Salinas City Council
August 6, 2024

21175, adopted June 6, 2017), and the Municipal Code (including standard specifications, design standards, and relevant public facility master plans adopted and published by the City), (ii) Exactions listed on Exhibit B to this Agreement, or elsewhere in this Agreement; and (iii) all other City laws that relate to or specify the -permitted uses of land or improvements, the density or intensity of use, the subdivision of land for development, that are existing and in effect on the Effective Date; and (iv) all those existi ng and approved permits, entitlements, agreements, and other grants of approval having force and effect on the Effective Date relating to the Project and Property, including without limitation their text, terms and conditions of approval. A list of Applica ble City Regulations, other than the Exactions and the Project Approvals, is set forth in Exhibit C to this Agreement. Exceptions to Applicable City Regulations include Uniform Codes (as defined in Section 1.1.41 and referenced in Section 2.3), and the application of New City Laws defined in Section 1.1.25) permitted under Section 2.4.

1.1.4 “CASP” shall mean and refer to the Central Area Specific Plan.

1.1.5 “Central Area Park Impact Fees” (CAPIF) shall mean the impact fee levied on development within the Central Area of the North of Boronda Future Growth Area for the purpose of funding the acquisition and the improvement of parks within the CASP.

1.1.6 “CEQA” shall mean the California Environmental Quality Act (California Public Resources Code Section 2100, et seq.), and the State CEQA Guidelines, (California Code of Regulations, Title 14, Section 15000, et seq.), as each is amended as of the Effective Date.

1.1.7 “City” shall mean the City of Salinas.

1.1.8 “City Council” shall mean the City Council of the City.

1.1.9 “City Planner” shall mean the officially designated city employee or their designee charged with the responsibility for the interpretation and administration of the Zoning Code, having th e authority provided in Section 37-10.160 of the Zoning Code. As defined in Section 37 -10.160 of the Zoning Code, the City Planner is the Community Development Director.

1.1.10 “Community Development Director” shall mean that city official designated by the City Manager with such title and any city official who is authorized by the City Manager to assume and carry out the duties of such official under the same or a different title.

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1.1.9 “Control” means the possession, directly or indirectly, of the power to cause the direction of the management and policies of any entity including but not limited to a limited liability company, a partnership, a joint venture, a trust, or a corporation, whether through the ownership of voting securities, by contract, or otherwise.

1.1.10 “Developers” shall mean Richardson, Mannina, Scagliotti, Pura, Probert & Codiroli and Hartnell College Foundation.

1.1.11 “Development Agreement Law ” shall have the meaning given in Recital A.

1.1.12 “Development Agreement Regulations ” shall have the meaning given in Recital A.

1.1.13 “Development Agreement Statute” shall have the meaning given in Recital A.

1.1.14 “ Boronda Road Congestion Relief Project” (the “Congestion Relief Project”) means the City-sponsored project to widen East Boronda Road into a four-lane roadway with two-lane roundabouts , landscaped median, and bike lanes to accommodate future (year 2064) traffic demands on East Boronda Road (including the build-out of the CASP area).

1.1.15 “Effective Date” shall mean the date determined under Section 1.2.1.

1.1.16 “Project EIR” shall have the meaning given in Recital J.

1.1.17 “Enacting Ordinance ” shall mean the Ordinance Approving this Agreement as first referenced in Recitals J, K and L of this Agreement.

1.1.18 “Exactions” shall mean exactions that may be imposed by the City as a condition of developing the Project, including but not limited to City Impact Fees, in-lieu payments, requirements for acquisition, dedication or reservation of land, obligations to construct on-site or off-site public and private improvements, whether such exactions constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, measures imposed for the protection of the public health or safety, or impositions made under Applicable City Regulations.

1.1.19 “Fiscal Impact Report” shall mean the report entitled “Fiscal Impact of Salinas’ WASP and CASP Future Growth Areas ” (EPS, July 26, 2018) commissioned by the City t hat analyzed, among other things, estimated costs associated with providing required public services to, and the revenues generated by, the Project.

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1.1.20 “Frontage Improvements” shall mean the public improvements made necessary by that development. Construction of frontage improvements includes 20-foot width of pavement, plus curb, gutter, sidewalk, landscaping, and sound wall (if required) and dedication of up to 33-feet of right-of-way.

1.1.21 “Force Majeure Event ” shall mean a n event that causes a delay in performance beyond the control of the Party claiming the same. For the purpose of this definition, a cause shall be beyond the control of the Party whose performance would otherwise be requir ed only if such cause would prevent or hinder the performance of such a requirement by any reasonable person similarly situated and shall not apply to causes peculiar to the Party claiming the benefit of a Force Majeure Event (such as the failure to order materials in a timely fashion). A Force Majeure Event shall include, without limitation, any of the reasons set forth in this Section 1.1.21: (a) delay attributable to acts of God, accident, strikes or labor disturbances or disputes, (b) delay attributable to the actions or inaction of any governmental agency including the City that unreasonably delays development of the Property, (c) delays of the City in processing any Project Approval beyond the period of time permitted by law or required by this Agreement for the processing of such Project Approval, (d) delay attributable to inclement weather, earthquake or other natural disaster resulting in suspension of Project work for safety purposes, e.g., extended periods of heavy rainfall, (e) delay attributable to inability to procure or a general shortage of labor, equipment, materials or supplies in the open market, rationing or restrictions on the use of utilities, or failure of transportation (but not attributable to a m ere increase in price unless such price is commercially unreasonable and will extend for a period of time under the circumstances), (f) delay caused by acts of a public enemy, war, terrorism, insurrections, civil disturbance, riots, mob violence, sabotage, malicious mischief, or casualty, (g) delay attributable to a development moratorium (including but not limited to a sewer or water moratorium) approved by the City or other entity having jurisdiction, (h) delay caused by litigation or administrative actio n preventing or delaying the approval or development of the Project or adversely affecting the ability of the City or other public entity or the Developer or its successors or assigns to obtain financing for the Project, (j) delay attributable to local, state or federal laws or regulations (other than those expressly permitted by this Development Agreement), (k) delay attributable to governmental agencies in issuing permits or approvals or taking other actions required for development of the Project, (l) delay attributable to the commencement of circulation of an initiative or referendum petition or the filing of any court action to set aside or modify this Development Agreement for the Project Approvals or any Subsequent Project approvals, or (m) delay attributable to insufficient water available to serve the Project or any phase, increment or portion thereof, or (n) any delay claimed by a Party in the performance of

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any term, covenant, condition or obligation under this Agreement caused by a default of the other Party.

1.1.22 “General Plan” shall mean the City of Salinas General Plan adopted September 17, 2002.

1.1.23 “Moratorium” shall mean any action by or on behalf of the City or another public entity having jurisdiction (including but not limited to action taken by virtue of a referendum or initiative) which delays or halts the processing, implementation or approval of subdivision maps, building permits or other Project Approvals.

1.1.24 “Municipal Code” shall mean the City of Salinas Municipal Code.

1.1.25 “New City Laws ” shall mean any ordinances, resolutions, orders, rules, official policies, standards, specifications or other regulations, which are promulgated or adopted by the City Council or the City’s electorate (through their power of initiative) after the Effective Date. The application of New City Laws to the Project shall be governed by Section 2.4.

1.1.26 “Non-Curable Default” shall mean a default for which a cure period shall not exist, as set forth in Section 4.1.2.

1.1.27 “Parcelization Map” shall mean a parcel map processed administratively for the purpose of creating master parcels for sale, financing or phasing purposes and on which no development may occur without further subdivision or other entitlement approval by the City.

1.1.28 “Park Impact Fees” shall mean and refer to City -wide impact fees levied on all new development in the City of Salinas for the purpose of funding the acquisition and improvement of new and existing parks within the City of Salinas, including the North of Boronda Future Growth Area. The term “Park Impact Fees” shall not include the Central Area Park Impact Fee, which is defined in Section 1.1.4, above.

1.1.29 “Planning Commission” shall mean the Planning Commission for the City of Salinas.

1.1.30 “Project” shall mean the project commonly known as the “Central Area Specific Plan” which is proposed to be constructed on the Property as more fully described in Recital C.

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1.1.31 “Project Approvals” shall mean the permits and approvals granted by the City for the Project, including each Subsequent Project Approval, as set forth in Recital D.

1.1.32 “Property” shall mean the real property described in Recital B.

1.1.33 “Processing Fees” shall have the meaning given in Section 2.8.2.

1.1.34 “Rights of Access ” shall mean the right of developer to enter or encroach on certain public improvements as set forth in Section 2.10.8.

1.1.35 “Specific Plan” shall mean the Central Area Specific Plan as adopted by the City Council, and amended from time to time.

1.1.36 “Subsequent Project Approvals ” shall have the meaning given in Recital E.

1.1.37 “Subdivision Map Act ” shall mean that legislation set forth in California Government Code Sections 66410 through 66499.58.

1.1.38 “Tentative Map” shall mean one or more tentative subdivision maps, whether a Parcel Map or not, for the Property, including any conditions of a pproval applied to such map. .

1.1.39 “Term” shall have that meaning as set forth in Section 1.2.2 of this Agreement.

1.1.40 “TFO” shall mean the City of Salinas Traffic Impact Fee Program (Traffic Fee Ordinance) with its implementing resolutions.

1.1.41 “Uniform Codes” shall mean any and all codes and regulations applicable to improvements, structures, and development in the City , and the applicable version or revision of such codes and regulations as modified and adopted by the City.

Uniform Codes includes the Uniform Building, Plumbing, Ele ctrical, and Fire Codes, City standard construction specifications and details, City grading standards, Title 24 of the California Code of Regulations, and similar codes and regulations relating to Building Standards, in effect at the time of approval of the appropriate permit.

1.1.42 “Vested Elements” shall have that meaning as set forth in Section

2.1.1 of this Agreement.

1.1.43 “Central Area ” shall mean the portion of the North of Boronda

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Future Growth Area bordered by Boronda Road on the south, Natividad Road on the west, Russell Road Extension on the north, and Constitution Blvd on the east, being the land regulated by the Central Area Specific Plan.

1.2 Effective Date and Term.

1.2.1 The Effective Date of this Agreement is December 31, 2020.

The term of this Agreement shall commence upon the Effective Date and continue for a period of twenty (20) years from the Effective Date (the “Original Term”), unless the Term is terminated, modified, or extended by the terms of this Agreement. The Original Term may be extended only upon the mutual written consent of the Parties and only for five (5) year periods (“Extended Term”). Consent for the Extended Term shall be granted by the City to Develo pers demonstrating good faith compliance as described in Section

4.5, Annual Review. Developers may request the Extended Term within two (2) years of the current term expiration. Requests for an Extended Term must be submitted in writing with an accompanying City issued “Notice of Compliance,” (Section 4.5.4) issued for the previous year, In no event shall there be more than two (2) Extended Terms such that the total of the Original Term and Extended Terms may not exceed thirty (30) years in total.

The Original Term has been established by the Parties as a reasonable estimate of the time required to develop and to build out the Project, taking into consideration the complexity of the Project, anticipated actions or other public agencies, normal market and economic conditions, and other contemplated potential circumstances which could affect the timing of development.

1.2.2 In the event that a Developer, within its individual portion of the Property, has not (i) conducted site improvements and grading over at least ten percent (10%) of its Property pursuant to permits issued by the City; (ii) provided documentation to the satisfaction of the City that Developer has installed infrastructure or improvements totaling more than three million dollars ($3,000,000) ; or (iii) in the event that three (3) or more Developers, collectively, have not, pursuant to the formation of an assessment district for the purpose of financing Project infrastructure, had assessments levied totaling $15 million in the aggregate prior to the tenth (10 th) anniversary of the Effective Date, the Term of this Agreement, as to any single Developer pursuant to subsections (i) or (ii) herein, or as to all Developers pursuant to subsection (iii), shall end fifteen (15) years after the Effective Date without the opportunity for extension, unless otherwise mutually agreed to in writing by the Developer and City. Developers shall each demonstrate compliance with this provision on or before the tenth (10 th) Annual Review , per Section 4.5 of this Agreement. In accordance with Government Code Section 66452.6(a), the term of any Tentative Map, including modifications or amendments thereto, relating to the Property or any portion thereof

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shall automatically be extended to and until the later of the following: (1) the duration of this Agreement ; or (2) the expiration of the T entative Map in accordance with the Subdivision Map Act without reference to any extension given under this Agreement.

1.2.3 If this Agreement terminates for any reason before expiration of rights given under the Project Approvals or any Tentative Map pursuant to the Subdivision Map Act, such termination shall not affect the Developers’ rights and obligations to proceed in accordance wi th the law governing such Project Approvals and/or Tentative Map, nor shall it affect any other covenants of the Developers specified in this Agreement to continue after the termination of this Agreement. If this Agreement terminates for any reason, including expiration of the Term, the terms and conditions of this Development Agreement, and Project approvals shall continue to govern the Project unless the City has previously specifically amended such rules, regulations and policies until such time as the City amends such rules, regulations and policies.

1.2.5 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.

1.2.6 This Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement, without the execution or recordation of any further document, when a final certificate of occupancy has been issued for the building(s) on the lot. Termination of this Agreement for any residential dwelling lot shall not in any way be construed to terminate or to modify any assessment district, fee district, public financing district, special tax district, tax and/or any Mello Roos Community Facilities District lien affecting such lot at the time of termination.

1.2.7 Notwithstanding anything to the contrary in this Agreement, the term of any Permit Approval shall not include the period of time during which any moratorium, lawsuit, referendum, initiative or other legal challenge involving the Permit Approval was or is pending. If this Agreement or a Project Approval is unsuccessfully appealed or otherwise legally challenged, the term of this Agreement shall be extended until such appeal or legal challenge is finally resolved or adjudicated (including the expiration of time for further appeals). In addition, the term may be extended for a reasonable time upon the request of the Developer with the consent of the City . The Developers understand and agree that the City does not have authority or jurisdiction over another public agency’s authority to impose a moratorium.

1.2.8. Execution and Recording. The Developers have executed and acknowledged this Agreement. Not later than ten (10) days after the Effective Date, the

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City Clerk will cause recordation of this Agreement with the Monterey County Recorder against the Property, pro vided that a referendum applicable to the Enacting Or dinance has not been timely submitted to the City.

1.3 City’s Police Power. The Parties understand, acknowledge, and agree that the limitations, reservations, and exceptions contained in this Agreement are intended to reserve to the City that part of i ts police power which cannot be limited by contract and this Agreement shall be construed to reserve to the City that part of its police power which cannot be restricted by contract.

SECTION 2

DEVELOPMENT OF THE PROPERTY

2.1 Vested Elements.

2.1.1 The permitted uses of the Property, the density or intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, the subdivision of land and requirements for infrastructure and public improvements, the gen eral location of public utilities, and other terms and conditions of development of the Property shall be governed by the Project Approvals, Applicable City Regulations and this Development Agreement (collectively “ Vested Elements”), except as expressly provided in this Agreement.

2.1.2 The Developers shall have a vested right to develop the Property in accordance with the Vested Elements subject to the terms and conditions of this Agreement and also subject to a referendum that specifically overturns the City’ s approval of the Project Approvals or Subsequent Project Approvals.

2.2 Applicable City Regulations . Except as may otherwise be specifically provided in this Agreement, the City shall have the right to regulate the development of the Property and uses within the Project pursuant to the Applicable City Regulations if, and only to the extent, such regulations do not conflict with or are not inconsistent with the Project Approvals or the Vested Elements.

2.3 Uniform Codes. In the construction of the Project, each particular improvement shall be subject to all Uniform Codes in force and effect when a building, grading or other application for a building permit or equivalent permit is granted by the City.

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2.4 Applicability of New City Laws.

2.4.1 New City Laws (including amendments to Applicable City Regulations) shall not be applicable to the Property unless such New City Laws are (a) generally and uniformly applicable on a city -wide basis and not otherwise inconsistent with the Vested Elements or terms of this Agreement or (b) meet one of the following requirements: (i) they are mandated by State or Federal law pursuant to Section 2.5; or (ii): they are imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code Section 8558 , or a finding that an otherwise permitted use represents a current and immediate threat to public health, safety or welfare pursuant to Government Code Section 65858. Examples of New City Laws that would be generally and uniformly applicable on a city-wide basis and applicable to the Property pursuant to subdivision (a) of this section are storm water utility programs, rent control regulations, rental registry and/or inspection programs, and accessory-dwelling unit restrictions.

Nothing herein shall be construed to limit the authority of the City to adopt ordinances, policies, and regulations which have the legal effect of protect ing persons or property from conditions which create a health, safety, or welfare risk.

To the extent any future changes in the General Plan, Zoning Code, or any future rules, ordinances, regulations, or policies are not inconsistent with the terms and the conditions of the Central Area Specific Plan and this Agreement, such future changes in the General Plan, Zoning Code, or such future rules, ordinances, regulations, and policies shall be applicable to the Property.

A Developer, by giving written notic e to the City, may elect to have all or part of the Property subject to any New City Laws that are otherwise not applicable to the their portion of the Property under this Section . In the event a Developer so elects, the Developer shall provide written notice to the City and the other Developers of that election (such notice to be provided pursuant to this Agreement) and thereafter such New City Law shall be deemed part of the Applicable City Regulations applicable to that Developer. Such notice shall be in a form provided by the City Attorney which notice shall be recorded and which shall contain a copy of the New City Law which is being made applicable to a portion of the Property.

2.4.2 Developer shall have the right to challenge the application under subsections (a) and (b) of Section 2.4.1 of New City Laws to the Project. If Developer chooses to challenge the application of a New City Law to the Project , Developer shall give written notice to th e City Attorney in accordance with Section 6.11 of this Agreement. Developer’s written notice shall inform the City of the factual and legal

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reasons why Developer believes the City cannot apply the New City Law to the Project consistent with the Vested El ements and this Agreement. The City shall respond to Developer’s notice within thirty (30) days of receipt of such notice. Thereafter, the Parties shall meet and confer within thirty (30) days of the date of Developer’s receipt of the City’s response with the objective of attempting to arrive at a mutually acceptable solution to this disagreement. If no mutually acceptable solution is reached at the conclusion of the meet -and-confer period, the Parties may initiate dispute resolution proceedings in accord ance with Section 4.4 below, or Developer may initiate a legal action or proceeding challenging such application. If it is determined at the conclusion of such dispute resolution process or legal action that such New City Laws apply to the Project, and if such New City Laws have the effect of substantially and materially preventing development of the Project in accordance with the Vested Elements (i) the Parties shall process an amendment to this Agreement in accordance with the Development Agreement Law, and/or (ii) the Parties shall amend the Project Approvals or amend the Applicable City Regulations without amending this Development Agreement to allow the Project to be built as originally intended.

2.4.3 There shall be a presumption that any New City Law s affecting the Project and having any of the following effects shall be considered inconsistent with the Vested Elements and this Agreement:

2.4.3.1 Limiting or reducing, directly or indirectly, the total number of residential units in the Project, the mix of residential types in the Project, or the maximum number of residential units allocated to an identified ownership interest within the Project.

2.4.3.2 Limiting or reducing the total retail square footage in the Project or the amount of retail square footage allocated to an identified ownership interest within the Project.

2.4.3.3 Limiting or materially changing the location of buildings, parking, grading, or other improvements on the Property.

2.4.3.4 Imposing new, modified, increased or additional dedication requirements.

2.4.3.5 Imposition of a Moratorium. This limitation on the City shall not apply when a Moratorium meets the requirement s of Section 2.4.1 for application of New City Laws to the Property; provided that the application of any such Moratorium to the Property shall be limited in both scope and time to only effectuate the purpose for which it was imposed. The Developers understand and agree that the City

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does not have authority or jurisdiction over another public agency’s authority to grant a moratorium.

2.4.3.6 Except as required in Section 2.13 (Inclusionary Housing), imposing requirements for dedication, sale, or other conveyance of residential units and/or lots for less than market price as determined by the Developers.

2.4.3.7 Fees, charges, or exactions that have the same effect as a Development Impact Fee , as defined in Chapter 9, Article V of the Salinas Municipal Code and/or as shown on Exhibit B and Table 1 to Exhibit B.

2.4.3.8 Materially frustrating the intent or purpose of the Vested Elements, except with respect to increased costs. Increased costs may be considered by the City when determining whether the intent or the purpose of the Vested Elements have been materially frustrated by a New City Law, but increased costs shall not be a sole determining factor.

2.5 As provided in Government Code Section 65869.5, this Agreement shall not preclude the application to the Property of changes in laws, regulations, plans, or policies, to the extent that such changes are specifically mandated and required by changes in state o r federal laws or regulations. In the event State or Federal laws or regulations enacted after the Effective Date of this Development Agreement or action by any other governmental agency other than City prevent or preclude compliance with one or more provi sions of the Vested Elements or this Development Agreement, or require changes in plans, maps or permits approved by City, this Development Agreement shall be modified, extended or suspended as may be necessary to comply with such State or Federal laws or regulations or the regulations of such other governmental agency.

Immediately after enactment of any such new law or regulation, the Parties shall meet and confer in good faith to determine the necessity of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Development Agreement. It is the intent of the Parties that any such modification or suspension be limited to that which is necessary, and to preserve to the extent possib le the original intent of the Parties in entering into this Development Agreement. If the Parties are unable to reach agreement on the modification, then either party may submit the issue to dispute resolution pursuant to Section 4.4 or may terminate this Agreement.

To the extent that any actions of federal or state agencies (or actions of other governmental agencies, including the City, required by federal or state agenc ies, or actions of the City taken in good faith to prevent adverse impacts upon the City by actions

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of federal, state, or other governmental agencies) have the effect of preventing, delaying, or modifying the development of the Property or any portion ther eof, the City shall not in any manner be liable for any such prevention, delay, or modification.

2.6 Processing and Development

2.6.1 The Tentative Map includes a condition as required by Government Code Section 66473.7(b)(1). Final maps shall comply with Section 66473.7. This provision is included in this Agreement to comply with Section 65867.5 of the Development Agreement Statute. City agrees that Developer may file and process tentative maps or vesting tentative maps , including Parcelizati on Maps, in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code, as the same may be amended from time to time, and the Applicable City Requirements. If final maps are not recorded for an entire parcel before such tentative map(s) would otherwise expire, the term of such tentative map(s) automatically shall be extended for the term of this Agreement or the term otherwise applicable to such map if this Agreement is no longer in effect. The term of any other permit (except building permits which shall not be extended), or other land use entitlements approved as a Project Approval or Subsequent Project Approval shall automatically be extended for the longer of the Term of this Agreement (incl uding any extensions) or the term otherwise applicable to such Development Approval or Subsequent Project Approval if this Agreement is no longer in effect.

2.6.2 The City shall promptly accept, process, review and act upon all applications for permits and approvals for the Project, in a professional, timely manner including Subsequent Project Approvals under Section 2.9 hereof. Upon request of the Developer, the City shall inform the Developer of the necessary application requirements for any requested City approval or requirement relating to the Project.

2.6.3 City and Developer shall cooperate in processing all applications for permits and approvals for the Project, provided, however, that such cooperation shall not include any obligation, on the City’s part, to incur any un -reimbursed expense, and the City shall be entitled, subject to the terms of this Agreement and Developer's rights hereunder, to exercise all discretion to which it is entitled by law in processing and issuing any permits and approvals for the Project.

2.6.4 The Developers and the City shall comply with the time frames set forth in the Subdivision Ma p Act, and, if applicable, the Permit Streamlining Act (Government Code sections 65920 through 65963.1). The City shall endeavor to make sure that adequate staff is available to process the Developers’ applications for permits and

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approvals within the time periods required by the Permit Streamlining Act and the Developers shall pay the City Processing Fees with respect thereto. If requested by the Developers (or any of them), the City in its sole direction may retain additional staff and overtime staff assistance or staff consultants as may be necessary to timely process some or all applications for permits and approvals for the Project on an expedited schedule. If the Developers request that City purs ue such expedited processing, City agrees to provide the Developers with reasonable prior notice of the amount and due date of the additional costs associated therewith. If the City determines to retain additional staff or to provide overtime staff assistance or staff consultants, the staff and the consultants shall be at the sole selection of the City and shall be paid for at the sole cost and expense of the Developers. Upon the City’s written request, the Developers shall advance a deposit sufficient to cover the City’s estimated costs . Such deposit shall be replenished, as necessary, from time to time, to assure that the City shall not bear any of the costs associated with additional staff, overtime, or staff consultants.

2.6.5 The Parties shall cooperate and diligently work to implement any zoning, tentative map, final development plan and/or land use, grading or building permits or approvals which are necessary or desirable in connection with the development of the Project in substantial conformance with the Vested Elements.

2.6.6 Notwithstanding any administrative or judicial proceedings, initiative or referendum concerning any of the Project Approvals, City shall process applications for permits and approvals as provided herein to the fullest extent allowed by law and Developer may proceed with development of the Pro ject pursuant to the Project Approvals or Subsequent Project Approvals to the fullest extent allowed by law .

City shall be entitled, subject to the terms of this Agreement and Developer’s rights hereunder, to exercise all discretion to which it is entitled by law in processing and issuing any permits and approvals for the Project.

2.6.7 The term of any Permit Approval shall not include the period of time during which any moratorium, lawsuit, referendum, initiative or other legal challenge involving the Permit Approval was or is pending.

2.7 Development Timing.

The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Property will be developed or the order in which each increment of the Project will be developed. Such decisions depend upon numerous factors which are not wi thin the control of the Developer, such as market conditions and demand, interest rates, absorption, and other similar factors. Buildout of the Project, and the resulting need for

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public service facilities, will take many years. Development of the Project may be phased as homebuilding goes forward and creates the need for additional capacity. In particular, and not in any 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 Parties’ desire to avoid that result by acknowledging that, unless otherwise expressly so provided in this Agreement, Developer shall have the vested right to develop the Project in such order and at such rate and at such times as Developer deems appropria te in the exercise of its business judgment provided Developer is in compliance with the Project Approvals, prov ided, however, nothing herein shall override any phasing or timing for development set forth in a Parcelization Map conditions of approval, Mitigation Monitoring and Reporting Program (the Central Area Specific Plan, Salinas General Plan FEIR (2002), and Final Supplement to the Salinas General Plan Final Program FEIR 2007) mitigation measures, and Section 9.4 and other applicable sections of the Specific Plan.

2.8 Property Taxes; Processing Fees.

2.8.1 The Property shall remain subject to general property taxes, as well as special taxes, assessments, and fees, existing as of the Effective Date and to increases in such taxes, assessments, and fees permitted by law and Developer shall be obligated to incur Exactions in addition to those set forth in Exhibit B required to be imposed pursuant to State or Federal law, under the provisions of Section 2.5.

2.8.2 Developer shall be obligated to pay all applicable application and processing fees, permitting fees, including development review applications, plan check, map review, inspection and monitoring fees and fees of outside consultants, for land use approvals, grading and building permits, temporary use of land permits, and other administrative and ministerial permits, and other permits and entitlements(“Processing Fees”) in connection with the Project established and in effect at the time of application processing.

2.9. Subsequent Project Approvals . City may deny an application for a Subsequent Project Approval if such application is incomplete or otherwise does not comply with this Agreement or Applicable City Regulations or is materially inconsistent with the Project Approvals. The City may approve an application for a Subsequent Project Approval subject to any conditions reasonably necessary to bring the Subsequent Project Approval into compliance with this Agreement or Applicable City Regulations, or as necessary to make the Subse quent Development Approval consistent with the

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Project Approvals or if an amendment has been previously approved by the City to allow the requested deviation . If City denies any application for a Subsequent Project Approval, City shall specify in writing the reasons for such denial.

2.9.1. Nothing herein shall limit the ability of the City to require the necessary reports, analyses, or studies to assist in determining whether any of the requested Subsequent Approvals are consistent with applicable law and this Agreement.

2.10 Streets and Related Improvements.

2.10.1 The City had adopted a Traffic Improvement Fee Program (TFO) in recognition that the traffic impacts of new development are not limited to the immediate vicinity of the new development, but have an impact upon the major streets throughout the city and in part to ensure that new development contributes toward offsettin g the burden it imposes upon the City’s traffic system.

The City last updated its Traffic Improvement Fee Program (TFO) on January 19, 2010 (Resolution No. 19802). The City intends to update the TFO when it updates its General Plan, which is anticipated to begin in early 2020 (“TFO Update”). The TFO Update will be comprehensive and while the City cannot commit to a particular date by which the General Plan update and TFO Update will be completed, to a particular result, or to a particular approach or methodology , the TFO Update may take into consideration a number of factors including, but not limited to, cost estimates and elimination of the two-tier fee structure. Except as otherwise specifically set forth in this Agreement, in their development of the Project the Developers shall comply with the TFO. However, when the TFO update is complete, the Developers may choose, at their discretion, to initiate an amendment to this Agreement pursuant to Section 3 of this Agreement to reflect changes resulting from the TFO Update. The Developers may also, at their discretion, request that the City form an assessment district or adopt a plan area fee as additional mechanisms to finance construction of the roadways and related improvements necessary for the Project.

2.10.2 The City plans to complete the Congestion Relief Project along a portion of the frontage of the CASP as a four-lane expressway with landscaped median, turn lanes, bike lanes, roundabouts, and traffic signage. The Congestion Relief Project will also include a widened four-lane bridge over Gabilan Creek within the Central Area Specific Plan (CASP). The Congestion Relief Project will include roundabouts at the intersections of Boronda Road with Natividad Road and with Independence Boulevard.

The Congestion Relief Project (which consists of four -lanes, landscaped median, turn lanes, bike lanes, roundabouts, and traffic signage) will be paid from a variety of sources

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including TFO funds, supplemented with Measure X funds, Senate Bill 1, potential grant funds, and other City revenues. Developers’ contribution to the cost of the Congestion Relief Project shall include payment of TFO fees. Developers shall also be responsible for related improvements along the Boronda R oad frontage including the Frontage Improvements (curb and gutter, sound wall, sidewalk, landscaping, street lighting, and right-of-way dedication ). The Developers’ responsibility shall also include the landscaping, irrigation, and maintenance of the landscaping in the ultimate third lane (10-feet) buildout of Boronda Road. (Exhibit D)
The Parties understand and acknowledge that completion of the Congestion Relief Project along the frontage of the CASP is important to the completion of development within this Project Area. The Parties further understand and acknowledge that the City cannot predict when or the rate at which the Congestion Relief Project will be commenced or will be completed. When the Congestion Relief Project will begin and will be completed depend upon numerous factors, not all of which are within the control of the City, such as weather, cost, challenges to the project, and similar factors. Consequently, the City cannot commit to a date certain by which its work on the Congestion Relief Project will begin or will be completed; however, in acknowledgement of the importance of the Congestion Relief Project to the Project, notwithstanding what is otherwise provided in Section 1.2.2 of this Agreement, in the event the City has not completed the Congestion Relief Project from McKinnon Street to Natividad Road within seven (7) years of the Effective Date, the Original Term of this Agreement and the deadline for the Developers to meet their Project improvement obligations under Section 1.2.2, shall automatically be extended for five (5) years for any of the Developers who are not at that time in default of this Agreement.

2.10.3 The following streets within the Central Area may by action of the City Council be designated as Major Thoroughfares: Collector Feature Street Section 3 (Road C), a segment of the Southerly Greenway, Collector Feature Street Section 4 (Road G), a segment of the Northerly Greenway, Boronda Road between McKinnon Street and Natividad Road, San Juan Grade Road between Boronda Road and the Russell Road Extension, Russell Road between San Juan Grade Road and Natividad Road, Rogge Road between the westerly boundary of the high school site and Natividad Road, and El Dorado Drive and McKinnon Street within the Project . Access to abutting lots and on - street parking are not allowed on these streets.

2.10.4 Improvements for other streets or street segments which are required by the Project EIR to mitigate cumulative impacts, but which are not included within the TFO shall be paid for by the Developers on a fair-share basis. These fair-share

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payments shall be indexed annually and shall be paid by the Developers in the same manner and at the same time that TFO payments are made.

2.10.5 All of the other interior streets not designated as major thoroughfares within the CASP will be constructed and paid for by Developers in accordance with the street sections contained in Section 5 and Appendix K of the Specific Plan.

2.10.6 CASP streets shall be constructed in phases on a subdivision -by- subdivision basis in conjunction with the review and approval of individual tentative subdivision maps. Except for the streets within the VC -A and VC -B districts s treets within the CASP shall be dedicated as part of the public street system, shall be accepted by the City upon completion, and shall be maintained by the City through an assessment district upon expiration of the Developer's one-year warranty period.

2.10.7 When a Developer applies for a building permit and there are still traffic impact fees due to the City after applying all traffic fee credits assigned to that Developer, the Developer shall pay the difference at the then applicable rate. If the traffic impact fee credits issued on all of the Developer’s buildings in the Project exceed the total traffic impact fees due, the City shall repurchase the excess traffic impact fee credits from the Developer at the then current rate.

2.10.8 The City shall grant to Developer Rights of Access subject to City's standard conditions for such Right of Access as may be necessary across, under, and over the surface and subsurface of all City streets as may be required from time to time for construction and installation of the following improvements:

2.10.8.1 Gas, electricity, water, wastewater, drainage, telephone, cable media, computer, security, telecommunications, and all other utilities, facilities and like improvements (including without limitation their related conduits, wires, lines, pipes, mains, pumps, meters and other structures, stations and improvements) necessary or desirous to the Project; and

2.10.8.2 Construction, paving, striping, cleaning, and repairing streets within the Project.

2.11. Parks and Recreation Facilities

2.11.1 Public Parks Provided. As shown in Exhibit A, the Project shall provide a total of approximately 44.06 net acres of parkland (“the CASP Parkland”) to

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meet the General Plan and Subdivision Ordinance requirement of 3 acres of developed parkland per 1,000 residents assuming buildout with 3.67 people per dwelling unit. The City will determine the final design of public park facilities, including the number and the type of sports fields that can be accommodated within the park configuration and acreage in accordance with City standards. Neighborhood parks vary from ±2.0 acres to ±11.6 acres in size. Small parks are typically less than two acres in size, but in no case less than 0.5 acres in size. Net acreage of each park will be refined in connection with tentative subdivision map review. The location, size and type of each park shall be substantially as shown in Table 4-1 and Figure 4-1 of the CASP. The design standards for the CASP’s parks shall be substantially as described in Section 2.6.5 of the CASP. No additional dedication or reservation of park land or open space, or the payment of any additional in lieu fee or exaction for park or open space land, shall be required of the Project.

2.11.2 Park Improvements. Improvements to dedicated parkland made by a Developer in accordance with the City’s Park and Sports Facility Standards (May 2018) as approved by the Library and Community Services Director shall be deemed consistent with the General Plan, the Specific Plan, the City's park and sports facility standards and any other applicable standards adopted by the City.

2.11.3 Park Improvement Fees. The City shall adopt, and Developers shall pay, a new Central Area Park Improvement Fee (“CAPIF”) in an amount sufficient to fund the acquisition of designated CASP parkland, the cost of street improvements abutting such designated parkland, and the cost of park improvements to equip such parklands within the CASP in accordance with adopted park improvement sta ndards.

Developers who construct park improvements in accordance with adopted park improvement standards shall receive Park Improvement Fee credits in the amount of the actual cost of such improvements as constructed (hard and soft costs), not to exceed the per acre cost as calculated in the Park Facilities Development Impact Fee Update Study (Willdan, November 5, 2019) referred to herein as he CAPIF Fee Study, by type of park constructed. The fee credit for land will be $250,000 per acre and will be adjusted annually by the construction cost index change as published by the Engineering News Record in April along with all of the other development impact fees. The fee credits for the construction soft cost will be limited to the percentages of each category that were used in the CAPIF Fee Study, provided however, that costs actually be incurred but assigned to a “contingency” category may be converted to hard costs at the option of the Developer. CAPIF fees collected will be accounted for in a separate fund with Park Impact Fees so that, to the extent feasible, sufficient funds are available to pay fee credits as accrued . If sufficient funds are not available in the CAPIF fund to reimburse the Developer as provided herein, reimbursement will not occur until such time as sufficient funds become available. In the case of parkland purchased by the City from third parties,

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or park improvements constructed or installed by the City, the cost recovered by the City from CAPIF Fees or from the CAPIF fund shall be limited to the acquisition cost and park improvement costs (hard and soft costs) calculated in the CAPIF Fee Study by type of park constructed, and any cost overage shall not be charged to the Developers.

2.11.4 Timing of Park Dedications and Improvements. Dedications of CASP parkland and improvements to CASP parkland shall be coordinated on a subdivision-by-subdivision basis with the development of the overall CASP to the extent feasible to assure the availability of recreational facilities to serve the residents of the area. Developers shall not be required to dedicate or improve designated park land until such park land is included in a recorded final subdivision map. The City shall coordinate its acquisition of parklands and construction of park improvements funded with Park Impact Fees so that, to the extent feasible, such improved parklands are available for use at the time of issuance of the first certific ate of occupancy for residential development for which Park Impact Fees have been paid. 2.12. School Sites.

2.12.1. The Project shall include sites for t wo (2) new elementary schools (±12 acres each) and one (1) new middle school (± 18 acres).

2.12.2. Sites for new schools within the Central Area may be provided pursuant to a written agreement between Project Developers and the school districts. In the absence of such agreement, school sites shall be reserved by the Developer and acquired by the school district in accordance with Section 31-804 et seq. of the Salinas Municipal Code.

2.12.3. Responsibility for development of public schools, including the acquisition of school sites and the construction of school facilities, lies with the respective school districts.

2.12.4. Project Developers and the City shall cooperate with school districts to facilitate joint use of school sites and facilities.

2.12.5. If not needed for school purposes, as determined by the applicable school district, school sites may be developed for residential use up to a maximum of fifteen (15) units per net residential developable acre.

2.12.6. The Project Developers shall be responsible for the payment of school impact fees pursuant to Government Code Section 65996 as specified by the Project EIR as full and complete school facilities mitigation.

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2.13. Inclusionary Housing.

2.13.1 Inclusionary Housing Ordinance. All residential development within the Project shall comply with the City’s Inclusionary Housing Ordinance embodied in Ordinance No. 2594, as adopted June 6, 2017, and Resolution No. 2567 (collectively the “Inclusionary Ordinance”) and the Guidelines adopted pursuant thereto. For those Developers that choose to pay in lieu fees (for sale and rental) the in-lieu fees shall be set at the amount pursuant to the Inclusionary Housing Ordinance as of the Effective Date of this Agreement. The housing in lieu fees and/or rental housing impact fees will be adjusted by the percentage increase in the Engineering News Record (ENR) cost index, based on the most current April edition. The Inclusionary Ordinance is attached hereto as Exhibit E.

2.14. Infrastructure Financing.

2.14.1 Level of Municipal Services . In determining the level of improvement and service to be applied to and required by the Project, the City, the City’s consultants, the FGA Developers and their consultants shall apply the factors and assumptions set forth in the City of Salinas Public Facilities Impact Fee Study (February 2014, adopted April 8, 2014) (the “Nexus Study”) and in the Fiscal Impact Report.

2.14.2 City Development Impact Fees . Except as provided in Sections

2.14.2.1 or 2.14.2.2 of this Agreement, the Developers shall be obligated to pay only those City Development Impact Fees as set forth in Exhibit B attached and incorporated herein by this reference . The City may not impose or exact additional or increased City Development Impact Fees on the Developers or the Project.

2.14.2.1 State and Federal Fees ; Permits and Approvals .

Notwithstanding Section 2.14.2, Developer shall be obligated to pay fees that may be imposed pursuant to State or Federal law (subject to Section 4.6 of this Agreement). The Developers shall also comply with lawful requirements of, and obtain all permits and approvals required by other local, regional, state, and federal agencies having jurisdiction over the Developers’ activities in furtherance of this Agreement. The Developers shall pay all required fees when due to federal, state, regional, or other local government agencies other than the City and acknowledge that the City does not control the amount of such fees.

2.14.2.2 Subsequent Project Approvals and City Processing Fees .

This Development Agreement shall not limit the authority of the City to charge any and all lawfully enacte d City Processing Fees required for Subsequent Project Approvals, including application, inspection and monitoring fees, fees for staff and consultants used by the City in connection with processing permit and other approvals, and fees for

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preparation of e nvironmental analysis under CEQA, which are in force and effect on a city-wide basis and are in compliance with Government Code Section 66014.

2.14.2.3 Other Agency Impact Fees. Notwithstanding the provisions of Section 2.14.2, Developer shall be obligated to pay school impact fees imposed pursuant to the provisions of Government Code 65995 through 65996 and Education Code sections 17620 through 17626 and traffic impact fees imposed by the Transportation Agency for Monterey County (TAMC), in addition to whatever other agency impact fees may be imposed and applicable to the Project through the Term of this Agreement. Such fees shall be payable upon issuance of building permits, or at such other time as may be negotiated with the applicable agency.

2.14.2.4 Exactions. Except as expressly provided in this Agreement or mandated by state or federal law, the City shall not impose any additional development impact fees or charges or require any additional dedications or improvements through the exercise of the police power or otherwise, with the following exception: The City may impose reasonable additional fees, charges, dedication requirements as conditions of the City’s approval of an amendment to the (i) Project Approvals, (ii) Subsequent Project Approvals, or (iii) this Agreement, which amendment is either requested by the Developers or agreed to by the Developers; and

2.14.3 Mitigation Measures. Nothing contained in this Agreement shall relieve Developer of the obligation to implement feasible mitigation measures identified in the Project EIR for the purpose of mitigating or avoiding significant environmental effects of the Project; provided, however, that City retains the authority to adopt substituted measures or findings of overriding circumstances as provided by CEQA and the CEQA Guidelines.

2.14.3.1. Agricultural Mitigation. The City’s Agricultural Land Preservation Program (ALPP) was adopted on April 8, 2008 (Resolution No. 19422). The CASP, as part of the Salinas Future Growth Area Annexation and Sphere of Influence (SOI) Area, is a “GSA-MOU identified growth area” as defined in the ALPP. Developers shall comply with the ALPP as described in Section 9.5 of the Specific Plan. As set forth in Section 9.3 of the Specific Plan, the Developers will not be required to establish agricultural mitigation easements for the lands within the Project area and will be required to pay an agricultural land mitigation fee in the amount of $750 per acre of converted land designated by the California Department of Conservation’s Farmland Mapping and Monitoring Program as “Prime” or “of Statewide Importance” (Designated Farmland).

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2.14.4. Drainage/Stormwater. The City and the Developers acknowledge and agree that the analysis, plans, polices and design of the drainage and stormwater management facilities of the Specific Plan conform with or exceed the requirement s of the (stormwater management plan in effect as of the Effective Date ). The City and the Developers further acknowledge that the storm water requirements and stormwater fees imposed upon development and redevelopment projects , as well as to individual properties, in the city change from time -to-time and that the Project will be subject to whatever storm water requirements, storm water programs and utilities, and stormwater fees are in effect as of the date of application for a Project Approval or a Subsequent Project Approval. Developer shall implement the drainage and stormwater management policies of the Specific Plan in phases as provided in Section 8.3 of the Specific Plan.

2.14.5. Reimbursement Ordinance. On June 3, 2014, the City adopted an ordinance to provide for the establishment of one or more zones of benefit and the reimbursement for costs incurred in connection with the annexation and entitlement of lands in the North of Boron da Future Growth Area (Ordinance No. 2549, the “Reimbursement Ordinance”).

2.14.6. Installation of Improvements; Inspections. In any instance where a Developer is required to install improvements that are subject to inspection and approval by the City, Developer shall obta in City approval of the plans and specifications, and provided Developer has supplied all information required by the City, the City shall promptly review and act on the application for such approval in a diligent manner in accordance with law. The commen tary on plans shall specify the changes required to comply with City regulations. Developer shall correct the plans as requested or shall explain in writing why any changes were not made, or deviated from the changes requested by the City.

2.15. Significant Actions by Third Parties Necessary for Approval . At Developer’s sole discretion, but consistent with the Project Approvals, Developer may apply for such other permits, grants of authority, agreements, and other approvals from other private, public and quasi -public agencies, organizations, associations or other public entities as may be necessary to the development of, or the provision of services and facilities to, the Project. The City shall cooperate with Developer in its endeavors to obtain such permits and approvals.

2.16. Cooperation of Parties . Each of the Parties shall act toward each other and the tasks necessary or desirous to the Project in a fair, diligent, expeditious and reasonable manner (except in those cases where a Party is given sole discretion under this Agreement), and no Party s hall take any action that will unreasonably prohibit, impair

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or impede the other Party’s exercise or enjoyment of its rights and obligations secured through this Agreement. This agreement to cooperate shall not require either Party to incur any un-reimbursed expenses.

2.17. Developer’s Right to Rebuild . City agrees that Developer may renovate or rebuild portions of the Project within the Term of this Agreement should it become necessary due to fire, earthquake, or other natural disaster or changes in seismic requirements. Such renovations or reconstruction shall be processed as a . Any such renovation or rebuilding shall be subject to all design, density and other limitations and requirements imposed by this Agreement, and shall comply with the Project Approvals, the building codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA.

2.18. Fiscal Neutrality. The Fiscal Impact Report was prepared to summarize, among other things, estimated costs associated with providing required public services to, and the revenues generated by, the Project. Based upon the findings of the Fiscal Impact Report, the City has determined that the economic impact of the Project on the City will be fiscally positive. The conclusions of the Fiscal Impact Report are predicated among other things on the following assumptions regarding the shared responsibilities for ownership and maintenance of infrastructure between the City and the Central Area of the Future Growth Area:

2.18.1 Construction and Dedication of Streets. The Developer shall construct or install all improvements within the City -maintained areas described in Section 2.18.1 above. If Developer installs landscaping within the City-maintained areas, Developer shall maintain such landscaping in a healthy weed-free condition for one year following the City acceptance of the Project improvements. Developer shall dedicate such landscaped areas to the City.

2.19 Landscaping and Lighting Maintenance District. A Landscaping and Lighting Maintenance District (“LLMD”) will be established by the City in connection with the development of the Central Area to reimburse the City for the costs of maintenance performed by the City within the public areas of the Project, including but not limited to the following maintenance tasks:
(a) Maintenance of public parks less than two (2) acres in size. (b) Operation and maintenance (including replacement as needed) of all street path lighting.
(c) Maintenance of all low -impact development (LID) areas within public streets,

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parcels, and rights -of-way, and in supplemental detention and retention basins (open space).
(d) Slurry coating of all interior streets and alleys every 5 -7 years, depending on the deterioration of the asphalt as determined by the Public Works Director or his designee.
(e) Maintenance of all traffic calming devices, such as the center median islands, roundabouts, bulb-outs, and traffic circles, including landscaping. (f) Maintenance and replacement of the public paths, street trees, decorative street furniture, and traffic/street signs.
(g) Maintenance of the landscaping and the walls within the abutting half of the right-of-way of the arterial streets surrounding the Central Area. (h) Maintenance of alleys (including paving) and the adjacent landscaping within alley rights-of-way and/or easements.
(i) Maintenance of landscaping located within the public right -of-way of the southerly greenway street/path and landscape easement.

The LLM D shall be established in phases on a subdivision -by-subdivision basis in conjunction with the review and approval of individual tentative subdivision maps.

Prior to establishment of the LLMD the Developers shall provide all of such maintenance work. Dev elopers shall maintain all areas of the LLMD until such time as the City reasonably determines there is sufficient residential development within the Project to support the City’s costs of such maintenance no more than one year after improvements are accepted with a subdivision map.

2.20 Completion of Improvements. The City generally requires that all improvements necessary to service new development be completed prior to issuance of building permits (except model homes). However, the Parties acknowledge that some of the backbone improvements associated with the development of the Property may not need to be completed to adequately service portions of the Property as such development occurs. Therefore, as and when portion s of the Property are developed, all backbone infrastructure improvements required to service such portion of the Property in accordance with the Project Approvals and Subsequent Project Approvals shall be completed prior to issuance of any building permits within such portion of the Property (except permits for model homes). Provided, however, the Community Development Director may approve the issuance of building permits prior to completion of all such

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backbone improvements if the improvements necessary t o provide adequate service to the portion of the Property being developed are substantially complete to the satisfaction of the City Engineer or the Developer has entered into an agreement with the City as provided in Section 66462 of the California Govern ment Code, and that the Developer’s performance to complete all of the backbone infrastructure is secured in the manner provided in Chapter 5 of the Subdivision Map Act (beginning with Section 66499).

2.21 Obligations of the Developers. The Developers shall develop the Property in accordance with and subject to the terms and the conditions of this Agreement, the Project Approvals, and the Subsequent Project Approvals, if any, and any amendments to the Project Approvals or this Agreement a s may, from time to time, be approved pursuant to this Agreement. The failure of a Developer to comply with any term or condition of or fulfill any obligation of the Developers under this Agreement, the Project Approvals or the Subsequent Project Approvals or any amendments to the Project Approvals or to this Agreement as may have been approved pursuant to this Agreement, shall constitute a default by that Developer under this Agreement. An individual Developer’s default under this Agreement shall not affect the rights or the obligations of the other non-defaulting Developers who have entered into this Agreement.

Except as otherwise provided herein, the Developers shall be responsible, at their sole cost and expense, to make the contributions, improvements, dedications, and conveyances set forth in this Agreement and the Project Approvals.

SECTION 3

AMENDMENT OF AGREEMENT

AND SUBSEQUENT APPROVALS

3.1. Amendment of This Agreement. This Agreement may be amended from time to time in accordance with the Development Agreement Statute, only upon the mutual written consent of the City and Developer.

3.1.1. Major Amendments and Minor Amendments. Any amendments to this Agreement which affects or relates to (a) the Term of this Agreement, (b) permitted uses of the Property, (c) provisions for the reservation or dedication of land, (d) conditions, terms, restrictions, or requirements for subsequent discretionary action, (e) the density or the intensity of use of the Property or the maximum height or gross square footage of propose d non -residential buildings, or (f) monetary contributions by the Developers, shall be deemed a “Major Amendment” and shall require giving notice and a public hearing before the Planning Commission and the City Council. Any amendment which is not a Major Amendment shall be deemed a “Minor Amendment.”

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The Parties acknowledge that refinement and further implementation of the Project may demonstrate that certain minor changes may be appropriate with respect to the details and performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Project and with respect to those items covered in the general terms of this Agreement. If and when the Parties find that clarifications, minor changes, or minor adjustments are necessary or appropriate and do not constitute a Major Amendment, they shall effectuate such clarifications, minor changes, or minor adjustments through a written Minor Amendments approved in writing by the Developers and the City Manager. Unless otherwise required by law, no such Minor Amendment shall require prior notice or hearing, nor shall it constitute an amendment to this Agreement.

The City Attorney shall have the authority to determine if an amendment is a Major Amendment or a Minor Amendment. The City Attorney’s determination may be appealed to the City Council.

3.2 Amendment of Project Approvals . The Project Approvals from time to time, may be modified in the following manner:

3.2.1. Amendment to this Agreement Not Contemplated . Subsequent Project Approvals and (except as expressly provided below) modifications to Project Approvals shall not require an amendment to the terms of this Agreement, and the terms of this Agreement shall apply to all Subseque nt Project Approvals and amendments to modifications to Project Approvals, without any further action of the Parties.

3.2.2. Determination of Need for an Amendment . Upon the written request of the Developer, the City Attorney shall determine whether any r equested modification of the Project Approvals requires an amendment to the terms of this Agreement. If the City Attorney finds that the proposed modification does not result in a material change to the terms of this Agreement, the modification shall be ap proved administratively as a Minor Revision as provided in Section 9.7.1 of the Central Area Specific Plan without amendment of this Agreement.

3.2.3. Processing of Amendments . Any request by the Developer for a modification of the Project Approvals that is determined by the City Attorney to require an amendment to this Agreement shall be processed as an amendment to this Agreement in accordance with the Development Agreement Statute and Section 9.7.2 of the Central Area Specific Plan.

3.2.4. Administrative Approval of Minor Revisions. Minor modifications to Project Approvals that do not materially change the character of the Project, such as

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minor adjustments in location or area that do not increase the overall size of the Project site, minor changes in the location of buildings, substitution of custom homes in the place of pre-designed homes, or the area designated for year-round outdoor/sidewalk/parking lot display by the anchor tenant, design and architectural details, floor plan or landscaping, as well as modifications listed in Section 9.7.1 of the Central Area Specific Plan, do not require amendment of this Agreement, and shall be approved administratively through the building permit process without the necessity of notice, hearing, CEQA review, separate application or process.

3.2.5. CEQA Review . The City has conducted extensive environmental review of the Project Approvals and has certified the Central Area Specific Plan Final Environmental Impact Report (the “Project EIR”) pursuant to the requirements of CEQA.

To the maximum extent permitted by law, the City shall process Subsequent Project Approvals under the existing CEQA approvals (or as an addendum or supplement to the existing CEQA approvals) and shall not require further CEQA action unless such additional review is legally mandated under the CEQA Guidelines. The Parties acknowledge that certain discretionary Subsequent Project Approvals, if any, may be legally required to be subject to additional review under CEQA . The City shall process all documents requ ired under CEQA for the Project. Notwithstanding any other provision of this Agreement, nothing contained in this Agreement is intended to limit or restrict the discretion of the City to take any appropriate action as may be required by CEQA with respect t o any such discretionary Subsequent Project Approvals. The Developers are responsible for all costs associated with any additional CEQA review required for Subsequent Project Approvals, including the payment of recording fees (if any) and the Notice of Determination Fee or Notice of Exemption Fee, as applicable.

SECTION 4

DEFAULT, REMEDIES, TERMINATION

4.1 Defaults.

4.1.1 Except for Non-curable Defaults, any failure by the City or Developer to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party (unless such period is extended by written mutual consent), shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which such alleged failure may be satisfactorily cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure

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thereafter, shall be deemed to be a cure, provided that if the cure is not diligently prosecuted to completion, the default shall continue and no additional cure period shall be provided. If the alleged failure is cured, then no default shall exist an d the noticing Party shall take no further action. If the alleged failure is not cured, then a default shall exist under this Agreement and the non -defaulting Party may exercise any of the remedies available under Section 4.3.

4.1.2 Any Assignment or other tra nsfer in violation of Section 5 shall be considered a Non-curable Default.

4.1.3 No failure or delay in giving notice of default shall constitute a waiver of default; provided, however, provision of notice and opportunity to cure shall nevertheless be a prerequisite to the enforcement or correction of any Default.

4.2 Actions During Cure Period . During any cure period specified under Section 4.1.1 and during any period prior to delivery of any notice of default, the Party charged shall not be considered in default for purposes of this Agreement. If there is a dispute regarding the existence of a default, the Parties shall otherwise continue to perform their obligations hereunder, to the maximum extent practicable in light of the disputed matter and pending its reso lution or formal termination of the Agreement as provided herein.

4.3 Remedies for Non-Defaulting Party.

4.3.1 In the event either Party is in default under the terms of this Agreement, subject to any applicable requirements of Section 4.4, the other Party may elect to pursue any of the following courses of action: (i) waive such default; (ii) pursue administrative remedies as provided in this Agreement; and (iii) pursue any judicial remedies available.

4.3.1.1 Developers’ Default; Enforcement. No building permit shall be issued or building permit application accepted for the building shell of any structure on the Property if the permit applicant owns or controls any property subject to this Agreement and if such applicant or any entity or person controlling s uch applicant is in default under the terms and the conditions of this Agreement unless such default is cured or this Agreement is terminated. The Developer shall cause to be placed in any covenants, conditions, and restrictions applicable to the Property, or in any ground lease or conveyance thereof, express provision for an owner of the Property, lessee or City acting separately or jointly to enforce the provisions of this Agreement and to recover reasonable attorneys’ fees and costs for such enforcement.

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4.3.2 Unless otherwise provided in this Agreement, either Party, in addition to any other rights or remedies, may institute legal action to cure, correct, or remedy any default by the other Party to this Agreement, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation hereunder or to seek specific performance.

4.4 Dispute Resolution; Legal Action.

4.4.1 Mediation. Except as otherwise provided herein, no action or proceeding with respect to any dispute, claim or controversy arising out of or relating to this Agreement (“Dispute”) may be commenced until the matter has been submitted to mediation. Either Party may commence mediation by providing to the other Party a written request for mediation, setting forth the subject of the D ispute and the relief requested. The Parties shall cooperate with one another in selecting a mediator and in scheduling the mediation proceedings in Monterey County (unless otherwise agreed by the Parties). The Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorney s, and by the mediator are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rende red inadmissible or non -discoverable as a result of its use in the mediation. Either Party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable r elief, neither Party may commence a civil action or proceeding with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action or proceeding, if the Parties so desire. The provisions of this Section 4.4.1 may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered.

4.4.2 If the mediation required under the provisions of this Agreement has not resolved the Dispute any Party to this Agreement may then commence an action or proceeding relating to a Dispute . Jurisdiction over any such dispute(s) shall be had in Monterey County or in the appropriate federal court with jurisdiction over the matter.

4.5 Annual Review.

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4.5.1 Each year during the Term of this Agreement beginning on or about the first anniversary date of the execution of this Agreement, the City shall review the extent of good faith compli ance by Developer s with the terms of this Agreement. This review shall be conducted by the Community Development Director and shall be limited in scope to compliance with the terms of this Agreement pursuant to the Development Agreement Statute.

4.5.2 A finding by the Community Development Director of good faith compliance by Developers with the terms of this Agreement, or a lack of a finding to the contrary, shall conclusively determine such good faith compliance up to and including the date of such review.

4.5.3 The burden of proof, by substantial evidence, of good faith compliance shall be upon the Developers. The Developers shall provide the evidence determined to be necessary by the City Attorney to demonstrate good faith compliance with the provisions of this Agreement. The Community Development Director may conduct the annual review notwithstanding the Developers’ failure to submit the written request or to provide substantial evidence of compliance. Costs reasonably incurred by the City in connection with the annual review and any related hearing shall be paid by the Developers in accordance with the City’s schedule of fees in effect at the time of the review. If, following such review, the Community Development Director is not satisfied that the Developers have demonstrated good faith compliance with all the terms and the conditions of this Agreement, the Community Development Director may refer the matter along with her or his recommendation to the City Council. Similarly, in the event the Developers disagree with the Community Development Director’s determination of non-compliance with all the terms and the conditions of this Agreement, the Developers may appeal the Community Development Director’s determination to the City Council to determine whether the Developers are in compliance.

4.5.4 With respect to each year for which an annual review of compliance with this Agreement is conducted, upon request of Developers (or any of them), the City shall provide Developer with a written “Notice of Compliance,” or, based on substantial evidence of a material failure of Developer to comply in good faith with the terms of this Agreement after notice and a reasonable opportunity to Developer to cure such failure, “Notice of Non -compliance,” as applicable, duly executed and ac knowledged by the City. Either Party shall have the right to record any such notice.

4.5.5 Failure by the Developer s (or any of them) to request review under this Section 4.5 or failure of City to initiate review under this Section 4.5 shall not invalidate any provisions of this Agreement or constitute a default hereunder.

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4.6 Force Majeure Delay, Extension of Times of Performance.

4.6.1 In addition to specific provisions of this Agreement, performance by any Party hereunder shall not be deemed to be in default where delays or defaults are due to a Force Majeure Event.

4.6.2 Any Party claiming a delay as a result of a Force Majeure Event shall provide the other Party with written notice of such delay, the reason for the delay and an estimated length of delay. Upon the other Party’s receipt of such notice, the period of time for performance of any obligation or duty shall be automatically extended for the period of the Force Majeure Event, unless the other Party objects in writing within thirty (30) days after receiving the notice. In the event of such objection, the Parties shall meet and confer within thirty (30) days after the date of objection to arrive at a mutually acceptable solution to the disagreement regarding the delay. If no mutually a cceptable solution is reached at the conclusion of the meet and confer session(s), either Party may initiate dispute resolution proceedings as set forth in Section 4.4 of this Agreement.

During the period of any Force Majeure Event extension, the Parties shall use their best efforts to minimize potential adverse effects resulting from the Force Majeure Event.

4.7 Legal Challenge by Third Party.

4.7.1 It is specifically understood and agreed by the Parties that the Project contemplated by this Agreement is a private development, that the City has no interest in or responsibility for or duty to third persons concerning any of said improvements , except for those improvements that are accepted by the City for maintenance and responsibility, and that the Developers shall have the full power over and exclusive control of the Property subject only to the limitations and the obligations of the Developers under this Agreement.

4.7.2 In the event of any administrative, legal or equitable action or other proceeding instituted by any p erson, entity or organization (not a Party to this Agreement) challenging the validity or enforceability of this Agreement, the Parties shall cooperate with each other in the defense of any such challenge, provided such cooperation shall not extend to paym ent of funds or expenses in defending such challenge unless agreed by the cooperating Party.

4.7.3 Developer shall indemnify , defend and hold harmless the City, its officers, agents, employees, from any claim, action or proceeding brought by a third party within the applicable statute of limitations (i) challenging the validity of this Agreement or seeking to attack, set aside, void or annul any action, decision or approval taken by the City pursuant to this Agreement, (ii) relating to any development of the Property during

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the term of this Agreement or the Project Approvals , (iii) relating to any actions or inactions by the Developers (or any of them) or their contractors, subcontractors, agents, or employees in connection with con struction of the improvement of the Property and the Project, or (iv) seeking damages which may arise directly or indirectly from the negotiation, formation, execution, enforcement or termination of this Agreement.

Nothing in this Section shall be constru ed to mean that Developer shall hold the City harmless or defend it to the extent that such claims, costs or liability arise from, or are alleged to have arisen from, the sole negligence or willful misconduct of the City. The City shall cooperate with Dev eloper in the defense of any matter in which Developer is defending or holding the City harmless and for such purpose Developer shall retain competent legal counsel approved by the City, which approval shall not be unreasonably withheld or delayed; provided, however, that the City and the Developers shall each bear their own respective costs, if any, arising from such defense . The City shall promptly notify the Developers of any such claim, action or proceeding. If the City fails to promptly notify the Developers of any such claim, action or proceeding, or if the City fails to cooperate fully in the defense, the Developer shall not thereafter be responsible to defend, indemnify or hold harmless the City. Nothing contained in this Agreement prohibits the City from participating in the defense of any claim, action or proceeding if the City bears its own attorney’s fees and costs, and the City defends the action in good faith.

4.8 Estoppel Certificate.

4.8.1 Either Party may, at any time, 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:

4.8.1.1 This Agreement is in full force and effect, and unless otherwise indicated has not been amended.

4.8.1.2 To best of knowledge, the Party requesting such certificate is not in default of the performance of its obligations under this Agreement, or alternatively, if a default exists or notice of default has been given, the nature and amount of any such defaults.

4.8.2 A Party receiving a request hereunder shall execute and return such certificate within twenty (20) business days following the receipt thereof. The Parties acknowledge that any certificate given hereunder may be relied upon by any governmental agency, any assignee, and other persons having an interest in the Project, including holders of any deed of trust. The City Manager shall be authorized to exec ute any such certificate for the City, unless otherwise directed by the City Council.

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4.9 Termination of Agreement . This Agreement is terminable by mutual written consent of the Parties, and such termination shall not require or be contingent upon the approva l or consent of any other person or entity. Any obligations of indemnification and defense relating to matters arising before termination of this Agreement shall survive termination of this Agreement. Any unused fees, fee credits or deposits shall be refunded to Developers forthwith. Any one or more of the Developers may terminate this Agreement upon the City’s mutual written consent. In the event any one or more of the Developers so terminates this Agreement with respect to their portion of the Property, the rights and obligations of the remaining Developers under this Agreement shall not be effected and this Agreement shall remain in full force and effect as to those remaining Developers.

4.9.1 Except as otherwise set forth in this Agreement, if this Agreemen t is terminated by mutual written consent of the Parties, neither Party shall have any further rights or obligations under this Agreement. Subject to Section 4.9.3, each Party understands that it may have sustained damages that arise, or may arise out of, or relate to the termination of this Agreement that may not be apparent and that are presently unknown. Each Party waives, with respect to termination of this Agr eement by mutual written consent of the Parties, any claims for all such damages. The waivers and releases in this Agreement include waivers and releases of any claims for unknown or unanticipated injuries, losses, or damages arising out of or relating to termination of this Agreement by mutual written consent of the Parties.

4.9.2 Subject to Section 4.9.3, each Party waives, with respect to termination of this Agreement by mutual written consent of the Parties, all rights or benefits that it has or may have und er Section 1542 of the California Civil Code to the extent it would otherwise apply. Section 1542 reads as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

4.9.3 Nothing herein contained shall release or excuse Developer in the performance of its obligations to indemnify and defend the City as provided in this Agreement.

4.10 Limitation on Legal Actions. In no event shall the City, or its officers, employees, or agents be liable in damages for any breach or violations of this Agreement, it being expressly understood and agreed that the Developers ’ sole legal remedy for a

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breach or a violation of this Agreement by the City shall be a legal action in mandamus, specific performance, or other injunctive or declaratory relief to enforce the provisions of this Agreement.

SECTION 5

ASSIGNMENTS

5.1 Limitation As To Assignment. Except as permitted by Sections 5.2 and 5.3 of this Agreement, Developer shall not assign, or attempt to assign or otherwise transfer this Agreement or any right herein (each referred to as an “Assignment”) in whole or in part, without the prior written approval of the City, which approval shall not be unreasonably withheld, conditioned or delayed. The City may refuse to give its consent only if, in light of the proposed assignment and financial resources, such assignee would not in the City’s re asonable opinion be able to perform the obligations proposed to be assumed by such assignee. The Developers acknowledge that the identity, make-up and proposal of the Developers are of particular concern to the City and it is because of these matters that the City has entered into this Agreement.

5.2 Permitted Assignment. The prior written approval of the City shall not be required for the following Assignments:

5.2.1 Any Assignment to one or more Affiliates of Developer; or

5.2.2 The merger, consolidation, restructuring or sale of substantially all of the assets of Developer or of any Affiliate; or

5.2.3 The assignment to any trustee by way of a deed of trust in favor of holder or beneficiary under such deed of trust, or the absolute or collateral assignment, pledge, grant or transfer to such holder, of the Developer’s right, title and interest in, to and under this Agreement for the purpose of creating an encumbrance on or security interest in such interest, or to or by any such holder or other purchaser in connection with its acquisition of the Project Site by foreclosure or deed in lieu of foreclosure; or

5.2.4 The sale of individual parcels to third parties (provided, however, that such parcels shall be subject to the Specific Plan and Project Approvals).

5.3 Assumption of Assigned Obligations . As a condition to any Assignment under this Agreement, any person or entity accepting such Assignment (“Assignee”) shall assume all of the obligations of this Agreement as they pertain to the portion of the Property being transferred to the Assignee. The assumption shall be in a form acceptable to the City and following the Assignment shall be recorded on the

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portion of the Property transferred. This requirement shall apply whether or not the transfer requires approval of the City.

5.4 Release of Developer . Upon the effectiveness of any Assignment and assumption of Developer’s obligations by any Assignee, the Developer shall be fully relieved and released of each of its duties and obligations with respect to the portion of the Property transferred to the transferee from and after the date of such transfer, except as to those obligations of Developer under this Agr eement, Project Approvals or Applicable City Regulations that affect more than the portion of the Property being transferred.

5.5 Successive Assignment. In the event of any Assignment under the provisions of this Section 5, the provisions of this Section 5 shall apply to each successive Assignment and Assignee. The Developer’s obligations under this Agreement with respect to the portion of the Property transferred which are to be assumed by the Assignee shall be set out in substantially the form of the Assign ment and Assumption Agreement.

5.6 Unapproved Transfers Void . Any Assignment, or attempted Assignment, that is not approved by the City as required under this Section 5, or that is inconsistent with the provisions of this Section 5, shall be unenforceable and void and shall not release Developer from any rights or obligations hereunder.

SECTION 6

GENERAL PROVISIONS

6.1 Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure . The Developer’s breach of any of the covenants or restrictions contained in this Agreement shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Project, or any part thereof or interest therein, whether or not said mortgage or deed of trust is subordinated to this Agreement, but, the terms, conditions, covenants, restrictions and reservations of this Agreement shall be binding and effective against the holder of any such mortgage or deed of trust or any owner of the Project, or any part thereof, whos e title thereto is acquired by foreclosure, trustee’s sale or otherwise.

6.2 Covenants Binding on Successors and Assigns . This Agreement and all of its provisions, agreements, 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

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Property, or any interest therein, and shall inure to the benefit of the Parties and their respective successors (by merger, consolidation or otherwise) and assigns.

6.3 Covenants Run With Land. The provisions of this Agreement shall be enforceable during the Term as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including, but not limited to Section 1468 of the Civil Code of the State of California. Each covenant to do or refrain from doing some act on the Property which is for the benefit of the Property or shall constitute a burden upon the Property, as applicable, shall run with the land, and is binding upon each Party and each successive owner during its ownership of the Property, or any portion thereof.

6.4 Bankruptcy. The obligations of this Agreement shall not be dischargeable in Bankruptcy.

6.5 Reimbursement of Development Agreement Costs and Fees. Prior to the City’s issuance of any Subsequent Project Approvals, the Developers shall reimburse the City for all its reasonable and actual costs, fees, and expenses incurred in drafting, reviewing, re vising, and processing this Agreement, including, but not limited to, recording fees, ordinance publication fees, staff time in preparing staff reports, and staff time, including legal counsel and special counsel fees, for preparation and review of this Agreement and changes requested by the Developers (or any of them). Exhibit F.

6.6 Reimbursement of Annexation Costs and Fees. Prior to the City’s issuance of any Subsequent Project Approvals , the Developers shall reimburse the City for all its reasonable and actual costs, fees, and expenses incurred in relation with the annexation of the Property into the City including, but not limited to, staff time, legal counsel fees, consultant fees, and publication fees. Exhibit G.

6.7 Preamble, Recitals, Exhibits. References herein to “this Agreement” shall include the Preamble, Recitals and all of the exhibits of this Agreement.

6.8 Attorneys’ Fees. Should any legal action or proceeding be brought by either Party regarding any matter arising out of or relating to this Agreement, the prevailing Party in such action shall be entitled to recover reasonable attorneys’ fees actually incurred, court costs, and such other costs as may be determined by the court.

6.9 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the development of the Project is a separately undertaken private development and Developer shall have full power over and exclusive control of the Project subject only to the limitations and obligations of Developers under this Agreement and the Project Approvals and Subsequent Project Approvals . No

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partnership, joint venture, agency or other association of any kind between Developer s and the City is formed by this Agreement. The only relationship between the City and Developer is that of a governmental entity regulating development and the owner of the Project.

6.10 Construction. As used in this Agreement, and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine and neuter and vice versa.

6.11 Notices. All notices, demands, or other communicatio ns which this Agreement contemplates or authorizes shall be in writing and shall be personally delivered, mailed by certified mail, return receipt requested, or delivered by reliable overnight courier, to the respective Party as follows:

If to City:

City of Salinas
200 Lincoln Avenue
Salinas, CA 93901
Attn: City Manager

With a Copy To:

City Attorney
City of Salinas
200 Lincoln Avenue
Salinas, CA 93901
Attn: City Attorney

And

Community Development Director
City of Salinas
65 West Alisal, 2nd Floor
Salinas, California 93901

If to Developer:

Richardson.
(Need contact information)

Mannina

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(Need contact information)
Scagliotti, Pura
(Need contact information)
Probert & Codiroli
(Need contact information)

Hartnell College Foundation
(Need contact information)

With a Copy To:

Anne Secker
Christine Kemp
Attorneys at Law
P. O. Box 2510
Salinas, CA 93902

A notice shall be effective on receipt. Any Party may change the address stated herein by giving written notice to the other Party, and thereafter notices shall be addressed and transmitted to the new address. Any notice given to the Developer as required by this Agreement shall also be given to any lender which provides written request to City for notice.

6.12 Invalidity of Ag reement; Severability. If this Agreement shall be determined by a court to be invalid or unenforceable, this Agreement shall automatically terminate as of the date of final entry of judgment.

If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a specific situation, is found to be invalid, or unenforceable, in whole or in part for any reason, the remaining terms and provisions of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provisions, in which case either Party may terminate this Agreement by providing written notice thereof to the other. In the event of such termination, the provisions of Section 4.9 relating to termination of the Agreement by mutual written consent of the Parties shall apply.

Without limiting the generality of the forgoing, no judgment determining that a porti on of this Agreement is unenforceable or invalid shall release Developer from its obligations to indemnify the City under this Agreement.

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6.13 Applicable Law; Venue. The interpretation, validity, and enforcement of the Agreement shall be governed by and c onstrued under the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in Monterey County. The Developers acknowledge and agree that the City has approved and has entered into this Agreement in the sole exercise of its legislative discretion and that the standard of review of the validity or the meaning of this Agreement shall be that accorded legislative acts of the City.

6.14 Waivers. No waiver of any obligations under this Agreement shall be enforceable or admissible unless set forth in a writing signed by the Party against which enforcement or admission is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instance expressly set forth in such writing. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.

6.15 Signatures. The individuals executing this Agreement represent and warrant that they 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 the City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.

6.16 Exhibits. Th e following exhibits are attached to this Agreement and are hereby incorporated herein by this reference for all purposes as if set forth herein in full:

A Ownership Table and Planning Subarea Map
B Exactions Applicable to the Project E
Table 1 to Exhibit B Development Impact Fees
C Regulations Applicable to the Project
D Boronda Road (CASP Project Buildout)
E Inclusionary Housing Ordinance and Guidelines
F Development Agreement Costs and Fees
G Annexation Costs and Fees

6.17 Interpretation. This Agreement has been drafted jointly, and reviewed by the Parties and their attorneys and, therefore, shall not be construed in favor of or against

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a Party that may have drafted any particular term or provision. Prior versions or drafts of this Agreement shall not be used to interpret the meaning or intent of this Agreement or any provision hereof.

6.18 Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties concerning the subject matter hereof. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiation or previous agreements between the Parties with respect to all or any part of the subject matter hereof. To the extent that there are conflicts or inconsistencies between this Agreement and any prior agreement, the provisions of this Agreement shall prevail.

6.19 Further Assurances and Acts. Each Party shall perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement.

6.20 Signatures; Signature Pages; Execution in Counterp arts. The individuals executing this Agreement represent and warrant that they have the right , power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective individuals or legal entities of the Developers and of the City. This Agreement shall inure to the benefit and be binding upon the Parties hereto and their respective successors and assigns. For convenience, the signatures of the Parties to this Agreement may be executed and acknowledged on separate pages in counterparts which, when attached to this Agreement, shall constitute this as one complete Agreement.

6.21 Time of the Essence . Time is of the essence in the performance of each Party’s respective obligations under this Agreement.

6.22 No Third Party Rights . Nothing in this Agreement, whether express or implied, is intended to or shall do any of the following:
(a) Confer any benefits, rights or remedies under or by reason of this Agreement on any persons other than the express Parties to it; (b) Relieve or discharge the obligation or liability of any person not an express Party to this Agreement;
(c) Give any person not an express party to this Agreement any right of subrogation or action against any Party to this Agreement.

IN WITNESS WHEREOF, the City and Developers have executed this Agreement

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as of the date first hereinabove written.
“City”:

CITY OF SALINAS,

a municipal corporation

By: _______________________________
Mayor

APPROVED AS TO FORM:

___________________________________
City Attorney

ATTEST:

___________________________________

City Clerk

“Developers”:

Richardson

By: _________________
Its: _________________

By: __________________
Its: __________________

_____________________
Mannina

_____________________

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Scagliotti, Pura

______________________
Probert & Codiroli

______________________
Hartnell College Foundation

PPROVED AS TO FORM:

________________________________

Anne Secker
Noland, Hamerly, Etienne & Hoss
Attorneys at Law

_________________________________
Christine Kemp
Noland, Hamerly, Etienne & Hoss
Attorneys at Law

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Exhibit A Ownership Table and Planning Subarea Map

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EXHIBIT B

EXACTIONS APPLICABLE TO THE PROJECT

[Subject to conforming and clarifying changes prior to execution and recordation]

1. Development Impact Fees. City and Developer agree that the development impact fees payable with respect to the specific land uses developed in the Project shall those listed in Table 1 to this Exhibit B. The Development Impact Fees shall be the cost/rate in effect on the Effective Date of this Agreement. The Development Impact Fees set forth in Table 1 shall be automatically adjusted based on the increase or decrease in the Engineering News Record Construction Cost Index for the San Francisco Bay Area fo r the period ending December 31 of the preceding calendar year. Fees paid after the date of such adjustment shall be paid at the adjusted rate.

2. Traffic Mitigation Measures. City agrees not to impose on the Project any traffic mitigation measures other than those specifically set forth in the Project EIR.

3. Environmental Mitigation and Implementation Measures. The Parties understand that the Project EIR was intended to be used in connection with the Project Approvals and the Subsequent Project Approvals needed for the Project. Consistent with the CEQA streamlining policies applicable to specific plans, including but not limited to California Code of Regulations, Title 14, Section 15182, the City agrees to use the Project EIR in connection with the processing of any Subsequent Project Approval to the maximum extent allowed by law.

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TABLE 1 TO EXHIBIT B

DEVELOPMENT IMPACT FEES

Street Tree Fee

Public Utility Impact Fee
Storm Drain Fee
Sanitary Sewer Fee

Park Fee (CAPIF)

Traffic Impact Fee

Public Facilities Impact Fee

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EXHIBIT C

CITY REGULATIONS APPLICABLE TO THE PROJECT

To the extent not in conflict with or not inconsistent with the Central Area Specific Plan, Parcel Map, and other Project Approvals, and except as otherwise provided for in this Agreement, the following rules, regulations and official policies in effect as of the Effective Date shall apply to the Project and Property:

A. City of Salinas General Plan, adopted September 17, 2002, in effect as of the Effective Date.

B. City of Salinas Subdivision Ordinance, Chapter 31 of the City of Salinas Municipal Code in effect as of the Effective Date.

C. City of Salinas Zoning Ordinance, Chapter 37 of the City of Salinas Municipal Code in effect as of the Effective Date.

D. City of Salinas Inclusionary Housing Ordinance (Ordinance No. 2594, June 6, 2017) and City of Salinas Inclusionary Housing Guidelines (Resolution No. 21175, June 6, 2017).

E. All other ordinances, resolutions, rules, regulations, and official policies governing permitted uses of the land, governing densi ty, and governing design, improvement, and construction standards and specifications, applicable to development of the Property subject to a development agreement in effect as of the Effective Date.

F. Exactions (see Exhibit B)

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EXHIBIT D
(Boronda Road CASP Project Buildout)

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EXHIBIT E

Inclusionary Housing Ordinance and Guidelines
(Ordinance No. 2594, June 6, 2017; Resolution No. 2567)

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EXHIBIT F
Development Agreement Costs and Fees

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EXHIBIT G
Annexation Costs and Fees