Lowe's
DOCUMENT: 16476212 Tit I es: 1 1 Pages: 7
III ~IIIIIIIIIIIIII III Fees. . . , 25,00
RECORDING REQUESTED BY, Taxes.
AND WHEN RECORDED, MAIL TO: Copies.
;0;0016476212;0; AMT PAiD 25,00
City of Gilroy RDE ** 011
7351 Rosanna Street BRENDA DAVIS
Gilroy, CA 95020 SANTA CLARA COUNTY RECORDER 9/12/2002
Attn: City Clerk Recorded at the request of 11: 03 AM
City
I
APN: Parcel Space Above This Line For Recorder'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 September 11 , 2002 (the "Effective Date"), by and between the CITY OF GILROY, a
municipal corporation ("City"), and LOWE'S HIW, INe., a Washington corporation ("Owner").
RECITALS
A. Owner is the fee owner of certain real property located at 7151 Camino Arroyo,
Gilroy, California, more particularly described on Exhibit A, attached hereto and incorporated
herein (the "Property"). Owner desires to construct a home improvement center comprised of an
approximately one hundred thirty-six thousand (136,000) square foot new retail building and an
approximately thirty thousand (30,000) square foot garden center (the "New Business"). In
connection with the development of the New Business, Development Impact Fees in the amount
of One Million One Hundred Eighty-nine Thousand One Hundred Fifty-nine and 30/100ths
Dollars ($1,189,159.30) 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 Nine Hundred
Two Thousand Three Hundred Ninety-four Dollars ($902,394.00). Pursuant to the Deferral
x:\ WP\MSW\Lowe\21735-3.doc
Lowe's HIW
NEC 101 and State Highway 152
Gilroy, CA
9/4/02
"
Agreement, the amount by which sales tax revenues generated by the New Business during a
certain three (3) year period are less than One Million Two Hundred Twenty-seven Thousand
One Hundred Dollars ($1,227,100.00), 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 such deficient sale
tax revenue 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:
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 One
Million Two Hundred Twenty-seven Thousand One Hundred Dollars ($1,227,100.00), In
accordance with the terms and conditions set forth in the Deferral Agreement.
2. 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, an<l; all subsequent owners of the
- 2 -
'":,
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.
3. 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.
[Remainder of page left blank intentionally.]
- 3 -
4. 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 above.
"City"
APPROVED AS TO FORM:
~11~~~
City Attorney
LOWE'S HIW, INC., a Washington
Corp ion
1~
By:/
Na
Its:
"Owner"
(To Be Notarially Acknowledged)
/)/ O/'A
- 4-
State of North Carolina
County of Wilkes
On August 15, 2002, before me, Amanda T. Handy, Notary Public, personally appeared
Stephen A. Hellrung, Senior Vice President and Kevin D. Bennett, Vice President of
Lowe's HIW, Inc.
personally known to me - OR - 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.
()~I:tU:tNtH
<'i~
"~\~~~':16 · OFFICIAL SEAL.
i .... Notary Public, North Carolina
i1, ~ County of Wilkes
<;-.,~.~ ArnandaT. Handy
"-- M C',ommlsSlon Ex ires4/17/2005
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EXHIBIT A TO COVENANT
REGARDING DEVELOPMENT FEES
Real Property in the City of Gilroy, County of Santa Clara, State of California, described as
follows:
Parcel One:
Lot 3 as shown on that certain map entitled "Tract No. 9401, Highway 152 Retail Center, Gilroy,
California" filed for record in the office of the Recorder for the County of Santa Clara, State of
California on August 16,2002 in Book 75 of Maps, pages 10,11, 12, 13, 14, and 15 Santa Clara
County Records.
Parcel Two:
A non-exclusive easement for ingress and egress over Lots 1, 2, 4, 5, 6, 7, 8 and 9 as shown on
that certain map entitled "Tract No. 9401, Highway 152 Retail Center, Gilroy, California" filed
for record in the office of the Recorder for the County of Santa Clara, State of California on
August 16, 2002 in Book 75 of Maps, pages 10,11, 12, 13, 14, and 15 Santa Clara County
Records.
Exhibit A to Agreement
STATE OF CALIFORNIA )
)ss.
COUNTY OF SANTA CLARA )
TITLE OF DOCUMENT: Covenant Regarding Development Fees
(Covenant Running with the Land)
Lowe;s mw., Inc.
Dated: September 11, 2002
On Seotember 11. 2002, before me, Luoita Gaeta. Notary Public, personally appeared
Jav Baksa. City Administrator, 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.
~------------f
LUPfTA GAETA
_@ Commissionf.1352007 z
i' Notary Public - California ~
j Santa Clara County f
_ _ _ ~~~_~1~~
WITNESS my hand and official seal.
per
(Notary Seal)