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Costco Wholesale RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: DOCUMENT: 16447900 Tit I es: 1 1 Pages: 6 U II 11111111 ml U I Fees. . . 22.00 Taxes. . . Cop i es. . ~0016447900~ AMT PAID 22 00 BRENDA DAVIS ROE l:I 010 SANTA CLARA COUNTY RECORDER 8/29/2002 Recorded at the request of 3:59 PM City City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Attn: City Clerk APN: Parcel 841-1,~3J841-18-044 SPAC!:.: l->.BO'/E THIS LINi: FOR R;,CORDER'S USE COVENANT REGARDING DEVELOPMENT FEES (COVENANT RUNNING WITH THE LAND) This Covenant Regarding Development Fees (this "Covenant") is made and entered into as of ~ 01-9 , 2002 (the "Effective Date"), by and between the CITY OF GILROY, a muniCIpal corporation ("City"), and COSTCO WHOLESALE CORPORATION, a Washington corporation ("Owner"). RECITALS A. Owner is the fee owner of certain real property located at 7251 Camino Arroyo, Gilroy, California, more particularly described on Exhibit A, attached hereto and incorporated herein (the "Property"). Owner desires to construct a new retail building comprised of approximately one hundi~ed and forty-nine thousand (149,OCO) square feet (the :'~'-J ew Business"). In connection with the development of the New Business, Development Impact Fees in the amount of One Million Three Hundred Sixteen Thousand Five Hundred Ninety Dollars and Ninety-six Cents ($1,316,590.96) will be due and owing to City upon issuance of a building permit for construction of the New Business. Pursuant to a certain Agreement between the City and Owner, being entered into concurrently herewith (the "Deferral Agreement"), the City will grant Owner a contingent credit against Development Impact Fees in the amount of One Million Three Hundred Sixteen Thousand Five Hundred Ninety Dollars and Ninety-six Cents ($1,316,590.96) ("the Deferred Fees"). Pursuant to the Deferral Agreement, the amount by which such sale tax revenues are less than the sum of One Million Four Hundred Thirty-three Thousand Thirty Dollars and Thirty-seven Cents ($1,433,030.37) plus interest thereon at City's highest investment rate for new monies computed from the date of the issuance of the building permit until paid in full ("Interest"), may become payable to the City at a later date on the terms and conditions set forth in the Deferral Agreement. The parties desire to enter into and record this Covenant as notice to all subsequent owners ,of the Property that One Million Four Hundred Thirty-three Thousand Thirty Dollars and Tlilrty-sevcn Cents ($lA33,OjO.3"i) plus Inte!"est thereon may be payable by the Owner of the Property to the City in accordance with the terms and conditions of the Deferral Agreement. NOW, THEREFORE, FOR VALUABLE CONSIDERATION, THE PARTIES AGREE AS FOLLOWS: \NVH\559327.2 071702-04706002 1 . Owner hereby agrees, on behalf of itself and all subsequent owners of the Property, to pay, when and if due, the amount by which sales tax revenues are less than the sum of One Million Four Hundred Thirty-three Thousand Thirty Dollars and Thirty-seven Cents ($1,433,030.37) plus Interest, in accordance with the terms and conditions set forth in the Deferral Agreement. The City and Owner hereby declare their express intent that the covenants set forth in this Agreement are covenants running with the land, and apply to and bind Owner and each of Owner's heirs, assigns, successors and successors-in-interest, and all subsequent owners of the Property, all of whom shall have joint and several liability for the payment of the sums due to City as described in this Covenant. Each and every contract, deed or other instrument hereafter executed conveying the Property or any portion thereof shall be held conclusively to have been executed, delivered and accepted subject to such covenants, regardless of whether such Covenants are set forth in such contract, deed or other instrument. All covenants contained herein shall, without regard to technical classification or designation, be binding upon the Owner and its heirs, assigns, successors and successors-in-interest, and all subsequent owners of the Property, for the benefit of the City, and such covenants shall run in favor of City without regard to whether the City is an owner of any land or interest therein to which such covenants relate. If any action or suit is brought by one party against the other to enforce or interpret this Covenant, the prevailing party in such action or suit shall be entitled to have and recover from the other party all costs and expenses incurred in such action or suit, including reasonable attorneys' fees. III III III III III III III III III III III III If any provision of this Covenant is, or hereinafter is determined to be, for any reason void, unenforceable or invalid, the remainder of this Covenant shall be and remain in full force and effect. This Covenant shall be governed and construed in accordance with the laws of the State of California. The waiver or failure to enforce any provision of this Covenant shall not operate as a waiver of any future breach of any such provision or any other provision hereof. Executed on the date set forth below. Date: g-~;Z1-0;L APPROVED AS TO FORM: )/{~~.~ City Attorney By: Name: Its: By: Name: Its: (To Be Notarially Acknowledged) STATE OF WASHINGTON) ) ss. COUNTY OF KING ) On July 23,2002, before me, TriciaA. L. Wilbur, a Notary Public in and for said State, personally appeared RICHARD J. OLIN, personally known to me to be the person whose name is subscribed to the attached COVENANTREGARDING DEVELOPMENT FEES and acknowledged to Ire that he executed the sarre in his authorized capacity, and that by his signature on the instrurrent the person acted, or the entity upon behalf of which the person acted, executed the instrumnt. WITNESS my hand and official seal. --........"'" -- lI.. L " -- ,..' . ~ " ;' ~ ....... I( II .:' 0' .....S\ON ~'... <9 I '" " .,~r:, ~'. C-', f~/g~OTAAY~"" ~~ 'I. :" _0- en: I. I. . '-' . I. " ". PUBUC .: ~ ,.. ~~. ~ " \P~ ....' o. 9 . ().... .:' I, '1h.......... ... _~ ... '\.(:--OFW^c:.,~~ -..:' '\ ~ -- ",....,............- {drd~ Notary Public in and for the State of Washington Residing at: Kent My commission expires: 10/9/03 'w EXHIBIT "A" COSTCO Real' Property In the City of Gilroy, County of Santa Clara. State of California, describeq as follows; . Parcel One; Lot 1 as ShOW. n on that certain map entitled ''Tract No. 9401, Highway 152 Retail Center, Gilroy, Callfomlfl' flied for record In the office of the Recorder for the County '1S.~nt:a Clara, State of California on August ~ 2002 in Book 2SJof Maps, pages 1 b,lL. "-!--lr.. f; . and sa~.ta Clara County Records.. . . Reserving therefrom a non-exclusIve easement for ingress and egress as shoWn on that certain map entitled "Tract No. 9401, Highway 152 Retail Center, Gilroy, Califor~i9" filed for record in the office of the Recorder for the County of Santa Clara, State of California on August.~ .2002 in Book'2S:lof Maps. pages//) ,~, .1b I J . and J.S:., Santa Clara County Records. J4' .' Parcel Two: A non-exclusive easement for ingress and egress over Lots 2,3,4,5,6, 7, Sand 9 as. shown on that certain map entitled ",ract No. 9401, Highway 152 Retail Center, Gilroy, CalifOrnia" filed for recOrd in the office of the Recorder for th~ C:ounty of Santa Clara; State of CaUfomia on August J.b. 2002 in Book '2!:.bf Maps, pages I I,) I !.1-. I~ IL. and IS. santa Clara County Records.. . J~ ., Parcel Three; A noo-exclusive ni:m-buildable sfructur& easement over Lot 2 as shown on that certain map entitled '"Tract No. 9401, Highway 152 Retail Center, Gilroy, Calif91J1ia" filed for record in the office of the Recorder for the County of Santa Clara. State of California on AugustLb.. 2002 in Book~J of Maps, pages II) ,!L 1'2-:- ~ and / L, Santa Clara County Records. '. . . 1'1 ,( .. ' .. AU~ 26 '02 B9:2~ 415 398 1750 PAGE. 07 ** TOTAL PAGE.07 ** , STATE OF CALIFORNIA ) )ss. COUNTY OF SANTA CLARA ) TITLE OF DOCUMENT: Covenant Regarding Development Fees (Covenant Running With The Land) by and between the City of Gilroy, a municipal corporation ("City"), and Costco Wholesale Corporation, a Washington corporation ("Owner") On August 29,2002, before me, Lupita Gaeta, 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. J '1- ::~=~~..i:7- f :i' Notary Public - earlfomia ~ I Santa Cia,.. County f _ _ _ ~~:..~_~1~~ WITNESS my hand and official seal. per GC Sec. 40814; CC Sec. 1181 (Notary Seal)