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Deferred Agricultural Mitigation Agreement - Luchessa Road LLC - Amendment No. 1 ,'-., ...~- -'\~ '-' - Accom: 06-4331-012 DOCUMENT: 19210558 Pages: 7 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: II II III 111111 11IlI1111 II Fees. . Taxes. Cop i es. . AMT PAID 25.00 25.00 City of Gilroy Attn: Rhonda Pellin, City Clerk 7351 Rosanna Street Gilroy, CA 95020 REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of First American Title Company RDE ** 010 12/04/2006 8:00 AM SPACE ABOVE THIS LINE FOR RECORDER'S USE FIRST AMENDMENT TO AGREEMENT FOR DEFERRED AGRICULTURAL MITIGATION AND ASSIGNMENT THIS FIRST AMENDMENT TO AGREEMENT FOR DEFERRED AGRICULTURAL MITIGATION AND ASSIGNMENT is entered into by and between the City of Gilroy, a California municipal corporation ("City"), Luchessa Road, LLC, a California limited liability company ("Developer"), and Vince Giacalone and Michael McDermott (collectively referred to as "Assignee"), on this Z-,1..~-r day of November, 2006 ("Effective Date"). RECITALS A. City and Developer entered into an Agreement for Deferred Agricultural Mitigation Agreement (the "Agreement") on or about January 23, 2006. The Agreement was recorded in the official records of the County of Santa Clara on February 9, 2006. B. By its Resolution No. 2006-02 on April 12, 2006, the Local Area Formation Commission of Santa Clara County approved the City of Gilroy's request to include the Property [as hereinafter defined] into the Gilroy Urban Service Area ("USA") with the approval conditioned on amendment of the Deferred Agricultural Mitigation Agreement between Gilroy and Luchessa Road LLC to include the following: \LAC\678713.2 01-011306-04706107 -1- 1. Payment of mitigation fees at the earlier of approval of the First Tentative Map or two (2) years after LAFCo's action to include the Property within the USA (the "USA Expansion"); 2. The requirement that mitigation must be provided for all of the 25.69 acres without further exemption; and 3. The requirement that the in-lieu fees must include the costs of easement program administration, outreach to landowners and monitoring of established easements as required by Gilroy's Agricultural Mitigation Policy. C. Developer has requested that City consent to assignment of the Agreement to Developer's principals, Vince Giacalone and Michael McDermott. NOW, THEREFORE, in consideration of the foregoing recitals and of the covenants and conditions contained herein, the Parties agree as follows: 1. The Agreement for Deferred Agricultural Mitigation entered into by City and Developer on January 23, 2006, and recorded in the official records of the County of Santa Clara as Document 18801700 is incorporated herein by this reference as though fully set forth herein. This Amendment relates to and affects Developer's property consisting of approximately twenty-five and 69/100 (25.69) acres, located in an unincorporated area of Santa Clara County, contiguous to the City of Gilroy and within its sphere of influence, which Property is further described in the attached Exhibit A. 2. Section 3 of the Agreement is hereby amended to read: 3. Determination of Developable Area. The Developable Area for purposes of the Agreement shall be 25.69 acres. 3. Section 4 of the Agreement is hereby amended to read: 4. Appraisal. Concurrently with the filing of an application to the City for the first tentative map in connection with the Property, City shall require Developer to pay a deposit of no less than Five Thousand Dollars ($5000) to be used toward costs of the appraisal and City costs in connection therewith, including the costs of easement program \LAC\678713.2 01-011306-04706107 -2- administration, outreach to landowners and monitoring of established easements as required by Gilroy's Mitigation Policy. The City shall give the Developer a list of not fewer than two eligible appraisers who have the MAl designation and have experience in appraising properties in the South County area, from which list Developer may select the appraiser. Upon approval of the first tentative map, City shall cause the appraiser to determine the fair market value of the development rights for the Mitigation Land. City, at City's sole option, (i) may from time to time require a further deposit or deposits from Developer to cover the price of the appraisal and all administrative and transactional fees, including staff time and attorneys' fees, incurred by the City on a cost recovery basis; or (ii) bill the aforementioned costs to the Developer, minus the deposit, after completion of the appraisal. Developer shall pay said costs within ten (10) days of receiving such invoice from City. 4. Section 5 of the Agreement is hereby amended to read: 5. Calculation and Payment of Aaricultural Mitiaation Fee. After completion of the appraisal, City will calculate the Agricultural Mitigation Fee and provide Developer with its written determination thereof. Payment of the Agricultural Mitigation Fee shall be made as condition of the tentative map, to which condition Developer consents and agrees not to object, appeal, or protest. Developer shall pay the Agricultural Mitigation Fee, minus any unused and unencumbered deposits made by Developer to City at the earlier of (i) the approval of the First Tentative Map or (ii) (2) years from the date of LAFCo's action on the USA Expansion. Adjustment of the Agricultural Mitigation Fee established hereunder is limited by the Policy to no more than every two years. 5. The duties and responsibilities under the Agreement and this Amendment are hereby assigned to Vince Giacalone and Michael McDermott who agree to be bound by all the provisions of the Agreement. \LAC\678713.2 01-011306-04706107 -3- 6. Except as herein amended, the terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement for Deferred Agricultural Mitigation and Notice of Assignment. DEVELOPER: CITY: LUCHESSA ROAD, LLC CITY OF GILROY mott Management, LLC liability company, its Manager Social Security or Taxpayer Identification Numb zo- 8>.:L-Z Approved as to Form AD ,.1 ~ndy' Faber '""'. I \'C, ) ity Attorney Atte$l: ;/ -I, i JU(A Rhonda Pellin City Clerk . / / {( C.( /'- \LAC\6787112 01-011306-04706107 -4- STATE OF CALIFORNIA } ss. COUNTY OF S(^\.e~ GOil'{ On \JWQ(Y\.'g."..{~m,re me, "'-A.a~C{ appeared ~ iC_ me ~rJ'\.6-rt- 'r(J.. personally known to me -OR- 0 1@~ -. - - :~=:C~:7 ~1 2. ~b~~~.C~ f j' Santa Clara County - _ _ _ ~~m:.~~1:2?1 \LAC\678713.2 01-011306-04706107 Cia Notary Public m'l1- , personally CAPACITY CLAIMED BY SIGNER proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. -5- Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. D INDIVIDUAL D CORPORATE OFFICERS(S) TitIe(s) D PARTNER(S) D LIMITED D GENERAL D ATTORNEY-IN-FACT D TRUSTEE(S) D GUARDIAN/CONSERVATOR D OTHER: SIGNER IS REPRESENTING: Name ofPerson(s) or Entity(ies) STATE OF CALIFORNIA COUNTY OF ~k C~ } " b 1 a Notary Public On \J6vC-1Y\.Ioz-r ~l,~efore me, MQ~Q CC)(-\t'Z., personally CAPACITY CLAIMED BY SIGNER appeared V ~t'\ ce G, u. ( tL \ on e.. ~ersonal1Y known to me -OR- 0 .....---.....--...........1 If" ... ..... MARIA CORTEZ ta eommlsSlon# 1493447 -, Nota~ PublIC. California l l -. Santa Clara Counly ." ' My Comm. Expires Jun 1,2008 \LAC\678713,2 01-011306-04706107 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. OTARY -6- Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. D INDIVIDUAL D CORPORATE OFFICERS(S) Title(s) D PARTNER(S) D LIMITED D GENERAL D ATTORNEY-IN-FACT D TRUSTEE(S) D GUARDIAN/CONSERVATOR D OTHER: SIGNER IS REPRESENTING: Name ofPerson(s) or Entity(ies) STATE OF CALIFORNIA ) )ss. COUNTY OF SANTA CLARA ) TITLE OF DOCUMENT: First Amendment to Agreement for Deferred Agricultural Mitigation and Assignment On November 29,2006, before me, Rhonda Pellin, Notary Public, personally appeared Jay Baksa personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ! .)- \ , , ) r-A 1 - , ../',,,, . . - ie/he Il \ /::'t~(-((/C \ Signature of Notary-Public J................................................... RHONOA PELUN -@ Commission # 1581056 ~ i. Notary Public . California i Santa Clara County - Mv Conm. expires Jill 19, 2 per GC Sec. 40814; CC Sec. 1181 (Notary Seal)