Regency Group - Development AgreementRECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020 -6190
Attention: City Administrator
DOCUMENT: 16871015
11111111 NI11V111lVl11111111l11
BRENDA DAVIS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Chicago Title
DEVELOPMENT AGREEMENT
BETWEEN
CITY OF GILROY
AND
REGENCY REALTY GROUP, INC.
Dated: February 5, 2003
Titles :l / Pages: 77
Fees.... 235.00
Taxes...
Copies..
AMT PAID 235.00
RIDE # 007
3/07/2003
1 :31 PM
CITY OF GILROY
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement ") is made and
entered into as of this 5th day of February,2003, by and between
CITY OF GILROY, a California municipal corporation ( "City "), and
REGENCY REALTY GROUP, INC., a Florida corporation ( "Regency ").
RECITALS:
This Agreement is entered into on the basis of the following
facts, understandings and intentions of the Parties:
A. These Recitals refer to and utilize terms which are
defined in this Agreement; and the Parties refer to those
definitions in conjunction with their use in these Recitals.
B. The Development Agreement Legislation authorizes City
to enter into development agreements in connection with the
development of real property within its jurisdiction. The
Development Agreement Ordinance establishes the authority and
procedure for review and approval of proposed development
agreements by City.
C. Regency has the right pursuant to a written agreement
with the owner of the Property to acquire the Property, and
therefore has a sufficient legal interest to enter into a
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development agreement with City pursuant to the Development
Agreement Legislation and Development Agreement Ordinance.
D. Regency applied for approval of this Agreement in order
to (i) vest the land use policies established in the General Plan
and other Existing City Regulations as of the Adoption Date, and
(ii) memorialize certain agreements made between City and Regency
with respect to the City Financial Contribution. City and
Regency acknowledge that development and construction of the
Project is a large -scale undertaking involving major investments
by Regency. Thus, certainty that the Project can be developed
and used in accordance with the General Plan and other Existing
City Regulations will benefit City and Regency and will provide
the Parties certainty with respect to implementation of the
policies set forth in the General Plan.
E. City is willing to enter into this Agreement to (i)
eliminate uncertainty in the comprehensive development and
planning of the Project and the timing of the construction and
occupancy of the Project; (ii) secure orderly development and
progressive fiscal benefits for public services, improvements and
facilities planning in City; (iii) meet the goals and objectives
of the General Plan; and (iv) provide significant new retail uses
in City which will add to the existing retail base within City
and significantly enhance retail uses within City because of the
types of Occupants which will lease and /or own space within the
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Project.
F. Development of the Project in City will locate in City
major retailers with a high profile in the shopping center
industry and enhance both the image and stature of City.
Furthermore, development of the Project will increase employment
opportunities in City, leading to the production of increased
revenues for City both through taxes paid by Occupants of the
Project, as well as other fiscal benefits to City, such as sales
taxes generated through retail sales at the Project, and property
taxes that result from the enhancing effect that the Project has
on real estate values in City.
G. Regency has informed City that, however, in order for
Regency to construct, develop, lease and /or sell space in the
Project, Regency will require a financial contribution from City
in order to make the Project financially feasible. Specifically,
Regency has informed City that the cost and expense required of
Regency in order to design, install and construct the Public
Improvements required by the Project Approvals would, if City
does not make the City Financial Contribution, make the Project
financially infeasible. In connection with Regency's request for
the City Financial Contribution, Regency has informed City that
the Occupants of the Project will generate substantial sales tax
revenues to City and has supplied to City a Fiscal Revenue
Analysis of the Project prepared by Kosmont Partners, dated
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January, 2002. Such Fiscal Revenue Analysis supports the
conclusion that the Occupants of the Project will generate
substantial sales tax revenues to City. In consideration of this
sales tax revenue generation, City has agreed to make the City
Financial Contribution, but on terms and conditions which will
ensure that Occupants will occupy space in the Project and
generate sales tax revenue.
H. Regency has provided to City for review and approval by
City the estimate of Regency's engineer of the projected cost of
the Public Improvements. The City Engineer has reviewed such
estimates and has determined that they are reasonable and that
the City Financial Contribution will not exceed the cost to
design, construct and install the Public Improvements.
I. On November 21, 2002, after due review of and report on
Regency's application for this Agreement by City staff, and
consideration of all other evidence heard and submitted at a duly
noticed public hearing held on November 21, 2002, pursuant to the
Development Agreement Legislation and the Development Agreement
Ordinance, the Planning Commission duly adopted its Resolution
No. 2002 -39, and (i) found and determined that consideration of
this Agreement complies with CEQA based on the adoption of the
Final EIR, and that this Agreement is consistent with the
objectives, policies, land uses and programs specified in the
General Plan and in the other Existing City Regulations
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pertaining thereto, and (ii) recommended that the City Council
approve this Agreement based on the foregoing findings.
J. On December 2, 2002, the City Council held a duly
noticed public hearing on this Agreement pursuant to the
requirements of the Development Agreement Legislation and the
Development Agreement Ordinance. After due review of and report
on Regency's application for this Agreement by City staff, and
consideration of the Planning Commission's recommendations
thereon, and of all other evidence heard and submitted at such
public hearing, the City Council (i) considered the Final EIR in
compliance with CEQA; and (ii) introduced the Enacting Ordinance
approving this Agreement, finding and determining in connection
therewith that this Agreement is consistent with the objectives,
policies, land uses and programs specified in the General Plan,
and in the other Existing City Regulations pertaining thereto.
On January 6, 2003, the City Council adopted the Enacting
Ordinance enacting this Agreement.
NOW, THEREFORE, pursuant to the authority contained in the
Development Agreement Legislation and the Development Agreement
Ordinance, and in consideration of the foregoing Recitals and the
mutual covenants and promises of the Parties herein contained,
the Parties agree as follows:
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ARTICLE I
DEFINITIONS
1.1. Defined Terms. Each reference in this Agreement
to any of the foiiow -Mg terms shah have the meaning set forth
below for each such term.
Adoption Date: The date the City Council adopted the
Enacting Ordinance enacting this Agreement.
Affiliate: Any Person directly or indirectly
controlled by, controlling, or under common control of, another
Person; any Person resulting from the merger or consolidation of
a Person with another Person; any Person which acquires the
controlling interest in the assets of another Person as a going
concern; or any parent of a Person, any subsidiary of a Person,
or any subsidiary of a parent of a Person, including, for
purposes of the foregoing, any parent or subsidiary through one
or more parents or subsidiaries owned or controlled by such
parent or subsidiary.
Appiicabie city heguiations: The Existing City
Regulations, and such other City Regulations otherwise applicable
to development of the Project pursuant to the provisions of
Section 3.2.
Building Group: Each Building Group designated as such
on the Site Plan.
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CEQA: The California Environmental Quality Act (Public
Resources Code Section 21000, et se q.) and the Guidelines
thereunder (14 California Code of Regulations Section 15000, et.
seq.).
Certificate of Occupancy: A final certificate of
occupancy issued by City pursuant to the Construction Codes upon
due application by Regency. For purposes hereof, a "Certificate
of Occupancy" shall include one or more such certificates of
occupancy which may be required for occupancy of a Building
Group.
City Application Fee: A fee levied or assessed by City
to cover the reasonable cost of City's performance of any
discretionary, ministerial, clerical or other action, or required
by City for reviewing and processing applications for City
Approvals, including City Application Fees for the Project
Approvals and compliance with CEQA.
City Approvals: The permits or approvals required under
Applicable City Regulations in order to develop, use and operate
the Project.
City Development Fee: A fee or assessment, other than
a City Application Fee, charged or required by City in connection
with any City Approval to defray the cost of public services or
facilities or imposed for a public purpose.
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City Fee: A City Application Fee and /or City
Development Fee.
City Financial Contribution: The waiver by City of City
Development Fees pursuant to the provisions of Section 4.3 of
this Agreement. The City Development Fees which are applicable
to space in each Building Group and the amount of the City
Development Fees payable for each such space are set forth in
F -Z 1-1 1 h; t A
City Regulations: The General Plan of City, and
ordinances, resolutions, codes, rules, regulations and official
policies of City, in effect as of the time in question,
determined in accordance with the provisions of this Agreement.
City Standards: The standards for the design,
installation and construction of the Public Improvements under
Existing City Regulations, including the Construction Codes under
Existing City Regulations as specified in Exhibit B.
Construction Codes: The City Regulations pertaining to
or imposing life safety, fire protection, mechanical, electrical
and /or building integrity requirements with respect to the design
and construction of buildings and improvements.
Dedicate: An irrevocable offer to make a dedication of
land and /or improvements to City.
Dedication: An Exaction comprised of land and /or
improvements required to be Dedicated to City.
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Development Agreement Legislation: Government Code §§
65864 - 65859.5, authorizing City to enter into development
agreements as therein set forth.
Development Agreement Ordinance: Resolution No. 2002-
61, adopted by City's City Council on August 5, 2002,
establishing the authority and procedure for review and approval
of proposed development agreements.
Effective Date:
The date that is thirty (30) days
after the date the Enacting Ordinance was adopted by City
Council. The Effective Date shall be extended, as necessary, by
any referendum challenging this Agreement, the response of the
City Council thereto, litigation filed challenging this
Agreement, or similar events warranting such extension as City
and Regency may so determine.
Enacting Ordinance: Ordinance No. 2003 -02 enacted by
City Council on January 6, 2003, enacting this Agreement as an
ordinance of City pursuant to Section 65867.5(a) of the
Development Agreement Legislation.
Exaction: An exaction (other than City Fees),
Dedication or reservation requirement, an obligation for on- or
off -site improvements or construction of public improvements, or
an obligation to provide services, in connection with the
development of the Project. For purposes hereof, Exactions
include mitigation measures imposed or adopted pursuant to CEQA.
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Existing City Regulations: The City Regulations in
effect as of the Adoption Date, including the Project Approvals
as part of the Existing City Regulations.
Final EIR: The final environmental impact report
prepared on behalf of City by Dom^ nuf -F,, -� Associa }ns in
accordance with the requirements of CEQA.
Force Majeure: A delay in the Project Development
Schedule or the opening for business of an Occupant caused by
reason of events beyond the reasonable control of a Party,
including acts of God or civil commotion; riots, strikes,
picketing, or other labor disputes; shortage of materials or
supplies; damage to work in process by reason of fire, floods,
earthquake, or other casualties; restrictions or delays imposed
or mandated by Responsible Agencies; enactment of Laws which
prevent or preclude compliance by a Party with any material
provision of this Agreement; litigation brought by Persons other
than a Party, or Affiliate of a Party; and acts (or failure to
act when action is required) or neglect of another Party.
Indemnify: An ob i ,a' - a t^ in- ?- mnify,
defend, protect and hold the other Party, its officials,
officers, employees, agents, stockholders, constituent partners
and members of its boards and commissions, harmless from and
against Losses.
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Laws: The Constitution and laws of the State, the
Constitution of the United States, and any codes, statutes,
regulations, or executive mandates thereunder, and any court
decision, State or federal, thereunder.
Losses: Claims, damages, liabilities, penalties,
fines, causes of action, lawsuits and other proceedings, and
costs and expenses in connection therewith, including reasonable
attorneys= fees.
Mortgage: A mortgage or deed of trust, or other
transaction, in which Regency conveys or pledges as security its
interest in the Project, or a portion thereof, or interest
therein, or any impr< vem.ent `L: , e n; _ _ z =le and leaseback
arrangement, in which Regency sells and leases back concurrently
therewith its interest in the Project, or a portion thereof, or
interest therein, or improvements thereon.
Mortgagee: The holder of the beneficial interest under
a Mortgage, or the owner of the Project, or interest therein,
under a Mortgage.
Non -Tax Generating Entities: A Person which, due to
the nature of its business or its status as a tax - exempt
organization, would not generate retail sales taxes to City if
space in the Project were leased to such Person. Examples of
such Persons include religious facilities, public agencies, non-
profit organizations, and medical or dental offices without
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significant accompanying retail sales.
Occupants: The Persons from time to time entitled to
the use and occupancy of space within the Building Groups in the
Project pursuant to Occupant Transfers. Reference to an Occupant
shall refer to any or all of the Occupants of the Project, as the
context may require.
Occupant Transfer: Any transaction by which an Occupant
becomes entitled to occupy and use space within a Building Group,
including a lease agreement, or a transaction through which
Regency transfers to an Occupant the fee title interest in a
Building Group, or portion thereof, and /or a portion of the
Property upon which a Building Group is, or will be, located.
Any Occupant Transfer made by a lease agreement shall have a
lease term of not less than five (5) years. Any transaction by
which a Non -Tax Generating Entity becomes an Occupant, or a
Relocation Entity becomes an Occupant, shall not constitute an
Occupant Transfer for any purpose under this Agreement.
Party: City, and /or Regency, and Regency's
Transferees, determined as of the time in question.
Person: An individual, partnership, firm, association,
corporation, trust, governmental agency, administrative tribunal
or other form of business or legal entity.
Project: The development, use and occupancy of
buildings and other improvements on the Property pursuant to the
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Project Approvals.
Project Approvals: The City Approvals governing the
Project enacted concurrently with this Agreement as set forth in
Exhibit C hereto, as the same may be amended from time to time
during the Term. Reference in this Agreement to a particular
Project Approval shall have the meaning ascribed to such Project
Approval set forth in Exhibit C.
Project Development Schedule: The schedule for
development of the Project prepared by Regency and approved by
City as part of this Agreement attached hereto as Exhibit D.
Property: The real property more particularly
described in Exhibit E hereto, to be acquired by Regency.
Public Improvements: The off -site public improvements
required to be designed, installed and constructed by Regency
pursuant to the Project Approvals, which Public Improvements are
listed in Exhibit F hereto.
Relocation Entity: A Person which, if space were
leased to such Person in the Project, would result in the
relocation of the business of such Person from an existing
location in City and the closure by such Person of such existing
business location.
Responsible Agencies: All governmental or quasi-
governmental agencies (such as public utilities) having
jurisdiction over, or the authority to regulate development of,
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the Project.
Responsible Agency Regulations: The Laws, ordinances,
resolutions, codes, rules, regulations and official policies of
Responsible Agencies in effect as of the time in question.
Site Plan: The site plan for the shopping center
comprised in the Project attached hereto as Exhibit G.
State: The State of California and any department or
agency acting on behalf of the State.
Term: The term of this Agreement, determined as of the
time in question pursuant to Article II below, unless sooner
Terminated as provided in this Agreement.
Terminate: The expiration of the Term of this
Agreement, whether by the passage of time or by any earlier
occurrence pursuant to any provision of this Agreement.
Transfer: The sale, assignment, lease, sublease, or
other transfer by Regency of this Agreement, or any right, duty
or obligation of Regency under this Agreement, made pursuant to
the terms, standards and conditions of Article X of this
Agreement, including by foreclosure, trustee sale, or deed in
lieu of foreclosure, under a Mortgage, but excluding (i) a
Dedication and (ii) a Mortgage, including a transfer or
assignment of this Agreement to a Mortgagee as additional
security under a Mortgage.
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Transferee: The Person to whom a Transfer is effected.
1.2. Certain Other Terms. Certain other terms shall
have the meaning set forth for each such term in this Agreement.
ARTICLE II
EFFECTIVE DATE: TERM
2.1. Effective Date; Term Commencement. This
Agreement shall be dated as of the Adoption Date; the rights,
duties and obligations of the Parties hereunder shall be
effective, and the Term shall commence, as of the Effective Date.
Regency has previously executed and acknowledged this Agreement
before adoption by the City Council of the Enacting Ordinance.
Not later than thirty (30) days after the Effective Date, City,
by and through its Mayor, shall. exec,_i`_e a -d acknowledge this
Agreement; and not later than ten (10) days after City's
execution and acknowledgment of this Agreement, the City Clerk
shall cause this Agreement to be recorded in the Official Records
of the County of Santa Clara.
2.2. Expiration of Term. Unless sooner Terminated
pursuant to the applicable provisions of this Agreement, the Term
shall expire on the earlier to occur of (i) five (5) years after
the date on which Certificates of Occupancy have been issued for
all Building Groups in the Project or (ii) December 31, 2010.
2.3. Subsequent Amendments or Termination. If the
Parties amend, modify or Terminate this Agreement as herein
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provided, or as otherwise provided by the Development Agreement
Ordinance, or this Agreement is modified or Terminated pursuant
to any provision hereof,'then City Clerk shall, within ten (10)
days after such action takes effect, cause an appropriate notice
of such action to be recorded in the Official Records of the
County of Santa Clara.
2.4. Expiration of Term. Except for accrued
obligations of a Party, upon expiration of the Term, this
Agreement and all of the rights, duties and obligations of the
Parties hereunder shall Terminate and be of no further force or
effect. Expiration of the Term (including by Termination of this
Agreement) shall not affect any right vested under Laws (absent
this Agreement), or other rights arising from City Approvals
granted by City for development of all or any portion of the
Project.
ARTICLE III
GENERAL REGULATION OF DEVELOPMENT OF PROJECT
3.1. Project Development; Control of Development.
Regency shall have the right to develop the Project in accordance
with the terms and conditions of *_h S Agre—ent; and City and
Agency shall have the right to control development of the Project
in accordance with the provisions of this Agreement. The
Applicable City Regulations and this Agreement shall control the
overall design, development and construction of the Project, and.
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all on- and off -site improvements and appurtenances in connection
therewith, in the manner specified in this Agreement. In the
event of any inconsistency between the Applicable City
Regulations and this Agreement, this Agreement shall control,
except that if the inconsistency cannot be reconciled by
application of this rule of construction, the provision which
best gives effect to the purposes of this Agreement shall
control.
3.2. Applicable City Regulations. Except as
specifically provided in this Section 3.2 and Section 3.3, the
Existing City Regulations shall govern the development of the
Project and all subsequent City Approvals with respect to the
Project. City shall have the ri.aht, in connection with any
further City Approvals, to apply City Regulations as Applicable
City Regulations only in accordance with the following terms,
conditions and standards:
3.2.1. Future City Regulations. City shall have
the right to apply City Regulations adopted by City or Agency
after the Adoption Date only if such City Regulations (i) are not
in any manner inconsistent or in conflict with the intent,
purposes, terms, standards or conditions of this Agreement; (ii)
do not in any manner change or modify the uses, height, density
and intensity of development specified in the Existing City
Regulations or this Agreement with respect to the Project, or do
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not change or modify, or interfere with, the timing, phasing, or
rate of development of the Project; and (iii) do not interfere
with or diminish the ability of a Party to perform its
obligations hereunder or expand, enlarge or accelerate Regency's
obligations hereunder.
3.2.2. Reaulation for Health and Safetv.
Notwithstanding any other provision of this Agreement, City shall
have the right to apply City Regulations adopted by City after
the Adoption Date, if such application (i) is otherwise
permissible pursuant to Laws (other than the Development
Agreement Legislation) and (ii) is required to protect against a
demonstrated threat to the physical health and safety of existing
or future Occupants, or users of the Project, or any portion
thereof or any lands immediately adjacent thereto.
3.2.3. Construction Codes. Except for the Public
Improvements governed by the City Standards pursuant to Section
4.2 below, City shall have the right to apply to the Project, as
a ministerial act, the Construction Codes in effect at the time
of the approval of any City Approval thereunder. All permits
required under Construction Codes shall be issued by City after
City's review and approval of Regency's or an Occupant's
applications therefor, except that City's review of the
applications shall be limited to determining whether (i) the
application is complete, and (ii) the application complies with
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the Construction Codes then in effect, the City Approvals and
this Agreement.
3.3. Review and Processing of City Approvals. City
shall accept for processing, review and action, all applications
for City Approvals with respect to the Project when and if the
same are complete, as determined pursuant to Government Code
Section 65940, et sec. Upon acceptance by City, such
applications shall be reviewed and processed to completion in a
reasonable time, with the overall goal of the Parties being to
maintain the Project Development Schedule and allow Occupants to
open for business in the Project, including scheduling of all
required public hearings, and processing and checking of all
maps, plans, permits, building plans and specifications and other
plans relating to development of the Project filed by Regency or
an Occupant. In connection with any City Approval, City shall
exercise its discretion or take action only in a manner which
complies and is consistent with the standards, terms and
conditions contained in this Agreement.
3.4. Effect of Agreement. This Agreement constitutes
a City Approval adopted pursuant to the Applicable City
Regulations.
3.5. Other Governmental Approvals. Regency (or an
Occupant) shall be responsible for complying with all Responsible
Agency Regulations and Laws in connection with the development,
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use and operation of, or provision of services to, the Project.
Regency (or an Occupant) shall be responsible for applying for
and obtaining all approvals required from Responsible Agencies
necessary for the development, use and operation of, or provision
of services to, the Project. Regency (or an Occupant) shall
undertake reasonable, diligent and good faith efforts to obtain
all Responsible Agency Approvals in a timely fashion. City shall
cooperate with Regency and any Occupant in such endeavors upon
request made for such cooperation, but without cost to City.
3.6. Effect of Termination. Upon Termination of this
Agreement pursuant to Article VI, City shall retain any and all
benefits, including money or land, previously received by City as
of the date of Termination under or in connection with this
Agreement. No Termination of this Agreement shall prevent
Regency or an Occupant from completing and occupying buildings or
other improvements authorized pursuant to valid building permits
previously approved by City or under construction at the time of
Termination, but City may take any action permitted by Laws or
City Regulations to prevent, stop or correct any violation of
Laws or City Regulations occurring during and after construction.
No Termination of this Agreement shall affect any accrued
obligation of either Party under this Agreement to pay or refund
money to the other Party.
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3.7. Operating Memoranda. The provisions of this
Agreement require a close degree of cooperation between City and
Regency, and refinements and further development of the Project
may demonstrate that clarifications with respect to the details
of performance of City and Regency or minor revisions to the
Project are appropriate. If and when, from time to time, during
the term of this Agreement, City and Regency agree that such
clarifications or minor modifications are necessary or
appropriate, they shall effectuate such clarifications through
operating memoranda approved by City and Regency, which, after
execution, shall be attached to and become a part of this
Agreement. No such operating memoranda shall constitute an
amendment to this Agreement requiring public notice or hearing.
The City Attorney shall be authorized to make the determination
whether a requested clarification may be effectuated pursuant to
this Section 3.7 or whether the requested clarification is of
such a character to require an amendment hereof pursuant to
Article XI below. The Parties acknowledge that modifications
which.would be categorized as exempt under CEQA, or which, after
an initial study made pursuant to CEQA, City determines do not
require any further environmental review, or do not increase the
density or intensity of use or the maximum height, bulk, size or
architectural style of proposed buildings within the Property,
may be effectuated through operating memoranda pursuant to this
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Section 3.7. The City Administrator may execute any operating
memoranda hereunder without City Council action.
ARTICLE IV
SPECIFIC CRITERIA AND OBLIGATIONS
APPLICABLE TO DEVELOPMENT OF PROJECT
4.1. Right to Develop; Requirement to Develop Project
in Accordance with Project Development Schedule. City
acknowledges that, subject to receiving any further required City
Approvals subject to the standards and provisions of this
Agreement, Regency may proceed with the development,
construction, use and occupancy of the Project as a matter of
right under this Agreement. Regency shall develop the Project
(including the Public Improvements) in accordance with the
Project Development Schedule in order to ensure to City that
Occupants begin to generate sales tax revenues in appropriate
relationship to the timing and making of the City Financial
Contribution pursuant to Section 4.3 below. Any date specified
in the Project Development Schedule shall, however, be extended
by any Force Majeure delay on a day -by -day basis for the duration
of any such Force Majeure delay.
4.2. Construction of-Public Improvements. Regency
shall be solely responsible to design, install and construct the
Public Improvements at Regency's sole cost and expense. Regency
shall design, install and construct the Public Improvements in
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accordance with the City Standards. Prior to commencing
construction of the Public Improvements, Regency shall enter into
one or more improvement agreements with performance and payment
security in accordance with the requirements of the City
Approvals and Applicable City Regulations. Unless otherwise
required by Responsible Agencies under Responsible Agency
Regulations, which requirements become part of the City
Approvals, City shall impose no requirements in addition to, or
more stringent than, those specified by the City Standards.
Promptly upon completion of any of the Public Improvements,
Regency shall Dedicate such Public Improvements to City or the
Responsible Agency having jurisdiction.
4.3. Terms of'City Financial Contribution. The City
Financial Contribution shall be made by City in accordance with
the terms and conditions of this Section 4.3.
4.3.1 Deferral of Payment of City Development
Fees. Notwithstanding anything to the contrary contained in the
Applicable City Regulations, no City Development Fee comprised in
the City Financial Contribution shall be due or payable by
Regency for space contained in any Building Group developed by
Regency in the Project unless and until Regency has requested a
final inspection for such space under City's Construction Codes,
and City is prepared to issue a Certificate of Occupancy for such
Building Group. Concurrently with making such request for a
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Building Group or any space therein, Regency shall supply to City
evidence of any Occupant Transfers in effect for the affected
space in such Building Group. If Regency submits evidence of one
(1) or more Occupant Transfers for the affected space in such
Building Group, then Regency shall have no obligation to pay City
Development Fees applicable to such space, and City shall forever
waive and relinquish its right to collect such City Development
Fees. If, at the time Regency makes such request for a Building
Group or space therein, Regency does not so provide evidence of
an Occupant Transfer for the affected space in such Building
Group, then Regency shall pay to City the City Development Fees
applicable to such space concurrently with issuance by City of
the Certificate of Occupancy for the affected space in such
Building Group. In the event that Regency after making such
payment provides to City evidence of one (1) or more Occupant
Transfers for the affected space in such Building Group within
one - hundred - eighty (180) days after issuance by City of such
Certificate of Occupancy, and within two - hundred -forty (240) days
after the issuance by City of such Certificate of Occupancy the
Occupant to which the Occupant Transfer has been effected opens
for business in its space in the affected Building Group, then,
within thirty (30) days after the date such Occupant first opens
for business in such space, City shall repay to Regency the City
Development Fees previously paid by Regency with respect to the
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affected space in such Building Group, and such City Development
Fees shall be deemed waived and relinquished by City pursuant to
this Section 4.3.1. To the extent that Regency fails to meet the
requirements for occupancy of space in a Building Group under
this Section 4.3.1, then City shall thereupon have no obligation
to waive and relinquish City Development Fees with respect to
such space in such Building Group, and Regency shall thereupon
have no further right for the City Financial Contribution with
respect to such space.
4.3.2 Non -Tax Generating Entity and Relocation
Entity Transfers. If Regency effectuates a Transfer to a Non -Tax
Generating Entity and /or a Relocation Entity, Regency shall not
be entitled to any City Financial Contribution on account of such
Transfer, and any City Development Fees payable by Regency with
respect to the space to be occupied by such Non -Tax Generating
Entity or Relocation Entity shall be fully due and owing by
Regency upon entering into such Transfer with such Entity.
4.3.3 City Development Fees. The City Development
Fees payable by Regency with respect to space in Building Groups
and the Project are listed on Exhibit A, which City Development
Fees have been calculated based on the square footage of space in
each Building Group and the Project shown on the Site Plan. If
the square footage of space in a Building Group is, when
constructed, greater or lesser than the square footage of space
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shown on the Site Plan for such Building Group, then the amount
of City Development Fees payable by Regency with respect to space
in such Building Group shall be adjusted on a per square foot
basis to reflect the actual square footage of space contained in
such Building Group. No other City Development Fees shall be
imposed by City, other than those specified in Exhibit A. City
shall not increase the amount of the City Development Fees as
specified in Exhibit P., and Regency's cbliyation for City
Development Fees to the extent payable by Regency pursuant to
this Section 4.3 shall not be increased above the amount for each
City Development Fee specified in Exhibit A hereto.
4.3.4 No Effect on Obligation to Design, Install
and Construct Public Improvements. Notwithstanding that Regency
may pay City Development Fees with respect to space in one or
more Building Groups pursuant to Section 4.3.1 above, Regency
shall remain fully obligated to design, install and construct the
Public Improvements at its sole cost and expense pursuant to
Section 4.2 above. Nothing in this Section 4.3 shall otherwise
relieve Regency of such obligation under Section 4.2.
4.3.5 Prevailing Wage Requirement. Regency
understands that the payment by City of the City Financial
Contribution under this Section 4.3 may require that the design,
installation, and construction of the Public Improvements be
accomplished by payment of "prevailing wage" in accordance with
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applicable requirements of State Laws. Developer further
understands that City has no responsibility to ensure compliance
with such Laws and that Regency is solely responsible to ensure
that such Laws have been complied with. In addition, Regency
understands that City, by providing the City Financial
Contribution under this Agreement, has assumed no responsibility
whatsoever (direct, indirect, implied or express) for paying any
cost or expense in connection with the design, installation or
construction of the Public Improvements, and that the
responsibility for payment thereof is solely the responsibility
of Regency. Subject to the foregoing provisions, the Parties
acknowledge that they have concluded, based on Regency's estimate
of Regency's engineer of the projected cost of the Public
Improvements, that the City Financial Contribution will not
exceed the cost to design, construct and install the Public
Improvements.
4.4 Reasonable Efforts to Lease to Tax Generatin
Occupants. Regency understands and acknowledges that City's
willingness to provide the City Financial Contribution pursuant
to Section 4.3 above is based on City's expectation that
Regency's Project will generate substantial retail sales tax
revenues. To this end, Regency shall use commercially
reasonable, good faith efforts to effectuate Occupant Transfers
to Occupants which will generate high taxable sales, taking into
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account customary and usual standards for leasing and /or selling
space and /or property in similar shopping centers, such as
appropriate tenant mix and balance, mix of retail and other uses
and categories, return on investment, and similar criteria. City
acknowledges that Regency cannot, and does not, guarantee that
the Project will in fact generate the highest sales tax revenues,
but the Parties mutual expectation is that substantial sales tax
revenues will be generated by the Project.
4.5. Vacation and Abandonment of Brem Lane. City
acknowledges that the Project and the Public Improvements require
that the existing Brem Lane be vacated and abandoned by City with
title reverting to Regency. Accordingly, promptly after the
Effective Date, City shall commence and conduct proceedings to
vacate Brem Lane pursuant to California Streets and Highways Code
Section 8320. Nothing in this Section 4.5 is intended, however,
to limit the discretion of City to take appropriate legislative
action pursuant to the procedures to vacate Brem Lane pursuant to
California Streets and Highways Code Section 8320, et seq. If
the City Council adopts a resolution of vacation pursuant to
California Streets and Highways Code Section 8324, fee title to
Brem Lane shall automatically revert to Regency. If necessary to
effectuate such reversion of fee title to Regency, City shall
execute such documents and instruments in recordable form as may
be necessary or appropriate to vest fee title in Regency pursuant
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to this Section 4.5. If the City Council declines to adopt a
resolution of vacation for Brem Lane within one - hundred - eighty
(180) days from the Effective Date, then Regency shall have the
right to Terminate this Agreement for a period of thirty (30)
days after the expiration of such 180 -day period. Regency shall
effectuate such Termination by written notice to City.
ARTICLE V
INDEMNITY; INSURANCE
5.1. Regency Indemnity. Regency shall Indemnify City
from any Losses arising out of or in connection with any
litigation or other proceeding initiated by a third Person
challenging any City Approval (including this Agreement).
Regency's obligation to Indemnify City under this Section 5.1
shall include the obligation to Indemnify for any claim that any
work performed by Regency is subject to prevailing wage
requirements under Laws and the obligation to Indemnify City for
costs incurred by City Staff and the City Attorney in connection
with any such litigation or other proceeding. The Parties shall
cooperate in defending any such litigation or other proceeding.
City shall have the right to employ its own counsel in such
litigation or other proceeding and Regency's obligation to
Indemnify City under this Section 5.1 shall include all fees and
costs incurred by City for City's counsel. In no event shall City
be required to bear the fees or costs of Regency's counsel in any
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such litigation or other proceeding. The Parties acknowledge
that this Section 5.1 constitutes a separate agreement entered
into concurrently with this Agreement, 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 as a result of any such litigation or other
proceeding, the Parties shall nevertheless be bound by the terms
of this Section 5.1, which shall survive such invalidation,
nullification or setting aside by such court.
5.2. Insurance. Until full and final completion of the
Public Improvements pursuant to Article IV above, Regency shall
maintain in effect (i) a policy of commercial general liability
insurance with a combined single limit of not less than
$5,000,000.00 per occurrence and general aggregate, and (ii)
Workers' Compensation Insurance covering all individuals employed
by Regency for work at the Project site or on the Public
Improvements, with coverage in the minimum amount required by
Laws. Regency shall also cause each general contractor and
subcontractor performing work at the Project site or on the Pubic
Improvements to carry Workers' Compensation Insurance with
coverage of at least the minimum amount required by Laws.
Regency's commercial general liability insurance under clause (i)
above shall name City, its elected and appointed boards,
commissions, officers, agents and employees, as additional
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insureds, and shall include either a severability of interest
clause or cross - liability endorsement. Regency shall furnish
City certificates of insurance evidencing that Regency's
insurance required to be carried under clauses (i) and (ii) above
is in effect and providing that City shall receive at least
thirty (30) days prior written notice of the cancellation or
reduction in coverage of any insurance policy issued pursuant to
clauses (i) or (ii) above.
ARTICLE VI
ANNUAL REVIEW OF COMPLIANCE
6.1. Annual Review. City and Regency may annually
review this Agreement, and all actions taken pursuant to the
terms of this Agreement with respect to the Project, in
accordance with the provisions of Section 65865.1 of the
Development Agreement Legislation, Section 6 of the Development
Agreement Ordinance, and this Article VI.
6.2. Regency's Submittal. Promptly after receipt from
City of notice of its decision to undertake an annual review
under this Article VI, Regency shall submit a report to the City
Administrator describing Regency's good faith substantial
compliance with the terms of this Agreement during the preceding
year. Such report shall include a statement that the report is
submitted to City pursuant to the requirements of Section 65865.1
of the Development Agreement Legislation and Section 6 of the
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Development Agreement Ordinance.
6.3. Finding of Compliance. Within thirty (30) days
after Regency submits its report hereunder, the City
Administrator shall review Regency's submission to ascertain
whether Regency has demonstrated good faith substantial
compliance with the terms of this Agreement. If the City
Administrator finds and determines that Regency has in good faith
substantially complied with the terms of this Agreement or does
not determine otherwise within thirty (30) days after delivery of
Regency's report under Section 6.2 above, the annual review shall
be deemed concluded. If the City Administrator initially
determines that such report is inadequate in any respect, he or
she shall provide written notice to that effect to Regency, and
Regency may supply such additional information or evidence as may
be necessary to demonstrate good faith substantial compliance
with the terms of this Agreement. If the City Administrator
concludes that Regency has not demonstrated good faith
substantial compliance with the terms of this Agreement, he or
she shall so notify Regency prior to the expiration of the 30 -day
period herein specified and prepare a staff report to the City
Council with respect to the City Administrator's conclusions and
the contentions of Regency with respect thereto.
6.4. Hearing Before City Council to Determine
Compliance. After submission of the City Administrator's staff
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report, the City Council shall conduct a noticed public hearing
pursuant to Section 6 of the Development Agreement Ordinance to
determine the good faith substantial compliance by Regency with
the terms of this Agreement. At least five (5) business days
prior to such hearing, the City Administrator shall provide to
the City Council, Regency and to all other interested Persons
requesting the same, copies of all staff reports and other
information concerning Regency's good faith, substantial
compliance with the terms of this Agreement and the conclusions
and recommendations of the City Administrator. At such hearing,
Regency and any other interested Person shall be entitled to
submit evidence, orally or in writing, and address all the issues
raised in the staff report on, or with respect or germane to the
issue of, Regency's good faith substantial compliance with this
Agreement. If, after receipt of any written or oral response of
Regency, and after considering all of the evidence at such public
hearing, the City Council finds and determines, on the basis of
substantial evidence, that Regency has not substantially complied
in good faith with the terms and conditions of this Agreement,
then the City Council shall specify to Regency the respects in
which Regency has failed to comply, and shall also specify a
reasonable time for Regency to meet the terms of compliance,
which time shall be not less than thirty (30) days and shall be
reasonably related to the time necessary adequately to bring
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Regency's performance into good faith substantial compliance with
the terms of this Agreement. If the areas of noncompliance
specified by the City Council are not corrected within the time
limits prescribed by the City Council hereunder, then the City
Council may by subsequent action extend the time for compliance
for such period as the City Council may determine (with
conditions, if deemed appropriate), Terminate or modify this
Agreement, or take such other actions as may be specified in the
Development Agreement Legislation and the Development Agreement
Ordinance. Any notice to Regency of a determination of
noncompliance by Regency hereunder, or of a failure by Regency to
perfect the areas of noncompliance hereunder, shall specify in
reasonable detail, the grounds therefor, and a summary of the
facts demonstrating such noncompliance or failure, so that
Regency may address the issues raised in the notice of
noncompliance or failure on a point -by -point basis in any hearing
held by the City Council hereunder.
6.5. Certificate of Compliance. If the City
Administrator (or the City Council, if applicable) finds good
faith substantial compliance by Regency with the terms of this
Agreement, the City Administrator shall, upon Regency's written
request, promptly after receipt of such request, issue a
certificate of compliance within ten (10) days thereafter,
certifying Regency's good faith compliance with the terms of this
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Agreement through the period of the applicable annual review.
Such certificate of compliance shall be in recordable form and
shall contain such information as may be necessary in order to
impart constructive record notice of the finding of good faith
compliance hereunder. Regency shall have the right to record the
certificate of compliance in the Official Records of the County
of Santa Clara.
ARTICLE VII
PERMITTED DELAYS; SUPERSEDURE BY SUBSEQUENT LAWS
7.1. Permitted Delays. Performance by a Party of its
obligations hereunder shall be excused during, and extended for a
period of time equal to, the period (on a day -to -day basis) for
which the cause of such permitted delay is in effect.
7.2. Supersedure by Subsequent Laws.
7.2.1. Effect of Conflicting Law. If any Law
made or enacted after the Effective Date prevents or precludes
compliance with one or more provisions of this Agreement, or any
provision or condition of approval contained in any other City
Approval, or requires changes in any of the plans, maps or
permits encompassed within the City Approvals, then upon request
of either Party after enactment of any such new Law, the Parties
shall meet and confer in good faith in a reasonable attempt to
modify or suspend this Agreement to comply with such Law. Any
such modification or suspension of this Agreement shall be
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effective only if approved by the City Council. If such
modification or suspension is deemed infeasible in Regency's
reasonable business judgment, then Regency may elect either (i)
to Terminate this Agreement by written notice to City, or (ii) to
contest such Law pursuant to Section 7.2.2 below. The effect of
any Termination pursuant to clause (i) above shall be governed by
the provisions of Section 3.6 above.
7.2.2. Contest of New Law. Either Party shall
have the right to contest the Law preventing compliance with the
terms of this Agreement, any City Approval, or any plans, maps or
permits thereunder and, in the event such challenge is
successful, this Agreement shall remain unmodified and in full
force and effect.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES; ATTORNEY'S FEES; CERTIFICATES
8.1. Events of Default. Subject to the provisions of
Articles VI and VII, any failure by a Party to perform any
material term or provision of this Agreement shall constitute an
"Event of Default ", (i) if such defaulting Party does not cure
such failure within thirty (30) days following notice of default
from the other Party, where such failure is of a nature that can
be cured within such 30 -day period, or (ii) if such failure is
not of a nature which can be cured within such 30 -day period, the
defaulting Party does not within such 30 -day period commence
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substantial efforts to cure such failure, or thereafter does not
within a reasonable time prosecute to completion with diligence
and continuity the curing of such failure. Any notice of and
Event of Default given hereunder shall specify in reasonable
detail the nature of the failures in performance which the
noticing party claims constitute the Event of Default and the
manner in which such Event of Default may be satisfactorily cured
in accordance with the terms and conditions of this Agreement.
Proceedings under Article VI or VII shall be governed exclusively
by the provisions of those Articles and not by the provisions of
this Article VIII.
8.2. Remedies. Except as otherwise specifically
provided in this Section 8.2, upon the occurrence of an Event of
Default, each Party shall have the right, in addition to all
other rights and remedies available under this Agreement, to (i)
bring any proceeding in the nature of specific performance,
injunctive relief or mandamus, and /or (ii) bring any action at
law or in equity as may be permitted by Laws or this Agreement.
Notwithstanding the foregoing, neither Party shall have the right
to any monetary damages (whether direct, consequential or
otherwise) on account of any Event of Default of a Party under
this Agreement, claims of breach of contract related to this
Agreement, or claims in the nature of tort related to this
Agreement (such as fraud in the inducement), except that a Party
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shall have the right to bring an action at law against the other
Party for the breach by such other Party of an obligation of such
other Party for the payment of money under this Agreement. The
Parties intend, by the provisions of this Section 8.2, that
neither Party shall have any liability for damages arising out of
an Event of Default under this Agreement, except for the right to
bring an action to enforce an obligation of a Party to pay monies
due under this Agreement as specifically provided in this Section
8.2. Accordingly, except for the right to enforce such monetary
obligations, each Party hereby waives, releases and relinquishes,
after full and complete advice by counsel chosen by each Party,
such Party's right to any claim or right to damages on account of
an Event of Default of a Party under this Agreement. In
addition, the Parties further acknowledge that monetary damages
and remedies at law generally are inadequate upon the occurrence
of an Event of Default. Therefore, specific performance or other
extraordinary equitable relief (such as injunction) is an
appropriate remedy for the enforcement of this Agreement, other
remedies at law being inadequate under all the circumstances
pertaining as of the date of this Agreement and any such
equitable remedy shall be available to the Parties. The Parties
acknowledge that neither Party would have entered into this
Agreement but for the limitations on monetary damages and the
acknowledgments and waivers contained in this Section 8.2.
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CASSIDY IREGENCY\GILROYIDEVELOPMENT AGT.5 .
8.3. Waiver; Remedies Cumulative. Failure by a Party
to insist upon the strict performance of any of the provisions of
this Agreement by the other Party, irrespective of the length of
time for which such failure continues, shall not constitute a
waiver of such Party's right to demand strict compliance by such
other Party in the future. No waiver by a Party of an Event of
Default shall be effective or binding upon such Party unless made
in writing by such Party, and no such waiver shall be implied
from any omission by a Party to take any action with respect to
such Event of Default. No express written waiver of any Event of
Default shall affect any other Event of Default, or cover any
other period of time, other than any Event of Default and /or
period of time specified in such express waiver. One or more
written waivers of an Event of Default under any provision of
this Agreement shall not be deemed to be a waiver of any
subsequent Event of Default, and the performance of the same or
any other term or provision contained in this Agreement.
8.4. Litigation Expenses. If a Party brings an action
or proceeding (including any cross - complaint, counterclaim, or
third -party claim) against the other Party by reason of an Event
of Default, the prevailing Party in such action or proceeding
shall be entitled to its costs and expenses, including reasonable
attorneys' fees and attorneys' fees on any appeal.
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8.5. Limitations on Actions. Unless otherwise
provided by Laws, any action by any third Person to attack,
review, set aside, void or annul any action or decision taken by
a Party under this Agreement shall not be maintained by such
Person unless such action or proceeding is commenced within
ninety (90) days after the date such decision or action is made
or taken hereunder.
8.6. Estoppel Certificate. Either Party may, at any
time, and from time to time, deliver written notice to the other
Party requesting such other Party to certify in writing that (i)
this Agreement is in full force and effect and a binding
obligation of the Parties, (ii) this Agreement has not been
amended or modified either orally or in writing, and if so
amended, identifying the amendments, and (iii) to the knowledge
of such other Party, no Party has committed an Event of Default
under this Agreement, or if an Event of Default has to such other
Party's knowledge occurred, to describe the nature of any such
Event of Default. A Party receiving a request hereunder shall
execute and return such certificate within twenty (20) days
following the receipt thereof. The City Administrator, as to
City, shall execute certificates requested by Regency hereunder.
Each Party acknowledges that a certificate hereunder may be
relied upon by Transferees and Mortgagees. No Party shall,
however, be liable to the requesting Party, or third Person
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requesting or receiving a certificate hereunder, on account of
any information therein contained, notwithstanding the omission
for any reason to disclose correct and /or relevant information,
but such Party shall be estopped with respect to the requesting
Party, or such third Person, from asserting any right or
obligation, or utilizing any defense, which contravenes or is
contrary to any such information.
8.7. Nonliability of Officials and Employees of City.
No member, official or employee of City shall be personally
liable to Regency in the event of any Event of Default by City or
for any amount which may become due to Regency, or for any
obligations under the terms of this Agreement, or for any claims
of breach of contract related to this Agreement, or for any
claims in the nature of tort related to this Agreement (such as
fraud in the inducement). Regency hereby waives and releases any
claim it may have against the members, officials or employees of
City with respect to any Event of Default by City or for any
amount which may become due to Regency, or on any obligations
under the terms of this Agreement.
ARTICLE IX
MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE
9.1. Mortgagee Protection. This Agreement shall be
superior and senior to the lien of any Mortgage encumbering any
interest in the Project. Notwithstanding the foregoing, no Event
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of Default shall defeat,.render invalid, diminish or impair the
lien of any Mortgage made for value, but, subject to the
provisions of Section 9.2 below, all of the terms and conditions
contained in this Agreement shall be binding upon and effective
against any Person (including any Mortgagee) who acquires title
to the Project, or any portion thereof or interest therein or
improvement thereon, by foreclosure, trustee =s sale, deed in lieu
of foreclosure, or termination of the Mortgage.
9.2. Mortqaqee Not Obligated; Mortqaqee as Transferee.
No Mortgagee shall have any obligation or duty under this
Agreement, except that nothing contained in this Agreement shall
be deemed to permit or authorize any Mortgagee to undertake any
new construction or improvement project, or to otherwise have the
benefit of any rights of Regency, or to enforce any obligation of
City under this Agreement, unless and until such Mortgagee has
become a Transferee in the manner specified in Article X below.
In the event a Mortgagee takes possession of the Property but
elects not to become a Transferee and complete the Project in
accordance with the applicable provisions of this Agreement, then
Regency shall be obligated to reimburse City for any portion of
the City Financial Contribution made to Regency pursuant to
Section 4.3 as of the date such Mortgagee so elects by written
notice to City.
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9.3. Notice of Default to Mortgagee; Riqht of
Mortgagee to Cure. If City receives notice from a Mortgagee
requesting a copy of any notice of an Event of Default given
Regency hereunder and specifying the address for service thereof,
then City shall deliver to such Mortgagee, concurrently with
service thereon to Regency, any notice given to Regency with
respect to any claim by City that Regency has committed an Event
of Default. If City makes a determination of noncompliance under
Article VI above, City shall likewise serve notice of such
noncompliance on such Mortgagee concurrently with service thereof
on Regency. Such Mortgagee shall have the right (but not the
obligation) to cure or remedy, or to commence to cure or remedy,
the Event of Default claimed or the areas of noncompliance set
forth in City's notice within the applicable time periods for
cure specified in this Agreement. If, however, the Event of
Default or such noncompliance is of a nature which can only be
remedied or cured by such Mortgagee upon obtaining possession of
the Project, or portion thereof, such Mortgagee shall seek to
obtain possession with diligence and continuity through a
receiver or otherwise, and shall thereafter remedy or cure the
Event of Default or noncompliance as soon as reasonably possible
after obtaining possession. So long as such Mortgagee is
pursuing cure of the Event of Default or noncompliance in
conformance with the requirements of this Section 9.3, City shall
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not exercise any right or remedy under this Agreement on account
of such Event of Default or noncompliance.
ARTICLE X
TRANSFERS AND ASSIGNMENTS
10.1. Right to Transfer. Regency shall have the right
to Transfer any right or interest under this Agreement in
accordance with the provisions of this Article X.
10.2. Conditions on Regency Right to Transfer. Except
as otherwise provided in this Article X, Regency shall have the
right to effect a Transfer, subject to and upon fulfillment of
the following terms and conditions:
10.2.1. No Event of Default. No Event of Default
by Regency shall be outstanding and uncured as of the effective
date of the proposed Transfer, unless City has received adequate
assurances reasonably satisfactory to City that such Event of
Default shall be cured in a timely manner either by Regency or
the Transferee under the Transfer.
10.2.2. Assumption Agreement. Regency or the
proposed Transferee has delivered to City an executed and
acknowledged assumption agreement in recordable form, reasonably
acceptable to City. Such assumption agreement shall include
provisions regarding (i) the portion or portions or interest in
the Project proposed to be Transferred and the concomitant rights
of Regency necessary to ensure that the proposed Transferee will
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have the ability to perform all of the obligations of Regency the
Transferee is to assume, (ii) the obligations of Regency under
this Agreement that the proposed Transferee will assume, and
(iii) the proposed Transferee's acknowledgment that such
Transferee has reviewed and agrees to be bound by this Agreement
and all applicable City Approvals. The assumption agreement
shall also include the name, form of entity, and address of the
proposed Transferee, and shall provide that the Transferee
assumes the obligations of Regency to be assumed by the
Transferee in connection with the proposed Transfer. The
assumption agreement shall be recorded in the Official Records of
the County of Santa Clara concurrently with the consummation of
the Transfer, and a copy thereof, certified by the County
Recorder as a duplicate copy of the approved assumption agreement
with recording information, shall be delivered to City within
three (3) days after consummation of the Transfer.
10.3. Limitations and Exceptions on Reqencv Riqht to
Transfer. Regency's right to Transfer any right or interest
under this Agreement shall be subject to the following
limitations and exceptions.
10.3.1. Transfer to Affiliate. Regency shall
have the right to Transfer any right or interest under this
Agreement to an Affiliate, as to which Transfer the condition
specified in Section 10.2.1 shall not apply. Such Affiliate
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shall become a Transferee upon (i) the acquisition by such
Affiliate of the interest Transferred, and (ii) delivery to City
of an assumption agreement pursuant to Section 10.2.2 above
assuming, from and after the date such Affiliate so acquires its
interest, all of the rights, duties and obligations pertaining to
such interest under this Agreement. Unless approved by City, and
except as provided in Section 10.3.3 below for Occupants, Regency
shall not have the right to effect a Transfer of any right or
interest under this Agreement except to an Affiliate prior to the
issuance by City of the first (1St) Certificate of Occupancy for
a Building Group in the Project.
10.3.2. Transfer to Non - Affiliate. Regency shall
have the right to Transfer any right or interest under this
Agreement concurrently with, or after issuance by City of, the
first Certificate of Occupancy for a Building Group if the
condition specified in Section 10.2.1 above is fulfilled. Such
third Person shall become a Transferee upon (i) the acquisition
by such third Person of the interest Transferred, and (ii)
delivery to City of an assumption agreement pursuant to Section
10.2.2 above assuming, from and after the date such third Person
so acquires its interest, all of the rights, duties and
obligations pertaining to such interest under this Agreement.
10.3.3. Transfers to Occupants; Occupants not
Obligated Under Agreement. Notwithstanding anything to the
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CASSIDY \REGENCY\GILROYIDEVELOPMENT AGT.5
contrary contained in this Article X, Regency shall have the
right to Transfer portions of the Project (including space in
Building Group) to Occupants pursuant to Occupant Transfers. No
Occupant to whom a Transfer is made pursuant to this
Section 10.3.3 shall have any obligation or liability under this
Agreement and the conditions specified in Section 10.2 above
shall not apply to any such Occupant Transfer.
10.4. Mortgagee as Transferee. No Mortgage (including
the execution and delivery thereof to the Mortgagee) shall
constitute a Transfer. A Mortgagee shall be a Transferee when
such Mortgagee has complied with the provisions of Section 10.2.2
above.
10.5. Effect of Transfer. Except as otherwise provided in
Section 10.3.3 for an Occupant Transfer thereunder, the
Transferee shall become a Party to this Agreement only with
respect to the interest Transferred to it under the Transfer to
the extent set forth in the assumption agreement delivered under
Section 10.2.2 above. Each Transferee, to the extent set forth in
such assumption agreement, shall observe and fully perform all of
the duties and obligations of Regency contained in this
Agreement. If Regency effects a Transfer prior to full and final
completion of the Public Improvements, then Regency shall not be
released from its obligations under this Agreement. Upon full and
final completion of the Public Improvements then, upon effecting
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CASSIDY IREGENCY\GILROY\DEVELOPMENT AGT.5
a Transfer, Regency (or its Transferee, as the case may be) shall
be released from any obligations accruing after the date of the
Transfer with respect to the obligations of Regency under this
Agreement that the Transferee assumes. For the purposes of this
Section 10.5 only, "full and final completion of the Public
Improvements" shall include the completion (or, if allowed by
City, advance payment of the costs for, or the provision of
security to the satisfaction of the City for, the construction)
of all off -site traffic mitigation measures as required by the
Project Approvals.
ARTICLE XI
AMENDMENT AND TERMINATION
11.1. Amendment or Cancellation. Except as provided
in Articles VI and VIII above, this Agreement may be Terminated,
modified or amended only by mutual consent of the Parties in
writing, and then only in the manner provided for in Section
65868 of the Development Agreement Legislation. Notwithstanding
that this Agreement is a legislative act of City, the provisions
of this Section 11.1, and Article VI, prescribe the sole and only
means pursuant to which this Agreement may be Terminated,
modified, or amended and neither this Agreement nor any term,
covenant, condition or provision herein contained shall be
subject to initiative after the Effective Date.
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CASSIDY IREGENCY\GILROY\DEVELOPMENT AGT.5
ARTICLE XII
NOTICES
12.1. Procedure. All formal notices to a Party shall
be in writing and given by delivering the same to such Party in
person or by sending the same by registered or certified mail, or
Express Mail, return receipt requested, with postage prepaid, or
by overnight courier delivery, to such Party's mailing address.
The respective mailing addresses of the Parties are, until
changed as hereinafter provided, the following:
City: 7351 Rosanna Street
Gilroy, California 95020 -6190
Attention: City Administrator
Regency: c/o Regency Centers
1850 Mt. Diablo Boulevard, Suite 225
Walnut Creek, California 94596
Attention: Thomas K. Engberg
Senior Vice President
Notices and communications with respect to technical matters in
the routine performance and administration of this Agreement
shall be given by or to the appropriate representative of a Party
by such means as may be appropriate to ensure adequate
communication of the information, including written confirmation
of such communication where necessary or appropriate. All formal
notices under this Agreement shall be deemed given, received,
made or communicated on the date personal delivery is effected
or, if mailed or sent by courier, on the delivery date or
attempted delivery date shown on the return receipt or courier
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CASSIDY \REGENCY\GILROY\DEVELOPMENT AGT.5
records.
12.2. Change of Notice Address. A Party may change
its mailing address at any time by giving formal written notice
of such change to the other Party in the manner provided in
Section 12.1 at least ten (10) days prior to the date such change
is effected.
ARTICLE XIII
COVENANTS
RUNNING
WITH
THE LAND
13.1. Covenants
Running
With
The Land. Except as
specifically provided in Section 10.3.3 above with respect to an
Occupant Transfer thereunder, all of the provisions, agreements,
rights, powers, standards, terms, covenants and obligations
contained in this Agreement shall be binding upon the Parties and
their respective heirs, successors (by merger, consolidation, or
otherwise) and assigns, devisees, administrators,
representatives, lessees, and all other Persons acquiring
Regency's interest in the Project, or any portion thereof, or any
interest therein, or any improvement thereon, whether by
operation of Laws or in any manner whatsoever, and shall inure to
the benefit of the Parties and their respective heirs, successors
(by merger, consolidation or otherwise) and permitted assigns as
Transferees, as covenants running with the land pursuant to
Section 65868.5 of the Development Agreement Legislation. This
Agreement and the covenants shall run in favor of City, without
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CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.S
regard to whether either City has been, remains or is an owner of
any land or interest in the Property, any parcel or subparcel
thereof.
ARTICLE XIV
MISCELLANEOUS
14.1. Negation of Partnership. The Parties
specifically acknowledge that the Project is a private
development, that no Party is acting as the agent of the others
in any respect hereunder, and that each Party is an independent
contracting entity with respect to the terms, covenants and
conditions contained in this Agreement. None of the terms or
provisions of this Agreement shall be deemed to create a
partnership between or among the Parties in the businesses of
Regency, or the affairs of City, or otherwise, or cause them to
be considered joint venturers or members of any joint enterprise.
This Agreement is not intended and shall not be construed to
create any third Party beneficiary rights in any Person who is
not a Party; and nothing in this Agreement shall limit or waive
any rights Regency may have or acquire against any third Person
with respect to the terms, covenants or conditions of this
Agreement.
14.2. Approvals. Unless otherwise provided in this
Agreement, whenever approval, consent or satisfaction (herein
collectively referred to as an "approval ") is required of a Party
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CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5
pursuant to this Agreement, it shall not be unreasonably withheld
or delayed. If a Party shall disapprove, the reasons therefor
shall be stated in reasonable detail in writing. Approval by a
Party to or of any act or request by the other Party shall not be
deemed to waive or render unnecessary approval to or of any
similar or subsequent acts or requests. Whenever, under this
Agreement, the term "approve" (or any grammatical variant
thereof, such as "approved" or Aapproval ") is used in connection
with the right, power or duty of City, or any representative
board, commission, committee or official of City, to act in
connection with any City Approval, such approval shall be made in
accordance with the applicable terms, standards and conditions of
this Agreement.
14.3. Not A Public Dedication; Regency
Acknowledgments. Except for Exactions made in accordance with
this Agreement and the Project Approvals, and then only when made
to the extent so required, nothing herein contained shall be
deemed to be a gift or dedication of the Project, or portion
thereof, to the general public, for the general public, or for
any public use or purpose whatsoever, it being the intention and
understanding of the Parties that this Agreement be strictly
limited to and for the purposes herein expressed for the
development of the Project as private property. Notwithstanding
the foregoing provisions, Regency acknowledges that (i) a
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CASSIDYIREGENCYIGILROYIDEVELOPMENT AGT.5
reasonable relationship exists between all Dedications and
Exactions imposed by the City Approvals listed on Exhibit C and
the impact of the Project upon City, and (ii) the direct and
indirect impacts of the Project warrant and require the terms and
conditions of this Agreement, and but for the acknowledgements of
Regency contained in the foregoing clauses (i) and (ii), City
would not have entered into this Agreement.
14.4. Severability. Invalidation of any of the
provisions contained in this Agreement, or of the application
thereof to any Person, by judgment or court order shall in no way
affect any of the other provisions hereof or the application
thereof to any other Person or circumstance and the same shall
remain in full force and effect, unless enforcement of this
Agreement as so invalidated would be unreasonable or grossly
inequitable under all the circumstances or would frustrate the
purposes of this Agreement.
14.5. Exhibits. The Exhibits listed below, to which
reference is made herein, are deemed incorporated into this
Agreement in their entirety by reference thereto:
Exhibit A - City Development Fees Schedule
Exhibit B - City Standards
Exhibit C - City Approvals
Exhibit D - Project Development Schedule
Exhibit E - Description of Property
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CASSIDY \REGENCYIGILROY\DEVELOPMENT AGT.5
Exhibit F - List of Public Improvements
Exhibit G - Site Plan
14.6. Entire Agreement. This written Agreement and
the Exhibits hereto, and any administrative implementation
memoranda entered into pursuant to Section 3.7, contain all the
representations and the entire agreement between the Parties with
respect to the subject matter hereof. Except as otherwise
specified in this Agreement, any prior correspondence, memoranda,
agreements, warranties or representations are superseded in total
by this Agreement and Exhibits hereto, and such administrative
implementation memoranda. Neither the conduct or actions of the
Parties, nor the course of dealing or other custom or practice
between the Parties, shall constitute a waiver or modification of
any term or provision of this Agreement; and this Agreement may
be modified or amended only in the manner specified in this
Agreement.
14.7. Construction of Agreement. All of the
provisions of this Agreement have been negotiated at arms - length
between the Parties and after advice by counsel and other
representatives chosen by each Party, and the Parties are fully
informed with respect thereto. Therefore, this Agreement shall
not be construed for or against either Party by reason of the
authorship or alleged authorship of any provisions hereof, or by
reason of the status of either Party. The provisions of this
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CASSIDY IREGENCY\GILROYIDEVELOPMENT AGT.5
Agreement and the Exhibits hereto shall be construed as a whole
according to their common meaning and not strictly for or against
any Party and consistent with the provisions hereof, in order to
achieve the objectives and purpose of the Parties hereunder. The
captions preceding the text of each Article, Section and the
Table of Contents hereof are included only for convenience of
reference and shall be disregarded in the construction and
interpretation of this Agreement.
14.8. Mitiaation of Damaaes. In all situations
arising out of this Agreement, each Party shall use commercially
reasonable efforts to mitigate the damages resulting from the
conduct of the other Party. Each Party shall take all reasonably
necessary measures to effectuate the provisions of this
Agreement.
14.9. Further Assurances; Covenant to Sian Documents.
Each Party shall take all actions and do all things, and execute,
with acknowledgment or affidavit if required, any and all
documents and writings, which may be necessary or proper to
achieve the purposes and objectives of this Agreement.
14.10. Covenant of Good Faith and Fair Dealina. No
Party shall do anything which shall have the effect of harming or
injuring the right of the other Party to receive the benefits of
this Agreement; each Party shall refrain from doing anything
which would render its performance under this Agreement
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CASSIDY IREGENCY\GILROYIDEVELOPMENT AGT.5
impossible; and each Party shall do everything which this
Agreement contemplates that such Party shall do in order to
accomplish the objectives and purposes of this Agreement. The
Parties intend by this Agreement to set forth their entire
understanding with respect to the terms, covenants, conditions
and standards for the development, use and occupancy of the
Project and by which the performance of the rights, duties and
obligations of the Parties hereunder shall be measured or judged.
14.11. Governing Law. This Agreement, and the rights
and obligations of the Parties, shall be governed by and
interpreted in accordance with the Laws of the State.
14.12. References; Terminology. Unless otherwise
specified, whenever in this Agreement, reference is made to the
Table of Contents, any Article or Section, or any defined term,
such reference shall be deemed to refer to the Table of Contents,
Article or Section or defined term of this Agreement. The use in
this Agreement of the words "including ", "such as" or words of
similar import, when following any general term, statement or
matter, shall not be construed to limit such statement, term or
matter to specific items or matters, whether or not language of
nonlimitation, such as "without limitation" or "but not limited
to ", or words of similar import, are used with reference thereto,
but rather shall be deemed to refer to all other items or matters
that could reasonably fall within the broadest possible scope of
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CASSIDY IREGENCYIGILROYIDEVELOPMENT AGT.5
such statement, term or matter.
14.13. Irregularity in Proceeding. No action,
inaction or recommendation by a Party pursuant to this Agreement,
or of City in connection with a City Approval, shall be held void
or invalid, or be set aside by a court on the grounds of improper
admission or rejection of evidence, or by reason of any error,
irregularity, informality, neglect or omission (collectively, an
Aerror @) as to any matter pertaining to petition, application,
notice, finding, record, hearing, report, recommendation or any
matters of procedure whatsoever, unless after an examination of
the entire record with respect to such error, including the
evidence, the court finds that the error complained of was
prejudicial, and that by reason of the error, the complaining
Party, or third Person, sustained and suffered substantial
injury, and that a different result would have been probable if
the error had not occurred or existed. No presumption shall
arise that an error is prejudicial, or that injury resulted from
an error, solely as a result of a showing that error occurred.
14.14. Judicial Proceedinq To Challenge Termination.
Any challenge made by Regency to City's Termination of this
Agreement pursuant to a right so to do granted by this Agreement,
shall be subject to review in the Superior Court of the County of
Santa Clara pursuant to California Code of Civil Procedure
Section 1094.5 as a case in which a vested right is affected.
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CASSIDY IREGENCY\GILROYIDEVELOPMENT AGT.5
14.15. Signature Pages. For convenience, the
signatures of the Parties to this Agreement may be executed and
acknowledged on separate pages which, when attached to this
Agreement, shall constitute this as one complete Agreement.
14.16. Time. Time is of the essence of this Agreement
and of each and every term and condition hereof.
IN WITNESS WHEREOF, the Parties have executed this
Agreement as of the day and year first above written by the
"Authorized Signatures" attached hereto.
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CASSIDY\REGENCY\GILROY \DEVELOPMENT AGT.5
AUTHORIZED SIGNATURE OF CITY TO AGREEMENT
City of Gilroy, a California
municipal corporation
By
Thomas W. Springer
Its City Mayor
Approved as to form:
i
�X
By
Its City Attorney
STATE OF CALIFORNIA
COUNTY OF �Cjhf� � ss
On this o74 day of 0 , <D2,rJe3 , before me,
LIas-v'da.( -°c I t f A , thev unders4flned Notary Public, personally
appeared `AIL e- „bilk s- ,A) ,6/2,S d. , personally known to me
to m n the be-,iis—o aat , alactory_-evidence)- to be the person4 -s4
whose name,( ) is /.ao= subscribed to the within instrument and
acknowledged to me that he /- s#e /t-q-P-y executed the same in
his /h z/t ie-i-r authorized capacity(ie� , and that by his /h- e-/th-&-�
signature( on the instrument the personl4H , or the entity upon
behalf of which the person(,s--acted, executed the instrument.
WITNESS my hand and official
R1iONDA PELLW
%Amu * sion o 1306815
Ndvy Publk . wt tie
Ssrft Clue County
VjCamm E ” 19, 2006
seal.
Notary Public
State of California
My Commission Expires: Junp
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CASSIDY IREGENCY\GILROY\DEVELOPMENT AGT.5
AUTHORIZED SIGNATURE OF REGENCY TO AGREEMENT
Regency Realty Group,,Inc.,
a Florida corporation
i
By
Thomas g eter J. Knoedler
Its eni Vice President Its Vice President, Investments
STATE OF CALIFORNIA )
C rt) ss
COUNTY OF
n th' s ." 'day of &u A Iljlll 1 before me,
+- � �L
, the undersignied Notary Public, personally
appeared-Thomas K. Engbere, personally known to me
on ^t'e -azs -cif- sataeto-ry -) to be the persons whose name
' subscribed to the within instrument and acknowledged to me that
-they executed the same in F� authorized capacity, and that by tr
signature�on the instrument the persony, or the entity upon behalf
of which the pers ni-acted, executed the instrument.
WITNESS my hand and official seal.
JEF 8AOSTUBN
Notay Pubic - CdPE. mkSY
Contra C-r,la Comd
Myc ffmE -- Jul�.a1C34 .
Notary Public '+k
State of Californi
My Commission
-61-
CASSIDY\REGENCY\GILROY \DEVELOPMENT AGT.5
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Public improvements shall be constructed in accordance with the City of Gilroy Community
Development Department Standard Specifications (cover sheet attached). The improvements are to be
constructed in accordance with the standards that are in place at the time of the approval of the public
improvement plans. The City of Gilroy agrees to cooperate in the distribution of the Standard
Specifications prior to commencement of the work.
CITY OF GILROY
COMMUNITY DEVELOPMENT DEPARTMENT
STANDARD SPECIFICATIONS
The standard details and provisions contained in this manual have been prepared for the
purpose of establishing the minimum and uniform requirements to be used by engineers,
contractors and developers for the preparation of plans and the construction of public
improvements under the jurisdiction of the City of Gilroy. These standards shall be used in
conjunction with the latest revision of the State of California Department of Transportation
(Caltrans) Standard Specifications. In case of conflict between Caltrans Specifications and the
City of Gilroy Standard Details and Provisions, the City of Gilroy Standard Details and Provisions
shall apply.
Any deviation from the Standard Details or the Standard Specifications must be approved
in writing by the City Engineer of the City of Gilro California. 6:z
Rick Smelser
City Engineer
The subject development shall have received
City Council approval .for the following
development applications with the City of
Gilroy, California:
➢ Zone Chanize file: Z 02 -06
➢ Planned Unft Development,
Archftectural & Sfte Review
file: A/S (PUD) 02 -22
➢Tentative Map file: TM 02 -06
IIIUy kAUbbi!ify E ->C H 1 B 1
2Q03 3003 _ 4003 1Q04
APr May-----L— eo Jun Jul Aug S Oct —T Nov Dec Ian Feb M r -- Apr
!rmitting
- Permitting
6
Pad 5
+ Pad 4
1/26 + Pad 3
5/5 + Pad 2
5/12 + Pad 1
5/15 + Target'Pad
3/15 + Target Opening
Certificates of Occupancy
7/11 + Major 1 - Kohls' C of O
7/11 + Major 2 Michael's C of O
' 8/8 + Major 3 - C of O
9/5 + Major 4 - C of O
9/26 + Major 5 - C of O
1/30 + Major 6 - Ross - C of O
7118 + Store 3- Famous Footwear - C of O ,
8/8 + Store 2 - Pier 1 - C of O
8115 + Store 4 - C of 0
915 + Store 1 - C of O
9/26 +Pad 8- VS -Cof0
10/17 + Pad 9 -'7S - C of O
1 114 # Major 8 - Barnes & Noble - C of O
11/7 + Pad 10 - C of O
11/28 + Shops 2 -C of O
Gilroy Crossing 0 1
71
73
81
JIJ
ID Task Name
o 1 Gilroy Crossing
1
Preconstruction
2
Civil Drawings Complete
3
Notice to Proceed
4
Mobilization
5
Grading Permit
6
Thu 1/2/03
7
Site
8
Rough Grade
9
Building Pads
10
Wet Utilities
11
Dry Utilities
12
Grading& Curb
13
Base 8. Paving
14
landscaping
15
Hardscape
on 11118/02
Fri 3119/04
Mon 11/18/02
Thu 1/2103
Mon 11/18/02
Mon 11/18/02
Fri 11/29/02
- - Fri 11/29/02
Mon 12/16/02
Fri 12/27/02
Thu 1/2103
Thu 1/2/03
Fri 1/3/03
Fri 1/3/03
Mon 1/20/03
Fri 2/14/03
Fri 3/28/03
Fri 5/2/03
Fri 7/4/03
Fri 8/8/03
Mon 11/24103
Fri 3/19104
Thu 5722103
Fri 5/9/03
Thu 7117/03
Thu 8/14/03
Thu 9/4/03
Thu 16/23/03
Thu 11/27/03
Fri 3/19/04
offs ite
- Mon 313/03
Fri 1215/03
Off Site Street Improvements
- Mon 3003
Fri 1215103
Permitting of Buildings
..
Mon 116163
Fri 915/03
..... .._
Major 1 - Kohls' Permitting - �
.... .
Mon 1/6/09
_. ..._
Fri .. 1/3 3 _ 1 - !0 —
3
Major 2 Michael's Permitting
__. ..
Mon 2/10/03
.
Fri 3/7/03
Major 3 - Permitting
- _ Mon 3/3%03
Fri 3%28/03
Major 4 - Permitting
Wed 4/2/03
Tue 4/29/03
Major 5 - Bed, Bath 8 Beyond - Permitting
- Thu 5/1/03
Wed 5726/03
_ ... _..
Major*6 -Ross - Permitting -
- Mon 8/11/03
Fri 9/5/03
Store 3 - Famous Footwear - Permitting
Mon 3/10103
Fri 4/4/03
Store 2 -Pier 1 - Permitting �
-_
� � Wed 4 003 I
Tue 4/29!03
Store 4 - Per rr6in 9 - _
.
- � Mon 4121%03 -
- Fn 5/16%03-
...... ._.
Store 1 - Permitting -
_- . -
� � Tu . e 5/13/03
Mon6 /9/03
Pad B - VS - Permitting -
Tue 6/3/03:
Mon 6/30%03
Pad 9 - VS - Permitting
Tue 6124/03
Mon 7/21/03
Major 8 - Barnes &Noble - Permitting -.
� - Mon 7!7/03 -
Fri -
Fri 8%1/09
Pad 10 - Permittin _. .. .. - _.
9
_......... .__ .. _. -....
Tue 7/15/03'
.. Mon _ - -
Mon 8/11/03
Shops 2 - "Permitting - - �
Tue 8/5/03:
Mon 9/1!03
Buildings ._ ... .. ...
..... ._....
Mon 2% 10/03 �
Mon - - - .
3115104
__
- Major 1 - Kohls'IF 68,406 sf
i Mon 2%10%03 ;
Fri 7/11/03
Major 2 Michael's TF - 21,300 if - -�
: - Mon-31-10/03,
Fri 7/11/03
- Major 3 - TF - 28,000 sf ,
Mon 4/7/03 �
-Fri 818%03
Major 4 TF - 17.500 s(
Mon 5/5/03
Fri 915/03
Major 5 -Bed, Bath & Bey ond - TF - 25,000 sf
� Mon 5/26/03 i
Fri 9/26/03
Major 6Ross - TF 30,000 sf
Mon 9/15/031
-' . --'
Fri 1/30/04
Store 3- Famous- Footwear -TF 10,000 sf ������- ��� -��
Mon 4 /14/03(
.... 7116/ _
Fri 03 3
..
Store 2 Pier 1 - TF - 9,640 if
Mon 5/5/03'
_Fri 6/8/03
Store 4 - VS - 9,500 sf
Mon 5126103:
- Fri 8/15/03
Store 1 VS - 8,300 sf
Mon 6/16/03'
Fri 9/5/03
Pad 8 VS 9,000 sf
_ �
� � " -`�
Mon 7/7/03 `.
"' Fri 9/26/03
Pad 9 -VS -9,006 sf ..__._ . " _.... ..._- .._...;
..._ __--` ---,_
Mon 7 /28/03 .'
.
Fn 10%17%03
Major 8 - Barnes & Noble -Shell - 25,000 if _ - :
- -Mon 6/11/09
Fri 11/14/03
- Pad 10 VS - 5,000 sf
Mon 8/18/03:
Fri 11/7/03
Shops 2
Mon 918/03'
Fri 11/28/03
Target Opening
Mon 3/15104
Mon 3/15/04
Pad? -
_
Mon 3/31/03:
-
Mon 3/31/03
Pad 6
_
_._
Mon 4/7/03
-. ..
Mon 4%7/ . 03
Pad 5
Mon 4114%03.
Mon 4/14!03
Pad .._ ..
_. ..
Mon 4/21/03 ;
.
Mon 4/21/03
Pad 3 .._.
Mon 4/28/03
Mon 4/28/03
Pad 2
Mon 5/5/03 -
Mon 5/5/03
Pad 1 -
.
M ._
on 5/12/03
Mon 5/12103
Target Pad
Thu 5/15/03 -
Thu 5/15/03
Certificates of Occupancy
Fri 7/11/03
Fri 1/30104
Major 1 - Kohls' C of O
Fri 7/11/03
Fri 7/11/03
Major 2 Michael's C of O
Fri 7/11/03
Fri 7/11/03
Major 3 - C of O
Fri 8/8/03
Fri 8003
Major 4 - C of O
Fri 9/5/03
Fri 9/5103
Major 5 - C of O
Fri 9/26103
Fri 9/26/03
-
'Major 6 - Ross - C of O
- Fri 1/30/04
Fri 1/30/04
Store 3 - Famous Footwear - C of O
Fri 7/18/03
Fri 7/18/03
Store 2 - Pier 1 - C of O
Fri 818103
Fri 8/8/03
Store 4 - C of O
Fri 8/15/63
Fri 8/15/03
Store i - C of O
Fri 9/5103
Fri 9!5/03
Pad 8 - VS - C of O
. Fri 9/26/03
Fri 9126/03
Pad 9 - VS - C of O -
Fri 10/17/03
Fri 10!17/03
Major 8 - Barnes 8 Noble - C of O
Fri 11114/03
Fri 11/14/03
Pad 10 -C of O
Fri 1117/03
Fri 11/7/03
Shops 2 -C of O
Fri 11/28/03
Fri 11/28/03
Preconstruclion
1.1/18 + Civil Drawings Complete
11/29 * Notice to Proceed -
-4 "' _ Mobilizations
112 + Grading Permit
29;
Buildings
3/31 + Pad 7
4/7 + Pa,
4/14 +
4/21
GILROY CROSSINGS
DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY situated in the City of Gilroy, County of
Santa Clara, State of California, more particularly described as follows:
APN 841 -70 -018 - PARCEL ONE
All of Parcel 1, as shown upon that certain map entitled "Parcel Map a portion of Lot 6,
per Map of the Subdivision of the Elizabeth H. Martin Tract, filed in Book "F" of Maps
Page 31, Santa Clara County Records ", which map was filed for record in the office of
the Recorder of the County of Santa Clara, State of California, on July 2, 1971 in Book
285 of Maps, at Page 45.
APN 841 -70 -019 - PARCEL TWO
All of Parcel 1 as shown upon that certain map entitled "Parcel Map being a portion of
re- subdivision of Parcel 2 as shown on Parcel Map filed in Book 285 of Maps at Page 45,
Santa Clara County Records ", which map was filed for record in the office of the
Recorder of the County of Santa Clara, State of California, on May 10, 1972 in Book 300
of Maps, at Page 53.
APN 84170 -021 - PARCEL THREE
Parcel 2, as shown on that certain parcel map filed for record in the office of the Recorder
of Santa Clara County in the State of California on May 10th, .1972, in Book 300 of Maps,
at Page 53.
APN 841 -67 -020 - PARCEL FOUR
Beginning at a point in the Northeastern line of Lot 44, a distant thereon North 32° 05"
West, 189.98 feet from an iron pipe at the Eastern corner common to Lots 44 and 47, as
said lots are shown on Map No. 7 accompanying the report of the referees in the Las
Animas Rancho Partition Suit, Superior Court Case No. 5536 in and for the County of
Santa Clara, and running thence along the Northeastern boundary of said Lot 44 and Lot
43, as said lots are shown upon the aforementioned map, North 32° 05' West, 1783.46
feet more or less to a point on the Southeastern boundary of that land conveyed to the
State of California in the Final Order of Condemnation recorded in Book 8098 at Page
543, Santa Clara County Official Records; thence leaving the said Northeastern boundary
of Lot 43 and running along the boundary of said lands of the State of California, South
40° 39' 29" West, 659.52 feet; thence along a tangent curve to the left with a radius of
392.00 feet, through a central angle of 36° 45' 32" and an are length of 251.49 feet;
thence South 3° 53' 57" West, 729.25 feet to the most Northwestern corner of that land
conveyed to Gilroy Corporation in Book H 45 at Page 680, Santa Clara County Official
Records; thence leaving said boundary of the lands of the State of California and running
along the Northern boundary of said lands of Gilroy Corporation, South 86° 44' 08" East,
14.00 feet; thence along a curve to the left whose tangent bears South 3° 15' 52" West,
with a radius of 40.00 feet, through a central angle of 93° 03' 58" and an arc length of
64.97 feet; thence South 89° 48' 06" East, 1450.77 feet to the point of beginning.
APN 841 -67 -022 - PARCEL FIVE
Beginning at the point of intersection of the most Westerly boundary of those lands
conveyed to the Gilroy Corporation in Book G310 at Page 506, Santa Clara County
Official Records, with the line common to Lot 44 and Lot 47, as said lots are shown upon
Map No. 7 accompanying the report of the Referees in the Las Animas Rancho Partition
Suit, Superior Court Case No. 5536 in and for the County of Santa Clara; thence from
said point of beginning and running along the said Western boundary of the lands of
Gilroy Corporation, North 0° 16' East, 96.72 feet to a point that is 54.00 feet distant from
the Northwestern corner of said lands; thence leaving said Western boundary and running
along a boundary of that land conveyed to said Gilroy Corporation, September 27, 1982
in Book H45 at Page 680, Santa Clara County Official Records, North 89° 48' 06" West,
175.64 feet; thence along a tangent curve to the left with a radius of 40.00 feet, through a
central angle of 86° 48' 21" and are length of 60.60 feet; thence along a tangent curve to
the right with a radius of 5060.00 feet, through a central angle of 000 40' 40" and an arc
length of 58.97 feet to a point on said common line of Lots 44 and 47; thence leaving said
boundary of those lands conveyed to Gilroy Corporation and running along said common
lot line, South 890 47' 40" East, 219.15 feet more or less to the point of beginning and
being a portion of said Lot 44.
APN 841 -70 -017 - PARCEL SIX
All of that 30 foot wide strip of land described on the deed from Hirasaki Farms, Inc. to
Hisashi Hirasaki, et al, recorded January 3, 1979 in Book E203 of Official Records at
Page 123, Santa Clara County Records.
APN 841 -17 -088 - PARCEL SEVEN
A portion of Parcel 2 as shown on that map filed for record December 4, 1989 in Book
607 of Maps at Page 48, Santa Clara County Records, more particularly described as
follows:
Beginning at the most Westerly corner of said Parcel 2; thence along the Southwesterly
line of said Parcel 2, South 32° 05' 00" East, 1734.21 feet; thence leaving said
Southwesterly line, North 57° 55' 00" East, 30.00 feet to an angle point in the generally
Northeasterly line of said Parcel 2; thence along the Northeasterly and Northwesterly line
of said Parcel 2 the following two courses: 1.) North 32° 05' 00" West, 1737.76 feet. 2.)
South 5 1 ° 09' 08" West, 3 0.21 feet to the true point of beginning.
October 31, 2002
EXHIBIT F
GILROY CROSSINGS
GILROY, CALIFORNIA
Preliminary Quantity List
Offsite Street and Public Improvements
The following is our opinion of the off -site quantity list for the above referenced
project. The offsite
work includes street improvements for Highway 152, Camino Arroyo, Holloway
Road,
Brem Lane water main replacement, and public sewer line replacement.
Highway 152 street widening
ITEM DESCRIPTION
QUANTITY
1. Demo /Mobilization/Traffic Control
1 JOB
2. Street Excavation for pavement widening
300 CY
3. 7.5 "AC on 13 "A.B. on 19.5" ASB Paving Widening
2,100 SF
4. Pavement Conform
5,000 SF
5. Vert. Curb & Gutter
500 LF
6. 10.5' Wide Sidewalk
5,250 SF
7. Signing & Striping
1 JOB
8. Erosion /Sediment Control and Maintenance
1 JOB
9. Remove and Replace Drain Inlet
1 EA
10. Drain Inlet
1 EA
11. Drain Manhole
1 EA
12. 15" Storm Drain
20 LF
13. Remove Street Light
2 EA
14. Install Street Lights
4 EA
15. Telephone Vault
2 EA
16. Budget for Traffic Signal remedial work
1 JOB
Camino Arroyo, 4 Lane Divided Arterial
Estimate for street frontage & outside lanes at project limits
ITEM DESCRIPTION
QUANTITY
1.
Clear & Grub /Mobilization/Traffic Control
1 JOB
2.
Street Excavation
12,500 CY
3.
4.5 "AC on 17 "A.B. Paving adj to C &G
97,309 SF
4.
Vert. Curb & Gutter
3,897 LF
5.
4.5' Wide Sidewalk
17,537 SF
6.
Commercial Driveway
9 EA
7.
Signing & Striping
1 JOB
8.
Erosion /Sediment control and maintenance
1 JOB
9. Storm.Drain Inlet
12 EA
10. 48" Storm Drain Manhole
1 EA
11. 60" Storm Drain Manhole
4 EA
12. 72" Storm Drain Manhole
1 EA
13. 15" Storm Drain
700 LF
14. 18" Storm Drain
300 LF
15. 24" Storm Drain
450 LF
16. 30" Storm Drain
380 LF
17. 48" Storm Drain
1,150 LF
18. Drain Junction Box
1 EA
19. 8" Sewer service
3 EA
20. 8" Sewer Main
370 LF
21. Sewer Manhole
2 EA
22. Tie -in at Existing Water Main
1 JOB
23. 8" Water Stub for Fire Service
2 EA
24. 8" Water Stub with valve
6 EA
25. 12" Water Main w/ valves
2,150 LF
26. Fire Hydrants
14 EA
27. PG &E Electric Vault
7 EA
28. Telephone Vault
5 EA
29. Joint Utility Trench
2,500 LF
30. Street Lights
14 EA
31. Street Light and pole relocation
1 JOB
32. Budget for Traffic Signal at Main Entrance
1 JOB
Storm Drain Outfall to Princevalle Channel
33. Twin 48" Storm Drain 900 LF
34. 72" Storm Drain Manhole 2 EA
35. Connection to Princevalle Channel 1 JOB
Camino Arroyo, 4 Lane Divided Arterial
Estimate for street median strip and center two lanes
ITEM DESCRIPTION
QUANTITY
1.
Street Excavation
12,000 CY
2.
4.5 "AC on 17 "A.B.(12' Paved Lanes at Median)
93,962 SF
3.
Vert. Curb
3,967 LF
4.
2' Wide Red, Stamped Concrete strip adj to curb
7,000 SF
5.
Water Service for Irrigation
2 EA
6.
Signing & Striping
1 JOB
7.
Landscape Median
18,750 SF
Holloway Road, 70' Collector Excluding RV Park Improvememnts
ITEM DESCRIPTION
QUANTITY
1.
Clear & Grub /Mobilization
1 JOB
2.
Street Excavation
9,500 CY
3.
4.5 "AC on 17 "A.B. Paving
80,726 SF
4.
Vert. Curb & Gutter
3,800 LF
5.
4.5' Wide Sidewalk
14,850 SF
6. Commerciai Driveway
2 EA
7. Signing & Striping
1 JOB
8. Erosion /Sediment control and maintenance
1 JOB
9. Storm Drain Inlet
8 EA
10. 48" Storm Drain Manhole
6 EA
11, 15" Storm Drain
465 LF
12. 18" Storm Drain
85 LF
13. 24" Storm Drain
1,240 LF
14. 8" Sewer service
5 EA
15. 10" Sewer Main
1,320 LF
16. 48" Sewer Manhole
4 EA
17. Tie -in at Existing Sewer Main with Manhole
1 JOB
18. 8" Water Stub for Fire Service
4 EA
19. Water Service
3 EA
20. Irrigation Service
1 EA
21. 12" Water Main w/ valves
1,362 LF
22. Fire Hydrants
4 EA
23. PG &E Electric Vault
5 EA
24. Telephone Vault
3 EA
25. Joint Utility Trench
2,500 LF
26. Street Lights
10 EA
Holloway Road, RV Park Improvements
ITEM DESCRIPTION
QUANTITY
1. 6" AC on 16" AB
36,479 SF
2. Vert. Curb & Gutter
1,119 LF
3. Catch Basin
1 EA
4. Commercial Driveway
1 EA
5. Storm Drain Inlet
2 EA
6. 48" Storm Drain Manhole
3 EA
7. 15" RCP Storm Drain
67 LF
8. 18" RCP Storm Drain
444 LF
9. 4" Sewer Service
1 EA
10. 10" VCP Sewer Main
1,348 LF
11. 48" Sewer Manhole
6 EA
12. Cap Water Main
1 JOB
13. 8" Water Stub for Fire Service
4 EA
14. 12" DIP Water Main
950 LF
15. Fire Hydrants
4 EA
16. Street Lights
5 EA
17. 12" Gate Valve
6 EA
Public Utilities Improvements
ITEM DESCRIPTION QUANTITY
1. 12" Water Main Replacement 950 LF
2. 8" Sewer Line Replacement 950 LF
3. 12" Gate Valves 6 LF
4. 48" Sewer Manholes 3 LF
SubTotal with Engineering and Construction Staking at 5%
Total with General Conditions allowance at 6%
Note:
1) Storm Drain and water main size are only approximate
3) This quantity list is based on unapproved plans and survey and is subject to
change. Baker - Williams
Engineering Group make no warranty or guaranties of the accuracy of its
content.
If you have any questions of need additional information, please call.
BAKER- WILLIAMS ENGINEERING GROUP
Michael Robertson
PE 39875
EXHIBIT G.I
DESCRIPTION
ALL THAT REAL PROPERTY situated in the City of Gilroy, County of Santa Clara,
State of California and being all of "Parcel 1" and a portion of "Parcel 2" as
shown on that certain parcel map, filed for record in the Office of the Recorder of
Santa Clara County on May 10, 1972 in Book 300 of Maps, at Page 53 and also
being a portion of "Parcel One" as shown on the "Record of Survey for Brem
Brothers in Ranch Lots 43, 44 and 47 ", filed for record on April 16, 1956 in Book
69 of Maps, at Page 17, records of said County and also being a portion of Brem
Lane, a public road. More particularly described as follows:
BEGINNING at the most easterly corner of said "Parcel 1 ", thence along the
Easterly prolongation of the North line of said "Parcel 1 ", South 840 15' 31" East,
39.66 feet; thence South 061 11' 39" West, 62.68 feet; thence along the arc of a
1,058.00 foot radius curve, concave to the East, through a central angle of 371
38'41". the chord of which bears South 120 37'41" East, 682.70;. thence South
310 27'02" East, 526.96 feet; thence South 580 32' 58" West, 352.04 feet;
thence North 890 10'08" West, 216.69 feet; thence South 670 17'28"' West,
548.07 feet; thence North 890 09'07" West, 657.91 feet; thence along the arc of
a 28.00 foot radius curve concave to the Northeast, through a central angle of
360 24'27", the chord of which bears North 700 56' 54" West, 17.49 feet; thence
along the arc of a reversing 50.00 foot radius curve, concave to the South,
through a central angle of 1160 53' 51 ", the chord of which bears South 680 48'
25" West, 85.22 feet to a point on the East line of State Highway Route 101;
thence along said State highway right of way the following five (5) courses and
distances:
1) North 030 53' 52" East, 795.18 feet; 2) along the arc of a 438.00 foot radius
curve, concave to the East, through a central angle of 360 43' 17 ", the chord of
which bears North 220 15' 30" East, 275.94 feet; 3) North 400 37' 09" East,
725.28 feet 4) along the arc of 219.00 foot radius curve, concave to the
Southeast, through a central angle of 370 46' 24 ", the chord of which bears
North 590 30' 21" East, 141.78 feet 5) North 780 23' 33" East, 249.08 feet;
thence leaving the highway right of way, South 110 36' 27" East, 103.61 feet to
a point on the North line of said "Parcel 1 "; thence along said North line, South
840 15' 31" East, 303.28 feet to the POINT OF BEGINNING.
Said property contains 46.77 acres.
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