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Dysan Corp and Filice Family Estates - Amendment No. 11< Susanne 'F:. Steinmetz,City Clerk `0 PF.i per GC Sec. 6103 City of Gilroy 1351 Rbsanna St. Gilroy, CA 95020 RECORDING REQUESTED BY: City of Gilroy WHEN RECORDED, MAIL TO: City Clerk City of Gilroy 7351 Rosanna Street Gilroy, California 95020 9� M FIRST AMENDMENT TO DEVELOPMENT AGREEMENT 88 -0011 FILED F0g r'EOORp AT REQUEST OF JUIL 42 QFF(D SANTA C!,xj A LA.UR;,'. RCCORDER < <' ()PAGE 1 1 This is a first amendment to the Development Agreement entered into between the City of Gilroy (City) and Dysan Corpor- ation ( Dysan) and Filice Family Estates (Filice) on September 17, 1983 by adoption of Ordinance No. 83 -18. Subsequent to adoption of Ordinance No. 83 -18 approving said Development Agreement, the City of Gilroy imposed a moratorium on new sewer hook -ups as the result of inadequate capacity at the sewer plant. Notwithstanding expiration of the moratorium, continuing inadequate sewer capacity has made it impossible for City to provide the capacity committed to under said Development Agreement while at the same time allocating capacity for projects which meet other community needs. Accordingly, City has requested the developers of Santa Teresa Technology Park (Project) to modify the allocation of sewer capacity set forth in their Development Agreement which they have voluntarily agreed to do by entering into this amendment. Except as expressly modified herein, all terms and provisions of the aforementioned original agreement between the parties shall remain in full force and effect. J756 PAGE 1193 IT IS AGREED AS FOLLOWS: 1. Through expiration of a contractual relationship with Filice, Dysan Corporation no longer has a legal interest in Project. Accordingly, said interest of Dysan has reverted to Filice as successor in interest with respect to all rights and obligations of Dysan under the aforementioned original agreement. 2. Paragraph 3 of the aforementioned original agree- ment is amended to read: Covenants of Filice. Filice agrees to proceed with development of Project to the extent allowed (i.e., density, maximum square footage, etc.) under the aforementioned PUD approval and to have taken out building permits no later than December 31, 1989, necessary for development of 35.3 acres. All on -site and off -site improvements shall be constructed at the times and in the sequence required under the City's standard form agreement relative to construction of improvements. The commitments of this paragraph are required by City under its policy of encouraging industrial development to reduce chronic high levels of unemployment - particularly among semi - skilled and unskilled workers - and to mitigate the effects upon the local labor force of seasonal fluctuation in employment opportunities which occurs because of Gilroy's present dependence upon agricultural related industry. 3. Paragraph 4 of the aforementioned original agree- ment is amended to read: Covenants of City. City covenants that all necessary municipal services shall be available to build out the Project according to the following schedule: 2 Years January 1, 1986 through December 31, 1989 January 1, 1990 through December 31, 1995 J li�EiPAGE_119r Acres Developed 35.3 58.3 It is expressly understood that City's obligation hereunder with respect to sewer capacity shall be limited to the following cumulative average daily flow measured at the Project in terms of gallons per day (GPD): Years GPD (Cummulative) January 1, 1986 through December 31, 1989 70,600 gpd January 1, 1990 through December 31, 1995 187,200 gpd * Maximum usage per acre: 2,000 gallons per day. If, for any reason, either party fails to reach the above required obligations, any such failure shall have no effect on the PUD approval. 4. Paragraph 5 of the aforementioned original agree- ment is amended to read: Extension /Construction of Public Facilities. All water and sewer lines, storm drainage distribution systems, streets, bridges, signalization, and other public works facili- ties required for Project will be constructed on a phased basis dependent upon the needs of the Project and the City. City agrees to cooperate in the establishment of a reimbursement or contribution mechanism and /or assessment district whereby Filice is reimbursed or paid on a pro -rata basis by owners of subse- quently developed (within ten years following final payment of said amounts by Filice) real property benefiting from said public works facilities. The respective obligations and contri- butions or credits of Filice and the City relative to said N J i O G PAGE �� J public works facilities shall be set forth in the City standard form agreement for construction and improvement. 5. Paragraph 6 of the aforementioned original agree- ment is amended to read: Periodic Review. In compliance with Government Code Section 65865.1, City shall have the right to continuously monitor the progress of Filice toward the reaching of the development levels prescribed herein. Filice shall cooperate with the City by providing information necessary for such monitoring. 6. Paragraph 8 of the aforementioned original agree- ment is amended to read: Notices: Any notices to be given under this agreement shall be personally delivered or mailed as follows: City City Administrator City Hall 7351 Rosanna Street Gilroy, California 95020 Filice Mr. John M. Filice, Jr. Filice Family Estates 7951 -A Wren Avenue Gilroy, CA 95020 7. Paragraph 12 of the aforementioned original agree- ment is amended to read: Remedies. In the event City defaults on any of its obligations hereunder, under no circumstances shall Filice be entitled to damages for lost profits or be entitled to damages for expenditures or costs incurred prior to the date of this Agreement. Filice shall be entitled to punitive damages if ordered by a court in the event the court finds the City's default to have been willful, avoidable, arbitrary and capri- cious. In the event Filice fails to develop 37.5 acres of Project as required under Paragraph 3, City shall be relieved of the obligation to reserve sewer plant capacity for the years 1990 through 1995. 4 J'756P46E E 196 8. Amendment to be Recorded. This amendment shall be recorded by the City Clerk of City within 10 days following the effective date thereof. All terms and conditions hereof shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators and assigns. 9. Implementation of Revised Development Schedule. The revised development schedule and sewer allocation provided for under this Amendment shall not be implemented until all periods for judicial review of this Amendment have expired or, in the event of judicial challenge, the validity of this Amend- ment has been upheld and all periods of appeal expired or appeals resolved in favor of the validity of the Amendment. Until the happening of the latest of said events, Filice shall be entitled to the sewer allocation prescribed in the aforemen- tioned original Development Agreement. IN WITNESS WHEREOF, the parties have executed this Amendment on the dates indicated below. Dated: to C, ,1 12� (o Dated: G �G AGR10:4:5/14/86 Tit1e,—_;7 C i j � TZ By: T 1 1 City Clerk(_, FILICE (�J By: Title: crP� 5 STATE OF CALIFORNIA ass � h w, County of Santa Clara , GE On, June 30, 1986 before me the undersigned, a Notary 9 Public in and for said Countv of Santa Clara and State, personally appeared JAY BAKSA known to me to be the City Administrator , and SUSAN'NE E. STEINMETZ I nown to me to be the City Clerk of the Municipal ,: orporation that executed the within instrument, and '.mown to me to be the persons who executed the within instrument on behalf of the corpora- tion therein named, and acknowled,'-,ed to me that such corporation executed the same. .�,•. , OFFICIAL SEAL JUDY DIAZ WITNESS my hand and official seal. o NOTARY PUBLIC - CALIFORNIA SANTA CLARA COUNTY My comm. expires OCT 16, 1987 Notary Public `:y Commission expires: PARTNERSHIP ACKNOWLEDGMENT State of CALIFORNIA County of SANTA CLARA SS. - -_ -- - _ OFFICIAL SEAL ''' l h'riEY LG�I PF.OBF�T �Y' ;*'y`�,:" �NJTI.F?Y rU r:LIC-CAUFI,lFN1A �_� SANTA CLAPA �.OUNTY MY COt1,. EXP. JUNE 18,1990 � .<�oos�a- �ooa�+a +.so �sw 7130 122 NO 203 On this the 26th day of _ June +� 19 86 before me, MARY LOU PROBERT v PAGE 11 198 the undersigned Notary Public, personally appeared JOHN M. FILICE, JR., General Partner X personally known tome proved to me on the basis of satisfactory evidence to be the person(s) who executed the within instrument on behalf of the partnership, and acknowledged to me that the partnership executed it. WITNESS my hand and official seal. � ` I Notary's Signature NATIONAL NOTARY ASSOCIATION • 23012 Ventura Blvd. • PO. Box 4625 • Woodland Hills, CA 91364