ONE BROADWAY PLAZA 1 (Recorded Copy)

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5. DEVELOPMENT OF THE PROPERTY. 5.1 Existing Rules, Regulations and Policies. The rules, regulations and official policies governing the permitted use(s) of the Property, with respect to and only with respect to the permitted use(s) density, height, size of structures and intensity of use of the Property, shall be the Pre-existing Approved Entitlements and all those rules, regulations, and policies applicable to the Property as of the effective date of this Agreement; provided, however, that nothing in this Agreement shall be deemed to apply to future discretionary approvals pursuant to the California Street Vacation Act, and other items to be reviewed and approved, approved with conditions, or denied, by the Planning Commission pursuant to the terms of the Pre-Existing Approval Entitlements as set forth in Exhibit D to this Agreement, and that this Agreement does not apply or in any way constrain the City's discretion as to such future discretionary approvals. 5.1.1 Offsite Mitigation Measures. The offsite mitigation measures which must be constructed by Owner or City are as set forth in Exhibit C to this Agreement. The design of all offsite mitigation measures constructed by Owner shall be subject to approval by the City's Public Works Agency prior to issuance of an encroachment permit. The Public Works Agency shall provide to the Owner an update to the 2004 estimate of the costs such offsite mitigations measures contained in said Exhibit C prior to issuance of final map and building permit. Owner shall have one year from the effective date of this Agreement pursuant to section 1.6, above, to acquire the real property referenced in paragraph 5.a. and 8 of Exhibit C and transfer title to the City, except as to the roundabout, for which Owner shall secure and transfer to City an easement (or other right to construct, maintain and use the property as a roundabout). City shall accept transfer ofthis title and easement. Owner shall deposit an amount equal to the estimate in cash for such off site mitigation measures (including traffic studies) at the time called for in paragraphs 5.a.,8 and 9 of Exhibit C. For all other items specified in Exhibit C, security in the form of bonds (i.e., a payment, a performance and a material bond) or other proof of ability to perform acceptable to the City's Executive Director of Public Works Agency shall be provided, together with an offsite subdivision improvement agreement, prior to recordation of final map. For those off site mitigation measures identified in paragraphs 1-4, 5.b.-8 and 10 which have not been accepted by the City as complete prior to issuance of a building permit, no building permit shall issue until Owner deposits with the City cash; a direct draw, irrevocable letter of credit; or establishes an irrevocable, escrowed cash account in a form reasonably acceptable to the City Attorney of City, in an amount specified by the City's Public Works Agency to guarantee performance of said offsite mitigation measures; provided, however, that City Executive Director of Public Works Agency shall release or partially release the bonds previously provided at this point to the extent that they are duplicative of this new security. Any deposit shall be applied to such costs and shall be, within thirty (30) days written request to Owner, supplemented to cover the actual costs incurred. Except as to paragraph 9 of Exhibit C, City shall return any funds not spent on the offsite mitigation measures referenced in Exhibit C to owner within thirty (30) days, subject to City accounting practices, after completion of all items referenced in Exhibit C and issuance ofa Certificate of Occupancy for the Project. @Elf 7