development Agreement Statute ...............................3638 Section 8.4 Amendments to Project Approvals.......................................................3739 Section 8.5 Administrative Amendments of Project Approvals..............................3739 Section 8.6 Operating Memoranda..........................................................................3839 Section 8.7 Amendment to Incorporate Additional Property ..................................3840 Section 8.8 CEQA ...................................................................................................3840 ARTICLE 9 COOPERATION AND IMPLEMENTATION...................................................3940 Section 9.1 Subsequent Project Approvals..............................................................3940 Section 9.2 Scope of Review of Subsequent Project Approvals .............................3941 Section 9.3 Processing Applications for Subsequent Project Approvals. ...............3941 Page F-1.247
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Section 9.4 Other Agency Subsequent Project Approvals; Authority of City ........4043 Section 9.5 Implementation of Necessary Mitigation Measures.............................4043 Section 9.6 Cooperation in the Event of Legal Challenge.......................................4043 Section 9.7 Revision to Project................................................................................4144 Section 9.8 State, Federal or Case Law ...................................................................4144 Section 9.9 Defense of Agreement ..........................................................................4145 ARTICLE 10 ASSIGNMENT AND PILOT AGREEMENT..................................................4145 Section 10.1 Transfers and Assignments...................................................................4145 Section 10.2 Release upon Transfer ..........................................................................4245 Section 10.3 PILOT...................................................................................................4346 ARTICLE 11 DEFAULT; REMEDIES; TERMINATION .....................................................4346 Section 11.1 Breach and Default ...............................................................................4346 Section 11.2 Termination...........................................................................................4347 Section 11.3 Legal Actions........................................................................................4447 Section 11.4 Rights and Remedies Are Cumulative..................................................4447 Section 11.5 No Damages..........................................................................................4447 Section 11.6 Resolution of Disputes..........................................................................4448 Section 11.7 Surviving Provisions.............................................................................4548 Section 11.8 Effects of Litigation..............................................................................4548 Section 11.9 California Claims Act...........................................................................4548 ARTICLE 12 MISCELLANEOUS PROVISIONS..................................................................4549 Section 12.1 Incorporation of Recitals, Exhibits and Introductory Paragraph..........4549 Section 12.2 Severability...............................................................................................45 Section 12.2 Severability...............................................................................................49 Section 12.3 Construction..........................................................................................4549 Section 12.4 Covenants Running with the Land .......................................................4649 Section 12.5 Notices ..................................................................................................4649 Section 12.6 Counterparts and Exhibits; Entire Agreement......................................4750 Section 12.7 Recordation of Agreement....................................................................4750 Section 12.8 No Joint Venture or Partnership ...........................................................4751 Page F-1.248
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Section 12.9 Waivers.................................................................................................4851 Section 12.10 California Law; Venue .........................................................................4851 Section 12.11 City Approvals and Actions..................................................................4851 Section 12.12 City Funding for Affordable Housing ..................................................4852 Section 12.13 Estoppel Certificates.............................................................................4952 Section 12.14 No Third -Party Beneficiaries...............................................................4952 Section 12.15 Signatures .............................................................................................4952 Section 12.16 Further Actions and Instruments ..........................................................4952 Section 12.17 Limitation on Liability..........................................................................4953 Page F-1.249
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LIST OF EXHIBITS
Exhibit A-1-1 Main Project Site Map
Exhibit A-1-2 Hamilton Parcels Map
Exhibit A-2-1 Main Project Site Legal Description
Exhibit A-2-2 Hamilton Parcels Legal Description
Exhibit B LLBG Consent
Exhibit C Impact Fees
Exhibit D Willow Village Phasing Plan
Exhibit E-1 Conceptual Site Plan
Exhibit E-2 Conceptual Publicly Accessible Open Space
Site Plan
Exhibit E-3 Conceptual Willow Road Tunnel
Exhibit E-4 Conceptual Alternative Design For Elevated
Park Vertical Transportation System
Exhibit F Willow Village Community Amenities Timing
Provisions
Exhibit G Form of Partial Assignment and Assumption
Agreement
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (“Agreement”) dated for reference purposes as of _______________, 2022, is entered into by and between PENINSULA INNOVATION PARTNERS, LLC, a Delaware limited liability company (“Developer”), a subsidiary of Meta Platforms, Inc., a Delaware corporation (“Meta”), and the CITY OF MENLO PARK, a California municipal corporation (“City”). Developer and City are sometimes referred to individually herein as a “Party” and collectively as “Parties.”

R E C I T A L S
The following recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Section 1.1 of this Agreement.

A. In order to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic costs and risk of development, the Legislature of the State of California enacted Section 65864 et seq. of the Government Code (“Development Agreement Statute”) which authorizes a city and a developer having a legal or equitable interest in real property to enter into a binding, long-term development agreement, establishing certain development rights in the subject property.

B. As authorized by the Development Agreement Statute, the City has adopted Resolution No. 4159 adopting regulations establishing procedures and requirements for consideration of development agreements within the City of Menlo Park (“Development Agreement Regulations”). The provisions of the Development Agreement Statute and City’s Development Agreement Regulations are collectively referred to herein as the “Development Agreement Law.” This Agreement has been drafted and processed pursuant to the Development Agreement Law.

C. This Agreement concerns that certain real property measuring approximately 62 sixty-two (62) acres located in the Bayfront Area of the City, as depicted in Exhibit A-1, and more fully described in Exhibit A-2, both attached hereto and incorporated herein by this reference (“Property”). The Property comprises approximately 59 acres intended as the primary development location (“Main Project Site”) (depicted on Exhibit A-1-1 and described in Exhibit A-2-1), of which Developer is the owner and two parcels totaling approximately 3 acres west of Willow Road to accommodate realignment of Hamilton Avenue, of which LLBG Properties LLC, a Delaware limited liability company, is the owner (“Hamilton Parcels”) (depicted on Exhibit A-1-2 and described in Exhibit A-2-2). Meta controls both Developer and LLBG Properties LLC, a Delaware limited liability company, and therefore Developer has an equitable interest in the Hamilton Parcels. Further, LLBG Properties LLC, a Delaware limited liability company, has consented to the terms of this Agreement as shown in Exhibit B.

D. Developer has submitted applications to the City to redevelop, or cause redevelopment of, the Property by demolishing approximately one million square feet of existing nonresidential buildings on the Main Project Site and developing a mixed-use project on the Property that at full buildout would consist of up to approximately 1.6 million square feet of Page F-1.251
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office and accessory space (of which up to 1.25 million square feet may be for office uses), 200,000 square feet of commercial/retail space, 1,730 multi-family residential units, a 193-room hotel (“Hotel”) and 20 acres of open space including approximately 8 acres of publicly accessible parks and pathways, constructing a new north-south street and realigning other public rights-of-way, and creating a new Residential/Shopping District, Town Square District, and Campus District, all in two Phases as described in more detail in the Willow Village CDP (collectively, the “Project”).

E. This Agreement between City and Developer sets forth, among other things, the applicable fees, policies and zoning requirements that apply to Developer’s development of the Project and provides Developer with a vested right to develop the Project should Developer elect to develop the Project.

F. Pursuant to the California Environmental Quality Act and its associated regulations (Public Resources Code section 21000 et seq. and the CEQA Guidelines at California Code of Regulations, Title 14, section 15000 et seq.) (together and as they may be amended, “CEQA”), City previously prepared the Final Program Environmental Impact Report for the ConnectMenlo General Plan and Zoning Update (State Clearinghouse No. 2015062054), certified by the City Council of City on November 29, 2016 by Resolution No. 6356 (“ConnectMenlo EIR”).

G. Pursuant to CEQA, City conducted environmental review of the Willow Village Master Plan Project, prepared and duly processed an Environmental Impact Report (State Clearinghouse No. _________2019090428), tiering from the ConnectMenlo EIR as authorized by CEQA (“Project EIR”), and adopted a Mitigation Monitoring and Reporting Program for implementation of mitigation measures specified in the Project EIR and (as applicable to the Project) in the ConnectMenlo EIR as approved by the City (“Project MMRP”).

H. Prior to or concurrently with approval of this Agreement, City has taken the following actions in connection with development of the Project on the Property (the “Existing Approvals”).

1. Certification of the Project EIR as adequate under CEQA and adoption of the Project MMRP, by Resolution No. _____, adopted by the City Council on _________, 2022.

2. Approval of amendments to the Menlo Park General Plan Circulation Map to allow changes to streets and other public rights-of-way proposed for the Project, by Ordinance No. ______, adopted by the City Council on ____________, 2022.

3. Approval of amendments to the Menlo Park Zoning Map by Ordinance No. ________, adopted by the City Council on ______________, 2022 to:
a. allow changes to streets proposed for the Project; and b. revise zoning designations for the Property to add a conditional development (“X”) combining district.

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4. Approval of Conditional Development Permit No. _________ to authorize a master-planned project with bonus-level development and allow other aspects of the Project, by Ordinance No. _________, adopted by the City Council on ______________, 2022 (“Willow Village CDP”).

5. Approval of Vesting Tentative Map No. _____for the Main Project Site to merge and re-subdivide existing parcels on the Property, approve abandonment and dedication of public rights-of-way and easements, and allow filing of multiple final maps for the Project, by Resolution No. ____________, adopted by the City Council on ______________, 2022 (“Main Project VTM”), together with associated conditions of approval (“Main VTM Conditions”).

6. Approval of Vesting Tentative Map No. _____for the Hamilton Parcels to merge and re-subdivide existing parcels on the Property, approve abandonment and dedication of public rights-of-way and easements, and allow filing of multiple final maps for the Project, by Resolution No. ____________, adopted by the City Council on ______________, 2022 (“Hamilton VTM”), together with associated conditions of approval (“Hamilton VTM Conditions”).

7. Approval of Below-Market Rate Housing Agreements specifying terms for Developer to provide onsite reduced-cost housing units, by Resolution No. ____, adopted by the City Council on ____________, 2022 (collectively, the “BMR Agreements”).

8. Approval of tree removal permits to remove 276 heritage trees on the Property, approved by the City Arborist on June 28, 2022 (“Tree Permits”), and not appealed to the Environmental Quality Commission, which approvals were conditioned on Developer receiving the other Existing Approvals listed in this Recital H.

9. Approval of this Agreement by Ordinance No. _______, adopted by the City Council on ______________, 2022 (“Enacting Ordinance”).

I. City has determined that by entering into this Agreement, City will further the purposes set forth in the Development Agreement Law and City will benefit from the increased range of housing options, employment opportunities, retail establishments, circulation improvements, and open space created by the Project for residents of City.

J. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Agreement is appropriate. This Agreement will eliminate uncertainty regarding Existing Approvals and Subsequent Project Approvals, thereby encouraging planning for, investment in, and commitment to use and development of the Property. Continued use and development of the Property will in turn provide substantial employment, tax, and other public benefits to City, and will contribute to redevelopment of the Bayfront Area and provide for Menlo Park residents expanded housing opportunities affordable to varying household income levels, which is a critical City need, thereby achieving the goals and purposes for which the Development Agreement Law was enacted.

K. The terms and conditions of this Agreement have undergone review by City staff, the Planning Commission and the City Council at publicly noticed meetings and have been found to be fair, just and reasonable and in conformance with the Development Agreement Law and the Page F-1.253
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goals, policies, standards and land use designations specified in the City’s General Plan and, further, the City Council finds that the economic interests of City’s citizens and the public health, safety and welfare will be best served by entering into this Agreement.

L. On November 3, 2022, the Planning Commission, the initial hearing body for purposes of development agreement review, recommended approval of this Agreement to the City Council. Following a duly noticed public hearing, on ___________, 2022, the City Council introduced the Enacting Ordinance and on ______, 2022 the City Council adopted that Enacting Ordinance.

A G R E E M E N T
NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

ARTICLE 1 DEFINITIONS
Section 1.1 Definitions.
“Administrative Amendment” is defined in Section 8.5.
“Affordable Housing Contribution” is defined in Section 5.1D. “Agreement” means this Agreement.
“Agreement Date” means the date of the second reading of the Enacting Ordinance.
“Air Quality and Noise Monitoring Equipment” is defined in Section 5.1E. “Applicable City Regulations” means the permitted uses of the Property, the maximum density and/or total number of residential units, the intensity of use, the maximum height and size of the proposed buildings, provisions for reservation or dedication of land for public purposes, the conditions, terms, restrictions, and requirements for subsequent discretionary actions, the provisions for public improvements, and other terms and conditions of development applicable to the Property as set forth in the General Plan of the City on the Effective Date, the Existing Approvals, the Municipal Code of the City on the Effective Date, and the other ordinances, policies, rules, regulations, standards and specifications of the City in effect on the Effective Date.
“Applicable Law” means (a) all State and Federal laws and regulations applicable to the Property and the Project as enacted, adopted and amended from time to time and (b) the Applicable City Regulations.
“Bank” is defined in Section 5.1J.
“Bayfront Shuttle” is defined Section 5.1I.

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“BMR Agreement” is defined in Recital H.
“BMR Fee Holding Period” is defined Section 5.7.
“BMR Housing True Up Payment” is defined Section 5.7.
“BMR Units” is defined Section 5.7.
“CEQA” is defined in Recital F.
“CFDs” is defined in Section 4.4A.
“CFD Bonds” is defined in Section 4.4C.
“CFD Facilities” is defined in Section 4.4B.
“Changes in the Law” is defined in Section 3.8.
“Chevron Parcel” is defined in Section 8.7.
“City” means the City of Menlo Park, a California municipal corporation. “City Parties” means City and its elected and appointed officials, officers, agents, employees, contractors and representatives.
“City Council” means the City Council of the City of Menlo Park. “Claims” means liabilities, obligations, orders, claims, damages, fines, penalties and expenses, including reasonable attorneys’ fees and costs. “Commence Construction” or “Commencement of Construction” means the issuance of a building permit for vertical construction (including the Elevated Park), mobilization of construction equipment and workers on-site, and the beginning of physical construction activities under such permit.
“Community Entertainment” is defined in Section 5.1L.
“Complete Construction” or “Completion of Construction” means the completion of a final inspection by the City of the specified portion of the specified work or Improvement.
“Conceptual” or “Conceptually” means plans intended to convey the general vision and design intent of the Willow Village CDP, while allowing flexibility in interpretation and implementation. Conceptual plans serve as guidelines for general orientation and organization of land uses and transportation and open space networks, general scale and massing of development, and overall architectural themes.

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“Connection Fees” means those fees duly adopted in accordance with applicable law and charged by City or by a utility provider to utility users as a cost for connecting to water, sanitary sewer and other applicable utilities.
“ConnectMenlo EIR” is defined in Recital F.
“CPI” means Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the United States Department of Labor or its successors, San Francisco-Oakland-Hayward, All Items (1982-84 = 100), or any successor index thereto designated by the Bureau of Labor Statistics or its successor. “CPI Adjustment” means an adjustment of each dollar amount that is subject to CPI Adjustment under this Agreement and is made by multiplying the dollar amount being adjusted by the sum of (a) one hundred percent, plus (b) the CPI Increase. “CPI Increase” means the percentage increase, if any (but not decrease, if any) between the CPI for the calendar month that is three months prior to the effective date of adjustment and the CPI for the calendar month that is fifteen months prior to the effective date of adjustment.
“Default” is defined in Section 11.1.
“Developer” means Peninsula Innovation Partners, LLC, a Delaware limited liability company, and its permitted assignees and successors-in-interest under this Agreement. “Development Agreement Law” is defined in Recital B.
“Development Agreement Regulations” is defined in Recital B. “Development Agreement Statute” is defined in Recital A. “Dining Venues” is defined in Section 5.1K.
“Dumbarton Forward” is defined in Section 5.3D.
“Dumbarton Rail Corridor Project” is defined in Section 5.3C. “Effective Date” is defined in Section 2.1.
“Elevated Park” is defined in Section 5.1A.
“Elevated Park Segment Over Willow Road” is defined in Section 5.1A. “Enacting Ordinance” is defined in Recital H.
“Exactions” means exactions imposed by City as a condition of developing the Project, including requirements for acquisition, dedication or reservation of land; and obligations to construct on-site or off-site public and private infrastructure improvements such as roadways, utilities or other improvements necessary to support the Project, whether such exactions Page F-1.256
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constitute subdivision improvements, mitigation measures in connection with CEQA review of the Project, or impositions made under Applicable City Regulations. For purposes of this Agreement, Exactions do not include Impact Fees.
“Excess Publicly Accessible Open Space” is defined in Section 5.1O. “Existing Approvals” is defined in Recital H.
“Extension” is defined in Section 2.2A(2).
“Extension Conditions” is defined in Section 2.2A(4).
“Extension Request” is defined in Section 2.2A(4).
“Fee Credits” is defined in Section 4.2.
“Fee Paid BMR Units” is defined in Section 5.7.
“First Phase Community Entertainment” is defined in Section 5.1L. “First Phase Dining Venues” is defined in Section 5.1K. “Fiscal Year” means the period from July 1- June 30.
“Force Majeure Delay” is defined in Section 2.2C2.2B.
“Gap Payment” is defined in Section 5.3G.
“Gap Payment Commencement Date” is defined in Section 5.3G. “Gap Payment Period” is defined in Section 5.3G.
“Gap Payment Termination Date” is defined in Section 5.3G. “General Plan” means the General Plan of the City of Menlo Park in effect as of the Agreement Date, as modified by the Existing Approvals. “Government Offices” is defined in Section 2.2C2.2B.
“Grocery Store” is defined in Section 5.1B5.1A.
“Grocery Store Performance Standard” is defined in Section 5.1C. “Grocery Store Rent Subsidy” is defined in Section 5.1C5.1A. “Hamilton Lessee Approvals” is defined in Section 5.1A. “Hamilton Parcels” is defined in Recital C.

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“Hamilton ROW Parcel” is defined in Section 8.7.
“Hamilton VTM” is defined in Recital H.
“Hamilton VTM Conditions” is defined in Recital H.
“Home Price Index” is defined in Section 2.2C.
“Hotel” is defined in Recital D.
“Impact Fee Limitation Period” is defined in Section 4.1A. “Impact Fees” means those fees set forth in Exhibit C, all of which are monetary fees and impositions, other than taxes and assessments, charged by City in connection with a development project for the purpose of defraying all or a portion of the cost of mitigating the impacts of a development project or development of the public facilities and services related to a development project and any “fee” as that term is defined by Government Code section 66000(b). For purposes of this Agreement, a monetary fee or imposition that meets both the definition of an Impact Fee and the definition of an Exaction will be considered an Impact Fee. “Improvement” means all physical improvements required or permitted to be made under the Existing Approvals or Subsequent Project Approvals. “Improvement Plans” is defined in Section 3.3B.
“Inclusionary Units” is defined in Section 5.7.
“Initial Deposit” is defined in Section 9.3C(1).
“Initial Term” is defined in Section 2.2A(1).
“Job Training Funding and Community Hub” is defined in Section 5.1G. “Linkage Equivalent Units” is defined in Section 5.7.
“Litigation Challenge” is defined in Section 9.6B.
“Local CFD Policies” is defined in Section 4.4A.
“Main Project Site” is defined in Recital C.
“Main Project VTM” is defined in Recital H.
“Main VTM Conditions” is defined in Recital H.
“MCS” means Meeting and Collaboration Space, which shall consist of buildings and private gardens, as well as a Meta visitor’s center and an event building south of the Elevated Park.

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“MCS Community Events” is defined in Section 5.3I.
“Memorandum of Extension” is defined in Section 2.2A.
“Meta” is defined in the introductory paragraph preceding the Recitals of this Agreement.
“Mortgage” is defined in Section 7.1.
“Mortgagee” is defined in Section 7.1.
“Municipal Code” means the Municipal Code of the City of Menlo Park in effect as of the Agreement Date as amended by the Existing Approvals. “New City Laws” means and includes any ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines or other regulations, which are promulgated or adopted by the City (including but not limited to any City agency, body, department, officer or employee) or its electorate (through the power of initiative or otherwise) after the Agreement Date.
“Non -Intended Prevailing Wage Requirement” is defined in Section 4.6D. “Notice” is defined in Section 12.5.
“Other Agency Fees” is defined in Section 4.1D.
“Other Agency Subsequent Project Approvals” means Subsequent Project Approvals to be obtained from entities other than City. “Operating Memoranda” is defined in Section 8.6.
“Operating Memorandum” is defined in Section 8.6
“Party/Parties” is defined in the introductory paragraph preceding the Recitals of this Agreement.
“Pause of Construction” is defined in Section 5.7.
“Pharmacy” is defined in Section 5.1M.
“PILOT Agreement” is defined in Section 10.3.
“Planning Commission” means the Planning Commission of the City of Menlo Park.
“Prevailing Wage Components” is defined in Section 4.6A. “Prevailing Wage Laws” is defined in Section 4.6A.

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“Processing Fees” means all fees charged on a City-wide basis to cover the cost of City processing of development project applications, including any required supplemental or other further CEQA review, plan checking (time and materials) and inspection and monitoring for land use approvals, design review, grading and building permits, and other permits and entitlements required to implement the Project, which are in effect at the time those permits, approvals or entitlements are applied for, and which fees are intended to cover the City’s actual and reasonable costs of processing the foregoing.
“Project” is defined in Recital D.
“Project Approvals” means the Existing Approvals and, when and as approved in accordance with the terms of this Agreement, the Subsequent Project Approvals. “Project EIR” is defined in Recital G.
“Project Manager” is defined in Section 9.3C.
“Project MMRP” is defined in Recital G.
“Property” is defined in Recital C.
“Proportionate Required BMR Units” is defined in Section 5.7. “Publicly Accessible Open Space” is defined in Section 5.3F. “Resumption of Construction” is defined in Section 5.7. “Second Phase Community Entertainment” is defined in Section 5.1L. “Second Phase Dining Venues” is defined in Section 5.1K. “Severe Economic Recession” is defined in Section 2.2C2.2B. “Special Tax” is defined in Section 4.4D.
“Specified Materials” is defined in Section 5.6.
“Subsequent Project Approvals” is defined in Section 9.1. “Supplemental Gap Payment” is defined in Section 5.3G.
“Teacher Housing Rent Subsidies” is defined in Section 5.1H. “Term” is defined in Section 2.2.
“Third Office COO Issuance” is defined in Section 5.3G. “Town Square” is defined in Section 5.1N.

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“Transfer” is defined in Section 10.1.
“Tree Permits” is defined in Recital H.
“Willow Road Feasibility Study Funding” is defined in Section 5.1F. “Willow Road Tunnel” is defined in Section 5.3H.
“Willow Village CDP” is defined in Recital H.
“Willow Village Open Space Rules” is defined in Section 5.3F. “Willow Village Phasing Plan” is defined in Section 3.7. “Willow Village Community Amenities” is defined in Section 5.1.

ARTICLE 2 EFFECTIVE DATE AND TERM
Section 2.1 Effective Date. This Agreement shall become effective upon the date that the Enacting Ordinance becomes effective (“Effective Date”).

Section 2.2 Term.

A. Term of Agreement. Except as to those obligations that expressly extend beyond the stated Term of this Agreement, the “Term” of this Agreement shall commence as of the Effective Date and shall continue for the Initial Term as defined in subsection Section

2.2A(1) below, plus the duration of any City-approved extension as provided in subsection (1) below, or until earlier terminated by mutual consent of the Parties or as otherwise provided by this Agreement.
(1) Initial Term of Agreement. The “Initial Term” of this Agreement shall be ten (10) years, commencing on the Effective Date and expiring on the tenth (10th) anniversary thereof, unless this Agreement is otherwise terminated or extended in accordance with the provisions of this Agreement.
(2) 7-Year Extension. Subject to the terms and conditions in this Section 2.2, Developer shall have the right to extend the Initial Term for one additional seven (7)-year period (“Extension”). In order to obtain the Extension, Developer requesting the Extension must be in substantial compliance with all of its obligations set forth in this Agreement and Project Approvals with respect to the portion or portions of the Property for which Developer is seeking an Extension. If the Property is owned by more than one entity, a separate Extension may be sought for each portion of the Property that is in separate ownership; however, for the Extension to be granted, the conditions described in subsection (3) below must be satisfied.
(3) Extension Requirements. In addition to the conditions in subsection (1) above, in order to obtain the Extension, (a) certificates of occupancy must be issued for at least eight hundred and sixty-five (865) residential units, (b) the final certificate of Page F-1.261
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occupancy must be issued for the building in which the Grocery Store is located; and (c) the Grocery Store has received a final certificate of occupancy. (4) Extension Request. If Developer desires to seek the Extension, Developer must submit a letter addressed to the City Manager requesting such Extension at least one hundred eighty (180) days prior to the date that the Initial Term otherwise would expire (the “Extension Request”). The Extension Request shall include documentation in a form reasonably acceptable to City demonstrating that the applicable conditions for an Extension described in subsections (1) and (3) above (“Extension Conditions”) have been satisfied, or will be satisfied prior to the date that the Initial Term otherwise would expire. If a letter of compliance has been issued in accordance with Section 6.1F within no more than ninety (90) days prior to the submission of Extension Request to the City and City has not issued a Notice of Default following such letter of compliance, then such letter of compliance shall be a conclusive determination that Developer is in substantial compliance with this Agreement. (5) Extension Review. Within 45 days of receipt of an Extension Request and accompanying documentation, the City Manager shall determine whether the Extension Conditions have been satisfied, including whether Developer is in substantial compliance with this Agreement. Except as otherwise provided in this Section 2.2, the determination whether Developer is in substantial compliance with this Agreement shall be undertaken in a manner consistent with the annual review process described in Section 6.1 below. If the City Manager determines Developer is not in substantial compliance with the Agreement through such review process, Developer shall have the opportunity to cure such noncompliance prior to the last date that the Extension Request is to be decided. If City Manager concludes that the Extension Conditions have been satisfied, then he or she shall grant the Extension Request and provide a Memorandum of Extension, in a recordable form, as described in Section 2.2A(6) below, that the Agreement has been extended for the extension period, and the Initial Term shall be extended accordingly. If the City Manager determines the Extension Conditions have not been satisfied, including that Developer is not in substantial compliance with this Agreement, or if there is any dispute regarding the steps required to satisfy the Extension Conditions, then Developer shall have ten (10) business days to present to the City Manager a letter providing written notice of the Developer's appeal of the City Manager's determination to the City Council. The City Council shall hear such an appeal within 60 days of the City Manager's receipt of the letter providing written notice of the appeal, and the City Council shall decide such appeal no later than 30 days before the date upon which the Initial Term otherwise would expire. If the City Council determines Developer is in substantial compliance with this Agreement and all of the applicable Extension Conditions have been satisfied, then the City Council shall grant the Extension Request and direct the City Manager within five (5) business days to provide Developer the Memorandum of Extension and the Initial Term shall be extended accordingly. If the City Council determines Developer is not in substantial compliance with this Agreement or one or more of the other applicable Extension Conditions have not been satisfied, then the City Council shall document such findings in its action denying the Extension Request. The City Council’s decision shall be final, subject to Developer’s ability to pursue available remedies as provided in Section 11.3 below. (6) Memorandum of Extension. Within ten days after the written request of either Party hereto, City and Developer agree to execute, acknowledge and record in Page F-1.262
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the Official Records of the County of San Mateo a memorandum evidencing any approved Extension of the Term pursuant to this Section 2.2 (“Memorandum of Extension”).

B. Effect of Termination. Upon the expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, subject, however, to the provisions set forth in Section 11.7 below.

C. Enforced Delay; Extension of Times of Performance. Subject to the limitations set forth below, the Term of this Agreement and the Project Approvals and the time within which either Party shall be required to perform any act under this Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably and beyond the reasonable control of the Party seeking the delay by strikes, lock outs and other labor difficulties; Acts of God; unusually severe weather, but only to the extent that such weather or its effects (including, without limitation, dry out time) result in delays that cumulatively exceed twenty (20) days for any winter season occurring after commencement of construction of the Project; failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body; any development moratorium or any action of other public agencies that regulate land use, development or the provision of services that prevents, prohibits or delays construction of the Project, including without limitation any extension authorized by Government Code Section 66463.5(d); acts of the public enemy; civil disturbances; wars; acts of terrorism; insurrection; riots; floods; earthquakes; fires; unavoidable casualties; epidemics; pandemics; quarantine restrictions; freight embargoes; government restrictions, or litigation; government mandated shutdowns or government closure (meaning any of the following events: (a) the governmental offices where any action required under this Agreement (collectively, “Government Offices”) are not open for business and any Government Offices’ systems are not operational such that such action cannot occur; (b) any other third -party is not open for business such that its services required as necessary for a Party to perform obligations under this Agreement cannot be performed; (c) overnight couriers are not operating such that any documents cannot be delivered to the extent such documents are required to be originals; or (d) financial institutions or wire transfer systems are not operating, such that consummation of financial transactions contemplated hereby cannot occur); a Severe Economic Recession, defined below; any other cause beyond the reasonable control of Developer which substantially interferes with carrying out the development of the Project; or litigation involving the Project Approvals (including this Agreement) or that enjoins construction or other work on the Project or any portion thereof or would cause a reasonably prudent developer either to forbear from commencing construction or other work on the Project or portion thereof or to suspend construction or other work (each a “Force Majeure Delay”). An extension of time for any such cause other than a Severe Economic Recession shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if Notice by the Party claiming such extension is sent to the other Party within sixty (60) days after the commencement of the cause. If Notice is sent after such sixty (60) day period, then the extension shall commence to run no sooner than sixty (60) days prior to the giving of such Notice. Notwithstanding the foregoing, in the case of Force Majeure Delay due to litigation, the Force Majeure Delay shall terminate three (3) months after a final settlement or non-appealable judgment is issued or affirmed. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the City Manager and Developer. Developer’s inability or failure to obtain financing shall not be deemed Page F-1.263
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to be a cause outside the reasonable control of the Developer and shall not be the basis for an excused delay. “Severe Economic Recession” means a significant decline in the residential real estate market, as measured by a decline of more than four percent (4%) in the Home Price Index during the preceding twelve (12) month period. Severe Economic Recession shall commence upon Developer's notification the City of the Severe Economic Recession (together with appropriate backup evidence). Severe Economic Recession shall continue prospectively on a quarterly basis and remain in effect until the Home Price Index increases for three (3) successive quarters; provided that the cumulative total Severe Economic Recession shall not exceed fortyeight (48) months. "Home Price Index" means the quarterly index published by the Federal Housing Finance Agency representing home price trends for the Metropolitan Statistical Area comprising San Francisco, San Mateo, Redwood City. If the Home Price Index is discontinued, Developer and the City shall approve a substitute index that tracks the residential market with as close a geography to the San Francisco, San Mateo, Redwood City Metropolitan Statistical Area as possible.

Section 2.3 City Representations and Warranties. City represents and warrants to Developer that:

A. City is a municipal corporation and has all necessary powers under the laws of the State of California to enter into and perform the undertakings and obligations of City under this Agreement.

B. The execution and delivery of this Agreement and the performance of the obligations of City hereunder have been duly authorized by all necessary City Council action and all necessary approvals have been obtained.

C. This Agreement is a valid obligation of City and is enforceable in accordance with its terms.

The foregoing representations and warranties are made as of the Agreement Date.

During the Term of this Agreement, City shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 2.3 not to be true, immediately give written Notice of such fact or condition to Developer.

Section 2.4 Developer Representations and Warranties. Developer represents and warrants to City that:

A. Developer is duly organized, validly existing and in good standing under the laws of the State of Delaware, is authorized to do business in the State of California and has all necessary powers under the laws of the State of California to own property interests and in all other respects enter into and perform the undertakings and obligations of Developer under this Agreement.

B. The execution and delivery of this Agreement and the performance of the obligations of Developer hereunder have been duly authorized by all necessary corporate, partnership or company action and all necessary shareholder, member or partner approvals have been obtained.

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C. This Agreement is a valid obligation of Developer and is enforceable in accordance with its terms.

D. Developer has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Developer’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Developer’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Developer’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.

The foregoing representations and warranties are made as of the Agreement Date.

During the Term of this Agreement, Developer shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 2.4 not to be true, immediately give written Notice of such fact or condition to City.

ARTICLE 3 DEVELOPMENT OF PROPERTY
Section 3.1 Vested Rights. City hereby grants to Developer a vested right to develop and construct the Project on the Property, including all on-site and off-site improvements authorized by, and in accordance with, the Project Approvals. Except as otherwise provided in this Agreement, no New City Laws that conflict with this Agreement, the Applicable City Regulations, or the Project Approvals shall apply to the Project or the Property. For purposes of this Section 3.1 and Section 3.3 and Section 3.6, the word “conflict” means any modification that purports to: (i) limit the permitted uses of the Property, the maximum density and intensity of use (including but not limited to floor area ratios of buildings and the overall maximum size of allowed uses ), or the maximum height and size of proposed buildings; (ii) impose requirements for reservation or dedication of land for public purposes or requirements for infrastructure, public improvements, or public utilities, other than as provided in the Project Approvals; (iii) impose conditions upon development of the Property other than as permitted by Applicable Law, Changes in the Law, and the Project Approvals; (iv) limit the timing, phasing, sequencing, or rate of development of the Property; (v) limit the location of building sites, grading or other improvements on the Property in a manner that is inconsistent with the Existing Approvals; (vi) limit or control the ability to obtain public utilities, services, infrastructure, or facilities (provided, however, with the exception of provisions under the Willow Village CDP relating to the implementation and timing for the installation of recycled water facilities and procedures for exceedances as provided therein, nothing herein shall be deemed to exempt the Project or the Property from any water use conservation or rationing requirements that may be imposed on a City-wide basis to all substantially similar types of development projects and project sites (i.e., to all multifamily residential projects, to all office projects, to all retail projects, to all hotel projects) from time to time in the future or be construed as a reservation of any existing sanitary sewer or potable water capacity); (vii) require the issuance of additional permits or approvals by the City other than those required by Applicable Law and the Existing Approvals; (viii) increase the permitted Impact Fees or add new Impact Fees, except as permitted by Section 4.1 of this Agreement; (ix) establish, enact, increase, or impose against the Project or the Property any special taxes or assessments other than those specifically permitted by this Agreement, including Section 4.7, (x) apply to the Project any New City Laws that are not uniformly applied on a CityPage F-1.265 080937\16252990v15
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wide basis to all substantially similar types of development projects and project sites (i.e., to all multifamily residential projects, to all office projects, to all retail projects, to all hotel projects ); (xi) impose against the Project any condition, dedication or other Exaction not specifically authorized by Applicable Law or the Existing Approvals; or (xii) impose against the Project any obligations regarding the construction of or provision of below market rate units not specifically required by the Existing Approvals. To the extent that New City Laws conflict with the vested rights granted pursuant to this Agreement, they shall not apply to the Property or the Project, except as provided in Section 3.3, below. Nothing in this Agreement is intended to supersede or limit vested rights provided through any vesting subdivision map or otherwise applicable state law, except for the payment of fees, which shall be governed by Section 4.1 of this Agreement notwithstanding any vesting of fees otherwise provided by any vesting subdivision map pursuant to the provisions of the Subdivision Map Act.

Section 3.2 Development and Design Standards. The Project shall be developed in conformance with the Existing Approvals and Applicable City Regulations and the Subsequent Project Approvals. The permitted uses, density and intensity of development, maximum height and size of proposed buildings and development standards shall all be in accordance with the Existing Approvals and Applicable City Regulations. Project design and materials will need to the urban design standards outlined in the Willow Village CDP. City’s review of applications for Subsequent Project Approvals shall be in accordance with the Existing Approvals and the Applicable City Regulations.

Section 3.3 Reservations of Authority. Notwithstanding any other provision of this Agreement to the contrary, the following regulations and provisions shall apply to the development of the Project:

A. Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure then applicable in City at the time of permit application.

B. Regulations governing construction standards and specifications, including City’s building code, plumbing code, mechanical code, electrical code, fire code and grading code, and all other uniform construction codes then applicable in City at the time of building permit application. Local modifications to the Building Code that take effect after the submission for approval of plans, specifications and estimates for Project-serving improvements (both on- and off-site) for the Project (“Improvement Plans”) to the City shall not apply to such Improvement Plans unless required (i) by the then-current version of the California Building Code, (ii) to comply with State or Federal Law, or (iii) to avoid a specific, adverse impact upon the public health or safety. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the Improvement Plans were submitted to the City for approval.

C. New City Laws applicable to the Property or Project that do not conflict with this Agreement, including Developer’s vested rights under Section 3.1 above.

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D. New City Laws that may be in conflict with this Agreement but that are necessary to protect persons or property from dangerous or hazardous conditions that create a specific, adverse impact upon public health or safety or create a physical risk to persons or property, based on findings by the City Council identifying the dangerous or hazardous conditions requiring such changes in the law, where there are no feasible alternatives to the imposition of such changes, and how such changes would alleviate the dangerous or hazardous condition. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the Improvement Plans were submitted to the City for approval.

E. Exactions permitted by Section 9.2 of this Agreement.

Section 3.4 Regulation by Other Public Agencies. Developer acknowledges and agrees that the State of California Department of Transportation, SamTrans, the California Public Utilities Commission, the San Francisco Public Utilities Commission, West Bay Sanitary District, and other public agencies not within the control of City possess authority to regulate aspects of the development of the Project separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Developer shall use reasonable diligence in applying for all such other permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Project. Developer shall also pay all required fees when due to such public agencies. Developer acknowledges that City does not control the amount of any such fees. City shall reasonably cooperate with Developer in Developer’s effort to obtain such permits and approvals; provided, however, City shall have no obligation to incur any costs, without compensation or reimbursement by Developer, or to amend any policy, regulation or ordinance of City in connection therewith.

Section 3.5 Life of Project Approvals. The term of any and all Project Approvals shall automatically be extended for the longer of the Term of this Agreement or the term otherwise applicable to such Project Approvals. In the event that this Agreement is terminated prior to the expiration of the Term of the Agreement, the term of any subdivision or parcel map or any other Project Approval and the vesting period for any final subdivision map approved as a Project Approval shall be the term otherwise applicable to the approval, which shall commence to run on the date that the termination of this Agreement takes effect (including any extensions); provided, however, that the statutory vesting period for fees shall be calculated based upon the original date of approval of any Vesting Subdivision Map.

Section 3.6 Initiatives. Except as to those New City Laws described in Section 3.3D (which may be enacted or imposed by initiative or referendum), if any New City Law is enacted or imposed by an initiative or referendum, which New City Law would conflict with the Project Approvals or reduce the development rights or assurances provided by this Agreement, such New City Law shall not apply to the Property or Project; provided, however, the Parties acknowledge that City’s approval of this Agreement is a legislative action subject to referendum.

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Council, an agency of City, the electorate, or otherwise) affecting subdivision maps, use permits, building permits, occupancy permits, or other entitlements to use that are approved or to be approved, issued or granted by City shall apply to the Property or Project. Developer agrees and understands that City does not have authority or jurisdiction over any other public agency’s ability to grant governmental approvals or permits or to impose a moratorium or other limitations that may affect the Project. City shall reasonably cooperate with Developer and, at Developer’s expense, shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City, except to submit to vote of the electorate initiatives and referendums required by law to be placed on a ballot and fulfill any legal responsibility to defend a ballot measure passed by its voters, shall not support, adopt or enact any New City Law, or take any other action which would violate the express provisions or spirit and intent of this Agreement.

Section 3.7 Timing of Development. Nothing in this Agreement obligates Developer to undertake the Project. The timing of development of the Project Improvements shall be undertaken, if undertaken by Developer, in accordance with the Willow Village Phasing Plan, attached hereto as Exhibit D (“Willow Village Phasing Plan”) and in accordance with Section

5.1 and the Willow Village Community Amenities Provisions, attached hereto as Exhibit F. The Willow Village Phasing Plan sets forth the order and timing of when certain Improvements will be constructed and/or occupied within the Project. Each Improvement identified in the Willow Village Phasing Plan shall be defined with reference to the Improvement with the same name as shown on the Site Plan attached as Exhibit E to this Agreement, in locations substantially consistent with the Site Plan. Modifications may be made to the timing set forth in the Willow Village Phasing Plan through an Operating Memorandum approved pursuant to Section 8.6 to this Agreement.

However, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984) that the failure of the parties therein to consider, and expressly provide for, the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the desire of the Parties hereto to avoid that result. Therefore, notwithstanding the adoption of an initiative after the Effective Date by City’s electorate to the contrary, the Parties acknowledge that, except as otherwise provided for in the Existing Approvals and in this Agreement, Developer shall have the vested right (but not the obligation) to develop the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its sole discretion and consistent with the terms of this Agreement.

Section 3.8 Changes in the Law. As provided in Section 65869.5 of the Development Agreement Law, this Agreement shall not preclude the applicability to the Project of changes in laws or regulations, to the extent that such changes are specifically mandated and required by changes in State or Federal laws (“Changes in the Law”). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, the Parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law. Following the meeting between the Parties, the provisions of this Agreement may, to the extent feasible, and upon mutual agreement of the Parties, be modified or suspended, but only to the minimum extent necessary to comply with such Changes in the Law.

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force and effect. In the event that the Changes in the Law operate to frustrate irremediably and materially the vesting of development rights to the Project as set forth in this Agreement, Developer may terminate this Agreement by Notice to City. Nothing in this Agreement shall preclude Developer from contesting by any available means (including administrative or judicial proceedings) such Changes in the Law or their applicability to the Project and, in the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect and times of performance extended in accordance with Section 2.2C2.2B, unless the Parties mutually agree otherwise.

Section 3.9 Expansion of Development Rights. If any New City Laws or Changes in Law expand, extend, enlarge or broaden Developer’s rights to develop the Project, then, (a) if such law is mandatory, the provisions of this Agreement shall be modified as may be necessary to comply or conform with such new law, and (b) if such law is permissive, the provisions of this Agreement may be modified, upon the mutual agreement of Developer and City. Immediately after enactment of any such new law, upon Developer’s request, the Parties shall meet and confer in good faith for a period not exceeding sixty (60) days (unless such period is extended by mutual written consent of the Parties) to prepare such modification in the case of a mandatory law or to discuss whether to prepare a proposed modification in the case of a permissive law.

Developer shall have the right to challenge City’s refusal to apply any new law mandating expansion of Developer’s rights under this Agreement, and in the event such challenge is successful, this Agreement shall be modified to comply with, or conform to, the new law.

Section 3.10 No Reservation of Sanitary Sewer or Potable Water Capacity. City has found that there will be sufficient potable water and sanitary sewer capacity to serve future development contemplated by the General Plan, including the Project. However, as noted in Section 3.1 above, with the exception of provisions under the Willow Village CDP relating to the implementation and timing for the installation of recycled water facilities and procedures for exceedances as provided therein, nothing in this Agreement is intended to exempt the Project or the Property from any water use conservation or rationing requirements that may be imposed on a City-wide basis to all substantially similar types of development projects and project sites (i.e., to all multifamily residential projects, to all office projects, to all retail projects, to all hotel projects) from time to time in the future or be construed as a reservation of any existing sanitary sewer or potable water capacity. In the event Developer’s lenders or financing partners request issuance of water and/or sanitary sewer “will serve” letters as a condition of providing debt or equity financing for the Project, City agrees to consider in good faith issuing such letters on terms reasonably acceptable to City.

Section 3.11 Project Approvals and Applicable City Regulations. Prior to the Effective Date, the Parties shall have prepared two (2) sets of the Existing Approvals and Applicable City Regulations, one (1) set for City and one (1) set for Developer, to which shall be added from time to time, Subsequent Project Approvals, so that if it becomes necessary in the future to refer to any of the Project Approvals or Applicable City Regulations, there will be a common set available to the Parties. Failure to include in the sets of Project Approvals and Applicable City Regulations any rule, regulation, policy, standard or specification that is within the Applicable City Regulations and Project Approvals as described in this Agreement shall not affect the applicability of such rule, regulation, policy, standard or specification.

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Section 3.12 Written Verification of Sufficient Water Supply. Any and all tentative subdivision maps approved for the Project shall comply with Government Code Section 66473.7, if, and to the extent, required by Government Code Section 65867.5(c).

ARTICLE 4 OTHER RIGHTS AND OBLIGATIONS OF THE PARTIES
Section 4.1 Developer Fees.

A. Impact Fees. City understands that the limited assurances by City concerning Impact Fees set forth below were a material consideration for Developer agreeing to enter into this Agreement, to pay the Impact Fees set forth in this Agreement and the Existing Approvals, and to provide the public benefits as described in this Agreement. For the period commencing on the Effective Date and continuing until expiration of the Impact Fee Limitation Period (defined below), Developer shall pay when due all existing Impact Fees applicable to the Project in accordance with this Agreement in effect as of the Agreement Date at the lower of (i) the rates in effect as of the Agreement Date, including all existing fee escalation provisions in effect as of the Agreement Date, or (ii) the rates in effect when such existing Impact Fees are due and payable, and shall not be required to pay any escalations in such Impact Fees in excess of the fee escalation provisions in any Impact Fee in effect as of the Agreement Date or new Impact Fees enacted or established after the Agreement Date. As used herein, the term “Impact Fee Limitation Period” means the period commencing on the Effective Date and expiring on expiration of the Initial Term; provided, however, the Impact Fee Limitation Period will be automatically extended for the first three (3) years of any Extension Term Developer obtains pursuant to Section 2.2A. Following expiration of the Impact Fee Limitation Period, individual components and phases of the Project not yet undertaken, with no retroactive application to portions of the Project that have been completed or are then under construction, shall be subject to all Impact Fees in effect at the time such fees are due and payable. Except as otherwise provided in this Section 4.1A above, Developer agrees to pay, as and when due, any and all existing, new, increased or modified Impact Fees, at the rates then in effect at the time building permits are issued on any or all portions of the Project so long as any new fees or increases in existing fees from the amount existing as of the Agreement Date are uniformly applied by City to all substantially similar types of development projects and properties (i.e., all office projects, all multifamily residential projects, all retail projects, or all hotel projects) and are consistent with the provisions of applicable California law, including the provisions of Government Code Section 66000 et seq., and all applicable nexus and rough proportionality tests and other legal requirements. Developer retains all rights to protest an imposition, fee, dedication, reservation, or other exaction, as set forth in California Government Code Section 66020.

B. Processing Fees. City may charge and Developer agrees to pay all Processing Fees that are in effect on a City-wide basis at the time applications are submitted for permits, approvals or entitlements for the Project.

C. Connection Fees. Developer shall pay connection fees assessed by utility providers and other agencies assessing such fees at the rates in effect from time to time.

D. Other Agency Fees. Nothing in this Agreement shall preclude City from collecting fees from Developer that are lawfully imposed on the Project by another agency Page F-1.270
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having jurisdiction over the Project, which the City is required to collect pursuant to Applicable Law (“Other Agency Fees”).

Section 4.2 Fee Credits. Developer shall receive credit for the payment of transportation Impact Fees in accordance with the provisions of Municipal Code Section

13.26.080 and this Section 4.2. “Fee Credits” shall be as set forth in the Willow Village CDP.

In addition, in the event that the amount of transportation impact fee credits for eligible transportation improvements to be constructed by Developer pursuant to the Willow Village CDP exceeds the amount of the transportation Impact Fees due for the Project, then City shall reimburse Developer from transportation Impact Fee funds collected by the City from other sources subject to the transportation Impact Fee.

Section 4.3 Reimbursements from Other Developers. To the extent that Developer constructs public infrastructure that is not eligible for Fee Credits or reimbursement by the City, as provided above, in excess of Developer’s “fair share” cost of such public infrastructure improvements, then the City shall use its best efforts to condition projects to be constructed by other parties benefiting from such infrastructure to enter into infrastructure-item-specific reimbursement agreements for the portion of the cost of any dedications, public facilities and/or infrastructure the City may require the Developer to construct as conditions of the Project Approvals to the extent that they exceed the Project’s “fair share.” Where projects to be constructed by other parties have been conditioned to construct a portion of or pay a fair share fee for public improvements being constructed by Developer, then City shall use its best efforts to cause such third -party developers to reimburse Developer for the applicable third -party developer’s fair share of the improvement costs incurred by Developer, in an amount consistent with such third -party developer’s prior approvals.

Section 4.4 CFDs.

A. Local CFD Policies and CFD Formation. City agrees to consider adopting a local policy pursuant to Government Code Section 53312.7 (“Local CFD Policies”) to authorize the formation of Community Facilities Districts pursuant to the Mello-Roos Act (Government Code Section 53311 et seq.) (“CFDs”) to serve residential and mixed -use projects and the issuance of bonds to finance eligible public facilities and/or provide financing for eligible services. If Local CFD Policies are adopted and Developer files a petition requesting that City form a CFD to serve the Project, the Parties shall cooperate in good faith to establish a CFD to serve the Project. The boundaries of the CFD shall be coextensive with those of the Main Project Site, unless the Parties otherwise agree. Upon the filing of a petition by Developer pursuant to Government Code Section 53318(c), the City Council shall consider adoption of a resolution of intention to establish the CFD and, following adoption, City shall use good faith, diligent efforts, in compliance with Government Code Sections 53318 et seq., to establish and implement the CFD pursuant to the terms of this Agreement, including scheduling of necessary public hearings and adoption of a resolution of formation. Developer shall cooperate with City in the formation of any CFD requested by Developer, including the timely submission of all petitions, waivers and consents. Developer shall prepare, and submit to the City no later than the date Developer files a petition for a CFD, a financial plan specifying the proposed total amount of debt or other financing for the CFD Facilities, including the projected costs of the CFD Facilities that support the proposed total amount of financing, to be financed by CFD Bonds, the Page F-1.271
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Special Tax, or a combination of CFD Bonds and Special Tax, which financial plan shall be subject to the approval of the City, which approval will not be unreasonably withheld, delayed, or conditioned.

B. CFD Facilities and Services. Subject to caps on the total amount of net CFD Bond proceeds and the total tax and assessment rate set forth in subsection D below, the CFD shall finance the design and acquisition or construction of those facilities necessary for development of the Project (“CFD Facilities”) and services that may lawfully be financed or paid for under the Mello-Roos Act and other applicable law. Financing of the CFD Facilities, or portion thereof, with CFD Bonds shall be subject to approval of City.

C. Issuance of CFD Bonds. Upon successful formation of the CFD and approval of the Special Tax (as defined in subsection D below), and subject to the restrictions in subsection C below, bonds shall be issued (“CFD Bonds”), the proceeds of which shall be used to finance the CFD Facilities, to the extent the CFD Facilities, or portion thereof, legally and feasibly may be financed utilizing this method of financing. The amounts, timing and terms of the issuance and sale of the CFD Bonds shall be determined by City, in consultation with Developer and City’s bond counsel, financial advisors and/or underwriters.

D. Special Tax. The CFD shall be authorized to levy, and Developer shall approve (by affirmative vote or other legally acceptable method), a tax (“Special Tax”) in accordance with the rate and method of apportionment of such Special Tax approved in the completed proceedings for the CFD. The Special Tax so set shall be in an amount such that, at the time the rate and method of apportionment of the Special Tax is approved, the estimated maximum special tax within the CFD district shall not exceed $750 per each dwelling (in 2022 dollars) for residential property and $0.75 per square foot for non-residential property (in 2022 dollars).

E. City's Reservation of Discretion. It is expressly acknowledged, understood and agreed by the Parties that notwithstanding any of the foregoing obligations set forth in this section, (i) City reserves full and complete discretion in accordance with applicable law with respect to any adoption of Local CFD Policies and all legally required findings that must be made in connection with formation of a CFD, (ii) nothing in this Agreement is intended to or shall limit City's discretion in accordance with applicable law to adopt or refuse to adopt the Local CFD Policies or adopt legally required findings with respect to formation of the CFD, and (iii) nothing in this Agreement is intended to or shall prejudge or commit to City regarding the findings and determinations to be made with respect thereto.

F. Costs If No CFD Formed. In the event that City does not adopt the Local CFD Policies or is unable to make the legally required findings in connection with the formation of the CFD and the issuance of CFD Bonds for any reason, City shall not be liable for any resulting costs to Developer and Developer shall nonetheless be responsible for constructing all of the CFD Facilities and providing any services for which a CFD was sought at Developer’s expense.

G. Developer’s Consent. Subject to City adopting Local CFD Policies, and subject to and Developer requesting and City adopting a CFD for the Project and in accordance Page F-1.272
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with the caps on the total amount of net CFD Bond proceeds and the total tax and assessment rate set forth in subsection D above and Developer’s approval of the rate and method of apportionment of the Special Tax, which approval shall not be unreasonably withheld, delayed or conditioned, Developer irrevocably consents to the formation of the CFD, the issuance of the CFD Bonds, the imposition of the Special Tax against the Property at rates and pursuant to a method of apportionment appropriate to fund the debt service on the CFD Bonds sold to finance the CFD Facilities, and agrees not to protest or object to formation of the CFD or levy of an appropriate Special Tax consistent herewith. Developer acknowledges and agrees that CFD Bonds shall not be issued to fund any on-site public improvements or any other infrastructure or fees other than the CFD Facilities, or portion thereof, which may lawfully be financed under the Mello-Roos Act and other applicable law.

H. Limited Liability of City. Notwithstanding any other provision of this Agreement, City shall not be liable for or obligated to pay any costs or expenses in connection with the CFD or the CFD Facilities except to the extent monies are available (from Advanced Costs, proceeds of CFD Bonds, or Special Taxes) and specifically authorized by law for payment of such costs or expenses.

Section 4.5 Public Infrastructure. City shall use good faith, diligent efforts to work with Developer to ensure that all public infrastructure required in connection with the Project is expeditiously reviewed and considered for acceptance by City on a phased basis as discrete components of the public infrastructure is completed. Developer may offer dedication of public infrastructure in phases and City shall not unreasonably withhold, condition or delay acceptance of such phased dedications or refuse phased releases of bonds or other security so long as all other conditions for acceptance have been satisfied. Developer’s obligation to construct the public improvements shall be set forth in one or more public improvement agreements to be entered into by the Parties on or before approval of final subdivision maps for the Project. Upon acceptance of the public improvements, or components thereof, City shall release to Developer any bonds or other security posted in connection with performance thereof, other than warranty period security, as more fully provided in the applicable improvement agreements between City and Developer in accordance with the Subdivision Map Act. Except as to the Willow Road Tunnel and the Elevated Park Segment Over Willow Road as provided in Section 5.4 below, and in such improvement agreements with respect to Developer’s warranty period obligations, Developer shall have no obligation to maintain any public infrastructure following City’s acceptance thereof.

Section 4.6 Prevailing Wage Requirements.

A. To the extent applicable, Developer shall comply with, and require its contractors and subcontractors to comply with, all State Labor Code requirements and implementing regulations of the Department of Industrial Relations pertaining to “public works,” including the payment of prevailing wages (collectively, “Prevailing Wage Laws”). Developer shall require the contractor(s) for all work that is subject to Prevailing Wage Laws (“Prevailing Wage Components”) to submit, upon request by City, certified copies of payroll records to City at the Property or at another location within City, and to maintain and make records available to City and its designees for inspection and copying to ensure compliance with Prevailing Wage Laws. Developer shall also include in each of its contractor agreements, a provision in form Page F-1.273
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reasonably acceptable to City, obligating the contractor to require its contractors and/or subcontractors to comply with Prevailing Wage Laws in connection with the Prevailing Wage Components, and to submit, upon request by City, certified copies of payroll records to City and to maintain and make such payroll records available to City and its designees for inspection and copying during regular business hours at the contractor’s or subcontractor’s regular place of business. City and Developer each acknowledge and agree that it is a condition of approval of the Project that Developer construct public improvements to be dedicated to the City as part of the Project.

B. Developer shall defend (with counsel reasonably acceptable to the City), indemnify, assume all responsibility for, and hold harmless City Parties from and against any and all present and future Claims arising out of or in any way connected with Developer’s or its contractors' or subcontractors’ obligations to comply with all Prevailing Wage Laws, including all Claims that may be made by contractors, subcontractors or other third -party claimants pursuant to Labor Code sections 1726 and 1781.

C. Developer hereby waives and releases City Parties from any and all manner of Claims or other compensation whatsoever, in law or equity, of whatever kind or nature, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, now existing or which may in the future arise, including lost business opportunities or economic advantage, and special and consequential damages, arising out of, directly or indirectly, or in any way connected with Developer’s obligation to comply with all Prevailing Wage Laws in conjunction with the Prevailing Wage Components. Developer is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE

CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO

EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE

RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.”
INITIALS: DEVELOPER _______
As such relates to this Section 4.6, Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code.

D. Non -Intended Prevailing Wage Requirements. Nothing in this Agreement shall in any way require, or be construed to require, Developer to pay prevailing wages with respect to any work of construction or improvement within the Project (a “Non -Intended Prevailing Wage Requirement”). But for the understanding of the Parties as reflected in the immediately preceding sentence, the Parties would not have entered into this Agreement based upon the terms and conditions set forth herein. Developer and City have made every effort in reaching this Development Agreement to ensure that its terms and conditions will not result in a Non -Intended Prevailing Wage Requirement. These efforts have been conducted in the absence of any applicable existing judicial interpretation of the recent amendments to the California Page F-1.274
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prevailing wage law. If, despite such efforts, any provision of this Agreement shall be determined by any court of competent jurisdiction to result in a Non -Intended Prevailing Wage Requirement, such determination shall not invalidate or render unenforceable any provision hereof; provided, however, that the Parties hereby agree that, in such event, this Agreement shall be reformed such that each provision of this Agreement that results in the Non -Intended Prevailing Wage Requirement will be removed from this Agreement as though such provisions were never a part of the Agreement, and, in lieu of such provision(s), replacement provisions shall be added as a part of this Agreement as similar in terms to such removed provision(s) as may be possible and legal, valid and enforceable but without resulting in the Non -Intended Prevailing Wage Requirement.

Section 4.7 Taxes and Assessments. As of the Agreement Date, City is unaware of any pending efforts to initiate, or consider applications for new or increased special taxes or assessments covering the Property, or any portion thereof. City shall retain the ability to initiate or process applications for the formation of new assessment districts or imposition of new taxes covering all or any portion of the Property. City may impose new taxes and assessments, other than Impact Fees, on the Property in accordance with the then applicable laws and this Agreement, but only if such taxes or assessments are adopted by or after Citywide voter approval or approval by landowners subject to such taxes or assessments and are imposed on other land and projects of the same category (i.e., office, multifamily residential, retail, or hotel, as applicable) within the jurisdiction of City and, as to assessments, only if the impact thereof does not fall disproportionately on the Property as compared to the benefits accruing to the Property as indicated in the engineers report for such assessment district. Nothing herein shall be construed so as to limit Developer from exercising whatever rights it may otherwise have in connection with protesting or otherwise objecting to the imposition of taxes or assessments on the Property. In the event an assessment district is lawfully formed to provide funding for services, improvements, maintenance or facilities that are substantially the same as or duplicative of those services, improvements, maintenance or facilities being funded by the Impact Fees to be paid by Developer under the Project Approvals, such Impact Fees paid or to be paid by Developer shall be subject to reduction/credit in an amount equal to developer’s new or increased assessment under the assessment district. Alternatively, the new assessment district shall reduce/credit Developer’s new assessment in an amount equal to such Impact Fees paid or to be paid by Developer under the Project Approvals.

ARTICLE 5 COMMUNITY AMENITIES; PUBLIC BENEFITS; TERMS REGARDING

MAINTENANCE AND COMPLETION OF PROJECT IMPROVEMENTS
In consideration of the rights and benefits conferred by City to Developer under this Agreement, if and to the extent that Developer commences construction of the Project, Developer shall perform and provide the obligations described in this ARTICLE 5 at the times and on the conditions specified herein and in Exhibit F. The Parties acknowledge and agree that some of the obligations described in this ARTICLE 5 exceed those dedications, conditions, and exactions that may be imposed under Applicable Law and would not otherwise be achievable without the express agreement of Developer. Notwithstanding anything to the contrary contained herein, Developer has no obligation to perform the obligations under this ARTICLE 5 unless and until Developer commences construction of the portion of the Project that requires such performance.

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Section 5.1 Bonus Development Community Amenities. In order to obtain the right to bonus level development within the Residential Mixed Use District and the Office District, as defined in the Municipal Code, the Municipal Code requires that Developer implement community amenities with a valuation of fifty percent (50%) of the fair market value of the additional gross floor area of the bonus level development. The Municipal Code requires each community amenity to be either selected from a list of community amenities set forth in Resolution No. 6360 or agreed upon by Developer and City pursuant to a development agreement. This Agreement documents the requirements for and governs the delivery of all community amenities for the Project. If and to the extent that Developer commences construction of the Project, Developer shall implement the community amenities set forth in this Section 5.1 at the times and on the conditions specified herein and in Exhibit F, some of which are on the list of community amenities set forth in Resolution No. 6360 and some of which are additional and have been agreed upon by the Parties pursuant to this Agreement (collectively, “Willow Village Community Amenities”). The Willow Village Community Amenities shall be implemented at the times set forth in the Willow Village Community Amenities Timing Provisions attached hereto as Exhibit F, except to the extent that the obligations set forth in Exhibit F are modified in accordance with this Agreement. Undefined, capitalized terms in Exhibit F shall have the meanings ascribed to them in this Agreement. If and to the extent that Developer commences construction of the Project, then Developer’s failure to provide any of the Willow Village Community Amenities as set forth in this Section 5.1 by the times set forth in Exhibit F shall be a Default.

A. Elevated Park. Developer shall construct an elevated park to provide direct and convenient access from Belle Haven to the Main Project Site, which will include bike and pedestrian paths, gathering spaces, plazas, and landscaped areas as depicted Conceptually shown on Exhibit E-1 and Exhibit E-2 (“Elevated Park”). If Developer obtains all necessary Other Agency Approvals and the consent of the commercial lessees in the shopping center located on one of the Hamilton Parcels (“Hamilton Lessee Approvals”), a portion of the Elevated Park shall include a bike and pedestrian overcrossing over Willow Road. This portion of the Elevated Park is within State of California Department of Transportation right of way and shall be referred to as the “Elevated Park Segment Over Willow Road.” Developer’s inability to secure such Other Agency Approvals and consents Hamilton Lessee Approvals for the Elevated Park Segment Over Willow Road shall not be a Force Majeure Delay. Developer shall make good faith efforts to obtain such Other Agency Approvals and Hamilton Lessee Approvals, but if Developer fails to secure such Other Agency Approvals and Hamilton Lessee Approvals prior to the development of Phase 2, as defined in the Willow Village CDP, Developer shall have no further obligation to construct the Elevated Park Segment Over Willow Road or the portion of the Elevated Park on the Hamilton Parcels and shall instead (1) pay a community amenity fee in the amount of Ten Million Three Hundred Sixty Nine Thousand Thirty-One Dollars ($ 10,369,031Twenty Million Seven Hundred Thirty Eight Thousand Sixty-Two Dollars ($20,738,062), which represents one hundred and twenty percent (120%) of fifty one hundred percent (50100%) of the cost to construct the Elevated Park Segment Over Willow Road and the portion of the Elevated Park on the Hamilton Parcels based on the square footage of such portions relative to the whole of the Elevated Park and (2) ensure that the vertical transportation system (i.e, elevators, stairs, etc.) at the westerly side of the Elevated Park is located reasonably proximate to the eastern side of Willow Road, taking into account Project design and utility considerations, as conceptually depicted Conceptually in Exhibit E-4, attached hereto.

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B. Grocery Store. Developer shall construct a grocery store, which will be located on Parcel 2, which store shall be a full-service store providing a range of goods, including: fresh fruits, vegetables, meat and fish; dairy products; beer and wine; fresh baked goods; and a delicatessen or prepared foods (“Grocery Store”). The Grocery Store shall be leased to an operator or affiliate of an operator with at least five (5) years of experience or five (5) stores unless an operator with less experience or fewer stores is approved in writing by City’s Community Development Director.

Grocery Store Rent Subsidy. Developer shall provide a subsidy for two (2) years of rent in the amount of One Million Nine Hundred Seventy Two Thousand Six Hundred and Thirty Dollars ($1,972,630) to the Grocery Store tenant (“C.Grocery Store Rent Subsidy”).

C. Grocery Store Rent Subsidy. Developer shall provide a subsidy for two (2) years of rent in the amount of One Million Nine Hundred Seventy-Two Thousand Six Hundred and Thirty Dollars ($1,972,630) to the Grocery Store tenant (“Grocery Store Rent Subsidy”). In addition, to assist the Grocery Store to remain in operation in the event that the Grocery Store tenant is not achieving sales of at least Fourteen Dollars ($14) per square foot, excluding prescription drug sales, in weekly average sales on an annual look back (the “Grocery Store Performance Standard”) during the third (3rd) through fifth (5th) years of operation, with the first annual lookback occurring on the third (3rd) anniversary of the Grocery Store opening, Developer shall offer the Grocery Store tenant an additional rent subsidy in the amount of the delta between the Grocery Store tenant’s sales and the Grocery Store Performance Standard, not to exceed a total of One Million Dollars ($1,000,000) over such three (3) year period. If Developer does not offer the maximum subsidy after the first annual look back, Developer shall conduct a second annual look back on the fourth (4th) anniversary of the Grocery Store opening. Developer shall also conduct a third annual look back on the fifth (5th) anniversary of the Grocery Store opening if One Million Dollars in total has not yet been provided. Developer shall report as part of the annual review pursuant to Section 6.1 whether any additional rent subsidy has been provided under this Section 5.1.C after each annual look back. Developer shall state whether the full amount of the subsidy was provided after each annual look back, but shall not otherwise be required to disclose the specific subsidy amounts paid after each annual look back. Nothing under this Section 5.1.C shall require Developer or the Grocery Store tenant to disclose any Grocery Stores sales information to the City.

D. Affordable Housing Contribution. Developer shall provide Five Six Million Dollars ($5,000,0006,000,000) in funding for affordable housing in the City, with priority for Belle Haven residents to the extent permitted by applicable law (the “Affordable Housing Contribution”).

E. Air Quality and Noise Monitoring Equipment Funding. Developer shall provide one time funding in the amount of Two Hundred Thousand Dollars ($200,000) to the City for the City to procure and install at locations determined by the City in the Belle Haven neighborhood one (1) new high-quality air monitoring system that shall meet Bay Area Air Quality Management District sensor requirements and one (1) new high-quality noise monitoring system that is capable of at least an 80 dB dynamic range, such that if they are set to measure as low as 20 dB, then it is able to measure sound levels as high as 100 dB (“Air Quality and Noise Monitoring Equipment”). Developer shall reasonably cooperate with City and any City Page F-1.277
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consultants regarding make and model or other similar technical questions that may arise regarding the Air Quality and Noise Monitoring Equipment.

F. Willow Road Feasibility Study Funding. Developer shall make a one-time payment of One Hundred Thousand Dollars ($100,000) to City to support feasibility studies to be undertaken by City related to Willow Road ownership (the “Willow Road Feasibility Study Funding.”)
G. Job Training Funding and Community Hub. Developer shall provide funding to the below specified entities in the aggregate total amount of Eight Million Three Hundred Four Thousand Nine Hundred and Seven Dollars ($8,304,907) for the following from February 2022 through December 2024:
(1) Career pathway programs in partnership with local non-profit YearUp;
(2) Career pathway programs in partnership with local nonprofit nonprofit JobTrain; (3) A facility to be managed by Developer that will prepare local residents with job skills and fund internships for Menlo Park residents, with priority for Belle Haven residents, to the extent permitted by law.

The obligations set forth in this Section 5.1G shall be referred to collectively as the “Job Training Funding and Community Hub.” The funding costs are intended to include all costs incurred by Developer in providing the Job Training Funding and Community Hub, including rent and staffing costs associated with the Job Training Funding and Community Hub.

H. Teacher Housing Rent Subsidies. Developer shall provide subsidized rent in the amount of One Million Seven Hundred Forty-Five Thousand Three Hundred Nineteen Dollars ($1,745,319) for twenty-two (22) teachers currently living at 777 Hamilton Apartments in Belle Haven from February 2022 through March 2024 (“Teacher Housing Rent Subsidies”).

The Teacher Housing Rent Subsidies shall be provided pursuant to Meta’s existing Workforce Housing Fund Pilot Program established pursuant to the Development Agreement between Hibiscus Properties, LLC, a Delaware limited liability company and City dated December 14, 2016, as amended by the Amendment to Development Agreement dated December 18, 2017.

I. Bayfront Shuttle. Provide a shuttle service for a period of seventeen (17) years to transport Bayfront residents to and from the Main Project Site (“Bayfront Shuttle”).

Developer shall fund the Bayfront Shuttle through the formation of a Transportation Management Association (TMA) unless coordination with the City as described below results in an agreement between the Parties to provide the required shuttle service in an alternate manner.

If feasible as determined in Developer’s reasonable discretion, the The shuttle shall use one hundred percent (100%) electric vehicles if feasible, which shall mean that a technology that can run a single shuttle for twelve (12) hours without recharging is commercially reasonably available. If Developer believes using one hundred percent (100%) electric vehicles is infeasible, Developer shall notify City and Developer and City shall meet and confer to determine the lowest emission technology that is commercially reasonable and mutually acceptable to Page F-1.278
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Developer and City and Developer shall employ such technology. In connection with the Bayfront Shuttle, Developer shall:
(1) Coordinate outreach on shuttle routing, frequency, and design with the City’s outreach on shuttles to avoid duplicating service or inefficiency with transfers. (2) Participate in the City’s shuttle study as a stakeholder. (3) Prepare an annual report on shuttle ridership and other metrics such as timeliness of shuttle arrivals so that City can evaluate the shuttle service. (4) Use commercially reasonable efforts to coordinate with other developers and property owners in the area regarding the provision of shuttle services, subject to cost constraints and maintaining anticipated headways.

At the end of the seventeen (17) year period of operation of the Bayfront Shuttle, Developer and the City shall meet and confer to determine if there is continued demand for shuttle services and, if so, an appropriate approach for continuing such services, on what schedule, and how such services would be funded.

J. Bank. Developer shall construct a bank or credit union branch that includes retail service as well as one or more Automatic Teller Machines (“Bank”).

K. Dining Venues. Developer shall construct 18,000 square feet of building space for by Eating Establishments and Drinking Establishments, as defined in the Applicable City Regulations (“Dining Venues”), which shall be constructed in two phases of 9,000 square feet each (“First Phase Dining Venues” and “Second Phase Dining Venues,” respectively).

The Dining Venues shall consist of a range of dining options, from fast casual to sit-down restaurants, to serve residents and local employees.

L. Community Entertainment. Developer shall construct 25,000 square feet of building space for community entertainment offerings such as a cinema, live music, bowling, miniature golf, gaming, or similar use provided that gambling shall not be a permissible use (“Community Entertainment”), which shall be constructed in two phases of 12,500 square feet each (“First Phase Community Entertainment” and “Second Phase Community Entertainment,” respectively).

M. Pharmacy. Developer shall construct a space for pharmacy services to fill prescriptions and offer convenience goods (“Pharmacy”) in one of the four locations identified in Exhibit F.

N. Town Square. Developer shall construct as part of the Project a “Town Square” as depicted Conceptually shown on Exhibit E-1 and Exhibit E-2 that will include areas for community gatherings, festivals, and farmers markets.

O. Excess Publicly Accessible Open Space. Developer shall construct as part of the Project publicly accessible open space improvements in excess of what is required by City Code and provide ongoing maintenance for these areas, consisting of a minimum of 74,030 Page F-1.279
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square feet (“Excess Publicly Accessible Open Space”). The Excess Publicly Accessible Open Space may be constructed within the areas of the Community Park and/or the Dog Park and/or Parcel 3, each of which is depicted Conceptually depicted on Exhibit E-2, attached hereto.

Section 5.2 Leasing of Space for Bonus Development Community Amenities.

Developer shall make good faith, reasonable efforts to lease the space identified for the Grocery Store as a Grocery Store, the space identified for the Bank as a Bank, the space identified for the Pharmacy as a Pharmacy, the spaces identified for Dining Venues as Dining Venues, and the spaces identified for Community Entertainment as Community Entertainment. Developer shall provide a report to the City describing its good faith efforts to lease the Project components listed under this Section 5.2 in conjunction with the issuance of the first permits for vertical construction and an updated report in conjunction with each Annual Review thereafter. With regard to the Grocery Store, the Bank, and the Pharmacy, Developer shall notify the City as soon as reasonably possible following the execution of a lease with an operator of any such space that such lease has been executed and identifying the name of the operator; provided, however, that nothing contained within this Section 5.2 shall require Developer to breach any confidentiality provisions contained in any such lease. If despite Developer’s good faith, reasonable efforts, Developer is unable to lease the space identified for the Grocery Store as a Grocery Store, the space identified for the Bank as a Bank, the space identified for the Pharmacy as a Pharmacy, any of the spaces identified for Dining Venues as Dining Venues, or any of the spaces identified for Community Entertainment as Community Entertainment, then within twelve (12) months of the deadline for a final certificate of occupancy for that space as set forth in Exhibit F the Parties shall meet and confer to discuss potential alternative uses for such spaces that would provide community amenities on the list of community amenities set forth in Resolution No. 6360 or as agreed upon by Developer and City and to be memorialized in an Operating Memorandum.

Section 5.3 Public Benefits. If and to the extent that Developer commences construction of the Project, Developer must provide the public benefit contributions set forth in this Section 5.3.

A. Ongoing Job Training. Developer shall cause Meta to, for a period of five (5) years from and after the Effective Date:
(1) Work with a local training program to expand training services for residents of City and City of East Palo Alto;
(2) Create an ongoing quarterly series of career development workshops focusing on resume writing, interviewing skills, and how to find a job; (3) Hold an five (5) annual job fair fairs for residents of City and City of East Palo Alto. Program The program shall run annually for a period of five (5) years after the Effective Date, except for times of Meta hiring freezes, in which case the period shall be extended annually until five (5) job fairs have occurred; (4) Promote local volunteer opportunities to its employees; and (5) Host a local community organization fair.

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B. Career Experience Program. Developer shall cause Meta to, for a period of five (5) years from and after the Effective Date, create a career experience program for high school students living in the City, East Palo Alto, or Redwood City. The program shall run for at least four (4) weeks each year and shall allow students to receive STEM career training and engage with Meta employees.

C. Dumbarton Rail. Developer shall provide stakeholder support (for example, sending support letters) for a rail transit project along the Dumbarton rail bridge, which would connect the Caltrain corridor at Redwood City to the East Bay (“Dumbarton Rail Corridor Project.”) Developer shall have no obligation to provide financial support for the Dumbarton Rail Corridor Project.

D. Dumbarton Forward. Developer shall provide stakeholder support (for example, sending support letters) for Metropolitan Transportation Commission’s strategies to improve efficiency and reduce delay on the State Route 84-Dumbarton Bridge-Bayfront Expressway corridor between Interstate 880 in Fremont and Marsh Road in Menlo Park (“Dumbarton Forward.”) Developer shall have no obligation to provide financial support for Dumbarton Forward.

E. Bus Access. Developer shall coordinate with City to ensure that publicly operated buses have access to the Main Project Site (e.g., Menlo Park Midday, commute.org, SamTrans buses) and provide bus stops at reasonable locations within the Main Project Site, to be reasonably approved by City in conjunction with approval of Improvement Plans, for public transit systems.

F. Community Use of Publicly Accessible Open Space. Community use of the “Publicly Accessible Open Space”, as depicted Conceptually depicted in Exhibit E-2, shall be subject to compliance with the “Willow Village Open Space Rules,” which shall be approved by City prior to the first certificate of occupancy for the Project and shall include without limitation provisions: (a) permitting Developer or the owner’s association to be formed pursuant to Section 5.3 to reasonably restrict or prohibit public access and use as reasonably necessary to (i) ensure security of the Project Site and persons or property within or around the Project Site and (ii) preclude activities that unreasonably disrupt non-public uses in the Project; (b) providing exclusive use by Developer for a specified number of private events; and (c) providing terms of use for community use of the Publicly Accessible Open Space.

G. Gap Payment. Developer shall make an annual payment of Three Hundred Eighty-Nine Thousand Dollars ($389,000), plus a CPI Adjustment each year (“Gap Payment”) as provided in this Section 5.3G.
(1) The obligation to make a Gap Payment, if any, shall commence on the first of the month following the date that the certificate of occupancy for the third office building is issued (“Third Office COO Issuance”) if a building permit for the Hotel has not been issued as of the Third Office COO Issuance (“Gap Payment Commencement Date”); provided, however, that the Gap Payment Commencement Date shall be the first of the month following the first anniversary of the Third Office COO Issuance if a building permit for the Hotel has been issued as of the Third Office COO Issuance. The first Gap Payment shall be Page F-1.281
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prorated to reflect the months remaining in the Fiscal Year then in effect. Subsequent Gap Payments shall be due on July 1. Developer’s obligation to make the Gap Payment shall apply to the period commencing on the Gap Payment Commencement Date and continuing until the earlier of (i) the Hotel has received a certificate of occupancy or (ii) the time period provided in Section 11.7 following the expiration or earlier termination of this Agreement (the “Gap Payment Termination Date”) and there shall be no further obligation to make a Gap Payment after the Gap Payment Termination Date, provided however that if the Hotel is not built but another use, as agreed below, is approved for and occupies the site, the Gap Payment shall be adjusted to be reduced by the amount of annual revenue projected by the City’s economic consultant to result from the alternate use, and if the Gap Payment would thereby be reduced to zero then there shall be no further obligation to make a Gap Payment (“Gap Payment Period”). (2) If the Hotel has not received a certificate of occupancy within twenty-four (24) months after the date that the certificate of occupancy for the sixth office building is issued, Developer and City shall meet and confer to discuss a potential alternative productive and beneficial use for the parcel upon which the Hotel would have been constructed.

The Parties understand and agree that such alternative productive and beneficial use may require further review under CEQA and may require Subsequent Project Approvals including Other Agency Subsequent Project Approvals.
(3) If at the Gap Payment Termination Date the Hotel has not received a certificate of occupancy, then Developer shall make a one-time net present value supplemental payment to the City (the “Supplemental Gap Payment”), which shall be calculated by applying the then in effect Gap Payment amount for a ten (10) year period at a three (3) percent escalation rate over such ten (10) year period and applying a net present value discount rate of seven and one-half percent (7.5%). Developer’s obligation to make a Supplemental Gap Payment shall survive the termination of this Agreement until the obligation is satisfied, and the general survival time frame for public benefits set forth in Section 11.7 shall not apply to this obligation.

H. Willow Road Tunnel. Subject to receipt of all necessary Other Agency Approvals, Developer at its sole election may construct the new bike lanes and pedestrian paths, which would connect to existing facilities and the Bay Trail, as depicted Conceptually depicted in Exhibit E-3 including the tunnel under Willow Road that would provide pedestrian and bicycle access to the Bayfront Area Meta Campuses (“Willow Road Tunnel”). Upon Developer’s request, to the extent necessary to accommodate the Willow Road Tunnel portal and associated improvements, City shall cooperate with Developer in processing and approving a modification to the approved Conditional Development Permit for the Bayfront Expansion Campus in accordance with Section 6.1.1 – 6.1.3 thereof.

I. Community Use of MCS. Subject to Developer’s security protocols and requirements and Developer’s scheduling needs, exercised in good faith, and applicable deed restrictions imposed pursuant to Mitigation Measures in the Project EIR, Developer will provide access to the MCS to the City and/or non-profit or similar community organizations for up to six (6) community events per year (“MCS Community Events”). As part of the periodic review pursuant to Article 6.1, Developer will advise the City of the number of MCS Community Events that occurred in the prior year. Other than providing police services ordinarily provided Page F-1.282
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by the City, City shall have no obligation to provide security or contribute to the cost of security for MCS Community Events pursuant to this Section 5.3I.

J. Generators. If, at the time that generators are purchased, there is commercially available generator technology that is environmentally cleaner than diesel, and commercial generators with that technology can achieve the Project electrical load requirements and work with the electrical and mechanical infrastructure/service of the Project without redesign, then the Project will use that technology if (1) the capital cost is not more than five percent (5%) more expensive (for the generator including any system modifications to accommodate that technology) of the bid price of the diesel generator meeting the project specifications and (2) the annual operational cost will not be more than five percent (5%) more expensive. At least 30 days prior to purchasing, Developer shall provide City with (i) a bid for the generator and any system modifications to accommodate the environmentally cleaner technology and, for purposes of comparison, a bid for a diesel generator and (ii) documentation showing the annual operational costs of the environmentally cleaner technology and, for purposes of comparison, documentation showing the annual operational costs of diesel.

Section 5.4 Maintenance of Publicly Accessible Open Space. Except as provided in Section 5.5 below, Developer or another entity controlled by Meta, or an owners’ association to be formed by Developer, shall own, operate, maintain and repair the Publicly Accessible Open Space in good and workmanlike condition, and otherwise in accordance with all Applicable Laws and any Project Approvals, all at no cost to City.

Section 5.5 Maintenance of Elevated Park Segment Over Willow Road and Willow Road Tunnel. If constructed, City shall own and Developer shall maintain and insure the Elevated Park Segment Over Willow Road and the Willow Road Tunnel at its sole cost and expense pursuant to agreements to be executed prior to construction of the Elevated Park Segment Over Willow Road and the Willow Road Tunnel, respectively. City shall have no obligation to fund maintenance of the Elevated Park Segment Over Willow Road and the Willow Road Tunnel. City shall have no liability for any Claims relating to the construction, condition, or maintenance of the Elevated Park Segment Over Willow Road or the Willow Road Tunnel except to the extent resulting from the gross negligence or willful misconduct of City. At Developer’s sole cost and expense, Developer shall remove or replace the Elevated Park Segment Over Willow Road and the Willow Road Tunnel at the end of their respective useful lives.

Section 5.6 Sales Tax Point of Sale Designation. Developer shall use commercially reasonable efforts to the extent allowed by law to require all persons and entities providing bulk lumber, concrete, structural steel and pre-fabricated building components, such as roof trusses, (“Specified Materials”) to be used in connection with the initial construction and development of, or incorporated into, the Project (excluding (i) any subsequent remodeling or construction on the Property following final building permit sign off for each building to be constructed as part of the Project and (ii) furnishings, equipment, and personal property), to (a) obtain a use tax direct payment permit; and either (b) elect to obtain a subcontractor permit for the job site of a contract valued at Five Million Dollars ($5,000,000) or more or (c) otherwise designate the Property as the place of use of the Specified Materials used in the construction of the Project in order to have the local portion of the sales and use tax distributed directly to City instead of Page F-1.283
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through the county-wide pool. Developer shall instruct each of its subcontractors subject to this Section 5.6 to cooperate with City in its efforts to ensure the full local sales/use tax for the Specified Materials is allocated to City. To assist City in its efforts to ensure that the full amount of such local sales/use tax is allocated to the City, Developer shall provide City with an annual spreadsheet, which includes a list of all subcontractors subject to this Section 5.6, a description of all applicable work, and the dollar value of such subcontracts. City may use said spreadsheet sheet to contact each subcontractor who may qualify for local allocation of use taxes to the City.

Section 5.7 BMR Housing True Up Payment. If following Commencement of Construction, Developer has no active building permits or has not passed any of the inspections required in connection with the building permits issued to Developer for a period of three (3) years for reasons other than a Force Majeure Delay (“Pause of Construction”) and the number of “BMR Units” actually constructed at such point is less than the Proportionate Required BMR Units, as calculated below, then Developer shall pay a “BMR Housing True Up Payment” as provided in this Section 5.7. The BMR Housing True Up Payment shall be calculated as follows: (1) determine the then required number of BMR Units (the “Proportionate Required BMR Units”) by (a) multiplying the total number of residential units constructed to date by fifteen percent (15%) (the “Inclusionary Units”) and (b) adding the number of any required additional BMR Units correlated to commercial space constructed to date based on the value of the commercial in-lieu fee at the rate in effect as of the Effective Date using the same methodology that was used to determine the total number of BMR Units correlated to all commercial space in the Project at full buildout (the “Linkage Equivalent Units”) (the sum of the Inclusionary Units and Linkage Equivalent Units equals the Proportionate Required BMR Units); (2) subtract the number of BMR Units constructed to date from the Proportionate Required BMR Units (the resulting difference shall be referred to herein as the “Fee Paid BMR Units”); and (3) multiply the number of Fee Paid BMR Units by Five Hundred Thousand Dollars ($500,000), subject to any annual escalator that is applied to the below market rate commercial linkage in-lieu fee in effect as of the Effective Date, with the resulting product being the amount of the BMR Housing True Up Payment. The BMR Housing True Up Payment shall be paid to the City and the City shall hold the BMR Housing True Up Payment in a segregated account and no portion of the BMR Housing True Up Payment shall be deposited into the City’s Below Market Rate Housing Fund. City shall not spend any portion of the BMR Housing True Up Payment for any purpose for a period of three (3) years following the City’s receipt of the BMR Housing True Up Payment (the “BMR Fee Holding Period”). If Developer secures an additional building permit and Commences Construction or passes an inspection required in connection with Developer’s building permits (“Resumption of Construction”) prior to the expiration of the BMR Fee Holding Period, then the City shall return the BMR Housing True Up Payment to Developer and Developer shall construct all future BMR Units to be constructed on site as described in the Project Approvals. In the event that a Resumption of Construction does not occur within the BMR Fee Holding Period, then the City may use the BMR Housing True Up Payment for affordable housing purposes as permitted under the City’s Below Market Rate Housing Program, and Developer shall have no further obligation to construct any of the Fee Paid BMR Units and Developer shall only be obligated to construct future required BMR Units on site (i.e., the proposed number of BMR Units in the project less the number of BMR Units constructed previously and the Fee Paid BMR Units). If there is a Resumption of Construction after the BMR Fee Holding Period, and the City Council and/or City Manager have not approved expenditure of the BMR Housing True Up Payment for a specific affordable housing project or Page F-1.284
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program, then Developer may request that the BMR Housing True Up Payment be returned to Developer. Upon receipt of said request, Developer and City shall meet and confer regarding any planned or proposed use by the City of the BMR Housing True Up Payment. Following said meet and confer, Developer may, in its sole discretion, confirm its request that the BMR Housing True Up Payment be returned to Developer, in which case the City shall return the BMR Housing True Up Payment to Developer and Developer shall construct all future BMR Units to be constructed on site as described in the Project Approvals. If there is another Pause of Construction after any Resumption of Construction, Developer shall be obligated to make another BMR Housing True Up Payment calculated pursuant to this Section 5.7.

Section 5.8 Hamilton Avenue Realignment. Subject to receipt of all necessary Other Agency Approvals, Developer shall realign Hamilton Avenue in accordance with the Project Approvals. Developer shall make good faith efforts to obtain such Other Agency Approvals for the realignment of Hamilton Avenue. In the event Developer does not receive such Other Agency Approvals, Developer shall provide written notice to City and Developer shall be permitted to construct the Project, as reconfigured in accordance with Sheet G4.08 of the Willow Village Master Plans.

ARTICLE 6 ANNUAL REVIEW
Section 6.1 Periodic Review.

A. As required by California Government Code Section 65865.1 and the Development Agreement Regulations, City and Developer shall review this Agreement and all actions taken pursuant to the terms of this Agreement with respect to the development of the Project every twelve (12) months to determine good faith compliance with this Agreement.

Specifically, City’s annual review shall be conducted for the purposes of determining good faith compliance by Developer with its obligations under this Agreement.

B. The annual review shall be conducted as provided in the Development Agreement Law and City’s Development Agreement Regulations as follows:
(1) The Director of Community Development shall provide each Developer notice of an annual review hearing before the Planning Commission, which shall be scheduled at least thirty (30) days after the date of the notice. The notice shall, to the extent required by law, include a statement that any review may result in amendment or termination of this Agreement. At said hearing, each Developer must demonstrate, and shall bear the burden of proof of, good faith compliance with the terms of this Agreement. The Planning Commission shall determine upon the basis of substantial evidence whether or not a Developer has complied in good faith with the terms and conditions of this Agreement. The decision of the Planning Commission may be appealed to the City Council. Each Developer shall be responsible for its own Annual Review process; provided, however, that multiple Annual Reviews may occur at the same Planning Commission hearing. In accordance with Section 10.2, no default of one Developer shall have any effect on the compliance of a different Developer. (2) If the Planning Commission (if its finding is not appealed) or City Council finds that Developer has not complied in good faith with the terms and conditions of this Page F-1.285
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Agreement, the City shall commence proceedings under ARTICLE 11 by providing a written Notice of Default under Section 11.1 to such Developer describing: (a) such failure and that such failure constitutes a Default; (b) the actions, if any, required by Developer to cure such Default; and (c) the time period within which such Default must be cured. In accordance with Section

11.1, if the Default can be cured, Developer shall have a minimum of thirty (30) days after the date of such notice to cure such Default, or in the event that such Default cannot be cured within such thirty (30) day period, if Developer shall commence within such thirty (30) day time period the actions necessary to cure such Default and shall be diligently proceeding to complete such actions necessary to cure such Default, Developer shall have such additional time period as may be required by Developer within which to cure such Default. (3) If Developer fails to cure a Default within the time periods set forth above, the City Council may amend or terminate this Agreement as provided below.

C. If, upon a finding under Section 6.1, subsection B of this Agreement and the expiration of the cure period specified in Section 6.1, subsection B without Developer having cured a Default, the City determines to proceed with amendment or termination of this Agreement, the City shall give written notice to Developer of its intention so to do. The notice shall be given at least fifteen (15) days before the scheduled hearing and shall contain:
(1) The time and place of the hearing before the City Council; (2) A statement that City proposes to amend or terminate the Agreement;
(3) Such other information as is reasonably necessary to inform Developer of the nature of the proceeding.

D. At the time and place set for the hearing on amendment or termination, Developer shall be given an opportunity to be heard, and Developer shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. If the City Council finds, based upon substantial evidence, that Developer has not complied in good faith with the terms or conditions of this Agreement, the City Council may terminate this Agreement pursuant to Section 11.2. The decision of the City Council shall be final, subject to judicial review pursuant to Section 1094.5 of the California Code of Civil Procedure.

E. Failure of City to conduct an annual review shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual review.

F. If, after an annual review, City finds Developer has complied in good faith with this Agreement, City, promptly following Developer’s request, shall issue to Developer a letter of compliance in recordable form certifying that Developer has so complied through the period of the applicable annual review.

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ARTICLE 7 MORTGAGEE PROTECTION
Section 7.1 Mortgagee Protection. This Agreement shall not prevent or limit Developer in any manner, at Developer’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property (“Mortgage”). This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording the Agreement, including the lien of any Mortgage. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”), who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise.

Section 7.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 7.1 above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of the Project, or any portion thereof, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any use except in full compliance with the Project Approvals and this Agreement nor to construct any improvements thereon or institute any uses other than those uses and improvements provided for or authorized by this Agreement and the Project Approvals.

Section 7.3 Notice of Default to Mortgagee; Right to Cure. With respect to any Mortgage granted by Developer as provided herein, so long as any such Mortgage shall remain unsatisfied of record and Mortgagee has provided City with written notice requesting that City send Mortgagee notices of Default and specifying the address for service thereof, the following provisions shall apply:

A. City, upon serving Developer any notice of Default, shall also serve a copy of such notice upon any Mortgagee at the address provided to City, and no notice by City to Developer hereunder shall affect any rights of a Mortgagee unless and until a copy thereof has been so served on such Mortgagee; provided, however, that failure so to deliver any such notice shall in no way affect the validity of the notice sent to Developer as between Developer and City.

B. In the event of a Default by Developer, any Mortgagee shall have the right to remedy, or cause to be remedied, such Default within sixty (60) days following the later to occur of (i) the date of Mortgagee’s receipt of the notice referred to in Section 7.3A above, or (ii) the expiration of the period provided herein for Developer to remedy or cure such Default, and City shall accept such performance by or at the insistence of the Mortgagee as if the same had been timely made by Developer; provided, however, that (a) if such Default is not capable of being cured within the timeframes set forth in this Section 7.3B and Mortgagee commences to cure the Default within such timeframes, then Mortgagee shall have such additional time as is required to cure the Default so long as Mortgagee diligently prosecutes the cure to completion and (b) if possession of the Property (or portion thereof) is required to effectuate such cure or remedy, the Mortgagee shall be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within sixty (60) days after receipt of the Page F-1.287
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copy of the notice, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy.

C. Any notice or other communication which City shall desire or is required to give to or serve upon the Mortgagee shall be in writing and shall be served in the manner set forth in Section 12.5, addressed to the Mortgagee at the address provided by Mortgagee to City.

Any notice or other communication which Mortgagee shall give to or serve upon City shall be deemed to have been duly given or served if sent in the manner and at City’s address as set forth in Section 12.5, or at such other address as shall be designated by City by notice in writing given to the Mortgagee in like manner.

Section 7.4 No Supersedure. Nothing in this Article 7 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision or public improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this Article 7 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 7.3.

Section 7.5 Technical Amendments to this Article 7. City agrees to reasonably consider and approve interpretations and/or technical amendments to the provisions of this Agreement that are required by lenders for the acquisition and construction of the Project on the Property or any refinancing thereof and to otherwise cooperate in good faith, at Developer's expense, to facilitate Developer’s negotiations with lenders.

ARTICLE 8 AMENDMENT OF AGREEMENT AND EXISTING APPROVALS Section 8.1 Amendment of Agreement By Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the Parties hereto or their successorsin-interest or assigns, and then only in the manner provided for in the Development Agreement Statute and Development Agreement Regulations.

Section 8.2 Requirement for Writing. No modification, amendment or other change to this Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing that refers expressly to this Agreement and is signed by duly authorized representatives of both Parties or their successors. A copy of any change shall be provided to the City Council within thirty (30) days of its execution.

Section 8.3 Amendments to Development Agreement Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute as those provisions existed as of the Agreement Date. No amendment or addition to those provisions that would materially affect the interpretation or enforceability of this Agreement shall be applicable to this Agreement, unless such amendment or addition is specifically required by the California State Legislature or is mandated by a court of competent jurisdiction. In the event of the application of such a change in law, the Parties shall meet in good faith to determine the feasibility of any modification or suspension that may be necessary to comply with such new law or regulation and to determine the effect such modification or suspension would have on the purposes and intent of this Agreement. Following the meeting between the Parties, the provisions of this Agreement may, to the extent feasible, and upon mutual agreement of the Page F-1.288
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Parties, be modified or suspended but only to the minimum extent necessary to comply with such new law or regulation. If such amendment or change is permissive (as opposed to mandatory), this Agreement shall not be affected by same unless the Parties mutually agree in writing to amend this Agreement to permit such applicability. Developer and/or City shall have the right to challenge any new law or regulation preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect.

Section 8.4 Amendments to Project Approvals. Project Approvals (except for this Agreement, the amendment process for which is set forth in Section 8.1 through 8.2) may be amended or modified from time to time, but only at the written request of Developer or with the written consent of Developer at its sole discretion. All amendments to the Project Approvals shall automatically become part of the Project Approvals. The permitted uses of the Property or portion thereof, the maximum density and/or number of residential units, the intensity of use, the maximum height and size of the proposed buildings, provisions for reservation or dedication of land for public purposes, the conditions, terms, restrictions and requirements for subsequent discretionary actions, the provisions for public improvements and financing of public improvements, and the other terms and conditions of development as set forth in all such amendments shall be automatically vested pursuant to this Agreement, without requiring an amendment to this Agreement. Amendments to the Project Approvals shall be governed by the Project Approvals and the Applicable Law. City shall not request, process or consent to any amendment to the Project Approvals, or applicable portion thereof, without Developer’s prior written consent in Developer’s sole discretion.

Section 8.5 Administrative Amendments of Project Approvals. Upon the request of Developer for an amendment or modification of any of the Project Approvals (except for this Agreement, the amendment process for which is set forth in Section 8.1 through 8.2 herein, and the Willow Village CDP, the change or amendment process for which is set forth in Section 8 thereof), the City Manager or his/her designee shall determine: (a) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (b) whether the requested amendment or modification substantially conforms with the material terms of this Agreement and the Applicable Law and may be processed administratively. If the City Manager or his/her designee finds that the requested amendment or modification is both minor and substantially conforms with the material terms of this Agreement and the Applicable Law, the amendment or modification shall be determined to be an “Administrative Amendment,” and the City Manager or his/her designee may approve the Administrative Amendment, without public notice or a public hearing. Without limiting the generality of the foregoing, lot line adjustments, minor reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, variations in the location of structures that do not substantially alter the design concepts of the Project, substitution of comparable landscaping for any landscaping shown on any development plan or landscape plan, variations in the location or installation of utilities and other infrastructure connections and facilities that do not substantially alter design concepts of the Project, and minor adjustments to a subdivision map or the Property legal description shall be deemed to be minor amendments or modifications. Any request of Developer for an amendment or modification to a Project Approval that is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement.

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Section 8.6 Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Developer and development of the Property hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details or timing of performance of City and Developer. If and when, from time to time, during the Term of this Agreement, City and Developer agree that such clarifications are necessary or appropriate, City and Developer may effectuate such clarifications through operating memoranda approved by City and Developer (each, individually an “Operating Memorandum” and collectively “Operating Memoranda”), which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further clarified from time to time as necessary with future approval by City and Developer. No such Operating Memorandum shall constitute an amendment to this Agreement requiring public notice or hearing. The City Manager, in consultation with the City Attorney, shall make the determination on behalf of City whether a requested clarification may be effectuated pursuant to this Section 8.6 or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section 8.1 above. The City Manager shall be authorized to execute any Operating Memorandum hereunder on behalf of City.

Section 8.7 Amendment to Incorporate Additional Property. Developer has an equitable reversionary interest in portions of Hamilton Avenue to be abandoned by the City (the “Hamilton ROW Parcel”) and an equitable interest in a portion of a parcel that is owned by Chevron USA (the “Chevron Parcel”) pursuant to an executed purchase and sale agreement between Developer and the owner of the Chevron Parcel. Upon Developer acquiring a fee interest in the Chevron Parcel or the Hamilton ROW Parcel, or both, City and Developer shall enter into an Operating Memorandum to subject the Chevron Parcel or the Hamilton ROW Parcel, or both, to this Agreement and amend the map of the Property attached hereto as Exhibits A-1-1 and A-1-2 and the legal description of the Property attached hereto as Exhibits A-2-1 and A-2-2 to add the Chevron Parcel or the Hamilton ROW Parcel, or both, to the legal description for this Agreement, which Operating Memorandum shall be recorded in the Official Records of San Mateo County.

Section 8.8 CEQA. In connection with its consideration and approval of the Existing Approvals, the City has prepared and certified the Project EIR, which evaluates the environmental effects of the Project, and has imposed all feasible mitigation measures to reduce the significant environmental effects of the Project. The Parties acknowledge that certain Subsequent Project Approvals may legally require additional analysis under CEQA. Nothing contained in this Agreement is intended to prevent or limit the City from complying with CEQA.

In acting on Subsequent Project Approvals, City will rely on the Project EIR to the fullest extent permissible by CEQA. In the event supplemental or additional review is required for a Subsequent Project Approval, City shall limit such supplemental or additional review to the scope of analysis mandated by CEQA and shall not impose new mitigation measures except as legally required.

ARTICLE 9 COOPERATION AND IMPLEMENTATION
Section 9.1 Subsequent Project Approvals. Certain subsequent land use approvals, entitlements, and permits other than the Existing Approvals will be necessary or desirable for implementation of the Project (“Subsequent Project Approvals”). The Subsequent Project Page F-1.290
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Approvals may include, without limitation, the following: grading permits, building permits, sewer and water connection permits, certificates of occupancy, lot line adjustments, site plans, development plans, land use plans, building plans and specifications, final maps, parcel maps and/or subdivision maps, conditional use permits, variances, architectural control plans, demolition permits, improvement agreements, encroachment permits, and any modifications or amendments to any of the foregoing or any Existing Approvals. At such time as any Subsequent Project Approval applicable to the Property is approved by the City, then such Subsequent Project Approval shall become subject to all the terms and conditions of this Agreement applicable to Project Approvals and shall be treated as a “Project Approval” under this Agreement.

Section 9.2 Scope of Review of Subsequent Project Approvals. In exercising its discretion in connection with consideration of Subsequent Project Approvals, City agrees that City shall not revisit the fundamental policy decisions reflected by the Existing Approvals or impose any Exactions that would conflict with the Applicable City Regulations or the Existing Approvals as set forth in Section 3.1 herein or any Project Approvals unless expressly permitted by Sections 4.3A-D or 9.8.

Section 9.3 Processing Applications for Subsequent Project Approvals.

A. Developer acknowledges that City cannot begin processing applications for Subsequent Project Approvals until Developer submits applications and responses to City comments thereto on a timely basis. Developer acknowledges that for the City to process applications, Developer needs to (i) provide to City in a timely manner and in the manner required under Applicable Law any and all Processing Fees, documents, materials, applications, plans, and other information reasonably necessary for City to carry out its review and processing obligations; and (ii) cause Developer’s planners, engineers, and all other consultants to provide to City in a timely manner and in the manner required under Applicable Law all such documents, applications, plans, information, and other materials required under Applicable Law.

B. Upon submission by Developer of all appropriate applications and Processing Fees for any Subsequent Project Approval, City shall accept, review, and use reasonable efforts to expeditiously process Developer’s applications and requests for Subsequent Project Approvals in connection with the Project in good faith and in a manner that complies with and is consistent with Applicable Law and the Project Approvals and this Agreement. The City shall approve any application or request for any Subsequent Project Approval that substantially complies with and is substantially consistent with the Project Approvals. The Parties shall cooperate with each other and shall use diligent, good faith efforts to cause the expeditious review, processing, and action on the Subsequent Project Approvals. City shall, to the full extent allowed by Applicable Law, promptly and diligently, subject to City ordinances, policies and procedures regarding hiring and contracting, commence and complete all steps necessary to act on Developer’s currently pending Subsequent Project Approval applications including: (i) providing at Developer’s expense and subject to Developer’s request and prior approval, reasonable overtime staff assistance, additional staff and/or staff consultants for processing of Subsequent Project Approval applications as may be necessary to meet Developer’s reasonable schedule considerations; (ii) if legally required, providing notice and Page F-1.291
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holding public hearings; and (iii) acting on any such pending Subsequent Project Approval application.

C. If City so requests in writing after submittal of an application for a demolition permit, or earlier if otherwise agreed by Developer in its reasonable discretion, Developer shall fund (i) a third party consultant or (ii) a member of City staff that is primarily dedicated to the Project Manager functions under this Section 9.3C (and any time spent on other functions shall not be billed to the Project under this Section), to be selected and retained by City and subject to Developer’s reasonable approval, to assist City in managing the implementation of the Project Approvals and this Agreement as well as facilitating the processing of Subsequent Project Approvals; receive inquiries related to the Project and coordinate with Developer and City departments regarding appropriate responses thereto during development of the Project; and promote accessibility, predictability, and consistency across City departments (the “Project Manager”). Developer shall use commercially reasonable efforts to provide at least ninety (90) days advance written notice of its intent to submit a demolition permit. (1) City shall determine, in City’s reasonable discretion after consulting with Developer, the need for the Project Manager, the initial budget (including a reasonable initial deposit amount to cover initial hiring and reasonable compensation costs, which shall be consistent with market costs for similar services, associated with the Project Manager (the “Initial Deposit”)), the scope of work, and the schedule of work for the Project Manager. Developer shall deposit the Initial Deposit within sixty (60) days of City’s written request. City shall utilize the Initial Deposit to pay for the initial cost of the Project Manager and Developer shall pay future invoices as set forth in Section 9.3C(3) below. At such intervals as the Parties shall agree in writing, subsequent budgets, schedules, and scopes of work for the Project Manager shall be determined by the City in its reasonable discretion after consulting with Developer. City shall provide written notice to Developer prior to entering into any contract with a third party to provide the Project Manager services under this Section 9.3C. (2) In the event that Developer reasonably disputes any budget, scope, schedule, or selection of the Project Manager proposed by City, Developer shall provide written notice to City of its objections and the Parties shall cooperate in good faith to resolve the dispute pursuant to Section 11.6. If the Parties are unable to resolve the dispute, then the Parties shall participate in a mediation to be conducted at the Judicial Arbitration and Mediation Services (JAMS) in San Francisco, CA. The mediation shall be before a single mediator and, unless otherwise agreed by the Parties, shall not exceed two (2) days in length. The costs of any such mediation shall be borne equally by the Parties. If the dispute is not resolved at mediation, the disputed budget, scope, schedule, or selection of the Project Manager proposed by City shall stand and Developer shall have the right to seek mandamus or other equitable relief as may be available under applicable law.
(3) City shall provide Developer on a monthly or quarterly basis (as mutually agreed to by the Parties in writing) an invoice which shall include: the Project Manager’s hourly rate, the number of hours the Project Manager worked on Project activities during the previous month or quarter (as mutually agreed to by the Parties in writing), and a brief, non-confidential description of the work the Project Manager performed on Project activities. Developer shall submit payment of any invoice within sixty (60) days of receipt of Page F-1.292
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City’s invoice.
(4) Further details regarding the process and timing for billing and payment of the City’s costs associated with the Project Manager shall be documented in an Operating Memorandum to be entered into within sixty (60) days of City’s receipt of Developer’s notice provided pursuant to the opening paragraph of Section 9.3C. (5) Developer may, from time to time, but in no event more than once in any twelve (12)-month period, at Developer’s sole cost and expense, request an audit of the City invoices described in this Section and non-confidential supporting documentation therefor, provided any such audit is initiated within one (1) year after Developer’s receipt of the invoice.

If an audit reveals that the actual costs were less than the amount of any City invoice provided in accordance with this Section, then within sixty (60) days following receipt of the invoice or audit results, Developer shall provide notice of the amount disputed and the reason for the dispute, and the Parties shall use good faith efforts to reconcile or resolve the dispute as soon as practicable. (6) Developer’s obligation to fund the costs of the Project Manager shall terminate upon Completion of Construction of the last Improvement for the Project. In addition, on thirty (30) days’ prior written notice from Developer of an anticipated temporary suspension of at least ninety (90) days of the implementation of the Project Approvals and processing of Subsequent Project Approvals, Developer’s obligation to fund the costs of the Project Manager shall be suspended until Developer resumes the implementation of the Project Approvals or processing of Subsequent Project Approvals, at which time Developer’s obligation to fund the costs of the Project Manager shall resume. Developer shall provide City with at least sixty (60) days’ written notice of its intent to resume implementation of the Project Approvals or processing of Subsequent Project Approvals. City will use good faith efforts in consultation with Developer to locate an alternate Project Manager within a reasonable period of time in the event that the Project Manager in place prior to the suspension (i) will not be used, as determined in City’s reasonable discretion, or (ii) declines to act as Project Manager.

Section 9.4 Other Agency Subsequent Project Approvals; Authority of City. Other public agencies not within the control of City may possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Nevertheless, City shall be bound by, and shall abide by, its covenants and obligations under this Agreement in all respects when dealing with any such agency regarding the Property. City shall cooperate with Developer, at Developer’s expense, to the extent appropriate and as permitted by law, in Developer’s efforts to obtain, as may be required, Other Agency Subsequent Project Approvals. Nothing in this Section 9.4 shall relieve Developer of its obligation to comply with the Project Approvals, notwithstanding any conflict between the Other Agency Subsequent Project Approvals and the Project Approvals.

Section 9.5 Implementation of Necessary Mitigation Measures. Developer shall, at its sole cost and expense, comply with the Project MMRP requirements as applicable to the Property and Project.

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Section 9.6 Cooperation in the Event of Legal Challenge.

A. The filing of any third -party lawsuit(s) against City or Developer relating to this Agreement, the Project Approvals or construction of the Project shall not delay or stop the development, processing or construction of the Project or approval of any Subsequent Project Approvals, unless a court order prevents the activity. City shall not stipulate to or cooperate in the issuance of any such order.

B. City and Developer shall cooperate in the defense of any court action or proceeding instituted by a third -party or other governmental entity or official challenging the validity of any of the Project Approvals (“Litigation Challenge”), and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. To the extent Developer desires to contest or defend such Litigation Challenge, (i) Developer shall take the lead role defending such Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice; (ii) City may, in its sole discretion, elect to be separately represented by the legal counsel of its choice, selected after consultation with Developer, in any action or proceeding, with the reasonable costs of such representation to be paid by Developer; (iii) Developer shall reimburse City, within forty-five (45) days following City’s written demand therefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the Litigation Challenge, including City’s reasonable administrative, legal, and court costs and City Attorney oversight expenses; and (iv) Developer shall indemnify, defend, and hold harmless City Parties from and against any damages, attorneys’ fees or cost awards, including attorneys’ fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against City by way of judgment, settlement, or stipulation. Upon request by Developer, City shall enter into a joint defense agreement in a form reasonably acceptable to the City Attorney and Developer to facilitate the sharing of materials and strategies related to the defense of such Litigation Challenge without waiver of attorney client privilege. Any proposed settlement of a Litigation Challenge by a Party shall be subject to the approval of the other Party, such approval not to be unreasonably withheld, conditioned or delayed; provided, however, that Developer may settle Litigation without consent of the City if the settlement does not require any changes to any Project Approvals or action by the City. If the terms of the proposed settlement would constitute an amendment or modification of any Project Approvals, the settlement shall require such amendment or modification to be approved by City in accordance with Applicable Law, and City reserves its full discretion in accordance with Applicable Law with respect thereto. If Developer opts not to contest or defend such Litigation Challenge, City shall have no obligation to do so, but shall have the right to do so at its own expense.

Section 9.7 Revision to Project. In the event of a court order issued as a result of a successful Litigation Challenge, City shall, to the extent permitted by law or court order, in good faith seek to comply with the court order in such a manner as will maintain the integrity of the Project Approvals and avoid or minimize to the greatest extent possible (i) any impact to the development of the Project as provided for in, and contemplated by, the Project Approvals, or (ii) any conflict with the Project Approvals or frustration of the intent or purpose of the Project Approvals.

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Section 9.8 State, Federal or Case Law. Where any state, federal or case law allows City to exercise any discretion or take any act with respect to that law, City shall, in an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and carry out the terms of, this Agreement, and (ii) take such other actions as may be necessary to carry out in good faith the terms of this Agreement.

Section 9.9 Defense of Agreement. City, at Developer’s expense, shall take all actions that are necessary or advisable to uphold the validity and enforceability of this Agreement. If this Agreement is adjudicated or determined to be invalid or unenforceable, City agrees, subject to all legal requirements, to consider modifications to this Agreement acceptable to Developer to render this Agreement valid and enforceable to the extent permitted by Applicable Law. In the event of a Litigation Challenge, Developer may terminate this Agreement and abandon the Project and, following such termination, Developer shall have no further obligation to pay for the costs of defense of this Agreement other than incurred by the City in seeking to have any such Litigation Challenge dismissed as moot.

ARTICLE 10 ASSIGNMENT AND PILOT AGREEMENT
Section 10.1 Transfers and Assignments. Developer shall have the right to sell, assign or transfer any portion of the Property without the consent of City; provided, however, in no event shall the rights, duties and obligations conferred or imposed upon Developer pursuant to this Agreement be at any time transferred in whole or part (“Transfer”) except through a transfer of the Property or portion thereof and no such Transfer of this Agreement shall be made prior to substantial completion of the Project without the prior written consent of City Manager, not to be unreasonably withheld, conditioned, or delayed, in accordance with the provisions of this Article 10.Upon Developer’s request, City, at Developer’s expense, shall cooperate with Developer and any proposed transferee of any portion of the Property to allocate and Transfer rights, duties and obligations under this Agreement and the Project Approvals between the transferred Property and the retained Property.

Developer shall notify City of any proposed Transfer of this Agreement at least sixty (60) days prior to completing any Transfer. City shall approve or disapprove the requested Transfer of this Agreement with respect to any portion of the Property within thirty (30) days after receipt of a written request for approval from Developer, together with such financial information and other documentation that City determines is reasonably necessary to evaluate the proposed transaction and the proposed assignee’s experience, reputation and qualifications. City shall not unreasonably withhold, condition or delay its approval of a proposed Transfer of this Agreement to a reputable assignee who has (i) at least ten (10) years’ experience in the development, ownership, operation and management of similar-size or larger developments of the type to be undertaken on the transferred portion of the Property without any record of material violations of Applicable Laws, and (ii) the financial resources and wherewithal to develop and effectively manage the Project or pertinent component of the Project. The approved assignee shall be required to assume Developer’s rights and obligations under this Agreement with respect to the transferred portion of the Property pursuant to an assignment and assumption agreement in substantially the same form attached hereto as Exhibit G. No later than ten (10) business days after the date the assignment becomes effective, Developer shall deliver to City a conformed copy of the fully executed and recorded assignment and assumption agreement.

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Notwithstanding anything to the contrary provided herein, Mercy Housing is preapproved as a transferee of this Agreement with respect to the senior affordable housing component of the Project.

Section 10.2 Release upon Transfer. Upon the Transfer of all or any of Developer’s rights and interests under this Agreement pursuant to this Article 10, Developer shall automatically be released from its obligations and liabilities under this Agreement with respect to that portion of the Property transferred and the rights and/or obligations Transferred, and any subsequent default or breach with respect to the transferred rights and/or obligations shall not constitute a default or breach with respect to the retained rights and/or obligations under this Agreement, provided that (i) Developer has provided to City written Notice of such Transfer, and (ii) the transferee executes and delivers to City a written agreement in accordance with Section

10.1 above. Upon any Transfer of any portion of the Property and the express assumption of Developer’s obligations under this Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. Except as otherwise provided in this Agreement, a default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way Developer’s rights hereunder with respect to any portion of the Property not owned by such transferee. The transferor and the transferee shall each be solely responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferor/transferee and the rights and/or obligations under this Agreement assumed by such transferee, and any amendment to this Agreement between City and a transferor or a transferee shall only affect the portion of the Property owned by and the rights and/or obligations retained and/or assumed by such transferor or transferee. Failure to deliver a written assumption agreement hereunder shall not affect the running of any covenants herein with the land, as provided in Section 12.4 below, nor shall such failure negate, modify or otherwise affect the liability of any transferee pursuant to the provisions of this Agreement.

Section 10.3 PILOT. Prior to the issuance of the first building permit for the Project or any transfer of any portion of the Property, whichever is earlier, Developer and City shall enter into a Payment In Lieu of Taxes Agreement (“PILOT Agreement”) to be recorded in the Official Records of the County of San Mateo against the Main Project Site and Developer shall cause LLBG Properties, LLC to enter into a PILOT Agreement to be recorded in the Official Records of the County of San Mateo against the Hamilton Parcels. Each PILOT Agreement shall require that if any portion of the Property is sold or transferred to an entity that applies for and is granted a "welfare exemption" pursuant to Section 214 of the California Revenue and Taxation Code, or any successor provision, or any other exemption from the payment of real or personal property taxes of any nature, Developer or LLBG Properties, LLC or the proposed transferee, as applicable, must pay annually to the City, a payment in lieu of taxes in an amount equal to the portion of the real and personal property tax levy the City would have received but for the exemption as reasonably determined by the City and as increased annually by the amount permitted under the provisions of Article XIIIA, Section 2, of the California Constitution.

Notwithstanding the foregoing, nothing in this Section 10.3 shall apply to any transfer to a nonprofit developer for the purpose of constructing the stand-alone senior affordable component of the project.

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ARTICLE 11 DEFAULT; REMEDIES; TERMINATION
Section 11.1 Breach and Default. Subject to extensions of time under Section 2.2B or by mutual consent in writing, and subject to a Mortgagee’s right to cure under Section 7.3, failure by a Party to perform any material action or covenant required by this Agreement (not including any failure by Developer to perform any term or provision of any other Project Approval) within thirty (30) days following receipt of written Notice from the other Party specifying the failure shall constitute a “Default” under this Agreement; provided, however, that if the failure to perform cannot be reasonably cured within such thirty (30) day period, a Party shall be allowed additional time as is reasonably necessary to cure the failure so long as such Party commences to cure the failure within the thirty (30) day period and thereafter diligently prosecutes the cure to completion. Any Notice of Default given hereunder shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the Default, all facts constituting evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the Party charged therewith shall not be considered to be in Default for purposes of (a) termination of this Agreement, (b) institution of legal proceedings with respect thereto, or (c) issuance of any approval with respect to the Project. The waiver by either Party of any Default under this Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Agreement.

Section 11.2 Termination. In the event of a Default by a Party, the non-defaulting Party shall have the right to institute legal proceedings pursuant to Section 11.3 and/or terminate this Agreement effective immediately upon giving notice of intent to terminate. Termination of this Agreement shall be subject to the provisions of Section 11.7 hereof. In the event that this Agreement is terminated pursuant to Section 6.1 herein or this Section 11.2 and the validity of such termination is challenged in a legal proceeding that results in a final decision that such termination was improper, then this Agreement shall immediately be reinstated as though it had never been terminated.

Section 11.3 Legal Actions.

A. Institution of Legal Actions. In addition to any other rights or remedies, a Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any other remedies consistent with the terms of this Agreement.

B. Acceptance of Service of Process. In the event that any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City Clerk of City or in such other manner as may be provided by law. In the event that any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon Developer’s registered agent for service of process, or in such other manner as may be provided by law.

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shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party, except as otherwise expressly provided herein.

Section 11.5 No Damages. In no event shall a Party, or its boards, commissions, officers, agents or employees, be liable in damages for any Default under this Agreement, it being expressly understood and agreed that the sole legal remedy available to a Party for a breach or violation of this Agreement by the other Party shall be an action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party, or to terminate this Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of money from the other Party under the terms of this Agreement, including, but not limited to, obligations to pay attorneys’ fees and obligations to advance monies or reimburse monies. In connection with the foregoing provisions, each Party acknowledges, warrants and represents that it has been fully informed with respect to, and represented by counsel of such Party’s choice in connection with, the rights and remedies of such Party hereunder and the waivers herein contained, and after such advice and consultation has presently and actually intended, with full knowledge of such Party’s rights and remedies otherwise available at law or in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to rely to the extent herein specified solely on the remedies provided for herein with respect to any breach of this Agreement by the other Party.

Section 11.6 Resolution of Disputes. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable Law, a Party shall, at the request of the other Party, meet with designated representatives of the requesting Party promptly following its request. The Parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 11.6 shall in any way be interpreted as requiring that Developer and City reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to in writing by the Parties to such meetings. Nothing in this Section 11.6 shall prohibit either Party from pursuing any available remedies, including injunction relief, during the period of such discussions.

Section 11.7 Surviving Provisions. In the event this Agreement expires or is terminated, neither Party shall have any further rights or obligations hereunder, except for those obligations of Developer set forth in Section 3.5 (Life of Project Approvals), Section 4.6 (Prevailing Wage Requirements), Section 5.3 (Public Benefits) (provided, however, Public Benefits under Section 5.3 shall survive for seventeen (17) years following the Effective Date or such earlier or later date as such obligations terminate pursuant to Section 5.3), Section 5.7 (BMR Housing True Up Payment), Section 9.6 (Cooperation in the Event of Legal Challenge; provided, however, Developer shall have no obligation to defend any litigation if this Agreement has been terminated), or expressly set forth herein as surviving the expiration or termination of this Agreement. The termination or expiration of this Agreement shall not affect the validity of the Project Approvals (other than this Agreement).

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have any obligations whatsoever under this Agreement, except for those obligations which by their terms survive termination hereof.

Section 11.9 California Claims Act. Compliance with the procedures set forth this ARTICLE 11 shall be deemed full compliance with the requirements of the California Claims Act (Government Code Section 900 et seq.) including, but not limited to, the notice of an event of default hereunder constituting full compliance with the requirements of Government Code Section 910.

ARTICLE 12 MISCELLANEOUS PROVISIONS
Section 12.1 Incorporation of Recitals, Exhibits and Introductory Paragraph. The Recitals contained in this Agreement, the introductory paragraph preceding the Recitals and the Exhibits attached hereto are hereby incorporated into this Agreement as if fully set forth herein.

Section 12.2 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual written agreement of the Parties.

Section 12.3 Construction. Each reference herein to this Agreement or any of the Existing Approvals or Subsequent Project Approvals shall be deemed to refer to the Agreement, Existing Approval or Subsequent Project Approval as it may be amended from time to time in accordance with the terms of this Agreement, whether or not the particular reference refers to such possible amendment. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Unless the context clearly requires otherwise, (i) the plural and singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (iv) “or” is not exclusive; (v) “include,” “includes” and “including” are not limiting and shall be construed as if followed by the words “without limitation,” and ;” (vi) “days” means calendar days unless specifically provided otherwise; and (vii) references to Sections shall be deemed to refer to Sections in this Agreement unless specifically provided otherwise.

Section 12.4 Covenants Running with the Land. Except as otherwise more specifically provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards, terms, covenants and obligations, shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities acquiring the Property, or any interest therein or portion thereof, and shall inure to the benefit of the Parties and their respective successors and assigns, as provided in Government Code section 65868.5.

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Section 12.5 Notices. Any notice or communication required hereunder between City and Developer (“Notice”) must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a Notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by registered or certified mail, such Notice shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom Notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such Notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a Notice shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written Notice to the other Party hereto, designate any other address in substitution of the address to which such Notice shall be given. Such Notices shall be given to the Parties at their respective addresses set forth below.

To City:

City of Menlo Park
Community Development
701 Laurel Street
Menlo Park, CA 94025
Attn: Community Development Director
and
City of Menlo Park
Community Development
701 Laurel Street
Menlo Park, CA 94025
Attn: City Manager
With a copy to: Burke, Williams & Sorensen, LLP
181 Third Street
Suite 200
San Rafael, CA 94901-6587
Attn: Nira Doherty
To Developer: c/o Meta Platforms, Inc.
1 Hacker Way
Menlo Park, CA 94025
Attention: Facilities, Real Estate Development
With a copy to:
c/o Meta Platforms, Inc.
1 Hacker Way
Menlo Park, CA 94025
Attention: Real Estate Counsel
Section 12.6 Counterparts and Exhibits; Entire Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original. This Page F-1.300
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Agreement, together with the Project Approvals and attached Exhibits, constitutes the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof.

Section 12.7 Recordation of Agreement. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after the Effective Date, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of San Mateo.

Thereafter, if this Agreement is terminated, modified or amended, the City Clerk shall record notice of such action in the Official Records of the County of San Mateo.

Section 12.8 No Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any public improvements constructed by Developer as part of the Project until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Existing Approvals or Subsequent Project Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, Existing Approvals, Subsequent Project Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer.

Section 12.9 Waivers. Notwithstanding any other provision in this Agreement, any failures or delays by any Party in asserting any of its rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies or deprive any such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. A Party may specifically and expressly waive in writing any condition or breach of this Agreement by the other Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. Consent by one Party to any act by the other Party shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or similar acts in the future.

Section 12.10 California Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. The exclusive venue for any disputes or legal actions shall be the Superior Court of California in and for the County of San Mateo, except for actions that include claims in which the Federal District Court for the Northern District of the State of California has original jurisdiction, in which case the Northern District of the State of California shall be the proper venue.

Section 12.11 City Approvals and Actions. Whenever reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise. Wherever this Agreement permits the City Manager to exercise his/her discretion Page F-1.301
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with respect to any of the terms and provisions herein, including but not limited to approval of an Extension Request, modifications to the timing set forth in Exhibit D and Exhibit F, Administrative Amendments, operating memoranda, and approval of a Transfer, as otherwise permitted in this Agreement, the City Manager shall advise the City Council of such exercise of discretion and where practical shall consult with the Mayor and/or the City Council prior to exercising such discretion. Notwithstanding such requirement to inform and consult with the City Council, Developer may rely on any writing evidencing the exercise of discretion by the City Manager.

Section 12.12 City Funding for Affordable Housing. Notwithstanding anything to the contrary in this Agreement, City shall have no obligation to contribute any monies from its Below Market Rate Housing Fund to finance affordable housing for the Project. Notwithstanding the foregoing, in the event that Developer provides any funding to the City for the senior affordable parcel to qualify for the County of San Mateo Affordable Housing Fund, or similar program that requires local matching funds, then such funds shall not be deposited into the City’s Below Market Rate Housing Fund and shall be used in accordance with the local matching fund requirement to advance affordable housing development associated with the Project.

Section 12.13 Estoppel Certificates. A Party may, at any time during the Term of this Agreement, and from time to time, deliver written Notice to the other Party requesting such Party to certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Agreement has not been amended or modified either orally or in writing, or if amended, identifying the amendments; (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults; and (iv) any other information reasonably requested. The requesting Party shall be responsible for all reasonable costs incurred by the Party from whom such certification is requested and shall reimburse such costs within thirty (30) days of receiving the certifying Party’s request for reimbursement. The Party receiving a request hereunder shall execute and return such certificate or give a written, detailed response explaining why it will not do so, within twenty (20) days following the receipt of Notice requesting such certificate. The failure of either Party to provide the requested certificate within such twenty (20) day period shall constitute a confirmation that this Agreement is in full force and effect and no modification or default exists. The City Manager shall have the right to execute any certificate requested by Developer hereunder. City acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees.

Section 12.14 No Third -Party Beneficiaries. City and Developer hereby renounce the existence of any third -party beneficiary to this Agreement and agree that nothing contained herein shall be construed as giving any other person or entity third -party beneficiary status.

Section 12.15 Signatures. Each Party represents that the individuals executing this Agreement on behalf of such Party have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Developer and City and that all necessary board of directors’, shareholders’, partners’, city councils’ or other approvals have been obtained.

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Section 12.16 Further Actions and Instruments. Each Party to this Agreement shall cooperate with and provide reasonable assistance to the other Party and take all actions necessary to ensure that the Parties receive the benefits of this Agreement, subject to satisfaction of the conditions of this Agreement. Upon the request of any Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement.

Section 12.17 Limitation on Liability. In no event shall: (a) any partner, officer, director, member, shareholder, employee, affiliate, manager, representative, or agent of Developer or any general partner of Developer or its general partners be personally liable for any breach of this Agreement by Developer, or for any amount which may become due to City under the terms of this Agreement; or (b) any member, officer, agent or employee of City be personally liable for any breach of this Agreement by City or for any amount which may become due to Developer under the terms of this Agreement.

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IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written.

CITY:

CITY OF MENLO PARK, a California
municipal corporation
By:

Justin Murphy, City Manager
APPROVED AS TO FORM: [signature must be notarized]
By:

Nira Doherty, City Attorney
ATTEST:

By:
___, City Clerk
DEVELOPER:

PENINSULA INNOVATION PARTNERS,
LLC, a Delaware limited liability company
By:

Name:

Title:
[signature must be notarized]
By:

Name:

Title:
[signature must be notarized]
Page F-1.304
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OAK #4891-8238-9520 v35 v48 Acknowledgement

ACKNOWLEDGMENTS
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
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.
(Notary Signature)
* * * * * * * * * * * * * *
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.

Page F-1.305
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OAK #4891-8238-9520 v35 v48 Acknowledgement
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
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.
(Notary Signature)
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.

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OAK #4891-8238-9520 v35 v48 Acknowledgement

ACKNOWLEDGMENT
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
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.

Page F-1.307
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OAK #4891-8238-9520 v35 v48 Exhibit A-1-1
EXHIBIT A-1-1

MAIN PROJECT SITE MAP
(ATTACHED)
Page F-1.308
                        Page F-1.309
080937\16252990v15
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OAK #4891-8238-9520 v35 v48 Exhibit A-1-2
EXHIBIT A-1-2

HAMILTON PARCELS MAP
(ATTACHED)
Page F-1.310

WILLOW ROAD

CARLTON AVENUE

HAMILTON AVENUE (EX)
PARCEL 2
71PM16
PARCEL 3
71PM16
71PM16
PARCEL1

OF SHEETS
JOB NO.

SHEET
PROJ. ENGR:

CHECKED: DCF DRAWN: RJL DESIGNED:

SCALE: AS SHOWN
DATE: 10/19/2022

SURVEYORS
www.freyerlaureta.com (415)534-7070
150 Executive Blvd Suite 4200 San Francisco, CA 94134

CIVIL ENGINEERS CONSTRUCTION MANAGERS

DATE DESCRIPTION
PARCEL 2
EXHIBIT B 1
1 Page F-1.311
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OAK #4891-8238-9520 v35 v48 Exhibit A-2-1
EXHIBIT A-2-1

MAIN PROJECT SITE LEGAL DESCRIPTION
(ATTACHED)
Page F-1.312
FREYER & LAURETA, INC. Page 1 of 2

LEGAL DESCRIPTION

WILLOW VILLAGE SITE

MENLO PARK, CALIFORNIA
The land referred to is situated in the City of Menlo Park, County of San Mateo, State of California and is described as follows:

BEGINNING at the southwesterly corner of Parcel S; as shown on that certain map entitled “Menlo Industrial Center, City of Menlo Park, San Mateo County, California” filed in the office of the County Recorder of San Mateo County, State of California, on October 1, 1979, in Volume 99 of Maps at Pages 81-83, thence,
North 22°05'00" East, 120.17 feet; thence,
North 24°45'44" East, 143.14 feet; thence,
Along a tangent curve to the left, having a radius of 1,536.52 feet, length of 74.34 feet, and a delta angle of 02°46'19"; thence,
North 22°05'00" East, 864.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,032.50 feet, length of 55.72 feet, and a delta angle of 03°05'31"; thence,
North 25°35'47" East, 2.12 feet; thence,
North 19°19'09" East, 144.98 feet; thence,
North 22°05'00" East, 71.06 feet; thence,
North 84°59'41" East, 1,324.41 feet; thence,
Along a tangent curve to the left, having a radius of 11,509.17 feet, length of 251.79 feet, and a delta angle of 01°15'13"; thence,
Page F-1.313
FREYER & LAURETA, INC. Page 2 of 2
South 10°08'21" West, 1,612.25 feet; thence,
South 88°08'54" West, 1,182.95 feet; thence,
North 79°51'49" West, 668.96 feet to the POINT OF BEGINNING.

Containing 2,577,434.20 square feet (59.17 acres), more or less.

September 30, 2022
Page F-1.314
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OAK #4891-8238-9520 v35 v48 Exhibit A-2-2
EXHIBIT A-2-2

HAMILTON PARCELS LEGAL DESCRIPTION
(ATTACHED)
Page F-1.315
FREYER & LAURETA, INC. Page 1 of 1

LEGAL DESCRIPTION
PARCEL 2

PARCEL MAP FOR BELLE HAVEN RETAIL CENTER

MENLO PARK, CALIFORNIA
Parcel 2 as shown on that Map titled “Parcel Map for Belle Haven Retail Center”, which map was filed in the Office of the Recorder of San Mateo County, on December 31st in Book 71 of Maps, pages 15-16.

Containing 51,011 square feet, more or less.

October 19, 2022
Page F-1.316
FREYER & LAURETA, INC. Page 1 of 1

LEGAL DESCRIPTION
PARCEL 3

PARCEL MAP FOR BELLE HAVEN RETAIL CENTER

MENLO PARK, CALIFORNIA
Parcel 3 as shown on that Map titled “Parcel Map for Belle Haven Retail Center”, which map was filed in the Office of the Recorder of San Mateo County, on December 31st in Book 71 of Maps, pages 15-16.

Containing 28,191 square feet, more or less.

October 19, 2022
Page F-1.317
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OAK #4891-8238-9520 v35 v48 Exhibit B

EXHIBIT B

LLBG PROPERTIES, LLC CONSENT
LLBG Properties, LLC, a Delaware limited liability company, (“LLBG Properties”) has reviewed the terms and conditions of that certain Development Agreement dated as of on or about _______________, 2022, by and between Peninsula Innovation Partners, LLC, a Delaware limited liability company, and the City of Menlo Park, a California municipal corporation, (the “Development Agreement”) and hereby consents to the terms and conditions of the Development Agreement and the recordation of the Agreement against the property owned by LLBG Properties described in Exhibit A-2-2 to the Development Agreement.

LLBG PROPERTIES, LLC,
a Delaware limited liability company
By:

Name:

Title:

By:

Name:

Title:

Page F-1.318
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OAK #4891-8238-9520 v35 v48 Exhibit C

EXHIBIT C

IMPACT FEES

1. Transportation Impact Fee (Municipal Code Chapter 13.26)

2. Building Construction Street Impact Fee

3. Below Market Rate Housing Program (Municipal Code Chapter 16.96) [Note – being satisfied through provision of on-site affordable housing in accordance with Project affordable housing agreements and this Agreement rather than through payment of fee]

4. Residential Subdivision Recreation in Lieu Fees (Municipal Code Section 15.16.020) [Note – fee not applicable to current Project due to lack of for-sale residential units] Page F-1.319
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OAK #4891-8238-9520 v35 v48 Exhibit D, p. 1

EXHIBIT D

WILLOW VILLAGE PHASING PLAN
Project Component Timing/Milestones1 Required Minimum
Number of Residential
and BMR Units
associated with such
Phase of Construction2

1. Demolition, Grading, and
Infrastructure Installation

1. Commence construction
following approval of all
applicable Improvement Plans for
the area of construction.

2. Elevated Park and Meeting
and Collaboration Space
(“MCS”)

2. Commence construction
concurrently with or after
completion of demolition,
grading and infrastructure for the
area of construction.
1 The milestones set forth in this exhibit are based upon Developer’s plan to construct six (6) office buildings as reflected in the Willow Village CDP. In the event that office building square footages shift considerably in the reasonable judgment of the City Manager (e.g., increase by more than twenty-five percent (25%) as to any office building or buildings that trigger(s) a milestone) or combine, the obligations set forth in this exhibit shall shift in a correlative manner through a meet and confer process between the Parties, with resulting changes to this exhibit being documented in writing by the Parties through an Operating Memorandum pursuant to Section 8.7 of this Agreement. Nothing in this Footnote authorizes an increase in the total office building square footage for the Project above the amount approved in the Project Approvals. 2 Final distribution of residential units, including BMR units, to be determined at building permit for each building containing residential units. Reduction from required minimum number of units by up to five percent (5%) is permitted. Reduction from required number of units by more than five percent (5%) but less than up to ten percent (10%) requires approval through an Operating Memorandum pursuant to Section 8.7 of this Agreement. Reduction from the required number of units by more than 10 percent (10%) requires approval through amendment of this Agreement pursuant to Section 8.1 of this Agreement.

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OAK #4891-8238-9520 v35 v48 Exhibit D, p. 2
Project Component Timing/Milestones1 Required Minimum
Number of Residential
and BMR Units
associated with such
Phase of Construction2

3. First, Second and Third
Office buildings3

3. Commence construction
concurrently with or after
commencement of Elevated Park
and MCS.

Complete Structural Podium of
the mixed-use building on Parcel
2 (“RS2”) and the residential
building on Parcel 6 (“RS6”)
prior to final Certificate of
Occupancy (“COO”) for first
office building, but if a temporary
COO has been issued, no later
than 120 days from the issuance
of a temporary COO for the first
office building.

Complete roof framing of RS2
and RS6 prior to final COO for
the second office building, but if
a temporary COO has been
issued, no later than 120 days
from the issuance of a temporary
COO for the second office
building.

4. Residential buildings RS2
and RS6

4. Commence construction of
RS2 on or before commencement
of construction of first office
building.

Commence construction of RS6
within 4 months 90 days after
commencement of construction
of first office building.

RS2 and RS6 have a
combined total of 505
units, including 54 BMR
units.
3 Office buildings as used in this Exhibit D excludes the MCS.

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OAK #4891-8238-9520 v35 v48 Exhibit D, p. 3
Project Component Timing/Milestones1 Required Minimum
Number of Residential
and BMR Units
associated with such
Phase of Construction2

5. Fourth Office building 5. Commence construction of
RS2 and RS6 prior to issuance of
building permits for the fourth
office building.

Issue final COO for RS6 prior to
final COO for the fourth office
building, but, if a temporary COO
has been issued, no later than 120
days from the issuance of a
temporary COO for the fourth
office building.

6. Sixth Office building 6. Complete construction of
podium of the mixed-use building
on Parcel 3 (“RS3”) and the
residential building on Parcel 7
(“RS7”) prior to issuance of
building permits for the sixth
office building.

Commence construction of the
residential building on Parcel 4
(“RS4”) and the residential
building on Parcel 5 (“RS5”)
prior to final COO for the sixth
office building, but, if a
temporary COO has been issued,
no later than 120 days after the
issuance of a temporary COO for
the sixth office building .

RS3 and RS7 (senior
building) have a
combined total of 539
units, including 162
BMR units.

RS4 and RS5 have a
combined total of 686
units, including 96 BMR
units.

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OAK #4891-8238-9520 v35 v48 Exhibit E-1
EXHIBIT E-1

CONCEPTUAL SITE PLAN
(ATTACHED)
Page F-1.323
North Loop Road
Willow Road
Ivy Drive
Adams Court
Hamilton Avenue
Main Street
O’Brien Drive
Center Street
East Street
SamTrans Corridor
Park Street (Public)
West Street (Public)
Main Street (Public)
Main Street (Public)
East Loop Road (Public)
East Loop Road
PARCEL 3
PARCEL 2
PARCEL 4
PARCEL 6

PUBLICLY

ACCESSIBLE PARK
DOG PARK PARCEL 7
PARCEL 5
MCS
HOTEL
TOWN
SQUARE

PAVILION

ELEVATED
PARK
CAMPUS
OFFICE
O1
O2
O3
O4
O5
SG
NG
O6

WILLOW VILLAGE
Menlo Park, CA
Peninsula Innovation Partners

MASTER PLAN
0 100 200 300 500 700'
1" = 100' at 24" x 36"
2 min. Walk 1/2 ac
1/8 ac
October 12, 2022
Conceptual Master Plan
Page F-1.324
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EXHIBIT E-2

CONCEPTUAL PUBLICLY ACCESSIBLE OPEN SPACE SITE PLAN
(ATTACHED)
Page F-1.325
North Loop Road
East Loop Road
Willow Road
Ivy Drive
Adams Court
Hamilton Avenue
Park Street
West Street
Main Street
O’Brien Drive
Main Street
Center Street
East Street
SamTrans Corridor
PASEO

PUBLICLY

ACCESSIBLE PARK

DOG PARK
TOWN
SQUARE

ELEVATED
PARK
PARCEL 3

WILLOW VILLAGE
Menlo Park, CA
Peninsula Innovation Partners

MASTER PLAN
0 100 200 300 500 700'
1" = 100' at 24" x 36"
2 min. Walk 1/2 ac
1/8 ac
October 12, 2022
Publicly Accessible Open Space
Page F-1.326
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EXHIBIT E-3

CONCEPTUAL WILLOW ROAD TUNNEL
(ATTACHED)
Page F-1.327

CLAY WITH TRACE SAND WILLOW ROAD WATER, GAS, COMM, FIBER OPTIC SANITARY SEWER, ELECTRICAL, UTLITIES: 0-30 -20 -10 +10 STORM DRAIN 94" OD RCP +4.09' +10.7' Section for Tunnel and Storm Drain Siphon GROUNDWATER TABLE 10 FT 26 FT 5 FT FILL on Engeo boring 2-B2 (2021). Subsurface conditions based NOTE: 46 FT TRAM BIKE 1 FT PEDS 12 FT
18 FT SHORING SHORING 0-30 -20 -10 +10

ELEVATION

ELEVATION
SD
SD SD SD SD SD SD SD SD SD SD JPB RAIL CORRIDOR MPK20 Willow Road CAMPUS TO CLASSIC EXISTING TUNNEL Bayfront Expressway

WILLOW VILLAGE
FACEBOOK WAY PG&E TOWER PG&E TOWER SOUTH PORTAL NORTH RAMP TRAMS BIKE/PEDSOUTH RAMP PORTAL NORTH North Loop Road BOAT STRUCTURE WILLOW ROAD TUNNEL SIPHON META WILLOW ROAD CROSSING wsp.com San Francisco, CA 94105 425 Market Street, 17th Floor WSP USA, INC TUNNEL SCHEMATIC DESIGN CUT AND COVER TSD-1 GENERAL LAYOUT WILLOW ROAD TUNNEL AND NORTH & SOUTH RAMP Elevations are referenced to NGVD 88. NOTE:

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EXHIBIT E-4

CONCEPTUAL ALTERNATIVE DESIGN FOR ELEVATED

PARK VERTICAL TRANSPORTATION SYSTEM
(ATTACHED)
Page F-1.329
0 40 80
DRAWING NO:

MEASUREMENTS THAT ARE NOT INDICATED.

SEEK CLARIFICATION FROM ARCHITECT FOR
DRAWINGS. USE FIGURED DIMENSIONS ONLY, OR
NOTE: THIS DRAWING IS ISO A1. DO NOT SCALE
SCALE: DRAWING TITLE:

MILESTONES

DATE ISSUE
05/14/2021 ACP

REVISIONS
NO. DATE ISSUEMenlo Park, CA WILLOW VILLAGE Architectural Control Package - Parcel X PENINSULA INNOVATION PARTNERS ##### GX.XX #####
0 20 40 10
0 1/16" = 1'-0"
40 80 20
1" = 32'
0 40 80
1" = 40'
0 4
3/16" = 1'-0"
8 16
0 8
3/32" = 1'-0"
16 32
0 16
1/8" = 1'-0"
84 0 8
1/4" = 1'-0"
42 0 4
1/2" = 1'-0"
21 0 10 20
0 1" = 10'
20 40
0 1" = 20'
50 100
0 1" = 50'
80 160
1" = 80'
Submittal
ACP
1 A2.05
10/26/2022ROOF PLAN
1”=50’-0”

WILLOW ROAD

TOWN SQUARE
Elevated Park
Access
Elevated Park
Access
Elevated Park
Access
HOTEL
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EXHIBIT F

WILLOW VILLAGE COMMUNITY AMENITIES

TIMING PROVISIONS
Building Related Amenities Timing/Milestones/Valuations

1. Elevated Park/MCS 1. First Vertical Improvements to be constructed .

2. Grocery Store and Rent Subsidies 2. Grocery store located in RS2 (first residential building);34 final COO for Grocery
Store tenant improvements to be issued within
12 months after final COO for RS2, but, if a
temporary COO has been issued, no later than
16 months from the issuance of a temporary
COO for RS2 .

Offsite Amenity

1. Affordable Housing Contribution 1. Total contribution of $5 6 Million to City, with an initial payment of $2 3 Million upon
issuance of first building permit for vertical
construction and three subsequent payments
of $1 a second payment of $3 Million on the
first anniversary of such issuance .

2. Air Quality and Noise Monitoring
Equipment Funding

2. Prior to issuance of the first demolition
permit .

3. Willow Road Feasibility Study funding or
for other use as determined by City

3. $100,000 prior to issuance of first building
permit for vertical construction.

4. Funding for Job Training Programs 4. Ongoing funding of $8,304,907 total for:
a) Year-up and Hub from February 2022-
December 2024.
b) Job Train from January 2022- December
2023.

5. Teacher Housing Rent Subsidies 5. Ongoing funding of $1,745,319 total for February 2022- March 2024 .
34 RS2 is the residential building located on Parcel 2.

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Building Related Amenities Timing/Milestones/Valuations Vertical Buildout Amenities

1. Bayfront Shuttle 1. Bayfront Shuttle to be operational at the earlier of the opening of the Grocery Store or
the completion of the Elevated Park .

2. Bank/Credit Union 2. Complete Construction and secure final COO within 12 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 22 months after the
issuance of a temporary COO for RS3 .

3. First Phase Dining (9,000 SF of
restaurants/cafes)

3. Complete Construction and secure final
COO within 9 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 13 months after the
issuance of a temporary COO for RS3 .

4. Second Phase Dining (2nd 9,000 SF of
restaurants/cafes)

4. Complete Construction and secure final
COO within 18 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 22 months after the
issuance of a temporary COO for RS3.

5. First Phase Community Entertainment
(12,500 SF of Community Entertainment)

5. Complete Construction and secure final
COO within 18 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 22 months after the
issuance of a temporary COO for RS3 .

6. Second Phase Community Entertainment
(2nd 12,500 SF of Community Entertainment)

6. Complete Construction and secure final
COO within 24 months after final COO for
RS3, but, if a temporary COO has been
issued, no later than 28 months after the
issuance of a temporary COO for RS3 .

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Building Related Amenities Timing/Milestones/Valuations

7. Pharmacy Services 7. Timing is dependent on location; Complete Construction and secure final COO:
a) if within Willow Hamilton retail center,
then 12 months after completion of the
Elevated Park elevator tower at the Hamilton
center;
b) if within Willow Village in RS3, then
within 12 months after final COO for RS3,
but, if a temporary COO has been issued, no
later than 22 months after the issuance of a
temporary COO for RS3;
c) if within Willow Village in Office
Building O2 Retail (east side of Main), then
within 12 months after later of (i) final COO
for RS3 to correspond with retail on the west
side of Main (but, if a temporary COO has
been issued, no later than 22 months after the
issuance of a temporary COO for RS3) or (ii)
final COO for O2 (but, if a temporary COO
has been issued, no later than 22 months after
the issuance of a temporary COO for O2); or
d) if within Willow Village Parcel 2 in
conjunction with the grocery store, then
within 12 months after final COO for RS2,
but, if a temporary COO has been issued, no
later than 16 months from the issuance of a
temporary COO for RS2
Publicly Accessible Open Space Amenities

1. Town Square Open Space 2. Complete Construction of Town Square improvements east of West Street, up to O4,
within 12 months after completion of Town
Square garage structural podium regardless of
hotel status; commence construction of
remainder within 6 months after final COO
for hotel and complete within 18 months after
final COO for hotel; maintain improvements
following completion.

2. Elevated Park 5. Commence construction after issuance of first building permit for Elevated Park, and
diligently prosecute to Completion of
Construction

3. Excess Publicly Accessible Open Space 6. Construct concurrent with Completion of Construction of Elevated Park
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EXHIBIT G

FORM OF PARTIAL ASSIGNMENT AND

ASSUMPTION AGREEMENT
(ATTACHED)
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Recording Requested by and
When Recorded Return to:
___________________________
___________________________
___________________________
___________________________
SPACE ABOVE THIS LINE FOR RECORDER’S USE

ASSIGNMENT AND ASSUMPTION AGREEMENT -

DEVELOPMENT AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”) is made and entered into as of _____________, 20__, by and between ______________________, a _____________ company (“Assignor”), and ______________________, a _____________ company (“Assignee”).

RECITALS
A. Assignor owns that real property located in the City of Menlo Park (“City”), County of San Mateo, State of California, and more particularly described in Exhibit A attached hereto (the “Property”).

B. On the date hereof, Assignee is acquiring approximately __ acres of the Property as more particularly described in Exhibit B attached hereto (the “Assigned Property”).

C. The City and Peninsula Innovation Partners, LLC, a Delaware limited liability company, entered into that certain Development Agreement dated as of ___________, 202_ and recorded against the Property on _______________, 202_ as Instrument No. _______________ in the San Mateo County Recorder’s Office (the “Development Agreement”).

D. Assignor desires to assign to Assignee all of Assignor’s rights, duties and obligations under the Development Agreement with respect to the Assigned Property only (excluding, however, Assignor’s obligations with respect to the construction of and/or payment for certain infrastructure and other project-wide items specified in Exhibit C, attached hereto (the “Assignor Retained Obligations”), for which Assignor remains responsible) (the “Assigned Rights and Obligations”), and Assignee desires to accept and assume Assignor’s rights and obligations under the Development Agreement with respect to the Assigned Property only (the “Assumed Rights and Obligations”), such assignment and assumption to be effective on the Effective Date (as defined in Section 1.3 below). The Assigned Rights and Obligations and the Assumed Rights and Obligations are referred to collectively herein as the “Assigned Property Rights and Obligations”.

NOW THEREFORE, in consideration of these promises, and of the agreements, covenants and conditions contained in this Agreement and other good and valuable consideration, the parties agree as follows:

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ARTICLE 1.

ASSIGNMENT AND ASSUMPTION OF

THE ASSIGNED PROPERTY RIGHTS AND OBLIGATIONS

1.1. Assignment. Assignor assigns to Assignee, as of the Effective Date (as defined in Section 1.3 below), all of Assignor’s rights, title and interest in and to the Assigned Property Rights and Obligations.

1.2. Assumption. As of the Effective Date, Assignee accepts Assignor’s assignment of the Assigned Rights and Obligations and assumes the Assumed Rights and Obligations. From and after the Effective Date, Assignee shall keep and perform all covenants, conditions and provisions of the Development Agreement relating to the Assigned Property. Effective Date.

For purposes of this Agreement, the “Effective Date” shall be the later to occur of (1) the date on which the deed from Assignor to Assignee for the Assigned Property is recorded in the Office of the Recorder of the County of San Mateo; or (2) the date of the execution of this Agreement by all parties; provided, however, that this Agreement shall have no force and effect without the written approval of the City, as evidenced by the full execution by the City’s representatives of the form entitled City of Menlo Park’s Consent, attached hereto as Exhibit D.Phasing. Nothing in this Agreement shall be deemed to relieve any party of the timing obligations established in Exhibits D and F to the Development Agreement.

RIGHTS AND REMEDIES

2.1. Assignor’s Release; No Assignor Liability or Default for Assignee Breach.

Pursuant to Section 10.2 of the Development Agreement, Assignor shall be released from the Development Agreement with respect to the Assigned Property and the Assumed Rights and Obligations as of the Effective Date. Any default or breach by Assignee under the Development Agreement following the Effective Date with respect to the Assigned Property or the Assumed Rights and Obligations (“Assignee Breach”) shall not constitute a breach or default by Assignor under the Development Agreement and shall not result in (a) any remedies imposed against Assignor, or (b) modification or termination of the Development Agreement with respect to that portion of the Property retained by Assignor after the conveyance of the Assigned Property, if any (the “Assignor Property”). No Assignee Liability or Default for Assignor Breach. As of the Effective Date, any default or breach by Assignor under the Development Agreement prior to or after the Effective Date (“Assignor Breach”), shall not constitute a breach or default by Assignee under the Development Agreement, and shall not result in (a) any remedies imposed against Assignee, including without limitation any remedies authorized in the Development Agreement, or (b) modification or termination of the Development Agreement with respect to the Assigned Property.

PERIODIC REVIEW OF COMPLIANCE

3.1. Assignor Responsibilities. Assignor shall participate in the annual review of the Development Agreement conducted pursuant to Section 65865.1 of the California Government Code with respect to the Assignor Property, and Assignee shall have no responsibility therefor.Assignee Responsibilities. Assignee shall participate in the annual review of the Page F-1.336
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Development Agreement conducted pursuant to Section 65865.1 of the California Government Code with respect to the Assigned Property, and Assignor shall have no responsibility therefor.

AMENDMENT OF THE DEVELOPMENT AGREEMENT

4.1. Assignor. Assignor shall not request, process or consent to any amendment to the Development Agreement that would affect the Assigned Property or the Assigned Property Rights and Obligations without Assignee’s prior written consent, which consent shall not be withheld unreasonably. The foregoing notwithstanding, Assignor may process any amendment that does not affect the Assigned Property, and, if necessary, Assignee shall consent thereto and execute all documents necessary to accomplish said amendment, provided that said amendment does not adversely affect the Assigned Property or any of Assignee’s Assigned Property Rights and Obligations pursuant to the Development Agreement.Assignee. Assignee shall not request, process or consent to any amendment to the Development Agreement that would affect the Assignor Property or the Assignor’s remaining rights and obligations pursuant to the Development Agreement without Assignor’s prior written consent, which consent shall not be withheld unreasonably. The foregoing notwithstanding, Assignee may process any amendment that does not affect the Assignor Property or any of Assignor’s remaining rights and obligations pursuant to the Development Agreement, and, if necessary, Assignor shall consent thereto and execute all documents necessary to accomplish said amendment.

GENERAL PROVISIONS

5.1. Notices. All notices, invoices and other communications required or permitted under this Agreement shall be made in writing, and shall be delivered either personally (including by private courier) or by nationally recognized overnight courier service to the following addresses, or to such other addresses as the parties may designate in writing from time to time:If to Assignee:
with copies to:

If to Assignor:
with a copies to:

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Notices personally delivered shall be deemed received upon delivery. Notices delivered by courier service as provided above shall be deemed received twenty-four (24) hours after the date of deposit. From and after the Effective Date and until further written notice from Assignee to the City pursuant to the terms of the Development Agreement, Assignee hereby designates as its notice address for notices sent by the City pursuant to Section 12.5 of the Development Agreement, the notice address set forth above.

5.2. Estoppel Certificates. Within ten (10) days after receipt of a written request from time to time, either party shall execute and deliver to the other, or to an auditor or prospective lender or purchaser, a written statement certifying to that party’s actual knowledge: (a) that the Development Agreement is unmodified and in full force and effect (or, if there have been modifications, that the Development Agreement is in full force and effect, and stating the date and nature of such modifications); (b) that there are no current defaults under the Development Agreement by the City and either Assignor or Assignee, as the case may be (or, if defaults are asserted, so describing with reasonable specificity) and that there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default; (c) that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect, and stating the date and nature of such modifications); and (d) such other matters as may be reasonably requested.Attorneys’ Fees. In the event of any legal or equitable proceeding in connection with this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable costs and expenses, including without limitation reasonable attorneys’ fees, costs and disbursements paid or incurred in good faith at the arbitration, pre-trial, trial and appellate levels, and in enforcing any award or judgment granted pursuant thereto. No Waiver. No delay or omission by either party in exercising any right, remedy, election or option accruing upon the noncompliance or failure of performance by the other party under the provisions of this Agreement shall constitute an impairment or waiver of any such right, remedy, election or option. No alleged waiver shall be valid or effective unless it is set forth in a writing executed by the party against whom the waiver is claimed. A waiver by either party of any of the covenants, conditions or obligations to be performed by the other party shall not be construed as a waiver of any subsequent breach of the same or any other covenants, conditions or obligations.Amendment. This Agreement may be amended only by a written agreement signed by both Assignor and Assignee, and subject to obtaining the City’s consent. Successors and Assigns. This Agreement runs with the land and shall be binding on and inure to the benefit of the parties and their respective successors and assigns. No Joint Venture. Nothing contained herein shall be construed as creating a joint venture, agency, or any other relationship between the parties hereto other than that of assignor and assignee.Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and enforceable to the full extent permitted by law; provided that, if the invalidation or unenforceability would deprive either Assignor or Assignee of material benefits derived from this Agreement or make performance under this Agreement unreasonably difficult, then Assignor and Assignee shall meet and confer and shall make good faith efforts to modify this Agreement in a manner that is acceptable to Assignor, Assignee and the City. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Page F-1.338
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California.Third -Party Beneficiaries. Assignor and Assignee acknowledge that the City is a third -party beneficiary of the terms and conditions of this Agreement to the extent necessary for City to enforce the terms and conditions of the Development Agreement. This Agreement shall not be deemed or construed to confer any rights, title or interest, including without limitation any third -party beneficiary status or right to enforce any provision of this Agreement, upon any person or entity other than Assignor, Assignee and the City.Time of the Essence. Time is of the essence in the performance by each party of its obligations under this Agreement.Authority.

Each party represents that the individuals executing this Agreement on behalf of such Party have the authority to bind his or her respective party to the performance of its obligations hereunder and that all necessary board of directors’, shareholders’, partners’ and other approvals have been obtained. Term. The term of this Agreement shall commence on the Effective Date and shall expire upon the expiration or earlier termination of the Development Agreement, subject to any obligations under the Development Agreement that expressly survive the expiration or termination of the Development Agreement. Upon the expiration or earlier termination of this Agreement, the parties shall have no further rights or obligations hereunder, except with respect to any obligation to have been performed prior to such expiration or termination or with respect to any default in the performance of the provisions of this Agreement which occurred prior to such expiration or termination or with respect to any obligations which are specifically set forth as surviving this Agreement or the Development Agreement.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one document.Default. Any failure by either party to perform any material term or provision of this Agreement shall constitute a default (a) if such defaulting party does not cure such failure within thirty (30) days following written notice of default from the other party, where such failure is of a nature that can be cured within such thirty (30) day period, or (b) if such default is not of a nature that can be cured within such thirty (30) day period, if the defaulting party does not within such thirty (30) day period commerce substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence the curing of such failure.

Any notice of default given hereunder shall be given in the same manner as provided in Section

5.1 hereof and shall specify in detail the nature of the failures in performance that the noticing party claims and the manner in which such failure can be satisfactorily cured. [remainder of page left intentionally blank – signature pages follow] Page F-1.339
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement by proper persons thereunto duly authorized, to be effective as of the Effective Date. “Assignor”
__________________________,
a ____________________________company
By:

Name:

Title:

By:

Name:

Title:
“Assignee”
__________________________,
a ____________________________company
By:

Name:

Title:

By:

Name:

Title:

Page F-1.340
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STATE OF CALIFORNIA )
) ss:

COUNTY OF )
On ______________, 20__ before me, _____________________________________________ Notary Public (insert name and title of the officer),
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: _______________________________________
[Seal]
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.

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STATE OF CALIFORNIA )
) ss:

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.

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EXHIBIT A
Description of the Property
(Attached)
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EXHIBIT B
Description of the Assigned Property
(Attached)
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EXHIBIT C
List of Assignor Retained Obligations
(Attached)
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EXHIBIT D

CONSENT OF CITY OF MENLO PARK
The City of Menlo Park hereby consents to the assignment and assumption of the Assigned Property Rights and Obligations as set forth in this Agreement and agrees to the terms and conditions set forth herein.

CITY OF MENLO PARK,
a California Municipal corporation
By:

Page F-1.346
RESOLUTION NO. XXXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENLO PARK FOR

APPROVAL OF THE BELOW MARKET RATE HOUSING AGREEMENTS

BETWEEN THE CITY OF MENLO PARK AND PENINSULA INNOVATION

PARTNERS, LLC FOR THE WILLOW VILLAGE MASTER PLAN PROJECT The City Council of the City of Menlo Park does ordain as follows:

SECTION 1.

This resolution incorporates by reference those certain Below Market Rate (“BMR”) Housing Agreements (“BMR Agreements”) inclusive of Exhibits B1 and B2 thereto for the Willow Village Project by and between the City and Peninsula Innovation Partners, LLC (“Applicant”) attached hereto as Attachment A and incorporated herein by this reference. Specifically, Attachment A hereto contains the Project Wide Affordable Housing Agreement. Exhibit B1 contains the form non-age restricted Below Market Rate Housing Agreement and Declaration of Restrictive Covenants (“Non-Age Restricted BMR Agreement”) for all non-age restricted BMR units and Exhibit B2 contains the age restricted Below Market Rate Housing Agreement and Declaration of Restrictive Covenants (“Age Restricted BMR Agreement”). Exhibit C contains the Pro Forma Partial Release, Exhibit D documents the estimated BMR units by building, and Exhibit E contains the Pro Forma Assignment and Assumption Agreement. Collectively, the “BMR Agreements.”
SECTION 2.

The City, as lead agency, prepared an Environmental Impact Report (“EIR”) (SCH: 2019090428) pursuant to the California Environmental Quality Act (“CEQA”) that examined the environmental impacts of the redevelopment of the approximately 59-acre industrial site (the “main Project Site”) plus three parcels (within two sites) west of Willow Road (the “Hamilton Parcels” and collectively, with the main Project Site, the “Project Site”) with the construction of a mixed-use development consisting of up to 1.6 million square feet of office and accessory uses (a maximum of 1,250,000 square feet of offices and the balance for accessory uses), up to 1,730 multifamily dwelling units, up to 200,000 square feet of retail uses, an up to 193-room hotel, and associated open space and infrastructure (the “Project”). On __, 2022, by Resolution No. _____, the City Council certified the EIR, made certain findings, and adopted a Mitigation Monitoring and Reporting Plan, which Resolution together with the EIR are incorporated herein by reference.

The City Council finds that the BMR Agreements are within the scope of the EIR.

SECTION 3.

The Planning Commission reviewed the BMR Agreements at a duly and properly noticed public hearing held on October 24, 2022 and continued to November 3, 2022, and recommended that the City Council adopt this resolution. As part of its recommendation to the City Council, the Planning Commission determined that the BMR Agreements are consistent with the purpose of the City’s BMR Housing Program as stated in Municipal Code Section 16.96.010, which is to increase the housing supply for households that have extremely low, very low, low and moderate incomes compared to the median household income for San Mateo County. The Planning Commission also determined that the BMR Agreements are consistent with the primary objective of the BMR Housing Program as stated in Municipal Code Section 19.16.010, which is to create actual housing units. The Planning Commission further determined that Applicant’s request to deviate from requirements in BMR Guidelines Sections 5.1 and 8.1 for the Age Restricted BMR Agreement would result in BMR units of reasonably equivalent characteristics as what would be required under the BMR Guidelines and is necessary to provide affordable units for seniors.

ATTACHMENT H Page F-1.347
SECTION 4.

The City Council held a duly and properly noticed public hearing on the BMR Agreements on __, 2022. The City Council finds that the following are the relevant facts concerning the BMR Agreements:

1. The BMR Agreements will result in the construction of BMR units that meet the requirements of Municipal Code Chapter 16.96 and are commensurate with the goals of the BMR Housing Program Guidelines, resulting in the Project producing 312 affordable units, as more specifically described in the BMR Agreements.

2. To provide affordable senior housing, which is needed in San Mateo County, the Age Restricted BMR Agreement allows the senior affordable units to be in a senior housing building, as required by law, rather than distributed throughout the Project, and to have a different mix than the overall mix of units in the Project as a whole. The production of affordable senior units is a benefit to the City.

3. To provide affordable senior housing, which is needed in San Mateo County, the Age Restricted BMR Agreement will require the affordable units to be rented to persons over a certain age, which preference is not expressly contemplated in the City’s BMR rental preference criteria (set forth in the City of Menlo Park Below Market Rate Guidelines). The production of affordable senior units is a benefit to the City.

4. The waiver of the location requirements of Section 5.1 the City of Menlo Park Below Market Rate Guidelines with respect to the senior housing building would carry out the purposes of the BMR Housing Program and the Housing Element.

5. The rental of units in the senior building to persons over a certain age is a reasonably equivalent alternative to the preference criteria of the City of Menlo Park Below Market Rate Guidelines, is commensurate with the applicable requirements in the Guidelines and is consistent with the goals of the Guidelines.

SECTION 6.

Based upon the above findings of fact, the BMR Agreements for the Project are hereby approved. The City Council hereby authorizes the City Manager to execute the BMR Agreements in substantial conformance the BMR Agreements attached hereto and all documents required to implement the BMR Agreements on behalf of the City.

SECTION 7.

If any section of this resolution, or part hereof, is held by a court of competent jurisdiction in a final judicial action to be void, voidable or enforceable, such section, or part hereof, shall be deemed severable from the remaining sections of this ordinance and shall in no way affect the validity of the remaining sections hereof.
//
//
//
//
//
//
Page F-1.348
I, Judi A. Herren, City Clerk of Menlo Park, do hereby certify that the above and foregoing City Council Resolution was duly and regularly passed and adopted at a meeting by said City Council on the fifteenth sixth day of NovemberDecember, 2022, by the following votes:

AYES:

NOES:

ABSENT:

ABSTAIN:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of said City on this __ day of NovemberDecember, 2022.

Judi A. Herren, City Clerk
Attachments:

A. Project wide affordable housing agreement
Exhibits:

A. Legal description Willow Village site Menlo Park, California B1. Below market rate housing agreement and declaration of restrictive covenants (Willow Village Masterplan 1350 Willow Road)
B2. Below market rate housing agreement and declaration of restrictive covenants (Willow Village Masterplan 1350 Willow Road)
C. Partial release of project wide affordable housing agreement D. Estimated below market rate units by building
E. assignment and assumption agreement – project wide affordable housing agreement Page F-1.349
080937\15889901v8 1
This document is recorded for the benefit of the City of Menlo Park and is entitled to be recorded free of charge in accordance with Sections 6103 and 27383 of the Government Code.

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025

PROJECT WIDE AFFORDABLE HOUSING AGREEMENT
THIS PROJECT WIDE AFFORDABLE HOUSING AGREEMENT (“Agreement”) is made as of this ____ day of ________________, 2022, by and between Peninsula Innovation Partners, LLC, a Delaware limited liability company (“Project Wide Developer”) and the City of Menlo Park, a California municipal corporation (“City”) (each individually a “party” and together the “parties”), with reference to the following facts.

RECITALS
A. Project Wide Developer owns and is developing the real property commonly known as “Willow Village Master Plan Project” in the City of Menlo Park, County of San Mateo, (APNs 055-440-350, 055-440-210, 055-440-300, 055-440-130, 055-440-230, 055-440-110, 055-440- 340, 055-440-330, 055-440-260, 055-440-320, 055-440-310, 055-440-040, 055-440-020, 055- 440-010, 055-440-030, 055-440-050, 055-440-090, 055-440-190), more particularly described on Exhibit “A” attached hereto (“Property”). Development of the Property is governed by, among other items, Menlo Park Municipal Code Chapter 16.96 (“BMR Ordinance”) and the Below Market Rate Housing Program Guidelines (“Guidelines”).

B. Project Wide Devloper applied to demolish an existing office, research and development and industrial site and to comprehensively redevelop the main project site with up to 1.6 million square feet of office space (inclusive of meeting and collaboration space and accessory uses), up to 200,000 square feet of retail uses, a 193 room hotel (approximately 172,000 square feet in size), and up to 1,730 residential dwelling units, as well as publicly accessible open space and landscaping (the “Project”).

C. The BMR Ordinance and Guidelines require Project Wide Developer to provide fifteen percent (15%) of the total number of units in the Project as affordable to below market rate households. To satisfy the requirements of the BMR Ordinance and Guidelines, Project Wide Developer has proposed to provide 312 on-site Affordable Housing Units (as hereinafter defined) to below market rate households, inclusive of 119 age-restricted senior Affordable Housing Units and 193 non-age restricted Affordable Housing Units.

ATTACHMENT A Page F-1.350
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D. On August 3, 2022, after a duly noticed public hearing, the Housing Commission recommended approval of the Affordable Housing Units (as hereinafter defined) with eighty-two (82) extremely-low-income age-restricted senior units, thirty-seven (37) very-low-income agerestricted senior units, seventy-six (76) low-income non-age restricted units and one hundred and seventeen (117) moderate-income non-age restricted units.

E. On _______________, 2022, after a duly noticed public hearing, and on the recommendation of the Housing Commission and the Planning Commission, the City Council certified the environmental impact report and granted General Plan Circulation Element and Zoning Map amendments, rezoning, conditional development permit, development agreement (the “Development Agreement”), vesting tenantive map, and below market rate (BMR) housing agreement for the Project (collectively, “Project Approvals”). The Project Approvals require the Project Wide Developer to provide Affordable Housing Units as described herein. In accordance with the BMR Ordinance and Guidelines, Project Wide Developer is required to execute and record an approved BMR housing agreement as a condition precedent to the issuance of a building permit for the Project. This Agreement is intended to satisfy that requirement.

F. The Project is anticipated to be completed in two phases over time, with a cumulative total of six parcels containing all of the Affordable Housing Units, with parcels known as 2, 3, 6, and 7 in the first phase and parcels known as 4 and 5 in the second phase.

G. This Agreement will serve to memorialize the following: Project Wide Developer’s agreement to provide the Affordable Housing Units within the Project needed to satisfy BMR Ordinance requirements; the security for the performance of this Agreement; the time frame for the construction of the Affordable Housing Units; the restriction of the Affordable Housing Units by the recordation of the Declarations (as defined below), in favor of the City and in a form agreed upon by Project Wide Developer and the City, as set forth in Exhibit “B-1” and “B-2” attached hereto, assuring affordability for the required term; and other related issues to the provision of Affordable Housing Units on the Property.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, Project Wide Developer hereby declares and the City hereby agrees as follows:

1. Definitions. The following terms shall have the meanings ascribed to them in this Section 1:
(a) Affordable Housing Units. “Affordable Housing Units” means the rental residential units that Project Wide Developer is required to provide on the Property, which are restricted as provided in this Agreement to assure affordability for households earning either 30% Area Median Income (as defined below), 50% Area Median Income (as defined below), 80% Area Median Income (as defined below), or 120% Area Median Income (as defined below). (b) Agreement. “Agreement” means this Project Wide Affordable Housing Agreement.

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(c) Area Median Income. “Area Median Income” or “AMI” means the area median income for San Mateo County, as published and periodically updated by the U.S. Department of Housing and Urban Development (“HUD”), adjusted for assumed household size. (d) BMR Ordinance. “BMR Ordinance” has that meaning ascribed to it in Recital A, above.
(e) Building Permit(s). “Building Permit(s)” means a permit for the actual structure(s) of a Development Parcel, as that term is defined herein, in which residential rental units shall be developed and/or permits for any site preparation construction work, which may include but not be limited to make-ready utility installation; excavation, shoring and grading; and/or foundation installation.
(f) City. “City” means the City of Menlo Park, a municipal corporation. (g) Declaration. “Declaration” means the Below Market Rate Housing Agreement and Declaration of Restrictive Covenants recorded in Senior Position against a parcel(s) and/or condominium(s) sufficient to accommodate construction of the Affordable Housing Units applicable to a Development Parcel or multiple Development Parcels. The Declaration shall be in substantially the same form as the Pro Forma Declaration attached hereto as Exhibit “B-1” and “B2”, with the form attached as Exhibit “B-1” used for the non-age restricted buildings, and the form attached as Exhibit “B-2” used for the age restricted building. The term Declaration includes the First Development Parcel Declaration as defined in Section 5(a) below. Each Declaration shall be made by the owner of the affordable housing portion of such corresponding Development Parcel. (h) Development Parcel. “Development Parcel” means those parcels within the Property upon which any group of Market Rate Units and Affordable Housing Units, and/or improvements for which Building Permits are being concurrently requested by the Project Wide Developer (or any successor owner of any portion of the Project ) are located, and shall include the First Development Parcel and any Subsequent Development Parcel, as such terms are defined herein.
(i) First Development Parcel. “First Development Parcel” shall mean and refer to: the first Development Parcel to be developed.
(j) Guidelines. “Guidelines” has that meaning ascribed to it in Recital A, above. (k) Market Rate Units. “Market Rate Units” means the rental residential units that Project Wide Developer will develop on the Property that are not constricted by affordability rules under a Declaration and are permitted under the Project Approvals. (l) Project Wide Developer. “Project Wide Developer” means Peninsula Innovation Partners, LLC, a Delaware limited liability company.
(m) Property. “Property” has that meaning ascribed to it in Recital A, above.

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(n) Project. “Project” has that meaning ascribed to it in Recital B, above. (o) Project Approvals. “Project Approvals” has that meaning ascribed to it in Recital E, above.
(p) Required Affordable Units. “Required Affordable Units” means the number of Affordable Housing Units which, as of the date of issuance of the first Building Permit for any particular Development Parcel, Project Wide Developer is required to construct pursuant to Section 2(c) of this Agreement (less any such Affordable Housing Units which have already been commenced by Project Wide Developer).
(q) Senior Position. “Senior Position” means that the document is recorded against the Property such that it is senior in recording priority to all mortgages and deeds of trust. (r) Subsequent Development Parcel. “Subsequent Development Parcel” (it being acknowledged that there will be approximately five Subsequent Development Parcels shall mean and refer to: each of the five remaining Development Parcelsto be developed as part of the Project. (s) Targeted Household. “Targeted Household” means those households whose aggregate gross annual income does not exceed one hundred twenty percent (120%) of Area Median Income, as adjusted for family size.
(t) Other Terms. Other terms referenced in this Agreement in “quotations” (including those set forth in the Recitals) have the meanings ascribed to them in this Agreement.

2. Design, Construction and Occupancy Schedule for Affordable Housing Units. Project Wide Developer shall have no obligation to commence construction of the Affordable Housing Units except in accordance with the following schedule. (a) First Development Parcel. Upon the start of the First Development Parcel, Project Wide Developer and/or a successor owner of any portion of the Project shall obtain Building Permits for all of the Required Affordable Units for the First Development Parcel and shall diligently commence and pursue construction of such Affordable Housing Units. (b) Subsequent Development Parcel(s). Upon the commencement of any Subsequent Development Parcel, Project Wide Developer and/or a successor owner of such Subsequent Development Parcel shall obtain Building Permits for all of the Required Affordable Units for such Subsequent Development Parcel and shall diligently commence and pursue construction of such Affordable Housing Units. It is acknowledged that there may be more than one Subsequent Development Parcel.
(c) Construction of Affordable Housing Units. With respect to each Development Parcel, Project Wide Developer shall obtain Building Permits (and thereafter construct and complete pursuant to Sections 2(a) and 2(b), above) for the Required Affordable Units in relation to such Development Parcel, all as provided in Exhibit “D” attached hereto, as the same may be Page F-1.353
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amended or updated with the mutual approval of the City and the Project Wide Developer, provided, however, that a reallocation of Affordable Housing Units of Affordable Housing Units from one Development Parcel to another Development Parcel is permitted without the approval of the City so long as the reallocation does not decrease the Affordable Housing Units in any given Development Parcel as set forth in Exhibit “D” by more than 5%; and provided further that a reallocation that decreases the number of Affordable Housing Units of any given Development Parcel by more than 5% but less than 10% shall require approval of the City pursuant to an Operating Memorandum as described in Section 8.7 of the Development Agreement. In the event of any reallocation of Affordable Housing Units as described in this Section and pursuant to Section 5.1 of the Guidelines (as that section may be amended), in the Development Parcel accommodating the reallocated Affordable Housing Units, the Affordable Housing Units shall generally be of the same proploritonate size (number of bedrooms and square footage) as the market-rate units in such Development Parcel, should be distributed through such development, and should be indistinguishable from the exterior. City shall reasonably cooperate in the amendment of Exhibit “D” if a reallocation of more than 10% of Affordable Units among the Parcels is requested by Project Wide Developer provided there is no material impact on the deliver of Affordable Units to the Project.

3. Building Permits. Issuance of Building Permits for any Development Parcel, and a corresponding release of this Agreement from the property comprising such Development Parcel, shall not be allowed until Project Wide Developer causes a parcel(s) and/or condominium(s) sufficient to accommodate construction of the Affordable Housing Units applicable to such Development Parcel to be encumbered by a Declaration in Senior Position.

4. Effect of Sale of Parcel by Project Wide Developer. If a parcel(s) or condominium(s) within the Project are sold or otherwise transferred by Project Wide Developer, every such parcel or condominium sold or transferred shall (at the time the owner thereof obtains Building Permits for residential rental units on such parcel(s) or condominium(s)) be included, for purposes of this Agreement, in the phased delivery of Affordable Housing Units and Market Rate Units as provided in Exhibit “D” attached hereto, as the same may be amended or updated with the mutual approval of the City and the Project Wide Developer pursuant to Section 2 of this Agreement, and the other requirements of this Agreement. Any such sale or transfer by the Project Wide Developer shall also be subject to the provisions of Section 11 of this Agreement.

5. Declarations of Covenants, Conditions and Restrictions. The Project Wide Developer, and/or a successor owner of any applicable portion of the Project, shall timely execute and record Declarations as and when required by this Agreement.
(a) First Development Parcel Declaration. Prior to the first date upon which Building Permits for Market Rate Units in the First Development Parcel are first issued, Project Wide Developer shall execute, acknowledge and deliver a “First Development Parcel Declaration” to the title company, who will cause the First Development Parcel Declaration to be recorded in Senior Priority against the parcel(s) and/or condominium(s) described in such First Development Parcel Declaration. The First Development Parcel Declaration shall ensure that the required number of Affordable Housing Units applicable to the First Development Parcel (as provided on Exhibit “D” attached hereto, as the same may be amended or updated with the mutual approval of Page F-1.354
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the City and the Project Wide Developer) will be owned, operated, leased, rented, maintained, and occupied as Affordable Housing Units for the term of the First Development Parcel Declaration.

At the time the First Development Parcel Declaration is executed, the City shall execute a release of this Agreement for all of the parcel(s) and/or condominium(s) comprising the First Development Parcel. Such release shall be in the form attached as Exhibit “C” hereto. (b) Subsequent Development Parcel Declaration. Prior to the issuance of Building Permits for any Market Rate Units in any Subsequent Development Parcel, Project Wide Developer shall, to the extent a previously recorded Declaration does not already address the Affordable Housing Units applicable to such Subsequent Development Parcel, cause a parcel(s) or condominium(s) of real property sufficient to accommodate construction of the Affordable Housing Units applicable to such Subsequent Development Parcel to be encumbered by a Declaration in Senior Position. At the time a Declaration for such Subsequent Development Parcel is executed, the City shall execute a release of this Agreement for all of the parcel(s) and/or condominium(s) comprising such Subsequent Development Parcel. Such release shall be in the form attached as Exhibit “C” hereto.
(c) Restrictions. Each Declaration shall be in substantially the same form as the declarations set forth in Exhibit “B-1” for the non-age restricted buildings and Exhibit “B-2” for the age restricted building and shall provide for the bedroom mix of the Affordable Housing Units on each Development Parcel. Each Declaration shall also restrict the occupancy, and rents paid by the Targeted Households in accordance with the provisions of the Guidelines or as otherwise allowed by law.

6. Recordation. This Agreement shall be recorded against the Property in the Office of the County Recorder for the County of San Mateo in Senior Position; but subject to the release provisions of Sections 5(a) and 5(b) above and Section 16 below.

7. Indemnity. Project Wide Developer agrees to indemnify and hold harmless the City, and any and all of its members, officers, agents, servants, or employees (the “Indemnitees”) from and against all claims, liens, claims of lien, losses, damages, costs, and expenses, whether direct or indirect, arising in any way from the default by Project Wide Developer in the performance of its obligations under this Agreement; provided, however, that Project Wide Developer shall not be required to indemnify, defend or hold harmless any of the Indemnitees from claims, losses, damages, costs and expenses related to the negligence or willful misconduct of any of the Indemnitees.

8. Marketing Requirements. Project Wide Developer shall follow any applicable marketing requirements and procedures of the Guidelines.

9. Breach/Default. If Project Wide Developer is in material breach of the terms set forth in this Agreement and Project Wide Developer does not take action to correct such violation within 60 days of written notice of such failure from the City (or 180 days in the event such violation cannot be cured within 60 days and Project Wide Developer is diligently pursuing such cure), the City shall be entitled to all of its rights and remedies set forth herein and at law and in equity.

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10. Covenants to Run With the Land. Project Wide Developer agrees that all of its obligations hereunder shall constitute covenants, which shall run with the land and shall be binding upon the Property and upon every person having any interest therein at any time and from time to time during the term of this Agreement. Further, Project Wide Developer agrees that, if a court of competent jurisdiction determines that the obligations set forth herein do not qualify as covenants running with the land, they shall be enforced as equitable servitudes.

11. Successors and Assigns. This Agreementshall inure to the benefit of, and be binding upon, the parties hereto, and their respective heirs, successors and assigns. Project Wide Developer shall not sell, transfer or otherwise dispose of the Property or any legal parcel or condominium comprising a portion thereof, unless: (i) the proposed transferee enters into a Declaration as described in Section 5 hereof or (ii) the proposed transferee shall have executed and delivered to the City an express written assumption of all of Project Wide Developer’s obligations under this Agreement as they relate to such acquired real property, on a form substantially similar to the attached Exhibit “E”. Upon any sale of any portion of the Property permitted by the preceding sentence, with respect solely to the transferred property, Project Wide Developer and any Property not so conveyed will be released from further obligations relating to such transferred property (and under any Declaration or other documentation related hereto). The foregoing restrictions on sale and transfer shall not apply to the granting of easements, rights-of-way, and similar conveyances in connection with the development of the Project which are not in the nature of a sale of one or more legal parcels or condominiums. Upon assignment and assumption by a successor entity, as approved by the City, Project Wide Developer shall be released from all further responsibility under the terms of this Agreement as to the subject parcel(s) and/or condominium(s) so conveyed.

The successors, heirs and assigns of the Project Wide Developer shall enter into and execute such other and further documents as the City shall reasonably require, as from time to time, may be needed to effectuate the affordable housing requirements of the Guidelines or as otherwise required or allowed by law.

12. Standing, Equitable Remedies; Cumulative Remedies. Project Wide Developer expressly agrees and declares that the City and/or its successors shall be the proper parties and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such a default may have actually been suffered by some other person or by the public at large. Nothing in this subparagraph, and no recovery to the City, shall restrict or limit the rights or remedies of persons or entities other than the City, against Project Wide Developer in connection with the same or related acts by Project Wide Developer. Neither Project Wide Developer, nor any tenant or occupant of the Property, shall have any claim or right of action against the City based on any alleged failure of the City to perform or enforce the terms of this Agreement, except that Project Wide Developer may reasonably rely upon City’stenant eligibility determination, and provided further that Project Wide Developer may pursue a claim of specific performance against the City in the event the City improperly withholds a release of a Development Parcel from this Agreement after a Declaration has been recorded against such Development Parcel according to the terms of this Agreement.

13. Certificate of Compliance. The City shall provide Project Wide Developer upon request with recordable evidence that a particular parcel(s) of real property or condominium(s) within the Page F-1.356
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Project has satisfied all applicable requirements under this Agreement, or has been developed in a manner which makes this Agreement inapplicable thereto, and which instrument shall have the effect of making this Agreement no longer a lien or encumbrance upon title to such parcel(s) or condominium(s).

14. Term. This Agreement and the covenants and restrictions contained herein shall, subject to the provisions above relating to release hereof, remain in effect as a lien and charge against each legal parcel or condominium within the Property until the date of recordation of the final Declaration for the final Subsequent Development Parcel for the Property, at which time this Agreement shall be terminated.

15. Severability. In the event that any provision or covenant of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then it shall be severed from the remaining portions of this Agreement which shall remain in full force and effect.

16. Release of Non-Residential Parcels. This Agreement is entered into to provide for the development of Affordable Housing Units on the six (6) Development Parcels containing Affordable Housing Units. Those portions of the Project not containing the Development Parcels shall be released from this Agreement upon the earlier of (i) the recording of a parcel or final map for said portions of the Project not containing the six (6) Development Parcels, which map substantially conforms to the Willow Village Master Plan or (ii) the issuance of a demolition or building permit for the development of any portion of the Project not containing the six (6) Development Parcels. Such release shall be in the form attached as Exhibit “C” hereto.

17. General Provisions.
(a) Integration. The undersigned, and each of them, acknowledge and represent that no promise or inducement not expressed in this Agreement has been made in connection with this Agreement. This Agreement contains the entire agreement and understanding between the parties as to its subject matter.
(b) Waiver and Amendment. No provision of this Agreement, or breach of any provision, can be waived except in writing. Waiver of any provision or breach shall not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or other provision.

Except as otherwise provided herein, this Agreement may be amended, modified or rescinded only in writing signed by Project Wide Developer and the City. (c) Time of Essence. Time is expressly declared to be of the essence in this Agreement, and of every provision in which time is an element.
(d) Captions. Paragraph titles and captions contained in this Agreement are inserted as a matter of convenience and for reference, and are not a substantive part of this Agreement. (e) Further Assurances. The parties each agree to sign any additional documents, which are reasonably necessary to carry out this Agreement or to accomplish its intent.

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(f) Benefit and Burden. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns. This Agreement is not intended to benefit any person other than the parties hereto. (g) Governing Law. This Agreement has been entered into in the State of California, and shall be interpreted and enforced under California law. (h) Attorneys’ Fees. The prevailing party in any action, including, but not limited to, arbitration, a petition for writ of mandate, and/or an action for declaratory relief, brought to enforce, interpret or reform the provisions of this Agreement shall be entitled to reasonable attorneys’ fees and costs (including, but not limited to, experts’ fees and costs and trustees’ fees, and including “costs” regardless of whether recoverable as such under any statute) incurred in such action.
(i) Signatures. This Agreement may be executed in any number of counterparts and, as so executed, the counterparts shall constitute one and the same Agreement. All individuals signing this Agreement for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the City that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing.
(j) Intentionally Omitted.
(k) Notices. All notices given pursuant to this Agreement or law shall be written.

Notices shall be delivered with all delivery or postal charges prepaid. Notices may be given personally; by electronic mail; by United States first-class mail; by United States certified or registered mail; or by other recognized overnight service. Notices shall be deemed received on the date of personal delivery transmission; on the date shown on a signed return receipt or acknowledgment of delivery; or, if delivery is refused or notice is sent by regular mail, seventytwo (72) hours after deposit thereof with the U.S. Postal Service. Until a party gives notice of a change, notices shall be sent to:

If to the City: City of Menlo Park
701 Laurel Street
Menlo Park, CA 94025
Attention: City Clerk
E-mail:

If to Project Wide Developer: Peninsula Innovation Partners, LLC 1 Hacker Way
Menlo Park, CA 94025
Attn: ________________
E-mail:

With a copy to: Cox, Castle & Nicholson LLP
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50 California Street, Suite 3200
San Francisco, CA 94111
Attn: Ofer Elitzur, Esq.

E-mail: [email protected]
(l) Mortgagees Protection. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any permitted deed of trust recorded on the Property provided, however, that any subsequent owner of the Property shall be bound by the covenants, conditions, restrictions, limitations and provisions of this Agreement, whether such owner’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise. (m) Actions of Parties to be Reasonable. Each party to this Agreement agrees that it shall act reasonably in granting or withholding any consent or approval required by this Agreement and/or any other legal document executed in connection with this Agreement or in connection with the development of the Project.
(n) Estoppel Certificate. Upon the request of the Project Wide Developer, the City shall, through the City Manager, provide Project Wide Developer and any potential lender or purchaser, with an estoppel certificate by which the City confirms that neither Project Wide Developer nor the City is in default hereof (or setting forth such defaults) and confirming such other factual matters as Project Wide Developer or such potential lender or purchaser may reasonably request and the addressees of such estoppel certificates shall be entitled to rely upon the information contained therein.
[This Space Intentionally Left Blank]
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IN WITNESS WHEREOF, the Project Wide Developer has caused this Agreement to be executed as of the date first written above.

PROJECT WIDE DEVELOPER:

PENINSULA INNOVATION PARTNERS, LLC, a Delaware limited liability company By:_____________________________________
Name: ______________________________
Its:______________________________________
By:_____________________________________
Name: ______________________________
Its:______________________________________
CITY:

CITY OF MENLO PARK, a California municipal corporation
By: _____________________________________
Name:

Title: City Manager
ATTEST:
____________________________________
City Clerk
Date: _____________________
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ACKNOWLEDGMENT
State of California )
)
County of Mateo )
On ____________________, 20___ before me, _________________________________, 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 _________________________________ (Seal)
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ACKNOWLEDGMENT
State of California )
)
County of San Mateo )
On ____________________, 20___ before me, _________________________________, 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 _________________________________ (Seal)
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Exhibit “A”
Property Description
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Exhibit “B-1”
Pro Forma Affordable Regulatory Agreement and
Declaration of Restrictive Covenants
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Exhibit “B-2”
Pro Forma Affordable Regulatory Agreement and
Declaration of Restrictive Covenants (Age-Restricted)
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Exhibit “C”
Pro Forma Partial Release
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Exhibit “D”
Phase 1
Market Rate Units Affordable Units
Parcel 2 293 34
Parcel 3 376 43
Parcel 6 158 20
Parcel 7 1 (manager’s unit) 119
Phase 2
Market Rate Units Affordable Units
Parcel 4 378 62
Parcel 5 212 34

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Exhibit “E”
Pro Forma Assignment and Assumption
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FREYER & LAURETA, INC. Page 1 of 2

EXHIBIT A

LEGAL DESCRIPTION

WILLOW VILLAGE SITE

MENLO PARK, CALIFORNIA
The land referred to is situated in the City of Menlo Park, County of San Mateo, State of California and is described as follows:

BEGINNING at the southwesterly corner of Parcel S; as shown on that certain map entitled “Menlo Industrial Center, City of Menlo Park, San Mateo County, California” filed in the office of the County Recorder of San Mateo County, State of California, on October 1, 1979, in Volume 99 of Maps at Pages 81-83, thence,
North 22°05'00" East, 120.17 feet; thence,
North 24°45'44" East, 143.14 feet; thence,
Along a tangent curve to the left, having a radius of 1,536.52 feet, length of 74.34 feet, and a delta angle of 02°46'19"; thence,
North 22°05'00" East, 864.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,032.50 feet, length of 55.72 feet, and a delta angle of 03°05'31"; thence,
North 25°35'47" East, 2.12 feet; thence,
North 19°19'09" East, 144.98 feet; thence,
North 22°05'00" East, 71.06 feet; thence,
North 84°59'41" East, 1,324.41 feet; thence,
Along a tangent curve to the left, having a radius of 1,1509.17 feet, length of 251.79 feet, and a delta angle of 01°15'13"; thence,
EXHIBIT A Page F-1.369
FREYER & LAURETA, INC. Page 2 of 2
South 10°08'21" West, 1,612.25 feet; thence,
South 88°08'54" West, 1,612.25 feet; thence,
North 79°51'49" West, 668.96 feet to the POINT OF BEGINNING.

Containing 2,577,434.20 square feet (59.17 acres), more or less.

September 30, 2022
Page F-1.370
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Menlo Park
Attn: City Clerk
701 Laurel Street
Menlo Park, CA 94025

BELOW MARKET RATE HOUSING AGREEMENT

AND DECLARATION OF RESTRICTIVE COVENANTS
(Willow Village Masterplan 1350 Willow Road)

THIS BELOW MARKET RATE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is entered into as of , 2022, by and between the City of Menlo Park, a California municipal corporation (“City”), and ___________________, a ______________ (“Owner”). City and Owner may be referred to individually as a “Party” or collectively as the “Parties” in this Agreement.

RECITALS
A. Owner is the owner of that certain real property located at _________________ (APN _______), in the City of Menlo Park, California (“Property”), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference.

B. [Peninsula Innovation Partners, LLC] (“Project Wide Developer”) applied to demolish an existing office, research and development and industrial site (the “Main Willow Village Project Site”) and to comprehensively redevelop the project wide site with up to 1.6 million square feet of office space (inclusive of meeting and collaboration space and accessory uses), up to 200,000 square feet of retail uses, a 193 room hotel (approximately 172,000 square feet in size), and up to 1,730 residential dwelling units, as well as publicly accessible open space and landscaping as part of a master planned mixed-use project (the “Willow Village Project”), [which is subject to that certain Project Wide Affordable Housing Agreement (“Project Wide Affordable Housing Agreement”) between Project Wide Developer and City, dated as of [______________], 2022. The Property is part of Phase [___] as described in the Project Wide Affordable Housing Agreement.]
C. [The Project Wide Developer has transferred the Property to the Owner, and the City has released the Property from the Project Wide Affordable Housing Agreement pursuant to the terms of the Project Wide Affordable Housing Agreement, in conjunction with the recording of this Agreement.]
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2 D. The Willow Village Project re-subdivided the Main Willow Village Project Site into ____ new legal parcels shown on the proposed Vesting Tentative Map in Exhibit ___ of the DA. Amongst those new parcels is parcel _____, which is approved for residential building [___] with a new multifamily residential project with [_____] rental units, as well as associated open space, circulation, parking and infrastructure improvements. (“Project”), of which [_______] (___) rental units (“BMR Units”) shall be affordable to below market rate households as follows:
[______] (__) low income units (“Low Income Units”) and [________] (__) moderate income units (“Moderate Income Units”). The allocation of BMR Units across the unit-sizes in the Project is more particularly described on Exhibit B, attached hereto and incorporated herein by this reference.

E. On _____________, 2022, after a duly noticed public hearing, and on the recommendation of the Housing Commission, the Plannin Commission, and the City Council certified the environmental impact report and granted General Plan Circulation Element and Zoning Map amendments, rezoning, conditional development permit, development agreement, vesting tenantive map, and below market rate (BMR) housing agreement for the Project (“Project Approvals”). The Project Approvals require the Project Wide Developer to provide BMR Units in accordance the Project Wide Affordable Housing Agreement. In accordance with the Menlo Park Municipal Code Chapter 16.96, the Below Market Rate Housing Program (“BMR Ordinance”), and the Below Market Rate Housing Program Guidelines (“Guidelines”), Owner is required to execute and record an approved BMR Housing Agreement as a condition precedent to the issuance of a building permit for the Project. This Agreement is intended to satisfy that requirement.

F. As required by the Project Wide Affordable Housing Agreement, and pursuant to this Agreement, Owner has agreed to observe all the terms and conditions set forth below for purposes of development and operation of the BMR Units. This Agreement will ensure the Project’s continuing affordability.

NOW, THEREFORE, the Parties hereto agree as follows. The recitals are incorporated into this Agreement by this reference.

1. CONSTRUCTION OF THE IMPROVEMENTS.

1.1 Construction of the Project. Owner agrees to construct the Project in accordance with the Menlo Park Municipal Code and all other applicable state and local building codes, development standards, ordinances and zoning ordinances.

1.2 City and Other Governmental Permits. Before commencement of the Project, Owner shall secure or cause its contractor to secure any and all permits which may be required by the City or any other governmental agency affected by such construction, including without limitation building permits. Owner shall pay all necessary fees and timely submit to the City final drawings with final corrections to obtain such permits; City staff will, without incurring liability or expense therefore, process applications in the ordinary course of business for the issuance of building permits and certificates of occupancy for construction that meets the requirements of the Menlo Park Municipal Code, and all other applicable laws and regulations.

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3 1.3 Compliance with Laws. Owner shall carry out the design, construction and operation of the Project in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the Menlo Park Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.

2. OPERATION OF THE BMR UNITS

2.1 Affordability Period. This Agreement shall remain in effect and the Property shall be subject to the requirements of this Agreement from the date that the City issues a final certificate occupancy for the Project (the “Effective Date”) until the 55th anniversary of such Effective Date.

The duration of this requirement shall be known as the “Affordability Period.”

2.2 Maintenance. Owner shall comply with every condition of the Project Approvals applicable to the Project and shall, at all times, maintain the Project and the Property in good repair and working order, reasonable wear and tear excepted, and in a safe and sanitary condition, and from time to time shall make all necessary and proper repairs, renewals, and replacements to keep the Project and the Property in a good, clean, safe, and sanitary condition.

2.3 Monitoring and Recordkeeping. Throughout the Affordability Period, Owner shall comply with all applicable recordkeeping and monitoring requirements set forth in the Guidelines. City shall have the right to inspect the books and records of Owner and its rental agent or bookkeeper upon reasonable notice during normal business hours. Representatives of the City shall be entitled to enter the Property, upon at least 48-hour prior written notice, which can be provided via email, to monitor compliance with this Agreement, to inspect the records of the Project with respect to the BMR Units, and to conduct, or cause to be conducted, an independent audit or inspection of such records. Owner agrees to cooperate with the City in making the Property available for such inspection or audit. Owner agrees to maintain records in businesslike manner, and to maintain such records for Affordability Period.

2.4 Non-Discrimination Covenants. Owner covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, familial status, disability, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.

Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith. a. In deeds, the following language shall appear:
(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no Page F-1.374
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4 discrimination against or segregation of a person or of a group of persons on account of 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, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) 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 paragraph (1).
b. In leases, the following language shall appear:
(1) The lessee herein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) shall be construed to affect Sections

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5 c. In contracts pertaining to management of the Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) There shall be no discrimination against or segregation of any person or group of persons on account of 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, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) 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 paragraph (1) shall be construed to affect Sections

2.5 Subordination. This Agreement shall be recorded in the Official Records of the County of San Mateo and shall run with the land. The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement for the benefit of lenders providing financing for the Project, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.

3. OPERATION OF THE BMR UNITS

3.1 BMR Units. Owner agrees to make available, restrict occupancy to, and lease not less than [________] (__) BMR Units, inclusive of [________] (__) Low Income Units and [____________] (__) Moderate Income Units, to Qualifying Households, as hereinafter defined, at an affordable rent, pursuant to the terms set forth below. The BMR Units shall be of a quality comparable to all of the other rental units in the Project. The BMR Units shall be initially distributed as set forth in Exhibit C, attached hereto and incorporated herein by this reference.

Thereafter, the location of the individual BMR Units may float to account for the next available unit requirement set forth below and as otherwise necessary for the professional maintenance and operation of the Project provided that the distribution of BMR Units are equitably disbursed throughout the Project and the City’s City Manager or Deputy Director of Community Development (“Deputy Director”) shall be notified of any change or relocation of BMR Units by Owner.

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6 3.2 Qualifying Households. For purposes of this Agreement, “Qualifying Households” shall mean those households with incomes as follows:
a. “Low Income Unit”: means units restricted to households with incomes of not more than eighty percent (80%) of AMI. “AMI” means the median income for San Mateo County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision. Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Low Income eligibility requirements, then the tenant shall no longer be qualified. Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Low Income Unit, and the Owner shall either (1) make the next available unit, which is comparable in terms of size, features and number of bedrooms, a Low Income Unit, or take other actions as may be necessary to ensure that the total required number of Low Income Units are rented to Qualifying Households, or (2) if the tenant’s income does not exceed one hundred twenty (120%) of the maximum income that would qualify the Tenant as a Moderate Income Household, the tenant shall be allowed to remain in the unit at a Moderate Income rent. If the tenant originally qualified as a Low Income Household, then the tenant’s rent will be increased to a Moderate Income rent upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to a Low Income Household. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Low Income Units pursuant to this paragraph.
b. “Moderate Income Unit”: means units restricted to households with incomes of not more than one hundred and twenty percent (120%) of AMI. “AMI” means the median income for San Mateo County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision. Qualifying Households shall continue to qualify unless at the time of recertification, the household’s income exceeds the Moderate Income eligibility requirements, then the tenant shall no longer be qualified.

Upon Owner’s determination that any such household is no longer qualified, the unit shall no longer be deemed a Moderate Income Unit and the Owner shall either (1) make the next available Moderate Income Unit, which is comparable in terms of size, features and number of bedrooms, a Moderate Income Unit, or take other actions as may be necessary to ensure that the total required number of Moderate Income Units are rented to Qualifying Households, or (2) If the tenant’s income does not exceed one hundred twenty (120%) of the maximum income that would qualify the Tenant as a Moderate Income Household, the tenant shall be allowed to Page F-1.377
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7 remain in the unit at a Moderate Income rent. If the tenant originally qualified as a Moderate Income Household, then the Tenant shall be notified they are no longer eligible for the BMR unit and tenant’s rent will be increased to a market rate rent upon the later of sixty (60) days’ notice or the renewal of the tenant’s lease, and the Owner shall rent the next available unit to a Moderate Income Household. Owner shall notify the City annually if Owner substitutes a different unit for one of the designated Moderate Income Units pursuant to this paragraph.

3.3 Income Verification and Annual Report. On or before July 1 of each year, commencing with the calendar year that the first residential unit in the Project is rented to a tenant, and annually thereafter, Owner shall obtain from each household occupying a BMR Unit and submit to the City an income computation and certification form, completed by a tenant of such unit, which shall certify that the income of each Qualifying Household is truthfully set forth in the income certification form, in the form proposed by the Owner and approved by the Deputy Director (“Annual Report”). Owner shall make a good faith effort to verify that each household leasing a BMR Unit meets the income and eligibility restrictions for the BMR Unit by taking the following steps as a part of the verification process: (a) obtain a minimum of the three (3) most current pay stubs for all adults age eighteen (18) or older; (b) obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain the three (3) most current savings and checking account bank statements; (e) obtain an income verification form from the applicant's current employer; (f) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (g) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. Copies of tenant income certifications shall be available to the City upon request. The Annual Report shall, at a minimum, include the following information for each BMR Unit: unit number, number of bedrooms, current rent and other charges, dates of any vacancies during the reporting period, number of people residing in the unit, total household Gross Income, and lease commencement and termination dates. The Report shall also provide a statement of the owner’s management policies, communications with the tenants and maintenance of the BMR Unit, including a statement of planned repairs to be made and the dates for the repairs.

3.4 Affordable Rent. The maximum Monthly Rent, defined below, chargeable for the BMR Units and paid shall be as follows:
a. “Low Income Household”: shall be 1/12th of 30 percent of 80 percent of the AMI. The Monthly Rent for a Low Income Unit rented to a Low Income Household and paid by the household shall be based on an assumed average occupancy per unit of one person per studio unit, 1.5 persons for a onebedroom unit, 3 persons for a two-bedroom unit and 4.5 persons for a threebedroom unit, unless otherwise approved by the Deputy Director for an unusually large unit with a maximum of two persons per bedroom, plus one. b. “Moderate Income Household”: shall be 1/12th of 30 percent of 120 percent of the AMI. The Monthly Rent for a Moderate Income Unit rented to a Moderate Income Household and paid by the household shall be based Page F-1.378
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8 on an assumed average occupancy per unit of one person per studio unit,

1.5 persons for a one- bedroom unit, 3 persons for a two-bedroom unit and

4.5 persons for a three- bedroom unit, unless otherwise approved by the Deputy Director for an unusually large unit with a maximum of two persons per bedroom, plus one.

For purposes of this Agreement, “Monthly Rent” means the total of monthly payments actually made by the household for (a) use and occupancy of each BMR Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Owner which are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, and which are not paid directly by Owner, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or internet service, which reasonable allowance for utilities is set forth in the County of San Mateo’s Utility Allowance Schedule for detached homes, apartments, condominiums and duplexes, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Owner. Pursuant to the Guidelines, in no case shall the Monthly Rent for a BMR Unit exceed 75 percent of comparable market rate rents.

3.5 Agreement to Limitation on Rents. As described in Recital C above, Owner is developing at the bonus level of development, which is a form of assistance authorized by Chapter

4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. Sections 1954.52(b) and 1954.53(a)(2) of the Costa-Hawkins Act provide that, where a developer has received such assistance, certain provisions of the Costa-Hawkins Act do not apply if a developer has so agreed by contract. Owner hereby agrees to limit Monthly Rent as provided in this Agreement in consideration of Owner’s receipt of the assistance and further agrees that any limitations on Monthly Rents imposed on the BMR Units are in conformance with the CostaHawkins Act. Owner further warrants and covenants that the terms of this Agreement are fully enforceable.

3.6 Lease Requirements. No later than 180 days prior to the initial lease up of the BMR Units, Owner shall submit a standard lease form to the City for approval by the Deputy Director or his/her designee. The City shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement and contains all of the provisions required pursuant to the Guidelines. The City's failure to respond to Owner's request for approval of the standard lease form within thirty (30) business days of City's receipt of such lease, shall be deemed City's approval of such lease form. Owner shall enter into a written lease, in the form approved by the City, with each new tenant of a BMR Unit prior to a tenant or tenant household’s occupancy of a BMR Unit. Each lease shall be for an initial term of not less than one year which may be renewed pursuant to applicable local and State laws, and shall not contain any of the provisions which are prohibited pursuant to the Guidelines, local, state and Federal laws.

3.7 Selection of Tenants. Each BMR Unit shall be leased to tenant(s) selected by Owner who meet all of the requirements provided herein, and, to the extent permitted by law, with priority given to those eligible households who either live or work in the City of Menlo Park, or meet at least one of the other preferences identified in the Guidelines. The City’s BMR Page F-1.379
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9 Administrator, on behalf of the City will provide to Owner the names of persons who have expressed interest in renting BMR Units for the purposes of adding such interested persons to Owner’s waiting list, to be processed in accordance with Owner’s customary policies. Owner shall not refuse to lease to a holder of a certificate or a rental voucher under the Section 8 program or other tenant-based assistance program, who is otherwise qualified to be a tenant in accordance with the approved tenant selection criteria.

4. DEFAULT AND REMEDIES

4.1 Events of Default. The following shall constitute an “Event of Default” by Owner under this Agreement: there shall be a material breach of any condition, covenant, warranty, promise or representation contained in this Agreement and such breach shall continue for a period of thirty (30) days after written notice thereof to the Owner without the Owner curing such breach, or if such breach cannot reasonably be cured within such 30 day period, commencing the cure of such breach within such 30 day period and thereafter diligently proceeding to cure such breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of Section 4 of this Agreement, the specific provision shall control.

4.2 Remedies. The occurrence of any Event of Default under Section 4.1 shall give the City the right to proceed with an action in equity to require the Owner to specifically perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions of this Agreement, and the right to terminate this Agreement.

4.3 Obligations Personal to Owner. The liability of Owner under this Agreement to any person or entity is limited to Owner’s interest in the Project, and the City and any other such persons and entities shall look exclusively thereto for the satisfaction of obligations arising out of this Agreement or any other agreement securing the obligations of Owner under this Agreement.

From and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement, any agreement pertaining to any Project or any other agreement securing Owner’s obligations under this Agreement), shall be rendered against Owner, the assets of Owner (other than Owner’s interest in the Project), its partners, members, successors, transferees or assigns and each of their respective officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Agreement or any agreement securing the obligations of Owner under this Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding. No subsequent Owner of the Project shall be liable or obligated for the breach or default of any obligations of Owner under this Agreement on the part of any prior Owner. Such obligations are personal to the person who was the Owner at the time the default or breach was alleged to have occurred and such person shall remain liable for any and all damages occasioned thereby even after such person ceases to be the Owner. Each Owner shall comply with and be fully liable for all obligations the Owner hereunder during its period of ownership of the Project.

4.4 Force Majeure. Subject to the party’s compliance with the notice requirements as set forth below, performance by either party hereunder shall not be deemed to be in default, and Page F-1.380
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10 all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control and without the fault of the party claiming an extension of time to perform, which may include, without limitation, the following: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, acts or omissions of the other party, or acts or failures to act of any public or governmental entity (except that the City’s acts or failure to act shall not excuse performance of the City hereunder). An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within 30 days of the commencement of the cause.

4.5 Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover from the other party its costs of suit and reasonable attorneys' fees. This Section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.

4.6 Remedies Cumulative. No right, power, or remedy given by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given by the terms of any such instrument, or by any statute or otherwise.

4.7 Waiver of Terms and Conditions. The City may, in its sole discretion, waive in writing any of the terms and conditions of this Agreement. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition.

4.8 Non-Liability of City Officials and Employees. No member, official, employee or agent of the City shall be personally liable to Owner or any occupant of any BMR Unit, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Owner or its successors, or on any obligations under the terms of this Agreement.

4.9 Cure Rights. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by (i) Owner’s limited partner, or (ii) Owner’s senior mortgage lender, shall be deemed to be a cure by Owner and shall be accepted or rejected on the same basis as if made or tendered by Owner.

5. GENERAL PROVISIONS

5.1 Below Market Rate Guidelines (“Guidelines”). This Agreement incorporates by reference the Guidelines as of the date of this Agreement and any successor sections as the Guidelines may be amended from time to time. In the event of any conflict or ambiguity between this Agreement, the requirements of state and federal fair housing laws and the Guidelines, the Page F-1.381
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11 terms and conditions of this Agreement and the requirements of state and federal fair housing laws shall control.

5.2 Time. Time is of the essence in this Agreement.

5.3 Notices. Unless otherwise indicated in this Agreement, any notice requirement set forth herein shall be deemed to be satisfied three days after mailing of the notice first-class United States certified mail, postage prepaid, or at the time of personal delivery, addressed to the appropriate party as follows:

Owner: [_______________]
[_______________]
[_______________]
Attention: [_______________]
Email: [_______________]
City : City of Menlo Park
701 Laurel Street
Menlo Park, California 94025-3483
Attention: City Manager
Such addresses may be changed by notice to the other party given in the same manner as provided above.

5.4 Successors and Assigns. This Agreement constitutes a covenant and legal restriction on the Property and shall run with the land, provided the Project remains on the Property, and all of the terms, covenants and conditions of this Agreement shall be binding upon Owner and the permitted successors and assigns of Owner.

5.5 Intended Beneficiaries. The City is the intended beneficiary of this Agreement and shall have the sole and exclusive power to enforce this Agreement. It is intended that the City may enforce this Agreement in order to, satisfy its obligations to improve, increase and preserve affordable housing within the City, as required by the Guidelines, and to provide that a certain percentage of new housing is made available at affordable housing cost to persons and families of very low, low and moderate incomes as required by the Guidelines. No other person or persons, other than the City and Owner and their assigns and successors, shall have any right of action hereon.

5.6 Partial Invalidity. If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.

5.7 Governing Law. This Agreement and other instruments given pursuant hereto shall be construed in accordance with and be governed by the laws of the State of California. Any references herein to particular statutes or regulations shall be deemed to refer to successor statutes or regulations, or amendments thereto. The venue for any action shall be the County of San Mateo.

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12 5.8 Amendment. This Agreement may not be changed orally, but only by agreement in writing signed by Owner and the City.

5.9 Approvals. Where an approval or submission is required under this Agreement, such approval or submission shall be valid for purposes of this Agreement only if made in writing.

Where this Agreement requires an approval or consent of the City, such approval shall not be unreasonably withheld may be given on behalf of the City by the City Manager or his or her designee. The City Manager or his or her designee is hereby authorized to take such actions as may be necessary or appropriate to implement this Agreement, including without limitation the execution of such documents or agreements as may be contemplated by this Agreement, and amendments which do not substantially change the uses or restrictions hereunder, or substantially add to the costs of the City hereunder.

5.10 Indemnification. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel reasonably approved by City) and hold the City, its heirs, successors and assigns (the “Indemnitees”) harmless from and against any and all demands. losses, claims, costs and expenses, and any other liability whatsoever, including without limitation, reasonable accountants’ and attorneys’ fees, charges and expense (collectively, “Claims”) arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s construction, management, or operation of the Property and the Project or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section

6.10 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 6.10 shall survive the expiration or earlier termination of this Agreement, but only as to claims arising from events occurring during the Affordability Period.

5.11 Insurance Coverage. Throughout the Affordability Period, Owner shall comply with the insurance requirements set forth in Exhibit D, attached hereto and incorporated herein by this reference, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in Exhibit D.

5.12 Transfer and Encumbrance.

5.12.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (other than a lease of a BMR Unit on an approved form under Section 3.6 hereof to a qualified tenant as described in Section 3.7 hereof) (collectively, “Transfer”) of the whole or any part of any BMR Unit, without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by Page F-1.383
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13 the investor limited partner to subsequent limited partners shall be restricted by this provision.

5.12.2 Permitted Transfers. The prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of easements or permits to facilitate development of the Property; or (ii) assignments creating security interests for the purpose of financing the acquisition, construction, or permanent financing of the Project or the Property, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest.

5.12.3 Requirements for Proposed Transfers. The City may, in the exercise of its reasonable discretion, consent to a proposed Transfer of this Agreement and/or a BMR Unit if all of the following requirements are met (provided however, the requirements of this Section

5.12.3 shall not apply to Transfers described in clauses (i) or (ii) of Section 5.12.2. (i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete and manage the Project and to otherwise fulfill the obligations undertaken by the Owner under this Agreement. (ii) The Owner and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the BMR Unit or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Owner under this Agreement arising after the effective date of the Transfer and all obligations of Owner arising prior to the effective date of the Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Owner’s obligations pursuant to conditions, and restrictions set forth in this Agreement. (iv) The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records.

Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the City’s Authorized Representative, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.

5.13 Effect of Transfer without City Consent. In the absence of specific written agreement by the City, no Transfer of any BMR Unit shall be deemed to relieve the Owner or any other party from any obligation under this Agreement. This Section 5.12 shall not apply to Transfers described in clauses (i) and (ii) of Section 5.12.2.

5.14 Recovery of City Costs. Owner shall reimburse City for all reasonable City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments Page F-1.384
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14 and other legal documents proposed to effect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten (10) days following City’s delivery to Owner of an invoice detailing such costs.

5.15 [Satisfaction of Project Wide Affordable Housing Agreement Requirements.

The City hereby acknowledges and agrees that Owner’s execution and delivery of this Agreement and the performance of Owner’s obligations herein, satisfies Project Wide Developer’s obligation to execute and record a Below Market Rate Housing Agreement and Declaration of Restrictive Covenants against the Property as set forth in Section 5 of the Project Wide Affordable Housing Agreement.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year set forth above.

SIGNATURES ON FOLLOWING PAGE(S).

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15 OWNER:
[_______________________], a [___________]
By:

Its:

CITY:

CITY OF MENLO PARK, a California municipal
corporation
By:

City Manager
ATTEST:

By:

City Clerk
List of Exhibits:

Exhibit A: Property Description
Exhibit B: Allocation of the BMR Units
Exhibit C: BMR Unit Locations
Exhibit D: Insurance Requirements
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Exhibit A
Property Description
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Exhibit B
Allocation of BMR Units in the Project
BMR Units Low Moderate
Studio apartment
1 bedroom apartment
2 bedroom apartment
3 bedroom apartment
Total - BMR Units
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Exhibit C
BMR Unit Locations
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Exhibit D
Insurance Requirements
Prior to initiating work on the Project and continuing throughout the Affordability Period, Owner shall obtain and maintain the following policies of insurance and shall comply with all provisions set forth in this Exhibit.

1. General Requirements. Owner shall procure and maintain the following insurance providing coverage against claims for injuries to persons or damages to property that may arise from or in connection with the Project, construction, management, or operation of the Property by the Owner or the Owner’s agents, representatives, employees and contractors, or subcontractors, including the following:
(a) Commercial General Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain a commercial general liability policy in an occurrence policy for protection against all claims arising from injury to person or persons not in the employ of the Owner and against all claims resulting from damage to any property due to any act or omission of the Owner, its agents, or employees in the conduct or operation of the work or the execution of this Agreement. Such insurance shall include products and completed operations liability, blanket contractual liability, personal injury liability, and broad form property damage coverage. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage.
(b) Commercial Automobile Liability: The Owner and all contractors working on behalf of Owner on the Property shall maintain insurance for protection against all claims arising from the use of vehicles, owned, hired, non-owned, or any other vehicle in connection with the Project, construction, operation or management of the Property. Such insurance shall cover the use of automobiles and trucks on and off the site of the Property. Coverage shall be at least as broad as Insurance Services Office covering Commercial Automobile Liability, any auto, owned, non-owned and hired auto.
(c) Workers' Compensation Insurance: The Owner (and the general partners thereof) shall furnish or cause to be furnished to City evidence satisfactory to City that Owner (and the general partners thereof), and any contractor with whom Owner has contracted for the performance of work on the Property or otherwise pursuant to this Agreement, shall maintain Workers' Compensation Insurance as required by the State of California and Employer’s Liability Insurance. (d) Builder’s Risk: Upon commencement of any construction work on the Property, Owner and all contractors working on behalf of Owner shall maintain a policy of builder's all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming City as loss payee as its interests may appear. (e) Professional Liability/Errors and Omissions: Owner shall require any architects, engineers, and general contractors working on the Property to maintain Professional Liability/Errors and Omissions insurance with limits not less than Two Million Dollars ($2,000,000) each claim. Certificates evidencing this coverage must reference both the Owner and the Indemnitees. If the professional liability/errors and omissions insurance is written on a Page F-1.390
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claims made form: (i) the retroactive date must be shown and must be before the Effective Date, (ii) insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of Project construction, and (iii) if coverage is cancelled or non-renewed and not replaced with another claims made policy form with a retroactive date prior to the Effective Date, Owner must purchase, or require the provision of, extended period coverage for a minimum of three (3) years after completion of construction.
(f) Property: Owner shall maintain property insurance covering all risks of loss, including earthquake and flood (if required) for 100% of the replacement value of the Project with deductible, if any, in an amount acceptable to City, naming City as loss payee as its interests may appear.

2. Minimum Limits; Adjustments. Insurance shall be maintained with limits no less than the following:
(a) Commercial General Liability and Property Damage: $2,000,000 per occurrence and $5,000,000 annual aggregate for bodily injury, personal injury and property damage; provided however, with City’s advance written approval, subcontractors may maintain liability coverage with limits not less than $1,000,000 per occurrence, $2,000,000 annual aggregate. (b) Products and Completed Operations: $3,000,000 per occurrence/aggregate. (c) Commercial Automobile Liability: $2,000,000 combined single limit. (d) Employer’s Liability:

Bodily Injury by Accident - $1,000,000 each accident.

Bodily Injury by Disease - $1,000,000 policy limit.

Bodily Injury by Disease - $1,000,000 each employee.
(e) Professional Liability/Errors and Omissions: $2,000,000 per occurrence or claim.

If the policy provides coverage on a claims-made basis, the retroactive date must be shown and must be before the date of the Agreement or the beginning of the contract work.

Coverage limits, and if necessary, the terms and conditions of insurance, shall be reasonably adjusted from time to time (not less than every five (5) years after the Effective Date nor more than once in every three (3) year period) to address changes in circumstance, including, but not limited to, changes in inflation and the litigation climate in California. City shall give written notice to Owner of any such adjustments, and Owner shall provide City with amended or new insurance certificates or endorsements evidencing compliance with such adjustments within thirty (30) days following receipt of such notice.

3. Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be Page F-1.391
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declared to, and approved by, the City. Payment of all deductibles and self-insured retentions will be the responsibility of Owner. If the City determines that such deductibles or retentions are unreasonably high, either the insurer shall reduce or eliminate such deductibles or self-insurance retentions as respects the Indemnitees or Owner shall procure a bond guaranteeing payment of losses and related investigations, claims administration and defense.

4. Additional Requirements. The required general liability and automobile policies shall contain, or be endorsed to contain, the following provisions:
(a) The Indemnitees are to be covered as Additional Insureds as respects: liability arising out of activities performed by or on behalf of the Owner; products and completed operations of the Owner; premises owned, occupied or used by the Owner; or automobiles owned, leased, hired or borrowed by the Owner. The coverage shall contain no special limitations on the scope of protection afforded to the Indemnitees. Additional insured endorsements for the general liability coverage shall use Insurance Services Office (ISO) Form No. CG 20 09 11 85 or CG 20 10 11 85, or equivalent, including (if used together) CG 2010 10 01 and CG 2037 10 01; but shall not use the following forms: CG 20 10 10 93 or 03 94.
(b) All insurance shall be primary insurance as respects the Indemnitees. Any insurance or self-insurance maintained by the Indemnitees shall be excess of the Owner’s/contractor’s insurance and shall not contribute with it. (c) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the Indemnitees. (d) The Owner’s insurance shall apply separately to each insured against whom claim is made or suit is brought except, with respect to the limits of the insurer’s liability. (e) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the City.
(f) If any insurance policy or coverage required hereunder is canceled or reduced, Owner shall, within five (5) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, City may, without further notice and at its option, procure such insurance coverage at Owner’s expense, and Owner shall promptly reimburse City for such expense upon receipt of billing from City. (g) Owner agrees to waive subrogation rights for commercial general liability, automobile liability and worker’s compensation against Indemnitees regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with any construction on the Property to do likewise. Each insurance policy shall contain a Page F-1.392
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waiver of subrogation for the benefit of City. If any required insurance is provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs are included in such annual aggregate limit, such annual aggregate limit shall be three times the applicable occurrence limits specified above. (h) It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirement and/or limits shall be available to the additional insured. Furthermore, the requirement for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. For all liability insurance required by this Agreement, Owner (and Owner’s contractors, as applicable) shall obtain endorsements that name the Indemnitees as additional insured in the full amount of all applicable policies, notwithstanding any lesser minimum limits specified in this Agreement. This Agreement requires Owner (and Owner’s contractors, as applicable) to obtain and provide for the benefit of the Indemnitees, additional insured coverage in the same amount of insurance carried by Owner (or Owner’s contractors, as applicable), but in no event less than the minimum amounts specified in this Agreement. In the event that Owner (or Owner’s contractors as applicable) obtains insurance policies that provide liability coverage in excess of the amounts specified in this Agreement, the actual limits provided by such policies shall be deemed to be the amounts required under this Agreement. Without limiting the foregoing, the limits of liability coverage specified in this Agreement are not intended, nor shall they operate, to limit City’s ability to recover amounts in excess of the minimum amounts specified in this Agreement. (i) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

Menlo Park City CouncilDecember 6, 2022

Menlo Park City Council
December 6, 2022