PIA No. 2006-13 - McMarthy Business Park - Amendment No. 1RECORDING REQUESTED BY:
City of Gilroy
WHEN RECORDED, MAIL TO:
Shawna Freels
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
DOCUMENT: 22689516 P,o..
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REGINA ALCOMENDRAS RDE # 008
SANTA CLARA COUNTY RECORDER 8/27/2014
Recorded at the request of 2:45 PM
Attorney
(SPACE ABOVE LINE FOR RECORDER'S USE)
First Amendment to Property Improvement Agreement No. 2006 -13
Tract 9570 — McCarthy Business Park
Formerly APN: 841 -17 -093
Currently APNs: 841 -17 -100, 841 -17 -101, 841 -17 -104 through -112, 841 -17 -115, and 841-
84- 001 through -009
UNFO \50858 \933192.1 4813- 2221- 8266v4
TMORELL \04706002
FIRST AMENDMENT TO PROPERTY IMPROVEMENT AGREEMENT NO.
2006 -13
(Tract 9570 — McCarthy Business Park)
This First Amendment to Property Improvement Agreement ( "First Amendment")
is entered into as of this 21st day of April, 2014, by and between the City of Gilroy, a
municipal corporation ( "City ") and United Natural Foods West, Inc., a California
corporation ( "Developer "), as successor in interest to McCarthy Gilroy L.L.C. (aka
McCarthy Gilroy, LLC), a real property owner, developer or subdivider, exclusively as to
a portion of the Tract defined below, specifically Santa Clara County Assessor's Parcel
Numbers 841 -17 -111, 841 -17 -112, and 841 -17 -115, a legal description of which is
attached hereto and incorporated herein as Exhibit "A" (the "Developer's Property").
WHEREAS City and Developer's predecessor in interest entered into that certain
Property Improvement Agreement No. 2006 -13, made and entered into as of August 7,
2006 relating to Tract 9570 — McCarthy Business Park, recorded in the Santa Clara
County Recorder's Office on September 5, 2006 as document number 19092370 (the
"Property Improvement Agreement "), as augmented by that certain Clarification to
Property Improvement Agreement ( "Clarification of Agreement") dated as of the 21' day
of June, 2011, which related to the completion of certain improvements relating to the
construction of water distribution systems, improvements of streets, and installation of
sewers, storm drains and other public works facilities (collectively, "Developer Work ");
and
WHEREAS the Property Improvement Agreement was recorded against that
certain real property known as Tract 9570 — McCarthy Business Park, Santa Clara
County APN; 841 -17 -093, as shown in the attached Exhibit `B," which is incorporated
herein ( "Tract "); and
WHEREAS the Developer Work has been completed and accepted by the City,
except for the construction of the Bridges (as defined below), as set forth more fully in
that certain Notice of Acceptance of Completion ( "Notice of Acceptance ") dated
September 17, 2007; and
WHEREAS Developer wishes to expressly assume, pursuant to Section 7 of the
Property Improvement Agreement, the requirements applicable thereunder as said
requirements relate exclusively to the Developer's Property, as generally required by TM
02 -04 (the "Tentative Map "), and Tract Map 9570 (McCarthy Business Park), to
construct the Bridges (as defined below) ( "Remaining Work "); and
WHEREAS except to the extent of Developer's express assumption of the
obligations of the Property Improvement Agreement as set forth herein, all remaining
obligations thereunder shall remain solely with Developer's predecessor in interest and
shall not be Developer's obligation; and
WHEREAS the Property Improvement Agreement and the Tentative Map and the
related conditions require Developer to construct the bridge at Cameron Boulevard over
Princevalle Drain and the bridge at Camino Arroyo over Princevalle Drain both being
UNFO \50858 \933192.1
south of Venture Way that meet certain design and function requirements (collectively,
the "Bridges "); and
WHEREAS City and Developer wish to supplement and modify the Property
Improvement Agreement as it relates to the Developer's Property to reflect the current
completion schedule established. by Developer for the Remaining Work, and to provide
for the correct amount of the Payment Bond described in Section 2 of the Property
Improvement Agreement, and to enter into other agreements and understandings related
thereto.
NOW THEREFORE, in consideration of the foregoing recitals and mutual
covenants contained herein, the parties agree as follows:
(1) For the purpose of the Property Improvement Agreement and this First
Amendment, the term "Remaining Work" as described above shall
hereinafter mean and refer to the timely and workmanlike completion of
the Bridges exclusively.
(2) Subject to circumstances beyond Developer's reasonable control,
Developer agrees that Developer shall complete Developer's Work on or
before April 21, 2015.
(3) Developer shall at all times prior to the final, lien -free completion of the
Remaining Work maintain for City's benefit a Performance and Payment
Bond meeting the requirements of the Property Improvement Agreement,
and in the agreed amount of One Million Three Hundred Seventy Six
Thousand Dollars ($1,376,000). Prior to commencing any work on the
Remaining Work, Developer shall provide bonding and insurance
certificates evidencing such Performance and Payment Bond and the
insurance required under the Property Improvement Agreement that are
satisfactory to City in City's reasonable discretion, and meet the approved
insurance requirements set forth in Section 2(f) of the Property
Improvement Agreement, as supplemented by the following additional
requirement: it shall include broad form "Builder's Risk" property
damage insurance with limits of not less than one hundred percent (100 %)
of the estimated value of the Bridges to be constructed by Developer
pursuant to this First Amendment.
(4) Developer waives any right of action against City, and will hold City and
the City Parties harmless for any costs, fees or damages incurred by
Developer (or any third party interested in the matters relating to the
Developer Property), in the event that any claim(s), action(s), or
proceeding(s) (collectively referred to as a "Proceeding "), succeeds, in
whole or in part, in setting aside, voiding or annulling any aspect of
Developer's Project, as that term is defined below. As used in this
UNFO\50858 \933192.1
Agreement, the term "City Parties" shall mean and refer to the City,
together with its political officials, employees, attorneys, contractors,
consultants, and agents.
(5) Developer shall indemnify, defend and hold the City and the City Parties
harmless from any Proceeding brought against City or the City Parties to
challenge, set aside, void, or annul:
(a) The Property Improvement Agreement as it relates exclusively
to the Developer's Property, the Tentative Map as it relates
exclusively to the Developer's Property, the final map obtained
by Developer as it relates exclusively to the Developer's
Property, the Remaining Work, and/or Developer's on or off-
site performance of the Remaining Work or any other work by
Developer related directly or indirectly to the Developer's
Property (the "Developer's Project "); and/or
(b) Any action taken to provide related environmental clearance
for the Developer's Project proposed to be constructed on the
Developer's Property under the California Environmental
Quality Act of 1970, as amended ( "CEQA "), Developer's
indemnification specified in this subsection (b) is intended to
include, but not be limited to, (i) damages, fees and/or costs, if
any, and costs of suit, claim or litigation, including without
limitation attorneys' fees and other costs, liabilities and
expenses incurred in connection with such proceeding whether
incurred by City, the City Parties, and/or parties initiating or
involved in such proceeding, and (ii) any and all costs of
environmental review and/or compliance pursuant to the
CEQA or any other applicable law that is incurred by the City
or the City Parties regarding the Developer's Project on the
Developer's Property, and (iii) any lawsuit relating to CEQA or
a claim of failure to comply with CEQA regarding the
Developer's Project exclusively.
(6) In addition, Developer shall indemnify, defend and hold the City and the
City Parties harmless from and against any claims, actions, liabilities,
damages, costs or expenses ( "Developer's Property Related Claims ")
arising from or relating to (a) the operations of Developer or Developer's
employees, contractors, or agents in or about the Developer's Property, or
(b) any on or off -site construction or other work undertaken by Developer
relating to the Developer's Property, or (c) any noncompliance with the
requirements of the land use approvals obtained by Developer exclusively
with regard to Developer's Property, or (d) any accident, injury or
damage, howsoever and by whomsoever caused, to any person or
property, occurring in or about the Developer's Property, or (e) the
presence of hazardous materials at or about the Developer's Property, or
UNFO \50858 \933492.1
(f) Developer's failure to comply with all legal requirements relating to
health, safety, or the environment.
(7) If a Proceeding against the City or any of the City Parties regarding the
Developer's Project exclusively is initiated, Developer agrees to defend,
indemnify and hold harmless City and the City Parties for all costs and
fees incurred in additional investigation or study of, or for supplementing,
redrafting, revising, or amending, any document (such as an
environmental impact report, negative declaration, specific plan,
ordinance, or general plan amendment) if made necessary by such
Proceeding.
(8) In the event that Developer is required to defend City or one or more of
the City Parties in connection with such Proceeding (as defined in Section
4 above) against the City or any of the City Parties regarding the
Developer's Project exclusively or Developer's Property Related Claim
(as defined in Section 6 above), City shall have and retain the right to
approve the counsel to so defend the City Parties, which approval shall not
be unreasonably withheld, delayed or conditioned, and provided further
that if the City elects to have attorneys that it has selected participate in (or
provide) the defense, Developer shall pay all of City attorneys' fees and
costs.
(9) City shall also have and retain the right to not participate in the defense,
except that City agrees to reasonably cooperate with Developer in the
defense of the proceeding.
(10) If any provision of this Agreement is, or hereinafter is, adjudged by a
court of competent jurisdiction to be, for any reason void, unenforceable
or invalid, the remainder of this Agreement shall be and remain in full
force and effect.
(11) Developer's waivers with regard to City as well its commitments to the
defense and indemnification of City and the City Parties set forth herein
shall remain in full force and effect throughout all stages of any
Proceeding against the City regarding the Developer's Project exclusively
and any related proceedings, and any Developer's Property Related Claim,
including any and all appeals of lower court judgments. After review and
consideration of all of the foregoing terms and conditions, Developer, by
its signature below, hereby agrees to be bound by and to fully and timely
comply with all of the foregoing terms and conditions.
(12) It shall be the Developer's sole obligation to obtain all required permits
from other agencies (if any), including but not limited to any permits that
may be required from the Santa Clara Valley Water District, the Regional
Water Quality Control Board, or the Army Corps of Engineers as these
may relate to the construction of the Bridges. The City makes no
UNFO \50858 \933192.1
representation as to what permits are or are not required from other
agencies.
(13) Unless otherwise specified herein, all capitalized terms used in this First
Amendment are used as defined in the Property Improvement Agreement.
To the extent that there are any inconsistencies between the terms of the
Property Improvement Agreement and this Amendment, the terms of this
First Amendment shall control as they relate to the Developer's Property.
Except for any such provisions which are inconsistent with this First
Amendment and those terms, covenants and conditions for which
performance has heretofore been completed, all other terms, covenants
and conditions of the Property Improvement Agreement shall remain in
full force and effect but solely as they apply to the Developer's Property.
Nothing in this Agreement is intended to affect any relationship between
the City and McCarthy Gilroy, LLC as it may relate to any portion of the
Tract and/or the McCarthy Business Park which are not part of the
Developer's Property.
[signatures on following page]
UNFO\50858 \933192.1
IN WITNESS WHEREOF,
Property Improvement of A reemen
FATTEST: n
Shdwna Freels
City Clerk
APPROVED AS TO FORM:
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CITY ATTORNEY
the City has executed this First Amendment to
as of April 21, 2014
C GILROY
Thomas Haglund
CITY ADMINISTRATOR
IN WITNESS WHEREOF Owner has executed this First Amendment to Property
Improvement Agreement as of April 21, 2014.
United Natural Foods West, Inc. (UNFI), a California corporation,
Mark E. Shamber.its CFO
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LTNFO \50858 \933192.1
ACKNOWLEDGEMENT
STATE /COMMONWEALTH OF
COUNTY OF
On this �� day of 6u z u f* 20 % q, before me, the undersigned notary
public, personally appeared j c,,, c, sz A ► k'► , proved to me through satisfactory
evidence of identification, which was ❑ photographic identification with signature issued by a
federal or state governmental agency, personal knowledge of the undersigned, to be the
person whose name is signed on the preceding or attached document, and acknowledged to me
that he /she signed it voluntarily for its stated purpose in his/her capacity as the VK-z PrA 4 Z' Az-+
of United Natural Foods West, Inc.
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ACKNOWLEDGEMENT
STATE /COMMONWEALTH OF k- i
COUNTY OF
On this � day of Al9 r 20_L9, before me, the undersigned notary
public, personally appeared /VN o,l-. C proved to me through satisfactory
evidence of identification, which was ❑ photographic identification with signature issued by a
federal or state governmental agency, �Xersonal knowledge of the undersigned, to be the
person whose name is signed on the preceding or attached document, and acknowledged to me
that he /she signed it voluntarily for its stated purpose in his/her capacity as the C Fc-)
of United Natural Foods West, Inc.
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
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SANDRA NAVA
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Notary Public - California i
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Place Notary Seal Above
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who proved to me on the basis of satisfactory
evidence to be the person(o whose name($) Wait
subscribed to the within instrument and acknowledged
to me that he /4/tPwry executed the same in
his /bdr /ter authorized capacity(jeg), and that by
his /Ir /ir signature$) on the instrument the
person�,s'f , or the entity upon behalf of which the
person 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: 9
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® 2010 National Notary Association • NationalNotary.org • 1- 800 -US NOTARY (1- 800 - 876 -6827) Item #5907
First Amendment to Property Improvement Agreement No. 2006 -13
"Exhibit A"
LEGAL DESCRIPTION
Real property In the City of Gilroy, County of Santa Clara, State of California, described as
follows:
LOTS 12 AND 13,.AS SHOWN ON THAT CERTAIN MAP ENTITLED `TRACT 9570 MCCARTHY
BUSINESS PARK", WHICH'MAP WAS FILED IN THE OFFICE OFTHE RECORDER OFTHE:COUNTY
OF SANTA CIARA,_STATE OF CALIFORNIA ON AUGUST 30, 20061 IN BOOK 805 OF MAPS
PAGE(S) 29 -35.
APN: 841 -17 -111 and 841 -17 -112
Real properly in the.City of Gilroy, County of Santa Clara, State of California, described as
follows:
PARCEL A,.AS SHOWN ON THAT CERTAIN MAP OF TRACT 9570 MOCARTHY BUSINESS PARK
FILED IN THE OFFICE' OF THE RECORDER OF THE COUNTY OF SANTA CLAM, STATE OF
CALIFORNIA, IN BOOK 805 OF MAPS "PAGES 29 THROUGH 35.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE CITY OF GILROY, A MUNICIPAL
CORPORATION ON NOVEMBER 3, 2011 AS. INSTRUMENT NO. 21401868, OFFICIAL RECORDS.
APN: 841 -17 -113
841 -17 -115 (new)
EXHIBIT B