Dysan Corp and Filice Family Estates - Amendment No. 2NO FEE per GC Sec 6103
9 1:jQS2
F ILLD FCR REUO,RD
RECORDING REQUESTED BY ) At REQUEST OF
kl�_Susanne E. Steinmetz,City Clerk ) kR l 19 987
City of Gilroy )
7351 Rosanna St. ) Ufs
Gilroy, CA 95020 ) SANTA CLAFi.`. C;•i rs'
LAUHH,
7351 Rosanna Street
Gilroy, California 95020 K Q [l 3 oAGE 961
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
This is the second amendment to the Development Agree-
ment entered into between the City of Gilroy (City) and Dysan
Corporation ( Dysan) and Filice Family Estates (Filice) on
September 17, 1983 by adoption of Ordinance No. 83 -18 and amended
on March 17, 1986 by adoption of Ordinance No. 86 -5.
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 plan. Following expiration of the
moratorium, continuing inadequate sewer capacity 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 requested the developers of Santa Teresa
Technology Park (Project) to modify the allocation of sewer
capacity set forth in their Development Agreement, which was
voluntarily done through the aforementioned First Amendment.
Sewer capacity remains inadequate to meet the needs of
the community - in particular, the need for housing. Since
adoption of the aforementioned First Amendment, City has committed
itself to construction of a new municipal sewage treatment
facility. Filice has offered to delay commencement of Project
pending completion of a new sewer plant thereby making sewer
capacity allocated to Project under the First Amendment available
to City for other community needs.
K093PAGE 962
City desires to regain the
capacity committed to Project under the First Amendment and
therefore enters into this Second Amendment. Except as expressly
modified herein, all terms and provisions of the aforementioned
original agreement, as amended, shall remain in full force and
effect.
IT IS AGREED AS FOLLOWS:
1. Paragraph 3 of the aforementioned original agree-
ment, as amended, is further amended to read:
Covenants of Filice. Filice agrees to delay development
of Project under the aforementioned PUD approval pending construc-
tion of a new municipal sewage treatment facility by City. All
on -site and off -site improvements in connection with Project 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.
2. Paragraph 4 of the aforementioned original agree-
ment, as amended, is further amended to read:
Covenants of City. City covenants that the Project
shall be entitled to all necessary municipal services commencing
with the availability of sewer capacity on the same basis status
and priority status as the then existing industrially zoned
property.
This Agreement shall terminate upon
2
'A'093PAGE X 6 3
expiration of a 10 -year period commencing with the availability of
sewer capacity. Specific phasing for build out of Project shall
be mutually agreed to by the parties prior to completion of
construction of the new sewer plant. City further covenants to
exercise due diligence in the planning and construction of a new
municipal sewer treatment facility.
3. Paragraph 6 of the aforementioned original agree-
ment, as amended, is further amended to read:
Periodic Review. In compliance with Government Code
§65865.1, City shall have the right to continuously monitor the
progress of Filice in meeting the build -out phasing requirements
provided for herein.
4. Paragraph 12 of the aforementioned original agree-
ment, as amended, is further 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 Agree-
ment. 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 capricious.
5. Second Amendment to be Recorded. This second
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.
6. Implementation of Revised Development Schedule. The
provisions of this Second Amendment shall not be implemented until
all periods for judicial review of this Second Amendment have
expired or, in the event of judicial challenge, the validity of
3
this Second Amendment has been upheld and all periods of appeal
expired or appeals resolved in favor of the validity of the Second
Amendment. Until the happening of the latest of said events,
Filice shall be entitled to the sewer allocation prescribed in the
aforementioned First Amendment to the Development Agreement.
IN WITNESS WHEREOF, the parties have executed this
Second Amendment on the dates indicated below.
Dated: March 2, 1987 CITY
By
Tile
13y! L9
Dated: z') / 5' 1 FILICE
By=
Title:
it,1 Administrator
l
Q
STATF OF CALIFORNIA
COUr -lTyOF Santa Clara SS
On this -_ 113th_ -- day of ____March _ 1987 , before mer the undersigned.
a Notary PUIbic in and for said County and State, personally appeared
John M. Filice, Jr
- personally knowr
C1 I to me (or proved to me on the basis of satisfactory evidence) to be one _ of the partners of the
`c
partnership that executed the within instrument, and acknowledged to me that such partnership executed
E the some
�
m
o WITNESS my hand and official seal , r i OFFICI7RAr L
C \ ` t n� 4
i Signature f � - [% G .� s CRYSTAL TY
1 NOTARY PUBU ORNIA Cr stal Raffert I SANTACLAFY Y y My Comm. Expir3, 1989
Name (Typed or Printed)
T1103 (This area for official seal)
City C