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2016-08-31 e-packet@6:00
City of South San Francisco P.O. Box 711 (City Hall,400 Grand Avenue) South San Francisco,CA I r Special Meeting Agenda Wednesday, August 31, 2016 6:00 PM Municipal Services Building, Council Chambers 33 Arroyo Drive, South San Francisco, CA Special City Council Special City Council Special Meeting Agenda August 31,2016 NOTICE IS HEREBY GIVEN,pursuant to Section 54956 of the Government Code of the State of California,the City Council of the City of South San Francisco will hold a Special Meeting on Wednesday,August 31,2016, at 6:00 p.m.,in the City Council Chambers,Municipal Services Building, 33 Arroyo Drive, South San Francisco, California. Purpose of the meeting: Call to Order. Roll Call. Agenda Review. Public Comments-comments are limited to items on the Special Meeting Agenda. 1. Oyster Paint Develgp ent Study Session. (Steve Mattas, Assistant City Attorney Marian Lee, Assistant City Manager Adjournment. City of South San Francisco Page 2 Printed on 9/21/2016 P.O. Box 711 (City Hall,400 City of South San Francisco Grand Avenue) South San Francisco, CA Legislation Text File #: 16-526, Version: 1 Oyster Point Development Study Session. (Steve Mattas, Assistant City Attorney and Marian Lee, Assistant City Manager) RECOMMENDATION It is recommended that City Council review the information in this staff report. This is an information item only. There are no actions for consideration at this time. BACKGROUND In March 2011, the City of South San Francisco (City) and the former Redevelopment Agency of the City of South San Francisco (Successor Agency) entered into a Development Agreement (DA) and Disposition and Development Agreement (DDA), respectively, with Oyster Point Ventures, LLC to form a public/private partnership to redevelop approximately 82 acres at Oyster Point. When the respective agreements were negotiated and subsequently executed, it was anticipated that Oyster Point Ventures, LLC, at some period in the future, might wish to transfer ownership and assign the various obligations and rights under the DA/DDA to other development entities. Since that time, Oyster Point Ventures, LLC noticed the City and Successor Agency requesting a transfer of ownership to Oyster Point Development, LLC (Developer). On June 1, 2016, the City Council and Successor Agency were presented with the request and took action to approve the transfer. The Developer, Oyster Point Development LLC, closed escrow and is now the owner and Developer of the project. The DA/DDA commits the Developer to first implement Phase I, consisting of a minimum of 508,000 square feet of research and development (R&D) and/or office space, with associated infrastructure. The Developer is targeting start of construction of Phase I by summer 2017. Given the significance of the proposed development and aggressive target date, it will be important for staff to keep City Council updated on the progress of this effort. See Attachment 1 for the DA and Attachment 2 for the DDA. DISCUSSION For this first City Council meeting (since the transfer of ownership), staff will focus on providing information regarding the: DA/DDA City/Successor Agency and Developer commitments; Phase I milestones proposed by Developer; and the City team formed to support development program. See Attachment 3 for the PowerPoint to be presented to City Council with more detailed information included in this report. DA/DDA City/Successor Agency and Developer Commitments • Property Exchange At the conveyance date and close of escrow, City/Successor Agency will convey specified property City of South San Francisco Page 1 of 3 Printed on 8/26/2016 pow[lod by I ogiFfl ar nvl File #: 16-526, Version: 1 parcels to the Developer to commence construction, and the Developer will assign the King Leases to the City. Developer is required to make specified payments for the land conveyed, totaling $5.6 million payable in installments over time, and terminate any sub-tenant leases on the property conveyed to Developer. • Four Development Phases This development has four phases and is summarized below. Note that a "C" after a phase refers to activities involving the City and/or Redevelopment Agency, while "D" after a phase refers to the Developer. - Phase IC: Streets and utilities, improvements to clay cap over landfill, reconfigured parking areas, open space recreation areas, beach/park areas, Bay Trail and Palm Promenade, and rough grading of the future "Hotel Site". (Developer is responsible for construction of these improvements, but Successor Agency and Developer share costs) - Phase ID: Repair and remediate landfill on property and constructing R&D/Office building of a minimum of 508,000 square feet. (Developer is responsible for construction and all costs) - Phase IIC: New pump station, repair clay cap, improve parking areas and landscaping on BCDC property. (Successor Agency is responsible for construction and cost. Developer contribution towards pump station.) - Phase III) - IVD: R&D/Office buildings of approximately 2.25 million square feet, streets/utilities, and landscaping. (Developer is responsible for construction and costs. The Successor Agency, with Oversight Board approval, has paid $29,463,231 into an escrow account to fund the Successor Agency cost obligations based on estimated costs in the DDA. • Development Agreement Key Provisions - Developer has vested rights to construct the previously approved development, approximately 2.25 million square feet of office/R&D development, for 20 years through 2031. - City agrees to cooperate with Developer in obtaining permits and approvals from other agencies. - Developer is obligated to pay specified fees as set forth in the DA. - City to work with Developer to establish a Community Facilities District (CFD) when requested by Developer. Developer is responsible for cost of CFD formation. - Developer agrees to commence Phase I improvements prior to any Phase II construction, and comply with CEQA mitigation measures from the project's certified Environmental Impact Report. Phase I Milestones Proposed by Developer The scope of Phase I (comprised of Phase IC and Phase ID) is described above. The Developer is ready to move Phase I of the project forward. This work is already fully entitled, with completed environmental and City Council approval given in 2011. The Developer has closed escrow on the sale, and the Harbor District approved assignment of the former King leases from Oyster Point Venture, LLC to Oyster Point Development, LLC, in July, 2016. All conditions for moving forward towards construction have been met. The Developer is mobilizing their team, developing their master schedule and meeting with staff regularly to move the project to construction. The Developer is targeting the start of Phase I construction for summer 2017. Their most recent schedule reflects the following key timeframes for Phase L City of South San Francisco Page 2 of 3 Printed on 8/26/2016 pow[lod by I ogiFfl ar nvl File #: 16-526, Version: 1 • Now - Summer 2017 Preconstruction - Coordination with City and Stakeholders - Construction documents - Landfill and building permitting - Establish CFD - Convey property /Transfer King leases • Summer 2017 - 2018 Infrastructure Construction - Demo existing buildings - Mass grading and landfill cap repair - Streets and utilities /landscape and hadscape at parks • Summer 2018 - 2019 Building Construction The proposed schedule is being evaluated by staff to ensure the process includes sufficient time for coordination with City Council/Commissions/Committees and public stakeholders. City Team Formed to Support Development Program A special City team has been formed to support the development program comprised of staff and consultants, and managed by the Assistant City Manager who reports to the City Manager, and is accountable to City Council. The City Attorney's office is also assisting with implementation of the DDA and the DA. Reporting to the Assistant City Manager is Swinerton Builders, providing temporary consultant services in the area of Program Management/Construction Management for initial efforts associated with launching Phase I of the development program. City staff will issue an RFP to select a permanent consultant to assist the City in these areas with a target of coming to Council in October/November for approval of consultant services. The scope and complexity of the issues involved demand the assistance of outside consultants working on behalf of the City. The Assistant City Manager is responsible for managing the Swinerton contract and for fostering collaboration among the many City departments engaged in this development, as well as managing public outreach to stakeholders and interested parties. It will be important for the Assistant City Manager to pay particular attention to cross-departmental coordination efforts and to obtain clear guidance from the City Manager and City Attorney. FUNDING There is no funding impact associated with this information item. Current City expenses associated with this development are being funded by the Developer through reimbursement agreements. CONCLUSION Another study session with City Council concerning this development is anticipated to occur in late November 2016. Staff will keep City Council fully updated in the interim before the next study session through written memos as needed. Attachments: 1. DA 2. DDA 3. PowerPoint Presentation regarding Oyster Point Development City of South San Francisco Page 3 of 3 Printed on 8/26/2016 pow[lod by I ogiFfl ar nvl RECORDING RE'QU 1-11 STE'1.) B'Y 201 1 ,D34324 2:06 I'mii 03/24/11 Aug Fee:41 TOO AND WHEN REXORDED MAII, TO: C04.111t of Pages 135 Recordled in Official Records COUnty of Safi Mateo Morrison & Foerster Mark Church 425 Market Street Assessor.-00, ulntlerk-Recorder C San Francisco,, alilornia 94105-2482 11�I Attentio m n: Zane 0. Gresha I1 11�10 1� ]� 11 R 0 0 0 1 1 5 8 7 5 0 APNs: 015-010-240, 015-010-630; and portions of 015-010-2.60, 015-010-270. 015-010-600. 015-190-170 and 015-190-190 Above 'llis 1,ine Reserved For Recorder's [Jse) DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF SOUT11 SAN FRANCISCO AND OYSTER POINT VENTURES, LLC DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of March 23,, 2011 by and between the City of South San Francisco ("City"), and Oyster Point Ventures, LLC ("Developer"), pursuant to California Government Code Section 65864 et seq. RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code Section 65864 et seq. (the "Development Agreement Statute"), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code Section 65865, City has adopted procedures and requirements for the consideration of development agreements, (City Ordinance No. 909). This Development Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. Developer has a legal and/or equitable interest in certain real property consisting of approximately forty-six (46) acres located in the Oyster Point area of the City of South San Francisco, San Mateo, County, California, as more particularly described in Exhibit A attached hereto, and as diagrammed in Exhibit B attached hereto (the "Project Site"). D. Developer intends to develop the Project Site as a life sciences campus consisting of research and development and office buildings, comprising a total of up to two million, two hundred fifty-four thousand, two hundred thirty (2,254,230) gross square feet of development, based on square footage yielded from 1.25 FAR, together with certain public amenities, including public open space and recreational areas and other uses (defined more fully in Section 3.02 below as the "Project"). E. This Agreement is based upon and was written to achieve two basic purposes: First, that the City will be kept and/or made whole by Developer with respect to all aspects (e.g., fiscal impacts, etc.) of the planning, development, maintenance and operation of the Project including, among other things, the costs to the City of providing the Project with public services, and facilities and mitigating the Project's environmental impacts; and second, that Developer will have a full and vested right to develop, use and operate the Project and the Project Site as set forth herein. The rights and obligations of the parties to the Agreement shall be construed and interpreted in such a manner as shall give full effect to each of these purposes. R Prior to or concurrently with approval of this Agreement, City has taken several actions to review and plan for the future development of the Project. These include, without limitation, the following: ¢ I614805.1 I. Environmental Impact Report. The environmental impacts of the Project, including the Project Approvals and the Subsequent Approvals, as defined below, and numerous alternatives to the Project and its location, have:properly been reviewed and assessed by City pursuant to the California Environmental Quality Act, Public Resources Code Section 21000 et seq. California Code of Regulations Title 14, Section 15000 et seq.; and City's local guidelines promulgated thereunder(hereinafter collectively referred to as "CEQA"). On March 23, 2011, pursuant to CEQA and in accordance with the recommendation of the Planning Commission for the City of South San Francisco (the "Planning Commission"), the City Council certified a final environmental impact report covering the Project (the "EIR"). As required by CEQA, by Resolution No. 46-2011, the City adopted written findings and a mitigation monitoring and reporting program (the"MMRP") prior to approving the Project Approvals. 2. General Plan Amendment. Following review and recommendation by the Planning Commission and after a duly noticed public hearing and certification of the EIR, the City Council, by Resolution No. 47-2011, approved amendments to the South San Francisco General Plan (the "General Plan Amendment"). 3. Downtown/Central Redevelopment Plan and,Applicabl Amendment. The City Council, by City Ordinance No. [ ], approved amendments to the Redevelopment Plan for the Downtown/Central Redevelopment Project (the "Redevelopment Plan Amendment"). The term "Redevelopment Plan Amendment" as used in this Agreement includes an amendment to the Redevelopment Plan, if ally such amendment is lawfully adopted no later than September 30�, 2011, that is consistent with the Preliminary Plan, 4. Disposition and Development Agreement. Following certification of the EIR, the Redevelopment Agency of the City of South San Francisco ("RDA") adopted Resolution No. 18-2011, approving a Disposition and Development Agreement governing property conveyances, infrastructure development, and financing for portions of the Project(the "DDA"). 5. Zoning Ordinance Amendment. Following Planning Commission review and recommendation, certification of the EIR, and adoption of the General Plan Amendment and the Redevelopment Plan Amendment at a duly noticed public healing, the City Council adopted City Ordinance No. 1437-2011, approving the Oyster Point Specific flan and rezoning the Project Site to City's Oyster Point Specific Plan District zoning district(the "Zoning Ordinance Amendment"), 6. Precise Plan, Following adoption of Resolution No. 2701-2011 recommending City Council certification of the EIR, and a duly noticed public hearing, the Planning Commission adopted Resolution No. 2702-2011, recommending the City Council approve a Precise Plan for Phase I of'the Project (the"Phase I Precise Plan"), contingent upon City Council approval of the General Plan Amendment, the Zoning Ordinance Amendment, the Development Agreement, and the Redevelopment Plan Amendment and RDA approval of the Disposition and Development Agreement. MN1614805.1 2 7. Transportation Demand Management Plan. Concurrent with the Planning Commission's recommendation of approval of the Phase I Precise Plan, the Planning Commission adopted Resolution No. 2702-2011, approving a Transportation Demand Management Plan for the Project, contingent upon City Council approval of the General Plan Amendment, the Redevelopment Plan Amendment, the Development Agreement, and the Zoning Ordinance Amendment and RDA approval of the Disposition and Development Agreement. The approvals and development policies described in this Recital F are collectively referred to herein as the "Project Approvals." G. City has determined that the Project presents certain public benefits and opportunities which are advanced by City and Developer entering into this Agreement., This Agreement will, among other things, (1) reduce uncertainties in planning and provide for the orderly development of the Project; (2) mitigate many significant environmental impacts currently in existence at the Project Site; (3) result in the development of critical public facilities and other infrastructure improvements; (4) strengthen the City's economic base with a variety of high quality long-term jobs, in addition to shorter,term construction jobs; (5) provide for and generate substantial revenues for the City in the form of one-time and annual -fees, taxes, exactions, and other fiscal benefits; (6) promote high quality design and development; and (7) otherwise achieve the goals and Purposes for which the Development Agreement Statute was enacted. K The complexity, magnitude, and long-term build out of the Project would not be feasible if City had not determined, through this Agreement, to provide a sufficient degree of certainty in the land use regulatory process to justify Developer's substantial financial investment associated with development of the Project. In recognition of the benefits to City described in the preceding Recital, together with the other public benefits that will result from the development of the Project, Developer will receive by this Agreement assurance that it may proceed with the Project in accordance with the Applicable Law (defined below), and therefore desires to enter into this Agreement. 1. The City Council, after conducting a duly noticed public hearing, has found that this Agreement is consistent with the General Plan and with the applicable Specific Plan and has conducted all necessary proceedings, in accordance with the City's rules and regulations for the approval of this Agreement. J. On March 14, 2011, following a duly noticed public hearing, the Planning Commission adopted Resolution No. 2702-2011, recommending that the City Council approve this Agreement. Following City Council certification of the EIR and adoption of the General Plan Amendment, the Redevelopment Plan Amendment, the Zoning Ordinance Amendment, and the Precise Plan, the City Council at a duly noticed public hearing adopted City Ordinance No., 1438-2011, approving and authorizing the execution of this Agreement. MN 1614805.1 AGREEMENT NOW, THEREFORE, in consideration of the premises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: ARTICLE 1. DEFINITIONS "Administrative Agreement Amendment" shall have that meaning set forth in Section 10.02(a) of this Agreement. "Administrative Project Amendment" shall have that meaning set forth in Section 10.01(a) of this Agreement. "Agreement" shall mean this Development Agreement. "Applicable Law" shall have that meaning set forth in Section 8.03 of this Agreement. "Business Park" shall have that meaning set forth in Section 3.01 of this Agreement. "City Law" shall have that meaning set forth in Section 9.01 of this Agreement. "Community Facilities District (CFD)" shall have that meaning set forth in Section 6,06 of this Agreement. "Conveyed Property" shall have that meaning set forth in Section 3.01 of this Agreement, "Deficiencies" shall have that meaning set forth in Section 12.02(a) of this Agreement. "Development Agreement Statute" shall have that meaning set forth in Recital A of this Agreement. "Disposition and Development Agreement (DDA)" shall have that meaning set forth in Recital F(4) of this Agreement. "Effective Date" shall have that meaning set forth in Section 2.01 of this Agreement. "Floor Area Ratio (FAR)" shall have that meaning set forth in Section 3.02 of this Agreement., "Judgment" shall have that meaning set forth in Section 12.02(a), of this Agreement. 1v N1614805.1 4 "Mitigation Monitoring and Reporting Program" or"MMRP" shall have that meaning set forth in Recital F(l) of this Agreement. "Non-Assuming Transferee" shall have that meaning set forth in Section 11.03 of this Agreement. "Notice of Compliance" shall have that meaning set forth in Section 11.04 of this Agreement. "Periodic Review" shall have that meaning set forth in Section 13.03(a) of this Agreement. "Precise Plan" shall have that meaning set forth in Section 3.,04 of this Agreement. "Project" shall have that meaning set forth in Recital D of this Agreement. "Project Approvals" shall have that meaning set forth in Recital F of this Agreement. "Project Site" shall have that meaning set forth in Recital C of this Agreement. "Subsequent Approvals" shall have that meaning set tbrth in Section 3.04 of this Agreement. "Term" shall have that meaning set forth in Section 2.02 of this Agreement. "Transfer Agreement" shall have that meaning set forth in Section 11.02(a) of this, Agreement. "Transferee" shall have that meaning set forth in Section 11.01 of this Agreement. ARTICLE 2. EFFECTIVE DATE AND TERM Section 2.01. Effective Date, This Agreement shall become effective upon the date the ordinance approving this Agreement is adopted by the City Council and this Agreement is fully executed by the parties (the "Effective Date"), subject to the provisions of Government Code, Section 65867.5(a). The Effective Date is that date set forth at the beginning of this Agreement Section 2.02. Tenn. The term of this Agreement (the "Term") shall commence upon the Effective Date and continue for a period of twenty(20) years. ARTICLE 3. THE PROJECT AND PROJECT APPROVAL PROCESS Section 3.01. The Project Site. The Project Site comprises (1) the area commonly known as the Oyster Point Business Park ("Business ParlC), and (2) certain property acquired from RDA pursuant to the DDA(the "Conveyed Property"). MN1614805.1 5 The Project Site is described more particularly in Exhibit A and is depicted in Exhibit B, Section 3.02. The Project. The Project consists of development of the improvements, amenities, and facilities described below as comprising the Phase I City(Phase IC) and Phases 1, 11, 111, and IV Developer,(Phases ID, IID, HID, and IND) Improvements. The Project will include construction of a total of Lip to 2,254,230 gross square feet of research and development and office buildings, predicated upon a Floor Area Ratio ("FAR") calculation of 1.25. The FAR calculation takes into account certain areas (1) reserved for public amenities, including any private streets, beach, park, portion of the Bay Trail, or other rights of way, public open space, public parking area, or recreational area, and (2) available for potential future development. Section 3.03. P cct Phasing. The Project will be constructed in several phases, generally as set forth below. The improvements comprising each phase are identified and depicted in Exhibit Q attached hereto. The Phase IC Improvements and Phase ID Improvements will be initiated prior to the Phases, IID,, HID, and IVD Improvements. (a) Phase ICIrnprovernents. The "Phase IC Improvements" consist of- (i) Streets and utilities (including grading, subgrade, base, paving, curb and sidewalk, street lights, storm water, sanitary sewer, coiribined trench for gas electric, and telecom, impermeable utility trench at sanitary landfill areas, and temporary streets and utilities) in the following locations: a. At the future street ",hub" area b. Extending east from the hub across the Oyster Point Marina area (ii) Repair of and/or upgrade to the clay cap covering the Oyster Point Landfill on specified City-owned parcels; (iii) Reconfiguration and reconstruction of existing parking areas at specified City-owned parcels-, (iv) Grading and construction of open space recreation areas on specified City-owned parcels; (v) Demolition and grading at the future "hotel site" on specified City- owned parcels; and (vi) Landscaping of the beach/park area on the Conveyed Property; MN1614805,1 6 (vii) Landscaping and other improvements, including construction of portions of Bay Trail, public restrooms and palm promenade, on specified City-owned parcels; (viii) Repair of the clay cap covering the Oyster Point Landfill on specified City-owned parcels and raising the level of certain portions of the Oyster Point Landfill and its perimeter to counteract the projected effects of sea level rise. (b) Phase ID Improvements. The "Phase ID Improvements" consist of' (i) Repair of the clay cap covering the Oyster Point Landfill on the Conveyed Property; (ii) Remediation of the area identified as "Sump I (iii) Installation of methane control and monitoring systems on the Conveyed Property; (iv) Relocation of refuse on the Conveyed Property to accommodate new buildings; and (v) Development of buildings on the Conveyed Property with a minimum of 508,000 square feet for the uses specified in this Agreement and in the applicable precise plan. (c) Phases JID, IIID and IVD Irn.provernents. The "Phase 111), HID, and 1VD Improvements" consist of- (i) Development of streets and utilities (including grading, subgrade, base, paving, curb and sidewalk, street lights, storm water, sanitary sewer, combined trench for gas electric, and telecom, impermeable utility trench at sanitary landfill areas, and temporary streets and utilities) at the Business Park, (ii) Relocation and expansion of capacity of Sewer Pump Station at 383 Oyster Point Boulevard, (iii) Landscaping within the 100-foot shoreline band at the Business Park; and (iv) Development of buildings within the Business Park area and part of the Conveyed Property so that the FAR across the entire Project Site will be 1.25, comprising a total of up to 2,254,230 gross square feet of development. Section 3.04. Subsequent Approvals. In addition to the Project Approvals set forth in Recital F, certain other land use approvals, entitlements, and permits are necessary MNI x514805.1 7 or desirable for implementation of the Project ("Subsequent Approvals"), The Subsequent Approvals may include, without limitation, the following: separate final development plans for Phases 111), HID, and lVD of the Project (each a "Precise Plan"), design review approvals, improvement agreements, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, rezonings, permits, and any amendments to, or repealing of, any of the foregoing. All Subsequent Approvals shall be consistent with the terms of the Agreement and shall be exercised in a manner that supports the vested rights granted by the Agreement. ARTICLE 4. OBLIGATIONS OF DEVELOPER Section 4.01. Obligations of Developer Generally. The parties acknowledge and agree that the City's agreement to perform and abide by its covenants and obligations set forth in this Agreement is a material consideration for Developer's agreement to perform and abide by its long term covenants and obligations,, as set forth herein, including performance of the applicable mitigation measures identified in the MMRP. Section 4.02. Cites. (a) Developer shall pay those processing, inspection and plan checking fees and charges required by the City for processing applications and requests for Subsequent Approvals under the applicable regulations in effect at the time such applications and requests are submitted to the City, (b) Consistent with the terms of the Agreement, including the provisions of Section 8.04, City shall have the right to impose only those development fees (the "Development Fees") identified in Exhibit E-1, and limited to (i) those actually in effect at the time the Agreement is executed, at the rates in effect at the time the Development Fee is due including any lawfully imposed adjustments and escalators set forth in the applicable resolutions and ordinances, which are identified in Exhibit E-1, and (ii) those other generally applicable fees and exactions identified in Exhibit E-1, at a rate for each such fee or exaction no greater than the rate specified for such fee or exaction in Exhibit E-1. Development Fees shall be due upon issuance of building permits or certificates of occupancy for the Project in accordance with the ordinances imposing such fees, as may be appropriate, except as otherwise provided under the Agreement. Section 4.03. Mitigation Measures. Developer and City shall comply with the MMRP approved in conjunction with the EIR for the Project, as it may be modified from time to time in accordance with the MMRP or other law. Section 4.04. Additional Consideration. As consideration for its vested rights to develop the Project in accordance with this Agreement and the separately MN]614805,1 8 executed DDA between Developer and the RDA, Developer has committed to make payments to the RDA as follows: (a) At the time the City/RDA conveys the Conveyed Property from City/RDA to Developer, and upon satisfaction of all requirements pursuant to the DDA for conveyance by City/RDA and payment by Developer, Developer will make a cash payment to RDA of two million two hundred fifty thousand dollars ($2,250,000). In the event that at the time payment is due, the RDA is either not in existence or prohibited from collecting and utilizing past, current, or future tax increment revenue for redevelopment purposes, payment under this subsection (a) shall be made to the City. (b) At the time Developer commences construction of Phase 1111), which shall be defined as developer obtaining the first building permit for the first building within Phase 1111) or lVD of the Project, Developer will make an additional cash payment to RDA of two million two hundred fifty thousand dollars ($2,250,000). In the event that at the time payment is due, the RDA is either not in existence or prohibited from collecting and utilizing past, current, or future tax increment revenue for redevelopment purposes, payment under this subsection (b) shall be made to the City. ARTICLE S. OBLIGATIONS OF CITY Section 5.01. Obligations of City Generally. The parties acknowledge and agree that Developer's agreement to perforrn and abide by its covenants and obligations set forth in this Agreement, including Developer's decision to process the siting of the Project in the City, is a material consideration for City's agreement to perform and abide by the long term, covenants and obligations of City, as set forth herein. Section 5.02. Protection of Vested Rights. To the maximum extent permitted by law, City shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by the Agreement can be enjoyed by Developer and to prevent any City Law, as defined below, from invalidating or prevailing over all or any part of the Agreement. City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure the Agreement remains in full force and effect. City shall not support, adopt, or enact any City Law, or take any other action which would violate the express provisions or intent of the Agreement. Section 5.03. Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, City will assist Developer in obtaining capacity for sewer, water, and storm services as may be necessary to serve the Project. Developer agrees that it shall pay the then-effective fees for the services provided pursuant to this Section. Section 5.04. Right to Rebuild. Developer may renovate or rebuild the Project or any part thereof within the Term of the Agreement should it become necessary due to MN1614805.1 9 natural disaster, changes in seismic requirements, or should the buildings located within the Project become functionally outdated, within Developer's sole discretion, due to changes in technology. Any such renovation or rebuilding shall be subject to the square footage, height limitations and FAR vested by the Agreement, and shall comply with the Project Approvals, the building codes existing at the tune of such rebuilding or reconstruction, and the requirements of CEQA. ARTICLE 6. COOPERATION- IMPLEMENTATION Section 6.01. Processing Applications for Subsequent Approvals. The City will not use its discretionary authority in considering any application for a Subsequent Approval to change the policy decisions reflected by the Agreement or otherwise to prevent or delay development of the Project. Section 6.02. Timely Submittals by Developer. Developer acknowledges that City cannot expedite processing Subsequent Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other inforination necessary for City to carry out its obligations hereunder; and (ii) cause Developer's planners, engineers, and all other consultants to provide to City in a timely manner all such.documents, applications, plans and other necessary required materials as set forth in the Applicable Law, It is the express intent of Developer and City to cooperate and diligently work to timely process any and all Subsequent Approvals. Section 6.03. Timely Processing by City. Upon submission by Developer of the application for any Subsequent Approval and processing fees, City shall promptly and diligently commence and complete all steps necessary to act on the application including, without limitation, (i) providing at Developer's expense, as requested by Developer or determined to be necessary by the Chief Planner, reasonable over-time staff assistance and/or staff consultants for planning and processing of the application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on the application, City shall ensure that adequate staff is available, and shall authorize overtime staff assistance as may be necessary, to timely process the application. Section 6.04. Review of Subsequent Approvals. The City may deny an application for a Subsequent Approval only if such application does not comply with the Agreement or Applicable Law (as defined below) or with any state or federal law, regulations, plans, or policies as set forth in Section 9.,03. Section 6.05. Other Government Permits. The City shall cooperate with Developer in its efforts to obtain, as may be required, permits and approvals from other governmental or quasi-govern nental entities and shall, from time to time at the request of Developer, use its best efforts to assist Developer and to ensure the timely processing of such pen-nits and approvals. MN1614805.1 10 Section 6.06, Community Facilities District. (a) Community Facilities District; Formation,. Subject to subsection (f)below, upon the filing of a petition by Developer pursuant to Government Code Section 53318(c), the Parties shall cooperate in good faith to establish one or more Community Facilities Districts ("CFD(s)")pursuant to the Mello-Roos Act (Government Code Section 53311 et seq.). The aggregate of the boundaries of the CFD(s) shall be coextensive with those of the areas subject to facilities assessment, identified in Exhibit 1-1-1 and the areas defined as "Public CFD Property", as identified in Exhibit H-2, unless the Parties otherwise agree. Upon the filing of a petition by Developer with regards to the capital facilities or the developer or city for the service obligations, the City Council shall consider adoption of a resolution of intention to establish the CFD(s) and, following adoption, City shall use good faith, diligent efforts, in compliance with Government Code Section 53318 et seq., to establish and implement the CFD(s) pursuant to the terms of this Agreement, including scheduling of necessary public hearings and adoption of a resolution of formation. City shall cause the CFD(s), upon formation, to become subject to and to comply with the provisions of this Agreement specifically applicable to the CFD(s). The City shall be responsible for conducting all proceedings for the establishment of the CFD(s), including the adoption of all resolutions,'Ordinances and orders and recording of'maps, notices, releases and the conduct of all hearings, elections and other public meetings under the Mello-Roos Act to establish the CFD(s), levy the Special Taxes and, as appropriate, provide for issuance of the CFD Bonds. To the extent City has not already adopted policies required by Government Code Section 53312.7, City agrees to use its best efforts to adopt such policies within ninety(90) days following the Effective Date. Developer acknowledges and agrees that City's policies may require, among other things, that the CFD proponent(in this case, Developer), provide a letter of credit or other credit enhancement instrument in forrn and amount reasonably satisfactory to City which is sufficient to ensure payment of the principal and interest payments on the CFD Bonds for up to two (2) years following issuance thereof(computed without regard to the availability of capitalized interest or amounts on deposit in a debt service reserve fund). (b) Public Benefit Facilities, Subject to caps on the total amount of not CFD Bond proceeds and the total tax and assessment rate set forth in subsections (d) and (e)below, the CFD(s) shall finance, to the extent such items are not financed from other sources at the election of Developer, the design and acquisition or construction of those off-site and on-site public facilities (identified in Exhibit G) necessary for development of the Project which may lawfully be financed under the Mello-Roos Act and other applicable law as set forth in the City's resolution of formation (collectively, the "Public Benefit Facilities"). Financing of the Public Benefit Facilities with CFD Bonds shall be subject to approval of the City, based on the unqualified written opinion of a nationally-recognized bond counsel that 1VIN1614805.1 11 interest on the CFD Bonds will be federally tax exempt. The area that will be assessed for the Public Benefit Facilities is depicted on Exhibit 1-1-1. (c) Maintenance and Services Costs. Subject to an annual cap of$149,254, payable by Developer, and an annual cap of S 149,254 payable by City, each adjusted annually on January 1, commencing January 1, 2013, by the proportionate increase in the Producer Price Index—All Commodities as published by the Bureau of Labor Statistics of the U.S. Department of Labor, the CFD(s) shall finance maintenance and services ("Services") within the Public CFD Property described in Exhibit H-2. (d) Advance of Expenses; Reimbursement. Developer shall advance to City the estimated out of pocket costs, of formation of the CFD(s), sale of CFD Bonds, and other costs and expenses associated with the CFD(s) ("Advanced Costs"). Such Advanced. Costs may include, without limitation, legal, financial, appraisal and engineering costs and expenses associated with (i) formation of the District; (ii) determination of the rate and method of apportionment and levy of the Special Tax; (Ili) review and approval of the plans and specifications for construction of the Public Benefit Facilities,- (W) determination of the value of property; (v) sale of CFD Bonds; and (vi) any other costs or expenses reasonably incurred in Connection with the CFD(s). All such Advanced Costs, together with those reasonable out-of-pocket legal, engineering and financial services costs incurred by Developer directly related to establishment and implementation of the CFD(s) which have been approved by the Community Development Director or his or her designee in his or her reasonable discretion and which may lawfully be financed under the Mello-Roos Act and other applicable law, shall be rcimbursed to Developer from proceeds of the sale of CFD Bonds. (e) Issuance of CFD Bonds. Upon successful formation of a CFD and approval of the Special Tax, and subject to the restrictions in this subsection (d) and in subsection (e) below, bonds shall be issued ("CFD Bonds"), the proceeds of which shall be used to finance the Public Benefit Facilities, to the extent the Public Benefit Facilities legally and feasibly may be financed utilizing this method of financing. The amounts, timing and terms of the issuance and sale of the CFD Bonds shall be determined by the City, in consultation with the Developer and the City's bond counsel, financial advisors and/or underwriters. Subject to the state of development of the Project and prevailing,bond market conditions, the timing of the sale of the CFD Bonds shall be coordinated, as closely as possible, with the phasing of the development of the Project to provide financing for the Public Benefit Facilities in a timely fashion to meet the needs of the respective phases of development of the Project. If necessary, the CFD Bonds may be issued in series to help correspond to such phases. Developer agrees to assist the City in the issuance of the CFD Bonds by providing financial and development information reasonably required for due-diligence and disclosures relating to MN1614805.1 12 the issuance of the CFD Bonds and to provide for any required continuing disclosures under applicable securities laws. (f) Special Tax. The CFD(s) shall be authorized to levy, and Developer shall approve (by affirmative vote or other legally acceptable method), a tax or taxes ("Special Tax"), in accordance with the rate and method of apportionment of the Special Taxes approved in the completed proceedings for the applicable CFD. The Special Taxes shall be determined and collected annually by the City against all taxable parcels as defined by the rate and method of apportionment of the Special Taxes for the applicable ,CFD., The Special Taxes shall be collected in the same manner and at the same time as ad valorem property taxes, unless some other method of collection is specified by the City. The Special Taxes shall be set at an amount sufficient to pay the estimated annual principal of and interest on the CFD Bonds, together with required debt service coverage requirements and the annual costs of calculation, collection and disbursement of the Special Taxes and the annual administration, engineering, and inspection costs associated with the applicable CFD; provided, however, the Special Taxes so set shall be in an amount such that, at the time the rate and method of apportionment of the Special Taxes is approved, the estimated total annual taxes and assessments to be levied on each taxable parcel within any CFD district shall not exceed 1.75% of the parcel's projected assessed valuation based on a reasonable estimate of the value of the parcel and the improvements to be constructed thereon. The rate and method of apportionment shall be drafted to allow a property owner to permanently satisfy the Special Tax (and remove the lien thereof) as to any taxable parcel by prepayment pursuant to Section 53 344 of the Mello-Roos Act and pursuant to prepayment conditions adopted by the City pursuant to Section 53321. (g) City's Reservation of Discretion. It is expressly acknowledged, understood and agreed by the Parties that (i) City reserves full and complete discretion with respect to legally required findings that must be made in connection with formation of the CFD(s); (ii) nothing in this Agreement is intended to or shall limit City's ability to adopt legally required findings with respect to fori-nation of the CFD(s)�; and (iii) nothing in this Agreement is intended to or shall prejudge or commit to City regarding the findings and determinations to be made with respect thereto. (h) Costs If No CFD Formed. In the event that City is unable to make the legally required findings in connection with the -formation of a CFD and the issuance of CFD Bonds for any reason, City shall not be liable for any resulting costs to Developer and Developer shall have the right to terminate this Agreement by written notice to City given within thirty(30) days following the date City is unable or elects not to proceed with such formation of the CFD and issuance of CFD Bonds. If Developer opts not to MN1614805.1 13 terminate this Agreement then Developer shall nonetheless be responsible for constructing all of the Public Benefit Facilities at its expense. (i) Developer's Cooperation. In connection with the establishment and implementation of the CFD(s), Developer (i) will execute all necessary petitions and ballots and waive all election waiting and protest periods at City's request and prior to the issuance of any building permit on any phase of the Project; (ii) support City's adoption of local policies related to use of CFD financing, which may include a requirement that the CFD proponent provide, at its expense, a letter of credit or other credit enhancement instrument sufficient to ensure repayment of the principal and interest payments on the CFD Bonds for up to two (2) years following issuance thereof, as reasonably determined by City; (iii) cooperate in the development of rate and method of apportionment or assessment fo,nnula; and (iv) allow special tax liens to encumber Phases ID, 1113, HID, and IVD of the Project in order to accomplish the required construction projects. Developer's Consent. Developer irrevocably consents to the formation of the CFD(s), the issuance of the CFD Bonds, the imposition of the Special Taxes against the Project Site at rates and pursuant to a method of apportionment appropriate to fund the debt service on the CFD Bonds sold to finance the Public Benefit Facilities, and agrees not to protest or object to, and to vote in favor of, formation of the CFD(s) or levy of appropriate Special Taxes consistent herewith. Developer has agreed to the financing provisions set forth in this Section 6.06, and to perforrn the obligations hereunder in exchange for the consideration and benefits provided to Developer by City under this Agreement, including the vested right to develop the Project, Developer acknowledges and agrees that CFD Bonds shall not be issued to fund any on-site public improvements or any other infrastructure or fees other than the Public Benefit Facilities. (k) Limited Liability of City. Notwithstanding any other provision of this Agreement, City shall not be liable for or obligated to pay any costs or expenses in connection with the CFD(s) or the Public Benefit Facilities except to the extent monies are available (from Advanced Costs,proceeds of CFD Bonds, or Special Taxes) and specifically authorized by law for payment of such costs or expenses. ARTICLE 7. PRECISE PLANS Section TOL Developer shall submit to City, for approval by the Planning Commission, separate Precise Plans for each phase of the Project, Each Precise Plan shall be consistent with the General Plan, Specific Plan, and Redevelopment Plan, and shall include all required Precise Plan application contents as set forth in the Specific Plan, including without limitation, elevations and site plans showing (i) size and location of buildings, infrastructure, and improvements; (ii) specific MN 1614805A 14 location and treatment of landscape amenities; and (iii) grading and drainage plans for the area included within the specific Precise Plan, as necessary. Section 7.02. The Phase I Precise Plan in the form approved by the City Council is attached to this Agreement as Exhibit Q. Upon approval by the City, each subsequent Precise Plan shall be incorporated automatically into the DA as a part of Exhibit D. Section 7.03. Any subsequent material change, modification, revision or alteration of any approved Precise Plan shall be submitted for approval according to the procedures established in the Specific Plan. Any proposed material change, modification, revision or alteration shall be approved or disapproved by the Planning Commission within seventy-five (75) calendar days of submittal of a complete Precise Plan Application, including, but not limited to, any required CEQA analysis and documents. If the City refuses or fails to approve or disapprove the revision, modification or alteration to the Precise Plan within said seventy-five (75) calendar day period, the City shall, within ninety(90) calendar days after receipt of such submittal, provide the Developer with a written statement of the reasons the City refused or failed to approve such submittal. If the City fails to approve or deny the amended Precise Plan and to provide the Developer with the written statement described above, Developer shall have the right to attempt to compel City action on the requested approval through the filing of a writ of mandate. ARTICLE 8. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT Section 8.01. Vested Right to Develop. Developer shall have a vested right to develop the Project on the Project Site in accordance with the terms and conditions of this Agreement and Applicable Law. Nothing in this section shall be deemed to eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals. Section 8.02. Permitted Uses Vested by This-Agreement. The permitted uses of the Project Site; the density and intensity of use of the Project Site-, the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; and other terms and conditions of development applicable to the Project, shall be as set forth in the Project Approvals and, as and when they are issued (but not in limitation of any right to develop as set forth in the Project Approvals), the Subsequent Approvals. Permitted uses of the Project Site shall include, without limitation, research and development, office, business services, and employee-serving amenities such as personal service establishments, eating and drinking establishments, childcare, and physical fitness facilities. MN 1614805.1 15 Section 8.03. Applicable Law. The rules, regulations, official policies, standards and specifications if icati ons applicable to the Project (the"Applicable Law") shall be those set forth in this Agreement, the Project Approvals, and the Subsequent Approvals, and, with respect to matters not addressed by this Agreement, the Project Approvals, or the Subsequent Approvals, those rules, regulations, official policies, standards and specifications (including the General Plan and City ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, and heights, and the fees, assessments, exactions, and taxes in force and effect on the Effective Date of this Agreement, or as specified in Exhibit E-1. Section 8.04. Fees. (a) Existing Fees. The Parties understand and agree that as of the Effective Date the fees, taxes, exactions, and assessments listed in Exhibit E-1 are the only City fees, taxes, exactions, and assessments. Except for those proposed -fees, exactions or assessments set forth in Exhibit E-1, City is unaware of any pending efforts to initiate, or consider applications for new or increased fees, taxes, exactions, or assessments covering the Project Site, or any portion thereof. This shall not prohibit City from imposing on Developer any fee or obligation that is imposed by a regional agency in accordance with state or federal obligations and required to be implemented by City. Developer and City are each responsible for paying its respective allocable share of existing, new or increased fees and exactions lawfully imposed on the Project by other public agencies. (b) Future Fees,. City understands that long term assurances by City concern-ling fees, taxes and assessments were a material consideration for Developer agreeing to process the siting of the Project in its present location and to pay long term fees, taxes and assessments described in this Agreement. City shall retain the ability to initiate or process applications for the formation of new assessment districts covering all or any portion of the Project Site. Notwithstanding the foregoing, and except as provided in Section 6.06, Developer retains all its rights to oppose the formation or proposed assessment of any new assessment district or increased assessment., In the event an assessment district is lawfully formed to provide funding for services, improvements,maintenance or facilities which are substantially the same as those services, improvements, maintenance or facilities being funded by the fees or assessments to be paid by Developer under the Project Approvals or this Agreement, such fees or assessments to be paid by Developer shall be subject to reduction/credit in an amount equal to Developer's new or increased assessment under the assessment district. Alternatively, the new assessment district shall reduce/credit Developer's new assessment in an amount equal to such fees or assessments to be paid by Developer under the Project Approvals or this Agreement. MN 1614805.1 16 (c) Fees Requested by Outside Agencies. The City agrees to exclude Developer from any and all collection agreements regarding fees, including, but not limited to, development impact fees, which other public agencies request the City to impose at City's discretion on the Project or the Project Site after the Effective Date through the Term of this Agreement. The City will not withhold any action, approval or authorization for the Project at the request of any other public agency unless required to do so by law. (d) Fee Reductions or Credits. Developer shall not be required to pay two times for the cost which is covered by any exaction, fee or assessment. Accordingly, the fees described in Section 8.04 shall be subject to reductions/credits in an amount equal to Developer's actual cost of complying with any lawfully imposed exaction, tax, or assessment generally which is established to produce funds to pay for similar uses or purposes, whether imposed on the Project, the Project Site, the Project Approvals or the Subsequent Approvals. Notwithstanding the foregoing, no such reduction/credit shall be provided as a result of any assessment that arises from an assessment district requested by Developer under Section 6,06. Section 8.05. No Public Procurement Process. Nothing in this Agreement, including any related agreements for financing of infrastructure or public amenities, shall require Developer to follow any statutory provisions, regulations, rules, or procedures applicable to City and/or RDA with respect to bidding for public procurement or contracting; nor shall City attempt to impose any such requirement,on.Developer or its tenants by way of'ordinance or condition of approval. Section 8.06. Uniforin Codes. City may apply to the Project, at any time during the Term, then current California Building Standards Code and other uniform construction codes, including any lawful local modifications and amendments, and City's then current design and construction standards for road and storm drain facilities, provided any such uniform code or standard has been adopted and uniformly applied by City on a citywide basis and provided that no such code or standard is adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project. Section 8.07. Environmental Mitigation, The parties understand that the EIR was intended to be used in connection with each of the Project Approvals and Subsequent Approvals needed for the:project. Consistent with the CEQA policies and requirements applicable to the EIR, City agrees to use the EIR in connection with the processing of any Subsequent Approval to, the maximum extent allowed by law and not to impose on the Project any mitigation measures except those specifically imposed by the Project Approvals and the MMRP, or as required pursuant to CEQA, based on any required additional CEQA analysis, or specifically required by Applicable Law. MN1614805A 17 Section 8.08. Life of Development Approvals. The term of any approval, permit, or other land use entitlement approved as (i) a Project Approval, and in effect as of the Effective Date of this Agreement, or(ii) Subsequent Approval, shall automatically be extended for the longer of the duration of the Agreement (including any extensions) or the term otherwise applicable to such Project Approval or Subsequent Approval if the Agreement is no longer in effect. Section 8.09. Timing of Projgc l Construction and Lgm, Ietion. (a) Project Phasing. The Project will be built in several phases during the Term of the Agreement, as described more fully in Section 3.03 above. (b) Notwithstanding any provision of this Agreement or any other Applicable Law, City and Developer expressly agree that there is no requirement that Developer initiate or complete development of the Project or any particular phase of the Project within any particular period of time,, and City shall not impose such a requirement on any Project Approval. The parties acknowledge that Developer cannot at this time predict when or the rate at which phases will be developed, or, following initiation of Phase 1, the order in which phases will be developed. Notwithstanding any provision of this Agreement, Developer shall commence and complete the Phase IC and Phase ID improvements prior to commencement of construction or any Phase It improvements; and shall complete construction of the 30,000 square feet of shell space for amenities, as described in the Transportation Demand Management Plan, prior to the earlier of(i) issuance of'a building permit for any building in the final phase of construction, or(ii) completion of 1,800,000 square feet of development. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and dernand, interest rates, competition and other similar factors. (c) In light of the foregoing and except as set forth in subsection (d) below, the parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and, following initiation and completion of Phase 1, Developer shall determine which parts of the Project Site to develop at what time, and in what sequence. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3 d 465 (19 84), 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, assuming Developer has obtained all required approvals, Developer shall have the right to develop the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. MNI 614805.1 18 (d) Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof. ARTICLE 9. CHANGES IN LAW Section 9,01. No Conflicting Enactments. City shall not impose on the Project (whether by action of the City Council or Planning Commission, or by initiative, referendum or other means) any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each individually, a "'C'ity Law") that is in conflict with Applicable Law or this Agreement or that reduces the development rights or assurances provided by this Agreement. Without limiting the generality of the foregoing, any City Law shall be deemed to conflict with Applicable Law or this Agreement or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of'a general enactment which applies to or affects the Project: (a) Change any land use designation or permitted use of the Project Site; (b) Limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc.) for the Project (except when necessary pursuant to Section 9.,03); (c) Limit or control the location of buildings, structures, grading, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in the Project Approvals or Subsequent Approvals (as and when they are issued); (d) Limit or control the rate, timing,, phasing or sequencing of the Project as set .Forth in this Agreement; (e) Apply to the Project any City Law otherwise allowed by this Agreement that is not uniformly applied on a City-wide basis to all substantially similar types of development projects and project sites; (f) Result in Developer having to substantially delay construction of the Project or require the issuance of additional permits or approvals by the City other than those required by Applicable Law; (g) Limit the processing or procuring of applications and approvals of Project Approvals; (h) Establish, enact, increase, or impose against the Project or Project Site any fees, taxes (including without limitation general, special, and excise taxes), assessments, liens or other monetary obligations, other than those specifically N/ 1614805A 19 permitted by this Agreement and referred to in Exhibit E-I or other connection fees required by third party utilities; or (1) Substantially increase the cost of constructing or developing the Project or any portion thereof. Section 9.02. Initiatives and Referenda, (a) If any City Law is enacted or imposed by initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement, such Law shall not apply to the Project, (b) Without limiting the generality of any of the foregoing, no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, building permits or other entitlements to use that are approved or to be approved, issued or granted within the City, or portions of the City, shall apply to the Project. (c) To the maximum extent permitted by law, City shall prevent any City Law from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect, (d) Developer reserves the right to challenge in court any City Law that would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement. Section 9.03. State and Federal Law. As provided in California Government Code Section 65869.5, the Agreement shall not preclude the application to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations. ARTICLE 10. AMENDMENT Section I O�.0 1. Amendments to Project Approvals and Subsequent Approvals Excluding this Ageement. To the extent permitted by state and federal law, any Project Approval or Subsequent Approval may, from time to time, be amended or modified in the following manner: (a) Administrative Project Amendments. Upon the written request of Developer for an amendment or modification to a Project Approval or Subsequent Approval, the Chief Planner or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the P, t1614805.1 20 Chief Planner or his/her designee finds that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the EIR and MMRP, the amendment shall be determined to be an "Administrative Project Amendment" and the Chief Planner or his/her designee may, except to the extent other-wise required by law, approve the Administrative Project Amendment without notice and public hearing. Without limiting the generality of the foregoing, lot line adjustments, reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the design concepts of the Project, variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts, of the Project, and minor adjustments to the Project Site diagram or Project Site legal description shall be treated as Administrative Project Amendments. Notwithstanding the foregoing, the Chief Planner shall have sole discretion to refer a request for any amendment or modification that has generated substantial public controversy or involves significant changes in land use planning to the Planning Commission for review and action. (b), Non-Administrative Project Amendments. Any request of Developer for an amendment or modification to a Project Approval or Subsequent Approval which is determined not to be an Administrative Project Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement. Section 10.02. Amendment of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows: (a) Administrative Agreement Amendments. Any amendment to this Agreement which does not substantially affect (i) the Term of this Agreement; (ii)permitted uses of the Project Site; (iii) provisions for the reservation or dedication of land; (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions; (v) the density or intensity of use of the Project Site or the maximum height or size of proposed buildings; or(vi) monetary contributions by Developer, shall be deemed an "Administrative Agreement Amendment" and shall not, except to the extent otherwise required by law,require notice or public hearing before the parties may execute an amendment hereto. Such amendment may be approved by City resolution. (b) Other Amendment. Any amendment to this Agreement other than an Administrative Agreement Amendment shall be subject to approval by the MNI 614805.1 21 Planning Commission (by advisory resolution) and City Council (by ordinance) following duly noticed public hearing before the Planning Commission and City Council, consistent with Government Code Sections 65867 and 65867.5. (c) Amendment Exemptions. No Subsequent Approval, or amendment of a Project Approval or Subsequent Approval, shall require an amendment to this Agreement. Instead, any such matter automatically shall be deemed to be incorporated into the Project and vested under this Agreement. ARTICLE H. ASSIGNMENT, TRANSFER AND NOTICE Section 11.01. Assignment and Transfer. Subject to this Article 11, and Applicable Law, Developer,may transfer or assign all or any portion of its interests, rights or obligations under the Agreement, the Project Approvals, or Subsequent Approvals to third parties acquiring an interest or estate in the Project or any portion thereof including, without limitation, purchasers or lessees of lots, parcels or facilities (each a"Transferee"). An Assignment and Assumption of Rights and Obligations form is attached as Exhibit F. Section H.02. Transfer,Agreements. (a) In connection with the transfer or assignment by Developer of all or any portion of the Project (other than a transfer or assignment by Developer to an affiliated party or mortgagee, or a Non-Assuming Transferee (as defined in Section 11.03), Developer and the Transferee shall enter into a written agreement regarding the respective interests,, rights and obligations of Developer and the transferee in and under the Agreement, the Project Approvals, and the Subsequent Approvals (a"Transfer Agreement"). Such Transfer Agreement shall include an executed Assignment and Assumption of Rights and Obligations, as set forth in Exhibit F, and may(i) release Developer from obligations under the Agreement, the Project Approvals, or the Subsequent Approvals that pertain to that portion of the Project being transferred, as described in the Transfer Agreement, provided that the Transferee expressly assumes such obligations; (ii) transfer to the Transferee vested rights to improve that portion of the Project being transferred; and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. (b) Developer shall seek City's prior written consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed, Failure by City to respond within forty-five(45) days to any request made by Developer for such consent shall be deemed to be City's approval of the Transfer Agreement in question. At the time Developer requests City's written consent, Developer shall submit to the City information describing Transferee's development experience and financial resources. City may refuse to give its consent only if, in light of the proposed Transferee's MN 1614905.1 66 reputation and financial resources, such Transferee would not in City's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the City Manager and is appealable by Developer,to the City Council, (c) Any Transfer Agreement shall be binding on Developer, City and the Transferee. Once approved by the Developer, the Transferee and the City and then upon recordation of any Transfer Agreement in the Official Records of San Mateo County, Developer shall automatically be released from those obligations assumed by the transferee therein. (d) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a Transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be canceled or diminished in any way by any breach or default by any such person. Section 11.03. Non-Assuming Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor City's consent shall be required in connection with the transfer of any property that has been established as one or more separate legal parcels for uses permitted under this Agreement. The transferee in such a transaction and its successors ("Non-Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non-Assuming Transferee from payment of applicable fees and assessments, or compliance with Applicable Law. Section 11.04. Notice of Compliance Generally. Within forty-five (45) days following any written request which Developer may make from time to time, City shall execute and deliver to Developer(or to any party requested by Developer) a written "Notice of Compliance," in recordable form, duly executed and acknowledged by City, that certifies: (a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications; (b) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; and (c) Any other information reasonably requested by Developer. The failure to deliver such a statement within such time shall constitute a conclusive MN1614805.1 23 presumption against City that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. ARTICLE 12. COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 12.01. Cooperation. (a) In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to the Agreement challenging the validity of any provision of the Agreement or any Project Approval or Subsequent Approval, the parties shall cooperate in defending such action or proceeding- City shall.promptly notify Developer of any such action against City and/or RDA. If City fails promptly to notify Developer of any legal action against City or if City fails to cooperate in the defense, Developer shall not thereafter be responsible for City's defense. The Parties shall use best efforts to select mutually agreeable legal counsel to defend such action, and Developer shall pay compensation for such legal counsel (including City Attorney time and overhead for the defense of such action), but shall exclude other City staff overhead costs and normal day-to-day business expenses incurred by City. Developer's obligation to pay for legal counsel shall extend to fees incurred on appeal. In the event City and Developer are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel and Developer shall pay its and the City's legal fees and costs. (b) The parties, agree that this Section 12.01 shall constitute a separate agreement entered into concurrently, and that if'any other provision of this Agreement, or the Agreement as a whole, is invalidated, rcndered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. Section 12.02. Cure.; Reapproval. (a) If, as a result of any administrative, legal, or equitable action or other proceeding, all or any portion of the,Agreement or the Project Approvals or Subsequent Approvals are set aside or otherwise made ineffective by any judgment in such action or proceeding ("Judgment"), based on procedural, substantive or other deficiencies ("Deficiencies"), the parties agree to use their respective best efforts to sustain and reenact or readopt the Agreement, and/or the Project Approvals, that the Deficiencies related to,unless the Parties mutually agree in writing to act otherwise: MN1614805,1 24 (i) If any Judgment requires reconsideration or consideration by City of this Agreement, Project Approval, or Subsequent Approval, then the City shall consider or reconsider,that matter in a manner consistent with the intent of this Agreement and with Applicable Law. If any such Judgment invalidates or otherwise makes ineffective all or any portion of this Agreement, Project Approval, or Subsequent Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement and with Applicable Law. City shall then consider readopting or reenacting this Agreement, or the Project Approval, Subsequent Approval, or any portion thereof, to which the Deficiencies related. (ii) Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that Developer may develop the Project as described herein, and adopting such ordinances, resolutions, and other enactments as are necessary to readopt or reenact all or any portion of this Agreement, Project Approvals, and/or Subsequent Approvals without contravening the Judgment. (b) The parties agree that this Section 12.02 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. ARTICLE 13. DEFAULT'; REMEDIES; TERMINATION Section 13.0,1. Defaults. Any failure by either party to perform any term or provision of the 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 mutual written consent), shall constitute a default under the Agreement. Any notice given shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be 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 thereafter, shall be deemed to be a cure within such 30-day period. Upon the occurrence of a default under the Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of the Agreement or, in the event of a material default, terminate the Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action. Section 13.02. Termination. If City elects to consider terminating the Agreement due to a material default of Developer, then City shall give a notice of intent to MN1614805.1 25 terminate the Agreement and the matter shall be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing, and elects to ten-ninate the Agreement, City shall give written notice of termination of the Agreement to Developer by certified mail and the Agreement shall thereby be terminated sixty(6,0) days thereafter; provided, however, that if Developer files an action to challenge City's termination of the Agreement within such 60-day period, then the Agreement shall remain in full force and effect until a trial court has affirmed City's termination of the Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired); provided, however, that the time period during which the Agreement shall remain in effect shall not exceed three (3) years. Section 13.03. Periodic Review. (a) Conducting the Periodic Review. Throughout the Term of the Agreement, at least once every twelve (12) rnoriths,following the execution of the Agreement, City shall review the extent of good-faith compliance by Developer with the terms of the Agreement ('"Periodic Review"). (b) Notice. At least five (5) calendar days prior to the Periodic Review, and in the manner prescribed in Section 14.09 of this Agreement, City shall make available to Developer a copy of any staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related exhibits concerning Developer's perforrnance hereunder. Developer shall be permitted an opportunity to respond to City's evaluation of Developer's performance, either orally at a public hearing or in a written statement, at Developer's election. Such response shall be made to the Chief Planner. (c) Good Faith Compliance. During the Periodic Review, the Chief Planner shall review Developer's good-faith compliance with the terms of this Agreement. At the conclusion of the Periodic Review, the Chief Planner shall make written findings and determinations, on the basis of substantial evidence, as to whether or not Developer has complied in good faith with the terms and conditions of this Agreement. The decision of the Chief Planner shall be appealable to the City Council. If the Chief Planner finds and determines that Developer has not complied with such terms and conditions, the Chief Planner may recommend to the City Council that it terminate or modify this Agreement by giving notice of its intention to do so, in the manner set forth in California Government Code Sections, 65867 and 65868. (d) Failure to Properly Conduct Periodic Review. If City fails, during any calendar year, to either(i) conduct the Periodic Review, or(ii) notify Developer in writing of City"s determination, pursuant to a Periodic Review, as to Developer's compliance with the terms of the Agreement and such MNI 614905.1 26 failure remains uncured as of December 31 of any year during the Term of the Agreement, such failure shall be conclusively deemed an approval by City of Developer's compliance with the terms of the Agreement. (e) Written Notice of Compliance. With respect to any year for which Developer has been determined or deemed to have complied with this Agreement, City shall, within thirty(30) days following request by Developer, provide Developer with a written notice of compliance, in recordable form, duly executed and acknowledged by City. Developer shall have the right, in Developer's sole discretion, to record such notice of compliance. Finality of: etermination. Any decision of the Chief Planner which is not appealed to the City Council as to Developer's compliance shall be final. Any Court action or proceeding to attack, review, set aside, void or annul any final decision of the City under its Periodic Review shall be commenced within thirty(30) days of the final decision by the City Council. (g) Costs. Costs reasonably incurred by the City in connection with the Periodic Review and related hearings shall be paid by Developer in accordance with the City's schedule of fees and billing rates for staff time in effect at the time of review., (h) Effect on Transferees. If Developer has effected a transfer so that its interest in the Project Site has been divided between Tran&fercc(s) in accordance with Section 11.01 above, then the Periodic Review hereunder shall be conducted separately with respect to each party, and the Chief Planner, and if appealed, the City Council shall make its determinations and take its actions separately with respect to each party,. If the Chief Planner or City Council terminates, modifies or takes such other actions in connection with a determination that such party has not complied with the terms and conditions of this Agreement, such action by the Chief Planner, or the City Council shall be effective only as to the party to whom the determination is made and the portions of the Project Site in which such party has an interest. (i) The rights and powers of the City Council under this Section 13.03 are in addition to, and shall not limit, the rights of the City to terminate or take other action under this Agreement on account of the commission,by Developer of an event of Default Section 13.04. Default by City or Developer. In the event City or Developer defaults under the terms of this Agreement, City or Developer shall have the rights and remedies provided in Section 13.06. Section 13.05. Enforced Delay; Extension of Time of Performance. In addition to specific provisions of the Agreement, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a 1V N1614805.1 27 necessary outcome of, war, insurrection, strikes or other labor disturbances, walk- outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations,judicial decisions, or similar basis for excused performance which is not within the reasonable control of the party to be excused. Litigation attacking the validity of the Agreement or any of the Project Approvals, or any of the Subsequent Approvals, or any pen-nit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to the Agreement shall be deemed to create an excusable delay as to Developer, Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 13.06. Legal Action. Either party may institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, and enforce by specific performance the obligations and rights of the parties hereto. The sole and exclusive remedy for any default or violation of this Agreement shall be specific perforinance. In any proceeding brought pursuant to this Section 13.06 to enforce this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party all costs, expenses and reasonable attorneys fees incurred by the prevailing party in the enforcement proceeding. Section 13.07. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of San Mateo County, California, Section 13.08. Resolution of Disputes. With regard to any dispute involving development of the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at City's request, meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 13.08 shall in any way be interpreted as requiring that Developer and City and/or City's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings. Section 13.09, Attorneys' Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled. 1tir N1614805A 2 8 Section 13.1 0. Hold Harmless. Developer shall indemnify, defend (subject to the provisions of Article 12) and hold harmless City, Redevelopment Agency, any City agencies and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives (collectively herein, "City") from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) and from any and all claims, demands and actions in law or equity (including attorneys' fees and litigation expenses) by any person or entity, directly or indirectly arising or alleged to have arisen out of or in any way related to (1) this Agreement, the Project Approvals or Subsequent Approvals; (2) the construction of the Project, or of operations performed under this Agreement ; and (3) any actions or inactions by the Developer or its contractors, subcontractors, agents, or employees in connection with the construction or improvement of the Project Site and the Project, including off-site public improvements, except as ,solely arising out of the gross negligence or willful misconduct of City, its contractors, subcontractors, agents or employees. The indemnity under this Section shall survive expiration, termination or cancellation of this Agreement and shall be independent of other indemnity agreements. ARTICLE 14, MISCELLANEOUS Section 14.01. Incorporation of Recitals and Introductory Parag[Wh. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 14.02. No Agency, Joint Venture or Partnership. It is specifically understood and agreed to by and between the parties hereto that: (i)the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Project Approvals, Subsequent Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship,joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. Neither Developer nor any of Developer's agents or contractors are or shall be considered to be agents of the City in connection with the performance of Developer's obligations under this,Agreement. Section 14.03. Enforceability, City and Developer agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any MN1614805.1 29 other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule, regulation or policy adopted by City that changes, alters or amends the rules, regulations and policies applicable to the development of the Project Site at the time of the approval of this Agreement as provided by California Government Code Section 65866, Section 14.04. Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and docurnents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. Section 14.05. S,everabilit . If any term or provision of this Agreement, or the application of any terin or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, and such provision deprives a party hereto of an essential benefit of its bargain hereunder, then such party so deprived shall have the option to terminate this Agreement by providing written notice of such termination to the other party. Section 14.,06. Construction. Each reference in this Agreement to this Agreement or any off f the Project Approvals or Subsequent Approvals shall be deemed to refer to the Agreement, Project Approval or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcernent of tbis Agreement. Section 14.07. Other Miscellaneous Terrns. The singular shall include the plural; the masculine gender shall include the feminine; "shall" is mandatory; "may" is pen-nissive; and "days" means calendar days unless specifically provided otherwise. If there is more than one signer of this Agreement, the Signer obligations are joint and several. Section 14.08. Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Project Site, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this MN 1614805.1. 3,0 Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Project Site and is binding upon the owner of all or a portion of the Project Site and each successive owner during its ownership, of such property. Section 14.09. Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by telefacsimile(with original for-warded by regular U.S. Mail)by registered or certified mail (return receipt requested), or by Federal or other,similar courier promising overnight delivery. If personally delivered, a notice shall be deerned to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire docurnent by the receiving party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of(i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or(ii) five (5) days after a registered or certified letter containing such notice,properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth.below: If to City, to: City Manager City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Phone: (650) 829-6629 Fax: (650) 829-6623 With a Copy to: Meyers Nave 575 Market Street, Suite 2600 San Francisco, CA 94105 Attn: Steven T. Mattas, City Attorney Phone: (415), 421-3711 Fax: (415) 421-3767 MN1614805.1 31 If to Developer, to: SRI Nine Oyster Point LLC 235 Montgomery Street, 16th Floor Sari Francisco, CA 94104 Attn: Todd Sklar Phone: (415) 772-7069 Fax. (415) 772-7148 With Copies to: Oyster Point Ventures LLC 601 California Street, Suite 1.310 San Francisco, CA 94108 Attn: Dan Kingsley Phone: (415) 421-8200 Fax: (415) 421-8201 Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 Attn: Zane Gresham Phone: (415) 268-70,00 Fax: (415) 260-7522 Section 14.10. Entire kjarcernent, Counterparts and Exhibits. This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of 33 pages and ten exhibits which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: (a) Exhibit A: Legal Description of Project Site (b) Exhibit B: Diagram of Project Site (c) Exhibit C: Phase 1, 11, 1.11, and IV Improvements (d) Exhibit Q. Phase I Precise Plan (c) Exhibit E-1: Applicable Law (f) Exhibit E-2: Illustrative Fee Table (g) Exhibit F: Assignment and Assumption of Rights and Obligations Form (h) Exhibit G: Public Benefit Facilities MN1614805A 32 (i) Exhibit 11-1: Areas Subject to Facilities Assessment 0) Exhibit H-2: Public CFD Property Section 14.11. Recordation of Development,Agreement. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of San Mateo,, IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written. SIGNA TURES ON NEXT PA GE MN1614805,1 33 CITY CITY SOUTH ,SAID? FRANCISCO, a municipal corporation y ;�,� .:.::......... .. City bV1aI"(ager AT'T'EST: By:✓ _. i�'.y.0-]"6rk P By: .._.. City Attorney m m DEVELOPER OYSTER POINT VENTURES' URES ILL;, a Delaware limited liability company Tay: SRI Nine Oyster Point LLC, a Delaware limited liability company, its Managing Member Name; Its: v�e—A 7 By: S l S Oyster Point, LLC, a Delaware limited liability company, its Member By:,, ame: l" Its: d ' Tv N 1614805.1 3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT """t 3N 7;ft 7 _ 131tate of California County of _e On :2 before fore me, Date Here Insert Name Zfftle of the Offi 1-r personally appeared Nwn�a.�7'f7�n_erFs)___ ........................................................................................... ........... -_—_ ---—_.. I who proved to me on the, basis of satisfactory evidence to be the person-�#whose name) isAffc-subscribed to the, within instrument and acknowledged to me that Iles executed the sarne in his authorized REBECCA 01, OPIKA, Commission# 1805,644 capacityil and that by hisftm,�Nqe4 SigncTkire�o on the L Notary publile-California instrument 'the person(-E�, or the entity upon behalf of San FranCifto County which the person( acted, executed the instrument. sir on got t I certify Linder PENALTY OF PERJURY Linder the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official sea]. Signature Place Notary Seal Above Signature of Notary P�rjrjjr OPTIONAL Though the information below is not required by law, it rr?ay prove valuable to persons rely;ng on the document and could prevent fraudulent removal and reattachment of this form to another docurrent. Description of Attached Document Title of,Type of Document: ........ --------------- Document Date: ............ Number of Pages: ........... Signer(s) Other Than Named Above: ...................... ------ Capacity(ies) Claimed by S,igner(s) Signer's Name: Signer's Name: FJ Individual 0 Individual D Corporate Officer—Title(s): E] Corporate Officer—Titlle(s): F1 Partner—0 Limited E"! General L..I Partner—0 Limited __.] General "I Attorney in Fact [I Attorney in Fact "] Trustee Top of Thumb here F1 Trustee Top of �hwrdb here 7 Guardian or Conservator 1-1 Guardian or Conservator E] Other: 77� 0 Other:— 7 Signer Is Representing:_-- Signer Is Representing: Q)2007 National Notary AssoaiatVOaa 4550 De Soto Ave.,P0 Box 2402-Cha1Fwor1h,0A 21313-2402-wtvw.NaiicialNotaiy.org from 165907 Freordc Call Foil-Free 1-800-876-682"? C&I.IFORNIA ALI.-PURPOSE- ACKNOWLEDGMENT ............. State of California 5 COUilty Of On e?:"jkefore rne, Date Here lt��'67t-Narneard I 7 personally appeared .--,/....... ---- Narnc(s�of&_gnor�,q) .......... who proved to me on the basis of satisfactory evidence to be the person�M whose name( ) is/flr4 subscribed to the _11��re ln�, within instrument and acknowledged to me that he,4&he" executed the same in hisftr`tfm�r authorized REHM; ONG capacity0po, and that by his#m4heO signatures on the Coinfniission 0 1605644 instrument the person4a), or the entity upon behalf of Imary Public " California 1 % which the person ) acted, executed the instrument. 'so,"Fravicisco tmun y I]n Wes flrt 2 2012 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Place Notary Seal Above Signature.of Notary Public IOPTONAL --- J_ Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title tar Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: .......... Capacity(lies) Clairill by Signell Signer's Name: ........... Signer's Name: F] Individual FJ Individual * Corporate Officer—Title(s): LJ Corporate Officer—Title(s): * Partner—11 Limited L General [.J Partner .1 Limited [] general * Attorney in Fact I I Attorney in Fact * Trustee Top of thumb there L Trustee Top(A thumb here * �Guardian or Conservator Ll Guardlan or Conservator Other:. D Other: 7 Signer Is Representing: Signer Is Representing:-- 02007 National Wary Association-9350 De Solo Ave.RO.Box 2402-Chatswo0h,CA 9t:713-2402-www.NaticiialNotary.org item41,907 Reorder Call Tall-Free 8-800 8764427 CALIFORNIA ALL.-PUMPOSE ACKNOWLEDGMENT State of California County of On e, me, .... mm ..... ate before Here Inse.rt Name and Tilld Ih7a Officer personailly appeared Ntl 0 7ner(s) .......... .............................. who proved to me on the basis of satisfactory evidence to be the person�whose name(.M isAqf&subscribed to the within instrument and acknowledged to me that he ie4l,fey executed the same in his MeOft4r authorized capacity4ee�; and that by hisANY41;ak signature(&)-on the "P �c A 1; k"'i , alission 0 1805644 instrument the person*, or the entity upon behalf of C"001 At 180564111 it Pub fic . California which the person+ acted, executed the instrument. San Fran6SVM ciolunty, 24 2012 I certify under PENALTY OF PERJURY under the laws of the State, of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature e, Place Notary Seal Above Signakuie of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another docualrent. Description of Attached Document Title or Type of Document: Document Date: ............ Number of Pages: Signer(s) Other Than Named Above: ............. Capacllty(ies) Claimed by Signer(s) Signer's Name:....—.. ...... Signer's Name,- Ej Individual ❑ Individual 0 Corporate Officer—Title(s): L-j Corporate Officer—Title(s): Goa Partner—❑ Limited ❑ General LJ Partner—❑ Limited ❑ General El Attorney in Fact ❑Attorney in Fact F�'l Trustee Fop of 1humb here ❑Trustee lap of thumb,hero, [I Guardian or Conservator El Guardian or Conservator 0 Other: 0 Other: Signer Is Representing: Signer Is Representing;: 702007 National Notary Assocrallor-92190 De Soto Ave.,ISO.Box 2402 CA 91313-2402-www.NationaGfdotary.org Item#5907 Re order: Toll-Free 1-600-876-6827 / ( ` ( Exhibit A Legal Description of Project Site ` PROJECT SITE ALL THAT REAL PROPERTY LOCATED IN THE CITY OF SOUTH SAN FRANCISCO,COUNTY OF SAN MATEO, STATE OF CALIFORNIA.. THE BELOW DESCRIBED PARCEL CONSISTING;OF THREE SEPARATE PARCELS; SAID PARCEL BEING A PORTION OF OYSTER POINT BOULEVARD; ALSO BEING A PORTION OF PARCEL 1 AND ALSO BEINGS A PORTION OF PARCEL 4 ALL AS SHOWN IN BOOK 52 OF PARCEL MAPS AT PAGES 58 AND 59 AS RECORDED IN THE RECORDS OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, SAID PARCEL IS ALSO A PORTION OF OYSTER POINT BOULEVARD, MARINA BOULEVARD,AND A PORTION OF PARCELS A, B, C, D, AND A PORTION OF THE REMAINDER PARCEL AS SHOWN CAN THE PARCEL MAP" RECORDED AT BOOK 55 AT PAGES 61 THROUGH 64 IN THE RECORDS OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA. , SAID PARCEL IS ALSO A PORTION OF PARCEL A AND A PORTION OF GULL DRIVE AS SHOWN ON PARCEL MAP RECORDED IN BOOK 72 AT PAGES 6, 7 AND 8 IN THE RECORD'S OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, SAID PARCEL MORE PARTICULAR DESCRIBED AS FOLLOWS: Parcel 1 of 3 PARCEL 1! BEGINNING AT A POINT AT THE SOUTH EAST CORNER OF PARCEL 4 AND THE SOUTH WEST CORNER OF PARCEL 3,AS RECORDED IN BOOK 52 AT PAGES 58 AND 59 OF THE RECORDS OF SAN' MATED COUNTY CALIFORNIA, THENCE ALONG THE'SOUTHERLY LINE OF SAID PARCEL 4 AND ITS PROLONGATION 5890 59' 36"W FOR 327.72 FEET TO THE TRUE POINT OF BEGINNING 1)THENCE S01°24'26"E FOR 28,57'FEET; 2)THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 949,00 FEET AND A CENTRAL ANGLE OF 36°40' 32"FOR AN ARC LENGTH OF 607.46 FEET, SAID CURVE HAVING A CHORD BEARING OF 5190 44'42"E FOR 597.14 FEET,. Page 1 3)THENCE TOO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 24.00 FEET AND A CENTRAL ANGLE OF 1010 45'03" FROM WHICH THE RADIUS POINT BEARS 5510 55' 03"W, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH'OF 42.62 FEET, SAID CURVE HAVING A CHORD BEARING OF S12" 7' 35"WW FOR 37.24 FEET; 4)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 646.00 FEET AND A CENTRAL ANGLE OF 300 32' 59"FROM WHICH THE RADIUS POINT SEARS N26°' 19' 53"W, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 344,44 FEET, SAID CURVE HAVING A CHORD BEARING OF S78" 56"36"WW FOR 340.38 FEET; 5)THENCE N85°46" 55"WW FOR 327.57 FEET, 6)THENCE N00*39`36"E FOR 21.92 FEET; 7)THENCE N'00" 00' 55"W FOR 489.03 FEET; 8)THENCE S64°44'05"W FOR 214.94 FEET; 9)THENCE N81°45''55"W FOR 389.76'FEET, 10)THENCE NOW 00"55°"W FOR 192.73 FEET; 11)THENCE N89°59'05"E.FOR 280.00 FEET;. 12)THENCE N00° 00" 55"W FOR 113.73 FEET; 13)THENCE N85'25"03"E FOR 80.69 FEET;, 14)THENCE N70° 37'40"E FOR 33.30 FEET; 15)THENCE S84°489 27E FOR 47.97 FEET; 16)THENCE N69°29' 5'7"E FOR 88.19 FEET; 17)THENCE S88° 43'39"'E FOR 77.81 FEET, 18)THENCE N61-389 35"E FOR 57.68 FEET; 19)THENCE N29°009 3YE FOR 40.55 FEET,- 20)THENCE N14 12' 18"E FOR 105.68 FEET; 21)THENCE N'04°42' 291-E FOR 52.20 FEET; 22) THENCE N05'39' 31"W FOR 96.57 FEET, 23)THENCE N04° 30" 16"W FOR 128.84 FEET„ 24)'THENCE N13"'21" 1 VE FOR 99.18 FEET; 2'5)THENCE N40-22"33"E FOR 77.49 FEET„ 26)THENCE N47°45'37"E FOR 30.06 FEET; 27)THENCE N21° 589 2 "E FOR 50.79 FEET; Page 2 28)THENCE N36° O8' 50"E FOR 63.39 FEET, 28)THENCE N40° 15'02"W FOR 123.25 FEET; 30)THENCE N43°43'08"W FOR 258.13 FEET; 31)THENCE N72°25'37"E FOR 381.75 FEET, 32)THENCE N00'00'55"W FOR 51.63 FEET, 33)THENCE N890 59' 05"E FOR 88.82 FEET; 34)THENCE'528°41'01""E FOR 633.96 FEET, 35)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 62,00 FEET AND A CENTRAL ANGLE OF 170 04' '11" FROM!WHICH THE RADIUS POINT BEARS S26"41' 01"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 18.47 FEET" SAID CURVE HAVING A CHORD BEARING OF 5540 46' 54"W FOR 18.40 FEET; 36)THENCE N89°25'58"W FOR 250.57 FEET; 37)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 9508.00 FEET AND A CENTRAL ANGLE OF 030 28' 53"FROM WHICH THE RADIUS POINT BEARS 5870 56, 33"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 577.72 FEET, SAID CURVE HAVING A CHORD BEARING OF S00° 20'01"WW FOR 577.63 FEET, 38)THENCE S01'24'26"E FOR 167,80 FEET, TO THE TRUE POINT OF BEGINNING, THE AREA BEING 24.22 ACRES.. Parcel 2 of 3 PARCEL 2 BEGINNING AT THE SOUTH EAST CORNER OF PARCEL 4,AND THE SOUTH WEST CORNER OF PARCEL 3', AS SHOWN ON THE PARCEL MAP RECORDED IN BOOK 52 AT PAGE 58 OF THE RECORDS OF SAN MATEO COUNTY, CALIFORNIA 1)THENCE S00°00"55'"E FOR 16.61 FEET; 2)THENCE S89-59'05"WW FOR 18.77 FEET,- 3)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 5.00 FEET AND A CENTRAL ANGLE OF 879 02' 04" FROM WHICH THE RADIUS POINT BEAR'S N87"03' 01""WW, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 7.60 FEET, SAID CURVE HAVING A CHORD BEARING'OF S46"28"01**WW FOR 6.89 FEET', 4)THENCE S02a 57"02"W FOR 12.14 FEET, Page 3 5)THENCE S22' 32'46"W FOR 26.79 FEET; 6)THENCE S05- 17'28"WFOR 16.62 FEET; 7)THENCE S14-33- 22-W FOR 18.66 FEETo 8)THENCE S07- 07-20W FOR 46.52 FEET; 9)THENCE S02-39'54"E FOR 26.13 FEET; 10)THENCE 51 1. 27'55"E FOR 9.33 FEET; 11)THENCE S03- 55'51""W FOR 16.94 FEET; 12)THENCE S15-09'09"W FOR 13,90 FEET; 13)THENCE S0!7® 33"30"W FOR 7.72 FEET; 14)THENCE S31- 12'57"W FOR 14.75 FEET; 15),THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 12,00 FEET AND A CENTRAL ANGLE OF 990 1611" FROM WHICH THE RADIUS POINT BEARS 5580 47, 02"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 20.79 FEET, SAID CURVE HAVING A CHORD BEARING OF 518' 24' 37"E FOR 18,28 FEET; 16)THENCE S68- 02' 11"E FOR 4.44 FEET,- 17)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 6,73 FEET AND A CENTRAL ANGLE OF 57'0606"FROM WHICH THE RADIUS POINT BEARS S33*25' 311"W, THENCE RIGHT'ALONG SAID CURVE FOR AN ARC LENGTH OF 6.71 FEET, SAID CURVE HAVING A CHORD BEARING OF S28*01'56"E FOR 6.43 FEET; 18)THENCE 510- 34"28"E FOR 6.58 FEET; 19)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 89.35 FEET AND A CENTRAL ANGLE OF 34*2613"FROM WHICH THE RADIUS POINT BEARS N89'41, 32"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 53.68 FEET, SAID CURVE HAVING A CHORD BEARING OF 5170 31'04"E FOR 52.87 FEET; 20)THENCE S33- 0628"15 FOR 51.02 FEET; 21)THENCE S30- 08'44"E FOR 51,48 FEET, 22)THENCE 539- 10'44"E FOR 68.51 FEET; 23) THENCE S36m 43-24"E FOR 31.32 FEET; 24)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 290.17 FEET AND A CENTRAL ANGLE OF 440 11"01" FROM WHICH THE RADIUS POINT BEARS N56"01' 39"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 223.76 FEET, SAID CURVE HAVING A CHORD: BEARING OF S56` 03'52"E FOR 218,26 FEET; 25)THENCE 581' 27'48"E FOR 127.43 FEET; 26)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 1550.60 FEET AND A,CENTRAL ANGLE OF 05* 19'25"' FROM WHIICH THE RADIUS POINT BEARS N050 19' Page 4 30"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 144.08 FEET, SAID CURVE HAVING A CHORD BEARING OF 5870 20' 13"E FOR 144.02 FEET; 27)THENCE S0�7- 36'22"W FOR 236.51 FEET; 28)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 856,00 FEET AND A CENTRAL ANGLE OF 12a 03"11" FROM WHICH'THE RADIUS POINT BEARS N07° 36'22"E,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 180.07 FEET, SAID CURVE HAVING A CHORD BEARING OF N76°22'03"W FOR 179.74 FEET, 29)THENCE N20" 13'04"E FOR 20.00 FEET; 30)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 83'6.00 FEET AND A CENTRAL ANGLE OF 68° 6"49"FROM WHICH THE RADIUS POINT BEARS N19- 38'45"E, THENCE RIGHT ALONG SAID CURVE FOR AN ARC 'LENGTH'OF 1006.00 FEET" SAID CURVE HAVING A CHORD BEARING OF N350'5'2'51"W FOR 946.39 FEET; 31)THENCE N01-24'25"W FOR 25.81 FEET; 32)THENCE N01-24'26"W FOR 170.56'FEET, 33)THENCE ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 9395.00 FEET AND A CENTRAL ANGLE OF 020 59' 14"FOR AN ARC LENGTH OF 489.80 FEET" SAID CURVE HAVING A CHORD BEARING OF N00'"05' 11"E FOR 489.75 FEET; 34)THENCE S89"25'58"E FOR 135'.04 FEET; TO A POINT ON THE CUL-DE-SAC AT THE NORTH END OF SAID PARCEL 4 AS RECORDED IN BOOK 52 AT PAGE 59 35)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 62.00 FEET AND A CENTRAL ANGLE OF 77" 30' 15"FRONN WHICH THE RADIUS POINT BEARS N500 49" 14"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 83.87 FEET, SAID CURVE HAVING A CHORD BEARING OF S77° 55' 54"E FOR 77.62 FEET; thence continuing along the Easterly aide of said Parcel 4 36)THENCE S26`"41"01"E FOR 15.66 FEET; 37)THENCE.S00"00'55"E FOR 628.68 FEET,TO THE SOUTH EAST CORNER OF SAID PARCEL 4 AND THE POINT OF BEGINNING, THE AREA BEING 7.22 ACRES. Parcel! 3 of 3 PAR'!CEL 3 BEGINNING AT A POINT AT THE SOUTH! EAST CORNER OF PARCEL 4 AND THE SOUTH WEST CORNER OF PARCEL 3, AS RECORDED IN BOOK 52 AT PAGES 68 AND 59 OF THE RECORDS OF SAN MATEO COUNTY CALIFORNIA, THENCE ALONG THE SOUTHERLY LINE OF SAID' PARCEL 4 1)THENCE S89"59'"36`"W FOR 3'27.72 FEET; Page 5 2)THENCE SN71 o 24'26"E FOR 28.57 FEET" 3)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 949.00 FEET AND A CENTRAL ANGLE OF 410 54'50"FROM WHICH THE RADIUS POINT BEARS N88°49" 1'2"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 694-23 FEET" 4) THENCE S46°4U 44"W FOR 3.51 FEET; 5)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS"OF 952.50 FEET AND A CENTRAL ANGLE OF 266 28'51"FROM WHICH THE RADIUS POINT BEARS 5700 45' 23"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 440.22 FEET, 6)THENCE SOO*45- 17W FOR 169,54 FEET, TO A POINT AND THE TRUE POINT OF BEGINNING 1)THENCE'S89°55"25"W FOR 737,35 FEET TO A POINT ON THE EASTERLY SIDE OF GULL DRIVE AND AT THE SOUTH WEST CORNER OF PARCEL A AS RECORDED IN' BOOK 72 OF PARCEL MAPS AT PAGE 7.THENCE NORTHERLY ALONG SAID GULL DRIVE 2) THENCE N01° 39'45"E FOR 27.23 FEET; )THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 520.55'FEET AND A CENTRAL ANGLE OF 370 40'44"FOR AN ARC LENGTH OF 342.32 FEET, SAID CURVE HAVING A CHORD BEARING OF N17" 19'37"W FOR 336.19 FEET; 4)THENCE N36° 00'59'W FOR 111.60 FEET; 5')THENCE N37° 35"47"W FOR 95.40 FEET; 6)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 68.49 FEET AND A CENTRAL ANGLE OF 18° 11'27 FROM WHICH THE RADIUS POINT BEARS N79°36' 44"E, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 21.72 FEET, SAID CURVE HAVING A CHORD BEARING OF N10" 17' 32'W FOR 21.63 FEET, 7)THENCE S85-46'56"E FOR 254.12 FEET; 8)THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 754.00 FEET AND A CENTRAL ANGLE OF 320 35'48"FOR AN ARC LENGTH OF 428.96 FEET, SAID CURVE HAVING A CHORD BEARING OF N770 55' 12"E FOR 423.20 FEET; 9)THENCE N61- 37" 17"E FOR 14.42 FEET; 10)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS'OF 24.00 FEET AND A.CENTRAL ANGLE OF 790 60'44" FROM WHICH'THE RADIUS (POINT BEARS S28°22" 42"E,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 29.68 FEET, SAID CURVE HAVING A CHORD BEARING OF S82° '57"20"IE FOR 27.8'2 FEET, 1'1)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 952.501 FEET AND A CENTRAL ANGLE OF 220 16'08"FROM WHICH THE RADIUS POINT BEARS N42`"28' q1'"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 370.20 FEET, SAID CURVE HAVING A CHORD BEARING OF S58°40'43"E FOR 367.88 FEET; 112)THENCE$20" 54' 17"W FOR 74.52 FEET; Page 6 13)THENCE TO THE BEGINNING POINT OF A CURVE To THE LEFT HAVING A RADIUS OF 526.93 FEET AND A CENTRAL ANGLE OF 190 39-18"FROM WHICH THE RADIU'S POINT BEARS S700 45' 23"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 180.76 FEET, SAID c-URVE HAVING A CHORD BEARING OF S090 24'58" FOR 179.87 FEET; 14)THENCE S00-46 17"W FOR 169.54 FEE"r, TO THE TRUE POINT OF BEGINNING, THE AREA BEING 10.,07 ACRES. LEGAL DESCRIPTION PREPARED BY KENNETH P. MOO RE FL S 4918 EXPIRES 12-31-12 DATE 3-10-11 Page 7 o a A CL 1 w N i Li Li a ! 8 0 Ln '� f t� cy co w CL z R a ra4. k I � , r im CO p C4 ci kn j I con A a a a a a a a A � 1 f __...__ ___._..,.... ...,.�..�........_................a_,... ....�._..».e...._..........�..,._.. _._--...._..,. °.....�r' _.._...... .._._.... A x;a A"�'�:s�.N�.�r6'�;:.w'::M:. 'IX�'Ww�;+w A..,:r / \ ` ` � Exhibit B Diagram of Project Site \ �.0 i I i f � A ra ce 1 .......,, LU LU f t t1 CIA IR:I.1'IOd H31SAO va b ¢ ua __. _w.__ _.........L _ __. I Exhibit C Phase 1, 11, 111, and IV Improvements uj co < LJ < uj T_ oo 0 to a- z < ddb 3: ui a- CL z a- x eu I rL 0 (D le 0 LIJ co U) I— r1e, Z ty LIJ LU < ui a. 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I I OYSTER PONT,'South Sayer 1�rpncisca� DRAFT 'FcbruaMY 2,:�,2011 � PhRsE 1 Preme Plan Landscape Site Devations & Sections ism rR 73 -7 UO Ll- 7n er, I r _ry ; C i d i 1 i :n f Phase 9 Precise Plan �P'�',FT ie�ruao d..ZL OY PP POHO,South nark Francisco CD CD 0 al Cn SD 0 OL U) CD 'R P OYSTER/, PONT,South Sarf FrancNsco DRAFJ Frebruary 23 2'0)1 Prias,e e Precise Plan Landscape S�te Elevations & Sections do / r aA NI' NUJ T>/�'�l / ���✓6� j�j boy r ; QKA r / d/o IDS r r / y rlJj1 ir, f /f Me L��f7¢ 7f Anil giro `war�ro e�ca DRAFT February 2's 2G'a Site ev ""o s Sections I 1 ' I > e rx r 1 W F rim i f J:, A. ^n, o� v, f dg f r a Preps pt f ti Francisco r.L �2AFV Feb,o ry-2u;2011 a-rce 4 Design�far�the�F'ubgY4c,�tealm Phase I Conceptua� Site Plan � 1%; for the Puhhc R aln") m.__...... ._._. _. ._m..__._...m ... F b f µ YJ >- r a _ ,. .... . •r w r „ w u�," IM IT , , N � - r, q � f µ P � +� 9 c G0 � + u -M r t. V for wc as1Y u f Francisco Fl F Lruary r LG CQnce # 7esugr tor meubl Public R�s8 '= r " " the Public Realm f I Z — / 4 r M 1 ��Q a T i ; Cunt cpC3esn fpr ll amf South cel ,a cisc JkFF FeFr,rarp 23.2f�11 the FubE rrf% 1 n � % jr r Bay, ,.ra H at Crescent Park 1 ..._..m. _ I r { I. rya "A �. x i s.. F y: .. i T 1- Q, { N 2 -4 u , a i rin ' i Wr rs z n�w. I G� P'P.Pared for Design the fD,4the.Pubhc� Re`almatwc.is�. u8€F V=' Hwy`Cs 4C)a'', Bay Tra�l at Vlarina d � 2 �< p °> r .. f ( TZr P � ter., -, ., a w: ! 5r III m b� u a Prepared for MP City¢f Snub)San Frarrr scu DRAF"T Frbooary 2a,20)1 Concept Design for the Pubhu Realrra l � m IAarina Blvd e` lz ,,gig f m � � �� w�ii r fr ! 1lf f H/� � � S� l�l p � �✓/��f � �' � �;wY%�✓// /� / if �, �''/1� � � � �r v 'Ii".," ��°�'rf%!�✓ 1 n r Concep i.Dear the Cityh7e P South t�hc San Francisco c y! 20 1 Piep�ared f ewoai e i r to i'rt c Heal Planta ng P a�ette for the Fl a bh c R ea l rn y LA r% IrMrp�j:. 71. / I/ I (rr m' V➢r� //ii �i lr/�r�f/ ,d!a,. l r I x r ri tss c Y, a / S , II i i I Prepared fm the Cif of South art i=racisco DRAFT February Z"°, 011 G a7ca. Cesr �far � m � the Public Realm a f �t Furniture for the Public Re,,alrn ; f 4 � r~ II E9 I x lee a e i fE —"' 7 Ern ZZ duVpr �C m I l e OYSTER 4a Sari: =ra asc< Di f s bru ry P is e Pcis P an I4 veraH Phase. Llfihty P lady i � C P.y PW V 4 � � ENS i o " AV-1 s � ti �• � � ,fps" �� � "� '`� 4, rm � � I D STe ER P $N!'C South San F6',"k i SGC" DRAFT Fed,m.,23.2W 7 f VII PG9asE I F���C�s� b lartw Phase Ut i h : Flare 0 F � F m r ? ; f _ 0 u � R . illy .... ---- -- OYS'ET�'C?NT South SaD �rarCisca DRAFT E abruary G.3 G(`)J Precise M8jr N. " B l I i d f � l r I f F 1w 'A Pia Ek POINT,�5outii sago Crarrresc r DRAFT Fstn-,aav,�,2-,2011 f Phase Utility n r ri ._.._..,.... �...... k / f y Ln i �j w GkAF,f ° rrmry 3 2 'OYSTER PWN1 aii =a7:scc pun; mom Pa Phase I Utility Plan 1 d Q, ' ,✓ r' J r LC Jll cm �est6 ✓ m �'� 5' /fJ 1�'. 1 ( ;�z '" "'�^°^ -��^^, —"va yr r-*r^ �'.�.^-v'^x+i r•v cxv asa pax gym d, 7 CS GT E'M C4"S'C $ ny r*ry-C Sn to{ft ='k d_ F Zt O L7� W,� / ,t rroa cwa aas aavars r, MmZO r 0'Z9 C2�. p gE Y 1 3a i } ,t __ice ✓ '� c�?' 71 tl _ z f�d��se I Precise Marl OveraH Grading & Drainage Plan U,) k ;I I I R A izFM� ry w-- I m4 l.a %-"" r� w n^w L. CWSTER POC11"@",",caM San P=mnemc C;tiRA I F L oaq 23 20D r J �am�l Mae I f�l ��v ib�r Rl�i' r a r r Chaching 8, EhalnagE MCI 71 Cl \t ✓ Vl 7,V /F Z3 j� 41 TT Pj -A A OYSTER POINT.South San Randsco DRAFF Fer)rwH-y23, 2011 ('r) Pnass I Premse Plan Grading & Drainage Plan %MON Z AA q ti \\V\\ m r b � , I i . w w f - i � , Al o 9 ✓ t OYSTER x"`01111,South$an P"un�r,t,:o-s r,^ �FiE,F' Fe -uafy c.9 201 PlaSe e Premse Flan -adirio, Drainage PI r W w m c. w " m f f f a , yly Vj MINE OYSTER&OWT,South sari Prailcisco F/„F FE buay 22 l)a Y t.` Grading & Drainage Plan lap WE ill I > V qqry T r � r, fb � r r k4 n r ' < lr Y rr r l 7 r ��� " � wr a� ��,�>� - P sJ t / it v 1 r e Y r.. J r <. v/ k / rrrri r a i OMSTE1,,1 PONT,South San Francisco DR AF F aowV 2a. IC � ael �ee ¢ M r �g g �p`;� pg' �;� ply g@�,y� b.��' ,w d�A!'P �,.n 4.o V...,,�w�Y'6:,„„� t a iml r x I w i s � t r f '1 d i s � a F f V E Gj. w II P z a i p J41- i y ai.m — Y v .,, . e 1 0 jr f i f r - y k"SRfCPT S��'k�' San =rarc¢scu 3ItiAFI r a!y?3.'2'011 Phase r FreC'i5N P'tlafx First Level Hl 9 PIL, `2 3 I's tx 17 IE � �� �� IJ.� ��f"�—a rv,nN a d ��, O�Ad; ✓r�a�� u Ty" 7 E-7` OYSTER POW SoAh Son Fmnchco URM FeNow,23 201 Ran I Mae Pon Raza Level/Second Parking Level Plan ,I P 1 ' y � t � �a �U_jj �_ OYSTER C South a raar,Wcw D"AF ieb,jary23,2011 Has Precise� a —..........- —`n - _mot , � rI P lyp IpI i � r D S7 R �,JTT South Sari[vancisce � i �r.l' 'i Fout-� Park�ng Level Plan (Garage Roof) f I✓ a 1 O w f I rw Am � a t r , INSTER POM SCNWh San Ka'aono CRAS"r feWexw;r 23,2f)'i t PvuaSe I f3mcma Rfan � r✓iii„ G , � � � Floor Level PPoi t t o i t �c,0a , O YSTEP PoilO,South Swi Franckscu DRAF r a acv 22 201:1 i Roof tr yp . ........ i i W .. tt_d�..�_ OYSTER IN South San Prcca Plan DR/P Febnuary2 2011 I 4 } x a , , y f _e� ' i man F'�.�lP h,PI ratle San ¢ °tc;A a:o L� F f°e ruary r_,s 1_C;i3] 7 ------- (j) OYSTER PONIT Soutt Sari Francisco DRAF' Frt,wary 23, 20.1 I &CIS �a I Phase Fr e'P r T Budding I C ypicai F�oor Plan pp rr r f, t c 4 ...... / I 7 � _ � w a^ (dif QYE'TS P01147 South,San Fi ari rscrr 5RA T Fcbruary�3,201m ll � Pvase I r'remsa Plan ,„ ,,. ..^ .M .�,., ., ,. t `�q 6g N E p p Gg d y p �o� Ice @ B.k...� l f�_w.G '"«�a d �.�N k "'� V �i"",�ti N J r� m CD < I1 0 CL CL "_ ss y- f� r r r 4 r 1 ,Ira i R jr, d f V l yi � /��/r�d✓��7iR`tdrgl�J��!r„ 6 f OYSTER P��NI,South Sara Franc A Pnast N Precise Mara �RI�FT f eN ruaryJ�� �1 S t Rer,�dered Overall Site Devations c 6k. Io i// jpl rm C � l r /Jrxn/Jail rri�e, J 14, a n/%fir / 1 4 1 ti r 4 on a, / I %/I J f fi f J P1 rirl� `i f; -J r�;; Al j l � � y ,.. a kit ON EMS ( l , J �. Ufa✓�% %� ���IiO c ERr �S r t,eti Glrr F sze°a�bseu RAFT � it 23,2M asl wm — // R e ri, e r e d B u i d in I A ;; :p T—'I rt iYr 7x N m m b ar r� r � r a ' z ry, r cc Irr� y r l 1 l/,SIG ,',' MA y �r,(aj�r�i r��l � �y r 1��rr Lcilr � /, i 1 r, u r i� Dr / I Id IT Gsr rr �r��L /i� or i r% �71a rg l l / a „s r r i /, r - ir,� � rl �OYSTER POINI',South San Francisco dAF"➢ FP.bruaa'y 2; 2011 Phase I Precise Plan l / r c J r4 CD Cu Al [7 n• f 11 — 1 Ar/Q ff ; f 7 '�1 Lll / J r iJ f f h ,J l' ,h !a J l� Fl 0j m. OYSTER POINT,',5r�ssth SarJ Francisco DRAFT '--ebr nary?.a 01 a Precise Plan Elevations En C) O r � F, r , ij/ sa l _ ! � j % ten_ // c a A m. i� L,� �Y POINT,'N,°aau�$hi�u�ro Francisco DRAFi letj�uaiy 23 2011 f E Phase f Precise,GPieri /'1, Building IA Devations: j i WZ f, r, 11, ,N y r z Priase I I(�'dC�l, le,aBd a0 1 aoe.isc DFIAFT Fr.brja�yr 2u,��adl] I ' � s an Prtldse! Precise .° ., r Ln CD CL u r OYSTER POINT South Saar Frin iscu DRAFT Feb%,ar Phase I Precisv PPan BuOding IC Elevations �, .,c, Y on CF it c c CC7 � i A Y jri j ri l f i is i. i,° r r y r W,41, fr; M, l Vii% m y�� ,4 y4y Phase 1 Precise Pla, i San Francisco Uk k"''°I' F ^y 23, R.J OYSTER PONT,South 'q co-, 0 T 0 s A 1'f "I'll lit j A It -g L a C'n 3 :9 OYSTER POINT,Soud'I San rraricisco DRAFT F enruary 2—',20 11 Pnase I Precise Plan Architectura� lvlateha�s ............ 6 E C) Lo C7 GMy 4" d 03 'pl IF ca, r fir Yrp /r ")W"J" '4 ft 1. /... .... E a ........... 17; a, y CA ff 7c ............ OYq'rER POMT,South S,an Francisco DAAF Fobrubi�,23 )�O) Y 7, K V, FhOse I Precise Plan Architectural Materia�s J a T R V Nj ........... W a 21 71 OYSTER PGINT, South Son l-randscc DRAFT Fef)wary 23,203 1 V) Pii,��,%e i Precisr Plan Architectura� Materia�s gar , ///i r tj l i d of 1 r r r r r l / rldl/l�� //rrr li l r /rr/ � l ��/�f�/%r�✓f' , P � l r / ��l �rri� l //�✓%J i%��i r /i r//"� rill r r,�✓/ Dr / Ja " 1l l r 1�4� d�,i � �N� Uflryr'�r%/D!%r//�✓'�//r/%� / r , i �✓�vr / rr fir�i/�� �p i �/� � fJJ��a o yl' 6� �V� /r If >�>'r t'� � r %v r�✓r %� l��r i��� , ri r t' %Jr jd %%�� ' ,flit ir%i�r'f �l✓y , , f Af �� J"2firdv�rr rJ�i ��.'r �✓�f7 1'f��r 1 / � %lrr rr/lep OYSTER a 9r iQr�%� l�'1lJl'�/rG,r �rr r/ (1 POINT,4caV,h Sat Francro C �GFT FeG uwy 23,, 2 : Phase I PrecrSE i Faala � r ii�✓✓✓iii✓ /�/r 1<i�ri�/%r/�/1 � = Perspective frorn Oyster Point Blvd y CD „wr If ,1 y/ 1� t �(. I �� f d, N U/1✓fj� � ,�A4;wlamM>J"011 «r•,, ` OYSTER PQdhh»T South San Francisco DRAFT Teti uary 23 20 r V' Phrase I Precise Plan Perspective fro Marina Blvd n i J� �>i r �fm ,p ✓r / , t �� �� � ' rl f � f/y ✓� d / r r � ld, r X J• r r ,� � / r �r/, �� f r � � �r /. CD rl a �' / fY✓ //llri 0 N rr I l r ' av l✓p%r p/ri r f 9� r%M Y J y/� I,+��� // " �, , / ,/o oyi MMfI� /l/%r I ;�rr �'� �� �����/...�'rllo r alp/� i,✓r� . '1� A�i' '/ �r r,d f /✓ �� / /��l/r l���r d,�, Ni//% �l �� M� w / y ar� ✓! / r r �/// I /1 t//r�91 / � r, � G/f r Frr✓� �X�ia�oJllti'"✓' 6,,r/ / ��r r�� �� �J ��' � r✓��y0�4 a��/� �i//r�/n rrl/ � i ,... r e �// fir/��/✓I� r1�i r �l/� r r � 1 rlr j v///� t ��/� /1 ✓9i(/ ,elr , // sm ,✓�y/�� // �,. I ( /r�� �Gi//✓ %/i� r /i/i r u'�✓fir i/ r r%�/r / /✓ d' � l �irlly'� /r U r//i� 9 /�� /��ail rr� 9� y r/r 9r J+' �fw /%r✓ r/���V/ r / �r//r� r 1 0/f�r�� r //,/r� �� �'/ or l�rl�i/li^fir/ ��/nYuf/v/ r' �'��9G J rfl /��/iii//�i✓i���''I��� � t�/r/�. /� �/1 ;' / �/ ;rf�� r///r dr�f /�r r`//I ��'� / 1rc�1�/rr/fp/:/fir✓rh✓M.o � r �p�� �l. 1,IFF lr 5 r,/ �✓`� Jrr7Y'!iiy� �r�/✓,rr� � %a✓ � � N�fl1�y mwr a 'kx y I�r r r�rli� r� f r/ r nri eiA r v i9 rri I I r/ ri /r r il� � / �J/ r r Ni✓�/ „ro ✓ �� �Y r � r J Jo '���u( ✓N'���� r/Nr r /' �/ a �i/ f�l // r l%r rM 9 «�+/y�f r"/f n, r ' l r��t a/ / /i/�///t rp ✓//�r;(ti` r it svwl. r 'J,�/ �/ /1 J/ „ Vii,/ t ii ✓�i/r' rnror o/r/�//� lUr 4 �nlly rr70✓im�y a 'r AYlyr rq�� (7i ;'✓ ,;!�ii!iN��� ;a,' I (Y1�1Ji � �'� �� ��/u�����) /rr���vV�r��//rS /r��/ii % GAlH'Y4.v j����ry� vY J �h '�rnr%�✓ w� y� r � �+7ri rff%l✓ % '`ri n °,r r l o����� f� r�✓yrr 1 °/�;/�� �Y� �y110 ��yc � i14,V, Dui%Mu " / r ir/ u y ✓,a �iarr r r; y�u �1'u! rv�r //�,�%� ✓7 � � y f``��,Ju � r � t;�GaUr9 r '� '�' �X/rvr✓i /;rr, vtir��� �'rJ! r%'.,u, I���Irr`r `(�✓n�,,r41! r�J6�,/fwi'��,NH�n v�"�,%"�`,�%! -, u ., r//�%l/'✓roi l%/ l OYSTER POINT South San F'i^anciscu DRAFT February 2,-j 20-S U11")Phase i Precise Pkan Perspectlive from Plaza ` ` / \ / Exhibit E-2 Illustrative FeeTable \ Gi Nt N 0 0 w ID M LL ........... !k mi ri IN tn' VIP 0 W) m m W Nib w 4" wm1 21 btin Ca' ui pX Gd cl CI Nl LL c 0 ul 0 0 o� 0 C C E ci C, eR "CS CY ILL O Qj LL u CL 0 cr CL 0 CL CL s - a CL sz m a 75 > 0 m 0 V, LL LU 10 Exhibit E-1 Applicable Law r DEVELOPMENT AGREEMENT—EXHIBIT E-1 1. RULES, REGULATIONS, OFFICIAL POLICIES, STANDARDS AND SPECIFICATIONS Pursuant to the Development Agreement between the City and Oyster Point Ventures, LLC ("Developer"), the rules, regulations, official policies, standards, and specifications applicable to the Project (the"Applicable Law") shall be those set forth in the Project Approvals and the Subsequent Approvals, and only (1) those additional rules, regulations, official policies, standards and specifications governing permitted uses, building locations, timing of construction, densities, design, and heights, and the fees, assessments, exactions, and taxes in force and effect on the Effective Date of this Agreement ("Effective Date"), including, without limitation, those rules, regulations, official policies, standards and specifications set forth below, and (2) those certain additional fees, assessments, exactions, and taxes set forth herein in Exhibit E-1, and none other, 1.1 South San Francisco General Plan (Adopted October 13, 1999 and as amended through Effective Date), 1.2 South San Francisco Municipal Code ("SSFMC") (as amended through Effective Date), including: 1.2.1 South San Francisco Zoning Ordinance, Title 20 of SSFMC and Zoning District Map (Adopted July 28, 2010 and as amended through Effective Date); 1.2.2 South San Francisco Subdivision Ordinance, Title 19 of SSFMC (Adopted May 21, 1981 and as amended through Effective Date); 1.3 East of 101 Area Plan (Adopted July 1994 and as amended through Effective Date), 1.4 Oyster Point Specific Plan (Adopted March 23, 2011); 1.5 Redevelopment Plan for Downtown/Central Project Area (Adopted July 12, 1989 and as amended through Effective Date); 1.6 Redevelopment Plan Amendment for the Downtown/Central Project Area (to be adopted); 1.7 Joint Powers Agreement between City and San Mateo County Harbor,District (Entered October 21, 1977 and as amended through Effective Date); 1.8 Design Review Guidelines [for Commercial/Industrial Projects] (in effect as of Effective Date); For illustrative purposes only, Exhibit E-2 provides calculations of the fees based on rates in effect on Effective Date of the Agreement and those fees proposed to be adopted in the future, and assuming 2,250,000 square feet of net new development; except as specified in this Exhibit E-1 or the resolution(s) and ordinance(s) adopting and implementing the fees, actual fees assessed will be calculated at the rates in effect at the time payment is due, and based on actual square footage. 1 2. FEES, TAXES, EXACTIONS, DEDICATION OBLIGATIONS, AND ASSESSMENTS Developer agrees that Developer shall be responsible for the payment of the following existing and, if adopted, potential future fees, exactions, taxes, and assessments (collectively, "Assessments"). From time to time, the City may update, revise, or change its Assessments. The Parties agree that such updates, revisions, and changes shall not prevent the City from assessing the updated, revised, or changed Assessment against the Marina Property or Business Park. Further, nothing herein shall be construed to relieve the Property froin common benefit assessments levied against it and similarly situated properties by the City pursuant to and in accordance with any statutory procedure for the assessment of property to pay for infrastructure and/or services that benefit the Property. Except as indicated below, the amount paid for a particular Assessment, shall be the amount owed, based on the calculation or formula in place at the time payment is due as specified below. 2.1 Impact Fees (Existing Fees). Except as modified below, existing fees shall be paid at the rates and at the times prescribed in the resolution(s,) or ordinance(s) adopting and implementing the fees. 2.1.1 Childeare Impact Fee (SSFMC, ch. 20.310; Ordinance 1301-2001). (a) Developer shall construct and have ready for occupancy, a childcare facility or facilities that is the lesser of(i) 22,000 square feet plus sufficient additional open space to meet State licensing requirements, or(1i) sufficient gross square feet to accommodate a minimum of 275 children, within the Project, no later than the earlier of- occupancy of the final building to be constructed in third phase of the Project to be constructed; or one year prior to the expiration of this Agreement. Accordingly, Developer shall submit design plans for the shell of the childcare facility no later than the issuance of a building permit for the final building in third phase to be constructed, and shall obtain all required permits, including building permits and commence construction of the tenant improvements for such facility no later,than six (6) months after issuance of a certificate of occupancy for the final building in third phase to be constructed, If the childcare facility is open to the public, City and Developer may mutually agree to allow the City to operate the facility. (b) Notwithstanding the foregoing, at any time including after commencement or completion of construction of the shell or tenant improvements for the childcare facility described in paragraph 2.1.1(a), Developer may alternatively meet the requirements of this Section 2.1.1 by providing a one dollar($1) per gross square foot in-lieu fee for the net new construction of building area that has been completed prior to the time of such payment, excluding par-king structures. Each year after 201 O, the per square foot fee shall automatically be increased at a rate equal to the Change from Prior Year for the Consumer Price Index—All Urban Consumers, for the San Francisco-Oak]and-San Jose Area. If Developer elects to satisfy this childcare requirement through payment of this in-lieu fee, the in-lieu fee shall be paid no later than issuance of a building pennit for the final building in third phase to be constructed or one year prior to expiration of this Agreement, whichever occurs earlier. In no case shall the City issue a final certificate of occupancy 2 for the final building in the third phase to be constructed, unless Developer has either(i) constructed the shell for the childcare facility described in paragraph 2.1.1(a), or paid the fee described in this paragraph 2.1.1(b). After initial payment of the fee, Developer shall continue to pay the fee at the rate described in this paragraph 2.L (b), for all subsequently completed net new construction, payable prior to issuance of each subsequent building pennit. (c) If Developer fails to either construct a new facility by the deadline described in paragraph (a), or pay the in-lieu fee by the deadline described in paragraph (b), Developer shall instead pay a fee equal to the City's estimated reasonable costs, including all costs associated with site acquisition (including, if necessary, eminent domain), environmental review, permitting, and all other expenses and fees, including attorney's fees, required to construct a childcare facility of equivalent size and quality as that described in paragraph 2.1 ,1(a). Developer shall pay this fee to the City no later than six (6) months after issuance of a certificate of occupancy for the final building in the third phase to be constructed or one year prior to expiration of this Agreement whichever occurs earlier, 2.1.2 East of 101 Traffic Impact Fee (Resolution 84-2007). East of 101 Traffic Impact fees shall be paid for each Phase of the Project, and shall be determined based on the application of the fon-nula in effect at the time the City issues each building permit, and shall be payable prior to the issuance of such building permit, 2.1.3 Oyster Point Grade Separation Fee (Resolution 102-96). Oyster Point fees shall be paid for each Phase of the Project, and shall be deter-nined based on the application of the formula in effect at the time the City issues each building permit, and shall be payable prior the issuance of such building pen-nit. 2,1.4 East of 101 Sewer Impact Fee (Resolution 97-2002). Sewer Impact fees shall be paid for each Phase of the Project, and shall be determined based on the application of the forinula in effect at the time the City issues each building permit, and shall be payable prior to the issuance of such building permit. 2.1.5 Sewer Capacity Charge (Resolution 39-2010). 2.1.6 General Plan Maintenance Fee (Resolution 74-2007). 2.1.7 Permit Processing Fees. As adopted pursuant to City's Master Fee Schedule for processing of land use entitlements, including with out limitation, General Plan amendments, zoning changes, precise plans, development agreements, conditional use permits, variances, transportation demand management plans, tentative subdivision maps, parcel maps, lot line adjustments, and building permits. 2.2 Impact Fees (Potential Future Fees). 2.2.1 Parks and Recreation Fee. As of the Effective Date, the City is evaluating a "Park Facilities Fee" to support the provision, operation, and maintenance of park facilities and additional public open space in lieu of requiring that applicants dedicate one-half an acre,per 1,000 new employees, to the public in the East of 101 area. If implemented by December 31, 2012, Developer shall be responsible for such Park Facilities Fee, with a maximum cap of$4.78 per gross 3 square foot of building area, excluding parking structures. The actual fee, if implemented,may be lower, in which case Developer would be responsible for the actual fee in effect at the time the City issues each building permit for development subject to the fee. Developer shall receive a credit to offset the Park Facilities Fee for development of public open space created and/or improved on the Business Park equal to 100% of the public open space created and/or improved on the Business Park., Developer shall also receive a credit to offset a portion of the Park Facilities Fee for development of private open space created within the Project Site. Developer's credit for private open space shall be identical to the credit, if any, allowed under the Park Facilities Fee program, if implemented, except that (i) in no case, shall Developer receive a credit offsetting less than 25% of Developer's required fee, or more than 50% of Developer's required fee; and (ii) in no case shall zoning or building code required open areas, including but not limited to the fifteen-percent landscaping requirement (SSFMC, § 203 10,003) and setbacks, be counted towards any offsetting credit. 2.2.2 Stormwater Permit Compliance Fee. As of the Effective Date of the Agreement, the City is considering a citywide fee applicable to all private property that would be adopted to fund or reimburse the City for the City's expenses associated with its compliance with Regional Stormwater Permit ("Storinwater Fee"), including maintenance and inspection. Developer shall be responsible for such Stormwater Fee, with a maximurn annual cap of$725.00 per acre adjusted annually on January 1, commencing January 1, 2013, by the proportionate increase in the Producer Price Index—All Commodities, as published by the Bureau of Labor Statistics of the U.S. Department of Labor. The Stormwater Fee shall be payable for each Subsequent Approval,provided that (i) the Subsequent Approval is -for an entitlement covered by the Stormwater Fee, and (ii) a complete application for the Subsequent Approval is received after the effective date of the: Stoirnwater Fee. Unless the Stormwater Fee provides otherwise, the Stoirnwater Fee shall be paid prior to issuance of any building permit for the Subsequent Approval to which the Stormwater Fee applies. The amount of the Ston-nwater Fee to be paid shall be in accordance with the calculation in effect at the time of payment. 2.2.3 Fire Department Hazardous Materials Response Facilities, Vehicles and Equipment Fee. As of the Effective Date, the City is evaluating a Fire Department fee to fund "Hazardous Materials Response Facilities, Vehicles and Equipment" to assist the City's Fire Department with responding to incidents involving hazardous materials in the East of 1.01 area. If implemented by December 31, 2012, Developer shall be responsible for such Fee,with a maximum cap of$0.28 per square foot of building area. The actual fee, if implemented, may be lower, in which case Developer would be responsible for the actual fee in effect at the time the City issues each building permit for development subject to the fee. Developer shall receive a credit to offset a portion of this Fee, in the event Developer directly provides or funds any of the facilities, vehicles, and/or equipment funded by the Fee. Developer's credit shall be identical to the amount Developer spends on development and/or funding of any of these facilities, vehicles, and/or equipment. 2.3 User Fees. 2.3.1 Sewer Service Charges (assessed as part of property tax bill) 2.3.2 Stormwater Charges (assessed as part of property tax bill) 2.4 Other Exactions. 4 2.4.1 Mass Decontamination Facility Contribution. As Developer's fair share contribution to the City's emergency preparedness, Developer shall pay an in-lieu fee to be used to fund a portion of the costs of purchasing a mobile, prefabricated mass decontamination system, capable of serving ambulatory and non-ambulatory, chemically contaminated persons at a rate of not less than two hundred fifty (250) persons per hour. The in-lieu fee shall be in the amount of$0.1 0 per gross square foot of building area, excluding parking structures, and shall be payable prior to the issuance of a Certificate of Occupancy for the shell of each building to be constructed as part of the Project. The in-lieu fee shall be payable by Developer until the system is fully funded and shall be deposited and held in a separate account by the City. 2.4.2 Public Art/Transit Enhancement Fee. Developer shall pay an in-lieu fee to be used for enhancing, enlarging,, repairing, restoring, renovating, remodeling, redecorating, and/or refurbishing the Caltrain Station located at 590 Dubuque Avenue, the Oyster Point Ferry terminal and/or their associated facilities. The in-lieu fee shall be in the amount of one dollar($1.00) per gross square foot of building area, excluding parking structures, in the development and shall be payable in two (2) equal installments per building. One-half(1/2) of the in-lieu fee shall be payable prior to the issuance of a building permit for the shell of each building, and one-half(1/2) of the in- lieu fee shall be payable prior to the issuance of a Certificate of Occupancy for the shell of each building. 2.4.3 Green Building Requirements. (a), LEED. Prior to issuance of any building permit for any tenanted building, Developer shall provide evidence demonstrating that if constructed in accordance with the approved design and construction plans, the building will meet minimum standards required to achieve at least a Leadership in Energy and Environmental Design version 3 (LEED v3) Silver certification under the Core and Shell Development rating system, Within one year of the issuance of a certificate of occupancy for any tenanted building, Developer shall provide evidence demonstrating that the building has been certified as at least LEED v3 Silver tinder the Core and Shell Development Rating System. (b) On-Site Energy Generation. The Project, including all of its phases shall implement utilization of technologies that will result in generation of electric power on-site, and will reduce the loading on the electrical grid. Upon completion of the last phase of the Project, at least one percent (1.0%) of all electrical power shall be generated on-site, with an aspiration of generating at least five percent (5.0%) of all electrical power on-site, The Project shall incorporate a combination of green and renewable (e.g., solar,power) and other alternate sources of electrical power generation on-site. After completion of the last phase of the Project, one (1) time per year, Developer shall submit a report demonstrating ratios of power purchased to power produced for a period of five years. 2.4.4 Payment. Prior to commencement of construction of the first building in the first phase of development, Developer shall make a cash payment to the City in the amount of one million one hundred thousand dollars ($1,100,0001). 1614888.1 5 Exhibit E Assigp4pent and Assumption of Rights and Obligations Forn. i DR,4FT EXHIBIT FORM ASSIGNMENT AND ASSUMPTION AGREEMENT RECoRDiNG REQuEsTED By AND WHEN R-EcORDED MArL To: City of South San Francisco 400 Grand Avenue South San Francisco, CA 9408,0 Attn: (Space Above This Line for Recorder's Us,e Only) Exempt fi-om Recording Fee per Government Code § 27383 ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is entered into as of the day of , 20_, by and among, Oyster Point Ventures, LLC a ("Assignor"), , a ("Assignee"), and the City of South San Francisco, a municipal corporation ("City"). RECITALS A. Assignor has entered into a Development Agreement with City effective - (Recorder's Document No. ) ("Development Agreement"), to facilitate the redevelopment of that certain real property owned and to be acquired by Developer consisting of approximately _ acres within the City of South San Francisco, County of San Mateo, State of California, which is legally described in Exhibits,— to the Development Agreement and shown on the map attached to the Development Agreement as Exhibit ("Site:"). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Development Agreement. B. Assignor is the fee owner of the Site, [a portion of which is] designated as APNs , more particularly described in Exhibit I attached hereto and incorporated herein ("Property"). C. Assignor desires to transfer its interest in the Property to Assignee concurrently with execution of this Agreement and Assignee desires to so acquire such interest in the Property from Assignor. D. Section 11.02 of the Development Agreement provides that Assignor may assign its rights and obligations under the Development Agreement to another party, provided that the Assignor shall have provided to City at least forty-five (45) business days prior written notice and provided that the Assignor and the Assignee document the assignment in an agreement substantially in the form of this Agreement. M11614878.1 DRAFT FORM ASSIGNMENT AND ASSUMPTIONA GREEMENT E. Assignor has provided the required written notice to City of its intent to enter into an assigrunent and assumption agreement as required by Section 11.02 of the Development Agreement. F. Assignor desires to assign to Assignee and Assignee desires to assume all rights and obligations of Assignor under the Development Agreement with respect to the Property. Upon execution of this Agreement and transfer to Assignee of legal title to the Property, Assignor desires to be released from any and all obligations under the Development Agreement with respect to the Property. AGREEMENT NOW, THEREFORE, Assignor, Assignee and City hereby agree as follows: I. Incorporation. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Assignment by Assigno . Assignor hereby assigns, transfers and grants to Assignee, and its successors and assigns, all of Assignor's rights, title and interest and ,obligations, duties, responsibilities, conditions and restrictions under the Development Agreement with respect to the Property(collectively, "Rights and Obligations"), 3. Acceptance and Assumption by Assigpee. Assignee, for itself and its successors and assigns, hereby accepts such assignment and assumes all such Rights and Obligations, whether accruing before or on or after the Effective Date (defined in Section 16 below). Assignee agrees, expressly for the benefit of City, to comply with, per-form and execute all of the Rights and Obligations of Assignor arising from or under the Development Agreement. 4. Release of Assignor. Assignee, City hereby fully releases Assignor from all Rights and Obligations. Both Assignor and. Assignee acknowledge that this Agreement is intended to fully assign all of Assignor's Rights and Obligations to Assignee, and it is expressly understood that Assignor shall not retain any Rights and Obligations whatsoever. 5. Substitution of Assignor. Assignee hereafter shall be substituted for and replace Assignor in the Development Agreement. Whenever the term "Oyster Point Ventures, LLC" or "Developer" appears in the Development Agreement with respect to the Property, it shall hereafter mean Assignee. 6, Assigpor and..Assignee Ajzrecj-nents Indemnifications and Waivers. a. Assignee represents and warrants to City as follows-, (i) Assignee is a duly formed within and in good standing under the laws of the State of -I The copies of the documents evidencing the formation of Assignee, which have been delivered to City, are true and complete copies of the originals, as amended to the date of this Agreement. 2 MN1614878.1 DRAFT FORM ASSIGNMENT AND ASSUMPTIONA GREEMENT Assignee has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by Assignee has been fully authorized by all requisite actions on the part of Assignee. (ii) Assignee's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Assignee is a party or by which it is bound. (iii) Assignee has not (i)made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Assignee's creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Assignee's assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Assignee's assets, (v) admitted in writing its inability to pay its debts as the y come due, or (vi) made an offer of settlement, extension or composition to its creditors generally. (iv) As of the Effective Date of this Agreement, Assignee owns fee simple title to the Property. b. Assignor and Assignee hereby acknowledge and agree that City has not made, and will not make, any representation or warranty that the assignment and assumption of the Development Agreement provided for hereunder will have any particular tax implications for Assignor or Assignee. C. Assignor and Assignee each hereby waives and releases and each hereby agrees to indemnify and hold City harmless from any and all damages, liabilities, causes of action, claims or potential claims against City (including attorneys fees and costs) arising out of or resulting from the assignment and assumption of the Rights and Obligations. d. Assignor acknowledges and agrees that the Rights and Obligations have been fully assigned to Assignee by this Agreement and, accordingly, that Assignee shall have the exclusive right to assert any claims against City with respect to such Rights and Obligations. Accordingly, without limiting any claims of Assignee under the Development Agreement, Assignor hereby waives any claims or potential clainis by Assignor against City to the extent arising solely out of the Rights and Obligations, 7. Development Agreement in Full Force and Effect. Except as specifically provided herein with respect to the assignment, all the terms, covenants, conditions and provisions of the Development Agreement are hereby ratified and shall remain in full force and effect. 8. Recording. Assignor shall cause this Agreement to be recorded in the Official Records of San Mateo County, California, and shall promptly provide conformed copies of the recorded Agreement to Assignee and City. 9, Successors, and Assigns. Subject to the restrictions on transfer set forth in the Development Agreement, all of the terms, covenants, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their 3 MN 1614878.1 DRAFT FoRm AssiGivmENT A NoASSUMPTION A GREEMENT respective heirs, successors and assigns, pursuant to Section 14.08 of the Development Agreement. 10. Assignee Address for Notices. The address of Assignee for the purpose of notices, demands and communications under Section 14.09 of the Development Agreement shall be: Assignee: Attention: Telephone: Facsimile: With a copy to: Attention., Telephone: Facsimile: I I Applicable La /Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. Any legal actions under this Agreement shall be brought only in the Superior Court of the County of San Mateo, State of California, 12, Interpretation. All parties have been represented by counsel in the preparation and negotiation of this Agreement, and this Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. Unless the context clearly requires otherwise: (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) "shall, will," or "agrees" are mandatory, and may is permissive; (d) "or" is not exclusive; and (e) "includes" and "including" are not limiting. 13,. Headings. Section headings in this Agreement are for convenience only and are , not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. 14. Severabilfty, Except as otherwise provided herein, if any provision(s) of this Agreement is (are) held invalid, the remainder of this Agreement shall not be affected, except as necessarily required by the invalid provisions, and shall remain in full force and effect unless amended or modified by mutual consent of the parties. 4 MN1614878.1 DRAfT Fo Rm ASSIGNMENT AND ASSUMPTioNA GREEMENT 15. Countgnarts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute an original, but all of which, when taken together, shall constitute one and the same instrument, with the same effect as if all of the parties to this Agreement had executed the same counterpart. 16. City Consent., City is executing this Agreement for the limited purpose of consenting to the assignment and assumption and clarifying that there is privity of contract between City on the one hand, and Assignee on the other, with respect to the Development Agreement. 17. Effective Date. The Effective Date of this, Agreement shall be the date upon which Assignee obtains fee title to the Property and delivers evidence of the transfer to City ("Effective Date"). For the purposes of this Section, the evidence of transfer shall consist of a duly recorded deed and title report. IN WITNESS WHEREOF, Assignor, Assignee,, and City have entered into this Agreement as of the date first above written. [Signatures.follow on separate page] 5 MNJ 614878.1 DRAT FORmASSIGNMENT AND ASSUMPTION GREEMENT ASSIGNOR ASSIGNEE OYSTER POINT VENTURES LLC, a Delaware limited liability company a By: SRI Nine Oyster Point LLC, a Delaware limited liability By: company, its Managing Member Name: B'y: Its: Name: [Notary Acknowledgment Required] Its, [Notary Acknowledgment Required] CITY CITY OF SOUTH SAN FRA NCI SCO, a municipal corporation By:_ Name:- City Manager [Notary Acknowledgment Required/ ATTEST: By City Clerk APPROVED AS TO FORM., By: City Attorney 6 MN1614878A DRAFT FOR.m ASSIGNMENT AND A SSUMPTIONA GREEMENT EXHIBIT NO. I Property Legal Description 1614878.1 EXHIBIT NO. I MN1614878.1 ( Exhibit G ` Public Benefit Facilities UD F- CM Mi ZO x LULJ C) Tf uj Z Lo a > LU LL 0 o m< Lu < 0 1 co uj < ui a- Z U) pw w < > 2 m �z 0 CL CL < < AD (n F- '�5 LL� ui < D uj! uj m C<L 0 F- Z < LL < F- iL 0 0 0 F- LLJ w z b z z 110 < fr. c ) tliu- 6 < E 6) ow 0 0 z M (n 03 ('0 nj� G C)(01 GI i(D(31 1# loor"I" ,rV vi y EVIL dr 5 g ff all Q A Exhibit H-1 / Areas-Subject to Facilities Assessment _mm u u,. ru n•w � w^n ar), a r tF�+ rr'r rr'r �^rg' ar am mJm"'w,u� rod m' mr�u� VIA LWL u� 5 Y')"I'll ,` " f"�1 1 %" � �" �`.✓ r � M ! w. d Y N L P P r {a in w, u,n f m k« rN,� r� � 'm✓� I d m � '^, e 1c a�„�. �, IrW r w!`" r'" ,fro m u ny� d"m�",��',�� VIM"re r f'm w rm i., ,* OWN ,v'^ Iu y,m isq J'- J lu to N 1 d d" r a �rt '" ,.J r� � � N- m ., u• m p i I ry 1q d- zu n u- J v �p �^ r w w�, � o h, n n �+� 'i;,;n r 1i ,m 7 uuw�,m �} o k m K m^ P d m TAN r rt a'" ,fill, p Im m, ,,: me w u. ✓ 'Nm ,, u m r ry 'm°W', N mr a �° mix m r G"a � i wp � V• I W W ry m" 6J G' I Avon.ra n Exhibit H-2 Public CEDTLoperty l � I I r� � � a cc CL CL HA CL UL �t r� Fr � � IF ! I / RECORDING REQUESTED BY AND W14EN RECORDED MAIL 'ro: Morrison & Foerster 425 Market Street San Francisco, California 94105-2482 Attention: Zane 0. Gresham APNs: 015-010-240, 015-010-630; and portions of 015-010-260, 015-010270, 015-010-600, 015-1.90-170 and 015-190-190 (Space Above This L.ine Reserved For Recorder's Use) DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF SOUTH SAN FRANCISCO AND OYSTER POINT VENTURES, LLC DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of March 23, 2011 by and between the City of South San Francisco ("• ity"), and Oyster Point Ventures, LLC ("Developer"),pursuant to California Government Code Section 65864 et seq. RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code Section 65864 et M. (the "Development Agreement Statute"), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code Section 65865, City has adopted procedures and requirements for the consideration of development agreements (City Ordinance No. 909). This Development Agreement has been processed, considered and executed in accordance with such procedures and-requirements. C. Developer has a legal and/or equitable interest in certain real property consisting of approximately forty-six (46) acres located in the Oyster Point area of the City of South San Francisco, San Mateo County, California, as more particularly described in Exhibit A attached hereto, and as diagrammed in Exhibit B attached hereto (the"Project Site"). D. Developer intends to develop the Project Site as a life sciences campus consisting of research and development and office buildings, comprising a total of up to two million, two hundred fifty-four thousand, two hundred thirty(2,254,230) gross square feet of development, based on square footage yielded fi-om. 1.25 FAR, together with certain public amenities, including public open space and recreational areas and other uses (defined more fully in Section 3.02 below as the"Project"). E. This Agreement is based upon and was written to achieve two basic purposes: First, that the City will be kept and/or made whole by Developer with respect to all aspects (e.g., fiscal impacts, etc.) of the planning, development, maintenance and operation of the Project including, among other things, the costs to the City of providing the Project with public services and facilities and mitigating the Project's environmental impacts; and second, that Developer will have a full and vested right to develop, use and operate the Project and the Project Site as set forth herein. The rights and obligations of the parties to the Agreement shall be construed and interpreted in such a manner as shall give full effect to each of these purposes. F. Prior to or concurrently with approval of this Agreement, City has taken several actions to review and plan for the future development of the Project. These include, without limitation, the following: MN1614805A r 1. Environmental Impact Report. The environmental impacts of the Project, including the Project Approvals and the Subsequent Approvals, as defined below, and numerous alternatives to the Project and its location, have properly been reviewed and assessed by City pursuant to the California Environmental Quality Act, Public Resources Code Section 21000 et seq.; California Code of Regulations Title 14, Section 15000 et seq.; and City's local guidelines promulgated thereunder(hereinafter collectively referred to as "CEQA"). On March 23, 2011, pursuant to CEQA and in accordance with the recommendation of the Planning Commission for the City of South San Francisco (the "Planning Commission"), the City Council certified a final environmental impact report covering the Project (the "EIR"). As required by CEQA,by Resolution No. 46-2011, the City adopted written findings and a mitigation monitoring and reporting program (the "MMRP") prior to approving the Project Approvals. 2. General Plan Amendment. Following review and recommendation by the Planning Commission and after a duly noticed public hearing and certification of the EIR, the City Council, by Resolution No. 47-2011, approved amendments to the South San Francisco General Plan (the,"General Plan Amendment"). 3. Downtown/Central Redevelopment Plan and Applicable Amendment. The City Council, by City Ordinance No. [__J, approved amendments,to the Redevelopment Plan for the Downtown/Central Redevelopment Project (the "Redevelopment Plan Amendment"). The term "Redevelopment Plan Amendment" as used in this Agreement includes an amendment to the Redevelopment Plan, if any such amendment is lawfully adopted no later than September 30, 2011, that is consistent with the Preliminary Plan. 4. Disposition and Development Agreement. Following certification of the EIR, the Redevelopment Agency of the City of South San Francisco ("RDA") adopted Resolution No. 18-2011, approving a Disposition and Development Agreement governing property conveyances, infrastructure development, and financing for portions of the Project(the "DDA"). 5. Zoning Ordinance Amendment. Following Planning Commission review and recommendation, certification of the EIR, and adoption of the General Plan Amendment and the Redevelopment Plan Amendment at a duly noticed public hearing, the City Council adopted City Ordinance No. 1437-2011, approving the Oyster Point Specific Plan and rezoning the Project Site to City's Oyster Point Specific Plan District zoning district (the"Zoning Ordinance Amendment"). 6. Precise Plan. Following adoption of Resolution No. 2701-2011 recommending City Council certification of the EIR, and a duly noticed public hearing, the Planning Commission adopted Resolution No. 2702-2011, recommending the City Council approve a Precise Plan for Phase I of the Project (the"Phase I Precise Plan"), contingent upon City Council approval of the General Plan Amendment, the Zoning Ordinance Amendment, the Development Agreement, and the Redevelopment Plan Amendment and RDA approval of the Disposition and Development Agreement. MN1614805A 2 f J, i 7. Transportation Demand Management Plan. Concurrent with the Planning Commission's recommendation of approval of the Phase I Precise Plan, the Planning Commission adopted Resolution No. 2702-2011, approving a Transportation Demand Management Plan for the Project, contingent upon City Council approval of the General Plan Amendment, the Redevelopment Plan Amendment,the Development Agreement,, and the Zoning Ordinance Amendment and RDA approval of the Disposition and Development Agreement, The approvals and development policies described in this Recital F are collectively referred to herein as the "Project Approvals." G. City has determined that the Project presents certain public benefits and ,opportunities which are advanced by City and Developer entering into this Agreement. This Agreement will, among other things, (1)reduce uncertainties in planning and provide:for the orderly development of the Project; (2)mitigate many significant environmental impacts currently in existence at the Project Site; (3) result in the development of critical public facilities and other infrastructure improvements; (4) strengthen the City's, economic base with a variety of high quality long-term jobs, in ,addition to shorter terin construction jobs; (5)provide for and generate substantial revenues for the City in the form of one-time and annual fees, taxes, exactions, and other fiscal benefits; (6)promote high quality design and development; and (7) otherwise achieve the goals and purposes for which the Developmcnt Agreement Statute was enacted. H. The complexity, magnitude, and long-term build out of the Project would not be feasible if City had not determined, through this Agreement, to provide a sufficient degree of certainty in the land use regulatory process to justify Developer's substantial financial investment associated with development of the Project. In recognition of the benefits to City described in the preceding Recital, together with the other public benefits that will result from the development of the Project, Developer will receive by this Agreement assurance that it may proceed with the Project in accordance with the Applicable Law (defined below), and therefore desires to enter into this Agreement. 1. The City Council, after conducting a duly noticed public hearing, has found that this Agreement is consistent with the General Plan and with the applicable Specific Plan and has conducted all necessary proceedings in accordance with the City's rules and regulations for the approval of this Agreement. J„ On March 14, 2011, following a duly noticed public hearing, the Planning Commission adopted Resolution No., 2702-2011, recommending that the City Council approve this Agreement. Following City Council certification of the EIR and adoption of the General Plan Amendment, the Redevelopment Plan Amendment, the Zoning Ordinance Amendment, and the Precise Plan, the City Council at a duly noticed public hearing adopted City Ordinance No. 1438-2011, approving and authorizing the execution of this Agreement. MN1614805A 3 AGREEMENT NOW, THEREFORE, in consideration of the premises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: ARTICLE 1. DEFINITIONS "Administrative Agreement Amendment" shall have that meaning set forth in Section 10.02(a) of this Agreement. "Administrative Project Amendment" shall have that meaning set forth in Section 10.01(a) of this Agreement. "Agreement" shall mean this Development Agreement. "Applicable Law" shall have that meaning set forth in Section 8.03 of this Agreement., "Business Park" shall have that meaning set forth in Section 3.01 of this Agreement. "City Law" shall have that meaning set forth in Section 9.01 of this Agreement, "Community Facilities District(CFD)" shall have that meaning set forth in Section 6.06 of thisAgreement. "Conveyed Property" shall have that meaning set forth in Section 3.01 of this Agreement. "Deficiencies" shall have that meaning set forth in Section 12,02(a) of this Agreement. "Development Agreement Statute" shall have that meaning set forth in Recital A of this Agreement. "Disposition and Development Agreement (DDA)" shall have that meaning set forth in Recital F(4) of this Agreement. "Effective Date" shall have that meaning set forth in Section 2.01 of this Agreement. "Floor Area Ratio (FAR)" shall have that meaning set forth in Section 3.02 of this Agreement. "Judgment" shall have that meaning set forth in Section 12.02(a) of this Agreement. MN1614805.1 4 "Mitigation Monitoring and Reporting Program" or"MMRP" shall have that meaning set forth in Recital l~(l) of this Agreement. "Non-Assuming Transferee" shall have that meaning set forth in Section 11.03 of this Agreement. "Notice of Compliance" shall have that meaning set forth in Section 11.04 of this Agreement, "Periodic Review" shall have that meaning set forth in Section 13.03(a) of this Agreement. "Precise Plan" shall have that meaning set forth in Section 3.04 of this Agreement. "Project" shall have that meaning set forth in Recital D of'this Agreement. "Project Approvals" shall have that meaning set forth in Recital F of this Agreement. "Project Site" shall have that meaning set forth in Recital C of this Agreement. "Subsequent Approvals" shall have that meaning set forth in Section 3.04 of this Agreement, "Term" shall have that meaning set forth in Section 2.02 of this Agreement. "Transfer Agreement" shall have that meaning set forth in Section 11.02(a) of this Agreement. "Transferee" shall have that meaning set forth in Section 11.01 of this Agreement. ARTICLE 2. EFFECTIVE DATE AND TERM Section 2.01. Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement is adopted by the City Council and this Agreement is fully executed by the parties, (the "Effective Date"),, subject to the provisions of Government Code, Section 65867,5(a). The Effective Date is that date set forth at the beginning of this Agreement Section 2.02. Term. The term of this Agreement (the"Term") shall commence upon the Effective Date and continue for a period of twenty(20) years. ARTICLE 3. THE PROJECT AND PROJECT APPROVAL PROCESS Section 3.01. The Project Site. The Project Site comprises (1) the area commonly known as the Oyster Point Business Park ("Business Park"), and (2) certain property acquired from RDA pursuant to the DDA (the "Conveyed Property"). MNI 614805A 5 I The Project Site is described more particularly in Exhibit A and is depicted in Exhibit B. Section 3.02. The Project. The Project consists of development of the improvements, amenities, and facilities described below as comprising the Phase I City(Phase IC) and Phases 1, 11, 111, and IV Developer (Phases ID, ID, HID, and IVD) Improvements. The Project will include construction of a total of up to 2,254,230 gross square feet of research and development and office buildings, predicated upon a Floor Area Ratio ("FAR") calculation of 1.25. The FAR calculation takes into account certain areas (1)reserved for public amenities, including any private streets, beach, park, portion of the Bay Trail, or other rights of way, public open space, public parking area, or recreational area, and (2) available for potential future development. Section 3.03. Project Phasing. The Project will be constructed in several phases, generally as set forth below. The improvements comprising each phase are identified and depicted in Exhibit C attached hereto. The Phase IC Improvements and Phase ID Improvements wil I be initiated prior to the Phases I ID', I JID, and IVD Improvements. (a) Phase IC Improvements. The "Phase IC Improvements" consist of: (i) Streets and utilities (including grading, subgrade, base, paving, curb and sidewalk, street lights, storm water, sanitary sewer, combined trench for gas electric, and telecom, impermeable utility trench at sanitary landfill areas, and temporary streets and utilities) in the following locations: a. At the future street "hub"' area b. Extending cast from the hub across the Oyster Point Marina area (ii) Repair of and/or upgrade to the clay cap covering the Oyster Point Landfill on specified City-owned parcels; (iii) Reconfiguration and reconstruction of existing parking areas at specified City-owned parcels; (iv) Grading and construction of open space recreation areas on specified City-owned parcels; (v) Demolition and grading at the future"hotel site" on specified City- owned parcels; and (vi) Landscaping of the beach/park area on the Conveyed Property; MNI 614805.1 6 f (vii) Landscaping and other improvements, including construction of portions of Bay Trail,public restrooms and palm promenade, on specified City-owned parcels; (viii) Repair of the clay cap covering the Oyster Point Landfill on specified City-owned parcels and raising the level of certain portions, of the Oyster Point Landfill and its perimeter to counteract the projected effects of sea level rise. (b) Phase ID Improvements. The "Phase ID Improvements" consist of Repair of the clay cap covering the Oyster Point Landfill on the Conveyed Property; (ii) Rernediation of the area identified as "Sump 1 Installation of methane control and monitoring systems on the Conveyed Property; (iv) Relocation of refuse on the Conveyed Property to accommodate new buildings; and (v) Development of buildings on the Conveyed Property with a minimum of 508,000 square feet for the uses specified in this.Agreement and in the applicable precise plan. (c) Phases JID, 11113, and IVD Improvements. The "Phase llD, 111D, and 1VD Improvements" consist of-, (i) Development of streets and utilities (including grading, subgrade, base, paving, curb and sidewalk, street lights, storm water, sanitary sewer, combined trench for gas electric, and telecom, impermeable utility trench at sanitary landfill areas, and temporary streets and utilities) at the Business Park; (ii) Relocation and expansion of capacity of Sewer Pump Station at 383 Oyster Point Boulevard; (iii) Landscaping within the I00-foot shoreline band at the Business Park; and (iv) Development of buildings within the Business Park area and part of the Conveyed Property so that the FAR across the entire Project Site will be 1.25, comprising a total of up to 2,254,230 gross square feet of development. Section 3.04. Subsequent Approvals. In addition to the Project Approvals set forth in Recital F, certain other,land use approvals, entitlements, and permits are necessary 141614 05.1 7 or desirable for implementation of the Project ("Subsequent Approvals"). The Subsequent Approvals may include, without limitation, the following: separate final development plans for Phases 11D, HID, and 1VD of the Project (each a "Precise Plan"), design review approvals, improvement agreements, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, rezonings, permits, and any amendments to, or repealing of, any of the foregoing. All Subsequent Approvals shall be consistent with the terms of the Agreement and shall be exercised in a manner that supports the vested rights granted by the Agreement. ARTICLE 4. OBLIGATIONS OF DEVELOPER Section 4.01. Obligations of Developer Gencrall . The parties acknowledge and agree that the City's agreement to perform and abide by its covenants and obligations set forth in this Agreement is a material consideration for Developer's agreement to perform and abide by its long term covenants and obligations, as set forth herein, including performance of the applicable mitigation measures identified in the MMRP. Section 4.02. City Fees. (a) Developer shall pay those processing, inspection and plan checking fees and charges,required by the City for processing applications and requests for Subsequent Approvals under the applicable regulations in effect at the time such applications and requests are submitted to the City. (b) Consistent with the terms of the Agreement, including the provisions of Section 8.04, City shall have the right to impose only those development fees (the "Development Fees") identified in Exhibit E-,1, and limited to (i) those actually in effect at the time the Agreement is executed, at the rates in effect at the time the Development Fee is due including any lawfully imposed adjustments and escalators set forth in the applicable resolutions and ordinances, which are identified in Exhibit E-1, and (ii) those other generally applicable fees and exactions identified in Exhibit E-1, at a rate for each such fee or exaction no greater than the rate specified for such fee or exaction in Exhibit E-1. Development Fees shall be due upon issuance of building permits or certificates of occupancy for the Project in accordance with the ordinances,imposing such fees, as may be appropriate, except as otherwise provided under the Agreement. Section 4.03. Mitigation Measures. Developer and City shall comply with the MMRP approved in conjunction with the EIR for the Project, as it may be modified from time to time in accordance with the MMRP or other law. Section 4.04. Additional Consideration. As consideration for its vested rights to develop the Project in accordance with this Agreement and the separately MN1614805,1 executed DDA between Developer and the RDA, Developer has committed to make payments to the RDA as follows: (a) At the time the City/RDA conveys the Conveyed Property from City/RDA to Developer, and upon satisfaction of all requirements pursuant to the DDA for conveyance by City/RDA and payment by Developer, Developer will make a cash payment to RDA of two million two hundred filly thousand dollars ($2,250,000). In the event that at the time payment is due, the RDA is either not in existence or prohibited from collecting and utilizing past, current, or future tax increment revenue for redevelopment purposes, payment under this subsection (a) shall be made to the City. (b) At the time Developer commences construction of Phase HID, which shall be defined as developer obtaining the first building permit for the first building within Phase I1TD or IVD of the Project, Developer will make an additional cash payment to RDA of two million two hundred fifty thousand dollars ($2,250,000). In the event that at the time payment is due, the RDA is either not in existence or prohibited from collecting and utilizing past, current, or future tax increment revenue for redevelopment purposes, payment under this subsection (b) shall be made to the City. ARTICLE 5. OBLIGATIONS OF CITY Section 5.01. Obligations of City Generally. The parties acknowledge and agree that Developer's agreement to perform and abide by its covenants and obligations set forth in this Agreement, including Developer's decision to process the siting of the Project in the City, is a material consideration for City's agreement to perform and abide by the long term covenants and obligations of City, as set forth herein. Section 5.02. Protection of Vested Rights. To the maximum extent permitted by law, City shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by the Agreement can be enjoyed by Developer and to prevent any City Law, as defined below, from invalidating or prevailing over all or any part of the Agreement. City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure the Agreement remains in full force and effect. City shall not support, adopt, or enact any City Law, or take any other action which would violate the express provisions or intent of the Agreement. Section 5.03. Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, City will assist Developer in obtaining capacity for sewer, water, and storm services as may be necessary to serve the Project. Developer agrees that it shall pay the then-effective fees for the services provided pursuant to this Section. Section 5.04. Right to Rebuild. Developer may renovate or rebuild the Project or any f part thereof within the Tenn of the Agreement should it become necessary due to MN16148�05.1 9 natural disaster, changes in seismic requirements, or should the buildings located within the Project become functionally outdated, within Developer's sole discretion, due to changes in technology. Any such renovation or rebuilding shall be subject to the square footage, height limitations and FAR vested by the 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. ARTICLE 6. COOPERATION - IMPLEMENTATION Section 6.171. Processing Applications for Subs eq uent Approvals. The City will not use its discretionary authority in considering any application for a Subsequent Approval to change, the policy decisions reflected by the Agreement or otherwise to prevent or delay development of the Project, Section 6.02. Timely Submittals by Developer. Developer acknowledges that City cannot expedite processing Subsequent Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i)provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (ii) cause Developer's planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other necessary required materials as set forth in the Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to timely process any and all Subsequent Approvals, Section 6.03. Timely Processing by City. Upon submission by Developer of the application for any Subsequent Approval and processing fees, City shall promptly and diligently commence and complete all steps necessary to act on the application including, without limitation, (i) providing at Developer's expense, as requested by Developer or determined to be necessary by the Chief Planner, reasonable overtime staff assistance and/or staff consultants for planning and processing of the application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on the application. City shall ensure that adequate staff is available, and shall authorize overtime staff assistance as may be necessary, to timely process the application. Section 6.04. Review of Subsequent Approvals. The City may deny an application for a Subsequent Approval only if such application does not comply with the Agreement or Applicable Law (as defined below) or with any state or federal law, regulations, plans, or policies as set forth in Section 9.03. Section 6.05. Other,Government Permits. The City shall cooperate with Developer in its efforts to obtain, as may be required, permits and approvals from other governmental or quasi-governmental entities and shall, from time to time at the request of Developer, use its best efforts to assist Developer and to ensure the timely processing of such permits and approvals. MN1614805,1 10 Section 6.06. Community Facilities District. (a) Community Facilities District, Formation. Subject to subsection (f)below, upon the filing of a petition by Developer pursuant to Government Code Section 53318(c), the Parties shall cooperate in good faith to establish one or more Community Facilities Districts ("CFD(s)"') pursuant to the Mello-Roos .Act(Government Code Section 53311 et seq.). The aggregate of the boundaries of the CFD(s) shall be coextensive with those of the areas subject to facilities assessment, identified in Exhibit fl-1 and the areas defined as "Public CFD Property", as identified in Exhibit H-2, unless the Parties otherwise agree. Upon the filing of a petition by Developer with regards to the capital facilities or the developer or city for the service obligations, the City Council shall consider adoption of a resolution of intention to establish the CFD(s) and, following adoption, City shall use good faith, diligent efforts, in compliance with Government Code Section, 53318 et seq., to establish and implement the CFD(s) pursuant to the terms of this Agreement, including scheduling of necessary public bearings and adoption of a resolution of formation. City shall cause the CFD(s), upon formation, to become subject to and to comply with the provisions of this Agreement specifically applicable to the CFD(s). The City shall be responsible for conducting all proceedings for the establishment of the CFD(s), including the adoption of all resolutions,, ordinances and orders and recording of maps, notices,releases and the conduct of all hearings, elections and other public meetings under the Mello-Roos Act to establish the CFD(s), levy the Special Taxes and, as appropriate, provide for issuance of the CFD Bonds. To the extent City has not already adopted policies required by Government Code Section 53312.7, City agrees to use its best efforts to adopt such policies within ninety(90) days following the Effective Date. Developer acknowledges and agrees that City's policies may require, among other things, that the CFD proponent (in this case, Developer), provide a letter of credit or other credit enhancement instrument in form and amount reasonably satisfactory to City which is sufficient to ensure payment of the principal and interest payments on the CFD Bonds for up to two (2) years following issuance thereof(computed without regard to the availability of capitalized interest or amounts on deposit in a debt service reserve fund). (b) Public Benefit Facilities. Subject to caps on the total amount of net CFD Bond proceeds and the total tax and assessment rate set forth in subsections (d) and(e) below, the CFD(s) shall finance, to the extent such items are not financed from other sources at the election of Developer, the design and acquisition or construction of those off-site and on-site public facilities (identified in Exhibit G) necessary for development of the Project which may lawfully be financed under the Mello-Roos Act and other applicable law as set forth in the City's resolution of formation(collectively, the"Public Benefit Facilities"). Financing of the Public Benefit Facilities with CFD Bonds shall be subject to approval of the City, based on the unqualified written opinion of a nationally-recognized bond counsel that MN1614805.1 11. interest on the CFD Bonds will be federally tax exempt. The area that will be assessed for the Public Benefit Facilities is depicted on Exhibit H-1. (c) Maintenance and Services Costs. Subject to an annual cap of$149,254, payable by Developer, and an annual cap of$149,254 payable by City, each adjusted annually on January 1, commencing January 1, 2013,by the proportionate increase in the Producer Price Index—All Commodities as published by the Bureau of Labor Statistics of the U.S. Department of Labor, the CFD(s) shall finance maintenance and services ("Services") within the Public CFD Property described in Exhibit H-2. (d) Advance of Expenses; Reimbursement. Developer shall advance to City the estimated out of pocket costs of formation of the CFD(s), sale of CFD Bonds, and other costs and expenses associated with the CFD(s) ("Advanced Costs"). Such Advanced Costs may include, without limitation, legal, financial, appraisal and engineering costs and expenses associated with (i) formation of the District; (ii) determination of the rate and method of apportionment and levy of the Special Tax; (iii) review and approval of the plans and specifications for construction of the Public Benefit Facilities; (iv) determination of the value of property; (v) sale of CFD Bonds; and (vi) any other costs or expenses reasonably incurred in connection with the CFD(s). All such Advanced Costs, together with those reasonable out-of-pocket legal, engineering and financial services costs incurred by Developer directly related to establishment and implementation of the CFD(s) which have been approved by the Community Development Director or his or her designee in his or her reasonable discretion. and which may lawfully be financed under the Mello-Roos Act and other applicable law, shall be reimbursed to Developer from proceeds of the sale of CFD Bonds. (e) Issuance of CFD Bonds, Upon successful formation of a CFD and approval of the Special Tax, and subject to the restrictions in this subsection (d) and in subsection (e) below, bonds shall be issued ("CFD Bonds"), the proceeds of which shall be used to finance the Public Benefit Facilities, to the extent the Public Benefit Facilities legally and feasibly may be financed utilizing this method of financing. The amounts, timing and terms of the issuance and sale of the CFD Bonds, shall be determined by the City, in consultation with the Developer and the City's bond counsel, financial advisors and/or underwriters. Subject to the state of development of the Project and prevailing bond market conditions, the timing of the sale of the CFD Bonds shall be coordinated, as closely as possible, with the phasing of the development of the Project to provide financing for the Public Benefit Facilities in a timely fashion to meet the needs of the respective phases of development of the Project. If necessary, the CFD Bonds may be issued in series to help correspond to such phases. Developer agrees to assist the City in the issuance of the CFD Bonds by providing financial and development information reasonably required for due-diligence and disclosures relating to M-N1614805.1 12 the issuance of the CFD Bonds and to provide for any required continuing disclosures under,applicable securities laws. Special Tax. The CFD(s) shall be authorized to levy, and Developer shall approve (by affirmative vote or other legally acceptable method), a tax or taxes ("Special Tax") in accordance with the rate and method of apportionment of the Special Taxes approved in the completed proceedings for the applicable CFD. The Special Taxes shall be detennined and collected annually by the City against all taxable parcels as defined by the rate and method of apportionment of the Special Taxes for the applicable CFD. The Special Taxes shall be collected in the same manner and at the same time as ad valorem property taxes, unless some other method of collection is specified by the City. The Special Taxes shall be set at an amount sufficient to pay the estimated annual principal of and interest on the CFD Bonds, together with required debt service coverage requirements and the annual costs of calculation, collection and disbursement of the Special Taxes and the annual administration, engineering, and inspection costs associated with the applicable CFD; provided, however, the Special Taxes so set shall be in an amount such that, at the time the rate and method of apportionment of the Special Taxes is approved, the estimated total annual taxes and assessments to be levied on each taxable parcel within any CFD district shall not exceed 1.75% of the parcel's projected assessed valuation based on a reasonable estimate of the value of the parcel and the improvements to be constructed thereon. The rate and method of apportionment shall be drafted to allow a property owner to permanently satisfy the Special Tax (and remove the lien thereat) as to any taxable parcel by prepayment pursuant to Section 53344 of the Mello-Roos Act and pursuant to prepayment conditions adopted by the City pursuant to Section 53321. (g) City's Reservation of Discretion. It is expressly acknowledged, understood and agreed by the Parties that (i) City reserves full and complete discretion with respect to legally required findings, that must be made in connection with formation of the CFD(s); (ii) nothing in this Agreement is intended to or shall limit City's ability to adopt legally required findings with respect to formation of the CFD(s); and(iii) nothing in this Agreement is intended to or shall prejudge or commit to City regarding the findings and determinations to be made with respect thereto. (h) Costs If No CFD Formed. In the event that City is unable to make the legally required findings in connection with the formation of a CFD and the issuance of CFD Bonds for any reason, City shall not be liable for any resulting costs to Developer and Developer shall have the right to terminate this Agreement by written notice to City given within thirty(30) days following the date City is unable or elects not to proceed with such formation of the CFD and issuance of CFD Bonds. If Developer opts not to MN1614805.1 13 terminate this Agreement then Developer shall nonetheless be responsible for constructing all of the Public Benefit Facilities at its expense. (i) Developer's Cooperation. In connection with the establishment and implementation of the CFD(s), Developer(i) will execute all necessary petitions and ballots and waive all election waiting and protest periods at City's request and prior to the issuance of any building permit on any phase of the Project; (ii) support City's adoption of local policies related to use of CFD financing, which may include a requirement that the CFD proponent provide, at its expense, a letter,of credit or other credit enhancement instrument sufficient to ensure repayment of the principal and interest payments on the CFD Bonds for up to two (2) years following issuance thereof, as reasonably determined by City; (iii) cooperate in the development of rate and method of apportionment or assessment formula; and (iv) allow special tax liens to encumber Phases ID, IID, HID, and IVD of the Project in order to accomplish the required construction projects. Developer's Consent. Developer irrevocably consents to the formation of the CFD(s), the issuance of the CFD Bonds, the imposition of the Special Taxes against the Project Site at rates and pursuant to a method of apportionment appropriate to fund the debt service on the CFD Bonds sold to finance the Public Benefit Facilities, and agrees not to protest or object to, and to vote in favor of, formation of the CFD(s) or levy of appropriate Special Taxes consistent herewith, Developer has agreed to the financing provisions set forth in this Section 6.06 and to perform the obligations hereunder in exchange for the consideration and benefits provided to Developer by City under this Agreement, including the vested right to develop the Project. Developer acknowledges and agrees that CFD Bonds shall not be issued to fund any on-site public improvements or any other infrastructure or fees other than the Public Benefit Facilities. (k) Limited Liability of City. Notwithstanding any other provision of this Agreement, City shall not be liable for or obligated to pay any costs or expenses in connection with the CFD(s) or the Public Benefit Facilities except to the extent monies are available (from Advanced Costs, proceeds of CFD Bonds, or Special Taxes) and specifically authorized by law for payment of such costs or expenses. ARTICLE 7. PRECISE PLANS Section 7.01. Developer shall submit to City, for approval by the Planning Commission, separate Precise Plans for each phase of the Project. Each Precise Plan shall be consistent with the General Plan, Specific Plan, and Redevelopment Plan, and shall include all required Precise Plan application contents as set forth in the Specific Plan, including without limitation, elevations and site plans showing (i) size and location of buildings, infrastructure, and improvements; (ii) specific N4NJ 614805.1 14 location and treatment of landscape amenities; and (iii) grading and drainage plans for the area included within the specific Precise Plan, as necessary. Section 7.02. The Phase I Precise Plan in the form approved by the City Council is attached to this Agreement as Exhibit D. Upon approval by the City, each subsequent Precise Plan shall be incorporated automatically into the DA as a part of Exhibit D. Section 7.03. Any subsequent material change, modification, revision or alteration of any approved Precise Plan shall be submitted for approval according to the procedures established in the Specific Plan. Any proposed material change, modification, revision or alteration shall be approved or disapproved by the Planning Commission within seventy-five (75) calendar days of submittal of a complete Precise Plan Application, including, but not limited to, any required CEQA analysis and documents. If the City refuses or fails to approve or disapprove the revision, modification or alteration to the Precise Plan within said seventy-five(75) calendar day period, the City shall, within ninety(90) calendar days after receipt of such submittal, provide the Developer with a written statement of the reasons the City refused or failed to approve such submittal. If the City fails to approve or deny the amended Precise Plan and to provide the Developer with the written statement described above, Developer shall have the right to attempt to compel City action on the requested approval through the filing of a writ of mandate. ARTICLE 8. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT Section 8.01. Vested Right to Develop. Developer shall have a vested right to develop the Project on the Project Site in accordance with the ternis, and conditions of this Agreement and Applicable Law. Nothing in this section shall be deemed to eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals. Section 8.02. Permitted Uses Vested by This Agreement, The permitted uses of the Project Site; the density and intensity of use of the Project Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities,- and other terms and conditions of development applicable to the Project, shall be as set forth in the Project Approvals and, as and when they are issued (but not in limitation of any right to develop as set forth in the Project Approvals), the Subsequent Approvals. Permitted uses of the Project Site shall include, without limitation, research and development, office, business services, and employee-serving amenities such as personal service establishments, eating and drinking establishments, childcare, and physical fitness facilities. 1V N1614805.1 15 Section 8.03, Applicable Law, The rules, regulations, official policies, standards and specifications applicable to the Project (the "'Applicable Law") shall be those set forth in this Agreement, the Project Approvals, and the Subsequent Approvals, and, with respect to matters not addressed by this Agreement, the Project Approvals, or the Subsequent Approvals, those rules, regulations, official policies, standards and specifications (including the General, Plan and City ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, and heights, and the fees, assessments, exactions, and taxes in force and effect on the Effective Date of this Agreement, or as specified in Exhibit E-1.. Section 8.04. Fees. (a) Existing Fees. The Parties understand and agree that as of the Effective Date the fees,, taxes, exactions, and assessments listed in Exhibit E-I are the only City fees,taxes, exactions, and assessments. Except for those proposed fees, exactions or assessments set forth in Exhibit E-1, City is unaware of any pending efforts to initiate, or consider applications for new or increased fees, taxes, exactions, or assessments covering the Project Site, or any portion thereof This shall not prohibit City from imposing on Developer any fee or obligation that is imposed by a regional agency in accordance with state or federal obligations and required to be implemented by City. Developer and City are each responsible for paying its respective allocable share of existing, new or increased fees and exactions lawfully imposed on the Project by other public agencies. (b) Future Fees. City understands that long term assurances by City concerning fees, taxes and assessments were a material consideration for Developer agreeing to process the siting of the Project in its present location and to pay long term fees, taxes and assessments described in this Agreement. City shall retain the ability to initiate or process applications for the formation of new assessment districts covering all or any portion of the Project Site, Notwithstanding the foregoing, and except as provided in Section 6,06, Developer retains all its rights to oppose the formation or proposed assessment of any new assessment district or increased assessment. In the event an assessment district is lawfully formed to provide funding for services, improvements, maintenance or facilities which are substantially the same as those services, improvements, maintenance or facilities being funded by the fees or assessments to be paid by Developer under the Project Approvals or this Agreement, such fees or assessments to be paid by Developer shall be subject to reduction/credit in an amount equal to Developer's new or increased assessment under the assessment district. Alternatively, the new assessment district shall reduce/credit Developer's new assessment in an amount equal to such fees or assessments to be paid by Developer under the Project Approvals or this Agreement. MN1614805.1 1 6 (c) Fees Requested by Outside Agencies. The City agrees to exclude Developer from any and all collection agreements regarding fees, including, but not limited to, development impact fees, which other public agencies request the City to impose at City's discretion on the Project or the Project Site after the Effective Date through the Term of this Agreement. The City will not withhold any action, approval or authorization for the Project at the request of any other public agency unless required to do so by law. (d) Fee Reductions, or Credits. Developer shall not be required to pay two times for the cost which is covered by any exaction, fee or assessment. Accordingly, the fees described in Section 8.04 shall be subject to reductions/credits in an amount equal to Developer's actual cost of complying with any lawfully imposed exaction, tax, or assessment generally which is established to produce funds to pay for similar uses or purposes, whether imposed on the Project, the Project Site, the Project Approvals or the Subsequent Approvals. Notwithstanding the foregoing, no such reduction/credit shall be provided as a result of any assessment that arises from an assessment district requested by Developer under Section 6.06. Section 8.05. No Public Procurement Process. Nothing in this Agreement, including any related agreements for financing of infrastructure or public amenities, shall require Developer to follow any statutory provisions, regulations, rules, or procedures applicable to City and/or RDA with respect to bidding for public procurement or contracting; nor shall City attempt to impose any such requirement on Developer or its tenants by way of ordinance or condition of approval. Section 8.06, uniform. Codes. City may apply to the Project, at any time during the Term, then current California Building Standards Code and other uniform construction codes, including any lawful local modifications and amendments, and City's then current design and construction standards for road and stone drain facilities, provided any such uniform code or standard has been adopted and uniformly applied by City on a citywide basis and provided that no such code or standard is adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project. Section 8.07. Environmental Mitigatio . The parties understand that the EIR was intended to be used in connection with each of the Project Approvals and Subsequent Approvals needed for the Project. Consistent with the CEQA policies and requirements applicable to the EIR, City agrees to use the EIR in connection with the processing of any Subsequent Approval to the maximum extent allowed by law and not to impose on the Project any mitigation measures except those specifically imposed by the Project Approvals and the MMRP, or as required pursuant to CEQA, based on any required additional CEQA analysis, or specifically required by Applicable Law. MN 1 611805.1 17 Section 8.08. Life of Development Approvals. The term of any approval, permit, or other land use entitlement approved as (1) a Project Approval, and in effect as of the Effective Date of this Agreement, or(ii) Subsequent Approval, shall automatically be extended for the longer of the duration of the Agreement (including any extensions) or the term otherwise applicable to such Project Approval or Subsequent Approval if the Agreement is no longer in effect. Section 8.09. Timing of Project Construction and Completion. (a) Project Phasing. The Project will be built in several phases during the Term of the Agreement, as described more fully in Section 3.03 above. (b) Notwithstanding any provision of this Agreement or any other Applicable Law, City and Developer expressly agree that there is no requirement that Developer initiate or complete development of the Project or any particular phase of'the Project within any particular period of time, and City shall not impose such a requirement on any Project Approval. The parties acknowledge that Developer cannot at this time predict when or the rate at which phases will be developed, or, following initiation of Phase 1, the order in which phases will be developed. Notwithstanding any provision of this Agreement, Developer shall commence and complete the Phase IC and Phase ID improvements prior to commencement of construction of any Phase 11 improvements; and shall complete construction of the 30,000 square feet of shell space for amenities, as described in the Transportation Demand Management Plan, prior to the earlier of(i) issuance of a building pen-nit for any building in the final phase of construction, or (ii) completion of 1,800,000 square feet of development. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. (c) In light of the foregoing and except as set forth in subsection(d)below, the parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and, following initiation and completion of Phase I, Developer shall determine which parts of the Project Site to develop at what time, and in what sequence. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' desire to avoid that result by acknowledging that, assuming Developer has obtained all required approvals, Developer shall have the right to develop,the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. MN1614805.1 18 (d) Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof ARTICLE 9. CHANGES IN LAW Section 9.01. No Conflicting Enactments. City shall not impose on the Project (whether by action of the City Council or Planning Commission, or by initiative, referendum or other means) any ordinance, resolution, rule, regulation, standard, directive, condition or other measure(each individually, a"City Law")that is in conflict with Applicable Law or this Agreement or that reduces the development rights or assurances provided by this Agreement. Without limiting the generality of the foregoing, any City Law shall be deemed to conflict with Applicable Law or this Agreement or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project: (a) Change any land use designation or permitted use of the Project Site; (b) Limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc.) for the Project(except when necessary pursuant to Section 9.03); (c) Limit or control the location of buildings, structures, grading, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in the Project Approvals or Subsequent Approvals (as and when they are issued),- (d) Limit or control the rate, timing, phasing or sequencing of the Project as set forth in this Agreement; (e) Apply to the Project any City Law otherwise allowed by this Agreement that is not uniformly applied on a City-wide basis to all substantially similar types of development projects and project sites; Result in Developer having to substantially delay construction of the Project or require the issuance of additional permits or approvals by the City other than those required by Applicable Law; (g) Limit the processing or procuring of applications and approvals of Project Approvals; (h) Establish, enact, increase, or impose against the Project or Project Site any fees, taxes (including without limitation general, special, and excise taxes), assessments, liens or other monetary obligations other than those specifically MN1614805.1 19 permitted by this Agreement and referred to in Exhibit E-1 or other connection fees required by third party utilities; or (i) Substantially increase the cost of constructing or developing the Project or any portion thereof. Section 9.02. Initiatives and Referenda. (a) If any City Law is enacted or imposed by initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement, such Law shall not apply to the Project. (b) Without limiting the generality of any of the foregoing, no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, building permits or other entitlements to use that are approved or to be approved, issued or granted within the City, or portions of the City, shall apply to the Project, (c) To the maximum extent permitted by law, City shall prevent any City Law from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. (d) Developer reserves the right to challenge in court any City Law that would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement. Section 9.03. State and Federal Law. As provided in California Government Code Section 65869.5, the Agreement shall not preclude the application to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations. ARTICLE 10. AMENDMENT Section 10.01. Amendments to Project Approvals and Subsequent Approvals Excluding this Agreement. To the extent permitted by state and federal law, any Project Approval or Subsequent Approval may, from time to time, be amended or modified in the following manner: (a) Administrative Project Amendments. Upon the written request of Developer for an amendment or modification to a Project Approval or Subsequent Approval, the Chief Planner or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the NIN1614805.1 20 Chief Planner or his/her designee finds that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts, not addressed and mitigated in the EIR and MMRP, the amendment shall be determined to be an "Administrative Project Amendment" and the Chief Planner or his/her designee may, except to the extent otherwise required by law, approve the Administrative Project Amendment without notice and public hearing. Without limiting the generality of the foregoing, lot line adjustments, reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the design concepts of the Project, variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Project Site diagram or Project Site legal description shall be treated as Administrative: Project Amendments. Notwithstanding the foregoing, the Chief Planner shall have sole discretion to refer a request for any amendment or modification that has generated substantial public controversy or involves significant changes in land use planning to the Planning Commission for review and action. (b) Non-Administrative Project Amendments, Any request of Developer for an amendment or modification to a Project Approval or Subsequent Approval which is determined not to be an Administrative Project Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement. Section 10.02. Amendment of,This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows: (a) Administrative Ageement Amendments. Any amendment to this Agreement which does not substantially affect (i) the Tenn of this Agreement- (ii) permitted uses of the Project Site- (iii) provisions for the reservation or dedication of land; (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions; (v) the density or intensity of use of the Project Site or the maximum height or size of proposed buildings; or(vi)monetary contributions by Developer, shall be deemed an "Administrative Agreement Amendment" and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. Such amendment may be approved by City resolution. (b) Other Amendment. Any amendment to this Agreement other than an Administrative Agreement Amendment shall be subject to approval by the MN1614805J 21 Planning Commission (by advisory resolution) and City Council (by ordinance) following duly noticed public hearing before the Planning Commission and City Council, consistent with Government Code Sections 65867 and 65867.5. (c) Amendment Exemptions. No Subsequent Approval, or amendment of a Project Approval or Subsequent Approval, shall require an amendment to this Agreement. Instead, any such matter automatically shall be deemed to be incorporated into the Project and vested under this Agreement. ARTICLE 11. ASSIGNMENT, TRANSFER AND NOTICE Section 11.01. Assignment and Transfer. Subject to this Article 11, and Applicable Law, Developer may transfer or assign all or any portion of its interests, rights or obligations under the Agreement, the Project Approvals, or Subsequent Approvals to third parties acquiring an interest or estate in the Project or any portion thereof including, without limitation, purchasers or lessees of lots, parcels or facilities (each a "Transferee"). An Assignment and Assumption of Rights and Obligations form is attached as Exhibit F. Section 11.02. Transfer Agreements. (a) In connection with the transfer or assignment by Developer of all or any portion of the Project (other than a transfer or assignment by Developer to an affiliated party or mortgagee, or a Non-Assuming Transferee(as defined in Section 11.03), Developer and the Transferee shall enter into a written agreement regarding the respective interests, rights and obligations of Developer and the transferee in and under the Agreement, the Project Approvals, and the Subsequent Approvals (a"Transfer Agreement"). Such Transfer Agreement shall include an executed Assignment and Assumption of Rights and Obligations, as set forth in Exhibit F, and may (i) release Developer from obligations under the Agreement, the Project Approvals, or the Subsequent Approvals that pertain to that portion of the Project being transferred, as described in the Transfer Agreement,provided that the Transferee expressly assumes such obligations; (ii) transfer to the Transferee vested rights to improve that portion of the Project being transferred; and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. (b) Developer shall seek City's prior written consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by City to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be City's approval of the Transfer Agreement in question. At the time Developer requests City's written consent, Developer shall submit to the City information describing Transferee's development experience and financial resources. City may refuse to give its consent only if, in light of the proposed Transferee's MN1614805A 22 reputation and financial resources, such Transferee would not in City's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the City Manager and is appealable by Developer to the City Council. (c) Any Transfer Agreement shall be binding on Developer, City and the Transferee. Once approved by the Developer, the Transferee and the City and then upon recordation of any Transfer Agreement in the Official Records of San Mateo County, Developer shall automatically be released from those obligations assumed by the transferee therein. (d) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a Transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be canceled or diminished in any way by any breach or default by any such person. Section 11 03. Non-Assuming Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations and duties, of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor City's consent shall be required in connection with the transfer of any property that has been established as one or more separate legal parcels for uses permitted under this Agreement. The transferee in such a transaction and its successors ("Non-Assuming'Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of'tbe Term. Nothing in this section shall exempt any property transferred to a Non-Assuming Transferee from payment of applicable fees and assessments or compliance with Applicable Law. Section 11.04. Notice of Compliance Gencrall . Within forty-five(45) days following any written request which Developer may make from time to time, City shall execute and deliver to Developer(or to any party requested by Developer) a written"Notice of Compliance,"in recordable form, duly executed and acknowledged by City, that certifies: (a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications,; (b) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default, and (c) Any other infori-nation reasonably requested by Developer. The failure to deliver such a statement within such time shall constitute a conclusive 1 - 11614805.1 23 presumption against City that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. ARTICLE 12. COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 12.01. Cooperation. (a) In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to the Agreement challenging the validity of any provision of the Agreement or any Project Approval or Subsequent Approval, the parties shall cooperate in defending such action or proceeding. City shall promptly notify Developer of any such action against City and/or RDA. If City fails promptly to notify Developer of any legal action against City or if City fails to cooperate in the defense, Developer shall not thereafter be responsible for City's defense. The Parties shall use best efforts to select mutually agreeable legal counsel to defend such action, and Developer shall pay compensation for such legal counsel (including City Attorney time and overhead for the defense of such action), but shall exclude other City staff overhead costs and normal day-to-day business expenses incurred by City. Developer's obligation to pay for legal counsel shall extend to fees incurred on appeal. In the event City and Developer are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel and Developer shall pay its and the City's legal fees and costs. (b) The parties agree that this Section 12.01 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. Section 12.02. Cure; Reapproval. (a) If, as a result ofany administrative, legal, or equitable action or other proceeding, all or any portion of the Agreement or the Project Approvals or Subsequent Approvals are set aside or otherwise made ineffective by any judgment in such action or proceeding("Judgment"), based on procedural, substantive or other deficiencies ("Deficiencies"), the parties agree to use their respective best efforts to sustain and reenact or readopt the Agreement, and/or the Project Approvals, that the Deficiencies related to, unless the Parties mutually agree in writing to act otherwise: MN1614805,1 24 (i) If any Judgment requires reconsideration or consideration by City of this Agreement, Project Approval, or Subsequent Approval, then the City shall consider or reconsider that matter in a manner consistent with the intent of this Agreement and with Applicable Law. If any such Judgment invalidates, or otherwise makes ineffective all or any portion of this Agreement, Project Approval, or Subsequent Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement and with Applicable Law. City shall then consider readopting or reenacting this Agreement, or the Project Approval, Subsequent Approval, or any portion thereof, to which the Deficiencies related, (ii) Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that Developer may develop the Project as described herein, and adopting such ordinances, resolutions, and other enactments as are necessary to readopt or reenact all or any portion of this Agreement, Project Approvals, and/or Subsequent Approvals without contravening the Judgment. (b) The parties agree that this Section 1.2.02 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. ARTICLE 13. DEFAULT; REMEDIES; TERMINATION Section 13.01. Defaults. Any failure by either party to perform any ten-n or provision of the 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 mutual written consent), shall constitute a default under the Agreement. Any notice given shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be 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 thereafter, shall be deemed to be a cure within such 30-day period. Upon the occurrence of a default under the Agreement, the non defaulting party may institute legal proceedings to enforce the terms of the Agreement or, in the event of a material default, terminate the Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action. Section 13.02. Termination., If City elects to consider terminating the Agreement due to a material default of Developer, then City shall give a notice of intent to MN 1614805.1 25 terminate the Agreement and the matter shall be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing, and elects to terminate the Agreement, City shall give written notice of termination of the Agreement to Developer by certified mail and the Agreement shall thereby be terminated sixty(6:0) days thereafter; provided, however, that if Developer files an action to challenge City's termination of the Agreement within such 60-day period, then the Agreement shall remain in full force and effect-until a trial court has affirmed City's termination of the Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired); provided, however, that the time period during which the Agreement shall remain in effect shall not exceed three (3) years. Section 13.03. Periodic Review. (a) Conducting the Periodic Review. Throughout the Term of the Agreement, at least once every twelve (12) months following the execution of the Agreement, City shall review the extent of good-faith compliance by Developer with the terms of the Agreement ("Periodic Review"). (b) Notice. At least five (5) calendar days prior to the Periodic Review, and in the manner prescribed in Section 14.09 of this Agreement, City shall make available to Developer,a copy of any staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related exhibits concerning Developer's perfon-nance hereunder. Developer shall be permitted an opportunity to respond to City's evaluation of Developer's performance,, either orally at a public hearing or in a written statement, at Developer's election. Such response shall be made to the Chief Planner. (c) Good Faith Compliance. During the Periodic Review, the Chief Planner shall review Developer's good-faith compliance with the terms of this Agreement. At the conclusion of the Periodic Review, the Chief Planner shall make written findings, and determinations, on the basis of substantial evidence, as to whether or not Developer has complied in good faith with the terms and conditions of this Agreement. The decision of the Chief Planner shall be appealable to the City Council. If the Chief Planner finds and determines that Developer has not complied with such terms and conditions, the Chief Planner may recommend to the City Council that it terminate or modify this Agreement by giving notice of its intention to do so, in the manner set forth in California Government Code Sections 65867 and 65868. (d) Failure to PEoperly Conduct Periodic Review. If City fails, during any calendar year, to either(i) conduct the Periodic Review, or(ii)notify Developer in writing of City's determination,pursuant to a Periodic Review, as to Developer's compliance with the terms of the Agreement and such 1x171614805A 26 failure remains uncured as of December 31 of any year during the Term of the Agreement, such failure shall be conclusively deemed an approval by City of Developer's compliance with the terms of the Agreement. (e) Written Notice of Compliance. With respect to any year for which Developer has been determined or deemed to have complied with this Agreement, City shall, within thirty(30) days following request by Developer, provide Developer with a written notice of compliance, in recordable form, duly executed and acknowledged by City. Developer shall have the right, in Developer's sole discretion, to record such notice of compliance. (f) Finality of Determination. Any decision of the Chief Planner which is not appealed to the City Council as to Developer's compliance shall be final. Any Court action or proceeding to attack, review, set aside, void or annul any final decision of the City under its Periodic Review shall be commenced within thirty(30) days of the final decision by the City Council. (g) Costs. Costs reasonably incurred by the City in connection with the Periodic Review and related hearings shall be paid by Developer in accordance:with the City's schedule of fees and billing rates for staff time in effect at the time of review. (h) Effect on Transferees. If Developer has effected a transfer so that its interest in the Project Site has been divided between Transferce(s) in accordance with Section I I,01 above, then the Periodic Review hereunder shall be conducted separately with respect to each party, and the Chief Planner, and if appealed, the City Council shall make its determinations and take its actions separately with respect to each party. If the Chief Planner or City Council terminates, modifies or takes such other actions in connection with a determination that such party has not complied with the terms and conditions of this Agreement, such action by the Chief Planner, or the City Council shall be effective only as to the party to whom the determination is made and the portions of the Project Site in which such party has an interest. (i) The rights and powers of the City Council under this Section 13.03 are in addition to, and shall not limit, the rights of the City to terminate or take other action under this Agreement on account of the commission by Developer of an event of Default Section 13.04. Default by City or Developer. In the event City or Developer defaults under the terms of this Agreement, City or Developer shall have the rights and remedies provided in Section 13.06. Section 1105. Enforced Delay; Extension of Time of Performance. In addition to specific provisions of the Agreement, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a MNI 614805-1 27 necessary outcome of, war, insurrection, strikes or other labor disturbances, walk- outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations,judicial decisions, or similar basis, for excused performance which is not within the reasonable control of the party to be excused. Litigation attacking the validity of the Agreement or any of the Project Approvals, or any of the Subsequent Approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to the Agreement shall be deemed to create an excusable delay as to Developer. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 13.06. Legal Action. Either party may institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, and enforce by specific performance the obligations and rights of the parties hereto. The sole and exclusive remedy for any default or violation of this Agreement shall be specific perfon-nance. In any proceeding brought pursuant to this Section 13.06 to enforce this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party all costs, expenses and reasonable attorney's fees incurred by the prevailing party in the enforcement proceeding. Section 13.07. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of San Mateo County, California. Section 13.08. Resolution of Disputes. With regard to any dispute involving development of the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at City's request,meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 13.08 shall in any way be interpreted as requiring that Developer and City and/or City's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings. Section 13.09. Attorneys' Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled. MN1614805.1 28 Section 13.10. Hold Harmless. Developer shall indemnify, defend (subject to the provisions of Article 12) and hold harmless City, Redevelopment Agency, any City agencies and their respective elected and appointed councils,boards, commissions, officers, agents, employees, volunteers and representatives (collectively herein, "City") from any and all loss, liability, fines, penalties, forfeitures, costs, and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) and from any and all claims, demands and actions in law or equity (including attorneys' fees and litigation expenses) by any person or entity, directly or indirectly arising or alleged to have arisen out of or in any way related to (1) this, Agreement,the Project Approvals or Subsequent Approvals, (2) the construction of the Project, or of operations performed under this Agreement ; and (3) any actions or inactions by the Developer or its contractors, subcontractors, agents, or employees in connection with the construction or improvement of the Project Site and the Project, including off-site public improvements, except as solely arising out of the gross negligence or willful misconduct of City, its contractors, subcontractors, agents or employees. The indemnity under this Section shall survive expiration, termination or cancellation of this Agreement and shall be independent of other indemnity agreements. ARTICLE 14. MISCELLANEOUS Section 14.01. Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 14.02. No Agency, Joint Venture or Partnership. It is specifically understood and agreed to by and between the parties hereto that. (i)the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this, Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Project Approvals, Subsequent Approvals, and Applicable Law; and(iv) City and Developer hereby renounce the existence of any form of agency relationship,joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. Neither Developer nor any of Developer's agents or contractors are or shall be considered to be agents of the City in connection with the performance of Developer's obligations under this Agreement. Section 14.03. Enforceability. City and Developer agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any M-N1614805.1 29 other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule, regulation or policy adopted by City that changes, alters or amends the rules, regulations and policies applicable to the development of the Project Site at the time of the approval ref f this Agreement as provided by California Government Code Section 65866. Section 14.04. Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. Section 14.05�. Severabilit . If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, and such provision deprives a party hereto of an essential benefit of its bargain hereunder, then such party so deprived shall have the option to terminate this Agreement by providing written notice of such termination to the other party. Section 14.06. Construction. Each reference in this Agreement to this Agreement or any of the Project Approvals or Subsequent Approvals shall be deemed to refer to the Agreement, Project Approval or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or' conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Section 14.(77. Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine-, "shall" is mandatory; "'may" is permissive; and "days" means calendar days unless specifically provided otherwise. If there is more than one signer of this Agreement, the signer obligations are joint and several. Section 14.08. Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Project Site, or any interest therein, whether by operation of law or in any manner whatsoever. All of'the provisions, contained in this N4N1614805.1 30 Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Project Site and is binding upon the owner of all or a portion of the Project Site and each successive owner during its ownership of such property. Section 14.09. Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by telefacsimile (with original forwarded by regular U.S. Mail)by registered or certified mail (return receipt requested), or by Federal or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a norrnal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of(i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or(ii) five(5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (1 0) days written notice to the other party hereto, designate, any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to City, to: City Manager City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Phone: (650) 829-6629 Fax: (650) 829-6623 With a Copy to: Meyers Nave 575 Market Street, Suite 2600 San Francisco, CA 9,4105 Attn: Steven T. Mattas, City Attorney Phone: (415) 421-3711 Fax: (415) 421-3767 MN 1614805,1 31 If to Developer, to: SRI Nine Oyster Point LLC 235 Montgomery Street, 16th Floor San Francisco, CA 94104 Attn: Todd Sklar Phone: (415) 772-7069 Fax: (415) 772-7148 With Copies to: Oyster Point Ventures LLC 601 California Street, Suite 13,10 San Francisco, CA 94108 Attn: Dan Kingsley Phone: (415)421-8200 Fax: (415) 421-8201 Morrison & Foerster LLP 425 Market Street San Francisco,, CA 94105 Attn: Zane Gresham Phone: (415) 268-7000 Fax: (415) 260-7522 Section 14.10 Entire Agreement, Counterparts and Exhibits, This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of 33 pages and ten exhibits which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. The ffillowing exhibits are attached to this Agreement and incorporated herein for all purposes: (a) Exhibit A: Legal Description of Project Site (b) Exhibit B: Diagram of Project Site (c) Exhibit C: Phase 1, 11, 111, and IV Improvements (d) Exhibit D: Phase I Precise Plan (e) Exhibit E-1: Applicable Law (f) Exhibit E-2: Illustrative Fee Table (g) Exhibit F: Assignment and Assumption of Rights and Obligations Form (h) Exhibit G: Public Benefit Facilities MN1614805.1 32 (i) Exhibit Id-1: Areas Subject to Facilities Assessment 6) Exhibit H-2: Public CFD Property Section 14.11. Recordation of Development Agreement. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of San Mateo. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written. SIGNA TURES ON NEXT PAGE MNJ 614805,1 33 CITY CITY OF SOUTH SAN FRANCISCO, amunicij l corporation By- City Manager ATTEST: APPRCP�TD A 0 FORM: By. City Attorney DEVELOPER J' OYSTER POINT VENTURES LLC, a Delaware limited liability company By: SRI Nine Oyster Point LLC, a.Delaware limited liability company, its Managing Member By: Name: /64& Its: By: SIBS Oyster Point, LLC, a Delaware limited liability company, its Member BY: Name: Its: ' 1614805.1 1`w N16148f15.1 34 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 14r� On before me, Date Here insert Name fle of the Officer personally appeared 64, Name( of Signer(s) who proved to me on the basis of satisfactory evidence to be the person H whose named is 4ro.subscribed to the within instrument and acknowledged to me that hekJ;e4hQy executed the same in his/,9 fe#4heir authorized capacity , and that by hisAie4k4 signature{e) on the =REB�ECGAC,ONG instrument the person(, or the, entity upon behalf of M. 44 Comlyfission# 1605644 Notary Pc jlc C&Ufonlj, which the person(e�acted, executed the instrument, I Notary PUbliC WfOlfflla 8'an Francisco C=nty San Francisco C=ntY C COMM.i jlaS JUI 2.2,012 1 certify under PENALTY OF PERJURY under the laws oMM.E 1103 JV1 2.2012 of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Place Notary Seal Above OPTIONAL Signature of Notary Public Though the information below is not required by law,,it may prove,valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Docu m ent: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: 0 Individual ❑ Individual Ll Corporate Officer—Title(s)., ❑ Corporate Officer—Title(s): [J Partner—❑ Limited El General ❑ Partner—0 Limited ❑ General ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee Top of whumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other; ❑Other: Signer Is Representing: Signer is Representing: C 2007 National Notary Associaton-9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402-www.Natonafttaryorg item 05907 Reorder:Call Tall-Free 1-800-878-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Caiifor Ia County of .°- On e� �. 0 before me, Date Hara#nse.'t Name and Trrtle t e officer . personally appeared Name(s)of Signer(s) y who proved to me on the basis of satisfactory evidence to be the person}whose name} i subscribed to the within instrument and acknowledged to me that he/ .,y executed the same in hisAt&#Viek authorized =Francisco C. capacity 464, and that by hiss signatures) on the Commission 5644 instrument the perso , or the entity upon Ibehalf of California which the person( acted, executed the instrument. nty 2,2012 i certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. r WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary. Signature Public OPTIONAL, Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document,. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑'Corporate Officer—Title(s):. Partner—D Limited ❑ General • .• ❑ Partner—❑ Limited ❑ General ❑ Attorne y in Fact e o - • ❑Attorney in Fact � Trustee Trap of thumb here I ❑Trustee Top of thumb here CJ Guardian or Conservator ❑ Guardian oir Conservator ❑ Other: ❑Other: Signer is Representing: Signer is Representing: C�?ti7 National Notary Associa`tion 93.m.5 0 De Soto�Ave..Po.Box 2402•Chatsworth.CA 91313-2402-vww.Nahonafttary.or 3 te m tS907 n_e o`d'r:CalY Toll-Free 1-800-:878--.6 tLF CALIFORNIA State of California County of On -?t //before rye, Cate a Here Insert Name 7 le of the Officer personally appeared Name(s)o igner(s) r who proved to me on the basis of satisfactory evidence to be the personr ,l whose named is subscribed to the within instrument and acknowledged to me that heAOte4ey executed the same in his authorized REBECCA ONG capacity0es), and that by his ear signatures on the Commission tf94 instrument the persona , or the entity upon behalf of Notary Public-California which the person(.&) acted, executed the instrument. San Francisco County Cart . or JI 9 2, t 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my 'hand and official! seal. Signature Place Notary seal Above Signature of Notary Public OPTIONAL .11 a_ Though the information below is not required by Jaw,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another documen€. Description of Attached Document Title or Type of Document: Document Cate: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed! by Signer(s) Signer's Name: Signer's Name: Individual 0 Individual Corporate Officer—Title(s): ❑I Corporate Officer—Title(s): Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General Attorney in Fact ❑Attorney in Fact Trustee Tyr or thumb here ❑Trustee Topt t� �t}here EJ Guardlan or Conservator ❑ Guardian or Conservator ❑' Other: ❑Other: Signer Is Representing: Signer Is Representing:. 02007•._ , ry . �e Salo Ave...RO.Box 24012«Chatsrvorih,0A 91313-2402*w+t�rw.Nat•.o to _ m...'rd' l— - -8 ... Nakional Notary Assoc'ratfon•93SQ analNatary.orrd Item fk59t77 Reorder'CaIlTall-Free 1-AQQ-676.6F327 ` ( ` Exhibit A Legal Description of Prqjgq_ajj�g / � 3)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 24,00 FEET AND A CENTRAL ANGLE OF 101'45'03" FROM WHICH THE RADIUS POINT BEARS S51'' 55" 03"W, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 42.62 FEET, SAID CURVE HAVING A CHORD BEARING OF S12'47"35"W FOR 37,24 FEET; 4)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 646.00 FEET AND A CENTRAL ANGLE OF 30' 32' 59"FROM WHICH THE RADIUS POINT BEARS 1426" 19' 53"'W, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 344,44 FEET, SAID CURVE HAVING A CH0RD BEARING OF S78' 56'36W FOR 340.38'FEET, 5)THENCE N85-46" 55"W FOR 327.57 FEET; 6)THENCE N00'39"36"E FOR 21,92 FEET, 7)THENCE N00' 00'56-W FOR 489,03 FEET" 8)THENCE S64'44'05"W FOR 214.94 FEET" 9)THENCE N81''45"55"W FOR 389.76 FEET; 10)THENCE N00'00'55"W FOR 192.73 FEET; 11)THENCE N89'59'05"E FOR 280'.00 FEET; 12)THENCE N00'00' 55-W FOR 113.73 FEET, 13)THENCE N85'25'03'"E FOR 80.69 FEET„ 14)THENCE N70'37'40"E FOR 33.30 FEET, 15)THENCE S84'48'27"E FOR 47.97 FEET, 16)THENCE N69'29' 57"E FOR 88.19 FEET; 17)THENCE S88'43"39""E FOR 77.81 FEET; 18)THENCE N61 38' 35"E FOR 57'.68 FEET; 19)THENCE N29'130' 33"E FOR 40.55 FEET; 20)THENCE N14' 12" 18"E FOR 105.68 FEET; 21)THENCE N04°42"29"E FOR 52.20 FEET; 22)THENCE N05'39'31"W FOR 96',.57 FEET; 23)THENCE N'04' 30' 1:6"W FOR 128.84 FEET; 24)THENCE N13'21' 11"E FOR 99,18 FEET; 25)THENCE N40'22' 33"E FOR 77,49 FEET; 26)THENCE N47'45'37"E FOR 30,06 FEET; 7)THENCE N21' 58'26"E FOR 50.79 FEET; Page 2 28)THENCE N36°08'50"E FOR 63.39 FEET; 29)THENCE N40° 15"02"W FOR 123.25 FEET, 301)THENCE N43®43'08"W FOR 2%13 FEET,- 31)THE'NC'E N72°25'37"E FOR 381.75 FEET; 32)THENCE N00°00'55"W FOR 51'.63 FEET; 33)THENCE N89°59'05"E FOR 88.82 FEET, 34)THENCE 826-41"01"E FOR 63196 FEET; 35)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 62.00 FEET AND A CENTRAL ANGLE OF 170 04' 11"'FROM WHICH THE RADIUS POINT BEARS 5260 41' 01"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 18.47 FEET, SAID CURVE HAVING A CHORD BEARING OF S54"46' 54"W FOR 18.40 FEET; 36)THENCE N89"25'58"W FOR 250.57 FEET;. 37)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 9508.00 FEET AND A CENTRAL ANGLE OF 030 28'S3"FROM WHICH THE RADIUS POINT BEARS$87* 55' 33"'E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 577.72 FEET, SAID CURVE HAVING A CHORD BEARING OF S00'0 20'01":W FOR 577.63 FEET„ 38)'THENCE S010 24'26"E FOR 167,80 FEET" f TO THE TRUE POINT OF BEGINNING, THE AREA BEING 24.22 ACRES. Parcel 2 of PARCEL 2' BEGINNING AT THE SOUTH EAST CORNER OF PARCEL 4, AND THE SOUTH WEST CORNER OF PARCEL 3, AS SHOWN ON THE PARCEL MAP RECORDED IN BOOK 52 AT PAGE 59 OF THE RECORDS OF SAN MIATEO COUNTY, CALIFORNIA 1) THENCE SOO'00'55"E FOR 116.61 FEET" 2)THENCE S89"59' 05"W FOR 18.77'FEET; 3)THENCE TO THE BEGINNING POINT'OF A CURVE TO THE RIGHT HAVING A RADIUS OF 5.00 FEET AND A CENTRAL ANGLE OF 87"02'04" FROM WHICH THE RADIUS POINT BEARS N87" 013' 01"W,THENCE RIGHT'ALONG SAID CURVE FOR AN ARC LENGTH OF 7.60 FEET, SAID CURVE HAVING A CHORD BEARING;OF 5464 28'01'W FOR 6.89,FEET, 4)THENCE S02°57"02"W1W FOR 12.14 FEET; Page 3 5)THENCE S22° 32"46"WW/FOR 26,79 FEET, 6)THENCE 505° 17'28"W FOR 1'6.62 FEET; 7)THENCE S14-33" 22"W FOR 18.66 FEET; 8)THENCE S07°07'20"W FOR 46.52 FEET;. 9)THENCE S02° 39" "E FOR 26.13 FEET; 10)THENCE S11-27"55"E FOR 9.33 FEET; 11')THENCE S03° 56 51"W FOR 16.94 FEET; 12)THENCE S15° 09'09"'W FOR 13,90 FEET; 13)THENCE 507° 33" 30'"WV'FOR 7.72 FEET; 14)THENCE, 12"57"W FOR 14.75 FEET; 15)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 12,00 FEET AND A CENTRAL ANGLE OF 99° 15' 1 V FROM WHICH THE RADIUS POINT BEARS S58'47' 02"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 20.79 FEET, SAID CURVE HAVING A CHORD, BEARING OF 518"24'37"E FOR 18.28 FEET; 16)THENCE S68° 02' 11"E FOR 4.44 FEET; 17')THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIU18 OF 6.73 FEET AND A CENTRAL ANGLE OF 570'05"06"FROM WHICH THE RADIUS POINT BEARS S3311 25" 31--W, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 6.71 FEET, SAID CURVE' HAVING A CHORD BEARING OF 5280 01'56"E FOR 6.43 FEET; 18)THENCE S10-34"28"E FOR 6.58 FEET;. 19)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 89.35 FEET AND A CENTRAL ANGLE OF 340 2613"FROM WHICH THE RADIUS POINT BEARS N89°41' 32"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 53.68 FEET, SAID CURVE HAVING A CHORD BEARING OF S170 31'04"E FOR 52.87 FEET; 20)THENCE S33° 05"28"'E FOR 51.02 FEET; 21)THENCE S30a 08"44"E FOR 51.48 FEET; 22)THENCE S39° 10"44"E FOR 68.51 FEET; 23)THENCE S36"43"24"'E FOR 31.32 FEET; 24)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 290.17 FEET AND A CENTRAL ANGLE OF 440 11'01"FROM WHICH THE RADIUS POINT BEARS N560 01" 39"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 223.76 FEET, SAID CURVE HAVING A CHORD BEARING OF 5560 03'52"E FOR 218.26 FEET; 25)THENCE 881 a 27"48"E FOR 127.43 FEET, 26)THENCE TO THE BEGINNING POINT'OF A CURVE TO THE LEFT HAVING A RADIUS OF 1550.60 FEET AND A CENTRAL ANGLE OF 05* 1'9"2'S6'FROM WHICH THE RADIUS POINT BEARS N050 19" Page 4 30"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 144.08 FEET, SAID CURVE HAVING A CHORD BEARING OF S87 20' 13"E FOR 144.02 FEET; 27) THENCE S07' 36'22"W FOR 236.51 FEET; 28)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 856.00 FLEET AND A CENTRAL ANGLE OF 120 03" 11"FROM WHICH THE RADIUS POINT BEARS N07® 36'22"E, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH'OF 180.07 FEET, SAID CURVE HANANG A CHORD BEARING OF N76°22'03"W FOR 179.74 FEET; 29)THENCE N20 13'04"E FOR 20.00 FEET; 30)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 836.00 FEET AND A CENTRAL ANGLE OF 680 56'49"' FROM WHICH THE RADIUS POINT BEARS N19'38"46"E, THENCE RIGHT'ALONG SAID CURVE FOR AN ARC LENGTH OF 1006.00 FEET, SAID CURVE HAVING A CHORD BEARING OF N35" 52'61"W FOR 946.39 FEET, 31)THENCE N01°24"26"W FOR 25.81 FEET, 32)THENCE NO10 24'26"W'FOR 170.56 FEET; 33)THENCE ALONG A CURVE TO THE RIGHT HAVING.A RADIUS OF 9395.00 FEET AND A CENTRAL ANGLE OF 02"59' 14"FOR AN ARC LENGTH OF 489.80 FEET, SAID CURVE HAVING A CHORD BEARING OF N'00'05" 11''E FOR 489.75 FEET„ 34)THENCE S89-25'58"E FOR 135..04 FEET; TO A POINT ON THE CUL-D�E-SAC AT THE NORTH END OF SAID PARCEL 4 AS RECORDED IN BOOK 52 AT PAGE 59 35)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 62.00 FEET AND A CENTRAL ANGLE OF 770 30' 1 "'FROM WHICH THE RADIUS POINT BEARS N500 49" 14"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH'OF 83.87 FEET, SAID CURVE HAVING A CHORD BEARING OF 5770 55'64"E FOR 77,62 FEET; thence continuing adlong the Easterly side of said Parcel 4 36)THENCE S26a 41"01"E FOR 15.66 FEET; 37)THENCE S00"00"55"E FOR 628,68 FEET,TO THE SOUTH EAST CORNER OF SAID PARCEL 4 AND THE POINT OF BEGINNING, THE AREA BEING 7.22 ACRES. Parcel 3 of PARCEL 3 BEGINNING AT A POINT AT THE SOUTH' EAST CORNER OF PARCEL 4 AND THE SOUTH WEST CORNIER OF PARCEL 3, AS RECORDED IN BOOK 52 AT PAGES 58 AND 59 OF THE RECORDS OF ,SAN MATEO COUNTY CALIFORNIA, THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 4 1')THENCE S89'°59"36-W FOR 327.72 FEET; Page 5 2)THENCE S01°24'26"E FOR 28.57 FEET; 3)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIU'S OF 949.00 FEET AND A CENTRAL ANGLE OF 41' 54'50"FROM WHICH THE RADIUS POINT BEARS N88"49" 12"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC .LENGTH OF 694.23 FEET, 4)THENCE S46'°40'44"W FOR 3'.50 FEET; 5)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 952.50 FEET AND A CENTRAL ANGLE OF 260 28'51"l FROM WHICH THE RADIUS POINT BEARS 70'°45' 23"E„ THENCE LEFT ALONG'SAID CURVE FOR AN ARC LENGTH OF 440.22 FEET, 6)THENCE S00"45' 17"W FOR 169.54 FEET. TO A POINT AND THE TRUE POINT OF BEGINNING 1)THENCE S89°55"26"W FOR 737.35 FEET TO A POINT ON THE EASTERLY SIDE OF GULL DRIVE AND AT THE SOUTH WEST CORNER OF PARCEL A AS RECORDED IN BOOK 72 OF PARCEL MAPS AT PAGE 7,THENCE NORTHERLY ALONG SAID GULL DRIVE 2)THENCE NO'1 p 39"45"E FOR 27.23 FEET; )THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 520.55 FEET AND A CENTRAL ANGLE OF 370 40'44"FOR AN ARC LENGTH OF 342.32 FEET, SAID CURVE.HAVING A CHORD BEARING OF N170 10"37"WW FOR 3351.19 FEET; 4)THENCE N36° 00' 59""W FOR 11111.60 FEET; 5)THENCE N37° 35'47"W FOR 95.40 FEET, 6)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 6$.40 FEET AND A CENTRAL ANGLE OF 18° 11'27"FROM WHICH THE RADIUS POINT BEARS N70' 36" 44"E, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 21.72 FEET, SAID CURVE HAVING A CHORD BEARING OF N10° 17'32'W FOR 211.63 FEET;; 7)THENCE S85-46'56-E FOR 254.12 FEET, 8)THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 754.00 FEET AND A CENTRAL ANGLE OF 32° 35'4B"FOR AN I ARC LENGTH OF 428.96 FEET,SAID CURVE HAVING A CHORD BEARING OF N770 55' 12"E FOR 423.20 FEET; 9)THENCE N61'37' 17"E FOR 14.42 FEET; 10)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 24.00 FEET AND A CENTRAL ANGLE OF 70°50'44"FROM WHICH THE RADIUS POINT BEARS$280 22' 42"E, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 29,68 FEET, SAID CURVE HAVING A CHORD BEARING OF S82" 57'20"E FOR 27.82 FEET; 11)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 95Z50 FEET AND A CENTRAL ANGLE OF 22* 16'018"FROM WHICH THE RADIUS POINT BEARS N42'28* 01"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 370.20 FEET, SAID CURVE HAVING A CHORD BEARING OF S58"40'03"E FOR 367.88 FEET„ 12)THENCE S20° 54' 1 7-W FOR 74,52 FEET, I Page 6 13)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 526.93 FEET AND A CENTRAL ANGLE OF 190 39' 18"FROM'WHICH THE RADIUS POINT BEARS 5700 45' 23"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 180,76 FEET, SAID CURVE HAVING A CHORD BEARING OF 5090 24'58'W FOR 179.87 FEET„ 14)THENCE S00-45' 17"W FOR 16°9.54 FEET, TO THE TRUE POINT OF BEGINNING, THE AREA BEING 10.07 ACRES. LEGAL DESCRIPTION PREPARED BY KENNETH P. MOORE PLS 4918 EXPIRES 12-31-12 DATE 3-10-11 Page 7 Lj w 9 � U z 8W ' x ¢ w ca rL w lu a ¢ � Ll " et N I CAn AI p� 1 �r w� J it ~ N31SAC3 cq 1 1 r ! 1 1 , cq CL c cq �A " M Exhibit B Diagram of Project Site C7 i V1 (FP fL= Lu rJ r LU LU f i G ^ ,✓ ,,/ Y w_ 1 •�"t bb�i P ✓' ' M S w k f pu ' < , / Exhibit C Phase 1, 11, 111, and IV Improvements , w U w <L U) m w D 0 0 < Q � Q p c rn co H w Z O w w <C d ¢ � 0- co Of, ICL 0 W J Q Q l F^ F— HI CL z ¢ -j F cL n < W w' `� �' PL G� <c c� U F- < 0 Q W c G�/3 cJJ LLw` � w m m '"` � <[ < M 9r CL GOO LU W IL ry a<i U) 0 l � . a Lj) U) M w w ui LL w LL < - � U) w w u) cl ¢ > � y D LL J.... 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RULES, REGULATIONS, OFFICIAL POLICIES, STANDARDS AND SPECIFICATIONS Pursuant to the Development Agreement between the City and Oyster Point Ventures, LLC ("Developer"), the rules, regulations, official policies, standards and specifications applicable to the Project (the "Applicable Law") shall be those set forth in the Project Approvals and the Subsequent Approvals, and only(1) those additional rules, regulations, official policies, standards and specifications governing permitted uses, building locations, timing of construction, densities, design, and heights, and the fees, assessments, exactions, and taxes in force and effect on the Effective Date of this Agreement ("Effective Date"), including, without limitation, those rules, regulations, official policies, standards and specifications set forth below, and (2) those certain additional fees, assessments, exactions, and taxes set forth herein in Exhibit E-1, and none other. 1.1 South San Francisco General Plan (Adopted October 13, 1999 and as amended through Effective Date); 1.2 South San Francisco Municipal Code ("SSFMC") (as amended through Effective Date), including: 1.2.1 South San Francisco Zoning Ordinance, Title 20 of SSFMC and Zoning District Map (Adopted July 28, 2010 and as amended through Effective Date); 1.2.2 South San Francisco Subdivision Ordinance, Title 19 of SSFMC (Adopted May 21, 1981 and as amended through Effective Date); 1.3 East of 101 Area Plan (Adopted July 1994 and as amended through Effective Date); 1.4 Oyster Point Specific Plan (Adopted March 23, 2011); 1.5 Redevelopment Plan for Downtown/Central Project Area (Adopted July 12, 1989 and as amended through Effective Date),- 1.6 Redevelopment Plan Amendment for the Downtown/Central Project Area(to be adopted); 1.7 Joint Powers Agreement between City and San Mateo County Harbor District (Entered October 21, 1977 and as amended through Effective Date); 1.8 Design Review Guidelines [for Commercial/Industrial Projects] (in effect as of Effective Date); For illustrative purposes only, Exhibit E-2 provides calculations of the fees based on rates in effect on Effective Date of the Agreement and those fees proposed to be adopted in the future, and assuming 2,250,000 square feet of net new development; except as specified in this Exhibit E-1 or the resolution(s) and ordinance(s) adopting and implementing the fees, actual fees assessed will be calculated at the rates in effect at the time payment is due, and based on actual square footage. 1 2. FEES, TAXES, EXACTIONS, DEDICATION OBLIGATIONS,AND ASSESSMENTS Developer agrees that Developer shall be responsible for the payment of the following existing and, if adopted, potential future fees, exactions, taxes, and assessments (collectively, "Assessments"). From time to time, the City may update, revise, or change its Assessments. The Parties agree that such updates, revisions, and changes shall not prevent the City from assessing the updated, revised, or changed Assessment against the Marina Property or Business Park. Further, nothing herein shall be construed to relieve the Property from common benefit assessments levied against it and similarly situated properties by the City pursuant to and in accordance with any statutory procedure for the assessment of property to pay for infrastructure and/or'services that benefit the Property. Except as indicated below, the amount paid for a particular Assessment, shall be the amount owed, based on the calculation or formula in place at the time payment is due as specified below. 2.1 Impact Fees (Existing Fees). Except as modified below, existing fees shall be paid at the rates and at the times prescribed in the resolution(s) or ordinance(s) adopting and implementing the fees. 2.1.1 Childcare Impact Fee (SSFMC, ch. 20.310; Ordinance 1301-2001). (a) Developer shall construct and have ready for occupancy, a childcare facility or facilities that is the lesser of(i) 22,000 square feet plus sufficient additional open space to meet State licensing requirements, or(ii) sufficient gross square feet to accommodate a minimum of 275 children, within the Project, no later than the earlier of. occupancy of the final building to be constructed in third phase of the Project to be constructed; or one year prior to the expiration of this Agreement., Accordingly, Developer shall submit design plans for the shell of the childcare facility no later than the issuance of a building permit for the final building in third phase to be constructed, and shall obtain all required permits, including building permits and commence construction of the tenant improvements for such facility no later than six (6)months, after issuance of a certificate of occupancy for the final building in third phase to be constructed. If the childcare facility is open to the public, City and Developer may mutually agree to allow the City to operate the facility. (b) Notwithstanding the foregoing, at any time including after commencement or completion of construction of the shell or tenant improvements for the childcare facility described in paragraph 2.1.1(a), Developer may alternatively meet the requirements of this Section 2:.1.1 by providing a one dollar($1) per gross square foot in-lieu fee for the net new construction of building area that has been completed prior,to the time of such payment, excluding parking structures. Each year after 2010, the per square foot fee shall automatically be increased at a rate equal to the Change from Prior Year for the Consumer Price Index—All Urban Consumers, for the San Francisco-Oakland-San Jose Area. If Developer elects to satisfy this childcare requirement through payment of this in-lieu fee, the in-lieu fee shall be paid no later than issuance of a building permit for the final building in third phase to be constructed or one year prior to expiration of this Agreement, whichever occurs earlier. In no case shall the City issue a final certificate of occupancy 2 for the final building in the third phase to be constructed, unless Developer has either(i) constructed the shell for the childcare facility described in paragraph 2.1.1(a), or paid the fee described in this paragraph 2.1.1(b). After initial payment of the fee, Developer shall continue to pay the fee at the rate described in this paragraph 2.1.1(b), for all subsequently completed net new construction, payable prior to issuance of each subsequent building permit. (c) If Developer fails to either construct a new facility by the deadline described in paragraph(a), or pay the in-lieu fee by the deadline described in paragraph (b), Developer,shall instead pay a fee equal to the City's estimated reasonable costs, including all costs associated with site acquisition (including, if necessary, eminent domain), environmental review, permitting, and all other expenses and fees, including attorney's fees, required to construct a childcare facility of equivalent size and quality as that described in paragraph 2.1.1(a). Developer shall pay this fee to the City no later than six (6) months after issuance of a certificate of occupancy for the final building in the third phase to be constructed or one year prior to expiration of this Agreement whichever occurs earlier. 2.1.2 East of 101 Traffic Impact Fee (Resolution 84-2007). East of 101 Traffic Impact fees shall be paid for each Phase of the Project, and shall be determined based on the application of the formula in effect at the time the City issues each building permit, and shall be payable prior to the issuance of such building pen-nit. 2.1.3 Oyster Point Grade Separation Fee (Resolution 102-96). Oyster Point fees shall be paid for each Phase of the Project, and shall be determined based on the application of the formula in effect at the time the City issues each building permit, and shall be payable prior the issuance of such building permit. 2.1.4 East of 101 Sewer impact Fee (Resolution 97-2002). Sewer Impact fees shall be paid for each Phase of the Project, and shall be determined based on the application of the formula in effect at the time the City issues each building pen-nit, and shall be payable prior to the issuance of such building permit, 2.1.,5 Sewer Capacity Charge (Resolution 39-2010). 2.1.6 General Plan Maintenance Fee (Resolution 74-2007), 2.1.7 Permit Processing Fees. As adopted pursuant to City's Master Fee Schedule for processing of land use entitlements, including with out limitation, General Plan amendments, zoning changes,precise plans, development agreements, conditional use permits, variances, transportation demand management plans, tentative subdivision maps,parcel maps, lot line adjustments, and building permits. 2.2 Impact Fees (Potential Future Fees), 2.2.1 Parks and Recreation Fee. As of the Effective Date, the City is evaluating a "Park Facilities Fee"to support the provision, operation, and maintenance of park facilities and additional public open space in lieu of requiring that applicants dedicate one-half an acre per 1,000 new employees, to the public in the East of 101 area. If implemented by December 31, 2012, Developer shall be responsible for such Park Facilities Fee, with a maximum cap of$4.78 per gross 3 square foot of building area, excluding parking structures. The actual fee, if implemented, may be lower, in which case Developer would be responsible for the actual fee in effect at the time the City issues each building permit for development subject to the fee. Developer shall receive a credit to offset the Park Facilities Fee for development of public open space created and/or improved on the Business Park equal to 100% of the public open space created and/or improved on the Business Park, Developer shall also receive a credit to offset a portion of the Park Facilities Fee for development of private open space created within the Project Site. Developer's credit for private open space shall be identical to the credit, if any, allowed under the Park Facilities Fee program, if implemented, except that(i) in no case, shall Developer receive a credit offsetting less than 25% of Developer's required fee, or more than 50% of Developer's required fee; and (ii) in no case shall zoning or building code required open areas, including but not limited to the fifteen-percent landscaping requirement (SSFMC, § 20.110.003) and setbacks, be counted towards any offsetting credit. 2.2.2 Stormwater Permit Compliance Fee. As of the Effective Date of the Agreement, the City is considering a citywide fee applicable to all private property that would be adopted to fund or reimburse the City for the City's expenses associated with its compliance with Regional Stormwater Permit ("Stormwater Fee"), including maintenance and inspection. Developer shall be responsible for such Stormwater Fee, with a maximum annual cap of$725.00 per acre adjusted annually on January 1, commencing January 1, 2013, by the proportionate increase in the Producer Price Index—All Commodities as published by the Bureau of Labor Statistics of the U.S. Department of Labor. The Stormwater Fee shall be payable for each Subsequent Approval, provided that (i)the Subsequent Approval is for an entitlement covered by the Stormwater Fee, and (ii) a complete application for the Subsequent Approval is received after the effective date of the Stormwater Fee. Unless the Stormwater Fee provides otherwise, the Stormwater Fee shall be paid prior to issuance of any building permit for the Subsequent Approval to which the Stormwater Fee applies. The amount of the Stormwater Fee to be paid shall be in accordance with the calculation in effect at the time of payment. 2.2.3 Fire Department Hazardous Materials Response Facilities,Vehicles and Equipment Fee. As of the Effective Date, the City is evaluating a Fire Department fee to fund "'Hazardous Materials Response Facilities, Vehicles and Equipment"to assist the City's Fire Department with responding to incidents involving hazardous materials in the East of 1.01 area, If implemented by December 31, 2012, Developer shall be responsible for such Fee, with a maximum cap of$0.28 per square foot of building area. The actual fee, if implemented,may be lower, in which case, Developer would be responsible for the actual fee in effect at the tune the City issues each building permit for development subject to the fee.. Developer shall receive a credit to offset a portion of this Fee, in the event Developer directly provides or funds any of the facilities, vehicles, and/or equipment funded by the Fee. Developer's credit shall be identical to the amount Developer spends on development and/or funding of any of these facilities, vehicles, and/or equipment. 2.3 User Fees. 2.3.1 Sewer Service Charges (assessed as part of property tax bill) 2.3.2 Stormwater Charges (assessed as part of property tax bill) 2.4 Other Exactions. 4 2.4.1 Mass Decontamination Facility Contribution. As Developer's fair share contribution to the City's emergency preparedness, Developer shall pay an in-lieu fee to be used to fund a portion of the costs of purchasing a mobile, prefabricated mass decontamination system, capable of serving ambulatory and non-ambulatory, chemically contaminated persons at a rate of not less than two hundred fifty(250) persons per hour. The in-lieu fee shall be in the amount of$0.10 per gross square foot of building area, excluding parking structures, and shall be payable prior to the issuance of a Certificate of Occupancy for the shell of each building to be constructed as part of the Project. The in-lieu fee shall be payable by Developer until the systein is fully funded and shall be deposited and held in a separate account by the City. 2.4.2 Public Art/Transit Enhancement Fee., Developer shall pay an in-lieu fee to be used for enhancing, enlarging, repairing, restoring, renovating, remodeling, redecorating, and/or refurbishing the Caltrain Station located at 590 Dubuque Avenue, the Oyster Point Ferry terminal and/or their associated facilities. The in-lieu fee shall be in the amount of one dollar($1.00) per gross square foot of building area, excluding parking structures, in the development and shall be payable in two (2) equal installments per building. One-half(1.12) of the in-lieu fee shall be payable prior to the issuance of a building permit for the shell of each building, and one-half(1/2) of the in- lieu fee shall be payable prior to the issuance of a Certificate of Occupancy for the shell of each building. 2.4.3 Green Building Requirements, (a) LEER. Prior,to issuance of any building permit for any tenanted building, Developer shall provide evidence demonstrating that if constructed in accordance with the approved design and construction plans, the building will meet minimum standards required to achieve at least a Leadership in Energy and Environmental Design version 3 (LEER v3) Silver certification under the Core and Shell Development rating system. Within one year of the issuance of a certificate of occupancy for any tenanted building, Developer shall provide evidence demonstrating that the building has been certified as at least LEER v3 Silver under the Core and Shell Development Rating System. (b) On-Site Energy Generation. The Project, including all of its phases shall implement utilization of technologies that will result in generation of electric power on-site, and will reduce the loading on the electrical grid. Upon completion of the last phase of the Project, at least one percent (1.(l%) of all electrical power shall be generated on-site, with an aspiration of generating at least five percent (5.0%) of all electrical power on-site. The Project shall incorporate a combination of green and renewable (e.g., solar power) and other alternate sources of electrical power generation on-site. After completion of the last phase of the Project, one (1)time per year, Developer shall submit a report demonstrating ratios of power purchased to power produced for a period of five years. 2.4.4 Payment. Prior to commencement of construction of the first building in the first phase of development, Developer shall make a cash payment to the City in the amount of one million one hundred thousand dollars ($1,1 0,000). 1614888.1 5 Exhibit E-2 Illustrative Fee Table M 1 m sr R. It 't m co 0 to 0 M cox Cl. 0 0 L0 W CRS M1P cm Lq C! 0 0 't ot q al 9L I UT W w 10 44 69 w 40 X1 LO L9 z z a 16 z z 0 El IR Oct Clt co co N In y :6 eat to on ul Ct Ct C4 N CD W) w N vi ai ci ri do C-4 M! rjj Cl III lip Cy 0 E In u (D z 110 LLII 0 U. r o 2 LL w E m w CL U 0 CL 0 = CL r w' W E 0 0 re LLB. Z, E 0 N m C) 0- O Cl�; 5 CL m > LL CL IL E m 0 lg El 0 U L Lu 0 U) i7L Exhibit F Assignment and Assumption of Rights and Obligations Form DRAFT EXHIBIT FORM ASSIGNMENT AND ASSUMPTION AGREEMENT RECoRD,rNG REQUESTED By AND WHEN RECORDED MAiL To: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn., (Space,Above This Line for Recorders Use Only) Exempt from Recording Fee per Government Code § 27383 ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is entered into as of the — day of , 20_, by and among Oyster Point Ventures, LLC a ("Assignor"), , a ("Assignee"), and the City of South San Francisco,, a municipal corporation ("City"), RECITALS A. Assignor has entered into a Development Agreement with City effective (Recorder's Document No. ("Development Agreement"'), to facilitate the redevelopment of that certain real property owned and to be acquired by Developer consisting of approximately _ acres within the City of South San Francisco, County of San Mateo, State of California, which is legally described in Exhibits_ to the Development Agreement and shown on the map attached to the Development Agreement as Exhibit ("Site"). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Development Agreement. B. Assignor is the fee owner of the Site, [a portion of which is] designated as APNs , more particularly described in Exhibit I attached hereto and incorporated herein ("Property"). C. Assignor desires to transfer its interest in the Property to Assignee concurrently with execution of this Agreement and Assignee desires to so acquire such interest in the Property from Assignor. D. Section 11.02 of the Development Agreement provides that Assignor may assign its rights and obligations under the Development Agreement to another party, provided that the Assignor shall have provided to City at least forty-five (45) business days prior written notice and provided that the Assignor and the Assignee, document the assignment in an agreement substantially in the form of this Agreement. MN1614878.1 DRAFT FORM ASSIGNMENT AND ASSUMPTIONA GREEMENT E. Assignor has provided the required written notice to City of its intent to enter into an assignment and assumption agreement as required by Section 11.02 of the Development Agreement. F. Assignor desires to assign to Assignee and Assignee desires to assume all rights and obligations of Assignor under the Development Agreement with respect to the Property. Upon execution of this Agreement and transfer to Assignee of legal title to the Property, Assignor desires to be released from any and all obligations under the Development Agreement with respect to the Property. AGREEMENT NOW, THEREFORE, Assipior, Assignee and City hereby agree as follows: 1. IncoKporation. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Assignment by Assignor. Assignor hereby assigns, transfers, and grants to Assignee, and its successors and assigns, all of Assignor's rights, title and interest and obligations, duties, responsibilities, conditions and restrictions under the Development Agreement with respect to the Property(collectively, "Rights and Obligations"). 3. Acceptance and Assumption by Assigqc . Assignee, for itself and its successors and assigns, hereby accepts such assignment and assumes all such Rights and Obligations, whether accruing before or on or after the Effective Date (defined in Section 16 below). Assignee agrees, expressly for the benefit of City, to comply with, perform and execute all of the Rights and Obligations of Assignor arising from or under the Development Agreement. 4. Release of Assip_moor. Assignee, City hereby fully releases Assignor from all Rights and Obligations. Both Assignor and Assignee acknowledge that this Agreement is intended to fully assign all of Assignor's Rights and Obligations to Assignee, and it is expressly understood that Assignor shall not retain any Rights and Obligations whatsoever, 5. Substitution of Assipor. Assignee hereafter shall be substituted for and replace Assignor in the Development Agreement. Whenever the term "Oyster Point Ventures, LLC" or "Developer" appears in the Development Agreement with respect to the Property, it shall hereafter mean Assignee. 6. Assigpor and Assignee Agreements, Indemnifications and Waivers. a. Assignee represents and warrants to City as follows: (i) Assignee is a duly formed within and in good standing under the laws of the State of . The copies of the documents evidencing the formation of Assignee, which have been delivered to City, are true and complete copies of the originals, as amended to the date of this Agreement. 2 MN1614878.1 DRATT FORM ASSIGNMENT AND ASSUMPTION AGREEMENT Assignee has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by Assignee has been fully authorized by all requisite actions on the part of Assignee. (ii) Assignee's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Assignee is a party or by which it is bound. (iii) Assignee has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Assignee's creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Assignee's assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Assignee's assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally, (iv) As of the Effective Date of this Agreement, Assignee owns fee simple title to the Property. b. Assignor and Assignee hereby acknowledge and agree that City has not made, and will not make, any representation or warranty that the assignment and assumption of the Development Agreement provided for hereunder will have any particular tax implications for Assignor or Assignee. c. Assignor and Assignee each hereby waives and releases and each hereby agrees to indemnify and hold City harmless from any and all damages, liabilities, causes of action, claims or potential claims against City (including attorneys fees and costs) arising out of or resulting ftom,the assignment and assumption of the Rights and Obligations. d. Assignor acknowledges and agrees that the Rights and Obligations have been fully assigned to Assignee by this Agreement and, accordingly, that Assignee shall have the exclusive right to assert any claims against City with respect to such Rights and Obligations. Accordingly, without limiting any claims of Assignee under the Development Agreement, Assignor hereby waives any claims or potential claims by Assignor against City to the extent arising solely out of the Rights and Obligations. 7. Development Agreement in Full Force and Effect. Except as specifically provided herein with respect to the assignment, all the terms, covenants, conditions and provisions of the Development Agreement are hereby ratified and shall remain in full force and effect. S. Recording. Assignor shall cause this Agreement to be recorded in the Official Records of San Mateo County, California, and shall promptly provide conformed copies of the recorded Agreement to Assignee and City. 9. Successors and Assigns. Subject to the restrictions on transfer set forth in the Development Agreement, all of the terms, covenants, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their 3 MN1614878.1 DRAFT FORM ASSIGNMENT AND ASSUMPTIONA GREEMENT respective heirs, successors and assigns, pursuant to Section 14.08 of the Development Agreement. 10. Assignee Address for Notices. The address of Assignee for the purpose of notices, demands and communications under Section 14.,09 of the Development Agreement shall be: Assignee: Attention:- Telephone: Facsimile: With a copy to: Attention: Telephone: Facsimile: 11. Applicable Law/Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. Any legal actions under this Agreement shall be brought only in the Superior Court of the County of San Mateo, State of California. 12. Interpretation. All parties have been represented by counsel in the preparation and negotiation of this Agreement, and this Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. Unless the context clearly requires otherwise: (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; and (e) "includes" and "including" are not limiting. 13. Headings. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. 14. Severabilfty, Except as otherwise provided herein, if any provision(s) of this Agreement is (are) held invalid, the remainder of this Agreement shall not be affected, except as necessarily required by the invalid provisions, and shall remain in full force and effect unless amended or modified by mutual consent of the parties. 4 MN161487&1 DRAFT FORM ASSIGNMENT AND ASSUMPTION AGREEMENT 15. Counterparts. This Agreement may be executed in one or more counterparts,, each of which shall be deemed to constitute an original, but all of which, when taken together, shall constitute one and the same instrument, with the same effect as if all of the parties to this Agreement had executed the same counterpart. 16. City Consent. City is executing this Agreement for the limited purpose of consenting to the assignment and assuniption and clarifying that there is privity of contract between City on the one hand, and Assignee on the other, with respect to the Development Agreement. 17. Effective Date. The Effective Date of this Agreement shall be the date upon which Assignee obtains fee title to the Property and delivers evidence of the transfer to City ("Effective Date"'). For the purposes of this Section, the evidence of transfer shall consist of a duly recorded deed and title report. IN WITNESS WHEREOF, Assignor, Assignee, and City have entered into this Agreement as of the date first above written. [Signatures follow on separate page] 5 MN1614878.1 DRAFT FOR m ASSIGNMENT AND A SSUMPTION A GREEMENT ASSIGNOR ASSIGNEE OYSTER POINT VENTURES LLC, a Delaware limited liability company a By: SRI Nine Oyster Point LLC, a Delaware limited liability By: company, its Managing Member Name: By: Its: Name: [Notai y Acknowledgment Required] Its: [Notary Acknowledgment Required] CITY CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Name: City Manager [Notary AcknowledgmentRequire4l ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney ,6 NIN1614878.1 DRAFT FORm A SSIGNMENT AND ASSUMPTIONA GREEMENT EXHIBIT NO. I Property Legal Description 1614878.1 EXHIBIT NO. I MN1614878.1 < / � / Exhibit G Public Benefit Facilities ` z i t7 fj uj X F- b > 0 cr UUJ7 O a LLJ CL < LL 0 2 A a _ CL ( Fmm .; cc, ui a- W � �_:1. q C) Lk C�LI U) y 7C7 W LCE <C > W � i m n C.y g U R Q W Aso/ J ` C- _j LL F— ui z -n z LL I 06 co C7' am CL. 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N% � / s ri�ilr ra; �7, r / Gi, �th/ % i •,!/� p/, P�� �,p., r,�/ ,u�,,, ,.... 1 �UI�J, Jfi,ara.. ,;. r � :,,� "U %%�/� z^�� ��%y; ,'J/��//1//11;>. / Mfr �/(�9 / .k, �i, F r I% // V� / ,--,f�'lll�," ;ACV d/ f/ l 1,44 , i / J�, i gge�l ',.. �l/� ✓ w ,I� `�' (� � � �' „d�,M� ,'1'. � � b4 W /�%H / "I�� •� I /0„ ,'• yrrvri,wrl�lw»rarhn,,;-” Gar'r�i�l1/'r� °,✓��,air'�r"iiXrr�r%il/,rr ,av� %�l/l,/iiirr„ _��,;-� rr,,, !�4 a '; % l p71191f�11i11N1/'F1%d"✓f»'(I�HNlhdwp,. r .., a ,✓ �mn ' ' r I �� ,�,,,:,, A „ ,,,,,... �. ,,,�l'� .; 6ilru/r1rv�lH/r+?/t�ronl,�`7Tr9, ,allilUr/rr�9n?l�aC/Pi,�Y111iJi/llrrilllrhamr�!'r3oralnurlllNl!�t� •.�`�..: ,,,.. ,�,,: ,""�, '.". ,,,,, r""` ',,. � �, � ��: 11 .j�_. 'V ` �°��ryfl�,,.�� /�!!ir (• � Mir/ fr v %fair�,/; „ ,, /: �.y.,,, , _;.._.. .... r,. i ,,� ,, I �. � IDII a(r .n� ,.,:. Ilr/Nrru�,/finY%h9rooco r/r9J�I'%A�Hn1�df1,i5°�Y//rJ N r .. ^^�¢ ,..�u I 1 rr,� ,.»�i � E ...... . ...... �?� q 1," r�. , fa(�?� ,!„vrYX�✓h���iUl,/a���Jl � ���i/���. u Vlf p Lr 8 u� ` r� �&/ r ""`'°r 1p/, � suF.!°dalaf✓/�� G ( Exhibit H-1 Areas Subject to Facilities Assessment _, Lij E3 Er- 4^ f A�. I I , "k r B µ 1 � EE >n, Iwo V j' /, r r�mllr✓ fr i,,,.; ,,,/ r�J� a(%!%/PWI 9���%,/rvt11 01/!�/�Y/ r,,, ° ,'s,�j 'All 11110 / I Rojwl » % F j l/ i/ to %lQa, �f q;;;11'11'1/,// r r ^ 'JJ 11111M. `i ` imp I, ,,,,.... ' � :b / r ✓ r �l mil." i ,s I^4ti I 1, / •hr �� a ,% / / r / r / / �/ I � / ✓tie r�1 ///n/J�`l��r r , f f/ If' / yr Jlli �r < Exhibit H-2 � r � � / I u m. c a - ruY pax, �w LU CL LL co � n � LU IM Ir a f \PSI ix u� avr'ri / Y r i l t I. f i ' I p u at 4 DISPOSITION AND DEVELOPMENT AGREEMENT by and among THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO and OYSTER POINT VENTURES,LLC and THE CITY OF SOUTH SAN FRANCISCO March 23, 2011. TABLE OF CONTENTS ARTICLE I DEFINITIONS..............,........................................................................... ___..g 1.1 Definitions..................................................................^..................................3 ARTICLE 11 REPRESENTATIONS; EFFECTIVE DATE; INTENT OF AGREEMENT.................................~........................................... .._._...~..___6 2.1 Developer's Representations ......................................................................6 2.2 Effective Date; Memorandum...................................................................7 23 Intent of this Related Agreements.........................................7 2.4 Parties ...................................................................................._---..—._7 2-5 Developer's Right of First Refusal............ ..............................................7 ARTICLE III PROJECT SCOPE AND FINANCING......................................... .......................8 3.1 Roles of the Parties and Control Vf Development _—_.~—..................... 3.2 Scope of Development.......... .......................................... .........................9 3.3 Additional Development........ ............ .................................................... I0 3/4 Financingof Redevelopment Project...................................................... I2 ARTICLE IV DISPOSITION OF THE CONVEYED P CONDITIONS PRECEDENT]lODISP(}SITTON ._.................^^,. ................................. ........ 14 4.1 Property Exchange_---~.~_._.----..------_.-----.—. l4 4.2 Conditions Precedent....................................,......................................... 14 4'3 Consideration.......................................... ............................................... l7 4.4 Escrow Instructions............................... .................................... 07 4^5 Costs of Closing and Escrow........... . ................................................... l7 4.6 Closing~~~ ..................^........................................ ........ ........................ l8 4`7 Pr0rutions........................................ ................................................. .......2A 4`8 Representations and Warranties of Agency....................... — ..............20 4.9 Condition of Title ........................ ............................................... ...... ....22 4.10 Feasibility Studies..................................................................................._22 4.11 Contracts, Reports and Investigations,.....................................................23 4.12 Right of Entry .........................................................................................23 4.13 Condemnation.......................... ...............................................................23 -i- 1613885 4.14 Maintenance of the ...................................................24 4.15 Developer's Consent 10 Contracts and Leases Affecting the Conveyed Property; Termination of Existing Contracts..... ..................24 4.16 Insurance..................... ............................. ...............................................24 ARTICLE \7 ENVIRONMENTAL MATTERS ........................................................................24 5.1 Environmental Remediatimm ............ ......................................................24 5.2 Environmental Indemnification.................................................................24 5.3 Methane and Le8chate Monitoring....................................^ ...................25 5.4 Environmental Disclosure................................................ ......................25 5'5 Property Sold"AS IS........... ........................ ..........................................25 5.6 Developer tn Rely emOwn Limitation-, on Environmental Representations and Warranties.....................................26 5'7 Definitions......................................................................,.........................26 ARTICLE VI DEVELOPMENT {lFTHE PROPERTY......................................... ............ ...27 6.1 Permits and Approvals; City Actions; Cooperation.......... .....................27 6.2 Design Review; Conditions of Approval................................................27 6,.3 Intentionally Deleted......................................................, ........................28 6/4 Development Schedule and Phasing........................................................2K 0.5 Performance and Payment Bonds..............................................................2@ 6.6 Insurance Obligations ........................................ ...............2g 6.7 Shared Risk ..............30 6.8 Rights Vf Access .......................................................................................32 6.9 Equal Opportunity _,,,__.___,,_.______,_. ............................ 6.10 Certificate of Completion ..................... ................................................32 6.11 Easements ........................ .......................................... ...... ...................93 6.12 Compliance with Laws ........................^............................................ __.3 3 6.I3 Agency Disclaimer........ ......... .......................................... ....................34 6.14 Indemnity_ ...................................................... ................................ _...�-T 6.05 Liens and Stop Notices ................................................ ...........................]5 6.16 Right of Agency to Satisfy Liens *mthe Conveyed Property., .^.---.35 6.17 Subordination............................ ...............................................................36 6.18 Prevailing Wage Requirements................ ..........................................^ .....36 6.I9 Construction Plans... ............................................. ............................... 36 t61]885 0.20 Construction Pursuant to Plans .... — ......................................................36 6.21 Defects in Developer Construction Plans................................................36 ARTICLE VII USE (}FTHE PROPERTY............................................... ...... .......... ...............37 7.8 Maintenance............................................. ...............................................37 7.2 Taxes and Assessments......... ...... ........................ ............. .......... ...........37 7.3 Obligation b) Refrain from Discrimination....................... ._..................37 ARTICLE VIII LIMITATIONS ON TRANSFERS, CHANGE IN OWNERSHIP AND CONTROL OF DEVELOPER...........................................~....................... .......38 0.1 Identity of Only Pursuant 1othis Agreement--..38 8.2 Transfers Not Requiring Approval..........................................................39 83 Limitation om Transfer.................. ..........................................................39 8/4 Request for Notice................ ................ ........................... ...4A 8'5 Approval .... ....................... .............. ....................................... .............40 &6 Effect 0f Transfer without Agency Consent—.................................._...41 8.7 Recovery of Agency Costs.............. ................................... .....................4l 8.81 Successors and Assigns ......................... —^..............................................4l ARTICLE IX SECURITY FINANCING AND RIGHTS OF MORTGAGEES .......................41 9.1 Subordination.................. ........................................................................4| 0.2 Mortgages and Deeds 0f Trust for Development.... ...............................4X 9.3 Holder Not Obligated bo Construct.........................................................42 9.4 Notice mf Default and Right to Cure.......................................................42 9\5 Limitations mm Termination ofthe Agreement...........................................43 9.6 Procedure om Default..................................................... .........................43 9�7 New Agreement...~_—_--._.—.--_—..^._---_.._-.--.-._-45 9.8 New Agreement Priorities....................... .............................._—...........45 9.9 Mortgagee Need Not Cure Specified Defaults ..................................._.45 9[10 Agency Right UmCure Defaults...............................................................45 9.11 Holder,tobe Notified ..................................~^........................................45 9.12 Modifications to Agreement...... .....................................~_ ................4h 9.13 Estoppel Certificates........................................ ........................................4h 9.14 Participation iQ Insurance and Condemnation Proceedings--.-----.46 ARTICLE X DEFAULTS, REMEDIES AND TERMINATION .............................................46 -iii- 1613885 10J --.-,--.__—..--.----_..._--...---46 [[L2 Event of Developer Default.... ............... ...............................................46 10\3 Agency Event 0f Default ........................................................................48 10/4 Cure m[Default............. ..............^.............................................48 I0-5 Right tnTerminate Agreement ..............................~................................40 l(\b Limitation on Damages ~---.---49 10.7 Remedies Cumulative..... .......................... ............................................50 10.8 IJ —..~.^..—_—_—..-_----....----.~---50 I0i9 Inaction Not 4 Waiver of Default.............................................................5V I0.10 Termination of[}DA; Disposition*f King Property................^^............50 10.11 Effect of Termination............................................^................................... 5| 10J2 Option to, Purchase, Enter and Possess. .................................. ............5I 10LI3 Memorandum of Option t* Purchase.... ............. ................. .................52 1[i14 Rights of .................. —. .......................................................52 10.15 ................ ........................................ ........................................ _52 ARTICLE XI MISCELLANEOUS PROVISIONS..................................................... ..............53 11.1 NO Brokers...................................................... ................................. .....53 11.2 Enforced Extension *f Times of Performance.— ........................53 113 Notices.....................-_ .............................................. ...........................54 11.4 Fees....... .................................................................................55 11.5 Waivers; Modification..................................................................'^........56 11.6 Binding 0o Successors ............................................................................56 I1.7 No Third Party Bencfimiazie@....................... ..... .....................................56 11.0 Survival........................................... .........................................................5h 11.0 Construction.—.—~—'---'—^'—~—'---'—'------'—^^----'^^56 11-10 Action or Approval .-.---_.... ........................................................ 11.11 Entire Agreement_-.^._.--..._.--.----.._^.--_--..~---.56 11.12 Counterparts.......................................... ..................................... .............57 11.13 S ........................................................^ ...................................57 11.14 Parties Not ..........................................................................57 11.15 of Officials, Employees and Agents ................................57 11.16 Time wfthe Essence; Calculation ufTime Periods_---..._.— ..........57 11.17 Governing Law .......................................................................................57 -iv- 1613885 THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is entered into effective as of March 23, 201.1 ("Effective Date")by and between the Redevelopment Agency of the City of South San Francisco, a public body corporate and politic ("Agency"), and Oyster Point Ventures, LLC, a Delaware limited liability company("Developer"'). Agency and Developer are hereinafter collectively referred to herein individually as a"Party" and collectively as the "Parties." The City of South San Francisco, a municipal corporation ("City"),joins as a Party to certain portions of this Agreement, as set forth herein. RECITALS A. Pursuant to authority granted under Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.) ("CRU), the Agency has responsibility to implement the redevelopment plan for the Downtown/Central Redevelopment Project Area(the "Project Area") established by the Redevelopment Plan adopted for the Project Area pursuant to Ordinance No. 1056-89, adopted on July 12, 1989 and as subsequently amended (the Redevelopment Plan"), B. City is the owner of the real property located within the Project Area, commonly known as the Oyster Point Marina property and more particularly identified on the site plan attached hereto as in Exhibit A-1 attached hereto (the "Marina Property"). Within 180 days after the execution of this Agreement, the Agency will acquire from City the portion of the Marina Property consisting of approximately 17.90 acres described in Exhibit B attached hereto, and identified on Exhibit A-2 attached hereto (the "Conveyed Property"), At Developer's election, upon satisfaction of certain conditions precedent, and subject to and in accordance with the terms and conditions of this Agreement, the Agency will convey the Conveyed Property to Developer. The portion of the Marina Property that is retained by the City or the Agency shall be referred to herein as the "City Property". C. Developer is the owner of the real property located adjacent to the Marina Property, commonly known as the Oyster Point Business Park, and more particularly identified in Exhibit A-I attached hereto (the "Business Park Property"). In addition, Developer has a long-term leasehold. interest in a portion of the Marina Property described in Exhibit Q (the "King Lease Property") pursuant to Developer's acquisition of the interests of the original lessee under certain ground leases executed by or on behalf of King Ventures as lessee and the San Mateo County Harbor District(the "Harbor District'') as lessor(collectively, the "King Leases," listed in Exhibit C). The underlying fee interest in the King Lease Property is owned by the City. The Harbor District's authority to enter into the King Leases stems from a joint powers agreement executed by and between the City and the Harbor District that addresses the development, operations, and maintenance of the Marina Property(the "Harbor District JPA"). As part of the consideration for Developer's acquisition of the Conveyed Property, Developer shall terminate those certain Ding Leases that affect any portion of the Conveyed Property(the "Terminated King Leases ") concurrent with Developer's acquisition of the Conveyed Property. All other King Leases shall be assigned by the Developer to the Agency(the"Assigned King Leases") along with all development rights Developer possesses pursuant thereto. -I- 1613885 D. Developer and Agency seek development of the Business Park Property and the Marina Property consistent with the Redevelopment Plan, the Oyster Point Specific Plan adopted by City Ordinance No. 1437-2011 (the"Specific Plan"), and the Oyster Point Phase I Precise Plan adopted concurrently therewith by City Resolution No., 48-2011 (the "Precise Plan"). E. Developer and Agency propose a redevelopment project in which Developer will undertake the construction of certain public improvements, and the Agency and the Developer will each provide certain financing to assist in the development of such public improvements, all as more particularly set forth herein. As used in this Agreement, the term "Redevelopment Project" refers collectively to Developer's construction of certain private improvements on the Conveyed Property(the "Phase ID Improvements") and certain public improvements on the Conveyed Property and portions of the City Property(the "Phase IC Improvements"), as more particularly described in Section 3.2. Implementation of the Redevelopment Project is part of an overall plan for the intended development of a life sciences campus that is to include research and development facilities, office buildings, public improvements, public amenities and open space on the Conveyed Property and the Business Park Property(collectively, the "Developer Property") consistent with the Specific Plan(collectively, the "Developer Project"). The Developer Project is also the subject of a separate Development Agreement between Developer and City, entered substantially concurrently herewith, F. Independently or pursuant to agreements with third parties, the City and/or the Agency intend to cause the City Property to be developed as a "Ferry Village" that may include retail, commercial, restaurant and hotel uses, public open space/recreational uses, and amenities and improvements related to the existing marina (all of the foregoing, collectively the "City/Agency Project"'). As described below, pursuant to this Agreement, Developer will fund certain components of the City/Agency Project, G. The Redevelopment Project includes rcmediation of existing environmental degradation and contamination, including repair or replacement of the cap of a closed municipal landfill located immediately adjacent to the San Francisco Bay and remediation of an industrial sump within that closed municipal landfill. Implementation of the Redevelopment Project will raise the level of certain portions of the closed landfill and its perimeter to counteract the projected effects of sea level rise on the closed landfill and the surrounding property, and protect the environment from potential release of the contents of the landfill into the Bay. H. The purpose of this Agreement is to effectuate the Redevelopment Plan by providing for the construction of public improvements and the redevelopment of the Conveyed Property and the City Property as more particularly set forth herein. in connection with its approval of this Agreement, the Agency has determined that (i) the disposition and development of the Conveyed Property pursuant to this,Agreement and the development of the Redevelopment Project and the Developer Project pursuant to the Specific Plan(a) are consistent with the Redevelopment Plan and any implementation plan for the Project Area; (b) will be of benefit to the Project Area; and (c)will further the goals of the Redevelopment Plan by improving the physical appearance of the Project Area, remediating hazardous materials, increasing economic development opportunities, and providing recreational and public amenities.- and(ii) the Agency financing described herein is necessary to make construction of the public improvements, described herein economically feasible. MN1613885 2 1. Pursuant to the California Environmental Quality Act (110EQA"), on March 23, 2011, the City Council certified a final Environmental Impact Report for the Developer Project and the City/Agency Project and adopted concurrently therewith a Mitigation Monitoring and Reporting Program in connection therewith. J. The City Council and the Agency have each approved by all requisite actions the disposition of the Conveyed Property as set forth in this Agreement, have followed all requisite procedures, and have adopted all requisite findings in connection with the foregoing, including without limitation the requirements of Sections 33431 and 33433 of the CRL. K. A material inducement to Agency to enter into this Agreement is the agreement by Developer to enter into this Agreement and to develop the Redevelopment Project and those components of the City/Agency Project that are the responsibility of Developer pursuant to this Agreement within the time periods specified herein and in accordance with the provisions hereof; the Agency would be unwilling to enter into this Agreement in the absence of an enforceable commitment by Developer to take such actions and complete such work in accordance with such provisions and within such time periods. L. A material inducement to Developer to enter into this Agreement and develop the Redevelopment Project and those components of the City/Agency Project that are the responsibility of Developer pursuant to this Agreement is the Agency's undertaking the contractual obligation to set aside and commit immediately the monies necessary to meet the Agency's obligations to provide specific funding for the Redevelopment Project as provided in this Agreement; the Developer would be unwilling to enter into this Agreement in the absence of an enforceable commitment by Agency to take such actions and in accordance with the provisions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. ARTICLE I DEFINITIONS 1.1 Definitions. The following terms shall have the meanings set forth in the Sections referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional terms are defined in the Recitals and text of this Agreement, "Agency Funding Deposit" is defined in Section 3.4.4. "Agency Phase IC Funding Requirement" is defined in.Section 3.4.2. "Assigned IGng Leases" is defined in Recital C. "Business Park Property" is defined in Recital C. "Certificate of Completion" is defined in Section 6.10.1. "CFD Proceeds" is defined in Section 3.2.1. MN1613885 3 "City" means the City of South San Francisco, a municipal corporation. "City Council"means the City Council of the City of South San Francisco. "City/Agency Project" is defined in Recital F. "City Property" is defined in Recital B. "Claims" is defined in Section 6.14.1. "Closing Date" or"Close of Escrow" shall be the date selected by Developer with no less than ninety (90) days written notice delivered to the Agency, or such earlier date as agreed to by the Agency and Developer in writing. "Conditions of Approval"is defined in Section 6.2. "Conveyed Property" is defined in Recital B. "Contract Documents" is defined in Section 4.2.1(c). "Dedicated Property" is defined in Section 6.1.1.1. "Developer Construction Plans" is defined in Section 6.19. "Developer Funding Requirement" is defined in Section 3.4.6. "Developer Project" is defined in Recital E. "Developer Property" is defined in Recital E and means, collectively, the Conveyed Property and the Business Park Property. "Development Agreement" means that certain Development Agreement that will provide certain vested rights with respect to the development of the Developer Property that the Parties anticipate will be executed by and between Developer and City substantially concurrently herewith. "Effective Date" means March 23, 2011, the date on which Agency, City, and Developer have all executed this Agreement. "Environmental Laws" is defined in Section 5.7.2. "Financing Plan" is defined in Section 4.2.1 "Harbor District" is defined in Recital C. "Harbor District JPA" is defined in Recital C. "Hazardous Material" is defined in Section 5.7.1. MN1613885 4 "Hub"means those certain street and utility improvements, as shown on Exhibit 3.2.1. "Improvements" is defined in Section 4.1.2. "Improvement Costs" is defined in Section 3.4'.1. "Indemnitees"is defined in Section 6.14.1.. "King Lease Property" is defined in Recital C. "King Leases" is defined in Recital C. "Marina Property" is defined in Recital B. "MOU" is defined in Section 2.3. "Official Records" means the Official Records of San Mateo County. ``Phase IC Improvements" is defined in Recital E and further described in Section 3.2.1 and Exhibit 3.2.1. "Phase IC Improvement Costs" is defined in Section 3,.4.1 and further,described in Exhibit 3.2'.1. "Phase ID Improvements" is defined in Recital E and further described in Section 3.2.2 and Exhibit 3.2.2. "Phase ID Improvement Costs" is defined in Section 3.4.1 and further described in Exhibit 3.2.2. "Phase IIC Improvements" is defined in Section 3.2.2 (a) and further described in Exhibit 3.3.2., "Phase III), HID and IVD Improvements" is defined in Section 3.3.1 and further described in Exhibit 3.3.1. "Precise Plan" means that certain plan for development of the Redevelopment Project known as the Oyster Point Phase I Precise Plan. "Project Schedule" is defined in Section 3.2. "Redevelopment Project" means collectively the development and construction of the Phase IC Improvements described in Section 3.2.1 and the development and construction of the Phase ID Improvements described in Section 3.2.2. "Repurchase Option" is defined in Section 10.12. "Right of First Refusal" is defined in Section 2.5.1. MN1613885 5 "ROFR Contract" is defined in Section 2..5.1. 11ROFR Property" is defined in Section 2.5.1. "Specific Plan" means that certain plan for development of the Developer Property and the City Property entitled Oyster Point Specific Plan, including the Specific Plan Appendix and Design Guidelines. "Terminated King Leases" is defined in Recital C. "Third Party" is defined in Section 2.5.1. "Third Party Price and Terms" is defined in Section 2.5.1. "Transfer," is defined in Section 8.3. ARTICLE 11 REPRESENTATIONS; EFFECTIVE DATE; INTENT OF AGREEMENT 2.1 Developer's Representations. Developer represents and warrants to Agency as follows, and Developer covenants that until the expiration or earlier termination of this Agreement, upon learning of'any fact or condition which would cause any of the warranties and representations in this Section 2.1 to be materially untrue, Developer shall inuncdiately give written notice of such fact or condition to Agency. Developer acknowledges that Agency shall rely upon Developer's representations made herein notwithstanding any investigation made by or on behalf of Agency. 2.1.1 Authority. Developer is a limited liability company, duly organized and in good standing under the laws of the State of Delaware, and in good standing and authorized to do business in California, Developer's sole members are: (a) SRI Nine Oyster Point, LLC, a limited liability company that is duly organized and in good standing under the laws of the State of Delaware, and in good standing and authorized to do business in California, and (b), SKS Ot yster Point, LLC, a limited liability company that is duly organized and in good standing under the laws of the State of Delaware, and in good standing,and authorized to do business in California. Developer has the full right, power and authority to undertake all obligations of Developer as provided herein, and the execution,performance and delivery of this Agreement by Developer has been duly authorized by all requisite actions. The persons executing this Agreement on behalf of Developer have been duly authorized to do so. This Agreement constitutes a valid and binding obligation of Developer, enforceable in accordance with its terms. 2.1.2 No Conflict. Developer's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by which it is bound. 2.1.3 No Litigation or Other Proceeding. No litigation or other proceeding (whether administrative or otherwise)is outstanding or, to the best of Developer's knowledge, has been threatened which would prevent, hinder or delay the ability of Developer to perform its obligations under this Agreement. MN1613885 6 2.1.4 No Developer Bankruptcy. Neither Developer nor any of its members is the subject of a bankruptcy or insolvency proceeding. 2.2 Effective Date; Memorandum. The obligations of Developer and Agency hereunder shall be effective as of the Effective Date. Concurrently with the execution of this Agreement, the Parties shall execute a Memorandum of this Agreement substantially in the form attached hereto as Exhibit 2.2 which shall be recorded in the Official Records. 2.3 Intent of this Agreement, Related Agreements. This Agreement sets forth certain rights and obligations of the Parties with respect to the development and financing of the Redevelopment Project., This Agreement is executed pursuant to that certain Memorandum of Understanding(Oyster Point Marina) dated as of May 13, 2009, and executed by and among the City, the Agency and the Developer(the"MOU"). In the event of inconsistency between the terms set forth in the MOU and the terms set forth in this Agreement, this Agreement shall prevail. 2.4 Parties. The Parties hereby acknowledge and agree that City joins this Agreement as a Party only with respect to those Sections that expressly set forth rights and/or obligations relating to the City. In no event shall City have any rights or obligations in connection with this Agreement except as expressly set forth in such Sections. Developer and Agency expressly agree that neither, shall have any right to make a claim, and shall not make a claim, against the City for any purported obligation of the City under this Agreement except for those obligations which the City explicitly has accepted. For the avoidance of doubt, the City shall have no obligation for procuring or paying for the release of any lien or encumbrance on the Conveyed Property. In addition, Developer expressly and unconditionally releases City from any potential liability arising from the obligations set forth in Sections 5.2 and 5.,6. 2.5 Developer's Right of First Refusal. 15.1 The Parties intend for the City Property and the Developer Property to be developed with compatible uses and design. In recognition of the value of maintaining integrated planning and consistency of development, if at any time prior to the earlier of(1) issuance of a certificate of occupancy for the last building to be constructed in connection with the Phase IVD Improvements of the Developer Project as described on Exhibit 3.3.1, or(2) the termination of this Agreement, City or Agency(as applicable) enters into a contract ("ROFR Contract") with a third party("Third Party") for the sale or long ten-n ground lease(Le,, a ground lease with a term of at least 35 years (including any option periods)) of any portion of the City Property identified on Exhibit 2.5.1 attached hereto and made a part hereof(the "ROFR Property"), City or Agency(as applicable) shall deliver a copy of the ROFR Contract to Developer and Developer shall have ten (10) business days after receipt of the ROFR Contract to notify City or Agency(as applicable) in writing of Developer's election to purchase or lease (as applicable) the ROFR Property for a price equal to the actual amount to be paid by the Third Party under the ROFR Contract and on the material terms and conditions agreed to by the Third Party and City or Agency(as applicable) in the ROFR Contract("Third Party Price and Terms") (the rights granted to Developer in this Section 2.5 shall be referred to herein as the "Right of First Refusal"). Developer's failure to notify City or Agency (as applicable) of its election within such ten (10) business day period shall be deemed an election by Developer not to purchase or lease (as applicable)the ROFR Property. If Developer elects to purchase or MN1613885, 7 lease (as applicable) the ROFR Property, then Developer and City or Agency(as applicable) shall enter into a purchase or lease(as applicable) contract for the ROFR Property the terms of which shall be substantially similar to the fon-n of the ROFR Contract with the Third Party Price and Terms (with reasonable allowances for modifications to non-material terms, such as an extension of contingency periods, the closing date or the commencement date). If Developer elects not to purchase or lease (as applicable) the ROFR Property, then City or Agency (as applicable) shall be free to sell or lease (as applicable) the ROFR Property to the Third Party on the material terms, of the ROFR Contract, the Third Party Price and Terms; provided that if such sale or lease (as applicable) is not consummated within twelve (12)months after the date of the ROFR Contract, then such sale or lease (as applicable) and any other proposed sale or lease (as applicable) of the ROM Property shall again be subject to Developer's Right of First Refusal, City or Agency(as applicable) hereby agrees that if Developer exercises the Right of First Refusal, Developer shall have the right to designate an affiliate of Developer as the grantee or lessee (as applicable) of the ROFR Property. 2.5.2 Intentionally Deleted. 2.5.3 At Closing, a memorandum of this Right of First Refusal, in the form attached hereto as Exhibit 2.5.3, shall be executed by City or Agency(as applicable) and recorded against the ROFR Property. Upon such time that Developer no longer has the right to exercise its Right of First Refusal pursuant to the terms of this Section 2.5, Developer,shall promptly execute and acknowledge any document reasonably requested by City or Agency(as applicable) to terminate the aforementioned memorandum, including, without limitation, a quitclaim deed. 2.5.4 The provisions of this Section 2.5 and Developer's Right of First Refusal to purchase the Property pursuant to the terms hereunder shall survive the Closing. ARTICLE III PROJECT SCOPE AND FINANCING 3.1 Roles of the Parties and Control of Development. The Parties intend that (i) subject to compliance with the terms and processes set forth in the Oyster Point Specific Plan, applicable precise plans, City's normal design review and building permit procedures and City's right to mandate specifications for improvements that will be publicly owned, Developer shall be in sole control of planning and development of the Redevelopment Project and Developer Project; and (ii) City and Agency shall be in sole control of planning and development of the City/Agency Project. With the exception of the public improvements to be funded by Developer as set forth below in Section 3 3.2, Developer shall have no responsibility for planning, funding, or construction of any portion of the City/Agency Project. Aside from the Agency's funding obligations as set forth in this Agreement, neither City nor Agency shall have any rights to, nor responsibility for, planning or development of any improvements on property owned by Developer. 3.2 Scope of Development. The Parties intend that the Redevelopment Project will be undertaken in phases as described in this Section and Exhibit 3.2A. The project schedule attached as Exhibit 3.213 (the "Project Schedule")represents the Parties' reasonable estimates of Redevelopment Project milestones, In no event shall any failure to meet the timeframe set forth in the Project Schedule be considered a default under this Agreement. N4N1613885 8 3.2.1 Phase IC Improvements. Developer shall cause to be constructed the Phase IC Improvements described in this Section 3.2.1. The Phase IC Improvements are described in greater detail in Exhibit 3.2.1.attached hereto and will be funded in part by the Agency and in part by Developer or, at the option of Developer, with proceeds from a Mello Roos/Community Facilities District("CFD Proceeds") pursuant to Section 3.4 below. The Phase IC Improvements consist of construction of the following public infrastructure improvements and amenities on portions of the City Property and the Conveyed Property, as more particularly described and identified in Exhibit 3.2.1: (i) Streets and utilities (including grading, subgrade, base, paving, curb and sidewalk, street lights, storm water, sanitary sewer, combined trench for gas, electric and telecom, impermeable utility trench at sanitary landfill areas, and temporary streets and utilities) in the following locations: (1) At the future: Hub area; (2) Extending east from the Hub across the Marina Property; (ii) Repair of and/or upgrade to the clay cap covering the Oyster Point Landfill on specified City-owned parcels and raising the level of certain portions of the Oyster Point Landfill and its perimeter to counteract the projected effects, of sea level rise; (iii) Reconfiguration and reconstruction of existing parking areas on specified City-owned parcels; (iv) Grading and construction of open space recreation areas on specified City-owned parcels; (v) Demolition and grading at the future "hotel site" on specified City-owned parcels; (vi) Landscaping of the beach/park area on specified parcels of the Conveyed Property; and (vii) Landscaping and other improvements including construction of portions of Bay Trail, public restrooms and palm promenade, on specified City-owned parcels all as shown on that certain Conceptual Site Plan for the Public Realm with Phase One SSKS Development dated February 22, 2011 shown on Exhibit 3.2.11. 3.2.2 Phase ID Improvements. Developer will construct the Phase ID Improvements described in this Section 3.2.2 on the Conveyed Property. The public improvement/remediation components of the Phase ID Improvements will be financed in part by Developer and, at the option of Developer, in part with CFD Proceeds,pursuant to Section 3.4 below,. The Phase ID Improvements consist of the following improvements, as more particularly described and identified in Exhibit 3.2.2: MN1613885 91 (i) Repair of the clay cap covering the Oyster Point Landfill on the Conveyed Property; (ii) Rernediation of the area identified on Exhibit 3.2.2 as "Sump (iii) Installation of methane control and monitoring systems on the Conveyed 'roper (iv) Other improvements and construction activities necessitated by building on landfill on the Conveyed Property; (v) Relocation of refuse on the Conveyed Property to accommodate new buildings; and (vi) Development of research and development and/or office buildings on the Conveyed Property consisting of an aggregate of not less than Five Hundred Eight Thousand (508,000) square feet and not more than Six Hundred Thousand (600,000) square feet. 3.3 Additional Development. As of the Effective Date, the parties intend that the development of the City Property and Developer Property will include the additional improvements described in this Section 3.3. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, neither Party shall have any obligation to construct the improvements described in this Section 3.3, or, if such improvements are constructed, to construct them in any particular order or in accordance with any particular schedule. Except for(a)Agency's obligation to fund the clay cap,repair as set forth in Section 3.3.2(a)�(iv)below (which the Parties agree is an express obligation of the Agency), and (b) Developer's obligation to provide funding for certain Phase IIC Improvements, as set forth below, which obligation shall be contingent upon Agency's determination to proceed with the Phase ITC Improvements pursuant to this Agreement, this Section 3.3 is set forth herein for explanatory purposes only and shall not create any obligations or liabilities on the part of either Party. 3.3.1 Developer Project. In accordance with the Development Agreement approved by City, on approximately forty-two (42) acres of the Business Park Property and the Conveyed Property, Developer intends to develop a life sciences campus that will consist of research and development and office buildings with an aggregate gross square footage of approximately 2.25 —2.254230 million square feet, together with associated structured parking. The estimated square footage is predicated on a floor area ratio (FAR) of 1.25, taking into account areas that will be(a) reserved for public amenities (including private streets, beach, park, a portion of the Bay Trail, other public rights of way,public open space, public parking areas, and recreational areas), and (b) available for potential future development. In connection with such additional improvements, Developer intends to construct the following public and private improvements in phases (the "Phase 1ID, 111D and 1VD Improvements") which are described in greater detail in Exhibit 3.3.1 attached hereto and which will be partially financed by Developer and partially funded with CFD Proceeds. (a) Development of streets and utilities at the Business Park Property; MN1613885 10 (b) Relocation and expansion of capacity of Sewer Pump Station No. 1; (c) Landscaping within I 00-foot shoreline band at the Business Park Property; and (d) Development of buildings for research and development and/or office use so that the FAR across the entire Business Park Property and Conveyed Property(including that portion of the Conveyed Property developed in Phase ID) will be 1.25, comprising a total of up to approximately 2.25 —2.254230 million gross square feet of such development. 3.3.2 City/Agency Projec . City and Agency intend to seek development of the City/Agency Project, including retail, commercial, restaurant and hotel uses, public open space and recreational uses on the City Property. City/Agency may also consider development of research and development and/or office development on the 3.2 acre portion of the City Property currently designated for recreational uses,however, any such development(1) would require additional environmental analysis, (2)may not occur until the earlier of(i)the issuance of a building permit for the second (2"d)building in Phase IVD of the Developer Project or(ii) the termination of this Agreement, and (3) would be subject to Developer's Right of First Refusal as set forth in Section 2.5. (a) Phase TIC Improvements. If and at such time as City/Agency commence construction of any of the public infrastructure improvements and amenities described in this Section 3.3.2(a) (the "Phase HC Improvements"), Developer and City and/or Agency will each be responsible for funding and/or construction of the Phase IlC Improvements. The Phase IIC Improvements, which are depicted and described in greater detail in Exhibit 3.3.2 attached hereto, will be planned and constructed by City/Agency, and will be funded in part by Developer and in part by City or Agency as described below. Developer's funding obligations set forth in this Section 3.3.2 shall be conditioned on the City/Agency's construction of all of the Phase IIC Improvements (rather than a portion thereof) and arc inclusive of, and not separate from, the Developer Funding Requirement described in Section 3.4.6 below. (i) Developer to fund sewer pump station at the Marina; (ii) Agency to fund clay cap repair at specified City Property (Parcel JIC) at the Marina, in accordance with the requirements of the Regional Water Quality Control Board; (iii) Agency to fund repaving of existing parking areas at specified City Property(Parcel TIC) at the Marina; and (iv) Agency to fund landscaping of certain City Property within the jurisdiction of San Francisco Bay Conservation and Development Commission ("BCDC") on City Parcel IIC. 3.4 Financing of'Redevelopment Project. 3.4.1 Improvement Costs. The Parties have estimated the cost of the Phase IC Improvements (the "Phase IC Improvement Costs") and the Phase ID Improvements (the MN1613885 1 I "Phase ID Improvement Costs" and, together with the Phase IC Improvement Costs, the "Improvement Costs"). The Improvement Costs and the respective Agency and Developer responsibility for payment for each component of the Improvement Costs are detailed in Exhibit 3A.1 attached hereto. As more particularly described in Exhibit 3.4.1,Agency and Developer each have responsibility to pay for certain components of the public improvements included in Phases, IC and ID, including, without limitation, Developer's obligation to deliver to City an amount equal to One Million One Hundred Thousand Dollars ($1,100,000) on the date that Developer commences construction of the Phase ID Improvements (commencement of construction as used in the foregoing shall be defined as commencement of excavation for the placement of a foundation for a structure within the portion of the Developer Property to be redeveloped in Phase ID). In addition, as indicated in Exhibit 3.4.1., the Parties intend that certain Improvement Costs may, at the option of Developer, be funded with CFI] Proceeds. Nothing in this Agreement is intended to or shall be interpreted as a guaranty by the Agency to make up any shortfall with respect to the availability of CFD Proceeds. 3.4.2 PaMent of Phase IC and ID Improvement Costs. Agency will pay an amount equal to Agency's specified share of the Phase IC Improvement Costs in the aggregate amount, subject to adjustment pursuant to Section 3.4.3 below, of Eighteen Million, Three Hundred Ninety Nine Thousand, Four Hundred Sixty Dollars ($18,399,460) (the"Agency Phase IC Funding Requirement"). Agency shall, at Closing and approximately every three (3)months thereafter, deliver funds into an escrow account that is equal to the estimated amount of Phase IC Improvement Costs that will be incurred by the Developer in the following three (3) month period pursuant to the ten-as of an Escrow:Holdback Agreement in the form attached hereto as Exhibit 3.4.2, to be entered into by and among Agency, Developer and the Title Company at Closing("Escrow Holdback Agreement"). Agency shall periodically deliver such funds within five(5)business days after receipt of written request from Developer, which request shall be accompanied by a description of the work to be completed during such three (3) month period. Any interest accruing on such escrowed funds shall become a part of the escrowed funds and shall be used only in connection with the construction of the Phase IC Improvements. 3,.4.3 Allocation of Responsibility; Cost Overruns and Savings. The Parties hereby agree that the allocation of costs and contributions in connection with the Phase IC Improvement Costs and the Phase ID Improvement Costs shall be as set forth on Exhibit 3.4.1, which Exhibit also sets forth which Party shall be responsible for any cost overruns above, and which Party shall be entitled to retain any cost savings below, the estimated costs of such Improvements. Notwithstanding the foregoing, with respect to the Phase IC Improvement Costs, associated with streets and utilities at the Hub, as described in Exhibit 3.2.1, any cost overruns shall be shared by the Parties on the proportional basis set forth on Exhibit 3.4.1 based on each Party's responsibility for funding such streets and utilities, and any cost savings shall be paid by the Parties towards the construction of the Phase IIC Improvements for which the Agency is required to pay. Agency shall apply such cost savings in the following order of priority: first, to complete the clay cap repair in Phase IIC, second, to construct the new sewer pump station, and if any funds remain after completion of the clay cap repair and construction of the pump station, to any other Phase IIC Improvements in the Agency's discretion. Notwithstanding the foregoing, the City shall pay any additional costs beyond those shown on Exhibit 3.4.1, including without limitation those additional costs that may arise(a) related to the Bay Trail, MN1613885 12 palm promenade, and Marina parking lot, including but not limited to increased costs required by BCDC; (b) related to agreements reached with the Harbor District; and(c) related to changes in scope or quality requested or required by City. 3.4.4 Obligation to Set Aside Funds for Agency Funding Requirement; Agena Budget. The Agency Funding Requirement is an indebtedness of the Agency to Developer under this Agreement, and in order to induce Developer to enter into this Agreement, upon execution of this Agreement the Agency agrees that it will set aside immediately in a separate account funds in the amount of the Agency Funding Requirement ("'Agency Funding Deposit"). Such Agency Funding Deposit shall be held in such account, and without the express written agreement of Developer, shall not be withdrawn or used for any purpose whatsoever, except to pay at the times and in the amounts required to fulfill Agency's obligation to pay the Agency Funding Requirement. The Agency Funding Deposit initially placed in such separate account may be replaced at a later date with funds lawfully available for that purpose, including, by way or example, proceeds, from the issuance of bonds secured by tax-increment from the Redevelopment Project, on and subject to the same terms and limitations applicable to the Agency Funding Deposit. In order to satisfy Agency's obligations to pay the Agency Funding Requirement without violating any applicable time limits on Agency action pursuant to the Redevelopment Plan, Agency also will take all reasonably necessary actions from time to time, including without limitation, recognition of the Agency Funding Requirement as an indebtedness of the Agency in all financial reports and documents, and inclusion of the Agency Funding Requirement in the Agency's annual budget, and making prepayments or additional payments if necessary. 3.4.5 [Intentionally Deleted] 3.4.6 Pa pent of Phase IIC Improvement Costs. The Parties have estimated the cost of the Phase IIC Improvements (the "Phase 11CImprovement Costs"). Developer will pay to Agency Developer's contribution to the Phase IIC Improvement Costs in an amount not to exceed Eight Hundred Thirty-Nine Thousand Four Hundred Ninety Dollars ($839,490) (the"Developer Funding Requirement") upon Developer's commencement of construction of the sewer pump station at the Marina. Commencement of construction as used in this Section 3.4.6 shall be defined as commencement of excavation for the placement of a foundation for the sewer pump station. Notwithstanding the foregoing, Agency acknowledges and agrees that Developer will only be obligated to pay the Developer Funding Requirement if(i)Agency has issued Certificates of Completion (defined below) for the Phase IC Improvements and Phase ID Improvements as set forth in Section 3.2.1 and Section 3.2.2; and (ii) City or Agency have commenced construction of all of the Phase IIC Improvements for which Developer has a funding obligation. 3.4.7 Allocation of. esponsibility. Agency shall be responsible for payment of all Phase IIC Improvement Costs not required to be paid by the Developer Funding Requirement, and shall pay for any cost overruns above, and shall be entitled to retain any cost savings below, the estimated costs of such Improvements. MN1613885 13 ARTICLE IV DISPOSITION OF THE CONVEYED PROPERTY; CONDITIONS PRECEDENT TO DISPOSITION 4.1 Property Exchange. Subject to the terms and conditions set forth herein, and provided that all conditions precedent to the conveyance of the Conveyed Property have been satisfied or waived by Agency, at such time as the Parties are prepared to initiate construction of the Phase I Improvements: (i) Developer will assign to City, and City will assume from Developer, Developer's interest in the Assigned King Leases; and (ii) Agency shall convey to Developer, and Developer shall accept from Agency, fee title to the Conveyed Property, in accordance with the terms,, covenants and conditions set forth in this Agreement. The conveyance of the Conveyed Property from Agency to Developer shall be accomplished by recordation of the Deed (defined below), and an amendment to the Harbor District .IPA in the form attached hereto as Exhibit 4.1 to be entered into between the City and the Harbor District. As used herein, "Conveyed Property" shall include the following: 4.1.1 all rights, privileges and easements appurtenant to the Conveyed Property, including, without limitation, all minerals, oil, gas and other hydrocarbon substances on and under the Conveyed Property, as well as all development rights, air rights, and water rights relating to the Conveyed Property and any rights-of-way or other appurtenances affecting the Conveyed Property(collectively, the"Appurtenances"); 4.12 all of Agency's right, title and interest in and to all improvements and fixtures located on the Conveyed Property, as well as all other apparatus, equipment and appliances used in connection with the operation or occupancy of the Conveyed Property (collectively, the"Improvements"); 4.1.3 all personal property owned by the Agency located on or in or used in connection with the Conveyed Property and Improvements as of the date hereof and as of the Closing Date(the"Personal Property"),- and 4.1.4 any intangible personal property now or hereafter owned by the Agency and used in the ownership, use or operation of the Conveyed Property, Improvements, and Personal Property, and, to the extent approved by Developer pursuant to this Agreement, any contract rights, utility contracts or other agreements or rights relating to the ownership, use and operation of the Conveyed Property, as defined below (collectively, the"Intangible Property"). 4.2 Conditions Precedent. 4.2.1 Agency's Conditions Precedent. Agency's obligation to convey the Conveyed Property to Developer is conditioned upon the satisfaction of all of the requirements set forth in each subsection of this Section 4.2.1 unless any such condition is waived by Agency acting in the discretion of its Executive Director. Prior to conveyance of the Conveyed Property, Developer shall satisfy all of the following conditions: (a) Due Authorization and Good Standing. Developer shall have delivered to Agency each of the following: (i) certificate of good standing, certified by the Delaware Secretary of State indicating that Developer and Developer's manager or managing MN1613885 14 member are properly organized and in good standing in the State of Delaware; (ii) certificate of good standing, certified by the California Secretary of State indicating that Developer and Developer's managing member are in good standing and authorized to do business in the State of California; (iii) a certified resolution indicating that Developer's managing member has authorized the transactions contemplated by this Agreement and that the persons executing this Agreement on behalf of Developer have been duly authorized to do so; (iv) certified copy of Developer's LLC-1; and(v) certified copy of Developer's managing member's LLC-1. (b) Financing. Developer shall have provided evidence to the Agency, which is commercially reasonably satisfactory, of(a) Developer's acceptance of a loan commitment from a lender or lenders in connection with Developer's financing of the Redevelopment Project, or (b) evidence of the availability of funds from such other alternative sources in connection with the financing of the Redevelopment Project, as reasonably approved by Agency (the"Financing Plan"). Developer may obtain, and Agency shall approve, such alternative sources of financing from, without limitation, funds on hand, lines of credit, and/or equity commitments from partners and/or investors. The Parties hereby agree that Agency shall approve of Developer's Financing Plan provided that Developer is able to evidence funding from sources that collectively are sufficient to fund the estimated costs of the Redevelopment Plan. (c) Contract Documents, Budget and Schedule. City and Agency shall have reasonably approved of the Contract Documents (defined below), budget and schedule for the public improvement components of the Redevelopment Project, which shall be deemed acceptable provided that they are materially consistent with the form of the Contract Documents, budget and schedule delivered to the City and Agency by the Developer prior to the Effective Date. As used herein "Contract Documents"means all contract documents upon which Developer and Developer's contractors shall rely in developing the public improvement components of the Redevelopment Project (including the landscaping, parking, and common areas) and shall include, without limitation, the site development plan, final architectural drawings, landscaping, exterior lighting and signage plans and specifications, materials specifications, final elevations, and building plans and specifications. (d) Permits and Entitlements. For the avoidance of doubt, City and Agency confirm that Developer has obtained all known City discretionary entitlements, permits, licenses and approvals required for the development of the Redevelopment Project,but not including permits for demolition, grading, building, or other ministerial approvals, or has provided evidence reasonably satisfactory to Agency that receipt of such permits and approvals is subject only to such conditions as Agency may reasonably approve. City and Agency also confirm that Developer has obtained CEQA and General Plan, Zoning, and Specific Plan-level entitlements for the Redevelopment Project. (e) Payment of Fees. Subject to any contrary provision of the Development Agreement, Developer shall have paid when due all customary and reasonable fees and charges in connection with the processing of City and all other applicable agency permits and approvals applicable to the Redevelopment Project. (f) Insurance and Performance Bonds. Developer shall have provided evidence reasonably satisfactory to Agency that Developer has obtained insurance coverage MN1613885 15 meeting the requirements set forth in Article VI and shall have provided to Agency performance bonds or other assurance of completion reasonably satisfactory to Agency pursuant to the requirements set forth in Section 6.5. 4.2.2 Developer's Conditions Precedent. Developer's obligation to accept the Conveyed Property from Agency and proceed to Closing is conditioned upon the satisfaction of all of the requirements set forth in each subsection of this Section 4.2.2 unless any such condition is waived by Developer in writing. If any of the conditions are not satisfied, Developer shall have the right in its sole discretion either to waive in writing the condition precedent and proceed with the purchase or terminate this Agreement, in which event Developer and Agency shall each be released from all obligations hereunder, except for such matters that expressly survive the termination of this Agreement. Prior to the Closing Date, the following conditions shall have been satisfied: (a) Agency's representations and Warranties. All of Agency's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct when made and shall be true and correct as of the Closing Date. (b) Condition of Conveyed Property. The physical condition of the Conveyed Property shall be substantially the same on the day of Closing as on the date of Developer's execution of this Agreement, reasonable wear and tear and construction performed under the terms of this Agreement excepted, and, as of the day of Closing, there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, which after Closing would materially adversely affect the value of the Conveyed Property or the ability of Developer to develop the Conveyed Property in the manner in which it intends. (c) Permits and Entitlements. Developer shall have obtained all known entitlements, permits, licenses and approvals required for the development of the Redevelopment Project, including without limitation all known permits for demolition, grading, building, or other ministerial approvals. (d) Financin . Developer shall have received a loan commitment from a lender or lenders, or obtained funds from such other alternative sources, in connection with the financing of the Redevelopment Project, which financing shall be deemed sufficient in Developer's sole and absolute discretion. (e) Release of Liens. The Agency shall have caused the Conveyed Property to be released from any and all liens or encumbrances related to any loans that encumber the Conveyed Property, including, without limitation, any liens of mortgages, deeds of trust, and financing statements related to that certain Consolidated Loan Agreement by and between the Department of Boating and Waterways and the San Mateo County Harbor District. The Agency hereby agrees that if required by the Department of Boating and Waterways, the Agency shall enter into a guaranty agreement in connection with the release of the Conveyed Property from such liens. (f) Issuance of Title Policies. The Title Company(defined below) shall" be irrevocably and unconditionally committed to issue:to Developer the Title Policies, free and clear MNI613885 16 of all liens, and subject to only the exceptions expressly set forth therein, and including the endorsements attached thereto. (g) Easements. The parties shall have agreed upon the form of temporary and permanent casement agreements to be recorded against the Conveyed Property and the City Property at Closing pursuant to which Developer, and its employees, contractors, consultants, agents, invitees and guests shall have access to and from the Conveyed Property, and other easements for utilities serving the Conveyed Property(including, without limitation, potable water, wastewater, storm water, gas, electricity, cable and other services), emergency vehicular access, maintenance easements, and such other,easement rights as reasonably required by Developer in connection with its intended development and use of the Conveyed Property. (h) Insurance. City/Agency shall have provided evidence reasonably satisfactory to Developer that City/Agency has obtained insurance coverage meeting the requirements set forth in Article-V1. 4.3 Consideration. The consideration payable by Developer for the Conveyed Property shall be: (i) the conveyance to City of the Assigned King Leases; and (ii) the payment of the sum of Four Million Five Hundred Thousand Dollars ($4,500,000) (the "Purchase Price"). The Assigned King Leases shall be conveyed to Agency at the Close of Escrow. The Purchase Price shall be payable in two (2) installments, of Two Million, Two Hundred and Fifty Thousand Dollars ($2,250,000) each, The first installment shall be payable to Agency at Close of Ecrow. The second installment shall be payable in full on the date that Developer obtains the first building pen-nit for a building within Phase HID. 4.4 Escrow; Escrow Instructions. The Parties shall open escrow at the office of Chicago Title Company at 455 Market Street, 21 st Floor, San Francisco, CA 94105, 415-788-087 1, Attention: Nicki Carr("Title Company" or"Escrow Agent") in order to consummate the conveyance and exchangc of property interests contemplated hereby and the closing of escrow for the transactions contemplated hereby(such closing of escrow shall be referred to herein as the "Closing"). Agency and Developer shall provide Escrow Agent with a copy of this Agreement, which together with such supplemental instructions as Agency or Developer may provide and which are consistent with the intent of this Agreement or which are otherwise mutually agreed upon by Agency and Developer, shall serve as escrow instructions for the transactions contemplated hereby, In the event the Closing does not occur on or before the Closing Date, the Escrow Agent shall, unless it is notified by both parties to the contrary within five(5), days after the Closing Date, return to the depositor thereof items which were deposited hereunder. Any such return shall not, however, relieve either party of any liability it may have for its wrongful failure to close. 4.5 Costs of"Closing and Escrow. Each Party shall pay the cost of any title insurance such Party elects to purchase in connection with the acquisition of the property interests to be acquired by such Party. Developer shall pay all other closing costs and escrow fees (including without limitation recording fees, escrow charges, real estate transfer taxes, and documentary transfer taxes associated with the assignment of the Assigned King Leases to Agency and the conveyance of the Conveyed Property to Developer). MN1613885 17 4.6 Closing. At the Closing, the Agency shall convey to Developer marketable and insurable fee simple title to the Conveyed Property, including, without limitation, the Appurtenances and the Improvements,by a duly executed and acknowledged grant deed substantially in the form attached hereto as Exhibit 4.6A (the"Deed"). Evidence of delivery of marketable and insurable fee simple title shall be the issuance by Title Company to Developer of the Title Policies (defined below). Each Party shall deposit into escrow executed counterpart originals of assignment and assumption agreements in the form attached hereto as Exhibit 4.613 to effectuate the transfer of Developer's interests in the Assigned King Leases to Agency (the "Assignment and Assumption of the King Leases"). The Terminated King Leases shall be terminated on the Closing Date by the execution and delivery of the Lease Termination Agreements (defined below). On the Closing Date the Escrow Agent shall cause the Deed, the Assignment and Assumption of the King Leases, and the Memorandum to be recorded in the Official Records. 4.6.1 At or before the Closing, Agency shall, deliver to Developer or the Title Company, as appropriate, the following: (a) a duly executed and acknowledged Deed; (b) a duly executed Bill of Sale in the form attached hereto as Exhibit 4.6.1 (c) an Assignment and Assumption of the King Leases executed and acknowledged by the City; (d) a duly executed Assignment of Intangible Property in the form attached hereto as Exhibit 4.6.1B (the "Assignment of Intangible Property"); (e) Lease Termination Agreements terminating the Terminated King Leases, duly executed by the Harbor District and the Agency(the "Lease Termination Agreements"); (0 an amendment to the Harbor District TPA, eliminating applicability of the JPA to the Conveyed Property in the form attached hereto as Exhibit 4.1, (g) a request for partial reconveyance in connection with the Deed of Trust benefiting the Harbor District which currently encumbers the Conveyed Property, duly executed by the California Department of Boating and Waterways, in such form reasonably required by the Title Company in order to release such deed of trust lien from the Conveyed Property and issue the Title Policies to Developer; (h) a FIRPTA affidavit (in the form attached as Exhibit 4.6.1 C) pursuant to Section 1445(b)(2), of the Internal Revenue Code of 1986 (the"Code"), and on which Developer is entitled to rely, that Agency is not a"foreign person"within the meaning of Section 1445(f)(3) of the Code, and a properly executed California Form 593-C; (i) agreements to which the City or Agency is a party terminating each and every sublease, license or occupancy agreement affecting the Conveyed Property, duly NIN1613885 18 executed by each and every subtenant, licensee or party to an occupancy agreement occupying the Conveyed Property; 0) a closing statement in form and content satisfactory to Developer and Agency; (k) an affidavit of title and gap indemnity agreement in the Title Company's customary forrn; (1) a duly executed and acknowledged Escrow Holdback Agreement-, (m) a duly executed and acknowledged Boundary Line Agreement, or such other agreement reasonably acceptable to the Title Company sufficient to remove any tideland or submerged land exception on the title to the Conveyed Property; and (n) any other instruments,records or correspondence called for hereunder which have not previously been delivered. Developer may waive compliance on A, ency's part under any of the foregoing items by an instrument in writing. 4.6.2 At or before the Closing, Developer shall deliver to Agency or the Title Company, as appropriate, the following: (a) a duly executed Assignment and Assumption of the King Leases; (b) a duly executed Assignment of Intangible Property, (c) a closing statement in form and content satisfactory to Developer and Agency, (d) a duly executed and acknowledged Escrow Holdback Agreement; and (e) the portion of the Purchase Price due and payable at Closing pursuant to Section 4.3 hereof, (f) agreements to which the Developer is a party terminating each and every sublease, license or occupancy agreement affecting the Conveyed Property, duly executed by each and every subtenant, licensee or party to an occupancy agreement occupying the Conveyed Property; Agency and Developer shall each deposit such other instruments as are reasonably required by the escrow holder or otherwise required to close the escrow and consummate the purchase of the Conveyed Property in accordance with the terms hereof Agency and Developer hereby designate Title Company as the "Real Estate Reporting Person" for the transaction pursuant to Section 6045(e) of the Code and the regulations promulgated thereunder. MN1613885 19 4.7 Prorations. With respect to the Conveyed Property, Agency shall be entitled to all income produced from the operation of the Conveyed Property which is allocable to the period prior to Closing Date and shall be responsible for all expenses allocable to that period;provided, however, that to the extent any portion of the Conveyed Property is subject to the King Leases prior to Closing, income and expenses for the period prior to the Closing Date shall be governed by the terms of such King Leases. After Closing and the concur-rent termination of the Terminated King Leases, Developer shall be entitled to all income and responsible for all costs with respect to the Conveyed Property. With respect to the portion of the Marina Property that is subject to the King Leases but is not a part of the Conveyed Property, income and expenses for the period prior to the Closing Date shall be governed by the terms of'such King Leases, and as of 12:01 a.m. on the Closing Date, Agency shall be entitled to all income and responsible for all costs thereafter. At the Closing, all items of income and expense with respect to the Property listed below shall be prorated in accordance with the foregoing principles and the rules for the specific items set forth hereafter: 4.7.1 Utility Charge . Agency shall cause all the utility meters for the King Lease Property and the Conveyed Property to be read on the Closing Date. 4.7.2 Other Apportionments. Amounts payable under the Assumed Contracts, annual or periodic permit and/or inspection fees (calculated on the basis of the period covered), and liability for other property operation and maintenance expenses and other recurring costs shall be apportioned as of the Closing Date. 4.7.3 Real Estate Taxes and Special Assessments. General real estate taxes payable for the tax year in which the Closing occurs shall be prorated by Agency and Developer as of the Closing Date. 4.7.,4 Preliminary Closing Adjustmen . Agency and Developer shall jointly prepare a preliminary Closing adjustment on the basis of all sources of income and expenses, and shall deliver such computation to the Title Company prior to Closing. 4.7.5 Post-Closin&Reconciliation. If any of the aforesaid prorations cannot be calculated accurately on the Closing Date, then they shall be calculated as soon after the Closing Date as feasible. Either party owing the other party a sum of money based on such subsequent proration(s) shall promptly pay said sum to the other party within ten (10) days after delivery of a bill therefor. 4.7.6 Survival. The provisions of this Section 4.7 shall survive the Closing. 4.8 Rgpresentations and Warranties of Agency. Agency hereby represents and warrants to and covenants with Developer as follows: 4.8.1 To the best of Agency's knowledge, the use and operation of the Conveyed Property now are, and at the time of Closing will be, in compliance with all applicable building codes, environmental, zoning and land use laws, and other applicable local, state and federal laws and regulations (collectively, "Laws"). 4.8.2 The Due Diligence Documents delivered to Developer in connection with this Agreement(including, without limitation, the Service Contracts) are and at the time of MN1613885 2,0 Closing will be true, correct and complete copies of such documents. Except as shown on Exhibit 4.8.2, and excluding any Service Contracts entered into by Developer in its capacity as the lessee under the King Leases, there are no other Service Contracts affecting the Conveyed Property. 4.8.3 There are no condemnation, environmental, zoning or other land-use regulation proceedings, either instituted or,, to Agency's,knowledge, planned to be instituted, which would detrimentally affect the use, operation or value of the Conveyed Property. 4.8.4 There is no litigation pending or, after due and diligent inquiry, to the best of Agency's knowledge threatened, against Agency or any basis therefor that arises out of the ownership of the Conveyed Property or that might detrimentally affect the value or the use or operation of the Conveyed Property for its intended purpose or the ability of Agency to perform its obligations under this Agreement. 4.8.5 This Agreement and all documents executed by Agency which are to be delivered to Developer at the Closing are and at the time of Closing will be duty authorized, executed and delivered by Agency, are and at the time of Closing will be legal, valid and binding obligations of Agency enforceable against Agency in accordance with their respective terms, are and at the time of Closing will be sufficient to convey title(if they purport to do so), and do not and at the time of Closing will not violate any provision of any agreement or judicial order to which Agency or the Conveyed Property is subject. 4.8.6 At the time of Closing there will be no outstanding written or oral contracts made by Agency for any improvements to the Conveyed Property which have not been fully paid for and Agency shall cause to be discharged all mechanics' and materialmen's liens arising from any labor or materials furnished to the Conveyed Property prior to the time of Closing. 4.8.7 Agency is not a"foreign person" within the meaning of Section 1445(f)(3) of the Code. 4.8.8 Except as disclosed on Exhibit 4.8.8, the Conveyed Property is not in violation of any Environmental Laws (defined below). Except as disclosed on Exhibit 4.8.8, neither Agency, nor to the best of Agency's knowledge any third party, has used, manufactured, generated, treated, stored, disposed of, or released any Hazardous Material on, under or about the Conveyed Property. Except as disclosed on Exhibit 4.8.8, neither Agency, nor to the best of Agency's knowledge any third party has installed, used or removed any storage tank on, from or in connection with the Conveyed Property except in full compliance with all Environmental Laws, and to the best of Agency's knowledge there are no storage tanks or wells located on, under or about the Conveyed Property. Except as disclosed on Exhibit 4.8.8, to the best of Agency's knowledge, the Conveyed Property does not consist of any building materials that contain Hazardous Material, The disclosures contained in Exhibit 4.8.8 represent all of the information within Agency's knowledge, control and/or possession relating to the use, manufacture, generation, treatment, storage, disposal or release of Hazardous Material on, under or about the Conveyed Property. MN1613885 21 4.8.9 Agency has not granted any option or right of first refusal or first opportunity to any party to acquire any interest in any of the Conveyed Property. 4.8.10 Agency's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound. 4.9 Condition of Title, 4.9.1 At Closing, Agency shall cause the Title Company to issue Developer ALTA extended coverage owner's policies of title insurance (Form 2006) in the amount of the value of the Conveyed Property as determined in Developer's sole and absolute discretion, at no more than the Title Company's standard rates, insuring fee simple title to the Conveyed Property and all appurtenances and improvements thereon in Developer, in the forms attached hereto as Exhibit 4.9.1, subject only to the exceptions showing in Schedule B thereof and also including all endorsements, attached thereto, and incorporating those changes as indicated thereon by handwritten comments, without further revision or amendment except as expressly approved by Developer(the"Title Policies"). The Title Policies shall include without limitation full coverage against mechanics' and materialmen's liens. Agency's failure to cause such Title Policies to be issued to Developer in the forms required herein shall be deemed a default under this Agreement, and Developer shall have all of its rights and remedies pursuant to Section 10.6.2 below. 4.9.2 At the Close of Escrow, Developer shall convey to Agency Developer's leasehold interest in the property encumbered by the Assigned King Leases free and clear of all recorded liens, encumbrances, taxes, assessments and leases voluntarily created by Developer during its tenancy under the Assigned King Leases, except as approved in writing by Agency, and Agency shall convey to Developer fee simple title to the Conveyed Property fi-ce and clear of all recorded liens, encumbrances, taxes, assessments and leases except as set forth in the Title Policies. 4.10 Feasibility Studies. Developer, City and Agency may undertake additional inspection, review and testing of the Conveyed Property and the King Lease Property, respectively, including without limitation (i)review of the physical condition of such property, including inspection and examination of soils, environmental factors, and archeological information relating to the Conveyed Property; (ii) further review and investigation of the effect of any zoning, maps, permits, reports, engineering data, regulations, ordinances, and laws affecting the Conveyed Property; (iii) further evaluation of the Conveyed Property to determine its feasibility for such Party's intended use; and (iv) further review and investigation of any potential relocation costs pursuant to Section 7260 et seq. of the California Government Code. All of the foregoing are hereinafter collectively referred to as "Feasibility Studies," The Parties may consult with or retain civil engineers, contractors, soils and geologic engineers, architects and other specialists in its investigation, and may consult with or retain other consultants,to determine if the Conveyed Property is suitable for each Party's intended use, At Close of Escrow, the Conveyed Property and Developer's interest in the King Property shall be conveyed substantially in the respective condition of each as of the Effective Date, reasonable wear and tear and construction permitted by this Agreement excepted. MN1613885 22 4.11 Contracts, Reports and Investigations. Developer, City, and Agency each agree to make available within fifteen (15) business days following the Effective Date of this Agreement, any and all additional information (beyond that which each Party has already provided to the other Party), third-party studies, third-party reports, third-party investigations, service contracts, leases, rental agreements and other obligations concerning or relating to the property such Party has agreed to convey pursuant to the this Agreement which are in such Party's possession or which are reasonably available to such Party, including without limitation surveys, third-party studies, third- party reports and third-party investigation-, concerning the property's physical, environmental, or geological condition, habitability, or the presence or absence of Hazardous Materials in, on or under the property and its compliance with all applicable state and federal environmental laws (collectively, the",Due Diligence Documents"). Developer shall advise Agency prior to Closing which of the service contracts Developer will assume at Closing(the"Assumed Contracts") and Agency shall terminate as of the Closing Date all such agreements which Developer elects not to assume. 4.12 Right of Entry. Prior to Closing, each Party grants to the other and to such other Party's agents and employees the right, upon reasonable notice, to enter upon the property such Party shall acquire pursuant to this Agreement for the purpose of inspecting, examining, surveying and reviewing such property. Each Party shall obtain the other Party's advance consent in writing to any proposed physical testing of the property, which consent shall not be unreasonably conditioned, withheld or delayed. Each Party shall also obtain any necessary approvals from the Harbor District. Physical tests shall be scheduled during normal business hours unless otherwise approved by the owner of the property to be tested. Each Party agrees to indemnify, defend and hold the other Party harmless from and against all liability, loss, cost, damage and expense (including, without limitation, reasonable attorneys' fees and costs of litigation)resulting from such Party's activities pursuant to this Section except to the extent that such liability, loss, cost, damage and expense arises as a result of the negligence or other wrongful conduct of the indemnified Party or the indemnified Party's agents or employees. Notwithstanding anything to the contrary set forth herein, the foregoing indemnity shall not apply to the mere discovery of any pre-existing condition, except to the extent exacerbated by such party. This Section shall survive the expiration or termination of this Agreement and the Close of Escrow. 4.13 Condemnation. If condemnation proceedings are commenced or threatened against any of the Conveyed Property, then,notwithstanding anything to the contrary set forth in this Agreement, Developer shall have the right, at its election, either to terminate this Agreement or to not terminate this Agreement and accept the Conveyed Property. Developer shall have thirty(30) days after Agency notifies Developer that condemnation proceedings are commenced or threatened against any of the Conveyed Property to make such election by delivery to Agency of an election notice(the "Election Notice"). Developer's failure to deliver the Election Notice within such thirty(30) day period shall be deemed an election to terminate this Agreement. If this Agreement is terminated by delivery of notice of termination to Agency, then Developer and Agency shall each be released from all obligations hereunder, except for such matters that expressly survive the termination of this Agreement. If Developer elects not to terminate this Agreement, Agency shall give Developer a credit against the first installment of the Purchase Price at the Closing(and, to the extent necessary, the second installment of the Purchase Price)in the amount reasonably determined by Developer and Agency(after consultation with unaffiliated experts),to be the value of any 1MN1613885 23 Property taken as a result of such proceeding, in which case this Agreement shall otherwise remain in full force and effect, and Agency shall be entitled to any condemnation awards. 4.14 Maintenance of the Conveyed Pro pert . Except to the extent such matters are the responsibility of the Developer in its capacity as the lessee under the King Leases,between Agency's execution of this Agreement and the Closing, Agency shall maintain the Conveyed Property in good order, condition and repair, reasonable wear and tear excepted, and shall make all repairs, maintenance and replacements of the Improvements and any Personal Property and otherwise operate the Conveyed Property in the same manner as before the making of this Agreement, as if Agency were retaining the Conveyed Property. 4.15 Developer's Consent to Contracts and Leases Affecting the Conveyed Property; Termination of Existing Contracts. 4.15.1 Agency shall not, after the Effective Date, enter into any new leases or contracts relating to the Conveyed Property, or any amendments thereof, or terminate any lease, or waive any rights of Agency under any contract, without in each case obtaining Developer's prior written consent thereto (which consent shall not be unreasonably withheld). 4.15.2 Agency shall terminate prior to the Closing, at no cost or expense to Developer, any and all Service Contracts affecting the Conveyed Property that arc not Assumed Contracts (excluding any Service Contracts entered into by Developer in its capacity as the lessee under the King Leases). 4.15.3 From and after the Effective Date, Agency shall not further encumber the Conveyed Property with any monetary or non-monetary liens or encumbrances, 4.16 Insurance. Through the Closing Date, Agency shall maintain or cause to be maintained, at Agency's sole cost and expense, Agency's existing policy or policies set forth in the ABAG Memorandum of'Coverage providing shared risk coverage for the Conveyed Property. ARTICLE V ENVIRONMENTAL MATTERS 5.1 Environmental Remediation. The Parties anticipate that development of the Redevelopment Project will require environmental remediation and related geotechnical work, including cleanup of sumps on the Marina Property, a methane monitoring system as set forth in Section 5.3, relocation of refuse, and repair and/or replacement of the clay cap covering the landfill. The Parties agree to allocate costs for these remediation activities as set forth in Exhibit 3.4.1. 5.2 Environmental Indemnification. With respect to preexisting environmental conditions pertaining to the presence of Hazardous Materials and the pre-existing landfill present on the Marina Property ("Pre-Existing Environmental Conditions"), including those conditions identified in the documents listed in Exhibit 4.8.8, the Parties intend that, subject to the limitations set forth in this Section, both before and following Developer's acquisition of the Conveyed Property, Agency shall retain responsibility for all such P,re-Existing Environmental Conditions, whether discovered prior to or after the Effective Date. Agency shall indemnify, defend, release, and hold harmless Developer from any and all costs, damages, claims, liabilities or expenses (including, without limitation, reasonable attorneys' fees and disbursements) arising from or 1VfN1613885 24 otherwise related to the Pre-Existing Environmental Conditions; provided, however: (i) Developer shall be responsible for payment of the costs incurred in furtherance of the remediation activities described in Section 5.1; and (ii) neither City nor Agency shall have any obligation to defend, indemnify or hold Developer harmless for, and Developer shall be solely responsible for, remediation, damages, penalties, or other costs to the extent arising from or to the extent otherwise related to (a) any release of Hazardous Materials that are brought onto the Conveyed Property by Developer or its employees, contractors, consultants, invitees, agents; or(b) exacerbation of the Pre- Existing Environmental Conditions arising from the negligence, gross negligence, or willful misconduct of Developer's or Developer's employees, contractors, consultants, invitees, or agents or its/their failure to conduct the remediation in compliance with all Applicable Laws. 5.3 Methane and Leachate Monitorin . The Parties intend that City/Agency and/or Harbor District shall retain responsibility for landfill-related methane release monitoring and ground water leachate control monitoring on the City Property and the Developer Property, as well as maintenance, repair, or replacement of the equipment and systems necessary to conduct necessary monitoring, and shall submit any reports required by the local enforcement agency for both the City Property and the Developer Property. Developer will not acquire responsibility to carry out methane monitoring, ground water leachate control monitoring or related maintenance, repair, or replacement on the City Property or Developer Property, or any other environmental assessment, stabilization, remediation, or associated costs related to Pre-Existing Environmental Conditions. Notwithstanding the foregoing, the Parties intend that (i) Developer will fund initial installation of methane monitoring and ground water leachate control monitoring systems, on the Conveyed Property; and (ii) Developer will cooperate to the extent reasonably necessary with any methane monitoring and ground water leachate control monitoring activities conducted by City or a third party. 5.4 Environmental Disclosure. Agency hereby discloses certain Pre-Existing Environmental Conditions as more particularly described in the reports listed in Exhibit 4.8.8, copies of which have been provided to Developer. To the extent the Agency has copies of investigation reports, it will provide copies of such reports to Developer upon request; but the Parties acknowledge that Agency will not be conducting a public records search of any regulatory agency files—although the Agency urges Developer to do so to satisfy itself regarding the environmental condition of the Conveyed Property. By execution of this Agreement, except with respect to Agency's express representations and warranties set forth in this Agreement and in the documents delivered by Agency to Developer at Closing, and without limiting Agency's,obligations as set forth in this Article V, Developer: (i) acknowledges its receipt of the foregoing notice respecting the environmental condition of the Conveyed Property; (ii) acknowledges that it will have an opportunity to conduct its own independent review and investigation of the Conveyed Property prior to the Close of Escrow; and (iii) agrees to rely solely on its own experts in assessing the environmental condition of the Conveyed Property and its sufficiency for its intended use, 5.5 Property Sold "AS IS." Except with respect to Agency's express representations and warranties set forth in this Agreement and in the documents delivered by Agency to Developer at Closing, Developer specifically acknowledges that the Agency is selling and Developer is purchasing the Conveyed Property on an "AS IS", "WHERE IS" and "WITH ALL FAULTS"basis and that Developer is not relying on any representations or warranties of any kind whatsoever, express or implied, from Agency, its employees, board members, agents, or brokers as to any MN1613885 25 matters concerning the Conveyed Property. Except with respect to Agency's express representations and warranties set forth in this Agreement and in the documents delivered by Agency to Developer at Closing, the Agency makes no representations or warranties as to any matters concerning the Conveyed Property, including without limitation: (i) the quality, nature, adequacy and physical condition of the Conveyed Property; (ii) the quality, nature, adequacy, and physical condition of soils, geology and any groundwater; (iii) the existence, quality, nature, adequacy and physical condition of utilities serving the Conveyed Property; (iv)the development potential of the Conveyed Property, and the Conveyed Property's use, habitability, merchantability, or fitness, suitability, value or adequacy of the Conveyed Property for any particular purpose; (v) the zoning or other legal status of the Conveyed Property or any other public or private restrictions on use of'the Conveyed Property; (vi)the compliance of the Conveyed Property or its operation with any Environmental Laws, covenants, conditions and restrictions of any governmental or quasi- governmental entity or of any other person or entity; (vii) the presence or removal of Hazardous Material, substances or wastes on, under or about the Conveyed Property or the adjoining or neighboring property; or(viii) the condition of title to the Conveyed Property. 5.6 Developer to Rely on Own Experts Limitations on Agency's Environmental Rgprcsentations and Warranties. Developer understands that notwithstanding the delivery by Agency to Developer of any materials, including, without limitation, third party reports, Developer will rely entirely on Agency's express representations and warranties set forth in this Agreement and in the documents delivered by Agency to Developer at Closing, and Developer's own experts and consultants and its own independent investigation in proceeding with the acquisition of the Conveyed Property. Notwithstanding anything to the contrary set forth in this Agreement, Developer may not bring any action against Agency for a breach of any representation or warranty contained in Section 4.8.8 above unless and until the aggregate amount of all liability and losses arising out of any such breach exceeds One Million Five Hundred Thousand Dollars ($1,500,000) (provided, however, that once the foregoing threshold amount is met, Developer shall be entitled to recover the entire amount of'such losses from Agency). In addition, in no event will Agency's liability for all such breaches exceed, in the aggregate, an amount equal to Four Million Dollars ($4,000,000), Notwithstanding the foregoing, nothing set forth in this Section 5.6 shall serve to limit, modify or amend Agency's obligations set forth in Section 5.2 above. The provisions of this Section. 5.6 shall survive the Closing. 5.7 Definitions. 5.7.1 "Hazardous Material" means any chemical, compound, material, mixture, or substance that is now or may in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below) as a "hazardous substance", "hazardous material", "hazardous waste", "extremely hazardous waste", "infectious waste", "toxic substance", "toxic pollutant", or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term "hazardous material" shall also include asbestos or asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas,usable as fuel, perchlorate, and methytertbutyl ether, whether or not defined as a hazardous waste or hazardous substance in the Environmental Laws. MN1613885 26 5.7.2 "Environmental Laws"means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance documents,judgments, governmental authorizations or directives, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Material, or the protection of the environment or human, plant or animal health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act(49 U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act(42 U.S.C. § 6901 et seq.),the Federal Water Pollution Control Act (33 U.S.C, § 1251 et seq.), the Clean Air Act(42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq,), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Porter-Cologne Water Quality Control Act (Cal., Water Code § 13000 et seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal., Health and Safety Code, Section 25300 et seq.). ARTICLE VI DEVELOPMENT OF THE PROPERTY 6.1 Pen-nits and Approvals; City Actions; Cooperation. Developer acknowledges that the execution of this Agreement by City and Agency does not constitute any approval for the Project, and does not relieve Developer from the obligation to apply for and to obtain from City and all other agencies with jurisdiction over the Developer Property, all necessary approvals, entitlements, and permits for the development of the Developer Project (including without limitation, approval of the Developer Project in compliance with CEQA; amendments to the City's General Plan, the Specific Plan, and the City's Zoning Ordinance; approval of parcel maps, subdivision maps and✓or use permits, as applicable; and authorization, approvals or permits from the U.S. Army Corps of Engineers, the Bay Conservation and Development Commission, the San Francisco Bay Regional Water Quality Control Board, the Bay Area Air Quality Management District, the County of San Mateo Health Services Department and the California Department of Public Health), nor does it limit in any manner the discretion of the City or any other agency in the approval process, except as otherwise set forth in the Development Agreement. Developer covenants that prior to the commencement of any construction, it shall obtain all necessary permits and approvals which may be required by Agency, City, or any other governmental agency having jurisdiction over the Developer Property, and shall not commence construction work on the Redevelopment Project prior to issuance of building permits required for such work. Agency staff shall work cooperatively with Developer in good faith to assist in coordinating the expeditious processing and consideration of all permits, entitlements and approvals necessary for the development and operation of the Project as contemplated by this Agreement. 6.2 Design Review, Conditions of Approval. Developer shall develop the Conveyed Property in accordance with the terms and conditions of this Agreement, and any construction shall be in compliance with the terms and conditions of all approvals, entitlements and permits that the MN1613885 27 City or any other governmental body or agency with jurisdiction over the Developer Property has granted or issued as of the date hereof or may hereafter grant or issue in connection with development of the Redevelopment Project, including without limitation, all mitigation measures imposed in connection with environmental review of the Redevelopment Project and all conditions of approval imposed in connection with any entitlements, approvals or permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions of approval are hereafter collectively referred to as the "Conditions of Approval"). 6.3 Intentionally Deleted. 6.4 Development Schedule and Phasing. Following transfer of the Conveyed Property, Developer shall thereafter endeavor to complete construction of the Redevelopment Project and substantially satisfy all other obligations of Developer under this Agreement within the time periods set forth in this Section, unless such time periods are extended upon mutual written consent of the Agency and the Developer based upon a Force Majeure Event(defined below) or as otherwise agreed by the Parties. Without limiting the foregoing, Developer shall commence demolition of the existing improvements on the Conveyed Property within two hundred seventy(270) calendar days following conveyance of the Conveyed Property to Developer, and shall diligently prosecute to completion the development and construction of the Redevelopment Project. Each Party shall use diligent and commercially reasonable efforts to perfon-n the obligations to be performed by such Party pursuant to this Agreement in order to permit issuance of a Certificate of Completion for each Phase of the Redevelopment Project as promptly as feasible 6.5 Performance and Payment Bonds, 6.5.1 Prior to commencement of each phase of the Redevelopment Project, Developer shall cause its general contractor to deliver to the Agency copies of payment bond(s) and performance bond(s) (or other surety instrument acceptable to A:gency in its reasonable discretion), issued by a surety reasonably acceptable to the Agency licensed to do business in California, each in a penal sum of not less than one hundred percent (100%) of the scheduled cost of construction for such phase of the Redevelopment Project (the "Performance Security"). The Performance Security shall name the Agency as co-obligee. If, and to the extent Developer is required to post a performance bond or other security in favor of the City pursuant to California Government Code sections 66499-66499.10 to guaranty completion of the Phase IC Improvements (the"City Security"), the posting of such City Security shall satisfy the requirements of this Section 6.5 for such Phase IC Improvements. 6.5.2 With respect to the Phase ID Improvements, in lieu of the Performance Security, subject to Agency's approval of the form and substance thereof, Developer may submit evidence satisfactory to the Agency of Developer's ability to commence and complete construction of the Phase ID Improvements in the form of an irrevocable letter of credit, pledge of cash deposit, certificate of deposit, or other marketable securities held by a broker or other financial institution, with signature authority of the Agency required for any withdrawal, or a completion guaranty in a form and from a guarantor acceptable to Agency. Such evidence must be submitted to Agency in approvable form in sufficient time to allow for Agency's review and approval prior to the scheduled construction start date. MN1613885 28 6.5.3 Upon completion by Developer of any distinct portion of the Redevelopment Project for which a Certificate of Completion is issued, the Agency shall release: such portion of the Performance Security that is equal to the ratio of the cost of the completed improvements to the total Improvement Costs within thirty(30) days after receipt of written request from Developer. 6.6 Developer's Insurance Obligations. Except as otherwise stated herein,prior to the commencement of construction for each phase of the Redevelopment Project on the Conveyed Property or any portion thereof or on any portion of the City Property, Developer shall obtain the insurance policies described in this Section 6.6. Except as otherwise stated herein, Developer shall maintain each such policy(or equivalent replacement policy) in effect until the issuance of a Certificate of Completion for the applicable phase of work. 6.6.1 Workers' Compensation. Throughout the term of thisAgreement, Developer shall comply with, and shall ensure that Developer's contractors comply with, the laws of the State of California concerning workers' compensation. Without limiting the generality of the foregoing, Developer shall maintain in effect throughout the term of this Agreement, one or more policies of worker's compensation insurance as required by law. Developer's policy shall also include employer's liability coverage in an amount not less than 1,0003 ,000 per accident. 6.6.2 General Liability Insurance. Developer and the general contractor working on behalf of Developer(or if using multiple prime contracts, each general contractor) on the Redevelopment Project shall at their sole cost obtain and keep in full force and effect throughout the term of this Agreement commercial general liability insurance:in the amount of $5,000,000 per occurrence for bodily injury, personal injury, and property damage, products, completed operations, and contractual liability coverage. Such insurance shall be written on an occurrence basis, and shall provide that (i) the Indemnitees shall be named as additional insureds under the policy; (ii) the policy shall operate as primary insurance; and (iii) no other insurance maintained by the Agency or by other named or additional insureds will be called upon to cover a loss covered thereunder, 6.6.3 Automobile Liability Insurance. Developer and the general contractor working on behalf of Developer(or if using multiple prime contracts, each general contractor) on the Redcvelopment Project shall at their sole cost obtain and keep in full force and effect throughout the term of this Agreement automobile liability insurance in the amount of $1,000,000 per occurrence for bodily injury and property damage. Such insurance shall be written on an occurrence basis, and shall provide that(i) the Indemnitces shall be named as additional insureds under the policy; (ii) the policy shall operate as primary insurance; and (iii) no other insurance maintained by the Agency or other named or additional insureds will be called upon to cover a loss covered thereunder. 6.6.4 Course of Construction Insurance. Developer shall obtain at its sole cost and keep in full force and effect throughout the course of construction, Course of Construction insurance with policy limits no less than $51,000,0OO, with no coinsurance penalty provisions, and in the standard "Builders Risk" form of policy. The Agency and the City shall be-named as MN1613885 29 loss payee as their interests may appear, and the insurer shall waive all tights of subrogation against the Agency and City. 6.6.5 Certificates of Insurance. Developer shall file with the Agency, prior to commencement of construction of the Redevelopment Project or any portion thereof, and prior to commencement of construction on the Conveyed Property or the City Property pursuant to this Agreement, certificates of insurance in form acceptable to Agency, evidencing the insurance coverage required pursuant to this Section together with duly executed endorsements evidencing additional insured status as required pursuant to this Section 6.6. Developer hereby agrees to notify Agency of any cancellation, major change in coverage, expiration, termination or nonrenewal of the coverage: at least thirty(30) calendar days prior to the effective date of such cancellation or change in coverage (except that only ten (1 a) calendar days prior notice shall be required for cancellation due to non-payment of premiums). Developer shall deliver copies of the insurance policies to Agency upon receipt of written request from Agency. 6.6.6 Other Requirements, Developer shall also furnish or cause to be furnished to Agency evidence satisfactory to Agency that the general contractor(or if using multiple prime contracts, each general contractor) with whom it has contracted for the performance of work on the Conveyed Property carries the same insurance required of Developer hereinabove, and in the amounts of coverage specified. Companies writing the insurance required hereunder shall be authorized to do business in the State of California. Insurance shall be placed with insurers with a current AM. Best's rating of no less than A-: VII. The Commercial General Liability and comprehensive automobile policies required hereunder shall name the Indemnitees as additional insureds. Builder's Risk and property insurance shall name Agency and City as loss payees as their interests may appear. 6.6.7 Reinstatement. If any insurance policy or coverage required hereunder is canceled or reduced, Developer shall, within fifteen (15) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than,the effective date of cancellation or reduction, file with Agency a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, Agency may, without further notice and at its option,procure such insurance coverage at Developer's expense, and Developer shall promptly reimburse Agency for such reasonable expense upon receipt of billing from Agency. 6.6.8 Primary Coverage; Waiver of Subrogatio . Coverage provided by Developer and its general contractor(or if using multiple prime contracts, each general contractor) shall be primary insurance and shall not be contributing with any insurance, or self- insurance maintained by Agency or City, and the policies shall so provide. The insurance policies shall contain a waiver of subrogation for the benefit of the City and Agency. 6.7 City/Agency's Shared Risk Coverage/Insurance Obligations. Except as otherwise stated herein,prior to the commencement of construction of the Phase IIC Improvements, City/Agency shall maintain shared risk coverage under the Memorandurnof Coverage with ABAG Plan Corporation(or any commercially reasonable successor shared risk coverage entity selected by the City) or the insurance policies described in this Section 6.7. Except as otherwise stated herein, MN1613885 30 City/Agency shall maintain each such policy(or equivalent replacement policy) in effect until the issuance of a Certificate of Completion for the Phase IIC Improvements, 6.7.1 Workers' Compensation. Throughout the term of this Agreement, City/Agency shall comply with, and shall ensure that City/Agency's contractors comply with, the laws of the State of California concerning workers" compensation. Without limiting the generality of the foregoing, City/Agency shall maintain in effect throughout the term of this, Agreement, one or more policies of worker's compensation insurance as required by law. City/Agency's policy shall also include employer's liability coverage in an amount not less than $1,000,000 per accident. 6.7.2 General Liability Shared Risk Coverage. City/Agency and all contractors working on behalf of City/Agency on the Phase IIC Improvements shall at their sole cost obtain and keep in full force and effect throughout the term of this Agreement commercial general liability insurance or in the case of the City/Agency shared risk coverage under the Memorandum of Coverage from ABAG Plan (or any commercially reasonable successor shared risk coverage entity selected by the City) in the amount of$5,000,000 per occurrence for bodily injury, personal injury, and property damage, products, completed operations, and contractual liability coverage. Such insurance or shared risk coverage shall be written on an occurrence basis, and shall provide that(i) Developer shall be named as an additional insured under the policy; (ii) the policy shall operate as primary insurance; and (iii) no other insurance maintained by Developer or by other named or additional insureds will be called upon to cover a loss covered thereunder. 6.7.3 Automobile Liabilfty Insurance. City/Agency and all contractors working on behalf of City/Agency on the Phase IIC Improvements shall at their sole cost obtain and keep in fiiII force and effect throughout the term of this Agreement automobile liability insurance or in the case of the City/Agency shared risk coverage under the Memorandum of Coverage from ABAG Plan (or any commercially reasonable successor shared risk coverage entity selected by the City) in the amount of$1,000,00O per occurrence for bodily injury and property damage. Such insurance or shared risk coverage shall be written on an occurrence basis, and shall provide that(i) Developer shall be named as an additional insured under the policy; (ii)the policy shall operate as primary insurance; and (iii) no other insurance maintained by Developer or other named or additional insureds will be called upon to cover a loss covered thereunder. 6.7.4 Certificates of Insurance. City/Agency shall provide to Developer,prior to commencement of construction of the Phase IIC Improvements or any portion thereof, certificates of insurance or shared risk coverage evidencing the insurance coverage required pursuant to this Section together with duly executed endorsements evidencing additional insured status as required pursuant to this Section 6.7. Such certificates shall include a statement of obligation on the part of the carrier to notify Developer of any cancellation, major change in coverage, expiration, termination or nonrenewal of the coverage at least thirty(3,0) calendar days prior to the effective date of such cancellation or change in coverage(except that only ten (10) calendar days prior notice shall be required for cancellation due to non-payment of premiums). City/Agency shall deliver copies of the insurance policies to Developer upon request. MN1613885 31 6.7.5 Other Requirements. City/Agency shall also famish or cause to be furnished to Developer evidence satisfactory to Developer that any contractor with whom it has contracted for the performance of work on the Phase IIC Improvements carries the same insurance required of City/Agency hereinabove, and in the amounts of coverage specified, and each general contractor shall be required to obtain certification of insurance from all subcontractors. Companies writing the insurance required hereunder shall be licensed (or authorized, as applicable) to do business in the State of California. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A-: VII. The Commercial General Liability and comprehensive automobile policies required hereunder shall name the Developer as an additional insured. 6.7.6 Reinstatement. If any insurance policy or coverage required hereunder is canceled or reduced, City/Agency shall, within fifteen(15) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, provide to Developer a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so provide such certificate, Developer may, without further notice and at its option, procure such insurance coverage at City/Agency's expense, and City/Agency shall promptly reimburse Developer for such reasonable expense upon receipt of billing from Developer,. 6.7.7 Primary Coverage; Waiver of Subrogaton. Coverage provided by City/Agency and its contractors shall be primary insurance and shall not be contributing with any insurance, or self-insurance maintained by Developer, and the policies shall so provide. The insurance policies shall contain a waiver of subrogation for the benefit of Developer. 6.8 Rights of Access. For the purposes of assuring compliance with this Agreement, representatives of the Agency shall have the reasonable,right of access to the Conveyed Property, upon reasonable prior notice to Developer, without charges, or fees and at normal construction hours during the period of construction, including, without limitation, for the purpose of conducting inspections at Agency expense of the work being performed in constructing the Phase IC Improvements. Agency representatives shall be identified in writing by the Agency Executive Director or his/her designee. Agency shall minimize any interference with any construction by Developer or Developer's use of the Conveyed Property. 6.9 Equal Opportunity. Developer shall direct its contractors and subcontractors to refrain from unlawful discrimination on the basis of race, color, religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the hiring, firing, promoting or demoting of any person engaged in construction work on the Redevelopment Project. 6.10 Certificate of Completion. 6,.10.1 Promptly after substantial completion(subject to correction of punch list items) of all construction and development of all or any distinct portion of the Phase IC Improvements or the Phase ID Improvements capable of independent use, Developer shall provide to Agency an instrument so certifying, Upon receipt of such certificate, Agency shall confirm that such portion of the Redevelopment Project has been substantially completed, which confirmation may be based upon inspection by the Chief Building Official and Fire Marshal of ,MN1613885 32 the City, and upon such confirmation shall famish Developer with a final Certificate of Completion, substantially in the form attached hereto as Exhibit 6.1(1.1 ("Certificate of Completion"). The Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction of the applicable portion of the Phase IC Improvements and the Phase ID Improvements required to be installed upon the Conveyed Property. Upon completion of all Phase IC Improvements and Phase: ID Improvements, Agency shall issue a final Certificate of Completion confirming the completion of the Redevelopment Project. The final Certificate of Completion shall be in such form as to permit it to be recorded in the Office of the County Recorder of San Mateo County. 6.1 0.2 If Agency refuses or fails to furnish a Certificate of Completion after written request from Developer, Agency shall, within ten(10) business days after receipt of such written request, provide Developer with a written statement of the reasons Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain Agency's opinion of the action Developer must take to obtain a Certificate of Completion. If Agency shall have failed to provide such written statement within said 10-day period, Developer shall be deemed entitled to the Certificate of Completion, and Agency shall promptly issue such final Certificate of Completion to Developer. 6.10.3 A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a mortgage or any insurer of a mortgage securing money loaned to finance the Redevelopment Project or any part thereof and shall not be deemed a notice of completion under the California Civil Code, nor shall such Certificate provide evidence that Developer has satisfied any obligation that survives the expiration of this Agreement. 6.11 Easements. Developer and City and/or Agency agree to execute and record instruments in form and content acceptable to such Parties over the City Property and the Conveyed Property, granting to the other Party access, utility and maintenance easements in connection with each Party's proposed use and development of the City Property and the Conveyed Property, as applicable. Each Party agrees to cooperate with the other Party in good faith to identify and prepare such easements to the extent requested by the other Party. 6.11.1 Dedication of Beach/Park Area. Upon Developer's completion of the landscaping of the beach/park area as identified on Exhibit 6.11.1 (the"Dedicated Property"), Developer and City shall enter,into an agreement pursuant to which Developer shall dedicate (by conveyance of fee title or an easement) the Dedicated Property to the City for purposes of parks and recreation. Upon completion of such dedication, (i) City(or its designee) shall be solely responsible for the maintenance and repair of all improvements thereon, (ii) City shall be solely responsible for any and all liabilities in connection with the Dedicated Property, including, without limitation, any claims arising out of personal injury or property damage on the Dedicated Property, and (iii) City shall be responsible for any and all costs relating to the Dedicated Property, including, without limitation, the payment of all property taxes and assessments relating to the Dedicated Property. 6.12 Compliance with Laws. Developer shall carry out and shall cause its contractors to carry out the construction of the Redevelopment Project in conformity with all applicable federal, MNI613885 33 state and local laws, rules, ordinances and regulations ("Applicable Laws"), including without limitation, all applicable federal and state labor laws and standards, all applicable disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and subject to the provisions of the Development Agreement anticipated to be executed by the Parties substantially concurrently herewith, applicable provisions of the City's Zoning Ordinance, building, plumbing,mechanical and electrical codes, and all other applicable provisions, of the City's Municipal Code. 6.13 Agency Disclaimer, Developer acknowledges that the Agency and City are under no obligation, and neither Agency nor City undertakes or assumes any responsibility or duty to Developer or to any third party, to in any manner review, supervise, or inspect the progress of construction or the operation of the Phase ID Improvements. Developer and all third parties shall rely entirely upon its or their,own supervision and inspection in determining the quality and suitability of the materials and work, the performance of architects, subcontractors, and material suppliers, and all other matters, relating to the construction and operation of the Phase ID Improvements. Any review or inspection of the Phase ID Improvements undertaken by the Agency or the City is solely for the purpose of determining whether Developer is properly discharging its obligations under this Agreement, and shall not be relied upon by Developer or any third party as a warranty or representation by the Agency or the City as to the quality of the design or construction of the Phase ID Improvements. 6.14 Indemnity. 6.14.1 Developer shall indemnify, defend (with counsel reasonably approved by Agency) and hold Agency, City, and their respective elected and appointed officials, officers, commissions, employees, agents, and representatives (collectively, the "Indemnitees") harmless from and against any and all actual, out-of-pocket liability, loss, fines, penalties, forfeitures, costs, damages, (including without limitation attorneys' fees and costs of litigation), claims, demands, actions, suits,judicial or administrative proceedings,, deficiencies, and orders (all of the foregoing collectively"Claims") that directly or indirectly, in whole or in part, are caused by, arise from, or relate to, any of the following: (a) Developer's failure to comply in all material respects with this Agreement and/or with all Applicable Laws, relating to the construction or operation of the Redevelopment Project. (b) Developer's failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including the requirement of payment of prevailing wages (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781), whether or not any insurance policies shall have been determined to be applicable to any such Claims. (c) Defects in the Developer Construction Plans (as defined in Section 6.19) or defects in any work done by Developer or its contractors pursuant to the Developer Construction Plans, whether or not any insurance policies have been determined to be applicable to any such Claims. MN1613885 34 (d) Any Claims to attack, set aside, void, or annul any approval by the City or the Agency or any of its agencies, departments, commissions, agents, officers, employees or legislative body concerning the Redevelopment Project or this Agreement. City/Agency will promptly notify Developer of any such claim, action or proceeding, and will cooperate fully in the defense. If City/Agency fails to promptly notify Developer of any legal action against City/Agency or if City/Agency fails to cooperate in the defense, Developer shall not thereafter be responsible for City/Agency's defense. Agency and City may, within the unlimited discretion of each, participate in the defense of any such claim, action or proceeding, and if the Agency and/or City choose to do so, Developer shall reimburse Agency and/or City for reasonable attorneys' fees and expenses incurred. In the event City/Agency and Developer are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel. 6.14.2 Developer's indemnification obligations set forth in this Section shall not apply to Claims caused by, arising from, or relating to the gross negligence or willful misconduct of the Indemnitees. The provisions of this Section 6.14 shall survive for four(4) years following the latter of the termination of this Agreement or the issuance of the final Certificate of Completion for the Redevelopment Project. It is further agreed that Agency and City do not and shall not waive any rights against Developer which they may have pursuant to this Section 6.14 by virtue of Agency's receipt of any of the insurance policies described in this Agreement. 6.15 Liens and Stop Notices. Until the issuance of a Certificate of Completion for the Redevelopment Project, Developer shall not allow to be placed on the Conveyed Property or any part thereof any lien or stop notice on account of materials supplied to or labor performed on behalf of Developer. If a claim of a lien or stop notice is given or recorded affecting Conveyed Property, Developer shall within twenty (20) days of such recording or service: (i) pay and discharge (or cause to be paid and discharged) the same; or(ii) effect the release thereof by recording and delivering(or causing to be recorded and delivered) to the party entitled thereto a surety bond in sufficient form and amount; or(iii)provide other assurance reasonably satisfactory to Agency that the claim of lien or stop notice will be paid or discharged., 6.16 Right of Agency to Satisfy Liens on the Conveyed Property. If Developer fails to satisfy or discharge any lien or stop notice on the Conveyed Property(following conveyance of such property to Developer) or on any City Property on which Developer is undertaking work pursuant to this Agreement in accordance with Article III above or fails to provide reasonable assurance to Agency with respect to the same, the Agency shall have the right, but not the obligation, to satisfy any such liens or stop notices at Developer's expense and without further notice to Developer. In such event Developer shall be liable for and shall promptly reimburse Agency for such paid lien or stop notice. Alternatively, the Agency may require Developer to immediately deposit with Agency the amount necessary to satisfy such lien or claim pending resolution thereof The Agency may use such deposit to satisfy any claim or lien that is adversely determined against Developer. Developer shall file a valid notice of cessation or notice of completion upon cessation of construction of the Redevelopment Project for a continuous period of thirty(30) days or more, and shall take all other reasonable steps to forestall the assertion of claims or liens against the Conveyed Property or the Redevelopment Project improvements. The Agency may(but has no obligation to) record any notices of completion or cessation of labor, or any other notice that the Agency deems necessary or desirable to protect its interest in the City Property, N4N1613885 35 6.17 Subordination. Any lien created or claimed under the provisions of this Agreement shall expressly be made subject and subordinate to the rights of any lender providing funds used for financing the acquisition or development of the Conveyed Property. 6.18 Prevailing Wage Requirements. To the full extent required by applicable federal and state law, Developer and its contractors,, subcontractors and agents shall comply with California Labor Code Section 1.720 et seq. and the regulations adopted pursuant thereto ("Prevailing Wage Laws"), and shall be responsible for carrying out the requirements of such provisions. This requirement is applicable to all development located on the Conveyed Property and/or the City Property and any infrastructure constructed that benefits the Conveyed Property and/or the City Property that is in whole or part paid for with tax increment funds or other sources of public funds. Developer covenants to take no action which would cause Agency to violate the Prevailing Wage Laws. If applicable pursuant to Prevailing Wage Laws, the hourly and daily rate of wages to be paid to each of the classes of mechanics and workers employed in connection with construction of the Redevelopment Project shall not be less than the rate of such wages then prevailing in San Mateo County. If Prevailing Wage requirements apply to any portion of the Redevelopment Project, Developer agrees to and shall forfeit, as a penalty to Agency, the sums established and applicable pursuant to California Labor Code Section 17'20 et seq. for each calendar day or portion thereof that each worker,employed in connection with the Redevelopment Project is paid less than the rates designated in this paragraph for any work pursuant to this Agreement performed by or on behalf of Developer. 6.19 Construction Plans. Developer shall submit to City's Building Department construction plans for those portions of the Developer Project that are also within the Redevelopment Area, and for which Developer is primarily responsible for designing, financing and constructing as identified in Exhibit 3.2.2 (the "Developer Construction Plans"). 620 Construction Pursuant to Plans. Any development of the Redevelopment Project shall be in accordance with the approved Contract Documents and/or applicable Developer Construction Plans, the Conditions of Approval, and all other permits and approvals granted by the City and/or the Agency pertaining to the Project. Developer shall comply with all lawful directions, rules and regulations of any fire marshal, health officer, building inspector or other officer of every governmental agency having jurisdiction over the Conveyed Property or the Redevelopment Project. Each element of the work shall proceed only after procurement of each permit, license or other authorization that may be required for such element by any governmental agency having jurisdiction. All design and construction work on the Redevelopment Project shall be performed by licensed contractors, engineers or architects, as applicable. 6.21 Defects in Developer Construction Plans. Neither Agency nor City shall be responsible to Developer or to any third party for any defect in the Developer Construction Plans or for any structural or other defect in any work done pursuant to the Developer Construction Plans. MN1613885 36 ARTICLE VII USE OF THE PROPERTY 7.1 Maintenance. Following conveyance to Developer, Developer shall at its own expense, maintain the Conveyed Property, including the landscaping, in good physical condition, in good repair, and in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Developer shall use reasonable efforts to maintain the Conveyed Property in a condition substantially free of all waste'. nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable actions to prevent the same from occurring on the Conveyed Property. Developer shall prevent and/or rectify any substantial physical deterioration of the Conveyed Property and shall make all repairs, renewals and replacements necessary to keep the Conveyed Property.and the improvements located thereon in good condition and repair, reasonable wear and tear and construction permitted by this Agreement excepted. 7.2 Taxes and Assessments. After Closing, Developer shall pay all real and personal property taxes, assessments and charges and all franchise, income, payroll, withholding, sales, and other taxes assessed against the Conveyed Property and payable by Developer, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Conveyed Property; provided, however, that Developer shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event the Developer exercises its right to contest any tax, assessment, or charge, the Developer, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. 73 Obligation to Refrain from Discrimination. Developer shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Conveyed Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Developer covenants for itself, its transferees and assigns, and all persons claiming under or through it or them, and this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Conveyed Property or part thereof, nor shall Developer or any person claiming under or through Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,, sublessees or vendees in, of, or for the Conveyed Property or part thereof. Developer shall include such provision in all deeds, leases, contracts and other instruments executed by Developer and shall enforce the same diligently and in good faith. All deeds (excluding mortgages or deeds of trust), leases or contracts made or entered into by Developer, its successors or assigns, as to any portion of the Conveyed Property or the improvements located thereon shall contain the following language: 7.3.1 In deeds (excluding mortgages or deeds of trust), the following language shall appear: MN1613885 37 "Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of'persons on account of any basis listed in subdivision (a) or(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision(in) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, ten-Lire or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,number,use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land," 7.3.2 In Leases, the following language shall appear: "The lessee herein covenants by and for the lessee and lessee's heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed,religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased." 7.3,.3 In Contracts, the following language shall appear: "There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision(a) or(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number,use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land." ARTICLE VIII LIMITATIONS ON TRANSFERS, CHANGE IN OWNERSHIP AND CONTROL OF DEVELOPER 8.1 Identity of Developer; Changes Only Pursuant to this Agreement. Developer and its principals have represented that they possess the necessary expertise, skill and ability to carry out MN1613885 38 the Redevelopment Project pursuant to this Agreement. The qualifications, experience, financial capacity and expertise of Developer and its principals are of particular concern to the Agency. It is because of these qualifications, experience, financial capacity and expertise that the Agency has entered into this Agreement with Developer. No voluntary or involuntary successor, assignee or transferee of Developer shall acquire any rights or powers under this Agreement, except as expressly provided herein. 8.2 Transfers Not Requiring Approval. 8.2.1 Entities Controlled by Develope . Notwithstanding any contrary provision hereof, Developer shall be permitted to assign this Agreement without Agency consent to an entity or entities controlling Developer(or either member of Developer), controlled by Developer (or by either member of Developer) or under common control with Developer(or either member of Developer), provided that Developer(or either member of Developer) owns and controls no less than fifty percent (50%) of such successor entity. Furthermore, notwithstanding any contrary provision hereof, the prohibitions set forth in this Article shall not be deemed to prevent, and Agency approval shall not be required for: (i) the granting of'easements or permits to facilitate development of the Conveyed Property; (ii) the dedication of any property required pursuant to this Agreement; (iii) the lease of commercial space to individual tenants; (iv) assignments creating security interests, for the purpose of financing the acquisition, construction or permanent financing of the Redevelopment Project or the Conveyed Property, and subject to the requirements of Article IX, Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest. 8.2.2 Non-assuming Transferees. Notwithstanding any contrary provision hereof, at any time following the commencement of demolition of existing improvements on the Conveyed Property, Developer shall be permitted to complete a Transfer of certain Conveyed Property in accordance with this Section 8.2.2. Except as otherwise required by Developer in Developer's sole discretion, either concurrently with or following any such transfer, the development rights of Developer under this Agreement shall terminate with respect to, and Agency's consent shall not be required in connection with, the Transfer of that portion of the Conveyed Property to be developed in Phase III) (the"Phase 11D Property"), or any portion thereof, and that has been created as one or more separate legal parcels for uses permitted under this Agreement. The transferee in such a transaction and its successors ("Non-Assuming Transferees") shall be deemed to have no obligations under this Agreement. A Transfer of the Phase 1113 Property, or any portion thereof, to a lion-Assuming Transferee shall have no effect on Developer's obligations to complete the Redevelopment Project pursuant to this Agreement, nor shall it have any effect on Developer's rights with respect to the remaining Conveyed Property not subject to such a Transfer. 8.3 Limitation on Transfer. Except in accordance with this Article VIII,prior to the completion of the Redevelopment Project, Developer shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (collectively, "Transfer") of the whole or any part of the Conveyed Property or this Agreement, without the prior written approval of Agency, which approval shall not be unreasonably withheld. Any such attempt to assign this Agreement without the Agency's consent 1VIN1613885 39 shall be null and void and shall confer no rights or privileges upon the purported assignee. In addition to the foregoing, prior to the completion of the Redevelopment Project, except as expressly permitted by this Agreement, Developer shall not undergo any significant change of ownership without the prior written approval of Agency, which approval shall not be unreasonably delayed, conditioned, or withheld. For purposes of this Agreement, a"significant change of ownership" shall mean a transfer of the beneficial interest of fifty-one percent (5 1%) or more in aggregate of the present ownership andior control of Developer, taking all transfers into account on a cumulative basis, but specifically excluding transfers of the beneficial interests of the members of Developer to other members and/or the affiliates of members. 8.4 Request for Approval; Notice. For any Transfer that requires Agency's approval, Developer shall notify Agency in writing of its request for consent, which notice shall include: (i) the proposed effective date of Transfer or assignment (which shall not be less than forty-five(45) days nor more than three hundred sixty-five(365) days after Developer's notice); (ii) the name and address of the proposed transferee; (iii) current, audited financial statements of the proposed transferee certified by an officer, partner, or owner thereof and any other relevant inforrnation pertaining to the proposed transferee's qualifications or financial capabilities, and development capacity that Agency may reasonably and timely request; and (iv) the instruments and other legal documents proposed to effect any Transfer of this Agreement, the Conveyed Property or interest therein. The transferee shall expressly assume all of the rights and obligations of the Developer under this Agreement arising after the effective date of the Transfer with respect to the property conveyed to the transferee and all obligations of Developer with respect thereto arising prior to the effective date of the Transfer(unless Developer expressly remains responsible for such obligations, either in the applicable assignment documents or by virtue of its failure to obtain a release contemplated in Section 8.6.1) and shall agree to be subject to all other terms and conditions set forth in this Agreement. 8.5 Approval. Agency may refuse to give its consent to a proposed Transfer only if, in light of the proposed transferee's development experience and financial resources, such transferee would not, in Agency's reasonable opinion, be able to perform the obligations proposed to be assumed by such transferee. In making such determination, Agency shall evaluate: (i)the financial ability of the proposed transferee to own and develop the Conveyed Property, or portion thereof so transferred; and (ii) the experience of the proposed transferee and its senior managerial personnel to develop the Conveyed Property or portion thereof so transferred. Notwithstanding the foregoing, Agency shall not withhold its consent to a proposed Transfer if the proposed transferee meets the following qualifications: (1)the proposed transferee shall have a good reputation as a developer in the office or research and development building community; (2) the proposed transferee shall have a reputation for fair and honest business dealings with persons or entities generally; (3) the proposed transferee's objectives with respect to development of the Conveyed Property it would be acquiring pursuant to the transfer do not differ materially from those of Developer; and (4) the proposed transferee has a net worth sufficiently sound and strong to undertake and complete the obligations to be performed by Developer pursuant to the terms of this Agreement. In any case where consent to a proposed Transfer is requested, Agency's approval shall not be unreasonably delayed, conditioned, or withheld. Failure of Agency to notify Developer in writing of its consent or disapproval within thirty(30) calendar days of written notification by Developer to Agency of a proposed Transfer shall be deemed to be an approval of the proposed Transfer. Consent to any proposed Transfer may MN1613885 40 be given by the Agency's Executive Director unless the Executive Director, in his or her discretion, refers the matter of approval to the Agency's governing board. 8.6 Effect of Transfer without Agency Consent. 8.6.1 In the absence of specific written agreement by the Agency, no Transfer by Developer shall be deemed to relieve the Developer or any other party from any obligation under this Agreement. 8.6.2 If, in violation of this Agreement, the Developer Transfers all or any part of the Conveyed Property prior to the recordation of the Certificate of Completion for the Project, the Agency shall be entitled to receive from Developer the amount by which the consideration payable for such Transfer exceeds the sum of (i)the purchase price paid by the Developer to the Agency for the Conveyed Property, and(ii) the costs incurred by Developer in connection with the improvement and development of the Conveyed Property, including carrying charges, interest, fees, taxes, assessments and escrow fees through the date of such Transfer'. Such excess consideration shall belong to and be paid to the Agency by the Developer and until so paid, the Agency shall have a lien on the Conveyed Property(which lien shall be subordinate to any mortgage or deed of trust liens affecting the Conveyed Property) for such amount. The provisions of this Section 8.6.2 have been agreed upon so as to discourage land speculation by Developer; accordingly, these provisions shall be given a liberal interpretation to accomplish that end. Following the recordation of the Certificate of Completion, the provisions of this Section 8.6.2 shall have no further force and effect. 8.7 Recovery of Agency Costs. Developer shall reimburse Agency for all reasonable and necessary Agency costs, including but not limited to reasonable attorneys' fees, incurred in reviewing instruments and other legal documents proposed to effect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within thirty(30) days following Agency's delivery to Developer of an invoice detailing such costs. Notwithstanding the foregoing, in no event shall such costs exceed Fifteen Thousand Dollars ($15,000)per Transfer request. 8.8 Successors and Assig . This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Subject to approval by Agency as to qualifications and financial capabilities of Developer's assignee pursuant to Section 8.5 above, Developer may transfer or assign all or any portion of its interests, rights or obligations under this Agreement to any third party or parties acquiring an interest or estate in the Redevelopment Project or any portion thereof including, without limitation, purchasers or ground lessees of'lots or parcels. ARTICLE IX SECURITY FINANCING AND RIGHTS OF MORTGAGEES 9.1 Subordination. Any lien created or claimed under the provisions of this Agreement shall expressly be made subject and subordinate to the rights of any lender who provides financing to Developer for the acquisition or development of the Conveyed Property(each, a"Mortg agee"). 9.2 Mortgages and Deeds of Trust for Development. Mortgages and deeds of trust, or any other reasonable security instrument, are permitted to be placed upon the Conveyed Property MN1613885 41 for the purpose of securing loans for financing the acquisition.of the Conveyed Property, the design and construction of the Improvements, and any other expenditures necessary for, or incurred in connection with, the development of the Conveyed Property pursuant to this Agreement. As used herein, the terms "Mortgage" shall mean any security instrument used in financing real estate acquisition, construction and land development. 9.3 Holder Not Obligated to Construct. The holder of any Mortgage authorized by this Agreement shall not be obligated to complete construction of the Improvements or to guarantee such completion. Nothing in this,Agreement shall be deemed to permit or authorize any such Mortgagee to devote the Conveyed Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. No Mortgagee of Developer shall become personally liable for the performance or observance of any covenants or conditions to be performed by Developer hereunder unless and until such Mortgagee acquires, Developer's interest in the Conveyed Premises and enters into a new agreement with the Agency. Agency agrees that any such Mortgagee may sell, assign or otherwise dispose of its fee interest hereunder to which it has so succeeded or which it has so acquired. Upon any such sale, assignment or disposition, such Mortgagee shall be released from all obligations and liabilities of Developer whatsoever arising under this Agreement from and after the date of such sale, assignment or disposition provided that the purchaser, assignee, or transferee signs the Assumption Agreement attached hereto as Exhibit 9.3. 9.4 Notice of Default and Right to Cure. Whenever Agency delivers any notice of: (i) default under this Agreement, (ii) a termination of this Agreement, or(iii) a matter on which Agency may predicate or claim a default hereunder, Agency shall concurrently deliver a copy of such notice to each Mortgagee of record. No such notice by Agency to Developer shall be deemed to have been duly given unless and until a copy thereof has been so provided to each Mortgagee of record. In the event of any new Mortgage, the assignment of an existing Mortgage or in the event of a change of address of a Mortgagee or of an assignee of such Mortgagee, notice of the new name and address, as applicable, shall be provided to Agency. Each such Mortgagee shall have the right, but not the obligation, at its option, to cure or remedy any such default or breach within the cure period provided to Developer extended by an additional sixty(60) days. Agency shall accept such performance by or at the instigation of such Mortgagee as if the same had been done by Developer. Developer authorizes each Mortgagee to take any such action at such Mortgagee's option and does hereby authorize entry upon the Conveyed Property by the Mortgagee for such purpose. In the event that possession of the Conveyed Property(or any portion thereof) is required to effectuate such cure or remedy, the Mortgagee shall be deemed to have timely cured or remedied the default if it commences the proceedings necessary to obtain possession of the Conveyed Property or Improvements, as applicable, within sixty(60) days after receipt of the Agency's notice, diligently pursues such proceedings to completion, and after obtaining possession, diligently completes such cure or remedy. A Mortgagee who chooses to exercise its right to cure or remedy a default or breach shall first notify Agency of its intent to exercise such right prior to commencing to cure or remedy such default or breach. Nothing contained in this Agreement shall be deemed to permit or authorize such Mortgagee to undertake or continue the construction of the Redevelopment Project (beyond the extent necessary to conserve or protect the same) without first having expressly assumed in writing Developer's obligations to Agency under this Agreement. The Mortgagee in that event must agree to complete, in the manner provided in this Agreement, the Redevelopment Project and the Improvements and submit evidence reasonably satisfactory to Agency that it has the MN1613885 42 development capability on staff or retainer and the financial capacity necessary to perform such obligations. Any such Mortgagee properly completing the Redevelopment Project pursuant to this Section shall assume all rights and obligations of Developer under,this Agreement and shall be entitled to a Certificate of Completion upon compliance with the requirements of this Agreement. 9.5 Limitations on Termination of the Agreement. Anything contained in this Agreement to the contrary notwithstanding, if any default shall occur which entitles Agency to terminate this Agreement, Agency shall have no right to terminate this Agreement unless, following the expiration of the period of time given Developer to cure such default, Agency shall notify every Mortgagee of record of Agency's intent to so terminate at least 45 days in advance of the proposed effective date of such termination if such default is capable of being cured by the payment of money, and at least 60 days in advance of the proposed effective date of such ten-nination if such default is not capable of being cured by the payment of money(a "Termination Notice"). The provisions of Section 9.6 below shall apply if, during such 45 or 60 day period, any Mortgagee shall: (1) notify.Agency of such Mortgagee's desire to avoid the termination of the Agreement; and (2) pay or cause to be paid all rent, additional rent, and other payments then due and in arrears as specified in the Termination Notice to such Mortgagee and which may become duc during such 30 or 60-day period, and (3), comply or in good faith, with reasonable diligence and continuity, commence to comply with.all nonmonetary requirements of this Agreement then in default and reasonably susceptible of being complied with by such Mortgagee,provided however, that such Mortgagee shall not be required during such 604day period to cure or commence to cure any default consisting of Developer's failure to satisfy and discharge any lien, charge or encumbrance against the Developer's interest in this Agreement or the Conveyed Property junior in priority to the lien of the Mortgage held by such Mortgagee, or any other default that is not reasonably susceptible of being cured without possession of the Conveyed Property. 9.6 Procedure on Default. 9.6.1 If Agency shall elect to terminate this Agreement by reason of any default of Developer, and a Mortgagee shall have proceeded in the manner provided for by Section 9.5 above, the specified date for the termination of this Agreement as fixed by Agency in its Termination Notice shall be extended for a period of six (6) months, provided that such Mortgagee shall, during such six (6) month period: (a) Pay or cause to be paid the rent, additional rent and other monetary obligations of Developer under this Agreement as the same become due, and continue its good faith efforts to perform all of Developer's other obligations under this Agreement, excepting MN161388,5 43 (i) obligations of Developer to satisfy or otherwise discharge any lien, charge or encumbrance against Developer's interest in this Agreement or the Conveyed Property junior in priority to the lien of the Mortgage hold by such Mortgagee, (ii) noninonetary obligations not reasonably susceptible of being cured by such Mortgagee, and (iii) any other default that is not reasonably susceptible of being cured without possession of the Conveyed Property; and (b) if not enjoined or stayed, take steps to acquire or sell Developer's interest in this Agreement by foreclosure of the Mortgage or other appropriate means and prosecute the same to completion with due diligence. 9.6.2 If at the end of such six (6) month period such Mortgagee is complying with Section 9.6.1, this Agreement shall not then terminate, and the time for completion by such Mortgagee of its proceedings shall continue so long as such Mortgagee is enjoined or stayed and for so long as such Mortgagee proceeds to complete steps to acquire or sell Developer's interest in this Agreement by foreclosure of the Mortgage or by other appropriate means with reasonable diligence and continuity. Nothing contained herein shall be construed to require a Mortgagee to continue such foreclosure proceedings after the default has been cured. If the default shall be cured and the Mortgagee shall discontinue such foreclosure proceedings,this Agreement shall continue in full force and effect as if Developer had not defaulted under this Agreement. 9.6.3 If a Mortgagee is complying with Section 9.6.1, upon the acquisition of Developer's fee interest in the Conveyed Property by such Mortgagee or its designee or any other purchaser at a foreclosure sale or otherwise, this Agreement shall continue in full force and effect as if Developer had not defaulted under this Agreement, 9.6.4 For the purposes of this Article IX the making of a Mortgage shall not be deemed to constitute an assignment or transfer of this Agreement, nor shall any Mortgagee, as such, be deemed to be an assignee or transferee of this Agreement, nor shall any Mortgagee, as such, be deemed to be an assignee or transferee of this Agreement so as to require such Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions on the part of the Developer to be performed hereunder, but the purchaser at any sale of the Conveyed Property in any proceedings for the foreclosure of any Mortgage, or the assignee or transferee of this Agreement under any instrument of assignment or transfer in lieu of the foreclosure of any Mortgage shall be deemed to be an'assignee or transferee within the meaning of this Article IX, and shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of the Developer to be performed hereunder from and after the date of such purchase and assignment, but only for so long as such purchaser or assignee is the owner of the Conveyed Property. 9.6.5 Any Mortgagee or other acquirer of the Conveyed Property pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings may,upon acquiring the Conveyed Property, without further consent of Agency, sell and assign the Conveyed Property on such terms and to such persons and organizations as are acceptable to such Mortgagee or acquirer and thereafter be relieved of all obligation sunder this Agreement; provided that such assignee has delivered to Agency its written agreement to be bound by all of the provisions of this Agreement. MN1613885 44 9.6.6 Notwithstanding any other provisions of this Agreement, any sale of the Conveyed Property in any proceedings, for the foreclosure of any Mortgage, or the assignment or transfer of this Agreement in lieu of the foreclosure of any Mortgage shall be deemed to be a permitted sale, transfer or assignment of this Agreement. 9.7 New Agreement. In the event of the termination or rejection of this Agreement as a result of Developer's default, as a result of any election under any laws relating to bankruptcy or insolvency, or as a result of any other cause, Agency shall deliver to each Mortgagee a written notice that the Agreement has been terminated (a"Notice of Termination"). Agency agrees to enter into a new agreement ("New Agreement") with such Mortgagee or its designee upon the terms,, covenants and conditions of this Agreement, provided: 9.7.1 Such Mortgagee shall make written request upon Agency for such New Agreement within 60 days after the date such Mortgagee receives Agency's Notice of Termination. 9.7.2 Any New Agreement made pursuant to this Section 9.7 shall be prior to any Mortgage or other lien, charge or encumbrance on the fee of the Conveyed Property, and the developer under such New Agreement shall have the same right, title and interest in and to the Conveyed Property and the buildings, and improvements thereon as Developer had under this Agreement. 9.73 The developer under any such New Agreement shall be liable to perforrn the obligations imposed on such developer by such New Agreement only during the period such person has ownership of the Conveyed Property. 9.8 New Agreement Priorities. If more than one Mortgagee shall request a New Agreement pursuant to Section 9.7, Agency shall enter into such New Agreement with the Mortgagee whose Mortgage is prior in lien, or with the designee of such Mortgagee, 9.9 Mortgagee Need Not Cure Specified Defaults. Nothing herein contained shall require any Mortgagee or its designee as a condition to its exercise of right hereunder to cure any default of Lessee not reasonably susceptible of being cured by such Mortgagee, in order to exercise any rights available to such Mortgagee hereunder. 9.10 Agency Right to Cure Defaults. In the event of a breach or default by Developer under a Mortgage secured by the Conveyed Property, Agency may cure the default, without acceleration of the subject loan, following prior notice thereof to the Mortgagee of such instrument and Developer. In such event, Developer shall be liable for, and Agency shall be entitled to reimbursement from Developer for all costs and expenses incurred by Agency associated with and attributable to the curing of the default or breach. 9.11 Holder to be Notified. Developer agrees to use best efforts to ensure that each term contained herein dealing with security financing and rights of holders shall be either inserted into the relevant Mortgage or acknowledged by the holder prior to its creating,any security right or interest in the Conveyed Property or the Improvements. MN1613885 45 9.12 Modifications to Agreement. Agency shall not unreasonably withhold its consent to modifications of this Agreement requested by Project lenders or investors provided such modifications do not alter Agency's substantive rights and obligations under this Agreement. 9.13 Estoppel Certificates. Either Party shall, at any time, and from time to time, within fifteen (15) days after receipt of written request from the other Patty, execute and deliver to such Party a written statement certifying that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties (if such be the case); (ii) this Agreement has not been amended or modified, or if so, amended, identifying the amendments; and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing the nature of any such defaults. 9.14 Participation in Insurance and Condemnation Proceedings. It is agreed, notwithstanding any provisions contained in the Agreement to the contrary, that, at all times while a Mortgage remains in effect, all policies of insurance called for in this Agreement or otherwise in effect for the Conveyed Property shall, in addition to any provisions required under this Agreement, contain a standard mortgagee protection endorsement, and the Mortgagee under such Mortgage shall be entitled to hold the originals or certificates of all such policies, Such Mortgagee shall be entitled to participate in the settlement or adjustment of any losses covered by such policies of insurance and no such settlement or adjustment shall be accepted or approved without the specific consent in writing of such Mortgagee. In addition, at all times while a Mortgage remains in effect, the Mortgagee under such Mortgage shall have the right to participate in any settlement of or stipulation of judgment with respect to any condemnation proceeding affecting all or any portion of the Conveyed Property or any agreement to sell all or any portion of the Conveyed Property in lieu of condemnation, and no such settlement, stipulation or agreement shall be made or entered into without such Mortgagee's prior written consent. ARTICLE X DEFAULTS, REMEDIES AND TERMINATION 10.1 [Intentionally Deleted] 10.2 Event of Developer Default. The occurrence of any of the following shall, upon expiration of the applicable cure period, constitute a"Developer Event of Default": 10.2.1 Developer transfers or assigns or attempts to transfer or assign this Agreement or any rights therein or in the Conveyed Property and/or the Improvements in violation of Article VIII; 1 11.2.2 There is a change in the ownership or identity of Developer or the parties in control of Developer or the degree thereof in violation of Article VIII; 10.2.3 Developer does not maintain the necessary equity capital and mortgage financing for the acquisition and development of the Conveyed Property as set forth in the Financing Plan, and fails to cure such default within sixty(60) days following receipt of written notice from Agency; 10.2.4 Following Closing, and prior to the issuance of a Certificate of Completion, a default or breach arises under any loan secured by a mortgage, deed of trust or 1vlN1613885 46 other security instrument recorded against the Conveyed Property or part thereof and remains uncured beyond any applicable cure period such that the holder of such security instrument has exercised or given notice of its intent to exercise the right to accelerate repayment of such loan; 10.2.5 Intentionally deleted. 10.2.6 Following Closing, and after the construction of any improvements has commenced, Developer abandons or suspends construction of any Phase of the Redevelopment Project prior to completion of such Phase of construction, without Agency consent, for a period of one hundred and eighty (180) days, unless such delay or suspension is due to Force Majeure Events as specified in Section 11.2 or due to the written request of City or Agency. 1027 Following Closing, Developer fails to maintain insurance on the Conveyed Property and the Redevelopment Project as required by Article VI and fails to cure such default within ten (10) days following receipt of written notice from Agency, 10.2.8 Following Closing, Developer fails to pay taxes or assessments due on the Conveyed Property or the Redevelopment Project or fails to pay any other charge that may result in a lien on the Conveyed Property or the Redevelopment Project, and Developer fails to cure such default within thirty(30) days following receipt of written notice from Agency; 10.2.9 Any representation or warranty contained in this Agreement or in any financial statement or certificate submitted to Agency in connection with this Agreement is known to Developer to be and proves to have been incorrect in any material and adverse respect when made and continues to be materially adverse to the Agency; 10.2.10 Developer shall have assigned its assets for the benefit of its creditors (other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within sixty(60) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Conveyed Property, in which event such lesser time period shall apply under this subsection as well) or prior to any sooner sale pursuant to such sequestration, attachment, or execution; 10.2.11 A court having jurisdiction shall have made or entered any decree or order (i) adjudging the Developer to be bankrupt or insolvent; (ii) approving as properly filed a petition seeking reorganization of the Developer or seeking any arrangement for either of the Developer under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (iii) appointing a receiver, trustee, liquidator, or assignee of the Developer in bankruptcy or insolvency or for any of its proper-ties; or(iv) directing the winding up or liquidation of the Developer; 10.2.12 If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law rclatin,g to insolvency or relief of debtors ("Bankruptcy Law"), Developer or any general partner thereof(i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Developer or any general partner thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Developer or any general partner thereof, (iv)makes an MN 1613 88 5 47 assignment for the benefit of its creditors; or(v) admits in writing its inability to pay its debts as they become due; 10.2.13 Developer fails to pay when due any sum payable by Developer to City or Agency pursuant to this Agreement, and such failure continues for thirty(30) days after Agency notifies Developer thereof in writing; 10.2„14 Developer shall voluntary suspend its business or shall have been dissolved or terminated; or 10.2.15 Developer defaults, in the performance of any material term, provision, covenant or.agreement contained in this Agreement, other than an obligation enumerated in this Section 10.2, and excluding Developer's failure to perforin the Closing Obligation specified in Section 10.10. Notwithstanding anything to the contrary set forth in this Agreement, the Parties hereby acknowledge and agree that with respect to the Closing Obligation described in Section 10.10 below, the remedies set forth in Section 10.10.2(c) shall be Agency's sole and exclusive remedies, and that Agency shall not have any other remedies set forth in this Article X 10.3 Agency Event of Default. Provided that the Developer has satisfied its obligations hereunder, the following events shall constitute a breach or default by Agency(each, an "Agency Event of Default"): 10.3.1 Agency, without good cause, fails to convey the Conveyed Property to Developer within the time and in the manner set forth in Article IV and Developer is otherwise entitled to such conveyance; or 10.3.2 Agency fails to meet any of its funding obligations under the Agency Phase IC Funding Requirement, including a failure to periodically deliver any funds pursuant to Section 3.4.2 above; or 10.3.3 Agency or City(as applicable) conveys or leases, or attempts to convey or lease, any portion of the City Property to any third party in violation of Developer's Right of First Refusal as set forth in Section 2.5; or 10.3.4 Agency breaches any other material provision of this Agreement and fails to cure such breach within any applicable cure period. 10.4 Notice; Cure of Default. In the event of an alleged default or breach of any of the terms or conditions of this Agreement (other than the Closing Obligation), the Party alleging such default or breach shall give the other Party notice in writing specifying the nature of the alleged default and the manner in which the default may be satisfactorily cured. The notice shall specify a reasonable period of time in which to cure,that shall in no event be less than thirty(30) days in the event of a monetary default or sixty(60) days,in the event of a nonnionetary default (unless a shorter cure period is specified in Section 10.2 above); provided,however, that or if the default is of a nature that it cannot reasonably be cured within sixty(60) days, an Event of Default shall not arise hereunder if the defaulting Party commences to cure the default within sixty(60) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion and in no event later than one hundred twenty (120) days after receipt of notice of the default. 1' N161388,5 48 Delay in giving such notice shall not constitute a waiver of any default or of any such rights or remedies or deprive such Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies; provided, however, that in no event shall the injured Party terminate this Agreement or institute any legal proceeding against the Party in default without provision of notice of default and expiration of the applicable cure period. 10.5 Right to Terminate Agreement. If an Event of Default shall occur and be continuing beyond any applicable cure period, then the non-defaulting Party shall, in addition to other rights available to it under law or this Agreement,have the right to terminate this Agreement and the rights of the defaulting Party and its assignees hereunder. If the non-defaulting Party makes such election, that Party shall give written notice to the defaulting Party and, if such notice is provided to Developer, to any Mortgagee entitled to such notice, specifying the nature of the default and stating that this Agreement shall expire and terminate on the date specified in such notice, and upon the date specified in the notice, this Agreement and all rights of the defaulting Party under this Agreement, shall expire and terminate, except for such matters that expressly survive the termination of this Agreement. 10.6 Remedies•, Specific Performance; Limitation on Damages. 10.6.1 Agency's Rights. Upon the occurrence of a Developer Event of Default and the expiration of any applicable cure period, Agency shall have the right, in addition to any other rights or remedies,provided in this Agreement and subject to any applicable restrictions set forth in this Agreement, to institute an action in accordance with Section 10.15 to seek specific performance of the terms of this Agreement, or to cure, correct,prevent or remedy any default, or to recover damages, or to obtain any other remedy available to Agency at law or in equity consistent with the purpose of this Agreement; provided, however, (i)Agency acknowledges and agrees that the remedies set forth in Section 10.10.2 are Agency's sole remedies for Developer's failure to perform the Closing Obligation, as defined in Section 10.10.1, (ii) Agency may exercise the Repurchase Option(defined below) only under the conditions set forth in Section 10.12, and (iii) Developer shall not be liable for any consequential or incidental damages. 10.6.2 Developer's Fights. Upon the occurrence of an Agency Event of Default and the expiration of any applicable cure period, Developer shall have the right, in addition to any other rights Or remedies provided in this Agreement and subject to any applicable restrictions set forth in this Agreement, to institute an action in accordance with Section 10,15 to seek specific performance of the terms of this Agreement, to cure, correct,prevent or remedy any default, or to recover damages, or to obtain any other remedy available to Developer at law or in equity. Upon the occurrence of a City Event of Default and the expiration of any applicable cure period, the sole remedy available to Developer against the City shall be specific performance. For purposes of this paragraph only, the successful party in such action shall be entitled to recover from the unsuccessful party all costs, expenses and reasonably attorneys fees incurred by the prevailing party in the enforcement proceeding. MN1613885 49 10.7 Remedies Cumulative. Subject to the limitations set forth in Section 10.6, the rights and remedies of the parties under this Agreement shall be cumulative, and the exercise or failure to exercise one or more of such rights or remedies by either Party will not preclude the exercise by it, at the same time or different times, of any right or remedy for the same default or any other default. 10.8 [Intentionally Deleted] 10.9 Inaction Not a Waiver of Default. No failure or delay by either Party in asserting any of its rights or remedies under this Agreement shall operate as a waiver of any default or of any such right or remedy, nor deprive such Party of its right to institute and maintain any action or proceeding which it may deem necessary to protect, assert or enforce any such rights or remedies. Without limiting the generality of the foregoing, the failure or delay by either Party in providing a notice of default shall not constitute a waiver of any default. 10.10 Termination ofDDA.....Disposition of King Property. 10.10,1 Developer Obligation at Horizon Date. By no later than May 29, 2018 (ix., the ninth(91h) anniversary of the Commencement Date of the]'MOD and hereafter, the "Horizon Date"), Developer shall accept the conveyance of the Conveyed Property pursuant to Article IV (the"'Closing Obligation"); provided, however, that Developer shall not be required to complete the Closing Obligation and shall not be in default of this Agreement if such failure results from the failure of a condition precedent, a Force Majeure Fvent, or the default on the part of Agency or City of the terms set forth in this Agreement. 10.10.2 Agency Remedies. (a) If Developer does not perform the Closing Obligation by the Horizon Date, Agency may(but shall not be obligated to) give to Developer a formal written notice of intent to terminate this Agreement ("Notice of Intent to Terminate"), and after giving such notice, shall have the right to exercise the remedies set forth in subsection(c)below. (b) If Agency provides a Notice of Intent to Terminate, Developer shall have one year from the date of delivery of such notice to complete the Closing Obligation; provided, however,that Developer shall not be in default of this Agreement if such failure results from the failure of a condition precedent, a Force Majeure Event, or the default on the part of Agency or City of the terms set forth in this Agreement., (c) If Developer has not completed the Closing Obligation at the end of the one-year period following delivery of the Notice of Intent to Terminate, Agency may, but shall not be obligated to take both of the following actions (provided, however, that if Agency elects to take the action described in clause (i), it must also take the action described in clause (ii))�: (i) Terminate this Agreement; and (ii) Purchase for all cash the King Leases and entitlements for the Redevelopment Project at a fixed price of Seven Million Five Hundred Thousand Dollars ($7,500,000) (the ",King Lease Purchase Price"); provided, however, the King Lease Purchase Price shall be reduced by the sum o f Fi ve Hundred Thousand Dollars ($'500,000) per year for each MN1613885 50 year commencing May 29, 2016 (i.e., the seventh (7th) anniversary of the Commencement Date of the MOU) that Developer has failed to complete all of the actions identified in Section 10.1 0.2(b) up to a maximum reduction of One Million Five Hundred Thousand Dollars ($1,500,000). If Agency exercises the option set forth in this paragraph, Developer shall convey Developer's interest in the King Leases and the King Lease Property within sixty(60) days following Agency's delivery of notice of its exercise of the option in accordance with the provisions of this paragraph and Sections 4.4 through 4.7 above. 10.11 Effect of Termination. The termination of this Agreement, in part or in whole, shall not affect the rights or obligations of Developer or City under the separate Development Agreement covering the Developer Property. 10,12 Option to Purchase, Enter and Possess,. The Agency shall have the additional right at its option, following expiration of the notice and cure period described in Section 10.4, and in accordance with the dispute resolution procedures in Section 10,15, to purchase, enter and take possession of the Conveyed Property with all improvements thereon (the"Repurchase Option"), if after Closing, Developer(i) fails to begin construction of the Redevelopment Project within the time specified in Section 6.4 as such date may be extended pursuant to the terms hereof, and after written notice from Agency, (ii) abandons or suspends construction of the Redevelopment Project for a period of one hundred eighty(180) days after written notice from Agency; or(iii) directly or indirectly, voluntarily or involuntarily Transfers the Conveyed Property or this Agreement in violation of Article VIII. 10.12.'.1 To exercise the Repurchase Option, the Agency shall pay to the Developer cash in an amount equal to: (a) The purchase price paid to the Agency by the Developer,for the Conveyed Property; plus (b) The fair market value of any new improvements constructed by Developer and existing on the Conveyed Property at the time of exercise of the Option; less (c) Any gains or income withdrawn or made by the Developer from the applicable portion of the Conveyed Property or the improvements thereon; less (d) The value of any liens or encumbrances on the applicable portion of the Conveyed Property which the Agency assumes or takes subject to. 10.12.2 In order to exercise the Repurchase Option, Agency shall give Developer notice of such exercise, and Developer shall, within thirty(30) days after receipt of such notice, provide Agency with a summary of all of Developer's costs incurred as described in this Section. Within thirty(30) days of Agency's receipt of such summary, Agency shall pay into an escrow established for such purpose cash in the amount of all sums owing pursuant to this Section 10.12, and Developer shall execute and deposit into such escrow a grant deed transferring to Agency all of Developer's interest in the Conveyed Property, or portion thereof, as applicable and the improvements located thereon. MN1613885 51 10.13 Memorandum of Option to Purchase. The parties shall cause a memorandum or memoranda of the rights granted the Agency in Section 10,12 of this Agreement to be recorded in the Official Records at the time of the Close of Escrow for conveyance of the Conveyed Property to Developer. In lieu of such memorandum, in Agency's discretion, the rights afforded Agency pursuant to Section 10.12 maybe described in the Grant Deed. The Agency will not withhold consent to reasonable requests for subordination of the Repurchase^Option to deeds of trust provided for the benefit of construction lenders identified in the Financing Plan provided that the instruments effecting such subordination include reasonable protections to the Agency in the event of default, including without limitation, extended notice and cure rights. 10.14 rights of Mortgagee . Any rights of Agency under this Article X shall not defeat, limit or render invalid any mortgage or deed of trust permitted by this Agreement or any rights, provided for in this Agreement for the protection of holders of such instruments. 1 0.15 DiTiatq§. 10.15.1 Dispute Resolution. In the event of any dispute arising out of or relating to this Agreement, other than (i) disputes arising out of Developer's Right of First Refusal as provided for in Section 2.5, (ii) those disputes in which the complaining party is seeking to terminate the Agreement, or(iii) disputes brought by Developer, the City or Agency in connection with any obligations that are enforceable only by a court of law (e.g., a writ of mandate), the dispute shall be submitted to binding expedited arbitration pursuant to the procedures set forth in Exhibit 10.15.1. The Arbitrator(as defined in Exhibit 10.15.1) shall dismiss any matter seeking to terminate the Agreement or disputes brought by Developer in connection with any obligations that are enforceable only by a court of law. NOTICE: BY SIGNING IN THE SPACE BELOW, DEVELOPER AND AGENCY ARE AGREEING TO HAVE ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY NEUTRAL ARBITRATION. THE PARTIES ARE GIVING UP ANY RIGHTS THEY MIGHT POSSESS TO HAVE DISPUTES LITIGATED IN A COURT OR JURY TRIAL, AND JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF AGENCY OR DEVELOPER REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE BY LAW. AGENCY'S AND DEVELOPER'S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. THE PARTIES HAVE READ AND UNDERSTAND THE ABOVE AND AGREE TO SUBMIT TO NEUTRAL ARBITRATION UNDER THIS SECTION. BY SIGNING BELOW, THE PARTIES AGREE THAT THEY SHALL NOT RAISE ANY OBJECTION TO THE ENFORCEMENT OF SUCH ARBITRATION PROVISIONS OF THIS AGREEMENT, BASED UPON ANY PURPORTED LACK OF AUTHORITY TO ENTER INTO SUCH AGREEMENT OR OTHERWISE. By Agency: By Develop: Name A()tA, Name: MN1613885 52 Title. "...y Title: V fl Date: Gate: 3 —7'3 �1 B Cites Name: Title. -1 Date: , 10.15.2 Enforcement of Arbitration. The judgment of the arbitrator may be entered and enforced in the Superior Court of San Mateo County, California. Any legal action to compel either Party to submit to binding arbitration, and any other legal action brought pursuant to this Section 10.15, shall be instituted exclusively in the Superior Court of San Mateo County, California. 10..15.3 Liti a�tioru. Any legal action brought pursuant to this Section 10.15 shall be instituted exclusively in the Superior Court of San Mateo County, California and both parties expressly consent to the jurisdiction of such court. 10.15.4 Service of Process. In the event that any legal action is commenced by Developer against Agency, service of process on Agency will be made by personal service upon the Clerk of the Agency or in such other manner as may be provided by law. In the event that any legal action is commenced by Agency against Developer, service of process on Developer will be made by personal service upon Developer's agent for service of process of Developer at the address listed in Section 11.3 herein or in such other manner as may be provided by law. ARTICLE XI MISCELLANEOUS PROVISIONS I L I No brokers. Each Party warrants and represents to the other that no person or entity can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other compensation with respect to the transactions contemplated by this Agreement. Each Party agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs or liabilities arising in connection with a breach of this warranty and representation. The terms of this Section shall survive the close of escrow and the expiration or earlier,termination of'this Agreement. 11.2 Enforced Delay; Extension of Times of Performance. 11.2.1 Subject to the limitations set forth below,performance by either Party shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended where delays are due to the following events (each a"Force Ma jeure Event"): war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight lw/IN1613885 5,3, embargoes, governmental restrictions or priority, litigation, including court delays, unusually severe weather, acts or omissions of the other Party, acts or failures to act of City or any other public or governmental agency or entity(other than the acts or failures to act of Agency or City as required in this Agreement), failure by City or any agency or entity with jurisdiction over the Marina Property to approve or issue any entitlements, permits, licenses or approvals required for the construction of any Improvements contemplated herein, or any other cause beyond the affected Party's reasonable control. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause and such extension is not rejected in writing by the other Party within ten(10) days of receipt of the notice. Neither Party shall unreasonably withhold consent to an extension of time pursuant to this Section. 11.2.2 Times of performance under this Agreement may also be extended in writing by the mutual agreement of Developer and Agency (acting in the discretion of its Executive Director unless he or she determines in his or her discretion to refer such matter to the governing board of the Agency). Agency and Developer acknowledge that adverse changes in economic conditions, either of the affected Party specifically or the economy generally, changes in market conditions,or demand, and/or inability to obtain financing to complete the Redevelopment Project shall not constitute grounds of enforced delay pursuant to this Section. Each Party expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Effective Date. 11.3 Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Parties,in accordance with this Section. All such notices shall be sent by: 11.3.1 personal delivery, in which case notice is effective upon delivery; 11.3.2 certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt, 11.3.3 nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; 11.3.4 facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that(a) a duplicate copy of the notice is promptly delivered by first- class or certified mail or by overnight delivery, or(b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 pm, recipient's time or on a nonbusiness day. MN16,13885 54 If to Agency, to: Community Development Director City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Phone: (650) 829-6629 Fax: (650) 829-6623 With a Copy to: Meyers Nave 575 Market Street, Suite 2600 San Francisco, CA 94105 Attn: Steven T. Mattas, Agency Attorney Phone: (415)421-3711 Fax: (415) 421-3767 If to Developer, to: SRI Nine Oyster Point LLC 235 Montgomery Street, 16th Floor San Francisco, CA 94104 Attn: Corporate Secretary Phone: (415) 772-7069 Fax: (415) 772-7148 With Copies to: SRI Nine Oyster Point LLC 235 Montgomery Street, 16th Floor San Francisco, CA 94104 Attn: Todd Sklar Phone: (415) 772-7069 Fax: (415) 772-71,48 Oyster Point Ventures LLC 601 California Street, Suite 1310 San Francisco, CA 94108 Attn: Dan Kingsley Phone: (415) 421-8200 Fax: (415) 421-8201 Morrison & Fo,erster LLP 425 Market Street San Francisco, CA 94105 Attn: Zane Gresham Phone: (415) 268-7000 Fax: (415) 260-7522 11.4 Attorneys' Fees. If either Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof,then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' MN1613885 55 fees and disbursements. Any suchattorneys' fees and other expenses incurred by either party in enforcing a judgment in its favor under this Agreement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment. 11.5 Waivers-, Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver, shall be valid unless in writing and executed by the waiving Party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties. 11.6 Binding on Successors. Subject to the restrictions on Transfers set forth in Article VIII. this Agreement shall bind and inure to the benefit of the Parties and their,respective permitted successors and assigns. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement or under law. 11.7 No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective permitted successors and assigns, any rights or remedies hereunder. 11.8 Survival. All representations made by Developer hereunder and all obligations by either party to indemnify the other Party shall survive the expiration or termination of this Agreement and the issuance and recordation of a Certificate of Completion. None of the provisions, terms, representations, warranties and covenants of this Agreement are intended to or shall be merged by any grant deed conveying the Conveyed Property to Developer or any successor in interest, and neither such grant deed nor any other document shall affect or impair the provisions, terms, representations, warranties and covenants contained herein. 11.9 Construction. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. 11.1 0 Action or Approval. Whenever action and/or approval by Agency is required under this Agreement,Agency's Executive Director or his or her designee may act on and/or approve such matter unless specifically provided otherwise, or unless the Agency Executive Director determines in his or her discretion that such action or approval requires referral to Agency's Board for consideration. 11.11 Entire Agreement. This Agreement,including Exhibits A through Exhibit 10.15.1 attached hereto and incorporated herein by this reference, together with the other Agency MN1613885 56 Documents contains the entire agreement between the Parties with respect to the subject matter, hereof, and supersedes all prior written or oral agreements,understandings, representations or statements between the Parties with respect to the subject matter hereof. 11.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto having additional signature pages executed by the other Party. Any executed counterpart of this Agreement may be delivered to the other Party by facsimile and shall be deemed as binding as if an originally signed counterpart was delivered. 11.13 Severability. If any term,provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability. 11.14 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. 11.15 Non-Li ability of Officials, Employees and Agents. No officer, official, employee or agent of Agency or City shall be personally liable to Developer or its successors in interest in the event of any default or breach by Agency or for any amount which may become due to Developer or its successors in interest pursuant to this Agreement. 11.16 Time of the Essence; Calculation of Time Periods. Time is of the essence for each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included,unless such last day is not a business day, in which event the period shall run until the next business day. The final day of any such period shall be deemed to end at 5:00 pm., local time at the Conveyed Property. For purposes of this Agreement, a"business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday under the laws of California. 11,17 Governing Lave. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. 11.18 Cooperation. Prior to Closing, the Parties shall cooperate and do all acts as may be reasonably required or requested by the other in order to revise any legal descriptions attached hereto in order to create insurable legal descriptions that are satisfactory to the Title Company. SIGNATURES ON FOLLOWING PAGES MN1613885 57 IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first written above. DEVELOPER AGENCY OYSTER POINT VENTURES LLC, REDEVELOPMENT AGENCY OF THE a Delaware limited liability company CITY OF SOUTH SAN FRANCISCO, By-, SRI Nine Oyster Point LLC, a pu a Delaware limited liability company, Y., its Managing Member B By: Name: Executive(-Director Name: Its:- ATTEST: By: By: SIBS Oyster Point, LLC, cc n cc a Delaware limited liability company, its Member n �4 By- APPROV I AS T FORM: Name: jurz'--' By: A -2- TIL Agency G06�raj Counsel Its: & MN1613885 58 CITY CITY OF SOUTH SAN FRANCISCO, a municipal corporation B City Ma'-nager ATTEST:,,-, it&1e APPROVED AS T FORM.- By: City Attome 1615523,1 Mai 1613885 59 EXHIBITS TO DISPOSITION AND DEVELOPMENT AGREEMENT by and among THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO and OYSTER POINT VENTURES, LLC and THE CITY OF SOUTH SAN FRANCISCO MN1615727.1 I List of Exhibits Exhibit A-1: Ma p Identif and Business Park Propert ying Marina Pia A-2: Map Identifying Conveyed Property, City Property, and Developer Pro pert Exhibit B: Legal Description of Conveyed Property Exhibit C: King Lease Pro pert Exhibit 2.2: Fortin of Memorandum of Disposition and Development Affeement Exhibit 2.5.1: Description of Property Subject to Developer's Right of First Refusal Exhibit 2.5.3: Memorandum of Right of First Refusal Exhibit 3.2A: Description of Phases of Redevelopment Project Exhibit 3.213: Estimated Project Schedule Exhibit 3.2;.1: Phase IC Site and Infrastructure Improvements. Description and Cost Exhibit 3.2.2: Phase ID Site and Infrastructure Improvements: Description and Cost Exhibit 3.3.1: Phase IID, ITID, and IVD Site and Infrastructure Improvements: Descdption and Cost Exhibit 3.3.2. Phase IIC Site and Infrastructure Improvements: Description and Cost Exhibit 3A.1: Redevelopment Project Cost Allocation Exhibit 3.4.2: Form of Escrow Holdback Ageement Exhibit 4.1: Form of Amendment to the Joint Powers Agreement Between the San Mateo CountY Harbor District and the City of South San Francisco Exhibit 4.6A: Form of Grant Deed Exhibit 4.6B: Form of AssigLiment and Assuan tion of the King Lease Exhibit 4.6.1A: Form of Bill of Sale Exhibit 4.6.1.B: Form of Assig=ent of Intangible-.,Pro pert Exhibit 4.6.1 C: Form of FIRPTA Affidavit Exhibit 4.8.2: Service Contracts .Exhibit 4.8.8: Pre-Existing Environmental Conditions Exhibit 4.9.1: Form of Title Policies Exhibit 6.10.1: Form of Certificate of Completion Exhibit 6.11.1: Legal Description and-,Dgpiction of Dedicated Property Exhibit 9.3: Assumption Agreement MN1615727.1 2 Exhibit IO...l 5.1: Expedited Arbitration Procedures MN1615727.1 3 Exhibit A-1 Mqp Identifyi :.ng-M aria.Property and Business Park Propqqy M-N1615727.1 4 —.. LU d ? LU aH +I +1 41 +t +r � -H -H +r -H -H -H -H ,. C? ®: w CSa er «+ SL7 y I <i' Grd S4 ': r v m c zs is cn o I eu ca us r ire 7 4 a rc CU M,M _1 0 c5� c c C� cv LU ca 4.y cal 7I � w cs cis w ca c� q� •. �,, Lu t.71 " w YWA ae W , i r ca ' LLI LIN LU sc sc A �,•" � t71e°4lFI LNIOa32fH.C5a4t7 Wco a �� sL i Exhibit A-2 Mg p Identif ying Conveyed Property, City Property, and Developer Propgfty 1v N1615727.1 5 X ,` j Li X1`4\iy.J'14 �� ' a�� w � ate-- w�-: O �,�',y�'^� ,�,A*�.t w", *,,w "�"*, e.""•ti'"R y,". •w"""`,w L n —,_ Cd Con ? q " n � V,e-4 > lull m� F-r w w w Cy d 7 cn <ce _., Con f � " s w ry a N Exhibit B Legal Description of Conveyed,,.Propert MN1615727.1 6 CONVEYED YED PROPERTY ALL THAT REAL PROPERTY LOCATED IN'THE CITY OF SOUTH SAN FRANC ISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA. THE BELOW DESCRIBED PARCEL CONSISTING OF THREE SEPARATE PARCELS; SAID PARCEL BEING A PORTION OF OYSTER POINT BOULEVARD, MARINA BOULEVARD, AND A PORTION OF PARCELS A, B, C, D, AND A PORTION OF THE REMAINDER PARCEL.AS SHOWN ON THE PARCEL MAP RECORDED AT BOOK 55 AT PAGES 61 THROUGH 64 IN THE RECORDS OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA. . SAID PARCEL IS ALSO A PORTION OF PARCEL A AND A PORTION OF GULL DRIVE AS SHOWN ON PARCEL MAP'RECORDED IN BOOK 72 AT PAGES 6, 7 AND 8 IN THE RECORDS OF THE COUNTY"OF SAN MATEO, STATE OF CALIFORNIA. SAID PARCEL MORE PARTICULAR DESCRIBED AS FOLLOWS: PARCEL I OF 3 BEGINNING AT A POINT AT THE SOUTH EAST CORNER OF PARCEL 4 AND THE SOUTH WEST CORNIER OF PARCEL 3,AS RECORDED IN BOOK 52 AT PAGES 58 AND 59 OF THE RECORDS OF SAN MATEO COUNTY CALIFORNIA" THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 4 AND ITS PROLONGATION 1)S89°59' 36"W FOR 327.72 FEET; 2)THENCE..S01°24"26"E FOR 28.57 FEET; 3)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT'HAVING A RADIUS OF 949.00 FEET AND A CENTRAL ANGLE OF 410 54'50"FROM WHICH THE RADIUS POINT BEARS N88°49' 12"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 694.23 FEET, 4)THENCE S46°40"44"W FOR 3.54 FEET, 5)THENCE'TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 952.50 FEET AND A CENTRAL ANGLE OF 260 28'51"'FROM WHICH THE RADIUS POINT BEARS S70!*45" 2 "E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 440.22 FEET, 6)THENCE S00°45' 17"W FOR 169.54 FEET.TO A POINT AND TIME TRUE POINT OF BEGINNING 1)THENCE S89° 55" 6"W FOR 737.35 FEET TO A POINT ON THE EASTERLY SIDE OF GULL DRIVE AND AT THE SOUTH WEST CORNER OF PARCEL A AS RECORDED IN BOOK 72 OF PARCEL MAPS AT PAGE 7.THENCE NORTHERLY ALONG SAID GULL DRIVE Page I 2)THENCE N01° 39"45"E FOR 27.23 FEET; 3)THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 520.55 FEET AND A CENTRAL ANGLE OF 370 40'44" FOR AN ARC LENGTH OF 342.32 FEET, SAID CURVE HAVING A CHORD REARING OF N170 10'37'W FOR 336.19 FEET; 4)THENCE N36a 00"59"WW FOR 111.60 FEET; 5) THENCE N37- 35"4T W FOR 95.40 FEET; )THENCE TO THE BEGINNING FLINT OF A CURVE TO THE FIGHT HAVING A RADIUS OF 65.40 FEET AND A CENTRAL ANGLE OF 18" 11"27"FROM WHICH THE RADIUS POINT BEARS N700 36" 44"E, THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 21.72 FEET, SAID CURVE HAVING A CHORD BEARING OF N101' 17'32'W FOR 21.63 FEET; 7)THENCE S85°46'55"'E FOR 254.12 FEET; 8)THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 754.00 FEET AND A CENTRAL ANGLE OF 32'0 35'48"FOR AN ARC LENGTH OF 428.96 FEET, SAID CURVE HAVING A CHORD BEARING OF N770 55" 12"E FOR 423.201 FEET; 9)THENCE N61°37" 17"E FOR 14.42 FEET; 10)THENCE TO,THE BEGINNING POINT OF A CURVE TO THE RIGHT HA'W'ING A RADIUS OF 24.00 FEET AND A CENTRAL ANGLE OF 700 50'44"FROM W4lHiICH THE RADIUS POINT BEARS 5280 22" 42"'E,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 29.68 FEET, SAID CURVE HAVING A CHORD BEARING OF S82"57'20"E FOR 27.82 FEET; 11)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 952.501 FEET AND A CENTRAL ANGLE OF 22° 16'08"FROM WHICH THE RADIUS POINT BEARS N420 28' 01"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 370,20 FEET, SAID CURVE HAVING A CHORD BEARING OF S58*40'03"E FOR 367.88 FEET„ 12)THENCE S20° 54' 17"W FOR 74.52 FEET; 13)THENCE TO THE BEGINNING POINT OF A CUR'V'E TO THE LEFT HAVING A RADIUS OF 526.93 FEET AND A CENTRAL ANGLE OF 190 39" 18"FROM WHICH THE RADIUS POINT BEARS 700 45' 23"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 180.76 FEET, SAID CURVE HAVING A CHORD BEARING OF SO9'24"58'"WW FOR 179.87 FEET; 14)THENCE SOO"'45" 17""WV FOR 169.54 FEET, TO THE TRUE POINT OF BEGINNING, THE AREA BEING 10.07 ACRES. PARCEL 2 OF 3 BEGINNING AT A POINT AT THE SOUTH EAST CORNER OF PARCEL 4 AND THE SOUTH WEST CORNER OF PARCEL 3 AS RECORDED IN BOOK 52 AT PAGES 58 AND 59 OF THE RECORDS OF SAN MATEO COUNTY CALIFORNIA,THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 4 AND ITS PROLONGATION Page 2 $80" 50' 36V FOR 327.72 FEET TO THE TRUE POINT OF BEGINNING 1)THENCE S01"24'26"E FOR 28.57 FEET; 2)THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 949.00 FEET AND A CENTRAL ANGLE OF 36"40"32"FOR AN ARC LENGTH OF 607.46 FEET, SAID CURVE HAVING A CHORD BEARING OF S19"44'42"E FOR 597.14 FEET; 3)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 24.00 FEET AND A CENTRAL ANGLE OF 101"4603" FROM WHICH THE RADIUS POINT BEARS S51" 55' 03"W,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 42.62 FEET, SAID CURVE HAVING A CHORD BEARING OF 8120 47'35"W FOR 37.24 FEET; 4)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING;A RADIUS OF 646.00 FEET AND A CENTRAL ANGLE OF 30" 32'59"FROM WHICH THE RADIUS POINT BEARS N26" 19' 53"W,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 344.44 FEET, SAID CURVE HAVING A CHORD BEARING OF 878°56'36'W FOR 340.35 FEET; 5)THENCE N85"46-:55-W FOR 327,57 FEET, 6)THENCE N00" 39'36"E FOR 21.92 FEET; 7) THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 365.63, FEET AND A CENTRAL ANGLE OF 06"04'37"FROM WHICH THE RADIUS POINT BEARS N15" 01" 45"'WW"THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 40.92 FEET, SAID CURVE HAVING A CHORD BEARING OF N71" 55''56"'E FOR 40.90 FEET; 8)THENCE S63"09"49"E FOR 5.95 FEET'; 9)THENCE N55"57'31"E FOR 133.63 FEET; 10)THENCE N40"57"35"E FOR 164.01 FEET; 11)THENCE N34"49'05"E FOR 94.14 FEET; 12)THENCE N46"03'23"E FOR 112.47 FEET, 13)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2.39.17 FEET AND A CENTRAL ANGLE OF 01"40' 18"FROM WHICH THE RADIUS POINT BEARS S43"52" 16"E,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 6.98 FEET, SAID CURVE HAVING A CHORD BEARING OF N460 57'53"E FOR 6.98 FEET 14)THENCE N00"00"49"WV FOR 277.41 FEET; 15)THENCE N89"59"37"E FOR 64.09 FEET„ TO THE TRUE POINT OF BEGINNING,. THE AREA BEING 3.993 ACRES. Page 3 PARCEL 3 OF 3 BEGINNING AT A POINT AT THE SOUTH EAST CORNER OF PARCEL 4 AS SHOWN ON THE PARCEL MAP RECORDED IN BOOK 52 AT PAGE 59 OF THE RECORDS OF SAN MATEO COUNTY„ CALIFORNIA 1)THENCE SOO'00" 55"E FOR 16.61 FEET, 2)THENCE S89' 59'05'W FOR 18.77 FEET; 3)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 5.00 FEET AND A CENTRAL,.ANGLE OF 87"02"04"FROM WHICH THE RADIUS POINT BEARS N87"03, 01"W',THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 7.60 FEET, SAID CURVE HAVING A CHORD BEARING OF 5466 28'01"W FOR 6.89 FEET, 4)THENCE S02' 57'02"W FOR 12.14 FEET, 5)THENCE S22°32'46"W FOR 26.79 FEET, 6)THENCE Say° IT 28"W FOR 16.62 FEET; 7)THENCE S14°33'2Z WI,!FOR 18.66 FEET; 8)THENCE$'07°07'20"W FOR 46.52 FEET, 9)THENCE 802"39' 54"E FOR 26.13 FEET; 10)THENCE S11'° 2T 65"E FOR 9.33 FEET; 11)THENCE $03°55' 51"W FOR 16.94 FEET; 12)THENCE S15° 09'09"'WW FOR 13.90 FEET;. 13)THENCE S07"33'30-W FOR 7.72 FEET; 14)THENCE 831- 12"57"W FOR 14.75 FEET, 15)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 12.00 FEET AND A CENTRAL ANGLE OF 99" 15"1 FROM WHICH THE RADIUS POINT BEARS 5580 47' 02"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 20.79 FEET„ SAID CURVE HAVING A CHORD BEARING OF 518"24'37"E FOR 18.28 FEET; 1'6)THENCE S68"02" 11"E FOR 4.44,FEET, 17)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 6,73 FEET AND A CENTRAL ANGLE OF 57°05'06"FROM WHICH THE RADIUS POINT BEARS$33"25" 3T W,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 6.71 FEET, SAID CURVE HAVING A CHORD BEARING OF S280 01'56"E FOR 6.43 FEET, 18)THENCE S10° 34'26-E FOR 6.58 FEET, 19)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 89.35 FEET AND A CENTRAL ANGLE OF 34"25' 13" FROM WHICH THE RADIUS POINT BEARS N890 41'' 32"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 53,68 FEET, SAID CURVE HAVING A CHORD BEARING OF 5170 31'04"E FOR 52.87 FEET" Page 4 20j THENCE 833°05'28"E FOR 51,02 FEET; 21)THENCE S30° 08'44"E FOR 51.48 FEET; 22)THENCE S39° 10'44"E FOR 68.51 FEET; 23)THENCE S36"43'24"E FOR 31.32 FEET; 24)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 290.17 FEET AND A CENTRAL ANGLE OF 44" 11'01"'FROM WHICH THE RADIUS POINT BEARS N560 01' 3 "E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 223.76 FEET, SAID CURVE HAVING A CHORD BEARING:,OF 5560 03'52"E FOR 218.26 FEET, 25)THENCE S81°27'48"E FOR 127.43 FEET; 26)THENCE'TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 15K60 FEET AND A CENTRAL ANGLE OF 05° 19'25"FROM WHICH THE RADIUS POINT BEARS N050 19' 30"E, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 1'44.08 FEET„ SAID CURVE HAVING A CHORD BEARINGS OF S87"20' 13"E FOR 144.02 FEET, 27)THENCE S07"36"22"W FOR 236.51 FEET; 28)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 856.00 FEET AND A CENTRAL ANGLE OF 12"03"11"FROM WHICH THE RADIUS POINT BEARS N07° 36'22"E, THENCE RIGHT ALONG,SAID CURVE FOR AN ARC LENGTH OF 180,07 FEET, SAID CURVE HAVING A CHORD BEARING OF N760 22'03"W FOR 179.74 FEET; 29)THENCE N20" 13'04"E FOR 20.00,FEET; 30)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 836.00 FEET AND A CENTRAL ANGLE OF 68°56'49" FROM WHICH THE RADIUS POINT BEARS N'19° 38"46"E„THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 1006..00 FEET, SAID CURVE HAVING A CHORD BEARING OF N350 52' 51"W FOR 846.39 FEET; 31)THENCE N01-24' 5"W FOR 25.81 FEET; to a point can the south side of said parcel 2)THENCE N89"59'36"E FOR 214.69 FEET,TO A POINT AT THE SOUTH EAST CORNER OF SAID PARCEL 4 AND THE TRUE POINT OF BEGINNING, THE AREA BEING 3.932 ACRES.. LEGAL DESCRIPTION PREPARED, BY KENNETH P. MOORE PLS 4918 EXPIRES 12-31-112 DATE 3-110-11 Page 5 ti WesCL ' J ,ter _ a Q Z w m as ! C6 cn ca w r ti z P c � sas w a` Li a era o � 1 n: r an �,�,° IY o C �tCA, f "t, a .... Cie n�. , ta8ur�nrlel'VYw1'&C=4p�t91 I.R-tt�Ch+P"5"1.3�kMdR730. 'J 490�1't�LlsfiJ.lQiHX3+ u�.w��p AaNrvr aal�eNd4r�'��+�5l�lt'�a!M���a�a�IU?ad+�I�Kq SPU�6�381.%IU�twlsunul SNS-€o965.$. Exhibit C King Lease Property Terminated wing Leases Description Recording Recording Date No, Parcel B Ground Lease and related documents Lease between the San Mateo County Harbor District, as N/A N/A lessor, and Oyster Point Village, Ltd., as lessee, dated January 3, 1985, including the following Exhibits attached thereto: • Exhibit A: Legal description and drawing of Parcel B; • Exhibit B: Design Criteria for Construction by Lessees of the San.Mateo County harbor District- 1980; and • Exhibit C: Oyster Point Marina Specific Plan,dated September 1983, as approved by the City of South San Francisco on September 7, 1983, Resolution 124-83. Abstract of the Ground Lease between San Mateo April 10, 87052593 County Harbor District, as lessor, and Oyster Point 1987 Village, Ltd., as lessee, dated Januarys 3, 1985. South San Francisco Parr Recreation and Parkway December,27, 85/38852 District City of South San Francisco, State of California, 1985 85138854 Resolution No. RPD-5 approving Amendment to Oyster 85138855 Point Marina Leases, dated October 23, 1985. and Amendment to Leasehold Agreements for Parcels B and D at Oyster Point Marina/Park. Assignment of Lease between Oyster Point Village, Ltd., August 29, 891.13866 as assignor, and Chin Investment Company of San 1989 Francisco, as assignee, dated August 25, 1989. Assignment and Assumption of Lease between Chin. October 31, 96-134637 Investment Company of San Francisco, as assignor, and 1996 John.E. King, as assignee, dated October 17, 1996. Assignment and Assumption of Lease between John E. April 25, 97-048936 King, d/b/a Oyster Point Village Limited, as assignor, 1997 and Oyster Point Village, as assignee, dated April 15, 1997. General Conditions used by the Harbor District as of the N/A N/A date of the Parcel B Ground Lease. MN1615727.1 7 Consent to Assignment and Amendment of the Parcel B N/A N/A Ground Lease, dated February 5, 2009, by and between the San Mateo County Harbor District, as ground lessor, and Oyster Point MV LLC, as assignee. Joinder Parcel B Ground Lease, dated May 27, 2009, by N/A N/A the City of South San Francisco and the South San Francisco Recreation and Park District. Site Locations Lease Assignment by Oyster Point May 19, 1986 86054025 Village, LTD by Oyster Pointe Village Assoc., Inc. as lessor, and Jaime B. and Cynthia G. Ferrer, 111, as lessee. Parcel C Ground Lease and related documents Ground Lease between the San Mateo County Harbor N/A N/A District, as landlord, and Oyster Point Inn 11, LLC, as tenant, dated December 31, 1998. 0 Exhibit A: Leasehold Description of Parcel C Amendment to Ground Lease between the San Mateo N/A N/A County Harbor District, as landlord, and Oyster Point Inn 1.1, LLC, as tenant, dated as of March 15, 2000., Joinder by the City of South San Francisco and the South N/A N/A San Francisco Recreation and Park District, dated April 5, 1999. Memorandum of Ground Lease Agreement and April 12, 06-054049 Amendment thereto between the San Mateo County 2006 Harbor District, as landlord, and Oyster Point Inn 11, LLC, as tenant, dated as of April 11, 2006. Consent to Assignment and Amendment of the Parcel C N/A N/A Ground Lease, dated February 5, 2009,1 by and between the San Mateo County Harbor District, as ground lessor, and Oyster Point MV LLC as assignee. Joinder Parcel C Ground Lease, dated May 27, 2009, by N/A N/A the City of South San Francisco and the South San Francisco Recreation and Park District. MN1615727.1 8 Parcel D-1 Ground Lease and related documents Lease between the San Mateo County Harbor District and N/A N/A the City of South San Francisco, as lessors, and Inn Development, Inc., as lessee, dated September 14, 1989, including the following Exhibits attached thereto: • Exhibit A: Design Criteria for Construction by Lessees of the San Mateo County Harbor District- 1980; and • Exhibit B: Oyster Point Marina Specific Plan, dated September 1983, as approved by the City of South San Francisco on September 7, 1983,Resolution 124-83, Memorandum of Lease between the San Mateo County October 13, 89137949 Harbor District and the City of South San Francisco, as 1989 lessors, and Inn Development, Inc., as lessee, dated September 13, 1989. Letter Agreement between the San Mateo County Harbor N/A N/A District, as lessor, and Inn Development, Inc., as lessee, dated September 13, 1989. First Amendment to Lease between San Mateo County N/A N/A Harbor District and the City of South San Francisco, as lessors, and Inn Development, Inc., as lessee, dated March 4, 1992., Assignment and Assumption of Lease between Inn April 25, 97-048940 Development, Inc., as assignor, and Oyster Point Marina 1997 Inn, as assignee, dated April 3, 1997. General Conditions used by the Harbor District as of the N/A N/A date of the Parcel D-1 Lease. Consent to Assignment and Amendment of the Parcel D- N/A N/A I Ground Lease, dated February 5, 2009, by and between the San Mateo County Harbor District, as ground lessor, and Oyster Point MV LLC, as assignee. Joinder Parcel D-I Ground Lease, dated May 27, 2009, N/A N/A by the City of South San Francisco and the South San Francisco Recreation and Park District. MN1615727.1 9 A ssigned King Leases Description Recording Recording Date No, Parcel E Ground Lease and related documents Lease and Management.Agreement between the San Mateo December 8, 88167037 County Harbor District, as lessor, and Steve Duguay and 1988 V.I.P. Marine, Inc., as lessees, dated July 1, 1986, including the following Exhibits attached thereto: • Exhibits A-A-5: Legal descriptions and drawings of Parcels E,E-1, E-2,E-3 and E-4, • Exhibit B: Design Criteria for Construction by Lessees of the San Mateo County Harbor District- 1980; and • Exhibit C: Oyster Point Marina Specific Plan,dated September 1983, as approved by the City of South San Francisco on September 7, 1983, Resolution 124-83. Assignment of Lease and Consent of Landlord between December 8, 881 67037 the San Mateo County Harbor District, as landlord, and 1988 Steve Duguay and V.I.P. Marine, Inc., as tenants and assignors, and California Commerce Bank, as bank and assignee, dated November 4, 1988. Assignment between V.I.P. Marine, Inc. and Steve March 16, 01-033858 Duguay, as assignors, and Summit Marine Corporation, 2001 and as assignee, dated December 7, 1989. 01-033859 Assignment of Lease Agreement between SM March 16, 0�1-033858 Fealty, Inc., formerly known as Summit Marine 2001 and Corporation, as assignor, and Marine Collections, LLC, as 01-033859 assignee, dated March 5, 2001. General Conditions used by the Harbor District as of the N/A N/A date of the Parcel E, E-1, E-2, E-3 and E-4 Lease. Consent to Assignment and Amendment of the Parcel E, N/A N/A E-1, E-2, E-3, and E-4 Ground Lease, dated February 5, 2009, by and between the San.Mateo County Harbor District, as ground lessor, and Oyster Point MV LLC, as assignee. Joinder Parcel E, E-1, E-2, E-3 and E-4 Ground Lease, N/A N/A dated May 27, 2009, by the City of South San Francisco and the South San Francisco Recreation and Park District. MN1615727.1 10 Legal Descriptions Parcel B Pro pert THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: A Portion of Parcel B, as shown on that certain Map entitled, "'PARCEL MAP BEING A SUBDIVISION OF LANDS SHOWN ON THAT RECORD OF SURVEY FILED IN BOOK 8 AT PAGE 22 AND ALSO IN THE DEED DESCRIBED IN BOOK 1462 O.R. 2 AS FILED IN THE RECORDER'S OFFICE AT SAN MATEO COUNTY, SOUTH SAN FRANCISCO, SAN MATEO COUNTY, CALIFORNIA", filed in the office of the Recorder of the County of San Mateo, State of California on January 9, 1985 in Book 55 of Parcel Maps at pages 61, 62, 63 and 64, described as follows: BEGINNING at a point from which the most Northerly comer of Parcel B, as shown on that certain Parcel Map described above, bears North 3' 59' 29" West 100.00 feet; thence from said point ofbeginning the following,6 courses and distances: South 03' 59' 29" East 144.00 feet; South 41' 00' 31" West 82.07 feet; South 48' 59' 29" East 78.00 feet; South 41 0 00' 31" West 132.00 feet; North 48' 59' 29" West 50.00 feet; South 55' 39" 25"" West 82.61 feet; Thence, 2.00 feet along the arc of a non-tangent curve to the right, the chord of which bears North 32' 12' 14" West, with a radius of 1,280.00 feet and subtending a central angle of 00' 05' 22", to a point of tangent reversing curvature; thence 50.26 feet along the arc of a curve to the left with a radius of 399.29 feet and subtending a central angle of 07' 12' 44"; thence non- tangent, North 33' 51' 19" East 10.43 feet; thence 55.00 feet along the arc of a non-tangent curve to the left with a radius of 409.29 feet and subtending a central angle of 071 41'' 58"", the chord of which bears North 43' 28' 19" West; thence North 03' 57' 25" West 299.01 feet to a point on the Southeasterly line of Oyster Point Boulevard; thence North 40' 52' 20" East 49.00 feet; thence South 49' 07' 40" East 101.85 feet; thence North 86' 00' 3,1" East 151.99 feet to the point of beginning. APN- 015-010-600 (portion), 015-190-190 (portion) Parcel C Property THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: MN1615727.1 Parcel C, as shown on that certain map entitled "Parcel Map, Being a Resubdivision of Lands Shown on that Certain Map Entitled, Parcel Map Being a Resubdivision of Lands Shown on that Record of Survey Filed in Book 8 at Page 22 and Also in the Deed Described in Book 1462 OR 2, as Filed in the Recorder's Office at San Mateo County, South San Francisco, San Mateo County, California," filed in the office of the County Recorder of San Mateo County, State of California, on January 9, 1985 in Book 55 of Parcel Maps at Page(s) 61 through 64, inclusive. APN: 015-190-190 (portion) Parcel D-1 Property THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED, AS FOLLOWS: Parcel ""D-1"", as shown on that certain map entitled "Parcel Map 89-262, South San Francisco, San Mateo County, California,"' filed in the office of the County Recorder of San Mateo County, State of California, on May 23, 1.989 in Book 62 of Maps at Page(s) 25 and 26. APN: 015-010-260 Parcel E Property THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: Parcels E, E-1, E-2, E-3 and E-4, as shown on that certain map entitled, "Parcel Map, Being a Resubdivision of Lands Shown on that Record of Survey Filed in Book 8 at Page 22 and Also in the Deed Described in Book 1462 O.R. 2 as Filed in the Recorder's Office at San Mateo County, South San Francisco, San Mateo County, California," filed in the office of the County Recorder of San Mateo County, State of California on January 9, 1985 in Volume 55 of Parcel Maps at Pages 61 to 64 inclusive. APN: 015-010-060 (Portion), 015-010-600(Portion) NIN1615727.1 12 Exhibit 2.2 Form of Memorandum of Disposition and Development Ageemcnt RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Morrison & Foerster LLP 425 Market Street San Francisco, California 94105 Attn: Zane Gresham, Esq. (Space above this line for Recorder's use only) MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT THIS MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT ("Memorandum'"), dated as of ) 201 _ is executed by and among Redevelopment Agency of the City of South San Francisco,a public body corporate and politic ("Agency"), The City of South San Francisco, a municipal corporation ("City"),, and Oyster Point Ventures, LLC, a Delaware limited liability company("Developer"). Agency, City and Developer, together with their respective successors and assigns, are hereinafter sometimes referred to collectively as "Parties", and individually as a "Party." WITNESSETH: The Parties do hereby acknowledge that: 1. Memorandum of DiWosition and Development Agreement. That certain Disposition and Development Agreement was entered into by and among Agency, City and Developer on 2011 (the "DDA"), which DDA relates to that certain land located in the City of South San Francisco, County of San Mateo, State of California, more particularly described on Exhibit A (the"EEqperty"). 2. Ppoos . The sole purpose of preparing and recording this Memorandum is to give notice of provisions in the DDA pursuant to which each Party has certain responsibilities and obligations with respect to the development of the Property. in the event of any conflict between the terms of this Memorandum on the one hand, and the terms of the DDA on the other hand, the terms of the DDA shall control. 3. Other Provisions. The other provisions of the DDA shall be as provided in the DDA, which, by this reference, is incorporated herein. 4. Counterparts. This Memorandum may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. Memorandum of DDA MN1615727.1 13 EXECUTED by the Parties as of the date set forth on the respective acknowledgement pages attached hereto, and effective as of the date first written above, DEVELOPER OYSTER POINT VENTURES LLC, a Delaware limited liability company By. SRI Nine Oyster Point LLC, a Delaware limited liability company, its Managing Member By: Name: Its: By: SIBS Oyster Point, LLC, a Delaware limited liability company, its Member By: Name: Its: [Signatures continue on following page] Memorandum of DDA MN1615727.1 14 AGENCY REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: Name: Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency General Counsel CITY CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Name: City.Manager ATTEST. By: City Clerk APPROVED AS TO FORM: By: City Attorney Memorandum of DDA MN1615727.1 15 Exhibit 2,5.E Description of Property Subject to Developer's Right of First Refusal X1615727.1 16 . .............. 11L Q G CL r° Y W� �� drill Vl ai 1 W 1.1 O 0 2 C, 1 LU LU d m i c� W hex ' ✓ \` w P 4 Ln Cleo IH IN.10d HILS/Cl'7 s � _ cn > ra I I w wa 54 t'n le 41 a _ --- 1. ,?.. r✓1 rL iQ ... 1 Y d� 1 1 1 I L _ ••••••m�.. perwsrr. a nYex x.wvvwva 'nr '�e+n wsvo-+wrv'vww. s... Exhibit 2.5.3 Memorandum of Right of First Refusal RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Morrison & Focrstcr LLP 425 Market Street SanFrancisco, California 94105 .Attn: Zane Gresham, Esq. (Space Above for Recorder's Use) MEMORANDUM OF RIGHT OF FIRST REFUSAL THIS MEMORANDUM OF RIGHT OF FIRST REFUSAL ("Memorandum"), dated as of , 201_(the "Effective Date"), is executed by and among Redevelopment Agency of the City of South San Francisco, a public body corporate and politic ("Agency"), The City of South San Francisco, a municipal corporation("City"), and Oyster Point Ventures, LLC, a Delaware limited liability company("Developer"). Agency, City and Developer, together with their respective successors and assigns, are hereinafter sometimes referred to collectively as "Parties", and individually as a"Party." All initial capitalized terms used herein but not herein defined shall have the meaning ascribed to such terms in the DDA (defined below). WITNESSE'TH: The Parties do hereby acknowledge that: I. Memorandum of Right of First Refusal. Pursuant to that certain Right of First Refusal (the"Right of First Refusal") contained in Section 2.5 of that certain Disposition and Development Agreement entered into by and among Agency, City and Developer on , 2011 (the"DDA"), City and Agency have granted to Developer and its successors and assigns a right of first refusal to acquire certain real property situated in the City of South San Francisco, County of San Mateo, State of California,more particularly described on Exhibit A, together with all improvements located thereon (the"Property"), for the period commencing on the date hereof and expiring upon the earlier to occur of(1)the issuance of a certificate of occupancy for the last building to be constructed in Phase IVD of the Developer Project, and (2) twenty (20) years after the Effective Date (the "Expiration Date"). 2. Purim. The sole purpose of preparing and recording this Memorandum is to give notice of the Right of First Refusal as set forth in the DDA, and is subject to all the terms, conditions and provisions thereof. In the event of any conflict between the terms of this MN1615727.1 17 Memorandum on the one hand, and the terms of the DDA on the other hand, the terms of the FDA shall control. 3. Other Provisions, The other provisions of the Right of First Refusal shall be as provided in the DDA, which, by this reference, is incorporated herein. 4. Count arts. This Memorandum may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. EXECUTED by the Parties as of the date set forth on the respective acknowledgement pages attached hereto, and effective as of the date first written above. DEVELOPER OYSTER POINT VENTURES LLC, a Delaware limited liabitity company By: SRI Nine Oyster Point LLC, a Delaware limited liability company, its Managing Member By: Name: Its: By: SIBS Oyster Point, LLC, a Delaware limited liability company, its Member By: Name: Its: [Signatures continue.on J611owing page] 1VTN1615727.1 18 AGENCY REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: Name: Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: ,By: Agency General Counsel CITY CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Name: City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney MN 1615727.1 19 EXHIBIT A PROPERTY"DESCRIPTION 2v1N1615' 27.1 20 Exhibit 3.2A Description of Phases of Redevelopment Project MN1615727.1 21 I.-—— , c ry < UJ C) W a = U) c) < LLJ I LM Z cl (D U) D 0 < z CL < m m ¢ 0 w < 0 Z: cri 0 Z :F Z CL q 0 U) w ry Lij a- w Z UJ LU < ,; < < < CL w 137 rr, a- ED w M 0 ry -j < F- w < < < CL W W w w CL P z �e u 0 (D < 06 co 0� 0 0 w 06 0 z (n U) < < CL F- F- < w < ui W W C) Z w C) 0 U) U) (f) U) < 0 0 < m U- :E� m 0000000c) Goo w w L) C) < v < Z Cd ) O U) {CO P < U) of U) al w 2 Z W w C) w ;(,--n < FL co U- < En U- >- w 0 IL 0 W Z 0 LL U- w 3: < 0 w W W W LL - LL F-- 0 < 0 0 -7 < LL U) mpoml 0 0 co M IV .6 0 FL U) Z 0 < LLJ 0 z LLJ w C) U) < 3: ol 0 w 0 0 F- W F- -i U) -i Z m UJ w < 01- owf T -rnr` 715 E r "OV CL 3 Exhibit 3.213 Estimated Project Schedule This Exhibit sets forth the Parties' reasonable estimates of project milestones, based on each Party's good-faith, diligent pursuit of their respective responsibilities, in compliance with applicable law. These milestones include the items listed below, for illustrative purposes only. 1. Initiate preparation of EIR and project entitlements- Third quarter 2009 2. Complete environmental review and Agency and City approval of project entitlements: First quarter 2011 3. Approval and execution of Disposition and Development Agreement to govern transfer of the King Leases and Conveyed Property: First quarter 2011 4. Projected date for exchange of interests in King Leases and Conveyed Property pursuant to Disposition and Development Agreement: Second quarter 2013 5. Projected establishment of a communities facilities district and issuance of Mello-Roos Bonds: Second quarter 2013 6. Projected date to commence construction of Phase I Improvements: Third quarter 2013 The Parties recognize that despite their respective diligent good faith efforts, the achievement of these milestones is subject to circumstances and actions of others,beyond their respective reasonable control, such as actions by other governmental agencies, market conditions, financing, and other business and economic factors, and that such circumstances are taken into account in the DDA and DA. This estimated schedule does not affect the Parties' rights or remedies under any termination provisions that are included in the DDA and DA. MN1615727.1 Exhibit 3.2.1 Phase IC Site and Infrastructure Improvements: Description and Cost MN1615727A ExHiBITIIIA: Street and Utilities at Hub The designation"Streets and Utilities at Hub" refer to the components listed below located along the new portions of Oyster Point Blvd and Marina Blvd directly adjacent to Phases I and 11 of the Developer Project. To allow for the desired configuration of parcels, portions of Oyster Point Blvd and Marina Blvd and related utilities will be relocated. The construction of the new streets and utilities includes the following components: (a) temporary roads (b) grinding and off haul(if necessary) of existing paving (d) import/export soil (c) fine grading and compaction (0 road base (g) asphalt paving and striping (h) concrete curbs, gutters, sidewalks, and landscaping on each side of roadway (i) aggregate base at curbs and sidewalks 0) islands with associated topsoil and curbs (k) traffic signalization and signage (1) electrical road and sidewalk lighting (in) temporary utilities (n) storm sewer(drain piping, catch basins, outfall interceptors, manholes and curb cuts) (o) sanitary sewer(piping, -forced main, and manholes) (p) domestic water line (q) fire service stubs and hydrants (r) gas lines (s)joint utility trench with electrical prim conduits and pull boxes and telecom conduits A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.1 Page 1 of 30 c+l x cu ui 0- 0y CC u Lm rJ ua C>sz LL r k q�,w LM U 0 Q w b l i 9l� Iz g x i W ra b v Y %f'„'N•V � : � ia�4 MY.k U IL NA cc i f o z Lu 1 / tur o"Offin, ga 67 SO v IV /Ir / jai 5 y ,r,�0�/ �(/� ✓����� ��� x � j �,,ate. � � "� w p�,�,,p, � Assom %i rrrtY &ri / J ” /i / "/ fir' 0 {, cr �'�lj NO h � e r a r CE va / Z / Z jo,. 0 : a Aa z c) CO Cnmm x m CL ray a . 6 C MA➢. m tj yy G n 0 t - mN 4 " 4 CL ro N L- u1 a X Q o e M w 7 e � IRS, - -u � lift 011 fpf U4B tf r6 e. vo w W?p , tA g auk mwuiuuuowwlmmmm�,o M, T r u. sg f F 4Y.1� " X10 lI ;r r t r 0 13 ti y lLl 11 � I S, � Cl CI ' w✓ �d rx ri Ln ap CL fn h ti eaa c_ m� ti.. xa T ✓i,,., yam{ V7 o 4A u IN iz t a jr'tin u U, 9,�JJJJ �G�r i aIIM�r�f I' CM t' 0 z' i"l " PN Au a r GI . aYr «i _ r ldW�r i( mx ✓' ¢ ✓fii li✓ III �",✓ 9 :. 'um" P�,r(a 4,y �f u j ✓, w L GAP Vx ; r yam. j✓i�� v..., '�.� 5w� {' � ✓"�' '�; ice' �""� � ^.7 I � f E� 'r _„ a Hathaway i OYSTER POINT BUSINESS PARK -63 Dinwiddie SHORENSTEIN I SAS INVESTMENTS LINE ITEM DETAIIL 2125,12011 (revised!V 15120 111) EXHIBIT KEY SYS !CSI DESCRIPTION Q U U/P EXT DIAGRAM NOTE Streets andl Utilities at Hub 4 0001 01090 traffic signalization ----------- ----------- 3,2.1 A-1 4 0001 01090 gull+oyster point intersection-reconfiguration of sensors/equip I LS $ 350,000 $ 350,000 3.2,IA-1 4 0009 01090 oyster point+marina blvd intersection-new signal I LS $ 350.000 $ 350.000 3.2.1 A-1 4 0001 0I090 lighted pedestrian crosswalks 2 LS $ 35,000 $ 70,000 3,2.1 A-1 4 0001 01090 signals required by future phases-see future phase estimate excl Qxd 3.2.1A-1 3 2000.02070 grind paying-a.m V78.902 SF $ 0,50 $ 3.2.1 A-1 3 2000 02070 stockpifin grinding-a.o. 8,283 CY $ 5.00 $ 41,413 12.Wl 3 200002070 offhaul and dispose grindings-a.o. 13,283 CY $ 1100 $ 99,390 3.11 A.I f and 2 200002200 8regr2cle and compact asphalt and flatwork areas 147,525 SF $ 2.00 $ 295,050 3.2.1 A-1 2 200002200 curb cuts 6.375 LF $ TOD $ 44,625 3,Z I A-1 1 200002200 paving and aggregate base-oyster point and marina boulevard-hub 122.500 SF $ 10.00 $ 1.225.000 UlA-1 il------ ..... ' 2000 02200 temporary roadways 24.000 5F $ 5,.50 $ 132,X0 3.2.1A-1 200002200 aggregate base-city sidewalk 25,025 SF $ +00 $ 100,1100 3.2.1 A-1 2 2000 02200 aggregate base at curbs 6,375 LF $ 8.00 $ 5N,000 3.2,1 A,1 1 2000 02270 sediment basin excl exd 32 1 A.1 I 2000.02270 a.o.swppp controls-see section 02200 3.2.1 A.11 1 2000102270 inmilarron of swppp controls-see section 02200 incl incl 3.2,IA-1 200002270 silt fe ces Incl incl 3,1[A-I 1 200002270 straw waddles incl incl 3.2.1A-I, 1 200002270 straw blankets inci Inc! 3.2.1A-1 1 200002270 rock waddles inci Intl' 3.2.IA-11 1 2000 02270 filter fabric incl Intl 12.IA-1 1 2000 02270 rock at entrance incl ind ............ ..... 3.2.Wl 1 200002270 winterization/stabilization rock incl ind -.............. 3.2.1 A-I I 2000 102270 summer maintenance incl and 3.2.1 A.I I 2000 02270 winter maintenance incl und 3.2.1 A-1 1 200002270 a.o.best management practices incl ind 3.2.1A-3 5 202002600 temp utilities 1 1-5 150,000.00 $ 150.000 .. I.......... 3.2.1 A-31 2 2020 02600 storm drain piping-hub 1.537 LF $ 185.00 $ 284,345 ------------------ --------------- 3,2.1 A-3 2 2020 02600 storm catch basins-hub 0 EA $ 2,5W,00 25,000 "..,....................... -- .------------------------------ .......... 32 1 A-3 2 202002600 storm drain manholes-hub 4 EA $ 6,5000 26,000 3.11 A-3 2 202002600 outbli interceptor I EA $ 50,000.00 $ 50,000 3.11 A-3 4 202002600 sanitary piping-hub 9.017 LF $ 150.00 $ 152,550 12.IA-3 41 2020 02600 forced main-hub 2,614 LF $ 150.00 $ 392,100 ............ . 3,111 A-3 4 __2020 ___,2600 forced main-ailowance for connection,to PSI I EA $ 75,DGD.00 $ 75.000 .. ...................... . . ........... -1 "I'll 3.2.1 A-3 4 2020 21600 mrimiry manholes-hub 6 EA $ 6,500.00 $ 39,000 ................... 2 3 IA-3 4 2020;2600 connection and Settlement vault at each building 4 EA $ 30,000.00 $ 120,000 3.2.1A-3 1 202002600 domestic water line.hub 2055 LF $ 125.00 $ 256,875 ............ __...m....... 3.2,1A-3 1 2020.02600 fire hydrants 8 EA $ 7,500= $ 60.000 3.11A-3 3. 2020 02600 gas line 1,968 LF $ 50.00 $ 98,400 ..._.I......-- 3.7 IA-3 3 202002600 trench and backfill for joint trench 11,968 LF $ 1!50.00 $ 295,200 3.2.1 A-3 3 2020 02600 electrical prim conduits 1.968 LF $ 60.00 $ 18.080 .......... 3.2.IA-3 3 2020 02600 electrical prim pull boxes 11 EA $ 6,500.00 $ 71,500 .......................... 12,1 A-3 3 202002600 secondary conduits/settlement vault 4 131- $ 35,000.00 $ 140,000, ............. .... 12,1 A-1 1 202002600 electrical road and sidewalk lighting-hub 14 EA $ 8,500.00 $ 119,0()0 .. .. .......... 3.2..1A I 1 2020 02600 electrical road and sidewalk fighting-marina boulevard k9 EA $ 81500.00 $ 161,500 3.2.1A-3 3 2020 0260�D telecommunications-6 ea x 4"in joint wench 1,968 LF $ 60.00 8,0130 3 3.2,f A•2 2 201002230 topsoil-planted areas-hub 1,420 CY $ 95,00 $ 134.900 3.2.1A-2 I 20I0 02230 topsoil-planted areas marina 1,480 CY $ 9&00 $ 140,600 3,2.1A-1 2 2010 M50 city sidewalk 25,025 SF S 8.00 $ 200,200 .......... 3.2.1 A.[ 2 201002550 vertical curbs Z800 LF 12.00 $ 33,600 3.2.1 A-11 2 2010102550 curb and gutter 3,575 LF ............... -$ 111.00 $ �7,200 planted areas-hub 19,1'05 2 U IA- 20-116 o-noo- C _F 1200 229.260 ................ $ 1 Exhibit 3.2.1 Page 5 of 30 Hathaway OYSTER POINT BUSINESS PARK Din,widdi(> U-1 L�D'�1 Nz' SHORENSTEIN I SKS INVESTMENTS LINE ITEM DETAIL 2/25/2011 (revised 3115120 II 1) EXHIBIT KEY SYS CSI DESCRIPTION Q U U/P EXT DIAGRAM NOTE 3.2 IA-7 I 24114 02400 planted areas-marina boulevard 19.870 1S1` 1$ 1100 1$ 23 ,440 3.2,1A.-1 2010102515 1 road striping I LS- s 35000,00 rs 35,000 Subtotal)-Streets and Utilities at Hub $ 6,669,859 General Conditions and Markups-19% $ 1,267,273 GC Bond's-0.75% $ 59,52,5 Subtotal-CONSTRUCTION HARD COSTS $ 7,996,,660 Soft Costs-20% $ I'599,332 Total $ 9,595, Exhibit 3.2.1 Page 6 of 30 EXHIBIT 3.2.113: Streets,and Utilities to Point "Streets and Utilities to Point" refers to the components listed below located to the east of the Phase I property line, adjacent to the recreation fields, hotel site and marina parking extending to the existing traffic circle on Marina Blvd next to the yacht club building. To allow for the desired configuration of parcels,portions of Marina Blvd and related utilities will be relocated. The construction of the new streets and utilities includes the following components: (a) temporary roads (b) grinding and off haul(if necessary) of existing paving (c) grading(including necessary refuse relocation and clay cap modification associated with roads and utilities) (d) import/export soil (c) fine grading and compaction (f) road base (g) asphalt paving and striping (h) concrete curbs and gutters on each side of roadway with landscaping on south side of roadway (i) aggregate base at curbs and sidewalks (k) traffic signage (1) electrical road and sidewalk lighting (in)temporary utilities (n) storm sewer(drain piping, catch basins, outfall interceptors,manholes and curb,cuts) (o) sanitary sewer(piping, forced main, and manholes) (p) domestic water line (q) fire service stubs and hydrants (r) gas lines (s)joint utility trench with electrical prim conduits and pull boxes and telecom conduits. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.1 Page 7 of 30 C) m 0 CO El r � � � W ul LID ra c c r?3 r 0 err 411P Lu 11 CL uui.u.ru „v., ..,. ry/ k B Z 7M o NOR a t N-� A/ ro im cn fe xz uj w" $ w t; , J p/fa M cs _ q rw 1 � 211. vv qp d t z ,` Q 7 r w dad �xz 8 C"i ` o w0- LL en o q. f r.d +fir a "C rY w r MIJ uj f cr 'w 0 n�Y F- Lc. J W :? 0 ief Lu LU I ac ... �„ T � , , CL n �,�a:✓hu e � 1 Gb� � �w Z C) c'e) ev 0 C) x m Z, W CL C7 oo E VII Ewa„ - - CL u c ura Q c l 1 u Ln LU ME D S M I`s tl � 1d r, LU it CL IV CL cc � V Hathaway OYSTER POINT BUSINESS PARK D i n w i d die SHORENSTEIN I SKS INVESTMENTS LINE ITEMI DETAIL 2125/2011 (revised 3/15/2011) EXHIBIT KEY SYS Cs[ DESCRIPTION Q U UIP EXT DIAGRAM NOTE Streets and Utilities to Point 3.2,1 B-1 4 0001 01090 lighted pedestrian crosswalks 2 LS $ 35,000 $ 70,000 3.2.113-1 3 20001.02070.. . grind-paving I -a.o. I'll 2 11 16,1 609 SP $ 1 0.50- $ 108,305 60--.-- ---. -1-................... . ..... 3.11 R-1 3 2DDOO 02070 stockpile grinding-a.o. 10.028 Cy $ 5M $ 50,141T............... 3.2.18-1 3 2000 02070 offhoul and dispose grindings-a.o. 10,028 CY $ 12.00 $ 120,338 3,2.1 B-3 4 2000 T20W 02200 misc soil material-existing on site-see other estimates 3.2.16-3' 4 2000.022DO place foundation layer 43,333 ICY $ 6.00 $ 260,000 ............... ......... - 3.2.18-3 4 2000 02200 place clay cap,utilities 40.000 SF r$ 2.00 $ MOOD 31.1 B-3 4 2000 02200 place protection layer 21,667 CY $ 5.00 $ 108,333 3.2.1 B-3 4 200002200 collect refuse-utilities 12,000 CY $ 7.50 $ 90,000 I _------- - . .......... 3.2.13-31 4 2000 02200 place refuse_..v.rjIitjes IZOOO CY 7.50 $ 90.1000 3.2.16-3 4 2000 02200 carping 40O00 SF $ 0.35 $ 14.000 3.2,1 B.1 1 2000 02200 finegrade and compact asphalt and flacwork areas 50,381 SF $ 100 $ 100,762 3.2.111-1 2 2000 02200 curb Cuts 2,780 LF $ 7.00 $ 19,460 1.1 l 2000'02200 paving and aggregate base-marina boulevard 49,600 SF .00 $ 486,000 3.2.1&1, 3 2000 02200 temporary roadways 56,000 5F $ 5�50 $ 308.000 ....... .............. 12.1 B.1 2 200 022DO, aggregate base-city sidewalk 1,781 5F $ 00 $ 7,124 3.2.18-1 2 2000 02200 aggregate base at curbs 2,780 LF $ 8'00 $ 22,240 3,11 B.I 1 2000 02270 sediment basin exe excl 3.2„IB-I 1 2000 02270 a.o.swppp,controls-see section 02200 3.118.1 1 20000 02270 installation Of SwPpp Controls•see section 02200 incl incl 3.2.f B-1 ij 200002270 silt fences ind Ind 1 2000 02270 straw waddles incl incl 12.1 B-1 1 2000 02270 straw blankets mcl incl .......................................... 3.2.1 B-1 1 2000 02270 rock waddles ind incl 3.2.1 B-1 1 2000 02270 Biter fabric ind Incl ............... 3.2.16-I I 2000 02270 rock at entrance incl ind 3.2.1 B-1 1 200002270 winterization/stabilization rock incl Ind 3.2.111-1 f 2000 summer maintenance incl ind .................. ...... it in 3.2.1'B-I 1 200002270 winter maintenance incl cl 3.2.18-1 1 2000102"2'"70 1 a.o.best-management practices incl incl ............ 3.2.1 B-3 6 2020 02600 cemp utilities I, LS $ 150,000.00 $ 150,0010 3.11 B-3 2 2020 02600 storm drain piping-marina boulevard 516 LF $ 185.00 $ 95,460 . .......................... 3.2,18-3 2 2020 02600 storm catch basins-marina boulevard 6 EA $ 2,500.00 $ 15,000 II........... 932'1 B-3 4 2020102600 sanitary piping-marina boulevard-n.r. excl excl 3 2 -3 4 2020 02600 forced main-marina boulevard 1,349 LF $ 150.00 20z3so 3,2,i B-3 4 2020 02600 sanitary manholes-marina boulevard-n.r. exd excl ----------- 321 B-3 1 202002600 domestic water line-marina boulevard 1,764 LF $ 12SA $ 220,500 ..........- .......... 3.2.18-3 1 2020 02600 fire service stubs 134 LF $ 115-00 $ 15,4 d0 ........... 3.2.16-3 1 2020 02600 fire hydrants 6 EA $ 7,500,00 $ 45,000 .......... 3.216-3 3 2020 02600 gas line 1,351 LF $ 50,00 $ 67.550 3.11 B-3 3 2020 02600 trench and backfill for joint trench 1,351 LF $ 150.00 $ 202,650 ........... ............ ................. -........ ......-- 3.2.l B-3 31 2020 02600 electrical prim conduits 1351 LF $ 60.00 $ 81,060 ...... ......... 3.2.18-3 3 2020 02600, electrical prim pull boxes excl EA ti 6,500.00 excl road lighting-mar ................... 3,2,18-1 1 202002600 electrical d and sidewalk lightiina boulevard 14 'EA $ B,5CO.00 $ 1 19,000 ................. 3.2.1 B-3 3 2020 02600 telecommunications-6 ea x 4�'in joint trench 1,351 LF $ 60,00 $ 81,060 3.11 B-2 1 2010 02230 topsoil-pranced areas•m2rinn 1,770 CY $ 95.00 $ 166.150 3.2.16-1 2 201002550 city sidewalk q,781 ISF $ 8.00 $ 14,248 --""2011662550 curb and gutter ..... ....... 2,780 16.00 $ 44,480 P61 Exhbt 3.2.1 Page 11 of 30 Hathaway OYSTER POINT BUSINESS PARK D i n w i d d i e mtuia axia SHORENSTEIN/SKS INVESTMENTS LINE ITEM DETAIL 2/2S1201 I (revised 3115/2011) EXHIBIT KEY S CSI DESCRIPTION U U/P EXT DIAGRAM NOTE L,02110 [planted areas-marina boulevard 23 812 ISF 1$ Q.001$ 285,744 ................-- —1---i5- 1F " - 3,2,1 B-1 1 2019 2 Ps $ ,0-009-0 $ 35.000 d striping L I Subtotal-Streets and Utilkies to Point $ 3,777,365 General Conditions and Markups-19% $ 717,699 GC Bonds-0.15% $ 33,713 Subtotal-CONSTRUCTION HARD COSTS $ 4,528,777 Soft Costs-20% $ 905,7SS Total $ 5,434,5;33 PHI IExhibit 3.2,1 Page 1:2 of 30 EXMBIT3.2.IC: Clay Cap Repair at City Parcels IC: The eastern peninsula of Oyster Point was formerly operated as a municipal (Class 111) landfill starting in the 1950s. The landfill was closed in the 1970s in accordance with the State of California Regional Water Quality Control Board(RWQCB)regulatory guidelines that governed at the time. This closure was completed prior to the adoption of California Code of Regulations Title 27,which currently regulates Class III landfill closures. in June 2000,the RWQCB issued Order No. 00-046 which states that where new development is planned of a closed Class III landfill, a cap shall be placed on the landfill that meets the applicable post-closure maintenance requirements outlined in Title 27. In February 2009, Treadwell and Rollo issued a report entitled"Geotechnical Investigation of the Landfill Cover, Oyster Point Landfill,"which outlines modifications to the clay cap necessary to meet the requirements of Title 27. These modifications include increasing the thickness of the Landfill Cover in approximately seven areas, increasing the thickness of the Low Hydraulic Conductivity Layer(clay layer) in approximately four areas, and reducing the permeability of the Low Hydraulic Conductivity Layer in one area(this also could be accomplished by thickening the clay layer). The prescriptive cap/cover designated in Title 27, Section 21090 for Class III landfills consists of the following layers, from top to bottom: • Erosion-resistant layer(via vegetative layer): at least one foot of soil that contains no waste and is capable of sustaining native or other plant growth • Low hydraulic conductivity layer: at least one foot of soil containing no waste or leachate and compacted to attain a hydraulic conductivity ofIx10-6 em/sec • Foundation layer: at least two feet of soil, contaminated soil, incinerator ash, or other waste materials,,provided that such materials have appropriate engineering properties to be used for a foundation layer for construction of the low hydraulic conductivity layer "Clay Cap Repair at City Parcels IC" refers to the improvements described above to be implemented on the City Property to the west of the Ferry Terminal. If part or all of the clay cap repair in the area described in this exhibit overlaps with the clay cap repair and landfill cover required for refuse relocation from the Developer Property as outlined in Exhibit 3.2.2A and 12,213, then the landfill cover improvements in this Exhibit will no longer be necessary at the overlap areas as they will be included in the scope of this Exhibit 3.2.2A. At the time of completion of landfill cover modifications, rough grading of the top of the Erosion-resistant layer should be coordinated to no more than 2.5 inches (0.20 ft) of finish grade as outlined in the final grading plan in the construction documents. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.1 Page 13 of 30 a 1a1 fW �" 7r ^prr II�� r✓ re, aa, a Ed 0 J IAA APR lei 4* it It d 16 Up x Ou r j! ✓rr 50 m;. not Lj IV old Y YI V I FV �a U z- Z Hathaway OYSTER POINT BUSINESS PARK 'I ARS 01 Dinwiddie WILDING SHORENlSTEIN I SKS INVESTMENTS LINE ITEM DETAIL February 25,2011 EXHIBIT KEY :SYS CS] DESCRIPTION Q U UIP EXT DIAGRAM NOTE Clay Cap Repair at City Parcels Phase IC 3.2JC 1 2000 02070 demo-surf-ace improvements-see 910 repaying of city parking 3.2.1 C 1 �2000 02200 mass grading-cut-collect landfill protection layer 12,000 CY $ 4.25 $ 51000 3.2.1 C 1 2000 02200 repair clay cap-select areas 108,000 SF $ 2.00 $ 216000 3.2.1 C 1 2000 02200 place foundation layer 8.0W CY $ COO $ 4&000 —--—------ 32JC 11 2000 02200 place protection layer l 2,000 CY $ 5D0 $ WOW 1 200002550 2 IC l replace surface improvements-see#20 repaving of city parking Subtotal-Clay Cap Repair at City Parcels Phase IC $ 375,000 General Conditions and Markups-19% $ 71,250 GC Bonds-0.75% $ 3,147 Subtotal-CONSTRUCTION HARD COSTS $ 449,597 Soft Costs.20% $ 89,919 Total $ 539,516 Exhbt 3.2.1 Page 15 of 30 EXHIBIT 3.2.113: Reconfiguration of Parking at Marina Reconfiguration of Parking at Marina includes the parking lot north of the new Marina Blvd, cast of the Beach/Park and west of the Ferry Terminal. The work will include complete demolition of the existing parking lot and installation of new drainage,bioswales to treat stop-nwater, asphalt paving, striping, landscaped parking islands, and lighting. Grading associated with clay cap modification under these parking areas is included in the improvements for Exhibit 3.2.1 C A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates,were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.1 Page 16 of 30 cy rl � cV f � ro cr N !x LL ej er c_ K In tp kg M U c v 2,9 ILL C L yr r ri _ " � 0 Mrr l„� u w 4n ? k Dow w rr � x r. , ? L r r I � $ u m n 'i Q -::q Hathaway OYSTER POINT BUSINESS PARK 'Ilia Dinwiddie ' 3'uft'05Hi'G' SHORENSTEINI I SIBS INVESTMENTS LINE ITEM DETAIL 2/2S1201 I (revised 311512011 EXHIBIT KEY SYS C51 DESCRIPTION U U/P EXT DIAGRAM NOTE Reconfiguration of Parking at Marina 1 200002070 grind paying-existing parking lots 164730 SF $ 050 $ 131,365 3.2.11 2000 02070 stockpile grindirgs,»existing parking lots 12,163 CY $ 5,00 $ 60R17 3.2.1 D 1 2000 02070 offhaul and dispose grindings-existing parking lotus tl 2.163 ICY $ 12.00 $ 145,561 ................ 3.2 1!D 2 2000 02200 paving and aggregate base-parking 147.600 SF $ 10,00 $ 1,476,000 32 ID 2 2020 02600 parking lot drainage 147,600 SF $ 1.00 $ 147AOO 3.2.l D, 2 2020 02600 electrical on grade parking lighting 147600 SF $ 2.00 $ 295,200 .......... 17-10 3 2010 02230 topsoil-planted areas-parking Wand 1,940 CY $ 95,00 $ 184,300 1. 3.11 D 4 2010 02230 bioswale soil 1,660 CY $ 75.00 $ 124,500 3.2.1 D 3 2010 02900 planted areas-parking island 17,365 SF $ V 2.00 $ 208,,380 3.2.1 D 4 202 02,900 planting-bioswal'e- 22,294 SF $ 8.00 $ 178,352 Subtotal-Reconfiguration of Parking Lot at Marina $ 2,552,475 General Conditions and Markups-19% $ 560,97,0 CC Bonds-0.75% $ 26,35 I Subtotal-CONSTRUCTION HARD COSTS $ 3,539,796 Soft:Costs-20% $ 707,959 Total $ 4,247,756 Exhibit 3.2.1 Page 13 of 30" ExHIBIT3.2.11K: Grading_/Construction of Recreation Area Grading/Construction of Recreation Area includes fine grading and compaction as well as turf landscaping with a sand base, drainage, and irrigation. Rough grading of this area is included in Exhibits 322A. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.1 Page, 19 of 30 46 14' cc Si E u C p U WL 0 301 , its IN so lot ti bw if z1- pal tit 6 S 1 oil 1 it. I not tit 0 ICa LU A ro a 0 vp� Hathaway , OYSTER POINT BUSINESS PARK I 1AR1 III Dinwiddie � bulLai"o SHORENSTEIN/SKS INVESTMENTS LINE ITEM DETAIL February 2S, 2011 EXHIBIT KEY SYS CSI DESCRIPTION U U/P EXT DIAGRAM NOTE GradinglConstruction of Recreation Area 3.2.tl E 11 2000 02200 fitlOgrldii and compact-rec fields 131,567 SF $ 2.00 $ 263,134 3.2 1 E 1 200 02900 drainage bne 6�000 LF $ 2100 $ 132.000 3.2.1 E 1 2010 02900 sand-7"' 4.250 TN $ 50.04 $ 212,500 3.2.1 E I .........201002900 stabilized sand 3.5" 2.125, TN $ 95.00 $ 201,875 3.2.1 E f 2010 02900 sod 131,567 SF $ 1.00 $ 131,567 3.2,1 El 1 2010,02900 irngation system 131,567 SF j$ 3.25 1$ 427,593 Subtotal-GradinglConstruction of Recreation Area $ 1,368,669 General Condkions and Markups-19% $ 260,047 GC Bonds-0,7S% $ 12,215 Subtotal-CONSTRUCTION HARD COSTS $ 1,,640,931 Soft Costs-20% $ 328,186 Total $ 1,969,1 17 Exhibit 3.2.1 Page 21 of 30 ExIIJBIT 3.2.IF: Demo/Grading of Hotel Site Demo/Grading of the Hotel Site includes fine grading, compaction, and hydroseeding of this area. Rough grading of this area is included in Exhibits 3.2,2A. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.1 Page 2 2 of 301 ca V) Cla a rN w C ci 0 0 � c E �" re � c ' V) L.L f cMi Rs VI "... t u Lxu r' z 512 L-1 TZ rop r,.. A IN 0 if �r F i C Hathaway OYSTER POINT BUSINESS PARK D i n,w i d d i e f;UE'11.21 N"G' SHORENSTEIN/SKS INVESTMENTS LINE ITEM DETAIL 2/25120111 (revised'3/1512011) EXHIBIT KEY SYS csi DESCRIPTION Q U U/p EXT DIAGRAM NOTE Demo/Grading of Hotal'Site 1 2000 d02070 dtme,mom framed and-tiltup buildings V1054 SF $ - 1 7,75 $ 74.399 3.2.,l F 1 2000 02070 demo guard booth I EA $ 5,000.00 $ 5,000 ........ .......... . .......... 12.1 F 2 2000 02200 finegrade and compact-hotel site 169,166 SF 2.00 $ 338332 3.2.11 F 2 201002900 hydroseed-hotel site 177,880 SF $ 0.75 $ 133,410 Subtotal-DemolGrading of Hlotel Site $ SS 1,141 General Conditions and Markups-19% $ 104,717 GC Bonds-0.75% $ 4,919 Subtotal-CONSTRUCTION WARD COSTS $ 660,776 Soft Costs-20% $ 132,155 Total $ 792,931 Exhibit 5.2.1 Page 24 of 30 EXHIBIT 3.2.1G: Landscaping of Beach/Park The Beach/Park area is a parcel of approximately 3 acres located to the north and cast of the Oyster Point Blvd. and Marina Blvd. intersection. Improvements included in the Beach/Park are grading, finegrading and compaction as well as a landscaping allowance, asphalt paving at the bay trail with concrete seatwalls and lighting, and sand import at the beach area, A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans, and will be modified when construction drawings are prepared. Exhibit 3.21 Page 25 of 30 / CD CD CL mc Lli kn \ Ll Hathaway OYSTER POINT BUSINESS PARK Dinwiddie SHORENSTEIN I SKS INVESTMENTS LINE ITEM DETAIL February 25,2011 EXHIBIT KEY SYS CS1 DESCRIPTION t U UIP EXT DIAGRAM NOTE Landscaping of Beach;Park 3.2.1 G I and 2 2000 02200 fintgrade Arid compact-crescent park 87,565 SF $ 2.0,0 $ 175,170 ......................... 3.2.1 G 3 2000 02200 finegrade and compact-crescent beach 33J74 SF $ 2.00 $ 66,348 2 3 3.1 I 1 2000 02200 topsoil-crescent park 6,490 CY $ 95.00 $ 616.550 3.2.1 G -3 2000 02200 imported sand-24"-crescent beach 2,460 TN $ 65.00 $ 159.900 3.2.1 G 3 201002550, concrete seawall-crescent beach 1,590 LF $ 125.00 $ 08.750 3.2.1 G 1 2011 02900 landscaping-crescent park 69,721 SF I $ 1100 $ 836.65.2 3.11 G 2 2010 02900 bay trail-crescent park IT864 SF 1100" T 214.368 .................. .... 0 0 3.2.IGI 2 2020 2600 bay trail fighting.torchieres-crescent park 25 EA $ 6,500.00 $ 1-62.5-00 Subtotal-Landscaping of BeachlPark $ 2,430,238 ,General Conditions and Markups-19% $ 46,1,745 GC Bonds-0.15% $ 21,690 Subtotal-CONSTRUCTION HARD COSTS $ 2,913,673 Soft Costs-20% $ S82,735 Total $ 3,496,468 Exhbit 3.2.1 Page 27 of 30 ExHIBIT 3.2.1H: Landscaping at Bay Trail and Palm Promenade—Phase IC The"Palm Promenade"is a band of land east of the new Oyster Point Blvd, and north of Marina Blvd. that stretches to the west of the Ferry Terminal. Improvements include new sidewalks, Canary Island Palm trees with sand/root bed/structural soil, drainage, irrigation,and landscaping between trees. Improvements at the Bay Trail consist of finegrading and compaction, asphalt paving of the trail with lighting, as well as a landscaping/topsoil allowance. There is an additional allowance for an improved connection to the existing Bay Trail to the south. Also included is an allowance for two new restrooms which will be single-story structures modest in size and level of finish. An allowance is included for improvements to the existing Bay Trail connection running north- south across the Point between the future hotel site and Phase IIC. The palm trees in the median on Oyster Boulevard west of the intersection of Marina Boulevard are also included in the overall budget for this work area. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2,1 Page 28 of 30 C) 7 ca rJ x m � RIK ,.F w (L � OL r; 0 AD c G: LL E c rq L rte , > AD 0 A � � w 0 wi r V7 u z LOW c> �m w WrvAg 1 J s w� ^'41* ecs�S f LL yy rA C totlm Iiy 3�9 M ray ✓ „.,sW. ✓ ` cw EM 53r z-1 s �w a gI- m—a y ..., c �. 0 2? " is 1 R f {{{ rynp r i t� r p e n N v ,1 " r R Lij lj iz f \ i � r f pp Jr � a r Y rs " � y r r T� " r oil V a � , F, GY � ✓ , \ 1 / r Y , ' Exhibit 3.2.2 Phase ID Site and Infrastructure lmprovements: Description and Cost ` EXHIBIT 3.2.2A:-Clay Cap Repair at Conveyed Properly The eastern peninsula of Oyster Point was formerly operated as a municipal(Class III) landfill starting in the 1950s. The landfill was closed in the 1970s in accordance with the State of California Regional Water Quality Control Board(RWQCB) regulatory guidelines that governed at the time:. This,closure was completed prior to the adoption of California Code of Regulations Title,27,which currently regulates,Class III landfill closures. In June 2000, the RWQCB issued Order No. 00-046 which states that where new development is planned of a closed Class III landfill, a cap shall be placed on the landfill that meets the applicable post-closure maintenance requirements outlined in Title 27. In February 2009,Treadwell and Rollo issued a report entitled"Geotechnical Investigation of the Landfill Cover, Oyster Point Landfill,"which outlines modifications to the clay cap,necessary to meet the requirements of Title 27. These modifications include increasing the thickness of the Landfill Cover in approximately seven areas, increasing the thickness of the Low Hydraulic Conductivity Layer(clay layer) in approximately four areas, and reducing the permeability of the Low Hydraulic Conductivity Layer in one area (this also could be accomplished by thickening the clay layer). The prescriptive cap/cover designated in Title 27, Section 21090 for Class III landfills consists of the following layers, from top to bottom.- Erosion-resistant layer(via vegetative layer): at least one foot of soil that contains no waste and is capable of sustaining native or other plant growth Low hydraulic conductivity layer: at least one foot of soil containing no waste or leachate and compacted to attain a hydraulic conductivity of I x 10-6 cm/sec Foundation layer: at least two feet of soil, contaminated soil, incinerator ash, or other waste materials, provided that such materials have appropriate engineering properties to be used for a foundation layer for construction of the low hydraulic conductivity layer "Clay Cap Repair at Conveyed Property"refers to all clay cap and landfill cover necessary to be implemented on the Developer Property and as a result of refuse relocation from the Developer Property as described in Exhibit 3.2.2D. Should the area of clay cap and landfill cover necessary as a result of refuse relocation from the Developer Property overlap with the landfill cover improvements shown in Exhibit 3.2.1 B and 3.2.10, then the landfill cover improvements in those Exhibits (3.2.1 B and 3.2.1 C) will no longer be necessary at the overlap areas as they will be included in the scope of this Exhibit. In the areas where refuse relocation from the developer's property onto the City property is required, the developer will be responsible for restoration of clay cap and grading of the site according to final construction drawings and consistent with the conceptual plans and grading plan prepared by ROMA referenced in the Exhibit 3.2,I.This conceptual grading plan represents the maximum finish elevations as a result of the refuse relocation. Actual finish elevations as a result of refuse relocation may be lower. The final construction plans will establish the exact elevations of the finished improvements. In areas of refuse relocation required by the developer, the developer will be responsible for grading of the site to be no more than 0.2 feet elevation of Exhibit 3.2.2 Page 1 of 13 finish grades. Conformance of this requirement is to be confirmed by the City within 30 days of completing the work. The developer will not be responsible for grading of the City's,property in areas where refuse relocation is not ultimately required. This grading requirement will be utilized both in areas where no top soil will be imported as well as areas where there may be an import of up to 24 inches of top soil. At the conclusion of refuse relocation operation, the responsibility for site maintenance in its rough graded condition will be the developer's for maximum of three (3)months. It is anticipated that site improvements in Phase IC will commence shortly after site grading has been completed. In the event of site improvements have not commenced within three (3) months of completion of grading, the City shall reimburse the developer for the all ongoing costs after the initial three (3)months for maintenance on the City property. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.2 Page 2 of 13 N w— d' cap = en x ca w CL. <r � R - w , �'' J r Rd ld 'Nfl U / i r ✓� rr era Cti <C m M, r% d en " rii r /r u c A -- KZ AA uj / µ ffi z NO ////r/rr. /f/��,, L E cz ti" n i iii � q "%b r Hathaway OYSTER POINT BUSINESS PARK Dinwiddie SHORENSTEIN I SKS INVESTMENTS LINE ITEM DETAIL February 25,2011 EXHIBIT KEY SYS CSI DESCRIPTION Q U U/P EXT DIAGRAM NOTE Clay Cap Repair at Conveyed Property 3.2.2.4 3 2000 02200 mist soil material-existing on site-see other estimates 3.2.2A I and 2 200002200 place foundation(layer 56,910 CY $ 6.00 $ 341,460 3.12A 1 2000 02200 place clay cap-under parking 223,200 5F $ 2.00 $ 446,400 3.2.2A 2 2000 02200 place clay cap-refuse deposit area 545,000 SF $ 2.00 $ 1,090,000 3.2,24, I and 2-------2000 02200 place p,..,ti.n"layer........ 28,455 CY $ 5.00 $ 142 275 Subtotal-Clay Cap Repair at Conveyed Property $ 2,020,135 General Conditions and Markups-I9% $ 383,826 GC Bonds-0.75% $ 18,030 Subtotal-CONSTRUCTION HARD COSTS $ 2,421,990 Soft Costs-20% $ 484,398 Total $ 2,906,388 Exhibit 3.2.2 Page 4 of 13 ExHIBIT 3.2.213: Cleanup of Sump I Available documents provide a description of historical landfill operations which included the acceptance and on-site discharge of bulk liquid wastes. Treadwell and Rollo has estimated that 225,000 gallons of these liquid wastes were discharged into a large pit, approximately 20 feet deep located within the landfill which has become identified as Sump I. In April 2009, Treadwell and Rollo issued a report entitled"Draft Sump I Investigation, Former Oyster Point Landfill", which outlines the current extent and characterization of Sump I based on document review and field investigation. "Cleanup of Sump V describes the rernediation of the area identified in the Treadwell and Rollo report as "Sump P. The Cleanup of Sump I could be accomplished by either of two potential options for remediation. These two options are described in a subsequent memorandum by Treadwell and Rollo,titled"Sumps, I and 2: Cost Estimates for Development-related Remediation", and dated March 20,2009, as the "In-situ Source Removal" alternative and"Excavation and Disposal"alternative. Based on the conditions found before and during construction, the preferred option for rernediation will be determined by S/SKS. An estimate of the more expensive option has been used as the basis for costs identified in this Exhibit. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.2 Page 5 of 13 a C,4 �lr w �.., LU �, dy W, Y; M. l my�CL NtlJ w � r cr, Li. DOM lC4 p- ...0 mF^ qq yy hs„I.MA W 1 C1 k•� f7, � C tt5 c ' C U- iY1 q R'W P ri y� vi L/I a r ✓ t✓ p.htt s. 9m 10, NO ua uuara /r i� 'fir r,kN � 1 u r r OP IV � N Na'0 cr a f I � a 0 a r w Hathaway OYSTER POINT BUSINESS PARK "I AR'i 017 Dinwiddie UJLWNG SHORENSTE'IN/SKS INVESTMENTS LINE ITEM DETAIL February 25,2011 EXHIBIT KEY SYS CS11 DESCRIPTION Q u UIP EXT DIAGRAM NOTE Cleanup of Sump I 3.2.26 I 11 0001101090 jindustrial sump miugation WAD ICY $ 257E I$ 15-00,000 Subtotal-Cleanup of Sump 11 $ 250;—,000 General Conditions and Markups-19% $ 475,000 GC Bonds-0.75%, $ 22,113 Subtotal-CONSTRUCTION HARD COSTS $ 2,997,113 Soft Costs.20% $ 599,463 Total $ 3,596,775 Exhibit 3.2.2 Page 7 of 13 EXHIBIT 3.2.20: Methane Systems at Conveyed Prol2erty In order for new development to be constructed on closed Class III landfills, Title 27 of the California Code of Regulations requires that appropriate action be taken to mitigate and monitor the effects of landfill gas accumulation(primarily methane) in on-site structures. Treadwell and Rollo prepared a conceptual design for a methane mitigation system at the structures in Phase I and Phase 11 of the Developer Project which will be constructed on the former landfill area, which is described in a memorandum titled"'Methane Mitigation Systems: Description and Unit Costs, Oyster Point Landfill" dated January 29, 2009, This system consists of vapor barrier membranes beneath the structural building slabs, a horizontal collection and venting system installed below the membrane,utility trench cutoffs that will seal the locations where utilities enter the buildings,perimeter cutoff trench to mitigate offsite methane migration, and a gas detection and monitoring system. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.2 Page 8 of 13 Co ra w 0 ;` C? L W LL aaa ,y , > F Fj c_Cr =M '� :° '" _E'' '�' rm cr ' n>cc ° 7 01 ra L — ra ri ti 0 y, ..M C I LU 1 it �r rrml � I sr, r ' y rr bj of .. l M u ryh j 00 rc f w C _ kf "t ., n ylp Yy ya a _• L TT Tn ✓ p� 4 r ? A za ..: Hathaway OYSTER POINT BUSINESS PARK Dinwiddie SHORENSTEIN/SKS INVESTMENTS LINE ITEM DETAIL February 25, 20 111 EXHIBIT KEY SYS CS11 DESCRIPTION Q U U/P EXT DIAGRAM NOTE Methane Systems at Conveyed Property 3.2.I0 3 2.000 02920 relocate ground water monitoring welk 8 EA $ 12,500.00 $ 100.000' 3.120 2 2000 02920 relocate methane cutoff trench 1,000 LF $ 250.06 $ 250,000 112C 2 200002920 methane monitoring at trench I LS $ 75,000.00 $ 75 GOO 3,21C 1 2000 02920 methane rack 19,840 TN $ 65.04 $ f,289 600 3,2,20 11 200002920 methane coftection and venting system 223,200 SF $ 2,75 $ 613,800 3.2.20 1 200002920 geamembrane gas barrier 223,200 SF $ 4.75 $ 1,060,200 2000 02920 geatextile fabric 322C I im ind 2000 02920 methane detection system 'Li $ 75,000,001$ 75,000 Subtotal-Methane Systems at Conveyed Property $ 3,463,600 General Conditions and Markups-19% $ 6S8,084 GC Bonds.0.75% $ 30,913 Subtotal-CONSTRUCTION HARD COSTS $ 4,152,597 Soft Cos"-20% $ 830,S 19 Totall $ 4,983,tl 16 Exhibit 3.2.2 Page 10 of 13 EXHIBIT 3.2.21): Relocation of Refuse under Buildings at Conveyed Property In order for structures, streets,utilities and other improvements to be located at the grades and elevations desired by both the City and the Developer, onsite grading must be completed. At certain areas of the landfill this grading requires the relocation of refuse from below planned structures and adjacent areas to other areas on site such as the recreation fields, marina parking areas and/or hotel site. This refuse relocation process will include proper excavation, transport, temporary covering, compaction and re-closure of the landfill cover. As the exact volume of relocated refuse after compaction is unknown, the assumed grading plan represents a conservative estimate of the maximum envelop for grade elevations. Landfill cover and grading associated with this refuse relocation is included in Exhibit 3.2.2A and all provision regarding grading shall apply to related work in this exhibit. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.2.2 Page 11 of 13 J r a x m �s `- ca _ as L c" rt u c e U. In v �I u > Ul r.0 CA �I .r Via; m b.. a f k,I w o- V, 0, x WC EL m +� �. E t � w w Hathaway OYSTER POINT BUSINESS PARK -1110 Dinwiddie "U11`41N'G'- SHORENSTEIN I SKS INVESTMENTS LINE ITEM DETAIL February 25, 2011 EXHIBIT KEY SYS CSI DESCRIPTION C3 U U/P EXT DIAGRAM NOTE Relocation of Refuse under Buildings at Conveyed Property 3.2.2D 1 2000 02200 collect refuse-building 90,000 CY $ 7.50 $ 675,000 3,2.2D 1 2000 02200 place refuse-developer parcel 90,000 CY $ 7.50 $ 675,000 12"2JD 11 2000 02200 tarping V6,200 SF $ 0.35, $ m 320,,6701 ........... 3.2.20 I 2000 02200 mass grading-cut-collect landfill protection layer 155.000 CY $ 4.25 $ 658.750 3.2.21) 1 2000 02200 export clean rill 21,600 CY $ 20m $ 432,000 ................ ............... 3. "D 1 2000 02200 fill to grade-city parcel 60.000 CY 4.25 $ 255000 "20 �O2200 fill to grade-pad elevation-parking cut 8.001 264.'0 3.2MI 1 33,000 CY $ $ Subtotal-Relocation of Refuse under Buildings at Conveyed Property $ zo General Conditions and Markups-19% $ 623,280 GC Bonds-0.75% $ 29,278 Subtotal-CONSTRUCTION HARD COSTS $ 3,932,976 Soft Costs-20% $ 786,596 Total $ 4,719,573 Exhibit 3'2.2 Page 13 of 13 Exhibit 3.3.1 Phase IID, HID, and IVD Site and Infrastructure,Improvements: Description and Cost ( ExHIBIT 33AA: Streets and Utilities at Phases 11D- IVD "Streets and Utilities at Phases IID- 1VD" refers to the components listed below located along the new Oyster Point Blvd. extending north through the Business Park, adjacent to Phases III and IV of the Developer Project. To allow for the desired configuration of parcels,portions of Oyster Point Blvd and Marina Blvd and related utilities will be relocated. The construction of the new streets and utilities includes the following components: (a) temporary roads (b) grinding and off haul(if necessary) of existing paving (c) rough grading (d) import/export soil (e) fine grading and compaction (f) road base (g) asphalt paving and striping (h) concrete curbs, gutters sidewalks, street trees, and landscaping on each side of roadway with aggregate base at curbs and sidewalks (i)islands with associated topsoil and curbs 0)traffic signalization and signage (k) electrical road and sidewalk lighting (1)temporary utilities (m) storm sewer(drain piping, catch basins, outfall interceptors,manholes and curb cuts) (n) sanitary sewer(piping, forced main, and manholes) (o) domestic water line and vaults (p) fire service stubs and hydrants (q)gas lines, and (r)joint utility trench with electrical prim conduits and pull boxes and telecom conduits A depiction of these improvements,as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.3.1 Page 1 of 1 0 0 > X m uj LL CL E < U u ar dd A� a Ln tn 14 011 Cr 12� v _ w 0- a CL «� ro oz c c EA U c V ar� UI CL , r 5 o <� of a ^� 1 7,it, 5 4, " Cc „ z Ell L 2 r w C w Hathaway OYSTER POINT BUSINESS PARK Dinwid'die f irm SHORENSTEIN/SKS INVESTMENTS LINE ITEM DETAIL 21251201 1 (revised 3115/2011) EXHIBIT KEY SYS CSI DESCRIPTION U U/P EXT DIAGRAM NOTE Streets and Utilities at Phases IID-WD 11 1 2000102250 � paving and aggregate base-roadways and parking 119,1500 SF $ 10,00 $ 1,190.000 ..... ..... 11 IA-1 2000 02250 patch paving-utility cuts, excl SF $ 15.00 excl ........... 3.3.1A-1 2 2000 02200 aggregate base-city sidewalk M750 SF 4.00 $ MOOG 3.3.1A-1 2 2000 02200 aggregate baseat curbs 11,600 LF $ 8.00 $ 92,300 33 JA-1 1 2000 02270 sediment basin excl excl 3.3.1A I 11 2000 02270 a.o.swppp controls-see section 02200 3.3.1 A-1 1 2000 02�270 installation of swppp controls-see section 02200 Ind incl 3.3.1A.1 1 200002270 silt fences incl ind 3.3.IA.I Y. 2000 02270 straw waddles inel incl 3.3.1A-1 1 200002270 straw blankets incl incl 3.3.1 A-1 1 200002270 rock waddles ind incl 3.3.1 A-1 1 2000102270 filter fabric incl incl 3.3.1A-1 1 2000 D2270 rock at entrance incl incl incl i 3.3.1A-1 1 2000 02270, winterization/stabilization rock Ind Ind. ......... ........ 3.3.1 A-I 1 200002270 summer maintenance incl Ind 3.3.IA-1 1111 2000 02270 winter maintenance incl ind 33,IA-1 200002270 best management practices nd 3.3.1 A-2 1 202002600 temp utilities I LS $ 150,000.00 $ 150,000 3.3.1A-2 1 202010260O storm drain piping 4847 LF $ 185.00 $ 526,695 .......... 3.3 IA-2 1 202002600 storm catch basins 2 EA $ 2.500.00 $ ............... 3.11 A-2 1 202 0 1 02600 storm catch manholes 23 EA $ 6,500.00 $ 149,500 i3,I A-i 1 2020 02600 sanitary piping 2,935 LF $ 185.00 $ 541975 ........... 3.3.1A.2 1 202002600 1 forced main 572 LF $ 225.00 $ 128,700 3.3.1'A-2 1 202002600 sanitary manholes V EA $ 6.500.00 $ 136,500 3.3.1A-2 1 2020 02600 domestic water line 4,139 LF $ 125.001 $ 517,375 33.1 A-2 1 2020 02600 fire service stubs 1.486 LF $ 115.00 $ 170,690 3.11 A•2 1 202002600 fire hydrants 8 EA $ 7,500.00 $ 60,000 3.3.1A-2 1 202002600 gas line 2,808 50,00 $ 140,100 jo- in,trench 3.3.IA-2 1 202002600 trench and backfill for 2,008 LF $ 150 00 $ 421,200 3.3.1A-2 I 2020 02600 clecTrical prim conduits 2.808 LF $ 60,00 $ 168,480 3.3.1 A-2 1 2020 02600 electrical prim puled boxes 8 EA 6,500,00 $ 52,000 3.3.1 A-1 1 2020 02600 electrical road and sidewalk lighting•marina boulevard 34 EA 8.500,00 $ 289,000 ................ 3.3,IA-2 1 2020 02600 telecommunications-6 ea x 4'in joint trench 2.808 LF $ 60.00 $ 168,480 3.3,1A-I 1 201002515 read striping I 1_5 $ 35.000.00 $ 35,000 .......... 3.3.1 A-1 2 201002550 city sidewalk 19,750 SF $ 8.00 $ 158,000 2 A 1 2010102550 vertical ---- -- ........ .....8,345.-LF $ 12.00 $1 100,140 3.3.1A-1 21 201010255D curb and gutter 1255 LF $ I&DO $ 52,080 .............. ........... 3.3.1 A-I ........... 2010 02900 planted:areas-oyster point boulevard 24,095 SF s I..2�."06_ $ 289,140 3 3 IA-I 20W102900 trees 414 EA 6.500 691,000 11L Z Subtotal-Streets and Utilities at Phases,IUD D-IVD $ 8,314,3SS Gen"Conditions and Markups-19% $ 1,579,727 GC Bonds-175% $ 74,206 Subtotal-CONSTRUCTION HARD COSTS $ 9,968,288 Soft Costs-20% $ 119,93,658 ..................... Total $ 11,961,946 Exhibit 3.3.1 Page 4 Of 10 ExHIRIT 3.3.1B: Sewer Pump Station I To allow for the reconfigured streets and the increased sanitary sewer demand associated with Phase 11, 111 and IV of the Developer Project, Sewer Pump Station No. I (currently located on the west side of Oyster Point Blvd adjacent to the existing buildings at 377 and 383 Oyster Point Blvd) will be relocated and upgraded to accommodate an increase in capacity. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, .and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. �Exhbt 3,3.1 Page 5 of 1 0 Page 0 4Yi C� +0 v �r r Z . a m) r fl 2 a ro c a CL y , 0 x j fry i 0 Vol u � W r / i -68 6j l r a /r v �I ' tr jwti 1 .Ih / i r / r n� s a � r r u � Z A Hathaway OYSTER POINT BUSINESS PARK "I All F Dinwiddie UH.DINIG SHORENSTEIN/SECS INVESTMENTS LINE ITEM DETAIL 212S1201 11 (revised 3111 S/201 1) EXHl1alT KEY SYS CSI DESCRIPTION G2 U U/P EXT DIAGRAM NOTE Relocation of Sewer Pump Station No.1 3.3.1 BI Wj 2020102600 pump station-office park I JEA $ 3,400,000.00 1$ 3,400,000 Subtotal'-Relocation of Sewer Pump Station No.1 $ 3,400,000 General Conditions and Markups-1'9% $ 646,000 GC Bonds-0.75% $ 30,345 Subtotal-CONSTRUCTION HARD COSTS $ 4,076,345 Soft Costs:-20% $ 815,269 Total $ 4,891,614 Exhbit 3.11 Page 7 of 10 ExHIBIT 3.3.1C: Landscaping at BCDC Area at Phases IID -IVD These improvements include an allowance for landscaping and Bay Trail construction along the BCDC area in Phases IlD—lVD. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.3.1 Page 8 of 1 0 C) oe) uj a- E a no co C CL - : � as .":] c —M f fn i 0 vii 0 z 2x < eA«0 Lr4 41 �5 tp J 27 aM? sv 9 r, QQAFF o-a �+ o � 6J zi M aw x Hathaway OYSTER POINT BUSINESS PARK Dinwiddie SHORENSTEIN/SKS INVESTMENTS LINE ITEM DETAIL February 25,2011 EXHIBIT KEY SYS CSI DESCRIPTION Q U UIP EXT DIAGRAM NOTE Landscaping at BC'DC Area at Phases IID-IVD 3.3:I I C P 2000 02200 ft,negr2de and compact-bcdc 116,000 SF $ 2.00 $ 232,000 3.3.1 C 11 201002230 additional topsoil-trees-bcdc 4,221 CY $ 95.00 $ 400,995 3.3.1 C I 2W0 02230 topsoil-bcdc 6,445 CY $ 95.00 $ C2275 3.1 IC 1 2010 02900 landscaping and trails-bcdc 116,0007 9F $ 12,00 $ 1,392„000 Subtotal-Landscaping at BCDC Area in OPBP $ 2,637,270 General Conditions and Markups-19% $ 501'081 CC Bonds-0.75% $ 23,538 Subtotal-CONSTRUCTION HARD COSTS $ 3,161,889 Soft Costs.20% $ 632,378 Total $ 3,794,267 Exhibit 3.3.1 Page 10 o f 10 Exhibit 3.3.2 Phase TIC Site and Infrastructure Improvements: Description and Cost MN 1615727.1 EXHIBIT 3.3.2A: New Sewer Pump Station at Marina A new Sewer Pump Station will be required at the Marina in order to accommodate an increase in the sanitary sewer demand associated with the future hotel and retail/restaurant development at the Oyster Point Marina. A depiction of these improvements as well as quantities and cost estimates are included in the following gages. These quantities, scope of work, and costs estimates were prepared based an conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.1-2 Page 1 of 15 Tj 4- pf _ . r`a LIJ a- E ? v s rc G] U- f'%. ° a �>v1 0 0 X � n •, ygyr, LU ry C �a r b "I a E lyyrl7�,= Ila LJ 4 LL ' Y✓iii°;,,: � �ra LM _ �Yf C L LU i vq-1't _., Z 7 Hathaway OYSTER POINT BUSINESS PARK 1rA1,I C11 Ditwiddie. WILDING SHORENSTEIN/SKS INVESTMENTS LINE ITEM!DETAIL February 25, 2011 EXHIBIT KEY SYS CSI DESCRIPTION u UIP EXT DIAGRAM NOTE New Sewer Pump Station at Marina 33.2.Aj 11 2020102600 1 pump station-marina I JEA 1$ 1,85�,000.OoTj 1,850,000 Subtotal-New Sewer Pump Station at Marina $ 1,850,000 General Conditions and Markups-19% $ 351,500 GC Bonds-0.75% $ 16,511 Subtotal-CONSTRUCTION HARD COSTS $ 2,218,011 Soft Costs-20% $ 443,602 Total $ 2,661,E4] Exhibit 3.3.2 Page 3 ExnIBIT 3.3.213: Clay Cap Repair at City Parcels 11C The eastern peninsula of Oyster Point was formerly operated as a municipal(Class 111) landfill starting in the 1950s. The landfill was closed in the 1970s in accordance with the State of California Regional Water Quality Control Board(RWQCB) regulatory guidelines that governed at the time. This closure was completed prior to the adoption of California Code of Regulations Title 27, which currently regulates Class III landfill closures. In June 2000, the RWQCB issued Order No. 00-046 which states that where new development is planned of a closed Class III landfill, a cap shall be placed on the landfill that meets the applicable post-closure maintenance requirements outlined in Title 27. In February 2009,Treadwell and Rollo issued a report entitled "Geotechnical Investigation of the Landfill Cover, Oyster Point Landfill,"which outlines modifications to the clay cap necessary to meet the requirements of Title 27. These modifications include increasing the thickness of the Landfill Cover in approximately seven areas, increasing the thickness of the Low Hydraulic Conductivity Layer(clay layer) in approximately four areas, and reducing the permeability of the Low Hydraulic Conductivity Layer in one area (this also could be accomplished by thickening the clay layer). The prescriptive cap/cover designated in Title 27, Section 21090 for Class III landfills consists of the following layers, from top to bottom: • Erosion-resistant layer(via vegetative layer): at least one foot of soil that contains no waste and is capable of sustaining native or other plant growth • Low hydraulic conductivitylayer: at least one foot of soil containing no waste or leachate and compacted to attain a hydraulic conductivity of I x 10-6 cm/see • Foundation layer: at least two feet of soil, contaminated soil, incinerator ash, or other waste materials,provided that such materials have appropriate engineering properties to be used for a foundation layer for construction of the low hydraulic conductivity layer "Clay Cap Repair at City Parcels IIC" refers to the improvements described above to be implemented on the City property to the east of the Ferry Terminal. At the time of completion of landfill cover modifications, rough grading of the top of the Erosion-resistant layer should be coordinated to no more than 2.5 inches (0.20 ft)of finish grade as outlined in the final grading plan in the construction documents. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.3.2 Page 4 of 15 ry "' c+7 0 ri Lo cn r cu I W CL x o ca I . ¢G CL ;r /err i u ca it 'Yr/ ! ., . LM g , o a I,) u xZ w G/ ;3 ar 6 /" ors;, ", w � � v i 1 Iz tl- , Lu �< .« ,1Mfv�l•,1 °�-affirm'�� °�s3 m: of LU C dt, U- 6" r Hathaway OYSTER POINT BUSINESS PARK Dinwiddie SHORENSTEIN/SKS INVESTMENTS LINE ITEM DETAIL February 25,2011 EXHIBIT KEY SYS CSI DESCRIPTION Q U U/P EXT DIAGRAM NOTE Clay Cap Repair at City Parcels Phase IlC 33.213 1 200C'02070 demo-surface improvements-clay cap repay 8,000 SF $ 1.00 $ 8,000 3.3.2B 1 2000 02200 collect-I'andfill protection layer 890..CY $ 4,25 $ 3,783 3.3.213 2 200002200 misc grading and rtsing I LS $ 250MOM $ 2501700 3.1213 1 200002200 place foundation layer 600 CY $ 6.00 $ 3.600 3.3.2 B 1 2000 02200 place clay cap-select areas 8�000 5F $ 2.010 $ 6,000 ....... ... ............—--'— 3.3.28 1 200002200 place protection layer 890 CY $ 5.00 $ 4,450 I improvements-clay cap repair 8,000 5F $ 14M $ 1 12,000 ---i6010 3 3,2BI replace surface Subtotal-Clay Cap Repair at City Parcels Phase 11C $ 397.833 General Conditions and Markups-19% $ 75.588 GC Bonds-0,75% $ 3,55,1 Subtotal-CONSTRUCTION HARD COSTS $ 476,971 Soft Costs-20% $ 95,394 Total $ 572,366 xhibit 3.3.2 Page 6 f 15 EXHIBIT 3.3.2C: Repaving of Existing Parking at Phase IIC "Repaving of Existing Parking at Phase II C"refers to improvements to be implemented at the parking lots to the cast of the Ferry Terminal. The improvements will consist of a new asphalt paving lift at the existing parking. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates,were prepared based on conceptual plans and will be modified when construction drawings are prepared. I Exhibit 3.3.2 Page of 15 � ca y m u.t a: h' / v E �C a CP i r� ii��✓"�j�i/� / r °'a ac � � g�r r�%i i ad E Yom- i +iJMV l J j s fW P; ,/p10 , + Hm acr f ; rs a•- ,h(r 141 UL �7 RS1� w NC F- 2 ' m rx Hathaway j OYSTER POINT BUSINESS PARK 1Z Dinwiddie SHORENSTEIN I SKS INVESTMENTS LINE ITEM DETAIL February 2S,20 11 EXHIBIT KEY SYS CS1 DESCRIPTION U UIP EXT DIAGRAM NOTE Repaving of the Existing Parking at Phase IIC 3.120 1 2000 02200 _import balance 1,185 C $ 7.50 $ 8.889 3 3,2C 1 200002200 curb cuts 1,000 LF $ 7.00 $ 7,000 3.3.20 1 201002250 ac paving-single lift over existing 181J21 SF $ 3.00 $ 543363 3.3.20 1 2010 02.515 parking lot striping 181,121 SF 0.50 $ 90,56 l Subtotal-Repaving of the Existing Parking at Phase IIC $ 649,812 General Conditions and Markups-19% $ 1123,464 GC Bonds-0,75% $ 5!,800 Subtotal-CONSTRUCTION HARD COSTS $ 779,076 Soft,Costs-20% $ 155,815 Total $ 934,842 Exhibit 3.3.2 Page 9 of 15 EXHIBIT 3.3.21): Landscape Tune-Up at Existing Parking at Phase IIC: A landscaping allowance has been included at the area around the existing parking lots to the east of the Ferry Terminal. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 13.2 0 of 15 Page ilge,i 111 u r+s 72 ,A � a- E< Lie -'n+�,wu�re��u���3aa�� ✓� � /� � �lJ ,Pal IOW � s „ py a ,r 'll", IC /6. ftI LIExz , Ilo; r w MC0 C" „AVIV v Rz h c 9 '6 g. Zn5 Hathaway OYSTER POINT BUSINESS PARK Dinwiddie , 8'U-J"LID:�M' SHORENSTEIN I SK INVESTMENTS LINE ITEM DETAIL February 2S, 2011 EXHIBIT KEY SYS CS1 DESCRIPTION U UJI, EXT DIAGRAM NOTE Landscape Tune-up at Existing parking at Phase I IC 3.3.293 1 11 2000 02200 finegrude and compact-tandscaped areas 202,020 SF I$ 2.00 1$ 404,D40 11 2010 02900 landscaping-city parcel 202,020 5F $ 4.00 $ 808.080 Subtotal-Landscape Tune-up at Existing Parking at Phase IIC $ 1,212,120- General Conditions and Markups-119% $ 210,303 GC Bonds-0.75% $ 10.818 Subtotal-CONSTRUCTION HARD COSTS $ 1,4S3,241 Soft Costs-20% $ 290,648 Total $ 1,743,889 Exhibit 3.3.2 Page 112 of 15 EXHIBIT 3.3.2E: Landscapiny,at BCDC Area at Phase IIC These improvements include an allowance for landscaping and Bay Trail construction along the BCDC area in Phase 11C. A depiction of these improvements as well as quantities and cost estimates are included in the following pages. These quantities, scope of work, and costs estimates were prepared based on conceptual plans and will be modified when construction drawings are prepared. Exhibit 3.3.2 x Page 13.of 15,_ La w. 1 La (' 0 CL III u (I < roc a r 7D Eo C Lij c rn ri N c >, o Ln zz 1 C^� Ill /y Flf�� ry f� e p f Ni d ua W m c qxe f Ai LU a r ac. rk f. z Hathaway OYSTER POINT BUSINESS PARK Dinwiddie d SHORENSTEIN I SKS INVESTMENTS LINE ITEM DETAIL, February 25,2011 EXHIBIT KEY SYS CSI DESCRIPTION Q U U/P EXT DIAGRAM NOTE Landscaping at BCDC Area at Phase 11C 3.3.2E I finegracle and compact-bcdc �Ilp 27��29? SE 1 2.001$ 548,400 3,12E 11 2020 02600 bay trail lighting-torchieres-bcdr SO JEA Is 6,500.00 $ 325,000 ---------------- 3.3,.2E 1 02900 landscaping-bcdc 274,200 ISF 1$ 12.001$ 3,290, Subtotal-Landscaping at BCDC Area at Phase 11C $ 4,163,800 General Conditions and Markups-19% $ 791,1122 G C Bonds-0.7.5% $ 37,162 Subtotal-CONSTRUCTION HARD COSTS $ 41,992,084 Soft Costs-20% $ 998,417 Total $ 5,990,501 Page 3.3,2 page 15 of 15 ( Exhibit 3.4.1 Redevelopment Project Cost Allocation ' N W M 4p+6R�cr]fq4" 4�6 t��tl W N Q1 r r4 R ^..d N N�0 0 � � N M�V� A 4M N 4ry W eAi rh c0 xp N ap Vb Vi rn�/}}ury rn w'!+,'I w e�wp U'h m 4a w.m 2/! ....oMr -woo.. 4'9 w1 enmM o-w. M'...0.+a- �/?4s1 x'/➢W Wy. 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CL CL CL"c amCL E Z t t LU U a r m t�= �v v 1� t�t� = v = 2222-'�� 2 .9 E 'n 12 2 E 4 U)w LO W U) 10 to W or pm cn Lo 0 li in 0%n(D IU)LO V) 0 0 1?R R as 0 W Av A All 0 rR7 U7 se Nr y�K 2� V,T4 T w(n En 0 M T U)to 0(a Ne Ne U, C)C)a Fj NJ U7 S,vD U3 (D to,M U) co (D w 0) 0 LQ M OL 0 0 < >z �i �L T 0- a L) in,CM 15 T N,"Z Ea co m M'2 E v 0 M'S.S Q. cj 0 o CL Q� CL im iL -n Sm G7 G7 F4 -<M jo 0 x (An a,.U747 rJx a 03 CL 0 w-j .a cn m rn w 0 12 <Moo ui 0 7: uo 1< w O>i I W 6 6 ri 6 Responsibility Matrix Summary Process/Item Descriptio Initial Fixed Monetary Contribution.- Assigned party(or parties)is to place into an escrow account the designated amount which will be used to fund design and construction of the applicable improvement. Amount of Initial Fixed Contribution-, The amount described shall be the initial contribution towards the design and construction of the applicable improvement. Any additional amounts,if required,are to be paid by the party responsible for cost overruns/savings defined below. Timing of Initial Fixed Contribution: The time of payment of the initial fixed monetary contribution. Authorization of Changes in Scope-, Assigned party(or parties)will have final authority to approve changes in the scope. Selection of Design Consultants: Assigned party(or parties)will have authority to select the design consultants for the design and engineering of applicable improvements. Final Acceptance of Design Assigned party(or parties)will have authority to give final approval of the design drawings prior to the start of construction. Design and Construction Assigned party will have responsibility to select,manage and Management contract with contractor. This work will be selected and performed through a typical private procurement process with a GMP or Cost Plus contract(with no 'at-risk' component for the construction manager). This contract will be paid for through escrow account funded by the Fixed Monetary Contribution above. The construction management fee will be a fixed fee of %of the contract amount and will be paid for through an escrow account funded by the Fixed Monetary Contribution above. Cost Overruns/Savings Except as otherwise set forth in Section 3.4.3 of the Agreement, assigned party(or parties)is responsible for cost overruns/savings for any reason(including but not limited to escalation,change in scope,-value engineering,etc)above/below the fixed monetary contribution. MN1616287,1 Exhibit 3.4.2 Form of Escrow Holdback A2reernent ESCROW HOLDBACK AGRIKEMENT THIS ESCROW HOLDBACK AGREEMENT("Agreement") is made and entered into as of this day of 201 ("Effective Date")by and among the REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body corporate and politic ("Agency"), OYSTER POINT VENTURES, LLC, a Delaware limited liability company("Developer"), and CHICAGO TITLE INSURANCE COMPANY("Escrow Agent"'). R-ECITALS A. Agency, Developer and The City of South San Francisco, a municipal corporation ("City")have entered into that certain Disposition and Development Agreement dated 2011 (the"DDA"),pursuant to which Agency and Developer each has certain responsibilities and obligations with respect to the development of certain land located in the City of South San Francisco, County of San Mateo, State of California, more particularly described on Exhibit A(the"Property"), on all of the terms and conditions set forth therein. All capitalized terms used herein but not other-wise defined herein shall have the meanings set forth in the DDA. B. Pursuant to Section 3.4.2. of the DDA,the Agency agreed to pay Eighteen Million,Three Hundred Ninety Nine Thousand,Four Hundred Sixty Dollars($18,399,460) (as,may be adjusted pursuant to Section 3.4.3 of the DDA)towards the Phase IC Improvement Costs ("Agency Funding Requirement"). Any portion of the Agency Funding Requirement that remains unspent upon the completion of the Phase IC Improvements shall be used towards the Agency's obligations in connection with the construction of the Phase IIC Improvements. The estimated Phase IC Improvement Costs and Phase IIC Improvement Costs and the respective Agency and Developer responsibility for payment for each component of such costs are detailed on Exhibit B attached hereto and made a part hereof. C. To secure Agency's performance of, and ensure funds are available to pay for,the Agency's share of the cost of the Phase IC Improvement Costs, Agency desires to deposit into escrow at Closing with Escrow Agent an amount equal to Dollars ($ at Closing, which amount is equal to the estimated amount of Phase IC Improvement Costs that will be incurred by the Developer in the three(3) month period following Closing. Approximately every three (3)months thereafter, Agency shall deliver funds into escrow that is equal to the estimated amount of Phase IC Improvement Costs (or Phase IIC Improvement Costs, if applicable)that will be incurred by the Developer in the following three(3) month period. Agency shall periodically deliver such funds within five(5)business days after receipt of written request from Developer, which request shall be accompanied by a description of the work to be completed during such three(3) month period. Any interest accruing on such escrowed funds shall become a part of the escrowed funds and shall be used only in connection with the construction of the Phase IC Improvements (or Phase IIC Improvement Costs, if applicable). All funds deposited into escrow pursuant to this Recital C shall be refer-red to herein as the "Holdback Funds," D. The terms by which such Holdback Funds shall be released to Agency and Developer shall be as set forth below. MN1615727.1 NOW THEREFORE, for good and valuable consideration,the receipt of which is hereby acknowledged, effective as of the Effective Date, the parties agree as follows: I. Agency and Developer hereby agree that the recitals set forth hereinabove are true and correct and incorporated into this Agreement. 2. Escrow Agent shall deposit the Holdback Funds into an interest bearing escrow account ("Escrow Account") at a depository acceptable to Agency and Developer("Depository"), Any interest accruing on the Holdback Funds shall be added to and become a part of the Holdback Funds. 3. Escrow Agent hereby acknowledges receipt of the initial Holdback Funds and hereby agrees to invest said sums and disburse said sums strictly in accordance with the terms and conditions of this Agreement, 4. The Holdback Funds shall be released to the parties as follows: (a) Developer shall be permitted to draw down on the Holdback Funds to pay for any costs and/or expenses incurred in constructing the Phase IC Improvements(or Phase IIC Improvement Costs, if applicable), Developer shall deliver a written disbursement request to both the Agency and Escrow Agent requesting that Escrow Agent release and pay to Developer or its designee from the Holdback Funds an amount equal to the costs and expenses that Developer has incurred in constructing the Phase IC Improvements (or Phase IIC Improvement Costs, if applicable). Such written statement shall include invoices or other documentation reasonably supporting the Developer's request. Provided that the Agency has not delivered to Escrow Agent and the Developer a written notice objecting to such disbursement request within five (5) business days after Agency's receipt of such request, Escrow Agent shall promptly disburse to Developer or its designee from the Holdback Funds the amount set forth in said written request. (b) Upon the completion of the construction of the Phase IC Improvements (or Phase lIC Improvement Costs, if applicable),Developer shall present to the Escrow Agent and Agency a written statement setting forth all of the costs and expenses incurred and payable by Developer in connection with the construction of the Phase IC Improvements (or Phase IIC Improvement Costs, if applicable)which were not previously covered in the prior disbursements pursuant to Paragraph 4(a)above. Upon receipt of such written statement, Escrow Agent shall promptly disburse from the Holdback Funds to Developer the amount set forth in the said written notice, If Agency's share of the actual costs of the construction of the Phase IC Improvements exceeds the amount of the Holdback Funds, Agency shall deliver to Developer the amount of such difference within ten(10)days after receipt of written request from Developer. 5. Escrow Agent shall send any payments released to the Agency directly to the Agency's bank account pursuant to instructions received from the Agency. 6. Escrow Agent shall send any payments released to Developer directly to its bank account pursuant to instructions received from Developer. 7. Escrow Agent shall not be liable for any loss caused by the failure, suspension, bankruptcy or dissolution of the Depository. & Escrow Agent shall not be liable for loss or damage resulting from: (a) any good faith act or forbearance of Escrow Agent; MN1615727.1 (b) any default,error,action or omission of any party, other than Escrow Agent and its agents; (c) the expiration of any time limit or other delay which is not caused by the failure of Escrow Agent to proceed as required by this Agreement; (d) the lack of authenticity of any writing delivered to Escrow Agent or of any signature thereto, or the lack of authority of the signatory to sign such writing; (e) Escrow Agent's compliance with all attachments, writs, orders,judgments, or other legal process issued out of any court; (f) Escrow Agent's assertion or failure to assert any cause of action or defense in any judicial or administrative proceeding; or (g) any loss or damage which arises after,the Holdback Funds have been fully disbursed in accordance with the terms of this Agreement. 9. Except as otherwise provided herein, Agency and Developer hereby authorize and direct Escrow Agent to accept, comply with and obey any and all writs, orders,judgments or decrees entered or issued by any court with or without jurisdiction; and in the case Escrow Agent obeys or complies with any such writ, order,judgment or decree of any court,it shall not be liable to Agency or Developer or any other person by reason of such compliance, notwithstanding such writ, order,judgment or decree to be entered without jurisdiction or to be subsequently reversed, modified, annulled, set aside or vacated. 10. Any notice, consent or approval required or permitted to be given hereunder shall be given in writing and shall be delivered(a) in person, (b) by Federal Express or another reputable commercial overnight courier that guarantees next day delivery and provides a receipt, or(c)by telefacsimile or telecopy, and such notices, consents or approvals shall be addressed to the addresses set forth in the DDA.or such other address as either party may from time to time specify in writing to the other parties, except that notice to the Title Company shall be addressed to Attn.: , Fax: . Any notice,consent or approval required or permitted to be given hereunder shall be deemed delivered when actually received by the recipient. Il. This Agreement shall not be assignable by Agency without the prior written consent of Developer, which consent may be given by Developer in its sole discretion. This Agreement shall only be assignable by Developer to the extent that the DDA is transferable or assignable pursuant to Article VIII of the DDA. Subject to the foregoing,this Agreement and the terms and provisions hereof shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, personal representatives, successors and assigns. 12. If either party hereto fails to perform any of its obligations under this Agreement or if any dispute arises between the parties hereto concerning the meaning or interpretation of any provision of this Agreement, then the defaulting party or the party not prevailing in such dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party on account of such default and/or in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and disbursements. Any such attorneys' fees and other expenses incurred by eitber party in enforcing a judgment in its favor under this Agreement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment. - MN16157'27.1 13. This Agreement shall be governed by and construed in accordance with the laws of the State of California. This Agreement may be signed in counterparts and all counterparts so executed shall constitute one contract, binding on all parties hereto, even though all parties are not signatory to the same counterpart. The parties contemplate that they may be executing counterparts of the Agreement transmitted by facsimile and agree and intend that a signature by facsimile machine shall bind the party so signing with the same effect as though the signature were an original signature, IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective authorized representatives as of the date and year first above written. AGENCY: DEVELOPER: REDEVELOPMENT AGENCY OF THE CITY OYSTER POINT VENTURES LLC, OF SOUTH SAN FRANCISCO, a Delaware limited liability company a public body,corporate and politic BY: SRI Nine Oyster Point LLC, By: a Delaware limited liability company, its Managing Member Name: Executive Director By: Name: ATTEST: Its: By-, Agency Secretary By: SIBS Oyster Point, LLC, a Delaware limited liability company, APPROVED AS TO FORM: its Member By: By: Agency General Counsel Name: Its: ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY By: Name: Its: MN1615727.1 Exhibit A Property NIN1615727.1 Exhibit B Estimated Casts of Phase IC Improvements N4N1615727.1 Exhibit 4.1 Form of Amendment to the Joint Powers Ageement Between the San Mateo Count Harbor District and the City of South San Francisco MN1615727.1 AGREEMENT BETWEEN AND AMONG THE CITY OF SOUTH SAN FRANCISCO, THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, AND THE SAN MATEO COUNTY HARBOR DISTRICT This Agreement Between and Among the City of South San Francisco, The Redevelopment Agency of South San Francisco, and the Sari Mateo County Harbor District (this "AGREEMENT"), dated and made effective as of March , 2011 (the "Effective Date"), is entered into by and among the City of South San Francisco, a municipal corporation ("City") the Redevelopment Agency of the City of South San Francisco„ a public body, corporate and politic ("Agency") and the San Mateo County Harbor District, a political subdivision of the State of California ("District"). City, Agency and District are hereinafter collectively referred to as the "Parties." RECITALS A. City is the owner of certain real property located in the City and commonly known as the Oyster Point Marina ("Marina Property"), as shown on the parcel map attached hereto as Exhibit A. City and District have entered into a joint powers agreement related to the development, operations, and maintenance of the Marina Property pursuant to Government Code section 6500 et seq. (°JPA"). City desires redevelopment of the Marina Property including potential commercial and office/research and development uses and public amenities. B. District entered into certain long-term leases with Kung Ventures for certain portions of the Marina Property("King! Leases") as shown generally on Exhibit A. District uses rent revenue from the King Leases to pay debt service on loans from the California Department of Boating and Waterways ("DB "), which has a security interest in the King Leases, C. Oyster Point'Ventures, LLC("Developer") is the owner of certain property located in the City, commonly known as the Oyster Point Business Park("Business Park"), and adjacent to the Marina Property as shown on Exhibit A. Developer acquired the Business Park for the specific purpose of redeveloping the Business Park as a modern research and development life sciences campus with substantial public amenities. D. Developer has proposed the development of an office/research and development life sciences campus, commercial development(including retail, restaurants, and hotel uses), and substantial public amenities located on the Business Park and a portion of the Marina Property as shown on Exhibit B ("Project"). In furtherance of Project, Developer also acquired King Ventures" interests in the King Leases. In addition,the City and Agency have proposed additional public and private improvements on a separate portion of the Marina Property as shown on Exhibit B. E. The Parties anticipate that in addition to the Developer's acquisition of the King Leases, the Project will require one or more agreements with Developer to exchange interests in portions of the Marina Property("Conveyance Agreement'°), a Disposition and Development Agreement or similar agreement("DDA")to establish conveyance and financing terms for development of portions of the Marina Property, and a development agreements and various land use entitlements to govern development of Project components at the Business Park and portions of the Marina Property("City Approval's") (collectively, the"Developer Binding Agreements"). The Parties have agreed that the City and the Agency shall be the entities that negotiate and contract directly with Developer. I Harbor District Agreement(3-18-11 F. On May 27, 2009, the Parties entered into a Memorandum of Understanding (WOU") as an expression of preliminary points of agreement among the Parties concerning development of the Project. This Agreement will supersede any points of agreement contained within the MOU. G. City, in conjunction with Agency, pursuant to the California Environmental Quality Act (Section 21000 et seq. of the Public Resources Code, and the Guidelines set forth at 14 California Code of Regulations section 15000 et seq., "CE0K), has prepared and circulated for public comment a Draft EIR to evaluate the potential environmental impacts of the proposed Project. No construction will be authorized until (i) City, in conjunction with Agency, has certified as adequate and approved a Final EIR; (ii) City has approved the land use entitlements required for the Project; and (iii) any agreements or regulatory permits required by any other applicable regulatory agendes have been obtained. The City, by Resolution No. -certified the Oyster Point Specific Plan Environmental Impact Report("EIR")for the Project and all related improvements, NO THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged', the Parties agree as follows: Section I Purpose and Effectiveness of this Agreemen . This Agreement supersedes all of those preliminary points of agreement contained within the IOU., The Parties expressly acknowledge and agree that: (i)the terms and conditions set forth in this Agreement are subject to the approval of, or modification by, the governing bodies of City, Agency and District; and (ii) following approval of this Agreement by City, Agency and District, the Parties intend for the provisions contained within this Agreement to be self- executing upon occurrence of the required conditions precedent and will not require any further approval by the governing bodies of the City, Agency and District. Section 2 Agency, Rights and Obligations. Any Agency rights and obligations under this Agreement will automatically be assigned to City in the event that Agency is terminated, or no longer has the ability to fulfill its obligations as set forth herein. Any assignment of rights and obligations pursuant to this Section,does not require any further approval by the governing bodies of the City, Agency and District, Section 3 Term. The term of this Agreement (the "Term") shall commence on the Effective Date, and shall terminate on November 11, 2026 (termination date of the JPA), unless extended or earlier terminated as provided herein. Section 4 JPA Amendment. Upon point of conveyance of any portion of the Marina Property to Developer, Section 2 and Section 3 of the JPA, and those incorporated exhibits (Exhibit 1 and Exhibit 2), are hereby amended to remove from the terms of the JPA those conveyed portions of the Marina Property, as more particularly described in Exhibit, C, attached hereto and incorporated by reference. Agency and District hereby consent to this amendment of the JPA, and no further approval by the governing bodies of the City, Agency and District is required. The timing of the property conveyance and JPA amendment shall occur pursuant to the provisions of the Disposition and Development Agreement between the Agency, City and the Developer. The remaining terms of the JPA will remain in full force and effect, unless otherwise amended pursuant to the terms of the JPA. 2 Harbor District Agreement(3-18-11) Section 5 Lease Revenue. In the event the King Leases are conveyed to the City or Agency and thereafter terminated prior to Di'strict's payment of its existing debt obligations to D�BW which as of the Effective Date total $10,083,374.03, Agency will provide the District an annual amount not to exceed the amount of minimum rent (as defined in the King Leases), including inflation adjustments set forth in the King Leases, that District is already entitled to under the King Leases ("King Lease Rent") commencing after termination of the King Leases and continuing until the DBW debt service is retired, or the termination of the King Leases in 2026, whichever occurs first. Agency will prorate any funds provided to D,BW if the King Leases are terminated during a portion of a year. For purposes of example only if the King Leases were terminated on 1 2011, the annual payment due to the District for minimum rent would equal , which is the same amount Developer presently pays for lease payments. Section 6 Marina Operations. 6,1 Dock Improvements, City(with funding provided by the Agency) or Agency will commit and pay funds for design, engineering, permitting and construction of one or two new docks at the Harbor District operated harbor adjacent to the Marina Property in an amount not to exceed One Million Five Hundred Thousand Dollars ($1,500,000.010) over the next four years in connection with the Project, provided that District satisfies the District's obligation in Section 6.2. 6,2 District Capital Improvement and Management Plans for Harbor Operations. Prior to the Agency's obligation to pay funds for dock improvements as set forth in Section 6.1, District will provide the Agency and City with a draft capital improvement plan showing the new dock or docks and a management plan to increase berth occupancy and direct revenue, both of which documents shall be subject to review and approval by the City, which such approval shall not be unreasonably withheld. 6.3 Government Approvals, District is solely responsible for any permits, approvals and government entitlements required for dock improvements. Upon request, the City will consider waiving fees for permits, approvals, and other entitlements required for dock improvements. Section 7 District Office Space. 7.1 Temporary Office,Space, Upon City's receipt of Developer's request for conveyance of the property, the City and District will meet to discuss the District's temporary office space needs. The City will endeavor to provide six (6)months notice to the District of actual conveyance. Upon actual conveyance of property and receipt of a written request from the District, City will lease to District up to 2,000 square feet [approximate current office space use,to be confirmed by District]of temporary office space in a property owned by the City until the earlier of termination of the JPA or at such time as the Permanent Office Space specified in Section 7.2 is available for occupancy. The rental rate for the temporary office lease space shall be one dollar per year. District shall take the leased space in its "as-is"condition and shall be responsible for all costs associated with obtaining permits for and constructing tenant improvements within the space. District shall also pay all utility costs, maintenance costs, custodial services and applicable taxes for the temporary office lease space during the term of the lease. 7.2 Permanent Office Space. Provided that Phase I of Project is completed, the Agency will aggressively market for 40,000 square feet of commercial space that is presently proposed under the Oyster Point Specific Plan. Additionally, Agency and City will reserve up to 5,000 square feet of commercial space for District office and meeting room use. The rental rate for the permanent office lease space shall be based on market rate rent for comparable space at the time the lease is approved. Provided 3 Harbor District Agreement(3-18-11) that the Phase IC Improvements have been completed, and the Agency has aggressively marketed for 401,000 square feet of commercial space, but no space for the District office is developed within seven (7) years, the Parties will discuss providing a parcel of land for the District's office use and related facilities through the term of the JPA. The Parties agree that any such discussion shall occur as part of discussion related to the term of the JIPA. District shall be responsible for all costs associated with obtaining permits for and constructing tenant improvements within the space. District shall also pay all utility costs, maintenance, costs, custodial services and applicable taxes for the permanent office lease space during the term of the lease. Section 8 Cily Consultation. For twenty-four(24) months following the Effective Date of this Agreement, City and Agency will consult with District regarding potentially extending the term of the JPA, and potentially amending the JPA to address the respective roles of the City and the District in operating the Marina Property; addition to or replacement of existing infrastructure; removal of outdated JPA provisions; the City's and District's respective obligations regarding providing services to the Marina Property, including police,fire, and landscaping; and/or potential revenue sharing for commercial properties. This provision does not obligate any Party to agree to any terms that may be discussed. Section 9 District Costs. Provided the Agency has available funds arising for the continuation of redevelopment agency authority, the Agency will reimburse the District for its actual and reasonable costs of negotiating this Agreement in an amount not to exceed $35,000,00. Section 10 Additional Debt by District. District will not incur any additional debt secured by any revenue generated by the Marina Property or the property itself without first obtaining express written consent from the City. Section 11 Marina Property Access. During the Term, District shall provide City, Agency and/or Developer access to the Marina Property and will cooperate with City, Agency and/or Developer to enable such parties or their representatives to obtain access to the Marina Property for the purpose of obtaining data and making tests necessary to investigate the condition of the Marina Property, provided that City, Agency and/or Developer comply with all safety rules and does not unreasonably interfere with the operations of any current tenants, City, Agency and/or Developer shall at all times keep the Marina Property free and clear of all liens and encumbrances affecting title to the Marina Property. Section 12 Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this,Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Parties in accordance with this Section. All such notices shall be sent by: (i)personal delivery, in which case notice is effective upon delivery; or (ii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service. 4 Harbor District Agreement(3-18-11) City., City of South San Francisco 400 Grand Ave. South San Francisco, CA 94080 Attn: City Manager Phone: (650) 829-662,0 Facsimile: (650) 829-6623 Agency: Redevelopment Agency of the City of South San Francisco 400 Grand Ave. South San Francisco, CA 94080 Attw Executive Director Phone: (650)829-6620 Facsimile: (650) 829-6623 with a copy to: Meyers Nave 575 Market Street, Suite 2600 San Francisco, CA 94105 Attn: Steven T. Mattas Phone: (415)421-3711 Facsimile: (415)421-376,7 District: San Mateo County Harbor District 400 Oyster Point Blvd., Suite 300 South San Francisco, CA 94080 Attn: General!Manager Phone: (650) 583-4400 Facsimile: (650) 583-4611 Section 13 Severability. If any term or provision of this Agreement or the application thereof shall, to any extent, be held to be invalid or unenforceable, such term or provision shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms and provisions of this Agreement or the application of such terms and provisions to circumstances other than those as to which it is held invalid or unenforceable unless an essential purpose of this Agreement would be defeated' by loss,of the invalid or unenforceable provision. Section 14 Entire Agreement; Amendments in Writing, Counterparts. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral and written, between the Parties with respect to such subject matter. This Agreement may be amended only by a written instrument executed by the Parties or their successors in interest. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Section 15 Successors and Assigns; No Third-Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided however, that neither Party shall transfer or assign, any of such Party's rights hereunder by operation of law or otherwise without the prior written consent of the other Party, and any such transfer or assignment without such consent shall be void. Subject to the immediately preceding sentence, this Agreement is not 5 Harbor District Agreement(3-18-11) intended to benefit, and shall not run to the benefit of or be enforceable by, any other person or entity other than the Parties and their permitted successors and assigns. Section 16 Governing,Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Section 17 Relationship of Parties,. The Parties agree that nothing in this Agreement is intended to or shall be deemed or interpreted to create among them the relationship of buyer and seller, or of partners or joint venturers,. Section '18 Capdons. The captions used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of the provisions hereof, SIGMA LURES,QN,THE'NW PA-QE 6 Harbor District Agreement(3-18-11) IN WITNESS WHEREOF, the Parties have executed this Memorandum of Understanding effective as of the date first written above, CITY AGENCY CITY OF SOUTH' SAN I FRANCISCO, REDEVELOPMENT AGENCY OF THE CITY OF a municipal corporation SOUTH SAN FRANCISCO, a public body, corporate and politic By: By Name: Name: City Manager Executive Director ATTEST: ATTEST: By: By: City Clerk Agency Secretary APPROVED AS TO FORK APPROVED AS TO FORM: By: By: City Attorney Agency General Counsel DISTRICT SAN MATEO COUNTY HARBOR DISTRICT, a political subdivision of the State of California By: Name: General Manager ATTEST: By: District Secretary APPROVED AS TO FORM: By: District Counsel 7 Harbor District Agreement(3-18-11) Exhibit List EXHIBIT A MAP OF THE PROPERTY 16134181 8 Harbor District Agreement(3-18-11) EXHIBIT B 9 Harbor District Agreement(3-18-11) EXHIBIT C 1'Q Harbor District Agreement(3-18-11) Exhibit 4.6A Form of Grant Deed RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Morrison& Foerster LLP 425 Market Street San Francisco, California 94105 Attn: Zane Gresham, Esq. Documentary Transfer Tax is not of public record and is shown on a separate sheet attached to this deed. GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Redevelopment Agency of the City of South San Francisco, a public body corporate and politic ("Agency"), hereby grants to Oyster Point Ventures, LLC, a Delaware limited liability company ("Grantee"), the real property located in the City of South San Francisco, County of San Mateo, State of California, described on Exhibit A attached hereto and made a part hereof. PROVIDED HOWEVER, that this Deed and the warranty of title contained herein is made expressly subject to real property taxes not yet due and payable. Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision(a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (in) and paragraph (1) of subdivision(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or,segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land. MNJ 615727.1 Executed as of this _day of-, 201 . AGENCY REDEVELOPMENT AGENCY OF'THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: Name: Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency General Counsel MN 1615 72 7.1 Exhibit A to Deed Legal Property Description MN1615727.1 2'01 San Mateo County Recorder -, California Re: Request That Statement of Documentary Transfer Tax Not be Recorded Dear Sir or Madam: Request is hereby made in accordance with Section 11932 of the Revenue and Taxation Code that this statement of tax due not be recorded with the attached deed but be affixed to the deed after recordation and before return as directed on the deed. The attached deed names, Redevelopment Agency of the City of South San Francisco, a public body corporate and politic, as grantor, and Oyster Point Ventures, LLC, a Delaware limited liability company, as grantee. The property being transferred and described in the attached deed is located in the City of South San Francisco, County of'San Mateo, State of California. The amount of Documentary Transfer Tax due on the attached deed is $ computed on fall value of the property conveyed. AGENCY REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: Name: Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency General Counsel MN1615727.1 Exhibit 4.6B Form of Assigpment and Assumption of the King Leases ASSIGNMENT AND ASSUMPTION OF GROUND LEASES This Assignment and Assumption of Ground Lease ("Assignment") is executed as of this day of , 201_(the "Effective Date") by and between Oyster Point Ventures, LLC, a Delaware limited liability company("Assignor") and Redevelopment Agency of the City of South San Francisco, a public body corporate and politic("Assignee"). WITNESSETH: WHEREAS, Assignor, Assignee and The City of South San Francisco, a municipal corporation("City") have entered into that certain Disposition and Development Agreement dated -, 2011 (the"DDA"); WHEREAS, Assignor is the current owner and holder of certain leasehold estates (the ""Leasehold Estates") covering certain ground lease parcels and the improvements thereon located as described in Exhibit A attached hereto and made a part hereof, which Leasehold Estates are created and evidenced by the documents and instruments described on Exhibit B (collectively, the "Ground Leases"') attached hereto and made a part hereof; and WHEREAS, Assignor desires to assign to Assignee all of Assignor's right, title, interest and obligations in, to and under the Ground Leases and Assignee desires to accept such assignment and assume Assignor's right, title, interest and obligations in, to and under the Ground Leases, all on the terms and conditions set forth below. NOW, THEREFORE, IN CONSIDERATION of the foregoing, and the mutual covenants and conditions contained herein, the parties hereby agree as follows: I. Assignment. Effective as of the Effective Date, Assignor hereby assigns, transfers and conveys to Assignee all of Assignor's right, title, interest and obligations in and to the Leaschold Estates and the Ground Leases, together with the improvements located thereon, which transfer and conveyance shall include, without limitation, the right to possession of the premises. 2. Assignor's Obligations. Assignor shall not be responsible under the Ground Leases for the discharge and performance of any and all duties and obligations to be performed and/or discharged by the lessee under the Ground Leases arising subsequent to the Effective Date. Notwithstanding the foregoing, to the extent any duties and obligations to be performed and/or discharged under the Ground Leases arose prior to the Effective Date, Assignor shall promptly perform and/or discharge such duties and/or obligations as they become due. MN1615727A 3. Assumption. Effective as of the Effective Date, Assignee hereby accepts the foregoing assignment and assumes all of'lessee's duties and/or obligations under the Ground Leases to the extent such duties or obligations arise subsequent to the Effective Date. 4. Indemnification., (a) Assignee shall save and defend, protect, indemnify and hold Assignor harmless from any and all claims, demands, actions, causes of actions, suits, proceedings, damages, liabilities, costs and expenses of every nature whatsoever relating to the Ground Leases or the premises demised thereunder(collectively, "Claims") arising out of matters occurring on or after the Effective Date of this Assignment regardless of whether such Claims were first made either prior to or after the Effective Date; provided, however, the foregoing indemnity shall not extend to or include any claims, demands, actions, causes of action, suits, proceedings, damages, liabilities, costs and expenses resulting from or caused by the willful or negligent act of Assignor, its agents or employees. (b) Assignor shall save and defend, protect, indemnify and hold Assignee harmless from any and all Claims arising out of matters occurring prior to the Effective Date of this Assignment regardless of whether such Claims were first made either prior to or after the Effective Date; provided, however, the foregoing indemnity shall not extend to or include any claims, demands, actions, causes of action, suits, proceedings, damages, liabilities, costs and expenses resulting from or caused by the willful or negligent act of Assignee, its agents or employees. 5. Successors and Assigns. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 6. Governing Lbw. This Assignment shall in all respcets be governed by, and construed in accordance with, the laws of the State of California. 7. Counterparts. This Assignment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any signature page of this Assignment may be detached from and added to any counterpart of this Assignment identical in form hereto. [Signatures continue on f6 lowing page] MNI 615727.1 IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective as of the Effective Date, "ASSIGNOR" "ASSIGNEE" OYSTER POINT VENTURES LLC, REDEVELOPMENT AGENCY OF THE a Delaware limited liability company CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: SRI Nine Oyster Point LLC, a Delaware limited liability company, By its Managing Member Name: By: Executive Director Name: ATTEST: Its: By: By: SKS Oyster Point, LLC, Agency Secretary a Delaware limited liability company, its Member APPROVED AS TO FORM: By: By: Name: Agency General Counsel Its: NlN1615727.1 ` .EXHIBIT A LEGAL DESCRIPTION ` EXHIBIT B DESCRIPTION OF GROUND LEASES ( MNI 615727.1 Exhibit 4.6.1A Form of Bill of Sale BILL OF SALE For good and valuable consideration the receipt of which is hereby acknowledged, Redevelopment Agency of the City of South San Francisco, a public body coiporatc and politic ("Agency"), does hereby sell, transfer, and convey to Oyster Point Ventures, LLC, a Delaware limited liability company ("Developer"'), all personal property owned by Agency and located on or in or used in connection with the Conveyed Property (as such term is defined in that certain Disposition and Development Agreement entered into by and among Agency, Developer and The City of South San Francisco, a municipal corporation on 12011), including, without limitation, those items described in Schedule A attached hereto. Seller does hereby represent to Buyer that Seller is the lawful owner of such personal property, that such personal property is free and clear of all encumbrances, and that Seller has good right to sell the same as aforesaid. DATED this day of-, 201 , AGENCY REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate, and politic By: Name: Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency General Counsel NIN1615727.1 Schedule A to Bill of Sale MNl 61572T 1 Exhibit 4.6.113 Form of Assignment of Intangible Property ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES, GUARANTIES AND OTHER INTANGIBLE PROPERTY THIS ASSIGNMENT ("Assignment") is made and entered into as of this_day of 5 201_, by Redevelopment Agency of the City of South San Francisco, a public body corporate and politic ("Assignor"), to Oyster Point Ventures, LLC, a Delaware limited liability company ("Assignee"). FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, effective as of the Effective Date (as defined below), Assignor hereby assigns and transfers unto Assignee all of its right, title, claim and interest in and under the following: (a) all warranties and guaranties made by or received from any third party with respect to any building, building component, structure, fixture, machinery, equipment, or material situated on, contained in any building or other improvement situated on, or comprising a part of any building or other improvement situated on, any part of that certain real property described in Exhibit A attached hereto (the"Property") including, without limitation, those warranties and guaranties listed in Schedule I attached hereto (collectively, "Warranties"); (b) all of the service contracts listed in Schedule 2 attached hereto (the "Service Contracts"); and (c) any and all licenses, pen-nits, authorizations, certificates of occupancy and similar documents pertaining, or applicable to, or in any way connected with, the rental, maintenance and operation of the Property. ASSIGNOR AND ASSIGNEE FURTHER HEREBY AGREE AND COVENANT AS FOLLOWS: I. Assignor hereby agrees to indemnify Assignee against and hold Assignee harmless from any and all cost, liability, loss, damage or expense, including, without limitation, reasonable attorneys' fees, originating prior to the Effective Date and arising out of the owner's obligations under the Service Contracts. 2. Except as otherwise set forth in that certain Disposition and Development Agreement entered into by and among Agency, Developer and The City of South San Francisco, a municipal corporation on ' 2011 (the "DDA'), effective as of the Effective Date, Assignee hereby assumes all of the owner's obligations under the Service Contracts and agrees to indemnify Assignor against and hold Assignor harmless from any and all cost, liability, loss, damage or expense, including,, without limitation, reasonable attorneys' -fees, originating on or subsequent to the Effective Date and arising out of the owner"s obligations under the Service Contracts. MN 1615 72 7.1 3. If either party hereto fails to perform any of its obligations under this Assigninent or if a dispute arises between the pat-tics hereto concerning the meaning or interpretation of any provision of this Assignment, then the defaulting party or the party not prevailing in such dispute shall pay any and all costs and expenses incurred by the other party on account of such default and/or in enforcing or establishing its rights hereunder, including, without limitation, arbitration or court costs and attorneys' fees and disbursements. Any such attorneys' fees and other expenses incurred by either party in enforcing a judgment in its favor under this Assignment shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Assignment and to survive and not be merged into any such judgment. 4. This Assignment shall be binding on and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors in interest and assigns. 5. This Assignment shall be governed by and construed and in accordance with the laws of the State of California. 6. For purposes of this Assignment, the"Effective Date" shall be the date of the Closing (as defined in the DDA). [Signatures continue on following page] 1V N1615727.1 IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the day and year first above written, "ASSIGNOR" "ASSIGNEE" REDEVELOPMENT AGENCY OF THE OYSTER POINT VENTURES LLC, CITY OF SOUTH SAN FRANCISCO, a Delaware limited liability company a public body, corporate and politic By: SRI Nine Oyster Point LLC, By: a Delaware limited liability company, its Managing Member Name: Executive Director By: Name: ATTEST: Its: By: Agency Secretary By: SIBS Oyster Point, LLC, a Delaware limited liability company, its Member APPROVED AS TO FORM: By: By: Agency General Counsel Name: Its: MN1615727.1 Exhibit A to Assignment of Service Contracts Warranties and Guaranties and Other Intangible Property MN1615727A Schedule I to Assignment of Service Contracts Warranties and Guaranties, and Other Intangible Property List of Warranties MNI 615727.1 Schedule 2 to Assignment of Service Contracts Warranties and Guaranties and Other Intangible Property List of Service Contracts MN1615727.1 Exhibit 4,.6.1 C Form of F'IRPTA Affidavit CERTIFICATE OF TRANSFEROR OTHER THAN AN INDIVIDUAL (FIRPTA Affidavit) Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes (including Section 1445), the owner of a disregarded entity(which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by Redevelopment Agency of the City of South San Francisco, a public body corporate and politic ("Transferor"), the undersigned hereby certifies the following on behalf of Transferor: 1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations,); 2. Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii); 3. Transferor's U.S. employer identification number is: ; and 4. Transferor's office address is City of South San Francisco, 400 Grand Avenue, South San Francisco, CA 94080. Transferor understands that this certification may be disclosed to the Internal Revenue, Service by transferee and that any false statement contained herein could be punished by fine, imprisonment or both. Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Transferor. [Signature on following page] MN1615727.1 Dated: AGENCY REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: Name: Executive Director ATTEST: By-, Agency Secretary APPROVED AS TO FORM: By: Agency General Counsel MN1615727,1 / ` Exhibit 4.8.2 Service Contracts / EXMBIT 4.8.8: Pre-Existing Environmental Conditions The following documents identify the known existing environmental conditions at Oyster Point Marina V'ill'age: Documents commissioned by S/SKS: 1. Treadwell and Rollo, Environmental and Geotechnical Consultants. "Draft Sump I Investigation, Former Oyster Point Landfill, South San Francisco, CA." April 9, 2009. 2. Treadwell and Rollo, Environmental and Geotechnical Consultants. "Sump I and 2: Cost Estimates for Development-related Remediation, Oyster Point Landfill/Oyster Point Business Park, South San Francisco, CA." March 20, 2009. 3. Treadwell and Rollo, Environmental and Geotechnical Consultants,. "Geotechnical Investigation of the Landfill Cover, Oyster Point Landfill, South San Francisco, CA" March 13, 2009. 4. Treadwell and Rollo, Environmental and Geotechnical Consultants, "Work Plan for Investigation and Delineation of Sump 1, Oyster Point Landfill/Oyster Point Business Park, South San Francisco, CA." February 25, 2009, 5. Tom Graf, Grafcon. Letter to with confirmation from Vic Pal, Regional Water Quality Control Board and Greg Schirle, Environmental Health, LEA Section, San Mateo County: "Results of Meeting to Discuss Regulatory Requirements Shorenstein/SKS Oyster Point Landfill Development, South San Francisco, CA." February 9, 2009, 6. Treadwell and Rollo, Environmental and Geotechnical Consultants. "Peer Review of Waste Discharge Requirements Monitoring, Oyster Point Landfill/Oyster Point Business Park, South San Francisco, CA." February 3, 2009. 7. Treadwell and Rollo, Environmental and Geotechnical Consultants. "Methane Mitigation Systems: Description and Unit Costs, Oyster Point Landfill/Oyster Point Business Park, South San Francisco, CA." Januar 29, 2009. y 8. Treadwell and Rollo, Environmental and Geotechnical Consultants. "Methane Mitigation Systems: Description and Unit Costs, Oyster Point Landfill/Oyster Point Business Park, South San Francisco, CA."January 29, 2009. 9. Treadwell and Rollo, Environmental and Geotechnical Consultants. "BAAQMD Permit Exemption for Landfill and Building Methane Mitigation Systems, Oyster Point Landfill/Oyster Point Business Park, South San Francisco, CA."January 29, 2009. 10. Treadwell and Rollo, Environmental and Geotechnical Consultants. "Preliminary Foundation Design Criteria, Oyster Point Development, South San Francisco, CA." January 16, 2009. 1 1615727.1 11. McCampbell Analytical, Inc. Work Order Nos. 0812760 and 0812696, Sample Analysis and QC Report, Oyster Point. January 5, 2009. 12. MACTEC Engineering and Consulting, Inc. "Phase I Environmental Site Assessment, Oyster Point King/SKS and City Parcels, Oyster Point and Marina Boulevards, South San Francisco, CA." September 26, 2008. Other Documents: 1. Terra Engineers, Inc. with PES Environmental, Inc. "2008 Semi-Annual Monitoring Report, Fortner Oyster Point Landfill, South San Francisco, CA.," July 22, 2008. 2. Terra Engineers, Inc. with PES Environmental, Inc. "Annual Report 2007, Former Oyster Point Landfill, South San Francisco, CA." January 28, 2008, 3. Kleinfelder West, Inc. "Feasibility Study and Cost Estimate, Proposed Oyster Point Marina Redevelopment, South San Francisco, CA."November 12, 2007. 4. Gabewell, Inc. with PES Environmental, Inc. " Post-Closure Development Standards Report, Oyster Point Landfill South San Francisco, CA." November 2000. 5. Gabewell, Inc. with Harding Lawson Associates, "Final Closure and Post-Closure Maintenance Plan, Oyster Point Landfill, South San Francisco, CA." September 2000. 6. Regional Water Quality Control Board. "Order No. 00-046 Updated WDR and Rescission of Order No. 77-19." June 21, 2000. 7. CH2MHill, "Soil Sampling and Analysis Plan for Characterizing and Disposing of Excavated Soil at the Gull Drive Excavation, South San Francisco," July 23-24, 1996. 8. CH2MHilI, "Construction Quality Assurance Report, City of South San Francisco Landfill, Gull Drive Final Cover Extension, South San Francisco, CA," October 1996. 9. CH2MHill, "Project Plans for Construction of City of South San Francisco Landfill, Gull Drive Final Cover Extension," April 1996. 10. Levine-Fricke, "Figure 4: Sump Locations" [loose page], undated. 11. CH2MHill, "Work Plan for the Gull Drive Field investigation, South San Francisco, CA,"January 1996. 12. ICF Technology., "CERCLA Site Inspection, Oyster Point Marina, Oyster Point Boulevard, South San Francisco, CA 94080, San Mateo County," August 12, 1987 MN1615727A Exhibit 4.9.1 Fonn of Title Policies ( Ksit Us oo our bsite: BqMytvccom Chicago Title Company MiSUING OFFICE. 2150 John Glenn Drive,suite 300-Concord,CA 94520 925 288-8000-FAX 925 521-9562 PRELIMINARY REPORT Title Officer: Martha Kendall Title No.. 11-40702883-MK Locate No.: CAC-H7741-7741-2407-01040702883 TO: Chicago Title Company-San Francisco 455 Market Street, Suite 2100 San Francisco, CA 94105 ATTN: Nicole Ca,rr PROPERTY ADDRESS: Oyster Point Marina Project, South San Francisco, California EFFECTIVE DATE: February 3, 2011,07:30 A.M. The form of policy or policies of title insurance contemplated by this report is- ALTA Owners Policy(6/17/06) 1. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS: A Fee 2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN: The City of South San Francisco,a municipal poration lei 3. THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS: SEE EXHIBIT"A"ATTACHED HERETO AND MADE A PART HEREOF MK\MK 02/28/2011 1. CLTA Preliminary Report Form-Modified(It/17/06) Title No. 1.1.401702883-PAS: Locate No. CACTl7741-77 1-2407-0040702883 LEGAL DESCRIPTION EXHIBIT°A" THE,4- D REFERRED TO el. d".BELOW I SITUATED ,A S SITU TED IN THE CITY'OF,SOPH SAN FRANCISCO,COUNTY SAN MATEO,STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: PARCEL ONE: Parcel A, as shown on parcel map 99-005, filets December 8, 1959 in Bank,72 of Parcel' Maps, page 6, San Mateo County records; Parcel D-1 and a portion of Parcel D-2,as shown on parcel map 89-262,filed May 2.3, 1989 in Book 62 of Parcel' Maps, page 25, San Mateo County records; portion of Parcel'B and a portion of Remainder Parcel 1, as shown on the map filed January 9, 1985 in Book 55 of Parcel Maps, page 61, 'San Mateo County records,described as follows: No description has been prepared. PARCEL TWO: Portion of Parcel B and a portion of Remainder Parcel'1,as shown on the map filed January 9, 1985 in Book 55 of Parcel Maps, page 61, San Mateo County records; the area described in the Amended Final Order of Condemnation recorded December 3, 2001, Series No. 2001-193965 Official Records, San Mateo County records described as follows: No description has been provided' PARCEL THREE: A portion of the Remainder Parcel I,as shown on the map filed January 9, 1985 in Book 55 of Parcel Maps, page 61, San Mateo County record's,described as follows: No description has been provided NOTE THE DESCRIPTION CONTAINED HEREIN IS BASED UPON INFORMATION SUBMITTED TO THIS COMPANY FOR THE PURPOSE OF THIS REPORT; IT IS NOT BASED UPON A SURVEY, SAID DESCRIPTION DOES NOT LOCATE THE LAND BY REFERENCE TO MONUMENTS OF RECORD AND IS NOT SUFFICIENT FOR TITTLE INSURANCE PURPOSES, LINES AND MONUMENTS THEREIN REFERRED TO MUST BE LOCATED BY A CORRECT SURVEY,CONSIDERATION BEING GIVEN TO'DESCRIPTION'S OF ADJOINING LANDS NOT INTENDED TO BE INCLUDED WMIN THE DEVELOPMENT AREA, ANY FINAL REPORT OR POLICY IS DEPENDENT UPON SUCH A PROPER DESCRIPTION BEING FURNISHED AND WILL BE SUBJECTTO ANY MATTERS DISCLOSED BY THE TITLE SEARCH OF ANY ADDITIONAL LAND DISCLOSED BY SUCH DESCRIPTION. A portion of apes: 015-010-260; 015-010-270; 015-010-010-600; 015-190-170 and 015-190-190 2 CM Preliminary Repert Form-Modified(a if 17/05) Tide No. 11-40702883-MK Locate No. CACT'17741-7741-2407-0040702883 AT THE DATE HEREOF,ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN' SAID POLICY FORM WOULD BE AS FOLLOWS: I., Property taxes,which are a lien not yet due and payable,including any assessments collected with taxes to be levied for the fiscal year 2011-2012. 2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3,5 (Commencing with S ionv7? of the Rev nue,and Taxation code of the State of C2fliforni ,�44 3. -Awjr-adv-- -WbMer-g n 4. Rights and easements for commerce, navigation and fishery. C44,tid 01i 5. W. 7. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document. Granted to: Pacific Gas and Electric Company Purpose: any existing electric transmission lines and gas mains Recorded: March 6, 1912, Book 206, Page 487, of deeds Affects: The exact location and extenet of said easement is not disclosed of record. A portion of said easement has been quitclaimed by instrument recorded February 26, 1926, Book 197, page 467 Official Records. doet"ent. ri—p! P_ 3 CLTA PrCiminery Report Form-Modified(11/17/06) ITEMS; (continued) Title No. 11-41702883-MK Locate No.CACr17741-7741-2407-0040707883 9. gal 100 -t&asenm d Y 11. nd , r r r of&FS" l RwerdS. 12. �errt( „m-rve,"ca. a ta.,a decarrolt gr s 13. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document. Granted to: Pacific Gas and Electric Company Purpose pipe line Recorded: October 16, 1969,Book 6702, Page 385, of Official Records Affects: a portion of Parcel'Two 4 CLTA Preliminary Report Form-Modified(11117/06) M'8 (continued) Title No. 11.410702883-11K Locate No. CA,CT17741-7741-2407-0040702883 14. E-a a =-t4e-p se(,s`)-"shovm"below and".tighl .lmCrit l -thWeto--as-tjfent,,,� a document.. ls. ont, 16. MaUwT�.= em" ath—ss- R A, r r p r r 1.7. r « a s CLTA Prehmamary Report Form-Modified(1111710 ITEMS: (continued) Title No. 11-40702883-MK Locate No.CAC-n7741-7741-2407-0040702883 18. Easemient(s) for the purpose(s) shown below and rights incidental thereto as granted in a document. Granted to: Pacific Gas and Electric Company,a California corporation and Pacific(Bell,a California corporation Purpose: Underground conduits, pipes, manholes, service boxes, wires, cables and electrical conductors; aboveground marker posts, risers and service pedestals; underground and aboveground switches, fuses, terminals, and transformers with associated concrete pads Recorded; December 4, 1985, Instrument No.85130034, of Official Records Affects: 10 foot strip over the westerly portion as described therein 19. EnWe -U. 20. EAWed--------------Abstfac-t-erL-ease-Pame er oint-Mari na�*) Lessei:,. Amendmeft- A -iQ144 GYAGUted �R sap WaW13 G4614V-�r mtlrSarr M mi.ei whWA-�eefded Id- Or-l"Or-') OCA-200CA.- 21. a"let 11'lift.00 t555131' of @Ffteiq�� T.Rifuurr UF-IJT 6, CLTA Preliminary RepW Form-Modified(11/17/06) AI MS: (continued) Tide No, 11-407O2883-MK Locate No. X7741-7741-2407-0040702883 22.. . ecord -..., present ownersihiprof the:leasehold,createfty said lease and athermatters affecting pia intermit..., 23. Mutteisemnteim�&Tm 9, 24. dsemerrtr TQQU, Ina , 25. p , 26. . , `. r c ,and-fOF-t4ie f f r full 7 CLTA prel Mnary Report Form-11odVFied(1,1/17106) STEMS: (continued) "title No. 11-40702883-MK Locate No.CACrl7741-774.-2407-0040702883 27. w i�afseo�fte � .. nn X 28. y R P s 29. Th'e fact that said land is included within a project area of the redevelopment Agency shown'below, and that proceedings for the redevelopment of said project have been instituted under the Redevelopment Law(such redevelopment to proceed only after the adoption of the redevelopment plan)as disclosed by a document. Redevelopment Agency: The S'out'h San 'Francisco Downtown/Central redevelopment Project Recorded: June 24,2005, Instrument No. 2005-106176,of Official records Revised Statement of Institution of redevelopment Proceedings recorded November 26, 2007, Instrument No. 2007-165903, of Official records. 0, , Vim o 31. Maters which may be disclosed by an inspection and/or by a correct ALTA/AC'SM Land Title Surrey of said land Nthat is satisfactory to this Company,and./or by inquiry of the parties in possession thereof. 8 CLTA Preliminary Report Farm-Modified(d 1117/()6) ITEMS; (continued) Tifle No., 11-40702883-MK K Locate.No.CACn7741-7741-2407-0040702883 32. deer 33. p ed. 34n d END OF ITEMS Nate 1. There are NO deeds affecting said land,recorded within twenty-four(24)months of the date of this report. Nate 2. If a county recorder,title insurance company,escrow company, real estate broker, real estate agent or association provides a copy of a declaration, governing document or deed to any person,California law requires that the document(provided shall include a statement regarding any unlawful restrictions. Said statement is to be in at least 14-point bold face type and may be stamped'on the first page of any document provided or included as a cover page attached to the requested document. should a party to this transaction request a copy of any document reported herein that fits this category,the statement is to be included in the manner described. Nate 3. Please contact Escrow Office for Wire Instructions, Nate 4. Any documents being executed in conjunction with this transaction must be signed in..the. presence of an authorized Company employee, an authorized employee of an agent, an authorized employee of the insured lender,or by using Bancsery or other approved third-party service. If the above requirements cannot be met, please call the company at the number' provided in this report. g GLTA Prelirminar�'Report Fon-Modined(111 17196) NOTES: (continued) Tide No. 11-40702883-MK Locate No. CACT17741-7741-2407-0040702883 END OF NOTES At.,K 10 CLTA Prellmioary Report Form-Modified(11117/06) Exhibit 6.10.1 Form of Certificate of Completion FoRm OF CERTIFICATE OF COMPLETION WHEREAS, the Redevelopment Agency of the City of South San Francisco ("Agency"), the City of South San Francisco ("City"), and Oyster Point Ventures, LLC, a Delaware limited liability company("Developer") entered into a Disposition and Development Agreement dated as of 2011 (the "Agreement"), a memorandum of which was recorded on , 2011 in the Office of the County Recorder of San Mateo County, at of the Official Records setting forth the terms and conditions under which the Agency would convey certain real property to Developer, which property is particularly described in Exhibit A attached hereto and made a part hereof(the"Property"), and setting forth certain obligations of the Developer,to construct certain Improvements (as defined in the Agreement) on the Property; WHEREAS, by Grant Deed dated 20_(the ",Deed"),, which was recorded on 20 in the Office of the County Recorder of San Mateo County, at _of the Official Records, the Agency did convey to the Developer fee simple title to the Property; WHEREAS, the Agency has conclusively determined that the construction obligations of the Developer as to [ I as specified in the Agreement have been fully performed and the Improvements (as defined in the Agreement) completed in accordance therewith; and WHEREAS, as stated in the Agreement, this Certificate of Completion does not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a mortgage or any insurer of a mortgage securing money loaned to finance the Redevelopment Project or any part thereof and shall not be deemed a notice of completion under the California Civil Code, nor shall this Certificate provide evidence that Developer has satisfied any obligation that survives the expiration of the Agreement; NOW THEREFORE, as provided in the Agreement, with respect to the Property, and subject to the foregoing provisions hereof, the Agency does hereby certify that such obligations and Improvements have been fully performed and completed as aforesaid and that the Agreement shall be deemed terminated and of no further force or effect, except as provided therein. [Signature on following page] N4N1615727.1 IN WITNESS WHEREOF, the Agency has duly executed this instrument this day of 120 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: Name: Title: MN16,15727.1 / ` / Exhibit 6.11.1 Legal Description and Depiction of Dedicated Propert ` i l � i U, a , � � y W V 4 4 9 1 p u r LU LU pe V_ ao - � � 'can-lq LNIO-walsAo Q ✓� w w I �_ p u ¢ y I DEDICATED PROPERTY ALL THAT REAL PROPERTY LOCATED IN THE CITY OF SOUTH SAN,FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA,THE BELOW DESCRIBED PARCEL BEING A PORTION OF PARCEL C AND A PORTION OF THE REMAINDER PARCEL AS SHOWN ON THE PARCEL MAP RECORDED AT BOOK 55 AT PAGES 61 THROUGH'64 IN THE RECORDS OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA.. SAID PARCEL MORE PARTICULAR DESCRIBED AS FOLLOWS: BEGINNING AT A POINT AT THE SOUTH EAST CORNER OF PARCEL 4 AS SHOWN ON THE PARCEL MAP RECORDED IN BOOK 52 AT PAGE 59 OF THE RECORDS OF SAN MATEO COUNTY, CALIFORNIA 1)THENCE S00°00'65"E FOR 16.61 FEET 2)THENCE 889" 59'05"W FOR 18.77 FEET, 3)THENCE TO THE BEGINNING POINT OF A CUR'V'E TO THE RIGHT HAVING A RADIUS OF 5.00 FEET AND A CENTRAL ANGLE OF 87°02'04"'FROM WHICH THE RADIUS POINT BEARS N870 03" 01"WW,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH I OF 7.60 FEET, SAID CURVE HAVING A CHORD BEARING'OF S46°28'01"W FOR 6.89 FEET; 4)THENCE S02°'67'02"W FOR 12.14 FEET; 5)THENCE S22' 32''46"W FOR 26.79 FEET; 6)THENCE S05° IT 28-W FOR 16.62 FEET; 7)THENCE S14"33'22'WW FOR 18.66 FEET; 8)THENCE 5070 OT 20"W FOR 46.52 FEET; 9)'THENCE S02° 39"54"'E FOR 26.13 FEET; 10)THENCE S11'"27'55"E FOR 9.33 FEET; 11)TH'ENC'E S03° 56, 51-W FOR 16.94 FEET, 12)THENCE S15" 09"09"WW FOR 13.90 FEET; 13)THENCE S07°33'39'WW FOR 7.72 FEET; 14)THENCE S31k 12'57"W FOR 14.75 FEET, Page I 15)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 12.00 FEET AND A CENTRAL ANGLE OF 99° 1611"FROM WHICH THE RADIUS POINT BEARS S58°47' 02"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 20.79 FEET, SAID CURVE HAVING A CHORD BEARING OF 5180 24' 37"E FOR 18.28 FEET; 16)THENCE S68°02' 11"E FOR 4.44 FEET; 17)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 6,73 FEET AND A CENTRAL ANGLE OF 57"0606"FROM WHICH THE RADIUS POINT BEARS S33"25' 311"W" THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 6,71 FEET, SAID CURVE HAVING A CHORD BEARING OF S28°01'56"E FOR 6,43 FEET; 18)THENCE S10"34'28"'E FOR 6,58 FEET; 19)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 89.35 FEET AND A CENTRAL ANGLE OF 34"25' 13"FROM WHICH'THE RADIU'S POINT BEARS N890 41' 32"E,THENCE LEFT'ALONG SAID CURVE FOR AN ARC LENGTH OF 53.68 FEET, SAID CURVE HAVING A CHORD BEARING OF 5170 31'04"E FOR 52.87 FEET; 20)THENCE S33'05'28"E FOR 51.02 FEET; 21)THENCE S30° 08"44"''E FOR 51.48 FEET; 22)THENCE S39° 10'44"E FOR 68.51 FEET; 23)THENCE S36°43'24"E FOR 31,32 FEET; 24)THENCE'.TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 290.17 FEET AND A CENTRAL ANGLE OF 444 11'01"FROM WHICH THE RADIUS POINT BEARS N56°01' 39"E,THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 223.76 FEET, SAID CURVE HAVING A CHORD BEARING OF S560 03'52"E FOR 218.26 FEET; 251)THENCE S81'27"48!'E FOR 127.43 FEET; 26)THENCE TO THE BEGINNING POINT OF A CURVE TO THE LEFT HAVING A RADIUS OF 1550.60 FEET AND A CENTRAL ANGLE OF 05" 19'25"FRUNWI WHICH THE RADIUS POINT BEARS N0511 19 3(rE, THENCE LEFT ALONG SAID CURVE FOR AN ARC LENGTH OF 1144.08 FEET, SAID CURVE HAVING A CHORD BEARING OF S87*20' 13"E FOR 144.02 FEET, 27)THENCE S07° 36'22-W FOR 236.51 FEET, 28)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 856.00 FEET AND A CENTRAL ANGLE OF 12'03' 11"'FROM WHICH THE RADIUS POINT BEARS N070 36'22"E,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 180.07 FEET" SAID CURVE HAVING A CHORD BEARING OF N76°22'03'W FOR 179.74 FEET; 29)THENCE N20' 13'04"E FOR 20.00 FEET, 30)THENCE TO THE BEGINNING POINT OF A CURVE TO THE RIGHT HAVING A RADIUS OF 836.00 FEET AND',A CENTRAL ANGLE OF 68°56'49"FROM WHICH THE RADIUS POINT BEARS N19*38'45"'E,THENCE RIGHT ALONG SAID CURVE FOR AN ARC LENGTH OF 1006.00 FEET, SAID CURVE HAVING A CHORD BEARING OF N350 52'51'W FOR 946.39 FEET; 31)THENCE N'01°24'25"W FOR 25.81 FEET; to a point on the south side of said parcel4 Page 2 32)THENCE N39°59'36"E FOR 214.69 FEET, TO A POINT AT THE SOUTH EAST CORNER OF SAID PARCEL 4 AND THE TRUE POINT OF BEGINNING, THE AREA BEING 3.932 ACRES. (LEGAL DESCRIPTION PREPARED BY KENNETH P. MOORE P'LS 4919 EXPIRES 1'2-31-12 DATE 3-1'q-11 Page 3 V M w CL cn 99 Li B I j a- L.a C, " r ILLJ _o tea— Uli Ci t If d ca CD CL � I _ w I'..... -1 m c Jim CD 1 r s d� I j CL oi 1 10 k 1 1 id9a rxp Nd95�wv+a I t't l,£.'amp-l3,ow f o31 d3Cl tiW ln°k&IGIHX30uW9fO A lVnS ealsmy�yytneuns�yua�Ir.�1���4�day rated+ela+BP S{��d991saarawaaanuI 3AV5'fvflB4�3. Exhibit 9.3 Assumption Agreement RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn' (Space above this line for Recorder's use only) CONSENT AND ASSUMPTION AGREEMENT This Consent and Assumption Agreement("Assignment"), dated as of this day of 20_(the "Effective Date"), by and between the Redevelopment Agency of the City of South San Francisco, a public body corporate and politic ("RDA") and ("Assignee"). WITNESSETH A. Assignee desires to acquire certain property located in the City of South San Francisco, County of San Mateo, State of California, as more particularly described on Exhibit A attached hereto and made a part hereof. B. The Property is subject to the terms and conditions of that certain Disposition and DeveloprnentAgreement (this "Agreemeff) dated , 2011 by and among the RDA, Oyster Point Ventures, LLC, a Delaware limited liability company, and the City of South San Francisco, a municipal corporation, C. The RDA desires to consent to Assignee's assumption of all of the obligations of the"Developer"under the Agreement to the extent such obligations relate to the Property, NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, RDA and Assignee hereby agree as follows: 1. Acceptance and Assumption. From and after the Effective Date hereof, Assignee, for itself and its successors, assigns and legal representatives, hereby expressly assumes all of the rights, interests, obligations and liabilities, fixed and contingent, of the obligations of the "Developer" under the Agreement to the extent they relate to the Property(the "Assigned Interests"). 2. RDA's Consent. RDA hereby consents to the assumption by the Assignee of all of the Assigned Interests and agrees to look solely to the Assignee and its successors and assigns for any and all liabilities and obligations of the "Developer"' under the Agreement arising from and after the Effective Date. 1"v N1615727.1 3. Governing Law. This Assignment and the legal relations of the parties hereto shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its principles of conflicts of law. 4. Count arts. This Assignment may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. 5. Further Assurances. RDA and Assignee agree to take all such further actions and execute such further documents as may be necessary or desirable to carry out the purposes of the Assignment. IN WITNESS WHEREOF, RDA and Assignee have duly executed this Assignment as of the day and year first above written. ASSIGNEE: By: Name: Title: RDA: REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic By: Name: Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency General Counsel MN1615727.1 Exhibit A Property MN1615727.1 Exhibit 10.15.1 Expedited Arbitration Procedures 1. Initiation of Arbitration; Description of Dispute. The complaining Party(the "Complaining Party") shall initiate arbitration by written notice to the other with a description of the dispute or alleged breach. This description shall explain the nature of the complaint and the provisions of the Agreement on which the complaint is based. The date that such notice is effective pursuant to the notice provision of the Agreement shall be the "Initiation Date." Except as expressly modified herein, the arbitration proceedings shall be administered by and in accordance with the then existing JAMS Streamlined Arbitration Rules and Procedures (or the expedited procedures of the American Arbitration Association ("AAA") if JAMS is no longer in existence at the time of the Initiation Date)notwithstanding the nature or the amount in controversy of the dispute. If the resolution of the dispute or determination of the alleged breach involves the acts, ornissions or claims of any third person, the arbitration shall not proceed unless and until all such persons have agreed to join in and be bound by the arbitration. Except as provided by this paragraph, no person other than the Parties, shall have a right or obligation to join in any arbitration without the express Written consent of both Parties. 2. Appointment of Arbitrator. The arbitration proceedings shall be conducted by a single neutral arbitrator,(the "Arbitrator") qualified by education and experience in the subject matter of the submitted dispute, and shall be selected by mutual agreement of the Parties from a panel selected by the San Francisco office of JAMS (or AAA if JAMS is no longer in existence), and if the Parties fail to agree within five (5�)business days after the Initiation Date, or if JAMS (or AAA) does not offer a selection of potential arbitrators having the requisite qualifications, either party may apply to the Superior Court of San Mateo County, California for the appointment of the Arbitrator. The date on which the Arbitrator is selected or appointed is referred to as the "Selection Date." 3. Powers of Arbitrator. Subject to the terms and limitations in this Exhibit and the Agreement, the Arbitrator shall have full power to give such directions and to make such orders in the matters so referred as the Arbitrator shall deem just. The Arbitrator may grant any remedy or relief consistent with applicable law, the terms of the Agreement, and the evidence presented. 4. Discovery.. As between the parties, the parties shall be entitled to discover all documents and other information reasonably necessary for a full understanding of any legitimate issue raised in the arbitration. They may use all methods of discovery customary under federal law, including but not limited to depositions, requests for admission, and requests for production of documents. With respect to third parties, the Arbitrator shall have the power to issue subpoenas for the attendance of witnesses, and the production of documents. The time periods for compliance shall be set by the Arbitrator, who may also set limits on the scope of such discovery, in view of the desire of the parties to expedite the resolution of disputes. 5. The Hearina. The Arbitrator shall set the matter for hearing within twenty (20) business days after the Selection Date. The bearing shall be conducted as follows: MN 1615727.1 (a) The Parties shall file briefs with the Arbitrator at least three (3) business days before the hearing, specifying the facts each intends to prove and analyzing the applicable law. (b) The Arbitrator will conduct the hearing as if it were an informal court trial, The Arbitrator may adjourn the proceedings from time to time, shall preside at the bearing, and rule on the admission and exclusion of evidence, as well as questions of procedure, and may exercise all other powers reasonably necessary for the efficient and expeditious administration of the proceedings. (c) The Arbitrator may issue subpoenas for the attendance of witnesses and the production of documents for the hearing. (d) The order of proof will generally follow that of a typical court trial, including the opportunity to make opening and closing statements. (e) Within reasonable limitations, both sides at the hearing may call and examine witnesses for relevant testimony, introduce relevant exhibits or other documents, cross- examine or impeach witnesses who shall have testified orally on any matter relevant to the issues and otherwise rebut evidence:. 6,. Evidence. The Arbitrator shall be guided in its determination of evidentiary issues by the Federal Rules of Evidence or by any other applicable judicial rules of evidence; however, strict conformity to such rules of evidence is not required, except that the Arbitrator will apply the law relating to privilege and work product. 7. Substantive Law. The Arbitrator shall follow and be bound by the substantive law of the State of California. 8. Decision; Jr udicial Review. The Arbitrator shall try all issues of law or fact that are the subject of the arbitration, and, within ten (10) business days after the conclusion of the hearing, issue a statement of decision explaining the reasons for the decision and containing a full statement of the facts as found and the rules of law applied in reaching a decision. The award will be deemed to have been made in San Francisco, California. An order or judgment upon that decision may be obtained by either party only in the Superior Court of San Mateo County, California. 9. Confidentiality. All papers, documents, or evidence, whether written or oral, that are clearly marked as confidential and that are filed with or presented to the Arbitrator shall be deemed by the Parties and the arbitrator to be confidential information. No party, expert, or the Arbitrator shall disclose in whole or in part to any other person any confidential information submitted by any other person in connection with arbitration proceedings, except to the extent (a) required by law, regulation, subpoena, or a final order of a court of competent jurisdiction; provided that the party being compelled to disclose the confidential information promptly notifies the other of any such required disclosure and provides copies of all legal process and other papers that evidence the demand for disclosure, affording the other Party an opportunity to seek a protective order, quash the subpoena or pursue any other remedy MN 1615727.1 available to it. Whether or not either Party seeks or obtains a protective order or other relief, the party being compelled to disclose confidential information shall disclose only so much of the confidential information as it is legally obligated to disclose; (b) reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute; or (c) that such "confidential" inforination was previously or subsequently becomes known to the disclosing party without restrictions on disclosure, was independently developed by such disclosing party, or becomes publicly known through no fault of the disclosing party. In any event, confidential information may only be disclosed to Parties, the attorneys for the Parties, and witnesses who are expected to testify concerning such information, provided such witnesses sign a confidentiality agreement (in a form and substance reasonably acccptablc to the Party or Parties the confidential information of which is to be disclosed to the witness). 10. Costs and Fees. All attorneys' fees and costs shall be paid as provided pursuant to the Agreement, except that each Party shall pay fifty percent (50%) of the fees and expenses of the Arbitrator. 1615727.1 MN1615727.1 i Attachment 3 Oyster Point Development Program Update City Council Study Session August 31, 2o16 i toil Development Agreement/ Disposition Development Agreement Overview i Ivey Documents Disposition and Development Agreement (2011) Redevelopment Agency (now Successor Agency) & Oyster Point Ventures (now OPD) & City Development Agreement (2011) City & Oyster Point Ventures (now OPD) Harbor District Agreement (2011) City & Successor Agency & San Mateo County Harbor District Escrow Deposit and Trust Agreement (2013) Successor Agency to the RDA & Bank of New York i Disposition and Development Agreement (DDA) Ivey Elements Property Exchange " Right of First Refusal s Phased Development (IC, ID, IIC, IID, IIID, & IVD) Improvement Costs and Responsibility Allocations Environmental Remediation Remedies and Repurchase of King Leases i /%// Property Ownership - Post Conveyance LEGEND i Fm l J """"' """"""' DEVELOPER PROPERTY LINE � t I OYSTER Z OYSTER DEVELOPER PROPERTY - 41.03 AC '4 POINT i rL POINT .A BUSINFSS x RUSTNFSSI`I PARK H PARK l P ARCFL I PARCEL CITY PROPERTY LINE r 24 / CITY PROPERTY - 29.53 AC TOTAL 11.5t AC J CO iTF.R `S-2 I� -_ -� POINT T RUSTNFSS \ { 21 PARK PARCL" CONVEYED PROPERTY ?� PARCH 2 D AC -- ..,, / �DYSTER PUI.\'f I CONVEYED BONA PROPERTY - S-3 PARCL'L I / EXHIBIT A-7 i Specific Plan MD lF of auth Sala Uanci�car City///iii✓�� ��// a fii M�aVN e111Ma(�r(�+NAIr(�i6 r�� �� ,r /0 Y Gfdicmter9 O en 5 a- /ii ��ai j 6 r f,✓ r li o � 0 Remahmer�g 43rc+w�md'Lesse .. � �,n ��aa ,,a r Pl�`�^r�rldiivufilwur�mn i,ii✓f�� � ��>�/�� iii �.%<.. r„r,.. is �,1�b'1111�r1rt 1 Mm, l% ,„” //or. ��/.� r 1'F,;:: f+/rod ,.:•a.., �r Ii i �t., !�f �,� 1 /..,,. �1'...,. & %F r,l�/o J L,ii;, ,,, o,r %W llf(llfflflfflflfff6�ii,V1JDJl i/11111 1111 ��, /%%..,,//Gii z:�..... P,opamd Ft—c ad 0--hp emu" 9' ................ ;�. �irr Property Exchange & Right of First Refusal p Y xcan g g s Agency Conveys Conveyed Property Parcels to Developer y Occurs when prepared to initiate Phase I construction Developer assigns King Leases to City y Developer pays $5.6M in three installments " Right of First Refusal If City/Agency contracts to sell or offer long-term ground lease for Parcel 4A before termination of DDA, must offer same terms to Developer r rill Phased Development m„ EXHIBIT 3.2A PHASES 1D PHASE �C It UP TO 508,,000 GSF OF OFFICE/R&D SPACE "�W17 STREETS&UTILITIES AT HUB CLAY CAP REPAIR AT PHASE 10 STREETS&UTILITIES TO POINT CLEANUP OF SUMP i CLAY CAP REPAIR AT PHASE IC METHANE MITIGATION SYSTEMS RECONFIGURED PARKING AT MARINA RELOCATION OF REFUSE RECREATION AREA FUTURE HOTEL SITE BEACHI'PARK PHASES ( IUD_d' ID SAY TRAIL&PALM PROMENDADE f 4 UP TO 1,746,230 GSF OF OFFICEfR&D SPACE .,P�R��AS1111L.�: K." f 1 rf RE OF E STREETS I UTILITIES SIUER UMP S ATIION LANDSCAPING AT PAR BUSINESS PHASE I LOCATION LANDSCAPING AT BCDKING PHASE NIC LANDSCAPING AT BCDC PHASES IID—IVD C PHASES IIG �ff( Fop N3 kNIC � , "y r W. MON !III p P% " � �1✓/rl j/�%�%%//,//�////Gi///'!//9%/f%O///r/////%%//,1//l�i�//�i/�/%//jr%orrii ii///�'u � ��~.. — ,. %,% i e/ i . P hase IC Improvements (on non-conveyed City property) Streets and utilities at hub " Streets and utilities from hub to point (across the marina) Repair/Upgrade clay cap over landfill on City property ° Reconfigure/Reconstruct existing parking areas Grading and construction of open space recreation areas Demolition and grading at future "Hotel Site" Landscaping of beach/park area Landscaping and construction at bay trail and palm promenade i Phase IC Responsibilities Developer responsible for design and construction Developer and Agency share cost of identified infrastructure improvements 4 80% Developer and 20% Agency 4 Savings go toward Agency Phase IIC costs Developer responsible for up to $9,533,859 for palm promenade " Agency set aside $18,399,460 in escrow account i .� ,Phase ID Improvements (on conveyed property) Repair clay cap over landfill on conveyed property Remediation/Clean up of Sump 1 area Installation of methane control and monitoring systems Relocation of refuse under buildings Other premiums to build on landfill Development of R&D and/or office building of not less than 508,000 sq. ft. and not more than 600,000 sq. ft. and a FAR of 1 .25 i Phase ID Responsibilities Developer responsible for all construction and funding Developer responsible for all Phase ID cost overruns/savings Developer may use CFD for clay cap repair Developer must deliver $1 .1M to City when Developer commences Phase ID construction i Fnase IIC Improvements (on non-conveyed City property) ° Installation of new sewer pump station Repair clay cap over landfill on City property Repaving and landscaping tune-up of existing parking areas Landscaping of City property in jurisdiction of Bay Conservation and Development Commission (BCDC) i Phase IIC Responsibilities City/Agency responsible for all Phase IIC construction Agency responsible for all Phase IIC funding, except: )III Agency and Developer share cost of new sewer pump station (68% Agency & 32% Developer) y Developer required to contribute $839,490 portion upon commencement of excavation for sewer pump station foundation Agency responsible for all Phase IIC cost overruns/may retain cost savings i - IVD Improvements Phases III) (on private Business Park Properties) Develop streets and utilities Relocate and expand sewer pump station no. 1 Landscaping within 100-foot shoreline band in BCDC area Develop buildings for R&D/Offices of up to approximately 2.25M gross square feet with a FAR of 1 .25 i Phases IID - IVD Responsibilities Developer responsible for construction and funding Developer responsible for cost overruns / savings "' Developer may use CFD bond funding i /%// Allocated Costs of Development Oyster Poffil Site and hifrastru ttrrre Impr venientsl Sources and Uses Exh bit Description Tttta0l Costs S,&SKS 6ureet SMKS CFCs CftvIRDA 01the',r Transaction Costs Ihting Le'sehuld WMere�st S '5101,,000 S 7,500,00 0 S Ct&mer T'rarusartmn Casts 7Rep,uired Cap Ea,Plarnnmg,Entiiklernents{r 3 4,172„00000 $ 4.172;000 5 ImoctlaN Cash C�nsaJerallon $ 2 2YJ',O1g $ '2,250,000 $. A ddXkanaIC askrCam..m�,sidsmmlon S '”110,090 S '1„IYj'9D7 S _ S. Remnawn&rn CashConsideaavan S 2„250,00d $ Z,250,000 S 5 Sreuubtotal.-IPme-Land'..,Swap Casts '17 272,OOD '117,.272..000 _ -. Phase 1L4 Landd II roveamients �,: i..:ap epao-ratt xonw"ryre,- psnrvm"am�:u e, e ,elataon 'a - - 3.2.2P s:-i�+eanup a9'SUMP$ $ 3596.775 5 3595;775 5 3.2.20 W,Metar,,e Systems at Conveyed Propen'.yr $ 4,9O:W,115 5 4,913,11x3 5 3.2.Z) R1eTsxatmn o9 R,+fiur'e under'Cidii dings m Canmeye-d Pvaperty 7 4,719573 5 4,71957'3 $ - $ - +VR r FTe muurns Z&,Ad or L, it'&at Cmveyec Pr -en y $ 4,538.812 5 4,518,012 S S S uatto!Lal Phase 103 2VN 714'.665 5 17,838.276 5 2„915.,3'88 ... Phase,IClifirastnattm2retund',Ini roverrnents 3.2-SA S3,eeasand Utrlties arx.IHub $ 2,59!,N2 S - '$ 71375,794 $ 1 1 k1 3.2,92; nws.and 1JtkbeslaForm S 5434,533 $ - S - 5 5,434,5 3.2-10 Ctay Cap Repair at City Pamcs4',s IC $ 5319.5&6 $.. - S -. $ 539,518 3.2 t D Remniliguravlan or'PlarWng at I"7lamina $ 4,247,758 $ - 5, .. $ 4„.2"^47,755 32..1!. CradingCanstrurow,ofPen-eat� Area-.. S. '496'9,117 S - $. - S C,,rJN�SR,:q,117' 3.2,.1;F C-emraa Gradurg of Hotel SAe S 792.931 $ 7222,93” 3.2,.97,; ILaindsca Ling of Eear.'VPark $ 2,49054D8 3' - S - S 3 Q,5',4{IS 3.11IH LardscWng al Bay 7ral and Patin Promenade Phase IC $ 9,533,059 S S 2,533,059 $ Suahto A Phase IC 15;610,113 17„2'10 053 n8„19!O,SSD Phase'111C 3.3-2A, IIms Sewsc PvMP Stator at Manna S 2851I.5t4 5 SSIA:490 S t�,822..,124 3.3,2E CaM,Gasp Repair at City°Parce&'si IIC 5 572,358 $ - *� - $ 572,355 3.3,:20 R,epar7lr g&the Ex4sTJng Farming at F'hase I IC S 934.092 5, - S. _ S 1+34,892, 3.;3.20 Landscape Tune-up at ExivIrgray Parbng at Phase IBC $ 1,743.889 S - ',Po' _ 5 ".,743,81 's 3. E Lands,,*,ng,aitBG0r Arez.at.PhaseltlC 'S 5,990,501 $ 5 $ 5„91K,50N Subtotal'Phase Ik1C 11„903,261 8 ,430 - 1111,093,771 Phases 11D4VD- 3.3.GA arse,etts and VJtfties m Phases 1,10fVO S K'19&'(,,946 11i,08V,946 5 _ 3.2 t8 Rle�wAon of.Sewer'Purm Stattlon Na 1 $ 4,89%6M S _ 5 4„061;514 5 _. 15-1 Land n g al9C,:-GSr Apa t'PTTa s HO-NE) $ ,,799.2Y37 S 5 '37494.2�i7 S SubMal Phases 11C,W”D 15 28,94T.26 - 20.517„828 .. Total-AM Phases. i. i Miscellaneous Provisions Agency pays additional costs beyond those listed in DDA Costs required by BCDC y Costs related to agreements with the Harbor District y Other changes in scope/quality requested by City ° Developer must accept conveyance of Conveyed property by May 29, 2018 Developer to construct within 270 days of conveyance Developer to dedicate beach park to City upon completion i DDA Environmental Remediation Development environmental remediation measures: Cleanup of sumps on the marina property y Methane monitoring system Relocation of refuse y Repair and/or replacement of the clay cap covering the landfill City/Agency and/or Harbor District retain responsibility for methane and leachate control monitoring on all property Agency to indemnify Developer for existing environmental conditions i Develo p g Development Agreement ' 20-year term (2011 to 2031) Developer to pay specified City development fees, approval fees and fees for public services Developer to complete Phases IC and ID improvements before Phase II Developer to complete 30,000 sq. ft. of shell space for amenities before starting Phase IID Developer and City to comply with CEQA Mitigation and Monitoring Program (MMRP) i Harbor District Agreement s Between City, Agency, Harbor District (2011 to 2026) s Upon conveyance of marina property to Developer, JPA between City and Harbor District to be amended to remove conveyed property If City/Agency terminates King Leases, Agency to provide Harbor District minimum rent through 2019 or until debt is paid =` Upon property conveyance, City/Agency to lease 3,600 sq. ft. of office space for Harbor District When Phase IC is complete, City to lease space for $1 /year for up to 40,000 sq. ft. of harbor uses until 2026 i Escrow Deposit and Trust Agreement p g s Between Agency and Bank of New York Uan. 2013) s Funds in escrow account ($29,463,231): Phase IC $1853995460 Phase IIC $1150635771 " Disbursement of funds by written instruction from Agency, executed by both City Manager and City Attorney If Developer does not accept conveyance, Agency may disburse escrowed funds: Purchase of the King Leases Distribute to the taxing entities via San Mateo County i Phase I Update i Phase I Complete Tasks / Current Priorities " Completed y Entitlements Environmental clearance y DA/DDA y Ownership transfer Current Priorities y Team mobilization y Master schedule finalization Phase I cost update (hard and soft) Refuse relocation plan Refine landscape design i Phase I Proposed Milestones Now — Summer 2017 Pre Construction Coordination with City and Stakeholders Construction documents Landfill and building permitting Establish CFD Convey property / Transfer King leases Summer 2017 — 2018 Infrastructure Construction Demo existing buildings y Mass grading and landfill cap repair Streets and utilities / landscape and hardscape at parks Summer 2018 — 2019 Building Construction i /%// City Team City Council City Attorney City Manager Internal Department ACM Coordination Third Party Coordination Swinerton Program Management Public/Stakeholder Outreach i Discussion