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KB Homes South Bay, Inc. - Condemnation of off-site property for Tract No. 10184RECORD WITHOUT FEES PURSUANT TO GOVERNMENT CODE § 6103 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Gilroy City Clerk's Office 7351 Rosanna Street Gilroy, California 95020 DOCUMENT: 22458367 Pages: 13 Fees.... + No Fees Taxes.. Copies. AMT PAID REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of Title Company RDE # 007 11/26/2013 2:22 PM SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY AGREEMENT REGARDING CONDEMNATION OF OFF -SITE PROPERTY FOR TRACT NO. 10184 This Agreement, made and entered into this !Sit\day of November, 2013, by and between the CITY OF GILROY, ( "City, ") a municipal corporation of the State of California, and, KB HOMES SOUTH BAY, INC, ( "Subdivider ") a California corporation, developer of Tract No. 10184. WITNESSETH: WHEREAS, Subdivider is engaged in subdividing approximately 25.6 acres ( "Property "), located at the southwest corner of Luchessa Avenue and Monterey Road, APNs 808 -21 -018, 808 -21 -032, 808 -21 -033, in the City of Gilroy, County of Santa Clara, State of California, to create 213 residential lots, seven (7) open space lots, and one (1) remainder lot for property zoned ND (Neighborhood District). Exhibit A, a legal description of Property, is attached hereto and incorporated herein by this reference; and WHEREAS, the Property is located within the Oak Creek Master Plan area, which includes a mixed -use commercial structure located at the intersection of Luchessa Avenue and Monterey Road. A portion of the Master Plan mixed -use structure is located on land owned by Suburban Propane and AT &T; and WHEREAS, Condition 7 of the Oak Creek Master Plan Architecture and Site approval 06 -31, in part requires Subdivider to acquire the real property that is currently owned by Suburban Propane and AT &T, as more particularly described in Exhibit B, attached hereto and incorporated herein by this reference (the "Off -Site Property "), and to dedicate to City the Off - Site Property with improvements ( "Off -Site Property Improvements ") as described in Exhibit C, attached hereto and incorporated herein by this reference; and WHEREAS, the Gilroy City Council approved Tentative Map 07 -11 for the Property, on April 18, 2011 by Resolution No. 2011 -23 This Agreement is the agreement contemplated by Condition 14 of the Tentative Map 07 -11 approval; and WHEREAS, Subdivider has not acquired the Off -Site Property; and WHEREAS, Subdivider has filed a final map of Tract No. 10184 (the "Final Map ") with the City Clerk for presentation to the City Council for approval, which map is attached hereto as Exhibit D; and 4815- 9016- 3733v2 _ MVAKHARIA104706091 -1 WHEREAS, Subdivider has requested approval of the Final Map prior to the completion of the Off -Site Improvements pursuant to Government Code section 66462.5; and WHEREAS, City has agreed to complete processing the Final Map subject to and on the condition that Subdivider enter into and execute this Agreement with City regarding acquiring and paying for the Off -Site Property. This Agreement shall be recorded in the official records of Santa Clara County. NOW, THEREFORE, to ensure satisfactory performance by Subdivider of its obligations, and in consideration of the Final Map approval and acceptance of the dedications therein offered, the parties hereto do hereby agree as follows: 1. Acquisition of Off -Site Improvements. a. Purpose. The purpose of this Agreement is for the Subdivider to pay all costs of acquiring the Off -Site Property. b. Subdivider to Pay Costs. Subdivider agrees to pay all costs and expenses of acquiring the Off -Site Property, including, but not limited to, the fair market value of the Off -Site Property as reasonably determined by the City through appraisals or by a court of competent jurisdiction, reasonable costs and expenses of City staff, appraisers, attorneys and other experts deemed necessary by City for the acquisition of the Off -Site Property, all court costs, posttrial costs, court- awarded litigation expenses (if any), relocation, if appropriate, and all other reasonably related costs of acquisition (hereinafter collectively referred to as "Acquisition Costs ") after request by Subdivider to initiate acquisition of the Off -Site Property . Acquisition Costs shall include all court- awarded costs if the court determines that the City is not authorized to acquire the Off -Site Property. Acquisition Costs also include any court costs, expert fees and /or attorneys' fees the court awards to the Off -Site Property owner(s) in the event that the City commences and thereafter abandons condemnation proceedings. Subdivider understands and agrees that it may be necessary to acquire certain remainder property for severance reasons or otherwise in conjunction with acquiring the Off -Site Property. C. Deposit. Promptly after the City approves the Agreement, Subdivider shall deposit with City an initial cash deposit in the amount of Twenty Thousand dollars ($20,000). Prior to the City tendering its statutorily required offer for the Off -Site Property, Subdivider shall provide City with additional cash deposits, in an amount satisfactory to the City's Director of Public Works /City Engineer as needed to satisfy the entire sum of the Acquisition Costs (the initial deposit and additional deposits are hereinafter referred to as the "Deposits "). The City shall use the Deposits for the Acquisition Costs. d. Deposits Return. Any part of the Deposits held by City after the proceedings to acquire the Property have been completed shall be returned to Subdivider within thirty (30) days after all Acquisition Costs have been paid or a Court judgment, decision, or order related to condemnation proceedings is final, whichever date is later. 481E-901fr3733v2 _ MVAKHARIA104706091 -2 e. Property Improvement Agreement. Subdivider shall execute a Property Improvement Agreement requiring Subdivider to pay for all costs associated with the Off -Site Property Improvements. f. Indemnification and Hold Harmless. Subdivider shall defend (with counsel the City selects), indemnify, and hold harmless the City, its elected and appointed officials, officers, attorneys, agents, employees, servants, volunteers, and each of them, from any and all loss or damage and from any and all liability for any and all loss or damage, and from any and all suits, actions or claims filed or brought by any and all person or persons because of or resulting from acquiring the Off -Site Property, or from proceedings to acquire the Off -Site Property, including but not limited to any claim, suit or action by the owner(s) of the Off -Site Property for inverse condemnation. The provisions of this paragraph shall apply to all damage and claims for damage of every kind suffered, or alleged to have been suffered, by reason of implementing the Agreement, regardless of whether or not City has initiated condemnation proceedings, and regardless of whether or not insurance policies may be determined to be applicable to any such damages or claims. g. Waiver of Government Code Section 66462.5 Time Limit. Subdivider hereby waives the time limit for acquisition set forth in Government Code section 66462.5 if, in the sole discretion of City, additional time is necessary in order to bring an action under Title 7 of Part 3 of the Code of Civil Procedure. h. Specific Rates. Subdivider shall pay City for attorney fees at the hourly rate actually charged to City by its City Attorney's Office for eminent domain services. Engineering fees, appraiser fees, and all other services provided by non - attorney employees of City shall be paid for by Subdivider at the rate actually incurred by City. City may, at its option, contract with other parties to provide any services (including legal) necessary to acquire the Off -Site Property, in which case Subdivider shall pay all such costs incurred by City. In that regard, it is the present intent of the parties that Subdivider's counsel be retained as co- counsel with the City Attorney to represent City in the condemnation proceedings. i. No Limitation on City's Exercise of Discretion. This Agreement shall not be interpreted to require City to adopt resolutions of necessity regarding condemnation of the Off -Site Property. The City retains all discretion provided and required by law to determine whether such resolutions should be adopted based upon the evidence before it at the time such resolutions are considered. j. No Vesting of Rights. Performance by Subdivider of this Agreement shall not be construed to vest Subdivider's rights with respect to any change in any zoning or building law or ordinance. 4815- 9016.3733v2 _ MVAKHARIA104706091 -3 2. General Provisions a. Entire Agreement. This Agreement, including all recitals and exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous understandings, negotiations, representations, promises and agreements, oral or written, by or between the parties, with respect to the subject matter of this Agreement. No representations, inducements, promises, or agreements have been made in connection with this Agreement by any party, or anyone acting on behalf of any party, other than those expressly set forth herein_ b. Notices. Formal notices, demands, and communications to be given under this Agreement by any party shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or by Federal Express or other courier service which provides a written receipt of delivery, or delivered or sent by facsimile transmission to the addresses set forth below. The notices and other communications shall be deemed received and effective upon: (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, the date of delivery or refusal to accept delivery indicated in the certified or registered mail receipt; or (iii) if given by courier service, on the date of delivery evidenced by the receipt for delivery provided by the courier service; or (iv) if faxed, on the date and time shown on the fax confirmation sheet. Any notice, request, demand, direction or other communication sent by fax must be confirmed within forty -eight (48) hours by letter mailed or delivered in accordance with the foregoing. Notice required to be given to City shall be addressed as follows: City of Gilroy Attention: C�K% (\'�heey 7351 Rosanna St. Gilroy, California 95020 Requests for Deposits' return to be filed with: City of Gilroy Attention: Finance Director 7351 Rosanna St. Gilroy, California 95020 With copies to: William D. Ross, Esq. Law Office of William D. Ross 400 Lambert Street Palo Alto, California 94306 4815- 9016- 3733v2 MVAKHARIA104706091 Notice required to be given to Subdivider shall be addressed as follows: Home South Bay Inc. 5000 Executive Parkway, Suite 125 San Ramon, CA 94583 Attention: Ray Panek Telephone: (925) 983 -4520 Facsimile: (925) 983 -4590 Email: rpanek @kbhome.com KB Home 5000 Executive Parkway, Suite 125 San Ramon, CA 94583 Attention: Lauren Boro Telephone: (925) 983 -4507 Facsimile: (866) 954 -4927 Email: lboro@kbhome.com C. Waiver. No waiver of any provision of this Agreement shall be binding unless executed in writing by the party making the waiver. No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver unless the written waiver so specifies. d. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one and the same instrument. e. Governing Law. This Agreement is entered into in and shall be governed by and construed in accordance with the laws of the State of California. f. Choice of Law and Venue. This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be in California and venue shall be in Santa Clara County, California. g. Severability. If any term or provision of this Agreement is ever determined to be invalid or unenforceable for any reason, such term or provision shall be severed from this Agreement without affecting the validity or enforceability of the remainder of this Agreement. h. Interpretation. Section headings in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of any provision of this Agreement. As used herein: (a) the singular shall include the plural (and vice versa) and the masculine or neuter gender shall include the feminine gender (and vice versa) where the context so requires; (b) locative adverbs such as "herein," "hereto," and "hereunder" shall refer to this Agreement in its entirety and not to any specific section or paragraph; (c) the 4815- 90163733v2 MVAKHARIA104706091 terms "include," "including," and similar terms shall be construed as though followed immediately by the phrase "but not limited to;" and (d) "shall" is mandatory and "may" is permissive. The parties have jointly participated in the negotiation and drafting of this Agreement and this Agreement shall be construed fairly and equally as to the parties, without regard to any rules of construction relating to the party who drafted a particular provision of this Agreement. i. Exhibits and Recitals. The exhibits attached to and referenced in this Agreement and the Recitals at the beginning of this Agreement are incorporated and made a part of this Agreement. j. Assi iir event. No party to this Agreement may assign any right or obligation pursuant to this Agreement without prior written consent of all parties. Any attempted or purported assignment of any right or obligation pursuant to this Agreement without all parties' written consent shall be void and of no effect. k. City's Disclaimer of Liability. Notwithstanding any provisions of this Agreement, the City does not undertake any responsibility or liability for any claim, demand, cause of action, damage, cost, expense, loss, or liability, in law or in equity, of any kind and nature whatsoever, that in any way arises from or is in any way connected to the execution of this Agreement and /or to the performance of any and all obligations under this Agreement. Notwithstanding the foregoing, nothing in this section shall release the City from its obligations under this Agreement. 1. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal and legal representatives, successors and assigns. All references herein to "City" and "Subdivider" shall include their respective heirs, representatives, successors and assigns. The obligations of the Subdivider under this Agreement shall be the joint and several obligations of each and all of the parties comprising Subdivider, if Subdivider consists of more than one individual and/or entity. m. Further Actions. Each of the parties agrees to execute and deliver all further documents and to take all further actions reasonably necessary or appropriate to effectuate the purposes of this Agreement. n. No Partnership or Third Party Beneficiary. This Agreement and any further documents or actions executed by the parties in connection herewith shall not create nor be deemed under any circumstances to create any joint venture or partnership between the parties or to render the parties joint venturers or partners. This Agreement is made solely for the benefit of the parties to this Agreement and their respective successors and assigns, and no other person or entity shall have or acquire any rights or remedies under this Agreement. 4815- 9016- 3733v2 _ MVAKHARIA104706091 _6 o. References to Laws. All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. p. References to Days. All references to days herein are to calendar days, including Saturdays, Sundays and holidays, except as otherwise specifically provided. Unless otherwise required by a specific provision of this Agreement, time hereunder is to be computed excluding the first day and including the last day. q. Time of Essence. Time is of the essence of this Agreement and of every part of this Agreement, except for Agreement Section l.g. herein, referring to obligations of Government Code Section 66462.5. No extension or variation of this Agreement will operate as a waiver of this provision. r. Term. This Agreement shall become effective only when signed by the parties, and the term of this Agreement shall continue in perpetuity, unless otherwise agreed in writing by all parties. IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year written below. « Y >, Thomas J. Haglund City Administrat r Dated: h 2? APPROVED AS TO FORM: William D. Ross Special City Attorney 4815 -9016 -3733, v. 2 4$15- 9016.3733v2 _ WAKHARIA104706091 _7 "SUBDIVIDER" — KB HOME SOUTH BAY, INC., A Title: Dated: NOTARY ACKNOWLEDGMENT ATTACHED Acknowledgment Form: State of California County of Contra Costa On November 5, 2013 before me, Gina Marie Curtis, Notary Public, personally appeared Ray Panek , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /a-Fe subscribed to the within instrument and acknowledged to me that he /fey executed the same in his /heir authorized capacity(+es), and that by his /her-/thei signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California l Countyof ,C �r,i�` On W-ibc Date personally appeared CIVIL CODE § 1189 who proved to me on the basis of satisfactory evidence to be the person(s)(whose name( I� re-- subscribed to the within instrument and acknowledged to me that Ie shet MV executed the same in s erftheir authorized capacityoe�6, and that by Is hea:A*6r signature(906 on the Instrument the INGA ALONZO erson(* or the entity upon behalf of which the Commission # 1931989 Z person N acted, executed the instrument. Notary Public - Ca:ifornia i Santa Clara County I certify under PENALTY OF PERJURY under the M Comm. Expires Apr 15, 2015 laws of the State of California that the foregoing paragraph is true and correct. WITNESS y h d and official seal. Signature: / Place Notary Seal Above OPTIONAL Signature of Notary Public Though the information below is not required by law, it may prove valuable to ersons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attache oc'ument Titlelbr Tvos.af Document: tIf ev Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER of thumb here © 2010 National Notary Association - NationalNotary.org - 1- 800 -US NOTARY (1- 800 - 876 -6827) Item #5907 -11 November 7, 2013 HMH 5050.30.392 Page 1 of 1 EXHIBIT "A" REAL PROPERTY in the City of Gilroy, County of Santa Clara, State of California, being all of that parcel of land described in the Grant Deed recorded December 18, 2012 in Document No. 22008399 of Official Records, Santa Clara County Records, described as follows: BEGINNING at the northwesterly comer of said parcel of land, being on the southerly line of W. Luchessa Avenue; Thence along the boundary line of said parcel of land, the following thirteen courses: 1. Thence South 88 059'05" East, 1,660.69 feet; 2. Thence South 01 °00'55" West, 197.88 feet; 3. Thence South 88 059'05" East, 181.63 feet; 4. Thence South 18 °00'01" East, 204.92 feet; 5. Thence South 71059'58" West, 936.20 feet; 6. Thence North 88 059'05" West, 876.10 feet; 7. Thence North 23 °00'06" West, 109.78 feet; 8. Thence along a tangent curve to the right, having a radius of 690.00 feet, through a central angle of 05 039'02" for an arc length of 68.05 feet; 9. Thence North 17 °21'04" West, 147.54 feet; 10. Thence along a tangent curve to the left, having a radius of 710.00 feet, through a central angle of 08 °31'15" for an arc length of 105.59 feet; 11. Thence North 25 °52'19" West, 129.55 feet; 12. Thence South 89 °00'00" East, 67.05 feet; 13. Thence North 01 000'55" East, 180.00 feet, to the POINT OF BEGINNING. Containing 25.63 acres, more or less. k No. 87720 505030LD03.docx 1570 Oakland Road I San Jose, California 95131 1 (408) 487 -2200 1 (408) 487 -2222 Fax I wNA%HMHca.corn Exhibit B Map EX RESIDENTIAL LUCHESSA AVENUE N I � 49 — _ —_ + -_ OAK PLACE PROJECT TRACT 10184 v IF I U) 50 LANDS OF AT&T APN 808 -21 -008 \_FUTURE LUCHESSA AVENUE RIGHT OF WAY _ LANDS OF SUBURBAN PROPANE APN 808 -21 -009 \ �O \\ -PO OAK PLACE TRACT 10184 FEET AT &T and Suburban Propane Property Condemnation Exhibit Scale: V = 20' sR s..,o...uw,,, pnM,...K+awx wersou I I -i - -- -- - - - - --- I i co i } I - --- - - - - -- I i f I � I N I � 49 — _ —_ + -_ OAK PLACE PROJECT TRACT 10184 v IF I U) 50 LANDS OF AT&T APN 808 -21 -008 \_FUTURE LUCHESSA AVENUE RIGHT OF WAY _ LANDS OF SUBURBAN PROPANE APN 808 -21 -009 \ �O \\ -PO OAK PLACE TRACT 10184 FEET AT &T and Suburban Propane Property Condemnation Exhibit Scale: V = 20' sR s..,o...uw,,, pnM,...K+awx wersou Exhibit C Off -Site Property Improvement Plans On -file with City of Gilroy Public Works Department