HomeMy WebLinkAboutOrdinance 55951
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Ordinance No. 5595
Ordinance of the Council of the City of Palo Alto Approving a
Development Agreement with SI 45, LLC, for the 14.65-acre Property at
200-404 Portage Avenue, 3040-3250 Park Boulevard, 3201-3225 Ash
Street, and 278 Lambert Avenue
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Determinations
A. In order to strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic costs of development, the Legislature of the
State of California enacted Sections 65864 et seq. of the Government Code, which authorizes the
City and any person holding a legal or equitable interest in the subject real property to enter into
a development agreement, establishing certain development rights in the property, which is the
subject of the development project application.
B. SI 45, LLC (“Applicant” or “Owner”) has a legal interest in certain real property located in
the City consisting of approximately 14.65 acres and commonly known as 200-404 Portage
Avenue, 3201-3225 Ash Street, 3040-3250 Park Boulevard and 278 Lambert Street in Palo Alto,
California (collectively, the “Property”).
C. At the conclusion of a City Council ad hoc committee process, Owner applied in the Fall
of 2022 to the City for approval of (1) a Development Agreement, (2) Comprehensive Plan
Amendment, (3) Planned Community Zoning Ordinances, (4) Tentative Map(s), and (5) Major
Architectural Review (the “Project”) for Property.
D. The Project proposes to redevelop the Property by:
(i)Removing approximately 84,000 sf of the cannery building located at 200-404
Portage Avenue to accommodate development of 74 townhomes.
(ii)Restoring and rehabilitating the remaining portion of the cannery, retaining the
same area of existing R&D uses in the cannery, and including the Retail/Display
and Outdoor Seating Area;
(iii)Constructing a two-level parking garage to facilitate dedication of an
approximately 3.25-acre parcel to the City;
(iv)Merging and resubdividing the Property into five parcels to facilitate the Project
and dedication of the approximately 3.25-acre parcel;
(v)Retaining the existing office uses of the existing 3201-3225 Ash Street building;
(vi)Retaining and converting the existing 3250 Park Boulevard building from the
current automotive uses to R&D use; and
(vii)Developing 74 Townhomes.
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E. The purpose of Government Code Sections 65864 to 65869.5 is to authorize
municipalities, in their discretion, to establish certain development rights in real property for a
period of years regardless of intervening changes in land use regulations. As authorized by
Government Code Section 65865(c), the City has adopted Resolution No. 7104, establishing
procedures and requirements for consideration of development agreements in Palo Alto. This
Development Agreement has been processed, considered, and executed in accordance with such
procedures and requirements.
F. Notice of intention to consider this Development Agreement has been given pursuant to
Government Code section 65867.
G. The City's Planning and Transportation Commission and City Council have given notice of
intention to consider this Development Agreement, have conducted public hearings thereon
pursuant to Government Code section 65867 and City's Resolution No. 7104, and the City Council
has found that the provisions of this Development Agreement are consistent with City's
Comprehensive Plan, as amended.
H. The City has prepared an EIR for the Project and, through Resolution No. 10123,
certified the EIR, adopted a mitigation monitoring and reporting program, and made a statement
of overriding considerations prior to the execution of this Agreement.
SECTION 2. The City Council hereby approves the Development Agreement between
the City of Palo Alto and SI 45, LLC, a copy of which is attached hereto in substantially
final form as Exhibit "A," and authorizes the Mayor to execute the Agreement on behalf of the
City.
SECTION 3. The City Clerk is directed to cause a copy of the development agreement
to be recorded with the County Recorder not later than ten (10) days after it becomes effective.
SECTION 4. The City Council adopts this ordinance in accordance with the California
Environmental Quality Act ("CEQA") findings adopted by Resolution No. 10123.
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SECTION 5. This ordinance shall be effective upon the thirty-first (31st) day after its
adoption.
INTRODUCED: September 12, 2023
PASSED: October 2, 2023
AYES: BURT, KOU, LAUING, LYTHCOTT-HAIMS, STONE, TANAKA, VEENKER
NOES:
ABSTENTIONS:
NOT PARTICIPATING:
ABSENT:
ATTEST: APPROVED:
City Clerk Mayor
Assistant City Attorney City Manager
Director of Planning and Development Services
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This document is recorded
for the benefit of the City
of Palo Alto and is entitled
to be recorded free of charge
in accordance with Section 6103
of the Government Code.
After Recordation, mail to:
OFFICE OF THE CITY ATTORNEY
City of Palo Alto
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, Ca 94303
SPACE ABOVE THIS LINE FOR RECORDER’S USE
DEVELOPMENT AGREEMENT
By and Between
CITY OF PALO ALTO, A Chartered City
and
SI 45, LLC,
A Delaware Limited Liability Company
3200 Portage Avenue
Effective Date: ___October 2, 2023__________
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Table of Contents
Page
ARTICLE I — DEFINITIONS .......................................................................................................3
1.1 Definitions .......................................................................................................................3
ARTICLE II - PROPERTY SUBJECT TO THE DEVELOPMENT AGREEMENT;
BINDING EFFECT; NEGATION OF AGENCY ...............................................................8
2.1 Property Subject to the Development Agreement ...........................................................8
2.2 Binding Effect ..................................................................................................................8
2.3 Negation of Agency .........................................................................................................8
ARTICLE III — TERM; FORCE MAJEURE; CANCELLATION ...............................................8
3.1 Basic Term .......................................................................................................................8
3.2 Force Majeure ..................................................................................................................8
3.3 Extension of Term Due to Moratoria ...............................................................................8
3.4 Cancellation by Mutual Consent ......................................................................................9
ARTICLE IV — DEVELOPMENT OF THE PROPERTY............................................................9
4.1 Vested Development Rights ............................................................................................9
4.2 Subsequent Approvals ...................................................................................................10
4.3 Sequence of Development .............................................................................................10
4.4 Permitted Uses ...............................................................................................................11
ARTICLE V — OWNER PROMISES..........................................................................................11
5.1 Construction of the Parking Garage and R&D Relocation ............................................11
5.2 Demolition of Portion of Cannery and Completion of Retail/Display and Outdoor
Seating Area ...................................................................................................................12
5.3 Recordation of Final Map and Dedication of BMR/Parkland Dedication Parcel ..........13
5.4 Environmental Conditions .............................................................................................14
5.5 Switch Building .............................................................................................................14
5.6 Development of Townhomes and Park Building ...........................................................14
5.7 Transportation Demand Management Program .............................................................15
5.8 Payment of Fees .............................................................................................................15
ARTICLE VI — CITY PROMISES..............................................................................................16
6.1 Processing of Subsequent Approvals .............................................................................16
6.2 Acceptance of BMR/Parkland Dedication Parcel ..........................................................16
ARTICLE VII - EXCEPTIONS AND EXCLUSIONS .................................................................17
7.1 Subsequent Applicable Rules ........................................................................................17
7.2 Supervening Rules of Other Governmental Agencies ...................................................17
7.3 Building Codes ..............................................................................................................18
7.4 Utility Services ..............................................................................................................18
7.5 No General Limitation of Future Exercise of Power .....................................................18
7.6 Alternative Approvals ....................................................................................................18
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ARTICLE VIII - ANNUAL REVIEW ..........................................................................................19
8.1 Annual Review ..............................................................................................................19
ARTICLE IX - DEFAULT, REMEDIES, TERMINATION ........................................................19
9.1 Remedies for Breach ......................................................................................................19
9.2 Notice of Breach ............................................................................................................19
9.3 Applicable Law ..............................................................................................................20
ARTICLE X —- AMENDMENTS ...............................................................................................20
10.1 Modification Because of Conflict with State or Federal Laws ......................................20
10.2 Amendment by Mutual Consent ....................................................................................20
10.3 City Costs for Review ....................................................................................................20
10.4 Minor Amendments .......................................................................................................21
10.5 Amendment of Approvals ..............................................................................................21
ARTICLE XI — COOPERATION AND IMPLEMENTATION .................................................22
11.1 Cooperation ....................................................................................................................22
11.2 City Processing ..............................................................................................................22
11.3 Other Governmental Permits .........................................................................................22
ARTICLE XII — TRANSFERS AND ASSIGNMENTS .............................................................23
12.1 Transfers and Assignments ............................................................................................23
12.2 Covenants Run with the Land ........................................................................................23
ARTICLE XIII — MORTGAGE PROTECTION; CERTAIN RIGHTS OF CURE....................23
13.1 Mortgage Protection ......................................................................................................23
13.2 Mortgagee Not Obligated ..............................................................................................24
13.3 Notice of Default to Mortgagee .....................................................................................24
ARTICLE XIV — GENERAL PROVISIONS .............................................................................24
14.1 Project is a Private Undertaking ....................................................................................24
14.2 Notices, Demands, and Communications between the Parties ......................................24
14.3 Severability ....................................................................................................................25
14.4 Section Headings ...........................................................................................................25
14.5 Entire Agreement ...........................................................................................................25
14.6 Estoppel Certificate ........................................................................................................25
14.7 Statement of Intention ....................................................................................................26
14.8 Indemnification and Hold Harmless ..............................................................................26
14.9 Recordation ....................................................................................................................26
14.10 No Waiver of Police Powers or Rights ..........................................................................27
14.11 City Representations and Warranties .............................................................................27
14.12 Owner Representations and Warranties .........................................................................27
14.13 Counterparts ...................................................................................................................28
14.14 Waivers ..........................................................................................................................28
14.15 Time is of the Essence ...................................................................................................28
14.16 Venue .............................................................................................................................28
14.17 Surviving Provisions ......................................................................................................28
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14.18 Construction of Agreement ............................................................................................28
EXHIBIT A – Legal Description
EXHIBIT B – Plat
EXHIBIT C - Schedule and Parties’ Remedies for Default or Breach
EXHIBIT D – [Form of] Assignment and Assumption Agreement
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DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALO ALTO
AND SI 45, LLC
THIS DEVELOPMENT AGREEMENT (hereinafter “Agreement”) is entered into as of
[date], by and between the CITY OF PALO ALTO, a chartered city of the State of California
(“City”), and SI 45, LLC, a Delaware limited liability company (“Owner”). City and Owner are
each a “Party” and collectively, the “Parties.”
RECITALS
THIS DEVELOPMENT AGREEMENT is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. In order to strengthen the public planning process, encourage private participation
in comprehensive planning, and reduce the economic costs of development, the Legislature of the
State of California enacted Sections 65864 et seq. of the Government Code, which authorizes the
City and any person holding a legal or equitable interest in the subject real property to enter into a
development agreement, establishing certain development rights in the property, which is the
subject of the development project application.
B. Pursuant to Government Code Section 65865, the City has adopted Resolution No.
7104, establishing procedures and requirements for consideration of development agreements in
Palo Alto. This Development Agreement has been processed, considered, and executed in
accordance with such procedures and requirements.
C. Owner has a legal interest in certain real property located in the City consisting of
approximately 14.65 acres and commonly known as 200-404 Portage Avenue, 3201-3225 Ash
Street, 3040-3250 Park Boulevard and 278 Lambert Street in Palo Alto, California (collectively,
the “Property”), which Property is described in the attached Exhibit A, and shown on the map
attached as Exhibit B.
D. City and Owner through a City Council-appointed ad hoc subcommittee conducted
good faith and collaborative negotiations regarding the current and future uses of the Property,
including a dispute regarding legal non-conforming uses of the property (“LNCU Dispute”) and
Owner’s pending application for a 91-unit residential project, including 15% moderate for sale
affordable units, on a portion of the Property pursuant to certain state housing laws, including SB
330 (“SB 330 Residential Project”). As a means of resolving the LNCU Dispute and as a more
holistic alternative to the SB 330 Residential Project, City and Owner entered into a Tolling and
Process Agreement (“TPA Agreement”), dated July 31, 2022, for consideration of this Agreement
and related Approvals by City officials. The recitals of the TPA Agreement contain a more full
contextual chronology.
E. City desires to grant Owner vested development rights to construct and operate the
Project in a manner consistent with this Agreement. In exchange for these development rights,
Owner agrees the LNCU Dispute is resolved, to proceed with the Project in lieu of the SB 330
Residential Project and to provide certain public benefits, including, but not limited to, (i) transfer
of approximately 3.25 acres of land to the City for affordable housing and park uses, (ii) construct
a one level over grade structured parking garage to allow relocation of the existing surface parking
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on the dedication property, (iii) renovate/rehabilitate the remaining portion of the historic cannery
building, including an approximately 2,600 square foot retail space to facilitate public appreciation
of the interior historic elements of the cannery building and an adjacent outdoor landscaped seating
area, (iv) implement a Transportation Demand Management (“TDM”) program for the existing
R&D and office uses to reduce single occupant trips by 15%, (v) payment of $5 Million fee to the
City to support affordable housing and open space at the City’s discretion, and (vi) payment of all
other applicable fees per the City’s municipal code as specified herein.
F. Concurrently with approval of this Development Agreement, the City has taken
several actions to review and plan for the future development of the Project, including all required
noticing and review and recommendation by the Architectural Review Board, Historic Review
Board and Transportation and Planning Commission, and duly noticed public hearings by the City
Council. These actions include the following, collectively the “Existing Approvals”:
a. Environmental Impact Report: The environmental impacts of the Project, including
associated Approvals, have properly been reviewed and evaluated by the City
pursuant to the California Environmental Quality Act, Public Resources Code
Sections 21000 et seq. (“CEQA”). Pursuant to CEQA, the City Council certified
the Environmental Impact Report (“EIR”) for housing development at 200 Portage,
which includes analysis of the Project as a project alternative, and adopted a
Statement of Overriding Considerations by Resolution No. 10123, adopted on
September 12, 2023. As required by CEQA, the City adopted written findings and
a mitigation monitoring and reporting program (“MMRP”).
b. Comprehensive Plan Amendment: Resolution No. 10124 on September 12, 2023,
making a text amendment to the “Mixed Use” designation and amending the land
use designations for the Property to “Mixed Use,” in a manner consistent with the
Project (“Comp Plan Amendment”)
c. Rezoning Ordinances: Ordinance Nos. 5596 [Cannery Parcel], 5599 [Park Building
Parcel], 5597 [Townhome Parcel], 5598 [Ash Building Parcel], and 5600
[Dedication Parcel] on October 2, 2023, rezoning the future parcels on the Property
to individual Planned Community zones in a manner consistent with the Project
(“Rezoning Ordinances”).
d. Architectural Review/Development Plan: Ordinance Nos. 5596 [Cannery Parcel]
and 5597 [Townhome Parcel] on October 2, 2023 and Record of Land Use Action
No 2023-03 on September 12, 2023 approving of the Parking Garage and Historic
Restoration and Rehabilitation of the Remaining Cannery (“Cannery Architectural
Review Approval”) and Townhomes (“Townhomes Architectural Review
Approval”).
e. Tentative Map: Record of Land Use Action No. 2023-03 on September 12, 2023 to
merge and resubdivide the Property into five parcels for the Remaining Cannery,
the Townhomes, including a 74-unit condominium subdivision, the Ash Building,
the Park Building, and the BMR/Parkland Dedication Parcel (“Tentative Map”).
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f. TDM Program: Record of Land Use Action No. 2023-03 on September 12, 2023
includes approval of a TDM Program for the Project, consistent with Section 5.7
this Agreement (“TDM Plan”).
G. The City is desirous of encouraging the creation of quality housing at all economic
levels, thereby advancing the interests of its citizens, taken as a whole. The City has determined
that the Project, with the associated approvals complies with the plans and policies set forth in the
City’s Comprehensive Plan and zoning regulations, as amended.
H. A primary purpose of this Development Agreement is to assure that the Project can
proceed without disruption caused by a change in the City’s planning policies and requirements
following the Approvals and to ensure that the community benefits Owner committing to provide
in connection with development of the Project are timely delivered. Owner also desires the
flexibility to develop the Project in response to the market, which remains uncertain due to the
COVID-19 pandemic, and to ensure that the Approvals remain valid over the projected
development period.
I. These Recitals use certain terms with initial capital letters that are defined in
Section 1 of this Agreement. City and Owner intend to refer to those definitions when the
capitalized terms are used in these Recitals.
J. These recitals are intended in part to paraphrase and summarize this Agreement;
however, the Agreement is expressed below with particularity and the Parties intend that their
rights and obligations be determined by those provisions and not by the Recitals.
K. Following duly noticed public hearings, this Development Agreement was
reviewed by the Planning Commission and recommended for approval by City Council on July
26, 2023 and, thereafter, approved by the City Council of the City by Ordinance No. 5595, which
was introduced on September 5, 2023, and finally adopted on October 2, 2023, and became
effective thirty (30) days thereafter, and was duly executed by the parties as of November 1, 2023
(the “Effective Date”).
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
ARTICLE I — DEFINITIONS
1.1 Definitions
In this Agreement, unless the context otherwise requires:
“Agreement” is defined in the Preamble.
“Annual Review” is defined in Section 8.1.
“Applicable Rules” means the City ordinances, resolutions, rules, regulations and official
policies in effect on the Effective Date, as amended by the Existing Approvals.
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“Approvals” means all Existing Approvals and Subsequent Approvals, as those terms are
defined herein.
“Architectural Review Approval” means the approval of an application for architectural
review or approval of a development plan in connection with a Planned Community Zone
application under the Applicable Rules.
“Ash Building” means the existing 4,707 sf building located at 3201-3225 Ash Street.
“BMR/Park Dedication Parcel” means the approximately 3.25 acres of land to be offered
for dedication and dedicated to the City pursuant to applicable provisions of this Agreement,
currently expected to be developed, at City’s sole cost and discretion, as affordable housing (on an
approximately one (1) acre portion thereof) and parkland (on an approximately 2.25 acre portion
thereof) in the approximate location shown on the Tentative Map.
“Cannery” means the existing historic cannery building at 200-380 Portage Avenue/3200
Park Boulevard.
“Cannery Architectural Review Approval” is defined in Recital F.
“CEQA” is defined in Recital F.
“City” means the City of Palo Alto, a chartered city of the State of California.
“City Party” is defined in Section 14.8.
“Claims” is defined in Section 14.8.
“Commencement of Townhome Construction” means the issuance of building permits to
construct the Townhomes. This does not include permits that are exclusively for site preparation.
“Comp Plan Amendment” is defined in Recital F.
“Compliance Notice” is defined in Section 9.2(c)
“Comprehensive Plan” means the 2030 Palo Alto Comprehensive Plan, adopted in
November 2017 and in effect as of the Effective Date, as amended by the Existing Approvals.
“Days” means calendar days.
“Development Agreement” shall mean this Agreement.
“Development Impact Fees” means all fees now or in the future collected by the City from
applicants for new development (including all forms of approvals and permits necessary for
development) for the funding of public services, infrastructure, improvements or facilities, but not
including taxes or assessments, regulatory in-lieu fees such as the public art in-lieu fee, or fees for
processing applications or permits or for design review. The fees included in this definition
include, but are not limited to those fees set forth in Chapters 16.58 and 16.59 of the Municipal
Code, fees for traffic improvements and mitigation, and fees for other community facilities or
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related purposes (but not including any school fees imposed by a school district); provided nothing
herein shall preclude City from collecting fees lawfully imposed by another entity having
jurisdiction which City is required or authorized to collect pursuant to State law.
“Discretionary Action” includes a “Discretionary Approval” and is an action or decision
which requires the exercise of judgment, deliberation, and which contemplates the imposition of
revisions or conditions, by City, including the City Council or any board, commission or
department and any officer or employee thereof, in the process of approving or disapproving a
particular activity, as distinguished from an activity which merely requires City, including the City
Council or any board, commission or department and any officer or employee thereof, to determine
whether there has been compliance with applicable statutes, ordinances, regulations, or Conditions
of Approval.
“Effective Date” is defined in Recital K.
“EIR” is defined in Recital F.
“Existing Approvals” is defined in Recital F.
“Expiration Date” means the 10th anniversary of the Effective Date, except as extended
pursuant to Section 3.3.
“Historic Covenant” is defined in Section 5.2.
“Final Map” is defined in Section 5.3.
“LNCU Dispute” is defined in Recital D.
“MMRP” is defined in Recital F.
“Mortgage” means and refers, singly and collectively, to any mortgages, deeds of trust,
security agreements, assignments and other like security instruments encumbering all or any
portion of the Property or any of Owner’s rights under this Agreement.
“Mortgagee” means and refers to the holder of any Mortgage encumbering all or any
portion of the Property or any of the Owner’s rights under this Agreement, and any successor,
assignee or transferee of any such Mortgage holder.
“Notice of Breach” is defined in Section 9.2(a).
“Operating Memorandum” is defined in Section 10.4(a).
“Owner” means SI 45, LLC, a Delaware limited liability company.
“Park Building” means the existing approximately 11,762 sf building located at 3250 Park
Boulevard (and formerly referred to as the “Audi” Building).
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“Parking Garage” means the new structured (one level above grade) parking garage shown
on the Cannery Architectural Review Approval that will allow relocation of most of the existing
surface parking for the Cannery as required by the Approvals.
“Party” means a signatory to this Agreement, or a successor or assign of a signatory to this
Agreement.
“Permitted Delay” is defined in Section 3.2.
“Planning Director” means the Director of the City’s Department of Planning and
Development Services.
“Public Benefit Fee” means the monetary payment by Owner to the City for City’s use
towards parkland improvement and/or provision of affordable housing, in the City’s sole discretion
as set forth in Section 5.8(b).
“Prevailing Wage Laws” is defined in Section 14.8.
“Project” means proposed redevelopment of the Property in accordance with the
Applicable Rules, Approvals, and this Agreement, which is generally described as follows:
(i) Construction of the Parking Garage to facilitate dedication of the
BMR/Parkland Dedication Parcel (including relocation of an existing above ground powerline);
(ii) Restoration/rehabilitation of the Remaining Cannery, retaining the same
area of existing R&D uses in the Cannery but relocated into the Remaining Cannery and including
the Retail/Display and Outdoor Seating Area;
(iii) Removal of approximately 84,000 sf of the Cannery to accommodate
development of the Townhomes;
(iv) Merger and resubdivision of the Property into five parcels (Remaining
Cannery (Lot 3), Townhomes (Lot 1) including subdivision for condominium purposes, Ash
Building (Lot 4), Park Building (Lot 5) and BMR/Park Dedication Parcel (Lot 2) to facilitate the
Project and dedication of the BMR/Park Dedication Parcel to the City for affordable housing and
park purposes;
(v) Retention of the existing office uses of the Ash Building;
(vi) Retention and conversion of the existing Park Building from the current
automotive uses to R&D use; and
(vii) Development of the Townhomes.
“Property” is defined in Recital C.
“Retail/Display and Outdoor Seating Area” shall mean approximately 2,600 sf of new
ground floor retail in the Remaining Cannery with: (1) public view opportunities to the monitor
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roof portion/internal truss system of the Remaining Cannery, (2) an exhibit of historic information
about the Cannery, and (3) outdoor landscaped seating area, all as further defined on the Cannery
Architectural Review Approval and pursuant to Section 5.2.
“Remaining Cannery” shall mean that portion of the Cannery remaining after
approximately 84,000 square feet are demolished on the northeast end of the building, as shown
on the Cannery Architectural Review Approval.
“Research and Development” or “R&D” shall mean the land use defined in Palo Alto
Municipal Code section 18.04.030(a)(123) as that section read on the Effective Date.
“R&D Relocation” is defined in Section 4.3(a)
“Rezoning Ordinances” is defined in Recital F.
“SB 330 Residential Project” is defined in Recital D.
“Subsequent Applicable Rules” means the ordinances, resolutions, rules, regulations and
official policies of City, as they may be adopted and effective after the Effective Date that do not
conflict with the Applicable Rules, or that are expressly made applicable to the Project by this
Agreement.
“Subsequent Approvals” is defined in Section 4.2.
“Switch Building” means those certain premises consisting of approximately 1,650 square
feet of building space located at the end of the driveway adjacent to 270 Lambert Street, also
known as 278 Lambert Street, currently leased to Comcast of California IX, Inc.
“TDM” is defined in Recital E.
“TDM Plan” is defined in Recital F.
“Tentative Map” is defined in Recital F.
“Term” is defined in Section 3.1.
“Townhomes” means the 74-market rate, for-sale townhome-style 3- and 4-bedroom
residential units and related infrastructure, landscaping and circulation proposed as part of the
Project as shown on the Townhomes Architectural Review Approval.
“Townhomes Architectural Review Approval” is defined in Recital F.
“TPA Agreement” is defined in Recital D.
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ARTICLE II - PROPERTY SUBJECT TO THE DEVELOPMENT AGREEMENT;
BINDING EFFECT; NEGATION OF AGENCY
2.1 Property Subject to the Development Agreement. All of the Property shall be
subject to this Development Agreement. Owner agrees that all persons holding legal or equitable
title in the Property shall be bound by this Development Agreement.
2.2 Binding Effect. Except as otherwise expressly provided herein, the burdens of this
Agreement shall be binding upon, and the benefits of this Agreement shall inure to, the Parties and
their respective assigns, heirs, or successors in interest.
2.3 Negation of Agency. The Parties acknowledge that, in entering into and performing
this Agreement, each Party is acting as an independent entity and not as an agent of the other in
any respect. Nothing contained herein or in any document executed in connection herewith shall
be construed as making City and Owner joint-venturers or partners.
ARTICLE III — TERM; FORCE MAJEURE; CANCELLATION
3.1 Basic Term. The term of this Agreement (the “Term”) shall commence as of the
Effective Date and, unless earlier terminated in accordance with the terms hereof, shall continue
in full force and effect until the Expiration Date. Upon the termination of this Agreement, no party
shall have any further right or obligation hereunder except with respect to any outstanding
obligation which was required to have been performed prior to such termination or with respect to
any default in the performance of the provisions of this Agreement that has occurred prior to such
termination or with respect to any obligations or rights that are specifically set forth as surviving
this Agreement.
3.2 Force Majeure. Performance by either Party of an obligation hereunder shall be
excused during any period of “Permitted Delay.” Permitted Delay shall mean delay beyond the
reasonable control of a Party including, without limitation, war; insurrection; strikes and labor
disputes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public
enemy; pandemics; epidemics; quarantine and public health restrictions; freight embargoes; legal
challenges to this Agreement, legal challenges to the Project Approvals, or legal challenges to any
other approval required from any public agency other than the City for the Project, or any
initiatives or referenda regarding the same; environmental conditions, pre-existing or discovered,
delaying the construction or development of the Property or any portion thereof; and moratorium
as set forth in Section 3.3, so long as the Party claiming a Permitted Delay is acting diligently and
in good faith. A Party’s financial inability to perform shall not be a ground for claiming a Permitted
Delay. The Party claiming the Permitted Delay shall notify the other Party of its intent to claim a
Permitted Delay, the specific grounds of the same and the anticipated period of the Permitted Delay
within 10 business days after (i) the occurrence of the conditions which establish the grounds for
the claim and (ii) the affected Party’s actual knowledge of such occurrence. The period of
Permitted Delay shall last no longer than the conditions preventing performance.
3.3 Extension of Term Due to Moratoria. In the event of any publicly declared
moratorium that applies to the Project under the terms of this Agreement or other interruption in
the issuance of permits, approvals, agreements to provide utilities or services or other rights or
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entitlements by any State, or Federal governmental agency, or public utility which could postpone
the construction of improvements at the Project, the term of this Development Agreement shall be
extended without further act of the parties by a period equal to the duration of any such moratorium
or interruption; provided, however, the total term extension under this Section 3.3 shall not exceed
a total of two (2) years. Nothing in this Section is intended, however, to confer on City or any
related agency any right to impose any such moratorium or interruption.
3.4 Cancellation by Mutual Consent. Except as otherwise permitted herein, this
Development Agreement may be canceled in whole or in part only by the mutual consent of the
City and Owner or their successors in interest, in accordance with the provisions of the City Code.
Any fees paid pursuant to this Development Agreement prior to the date of cancellation shall be
retained by the City, and any sums then due and owing to the City shall be paid as part of the
cancellation.
ARTICLE IV — DEVELOPMENT OF THE PROPERTY
4.1 Vested Development Rights. City hereby grants Owner the vested right to develop
the Project for the Term of this Agreement in accordance with and subject to: (a) the terms and
conditions of this Agreement and the Approvals and any amendments to any of them as shall, from
time to time, be approved pursuant to this Agreement; and (b) the Applicable Rules (as defined in
Section 1). Nothing contained herein shall restrict the City’s discretion to approve, conditionally
approve, or deny amendments or changes to the Approvals proposed by Owner. Except as is
expressly provided otherwise in this Agreement, no future modifications of the following shall
apply to the Project:
(a) the City Comprehensive Plan or a Coordinated Area Plan,
(b) the Palo Alto Municipal Code,
(c) applicable laws and standards adopted by the City which purport to: (i) limit
the use, subdivision, development density, design, parking ratio or plan, schedule of development
of the Property or the Project in a manner inconsistent with this Agreement and the Approvals; or
(ii) impose new dedications, improvements, other exactions, design features, or moratoria upon
development, occupancy, or use of the Property or the Project; or
(d) any other Applicable Rules.
Notwithstanding Section 18.77.090, and to the extent permitted by state law, including the
Subdivision Map Act (Gov. Code §§ 66410 et seq.), the Existing Approvals and Subsequent
Approvals shall be extended and shall not expire during the Term of this Agreement. In the event
any Approval expires by operation of law during the term of this Agreement, City agrees that it
will accept, process, and review in good faith and in a timely manner a new application that is
consistent with the expired Approval, which application shall be governed by the Applicable
Rules.
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4.2 Subsequent Approvals.
Certain subsequent land use approvals, entitlements, and permits other than the Existing
Approvals, will be necessary or desirable for implementation of the Project (“Subsequent
Approvals”). The Subsequent Approvals may include, without limitation, the following:
amendments of the Approvals, final map(s), demolition permits, grading permits, building permits,
sewer and water connection permits, certificates of occupancy, and any amendments to, or
repealing of, any of the foregoing. The conditions, terms, restrictions, and requirements for such
Subsequent Approvals shall be in accordance with the Applicable Rules (except as otherwise
provided in Article VII) and shall not prevent development of the Property for the uses provided
under the Approvals, the Applicable Rules, and this Agreement (“Permitted Uses”), or reduce the
density and intensity of development, or limit the rate or timing of development set forth in this
Agreement, as long as Owner is not in default under this Agreement.
Any subsequent discretionary action or discretionary approval initiated by Owner that is not
otherwise permitted by or contemplated in the Approvals or which changes the uses, intensity,
density, or building height or decreases the lot area, setbacks, parking or other entitlements
permitted on the Property shall be subject to the rules, regulations, ordinances and official policies
of the City then in effect and City reserves full and complete discretion with respect to any findings
to be made in connection therewith.
4.3 Sequence of Development.
The Parties acknowledge and agree that, given the existing uses and leases of the Property,
certain elements of the Project will need to be approved, developed and implemented in the
following certain order:
(a) Construction of the Parking Garage (including the necessary relocation of
an existing City of Palo Alto Utilities above-ground powerline) to allow the relocation of the
existing surface parking serving the Cannery Building, Ash Building and Switch Building and (b)
relocation of R&D space (for the relocation of existing R&D tenants or new R&D tenants) to the
Remaining Cannery, including all necessary associated interior historic restoration and tenant
improvements (to warm shell condition) to prepare for the demolition of a portion of the Cannery
to accommodate the Townhomes (“R&D Relocation”). It is noted that the construction of the
Parking Garage will cause vibration so in the event the Parking Garage construction commences
before or during the work on the Remaining Cannery, the Owner will comply with Mitigation
Measure N-1, as provided in the MMRP.
(b) Demolition of the portion of the Cannery Building necessary to
accommodate the Townhomes and ensure no buildings located on the future new property line and
completion of the exterior and any remaining interior historic restoration, Retail/Display and
Outside Seating Area.
(c) Recordation of final map(s) including dedication of the BMR/Park
Dedication to the City, pursuant to Sections 5.3 and 6.2, and then;
(d) Construction of the Townhomes (as dictated by the market);
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(e) Conversion of the Park Building to R&D uses may occur at any time, as
dictated by the market, subject to the City’s remedies in Exhibit C and Section 9.1.
4.4 Permitted Uses.
The permitted uses of the Property during the Term of this Agreement shall be as follows
and as may be further defined in the applicable Rezoning Ordinances:
(a) Research and Development uses shall be permitted for up to approximately
140,174 square feet of the Cannery on Lot 3, within the existing Cannery until redevelopment and
within the Remaining Cannery after redevelopment consistent with the Approvals.
(b) Approximately 2,600 square feet of the Remaining Cannery on Lot 3 shall
be dedicated to the Retail Use/Display and Outdoor Seating Area consistent with Section 5.2.
(c) Most uses permitted within the ROLM District (including office uses) shall
be permitted for up to 4,707 square feet in the Ash Office Building on Lot 4.
(d) Multiple family residential uses shall be permitted on Lot 1 in a manner
consistent with the proposed Townhomes.
(e) Research and Development uses shall be permitted for up to 11,762 square
feet at the Park Building on Lot 5 pursuant to Section 5.6.
ARTICLE V — OWNER PROMISES
5.1 Construction of the Parking Garage and R&D Relocation.
Within the deadlines set forth on Exhibit C, Owner will have submitted a good faith
application and all applicable processing fees for the necessary ministerial permits (e.g.,
demolition, grading, building) to (a) relocate the existing City of Palo Alto Utilities above-ground
powerline, (b) construct the Parking Garage and (c) complete the R&D Tenant Relocations within
the Remaining Cannery consistent with the Approvals, including all applicable compliance with
the Secretary of the Interior’s Standards for the Treatment of Historic Properties, and (d) demolish
the applicable portion of the Cannery, all consistent with the Approvals.
After all necessary permits are issued, and within the deadlines set forth on Exhibit C,
Owner will have commenced and diligently complete, as concurrently as possible, (a) relocation
of the existing City of Palo Alto Utilities above-ground powerline, (b) construction of the Parking
Garage and (c) the R&D Relocation within the Remaining Cannery consistent with the Approvals,
including all requirements of the Cannery Architectural Review Approval.
Until such time as the BMR/Park Dedication Parcel has been created and offered to the
City pursuant to this Agreement, Owner will not voluntarily enter any new R&D Lease or
additional extension of an Existing R&D Lease without including a clear acknowledgement and
acceptance by such tenant of this Development Agreement, including the City’s remedies
hereunder set forth in Section 9.1 and Exhibit C.
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5.2 Demolition of Portion of Cannery and Completion of Retail/Display and
Outdoor Seating Area.
After the R&D Relocations and Parking Garage are complete, within the deadlines set forth
in Exhibit C, Owner will have commenced and diligently completed demolition of the applicable
portion of the Cannery and completed all related internal and external historic
restoration/rehabilitation and the Retail/Display and Outdoor Seating Area consistent with the
Approvals, including issuance by the City of all necessary final inspections. For purposes of this
section, “complete and operational” shall mean that the City has issued final inspections or
certificates of occupancy for the Parking Garage and final inspections and temporary certificates
of occupancy for the R&D Relocation. Final certificates of occupancy for the R&D Relocation
shall be issued after demolition and all related work under this Section 5.2 are complete.
Prior to final certificates of occupancy for the R&D Relocation, City and Owner will
develop a recordable restrictive covenant (“Historic Covenant”) on the Remaining Cannery
Building, including the Retail/Display and Outdoor Seating Area, for the benefit of the City, which
will run with the land and be binding on successors and assigns of the Owner, in a form approved
by the City Attorney, to ensure that the Remaining Cannery Building will be held, pledged,
mortgaged and leased subject to and all of the following:
• Rehabilitation and maintenance of the essential elements of the Remaining Cannery
as provided in the Cannery Architectural Review Approval and MMRP.
• The use of the Retail/Display and Outdoor Seating Area as provided in Ordinance
No. 5596 for the Remaining Cannery Parcel.
• Terms related to reasonable public opportunities to view the interior roof trusses
during any tenant’s business hours (to be set by the tenant) in a manner that supports
the tenant’s operations, including but not limited to reasonable accommodation for
the hours appropriate for the nature of the tenant’s business, staffing, maintenance
closures, reasonable number of private events, normal business requirements and
events of force majeure typical to a commercial lease. The covenant will not
contain any affirmative obligation to operate, provided, however, that while
occupied by a tenant, the space shall be open to the public for a minimum of 100
hours per month averaged over a calendar year.
• A reasonable process for the development, installation, modification and
replacement of an interpretive historic display(s) both in the interior and/or exterior
of the Retail/Display and Outdoor Seating Area consistent with the Cannery
Architectural Review Approval to support and accommodate a commercial tenant’s
operations, including reasonable times for review and response to support the
tenant’s operations.
• Reasonable review and approval of minor modifications of the covenant by the
Planning Director and identification of material modifications that require City
Council approval.
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• In the event the interior portion of the Retail/Display and Outdoor Seating Area is
not subject to a lease and closed to public access for a period of six consecutive
months following the initial certificate of occupancy, or sixty consecutive days
from the last day of occupancy by a tenant, and there are no active lease negotiations
nor reasonable expectation of entering a lease, the Owner will offer to the City a
non-exclusive, revocable license to provide, at the City’s sole cost and expense,
opportunities for members of the public to enter the interior space. The license
terms will include obligations for the City to staff and secure the space against
damage, loss, and third-party claims. The license will also provide for termination
with 30 days’ notice in the event the Owner engages in negotiations for a lease with
a tenant. The license will not provide the City with any right to make any changes
or improvements to the space (AS IS/WHERE IS condition).
• Owner notice to the City following the termination of any tenancy.
• In the event the interior portion of the Retail/Display and Outdoor Seating Area is
not subject to a lease and closed to public access for a period of over two
consecutive years (from either the initial certificate of occupancy or from the last
day of occupancy by a tenant) and there is no active lease negotiations and no
reasonable expectation of entering a lease, the Owner will offer to the City the
option (at the City’s sole discretion) to enter a $1 dollar per year lease, on otherwise
standard triple net lease terms with the City, for a period to be set by the City and
Owner for the City to provide, at its sole cost and expense, opportunities for
members of the public to enter the interior space. The lease terms will include
obligations to staff and secure the space against damage, loss and third-party
claims. The lease will not provide any right for the City to make any changes to
the space without the prior written consent of the Owner, in Owner’s sole and
absolute discretion. The lease will include the length of the initial term and
potential extension(s).
To ensure the Owner’s ability to meet any lease obligations, the City will not withhold temporary
certificates of occupancy for the R&D Relocation so long as the Owner is cooperating in good
faith to complete and record the Historic Covenant.
5.3 Recordation of Final Map and Dedication of BMR/Parkland Dedication
Parcel.
Promptly after the Parking Garage and demolition are both complete (removing the
structure from the proposed new property line and relocating the surface parking) and within the
deadlines set forth in Exhibit C, Owner will promptly submit and process for recordation one or
more final maps (each a “Final Map”) that creates, at a minimum: (a) the Townhome Parcel; (b)
the BMR/Parkland Dedication Parcel for acceptance by the City pursuant to the terms of this
Agreement; and (c) all necessary easements for a multimodal connection from Portage Avenue to
Park Boulevard, consistent with the City’s Bicycle and Pedestrian Master Plan or the Approvals.
Conveyance to the City of the BMR/Parkland Dedication Parcel will be accomplished solely by
means of City’s acceptance, as shown on the Final Map or subsequently thereto, of Owner’s offer
of dedication as shown on the Final Map of the BMR/Parkland Dedication Parcel. In no event
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shall City require of Owner, nor be entitled to receive from Owner, dedication of the
BMR/Parkland Dedication Parcel by means of a separate grant deed or other separate instrument
of conveyance.
5.4 Environmental Conditions.
Northgate Environmental’s Phase I report prepared for the City recommended
limited Phase II testing on the BMR/Dedication Parcel. PES Environmental Inc. (“PES”), with
the City’s review of their scope of work, completed the recommended limited Phase II testing
entitled “Results of 2023 Additional Subsurface Investigation City Dedication Project – El Camino
Center Adjacent to 200 – 320 Portage Avenue and 278 Lambert Avenue
Palo Alto, California dated August __, 2023 (“PES Limited Phase II Report”),
which was also reviewed by the City’s consultant. The PES Limited Phase II Report identified a
single location (SB-39) with an isolated detection of total lead (390 mg/kg) at a depth of one foot
below ground surface (bgs) as shown on Plate 3 (the “Lead Outlier”). To remediate this Lead
Outlier, upon the City’s development of the park, Owner and the City shall share equally in the
cost of any soil removal on APN 132-38-043 to remove the Lead Outlier to a maximum depth of
three feet and its replacement with clean soil. Upon the request of either Party, the Parties will
meet and confer in good faith on other options to address this Lead Outlier at an earlier time to
achieve a similar results.
In addition, Owner shall provide an updated Phase I report, prepared by a consultant
selected by the City, within 6 months prior to the offer of dedication of the BMR/Park Dedication
parcel to the City. Owner shall only be responsible for removing any new Hazardous Materials
deposited on the BMR/Dedication Parcel to the residential environmental screening thresholds of
the agency responsible for oversight of this Property to the City’s reasonable satisfaction. Owner
shall not be responsible for any environmental conditions already identified and known (or that
should have been known) to the Parties prior to the Effective Date of this Agreement, or any
changes in regulatory screening levels related to those already known conditions.
5.5 Switch Building.
To the extent feasible and desirable to the City, Owner shall facilitate assignment to the
City of any existing lease of the Switch Building concurrent with acceptance of the BMR/Parkland
Dedication Parcel by the City and a full release of Owner upon transfer. Owner shall have no
obligation to modify any existing lease (other than to document an assignment to the City as the
new fee owner) or incur any additional costs or liability related to the Switch Building for
conveyance. Prior to conveyance to the City of the BMR/Parkland Dedication Parcel, Owner shall
not voluntarily enter into or extend a lease of the Switch Building without first consulting the City.
5.6 Development of Townhomes and Park Building.
Following demolition of the portion of the Cannery, recordation of the final map that
includes the Townhomes and offer of dedication of the BMR/Parkland Dedication Parcel to the
City, and issuance of all applicable ministerial permits, and as otherwise dictated by the market,
Owner (or Owner’s assignee) may begin construction and complete the Townhomes consistent
with the Approvals. Owner shall make good faith efforts to effectuate development of the
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Townhomes as soon as commercially practical. For each year, as part of Article VIII (Annual
Review), following creation of the Townhome parcel in which construction of the townhomes has
not commenced, Owner shall provide the City with a summary of its efforts to market the
Townhomes and an analysis of market conditions related to the Townhomes.
Owner shall incorporate or cause to be incorporated into the Covenants, Conditions, and
Restrictions for the Townhomes a condition prohibiting members of the homeowners’ association
from participating in any Residential Preferential Parking District that includes the Townhome
parcel.
Subject to the City’s remedies in Exhibit C and Section 9.1, Owner may complete, at any
time dictated by the market, the conversion of use of the Park Building from automotive to R&D.
At all times following demolition of the portion of the Cannery and before the Commencement of
Townhome Construction, Owner shall secure the Townhome Parcel, and ensure that it is free of
public nuisances. If any issues arise with maintenance, the City and Owner shall meet and confer
regarding the appearance and maintenance of the site.
5.7 Transportation Demand Management Program.
New non-residential uses on the Property (applicable to new tenants after the termination
of the existing leases as of the Effective Date) shall be subject to the TDM Program that achieves
a 15% reduction in single-vehicle-occupancy trips consistent with the Approvals. In addition,
Owner shall implement, for tenants under existing leases as of the Effective Date, those elements
of the TDM Program that that may be implemented by Owner without a lease amendment. The
TDM Program contains contingency provisions to ensure the program can be modified as
appropriate over time and the City’s approval of requested modifications to the TDM Program will
not be unreasonably withheld or delayed.
5.8 Payment of Fees.
(a) Development Fees, Assessments, Exactions, and Dedications. Except as
provided herein, Owner shall pay all applicable City fees, including processing fees, Development
Impact Fees, in-lieu fees, water and sewer connection and capacity charges and fees; assessments;
dedication formulae; and taxes payable in connection with the development, build-out, occupancy,
and use of the Project that apply uniformly to all similar developments in the City at the rates in
effect at the time Owner applies for a building permit approval in connection with the Project
(regardless of whether such fees, assessments, dedication formulae or taxes became effective
before, on or after the Effective Date). Provided, however, Owner shall not be required to pay any
new or increased Development Impact Fees adopted after the Effective Date, with the exception
of increases to adjust for inflation. Additionally, Owner may elect to defer payment of
Development Impact Fees for the Townhomes until construction of the Townhomes, in which case
the Development Impact Fees shall be paid on a pro-rata basis (1/74th) at final inspection for each
residential unit.
City shall accept the dedication of the BMR/Parkland Dedication Parcel pursuant to Sections 5.3
and 6.2 and payment of the Public Benefit Fee as set forth in Section 5.8(a) in full and complete
satisfaction of any and all parkland dedication requirements under Palo Alto Municipal Code
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Chapter 21.50 and inclusionary housing requirements under Chapter 16.65. The City
acknowledges and understands that the Owner intends to market the Townhomes to third party
homebuilders and that the necessary credits and documentation will be assignable to such
builder(s).
(b) Public Benefit Fee. Owner shall also pay a $5 million ($5,000,000.00)
Public Benefit Fee to the City for its use toward affordable housing or parkland improvement in
the City’s sole discretion. Owner may elect to defer payment of the Public Benefit Fee until
construction of the Townhomes, in which case it shall be paid on a pro-rata basis (1/74th) at final
inspection for each residential unit. However, if Commencement of Townhome Construction has
not occurred within 5 (five) years of the City’s acceptance of the BMR/ Parkland Dedication
Parcel, the Public Benefit Fee shall be increased in accordance with the increase in the
Construction Cost Index for the San Francisco Bay Area from the Effective Date to the date of
payment or partial payment, until payment in full. If final inspections for the Townhomes have not
been approved by the Expiration Date, Owner shall pay the full Public Benefit Fee to the City on
or before the Expiration Date. The City acknowledges and understands that the Owner intends to
market the Townhomes to third party homebuilders and that the obligation to pay the Public
Benefit Fee will be assignable to such builder(s) pursuant to Article XII.
ARTICLE VI — CITY PROMISES
6.1 Processing of Subsequent Approvals
Provided Owner is not in default of this Agreement, City shall promptly accept, review and
shall not deny or unreasonably delay any Subsequent Approval, including all ministerial permits
and inspections, necessary to the exercise of the rights vested in the Owner by this Agreement and
all permits and approvals necessary to relocate the existing above-ground powerline necessary for
construction of the Parking Garage. The Parties acknowledge and agree that the City’s compliance
with this obligation directly and materially relates to the Owner’s ability to timely perform its
obligations under this Agreement.
6.2 Acceptance of BMR/Parkland Dedication Parcel
Provided Owner is not in default under this Agreement, and subject to Section 5.3, City
shall expeditiously and in good faith review and accept Owner’s offer of dedication for the
BMR/Parkland Dedication Parcel as such offer is set forth on the Final Map. Following such offer
of dedication, City shall promptly review and act upon any Subsequent Approvals for the
Townhomes, whether or not the City has completed its review and acceptance of the
BMR/Parkland Dedication Parcel. The Parties further acknowledge and agree that: (a) subject
only to, and without limiting, the provisions of Section 5.4 and this Section 6.2, Owner makes no
representation or warranty, express or implied, regarding the title, physical, environmental, or legal
condition of BMR/Parkland Dedication Parcel or its fitness or suitability for any particular purpose
or use and City accepts dedication, title, and ownership of the BMR/Parkland Dedication Parcel
in its “AS IS” and ‘WITH ALL FAULTS” condition; (b) City shall not be required to accept title
to the BMR/Parkland Dedication Parcel subject to any deeds of trust or other monetary liens or
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encumbrances; (c) without limiting the foregoing, City accepts dedication, title, and ownership of
the BMR/Parkland Dedication Parcel subject to (i) all matters of record, including easements,
encumbrances, covenants, conditions, restrictions, reservations, and rights-of-way; (ii)
installments of general and special real property taxes and assessments not then delinquent; (iii)
any encumbrance or possessory interest arising from the acts of City; and (iv) matters that would
have been disclosed by an inspection or a survey; and (d) except as otherwise expressly set forth
in this Agreement, City shall be solely responsible for all costs and expenses attendant upon the
transfer of title to the BMR/Parkland Dedication Parcel from Owner to City.
ARTICLE VII - EXCEPTIONS AND EXCLUSIONS
7.1 Subsequent Applicable Rules
Notwithstanding anything to the contrary in this Agreement, the following Subsequent
Rules that are adopted on a general, City-wide or North Ventura Area-wide basis shall apply to
development of the Property (“Subsequent Applicable Rules”):
(a) Subsequent Rules that relate to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure imposed at any time, provided such Subsequent Rules are uniformly applied throughout
the City or the North Ventura Coordinated Area Plan area to all substantially similar types of
development projects and properties, and such procedures are not inconsistent with procedures set
forth in the Approvals or this Agreement.
(b) Subsequent Rules that are determined by City to be reasonably required in
order to protect occupants of the Project, and/or residents of the City, from a condition dangerous
to their health or safety, or both. This Section 7.1 is not intended to be used for purposes of general
welfare or to limit the intensity of development or use of the Property but to protect and recognize
the authority of the City to deal with material endangerments to persons on the Property not
adequately addressed in the Approvals.
(c) Subsequent Rules that do not conflict with the Applicable Rules, this
Agreement or the Approvals, provided such Subsequent Rules are uniformly applied throughout
the City or the North Ventura Coordinated Area Plan area to all substantially similar types of
development projects and properties; and
(d) Other Subsequent Rules that do not apply to the Property and/or the Project
due to the limitations set forth above, but only to the extent that such Subsequent Rules are
accepted in writing by Owner in its sole discretion.
7.2 Supervening Rules of Other Governmental Agencies
If any governmental entity or agency other than the City passes a law or regulation after
the Effective Date which prevents or precludes compliance with one (1) or more provisions of this
Agreement or requires changes in plans, maps, or permits approved by the City notwithstanding
the existence of this Agreement, then the provisions of this Agreement shall, to the extent feasible,
be modified or suspended as may be necessary to comply with such new law or regulation.
Immediately after enactment of any such new law or regulation, the parties shall meet and confer
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in good faith to determine the feasibility of any such modification or suspension based on the effect
such modification or suspension would have on the purposes and intent of this Agreement. In
addition, Owner shall have the right to challenge the new law or regulation preventing compliance
with the terms of this Agreement, and, to the extent such challenge is successful, this Agreement
shall remain unmodified and in full force and effect; provided, however, that Owner shall not
develop the Project in a manner clearly inconsistent with a new law or regulation applicable to the
Project and adopted by any governmental entity or agency other than the City, except to the extent
that enforcement of such law or regulation is stayed or such law or regulation is repealed or
declared unenforceable or such law or regulation is not applicable to projects as to which a
development agreement has been executed.
7.3 Building Codes.
The Project shall be constructed in accordance with the provisions of the California
Building Code, Green Building Code, Mechanical, Plumbing, Electrical, and Fire Codes as
adopted and amended by the City, City standard construction specifications and Title 24 of the
California Code of Regulations, relating to building standards, in effect at the time of approval of
the appropriate building, grading or other construction permits for the Project. Those codes, as
modified from time to time, are Subsequent Applicable Rules.
7.4 Utility Services.
This Agreement does not limit the power and right of the City to adopt and amend from
time to time rules and procedures governing the provision and use of utility services provided by
the City. These rules, as modified from time to time, are Subsequent Applicable Rules.
7.5 No General Limitation of Future Exercise of Power
This Agreement does not limit the power and right of the City to adopt and amend from
time to time rules and procedures governing the provision and use of utility services provided by
the City.
7.6 Alternative Approvals.
Notwithstanding any provisions in this Development Agreement, Owner may apply for,
and the City may thereafter review and grant, in accordance with applicable law: (i) amendments
or modifications to the Approvals; or (ii) other approvals (“Alternative Approvals”) for the
development of the Property in a manner other than that described in the Approvals. The issuance
of any Alternative Approval which approves a change in the Permitted Uses, density or intensity
of use, height or size of buildings, provisions for reservation and dedication of land, conditions,
terms, restrictions, and requirements relating to subsequent discretionary actions, monetary
contributions by the Owner, or in any other matter set forth in this Development Agreement, shall
not require or constitute an amendment to this Development Agreement, unless Owner and the
City desire that such Alternative Approvals also be vested pursuant to this Development
Agreement. If this Development Agreement is not so amended, it shall continue in effect
unamended, although Owner shall also be entitled to develop the Property in accordance With the
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Alternative Approvals granted by the City, without such permits and approvals being vested
hereby.
ARTICLE VIII - ANNUAL REVIEW
8.1 Annual Review.
The annual review required by California Government Code, Section 65865.1 shall be
conducted pursuant to Resolution No. 7104 by the City’s Planning Director every twelve (12)
months from the Effective Date for compliance with the provisions hereof (the “Annual Review”).
The Planning Director shall notify Owner in writing of any evidence which the Planning Director
deems reasonably required from Owner in order to demonstrate good-faith compliance with the
terms of this Development Agreement. Such annual review provision supplements, and does not
replace, the provisions of Article IX below whereby either the City or Owner may, at any time,
assert matters which either party believes have not been undertaken in accordance with this
Development Agreement by delivering a written Notice of Breach and following the procedures
set forth in said Section 9.2. Owner shall pay the City’s actual costs for its performance of the
Annual Review, including staff time if and to the extent that more than two (2) hours of staff time
is required to perform the annual review.
ARTICLE IX - DEFAULT, REMEDIES, TERMINATION
9.1 Remedies for Breach. City and Owner acknowledge that the purpose of this
Development Agreement is to carry out the parties’ objectives and local, regional, and Statewide
objectives by developing the Project. The parties acknowledge that City would not have entered
into this Development Agreement had it been exposed to damage claims from Owner for any
breach thereof. As such, the parties agree that in no event shall Owner be entitled to recover any
actual, consequential, punitive, or other monetary damages against City for breach of this
Development Agreement. Therefore, City and Owner agree that, in the event of a breach of this
Development Agreement, each of the parties hereto may pursue the following: (a) specific
performance; (b) suits for declaratory or injunctive relief; (c) suits for mandamus or special writs;
or (d) cancellation of this Development Agreement and Approvals, as set forth in Exhibit C. In
addition to the foregoing remedies, City shall be entitled to recover monetary damages with respect
to actual monetary amounts payable by Owner under this Development Agreement. In no event
will the City be entitled to consequential or punitive damages from Owner. All of the above
remedies shall be cumulative and not exclusive of one another, and the exercise of any one (1) or
more of these remedies shall not constitute a waiver or election with respect to any other available
remedy.
9.2 Notice of Breach.
(a) Prior to the initiation of any action for relief specified in Section 9.1 above
because of an alleged breach of this Development Agreement, the party claiming breach shall
deliver to the other party a written notice of breach (a “Notice of Breach”). The Notice of Breach
shall specify with reasonable particularity the reasons for the allegation of breach and the manner
in which the alleged breach may be satisfactorily cured.
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(b) The breaching party shall cure the breach within thirty (30) days following
receipt of the Notice of Breach; provided, however, if the nature of the alleged breach is
nonmonetary and such that it cannot reasonably be cured within such thirty (30) day period, then
the commencement of the cure within such time period and the diligent prosecution to completion
of the cure thereafter at the earliest practicable date shall be deemed to be a cure, provided that if
the cure is not so diligently prosecuted to completion, then no additional cure period shall be
required to be provided. If the alleged failure is cured within the time provided above, then no
default shall exist, and the noticing party shall take no further action to exercise any remedies
available hereunder. If the alleged failure is not cured, then a default shall exist under this
Development Agreement and the non-defaulting party may exercise any of the remedies available
under this Development Agreement.
(c) If, in the determination of the alleged breaching party, such event does not
constitute a breach of this Development Agreement, the party to which the Notice of Breach is
directed, within thirty (30) days of receipt of the Notice of Breach, shall deliver to the party giving
the Notice of Breach a notice (a “Compliance Notice”) which sets forth with reasonable
particularity the reasons that a breach has not occurred.
9.3 Applicable Law. This Development Agreement shall be construed and enforced
in accordance with the laws of the State of California without reference to its choice of laws rules.
ARTICLE X —- AMENDMENTS
10.1 Modification Because of Conflict with State or Federal Laws.
(a) In the event that State or Federal laws or regulations enacted after the
Effective Date of this Development Agreement prevent or preclude compliance with one (1) or
more provisions of this Development Agreement or require changes in plans, maps, or permits
approved by City, such modifications shall be governed by the provisions of Section 4.2 and
Article VII. Any such amendment or suspension of this Development Agreement shall be
approved by the City Council in accordance with the City Code and this Development Agreement
and by Owner.
(b) In the event changes in State or Federal laws or regulations substantially
interfere with Owner’s ability to carry out the Project, as the Project has been approved, or with
the ability of either party to perform its obligations under this Development Agreement, the parties
agree to negotiate in good faith to consider mutually acceptable modifications to such obligations
to allow the Project to proceed as planned to the extent practicable.
10.2 Amendment by Mutual Consent. This Development Agreement may be
amended in writing from time to time by mutual consent of City and Owner, subject to approval
by the City Council (except as otherwise provided herein), and in accordance with the procedures
of State law and the City Code.
10.3 City Costs for Review. During the Term of this Development Agreement, Owner
shall promptly reimburse City for costs incurred by City to have its staff, consultant, or outside
counsel review, approve, or issue assignments, estoppel certificates, transfers, amendments to this
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Development Agreement, and the like. Owner’s obligations under this Section 10.3 shall survive
expiration or earlier termination of this Development Agreement.
10.4 Minor Amendments.
(a) The parties acknowledge that the provisions of this Development
Agreement require a close degree of cooperation between City and Owner, and, during the course
of implementing this Development Agreement and developing the Project, refinements and
clarifications of this Development Agreement may become appropriate and desired with respect
to the details of performance of City and Owner. If, and when, from time to time, during the Term
of this Development Agreement, City and Owner agree that such a refinement is necessary or
appropriate, City and Owner shall effectuate such refinement through a minor amendment or
operating memorandum (the “Operating Memorandum”) approved in writing by City and Owner,
which, after execution, shall be attached hereto as an addendum and become a part hereof. Any
Operating Memorandum may be further refined from time to time as necessary with future
approval by City and Owner. No Operating Memorandum shall constitute an amendment to this
Development Agreement requiring public notice or hearing.
(b) Notwithstanding the provisions of Section 10.5, and by way of illustration
but not limitation of the above criteria for an Operating Memorandum, any refinement of this
Development Agreement which does not affect: (a) the Term of the Development Agreement as
provided in Section 3.1; (b) the right to develop, and Permitted Uses of, the Property as provided
in this Development Agreement; (c) the general location of on-site and off-site improvements; (d)
the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings;
(f) monetary contributions by Owner as provided in this Development Agreement; or (g) material
modifications to public view opportunities of the monitor roofs/interior trusses of the Cannery
Building or material modifications to essential historic elements of the Cannery Building as
defined in Section 5.2, shall be deemed suitable for an Operating Memorandum and shall not,
except to the extent otherwise required by law, require notice or public hearing before either the
Planning Director or the City Council before the parties may execute the Operating Memorandum;
provided, that such amendment shall first be approved by Owner and the Community Development
Director (or if the City does not then have a Planning Director, then by the holder of the position
which includes the majority of the planning responsibilities held, as of the date of this Development
Agreement, by the Planning Director); and provided further, that the Planning Director (or
substitute) in consultation with the City Attorney shall make the determination on behalf of City
whether a requested refinement may be effectuated pursuant to this Section 10.4 or whether the
requested refinement is of such a character to constitute an major modification hereof pursuant to
Section 10.5. The Planning Director (or substitute) shall be authorized to execute any Operating
Memoranda hereunder on behalf of City. Minor modifications to the Project as to the location,
operational design, or requirements for maintenance of improvements shall be suitable for
treatment through Operating Memoranda subject to the provisions of this Section 10.4, and not
“major modifications” subject to the provisions of Section 10.5.
10.5 Amendment of Approvals. Approval of any major modifications to the Project or
Approvals requires City Council approval and the approval of Owner. Any of the following
amendments to Approvals shall be deemed a “major modification” and shall require an amendment
of this Development Agreement: (a) the term of the Development Agreement as provided in
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Section 3.1; (b) the right to develop, and Permitted Uses of, the Property as provided in this
Development Agreement; (c) the general location of on-site and off-site improvements; (d) the
density or intensity of use of the Project; (e) the maximum height or size of proposed buildings;
(f) monetary contributions by Owner as provided in this Development Agreement; or (g) material
modifications to the public view opportunities of the monitor roof/interior trusses of the Cannery
Building or material modifications to essential historic elements of the Cannery Building as
defined in Section 5.2. Such amendment shall be limited to those provisions of this Development
Agreement, which are implicated by the amendment of the Approvals. Any other amendment of
the Approvals shall not require amendment of this Development Agreement unless the amendment
of the Approvals relates specifically to some provision of this Development Agreement.
ARTICLE XI — COOPERATION AND IMPLEMENTATION
11.1 Cooperation. It is the parties’ express intent to cooperate with one another and to
diligently work to implement this Agreement in a manner that ensures that all Parties realize the
intended benefits of the Agreement.
11.2 City Processing.
(a) By City. City will not use its discretionary authority in considering any
application for a Subsequent Approval to change the policy decisions reflected by this
Development Agreement or otherwise to prevent or delay development of the Project. The City
shall cooperate with Owner in a reasonable and expeditious manner, in compliance with the
deadlines mandated by applicable statutes or ordinances, to complete, at Owner’s expense, all steps
necessary for implementation of this Development Agreement and development of the Project in
accordance herewith, including, without limitation, in performing the following functions to
process the Project:
(i) Scheduling all required public hearings by the City Council, Planning
Commission, Architectural Review Board, or other City bodies in accordance with the City’s
regularly established meeting schedule for these bodies; and
(ii) Processing and checking all maps, plans, land use permits, building plans
and specifications, and other plans relating to development of the Project filed by Owner or its
nominees.
(b) By Owner. When Owner elects to proceed with construction of the Project
or any part thereof, Owner, in a timely manner, shall provide City with all documents, applications,
plans, and other information necessary for City to carry out its obligations hereunder, and Owner
shall cause its planners, engineers, and all other consultants to submit in a timely manner all
necessary materials and documents.
11.3 Other Governmental Permits. Owner shall apply prior to the expiration of the
Term of this Development Agreement for approvals which may be required from other
governmental or quasi-governmental agencies having jurisdiction over the Project as may be
required for the development of, or provision of services to, the Project. City shall cooperate
reasonably with Owner in its endeavors to obtain such permits and approvals at no cost to City. If
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such cooperation by City requires the approval of the City Council, such approval cannot be
predetermined because decisions are made by a majority vote of the City Council.
ARTICLE XII — TRANSFERS AND ASSIGNMENTS
12.1 Transfers and Assignments. Owner may assign this Development Agreement
with the express written consent of City, which consent shall not be unreasonably withheld,
conditioned, or delayed. Owner may assign this Development Agreement in whole or in part as to
the Property, in connection with any sale, transfer, or conveyance thereof, and upon the express
written assignment by Owner and assumption by the assignee by an assignment and assumption
agreement in substantially the form of Exhibit D, subject to prior approval of the City Manager
and City Attorney, which approval shall not be unreasonably withheld or delayed, and the
conveyance of Owner’s interest in the Property related thereto. Upon execution of an assignment
and assumption agreement, Owner shall be released from any further liability or obligation
hereunder related to the portion of the Property so conveyed and the assignee shall be deemed to
be the “Owner,” with all rights and obligations related thereto, with respect to such conveyed
property.
12.2 Covenants Run with the Land. All of the provisions, agreements, rights, powers,
standards, terms, covenants, and obligations contained in this Development Agreement shall be
binding upon the parties and their respective heirs, successors (by merger, consolidation, or
otherwise), and assigns, devisees, administrators, representatives, lessees, and all of the persons or
entities acquiring the Property or any portion thereof, or any interest therein, whether by operation
of law or in any manner whatsoever, including foreclosure or deed in lieu of foreclosure, and shall
inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation,
or otherwise), and assigns. All of the provisions of this Development Agreement shall be
enforceable as equitable servitudes and constitute covenants running with the land pursuant to
applicable law, including, but not limited to, Section 1468 of the Civil Code of the State of
California. Each covenant to do or refrain from doing some act on the Property hereunder, or with
respect to any City-owned property: (a) is for the benefit of such properties and is a burden upon
such property; (b) runs with such properties; (c) is binding upon each party and each successive
owner during its ownership of such properties or any portion thereof, and each person or entity
having any interest therein derived in any manner through any owner of such properties, or any
portion thereof; and (d) shall benefit each property hereunder, and each other person or entity
succeeding to an interest in such properties.
ARTICLE XIII — MORTGAGE PROTECTION; CERTAIN RIGHTS OF CURE
13.1 Mortgage Protection. This Development Agreement shall be superior and senior
to any lien placed upon the Property or any portion thereof after the date of recording this
Development Agreement, including the lien of any deed of trust or mortgage (“Mortgage”).
Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish, or impair
the lien of any Mortgage made in good faith and for value, but all of the terms and conditions
contained in this Development Agreement shall be binding upon and effective against any person
or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title
to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure,
or otherwise.
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13.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 13.1 above,
no Mortgagee shall have any obligation or duty under this Development Agreement to construct
or complete the construction of improvements or to guarantee such construction or completion;
provided, however, a Mortgagee shall not be entitled pursuant to this Development Agreement to
devote the Property to any uses or to construct any improvements thereon other than those uses or
improvements provided for or authorized by this Development Agreement or otherwise under the
Approvals. Nothing in this Section 13.2 shall prevent or impair the right of any Mortgagee to apply
to City for the approval of entitlements to construct other or different improvements than the
Project, although this Development Agreement shall not be construed to obligate City to approve
such applications, and City retains full and complete discretion with respect to consideration of
any such applications for approval.
13.3 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee
requesting a copy of any notice of default given Owner hereunder and specifying the address for
service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to
Owner, any Notice of Breach given to Owner with respect to any claim by City that Owner has
committed an event of default, and, if City makes a determination of noncompliance hereunder,
City shall likewise serve notice of such noncompliance on such Mortgagee concurrently with
service thereon on Owner. Each Mortgagee shall have the right during the same period available
to Owner to cure or remedy, or to commence to cure or remedy, the event of default claimed, or
the areas of noncompliance set forth in City’s Notice of Breach.
ARTICLE XIV — GENERAL PROVISIONS
14.1 Project is a Private Undertaking. It is specifically understood and agreed by the
parties that the development contemplated by this Development Agreement is a private
development, that City has no interest in or responsibility for or duty to third persons concerning
any of said improvements, and that Owner shall have full power over the exclusive control of the
Property herein described subject only to the limitations and obligations of Owner under this
Development Agreement.
14.2 Notices, Demands, and Communications between the Parties. Formal written
notices, demands, correspondence, and communications between City and Owner will be
sufficiently given if dispatched by first-class mail, postage prepaid, or overnight courier, to the
offices of the City and Owner indicated below. Such written notices, demands, correspondence,
and communications may be sent in the same manner to such persons and addresses as either party
may from time to time designate by mail as provided in this Section:
City: City Manager
City of Palo Alto
250 Hamilton Avenue
Palo Alto, California 94301
with copies to: City Attorney
City of Palo Alto, 8th Floor
250 Hamilton Avenue
Palo Alto, California 94301
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Director of Planning and Development Services
City of Palo Alto, 5th Floor
250 Hamilton Avenue
Palo Alto, California 94301
Owner: SI 45, LLC
Attn: Tim Steele and Robert Tersini
c/o The Sobrato Organization
599 Castro Street, Suite 400
Mountain View, CA 94041
With a copy to: Holland & Knight
Attn: Tamsen Plume
560 Mission Street, 19th Floor
San Francisco, CA 941051
Notices delivered by deposit in the United States mail as provided above shall be
deemed to have been served forty-eight (48) hours after the date of deposit or if sent via overnight
courier on the next business day.
14.3 Severability. Except as otherwise provided herein, if any provision of this
Development Agreement is held invalid, the remainder of this Development Agreement shall not
be affected and shall remain in full force and effect unless amended or modified by mutual consent
of the parties.
14.4 Section Headings. Article and Section headings in this Development Agreement
are for convenience only and are not intended to be used in interpreting or construing the terms,
covenants, or conditions of this Development Agreement.
14.5 Entire Agreement. This Development Agreement, including the Recitals and the
Attachments to this Development Agreement which are each incorporated herein by reference,
constitutes the entire understanding and agreement of the parties with respect to the subject matter
hereof. The Attachments are as follows:
Exhibit A Legal Description
Exhibit B Plat
Exhibit C Schedule and Parties Obligations and Remedies for Default or Breach
Exhibit D [Form of] Assignment and Assumption Agreement
14.6 Estoppel Certificate. Either party may, at any time, and from time to time, deliver
written notice to the other party requesting such party to certify in writing that, to the knowledge
of the certifying party: (a) this Development Agreement is in full force and effect and a binding
obligation of the parties; (b) this Development Agreement has not been amended or modified
orally or in writing, and, if so amended, identifying the amendments; (c) the requesting party is
not in default in the performance of its obligations under this Development Agreement, or if in
default, to describe therein the nature and amount of any such defaults; and (d) any other matter
reasonably requested by the requesting party. The party receiving a request hereunder shall execute
and return such certificate or give a written, detailed response explaining why it is not obligated to
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do so within twenty (20) business days following the receipt thereof. Either the City Manager or
the Planning Director of City shall have the right to execute any certificate requested by Owner
hereunder. City acknowledges that a certificate hereunder may be relied upon by transferees and
Mortgagees.
14.7 Statement of Intention. Because the California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Ca1.3d 465 (1984), that the failure of the parties therein
to provide for the timing of development resulted in a later adopted initiative restricting the timing
of development and controlling the parties’ agreement, it is the intent of City and Owner to hereby
acknowledge and provide for the right of Owner to develop the Project in such order and at such
rate and times as Owner deems appropriate within the exercise of its sole and subjective business
judgment, subject to the terms of this Development Agreement. City acknowledges that such a
right is consistent with the intent, purpose, and understanding of the parties to this Development
Agreement, and that without such a right, Owner’s development of the Project would be subject
to the uncertainties sought to be avoided by the Development Agreement Legislation and this
Development Agreement.
14.8 Indemnification and Hold Harmless. Owner shall indemnify, defend (with
counsel reasonably acceptable to City) and hold harmless City and its elected and appointed
officials, officers, employees, contractors, agents, and representatives (individually, a “City
Party,” and, collectively, “City Parties”) from and against any and all liabilities, obligations,
orders, claims, damages, fines, penalties and expenses, including reasonable attorneys’ fees and
costs (collectively, “Claims”), including Claims for any bodily injury, death, or property damage,
resulting directly or indirectly from the development, construction, or operation of the Project and,
if applicable, from failure to comply with the terms of this Development Agreement, and/or from
any other acts or omissions of Owner under this Development Agreement, whether such acts or
omissions are by Owner or any of Owner’s contractors, subcontractors, agents, or employees;
provided that Owner’s obligation to indemnify and hold harmless (but not Owner’s duty to defend)
shall be limited (and shall not apply) to the extent such Claims are found to arise from the gross
negligence or willful misconduct of a City Party. This Section 14.8 includes any and all present
and future Claims arising out of or in any way connected with Owner’s or its contractors’
obligations to comply with any applicable State Labor Code requirements and implementing
regulations of the Department of Industrial Relations pertaining to “public works” (collectively,
“Prevailing Wage Laws”), including all claims that may be made by contractors, subcontractors,
or other third-party claimants pursuant to Labor Code Sections 1726 and 1781. Owner’s
obligations under this Section 14.8 shall survive expiration or earlier termination of this
Development Agreement.
14.9 Recordation. Promptly after the Effective Date of this Development Agreement,
the City Clerk shall have this Development Agreement recorded in the Official Records of Santa
Clara County, California. If the parties to this Development Agreement or their successors in
interest amend or cancel this Development Agreement as hereinabove provided, or if City
terminates or modifies this Development Agreement as hereinabove provided, the City Clerk shall
record such amendment, cancellation, or termination instrument in the Official Records of Santa
Clara County, California.
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14.10 No Waiver of Police Powers or Rights. Except as expressly provided in this
Agreement, in no event shall this Development Agreement be construed to otherwise limit in any
way City’s rights, powers, or authority under the police power and other powers of City to regulate
or take any action in the interest of the health, safety, and welfare of its citizens.
14.11 City Representations and Warranties. City represents and warrants to Owner
that, as of the Effective Date:
(a) City is a California charter city and municipal corporation and has all
necessary powers under the laws of the State of California to enter into and perform the
undertakings and obligations of City under this Development Agreement.
(b) The execution and delivery of this Development Agreement and the
performance of the obligations of City hereunder have been duly authorized by all necessary City
Council action, and all necessary City approvals have been obtained.
(c) This Development Agreement is a valid obligation of City and is
enforceable in accordance with its terms.
During the Term of this Development Agreement, City shall, upon learning of any
fact or condition which would cause of any of the warranties and representations in this Section
14.11 not to be true, immediately give written notice of such fact or condition to Owner.
14.12 Owner Representations and Warranties. Owner represents and warrants to City
that, as of the Effective Date:
(a) Owner is duly organized and validly existing under the laws of the State of
California, and is in good standing, and has all necessary powers under the laws of the State of
California to own property interests and in all other respects enter into and perform the
undertakings and obligations of Owner under this Development Agreement.
(b) The execution and delivery of this Development Agreement and the
performance of the obligations of Owner hereunder have been duly authorized by all necessary
corporate action and all necessary corporate authorizations have been obtained.
(c) This Development Agreement is a valid obligation of Owner and is
enforceable in accordance with its terms.
(d) Owner has not: (i) made a general assignment for the benefit of creditors;
(ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by
Owner’s creditors; (iii) suffered the appointment of a receiver to take possession of all, or
substantially all, of Owner’s assets; (iv) suffered the attachment or other judicial seizure of all, or
substantially all, of Owner’s assets; or (v) admitted in writing its inability to pay its debts as they
come due.
During the Term of this Development Agreement, Owner shall, upon learning of
any fact or condition which would cause any of the warranties and representations in this Section
14.12 not to be true, immediately give written notice of such fact or condition to City.
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14.13 Counterparts. This Development Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14.14 Waivers. Notwithstanding any other provision in this Development Agreement,
any failures or delays by any party in asserting any of its rights and remedies under this
Development Agreement shall not operate as a waiver of any such rights or remedies or deprive
any such party of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert, or enforce any such rights or remedies. A party may specifically and
expressly waive in writing any condition or breach of this Development Agreement by the other
party, but no such waiver shall constitute a further or continuing waiver of any preceding or
succeeding breach of the same or any other provision. Consent by one party to any act or failure
to act by the other party shall not be deemed to imply consent or waiver of the necessity of
obtaining such consent for the same or similar acts or failures to act in the future.
14.15 Time is of the Essence. Time is of the essence of this Development Agreement
and of each and every term and condition hereof. All references to time in this Development
Agreement shall refer to the time in effect in the State of California.
14.16 Venue. Any legal action regarding this Development Agreement shall be brought
in the Superior Court for Santa Clara County, California.
14.17 Surviving Provisions. In the event this Development Agreement is terminated,
neither party shall have any further rights or obligations hereunder, except for those obligations of
Owner which by their terms survive expiration or termination hereof, including, but not limited to,
those obligations set forth in Sections 10.3 and 14.8.
14.18 Construction of Agreement. All parties have been represented by counsel in the
preparation and negotiation of this Development Agreement, and this Development Agreement
shall be construed according to the fair meaning of its language. The rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not be employed in
interpreting this Development Agreement. Unless the context clearly requires otherwise: (a) the
plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine,
and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are
mandatory, and “may” is permissive; (d) “or” is not exclusive; (e) “includes” and “including” are
not limiting; and (f) “days” means calendar days unless specifically provided otherwise.
IN WITNESS WHEREOF, City and Owner have executed this Development Agreement
as of the date first written above.
Signatures to follow on next page
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“City”:
CITY OF PALO ALTO,
a California charter city and municipal corporation
By:
Name:
Title:
Attest:
Name:
Title:
APPROVED AS TO FORM:
Name:
Title:
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“Owner”:
SI 45, LLC,
a California limited liability company
By:
Name:
Title:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California }
} ss.
County of Santa Clara }
On ______________________________, before me, ___________________, a Notary Public in
and for said County and State, personally appeared _____________________, who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing is true and correct.
WITNESS my hand and official seal
NOTARY PUBLIC, STATE OF CALIFORNIA
My Commission #_______________
Expires: _____________________
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California }
} ss.
County of Santa Clara }
On ______________________________, before me, ___________________, a Notary Public in
and for said County and State, personally appeared _____________________, who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing is true and correct.
WITNESS my hand and official seal
NOTARY PUBLIC, STATE OF CALIFORNIA
My Commission #_______________
Expires: _____________________
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EXHIBIT “A”
LEGAL DESCRIPTION
DEVELOPMENT SITE
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF PALO ALTO, COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL ONE :
LOT A AS SHOWN ON CERTIFICATE OF COMPLIANCE NO. 15COC‐00002, AS EVIDENCED BY DOCUMENT
RECORDED OCTOBER 15, 2015 AS INSTRUMENT NO. 23116816 OF OFFICIAL RECORDS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEING A PORTION OF PARCEL A AS SHOWN ON THAT CERTAIN PARCEL MAP FILED FOR RECORD ON
NOVEMBER 16, 1977 IN BOOK 407 OF MAPS, AT PAGE 47, SANTA CLARA COUNTY RECORDS, AND A
PORTION OF PARCEL EIGHT AS DESCRIBED IN THAT CERTAIN GRANT DEED RECORDED ON DECEMBER 21,
2011 AS DOCUMENT NUMBER 21465963, OFFICIAL RECORDS OF SANTA CLARA COUNTY, AND BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHERLY CORNER OF SAID PARCEL A, SAID CORNER BEING THE POINT OF
INTERSECTION OF THE NORTHERLY LINE OF EL CAMINO REAL WITH THE WESTERLY LINE OF ACACIA
AVENUE, AS SHOWN ON SAID PARCEL MAP;
THENCE ALONG SAID WESTERLY LINE, NORTH 16°03'00" EAST, 478.71 FEET TO THE POINT OF
INTERSECTION OF SAID WESTERLY LINE WITH A SOUTHERLY LINE OF SAID PARCEL A, SAID POINT ALSO
BEING THE TRUE POINT OF BEGINNING;
THENCE NORTH 73°57'00" WEST, 109.83 FEET TO A POINT ON THE WESTERLY LINE OF SAID PARCEL
EIGHT;
THENCE ALONG SAID WESTERLY LINE OF PARCEL EIGHT, NORTH 16°03'00" EAST, 126.94 FEET TO THE
NORTHWESTERLY CORNER OF SAID PARCEL EIGHT;
THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL EIGHT, SOUTH 73°57'00" EAST, 80.00 FEET TO A
POINT ON THE WESTERLY LINE OF SAID PARCEL A;
THENCE ALONG THE EXTERIOR BOUNDARY OF SAID PARCEL A, THE FOLLOWING THIRTY (30) COURSES
AND DISTANCES:
1.NORTH 16°03'00" EAST, 24.76 FEET;
2.ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1,499.17 FEET, THROUGH A CENTRAL
ANGLE OF 0°09'00" FOR AN ARC DISTANCE OF 30.10 FEET TO A POINT OF COMPOUND
CURVATURE;
3.ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 5,769.61 FEET, THROUGH A CENTRAL
ANGLE OF 0°18'00" FOR AN ARC DISTANCE OF 30.21 FEET TO A POINT OF COMPOUND
CURVATURE;
4.ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 3,859.74 FEET, THROUGH A CENTRAL
ANGLE OF 0°27'00" FOR AN ARC DISTANCE OF 30.31 FEET TO A POINT OF COMPOUND
CURVATURE;
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5. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 2,904.84 FEET, THROUGH A CENTRAL
ANGLE OF 0°36'00" FOR AN ARC DISTANCE OF 30.42 FEET TO A POINT OF COMPOUND
CURVATURE;
6. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 2,331.88 FEET, THROUGH A CENTRAL
ANGLE OF 0°45'00" FOR AN ARC DISTANCE OF 30.52 FEET TO A POINT OF COMPOUND
CURVATURE;
7. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1,949.91 FEET, THROUGH A CENTRAL
ANGLE OF 0°54'00" FOR AN ARC DISTANCE OF 30.63 FEET TO A POINT OF COMPOUND
CURVATURE;
8. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1,677.09 FEET, THROUGH A CENTRAL
ANGLE OF 1°03'00" FOR AN ARC DISTANCE OF 30.73 FEET TO A POINT OF COMPOUND
CURVATURE;
9. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1,472.47 FEET, THROUGH A CENTRAL
ANGLE OF 1°12'00" FOR AN ARC DISTANCE OF 30.84 FEET TO A POINT OF COMPOUND
CURVATURE;
10. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1,313.32 FEET, THROUGH A CENTRAL
ANGLE OF 1°21'00" FOR AN ARC DISTANCE OF 30.94 FEET TO A POINT OF COMPOUND
CURVATURE;
11. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1,186.01 FEET, THROUGH A CENTRAL
ANGLE OF 1°30'00" FOR AN ARC DISTANCE OF 31.05 FEET TO A POINT OF COMPOUND
CURVATURE;
12. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1,081.84 FEET, THROUGH A CENTRAL
ANGLE OF 1°39'00" FOR AN ARC DISTANCE OF 31.15 FEET TO A POINT OF COMPOUND
CURVATURE;
13. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 995.04 FEET, THROUGH A CENTRAL
ANGLE OF 5°17'11" FOR AN ARC DISTANCE OF 91.81 FEET;
14. NORTH 73°57'043" WEST, 0.58 FEET;
15. ALONG A NON‐TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 435.70 FEET, AND TO
WHICH A RADIAL LINE BEARS NORTH 84°52'03" WEST, THROUGH A CENTRAL ANGLE OF
43°20'39" FOR AN ARC DISTANCE OF 329.61 FEET;
16. SOUTH 73°57'00" EAST, 601.12 FEET;
17. SOUTH 16°03'00" WEST, 488.96 FEET;
18. SOUTH 73°57'00" EAST, 21.06 FEET;
19. ALONG A NON‐TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 440.00 FEET, AND TO
WHICH A RADIAL LINE BEARS SOUTH 72°28'25" WEST, THROUGH A CENTRAL ANGLE OF
0°57'12" FOR AN ARC DISTANCE OF 7.32 FEET;
20. SOUTH 18°28'47" EAST, 78.00 FEET;
21. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 299.00 FEET, THROUGH A CENTRAL
ANGLE OF 17°00100" FOR AN ARC DISTANCE OF 88.72 FEET;
22. SOUTH 35°28'47" EAST, 36.97 FEET;
23. SOUTH 16°03'00" WEST, 47.14 FEET;
24. NORTH 30°44'00" WEST, 112.95 FEET;
25. NORTH 73°10'00" WEST, 67.44 FEET;
26. SOUTH 85°58'00" WEST, 53.23 FEET;
27. SOUTH 16°03'00" WEST, 132.10 FEET;
28. NORTH 73°57'00" WEST, 259.74 FEET;
29. SOUTH 16°03'00" WEST, 127.15 FEET;
30. NORTH 73°57'00" WEST, 289.57 FEET TO THE TRUE POINT OF BEGINNING.
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PARCEL TWO :
BEGINNING AT A POINT IN THE NORTHWESTERLY LINE OF FOREST AVENUE, DISTANT THEREON 155.60
FEET SOUTHWESTERLY FROM THE INTERSECTION OF THE SOUTHWESTERLY LINE OF THIRD STREET AND
THE SAID NORTHWESTERLY LINE OF FOREST AVENUE;
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE OF FOREST AVENUE, A DISTANCE OF 50
FEET TO A POINT;
THENCE AT A RIGHT ANGLE NORTHWESTERLY, A DISTANCE OF 95.26 FEET TO A POINT IN THE EASTERLY
LINE OF SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY’S RIGHT OF WAY;
THENCE NORTHERLY ALONG THE SAID EASTERLY RIGHT OF WAY LINE, AND FOLLOWING THE
CURVATURE THEREOF A DISTANCE OF 54.7 FEET MORE OR LESS TO A POINT DISTANT 119.66 FEET
NORTHWESTERLY AT RIGHT ANGLES FROM SAID NORTHWESTERLY LINE OF FOREST AVENUE AT SAID
POINT OF BEGINNING;
THENCE SOUTHEASTERLY AT RIGHT ANGLES TO SAID NORTHWESTERLY LINE OF FOREST AVENUE, A
DISTANCE OF 119.66 FEET TO THE POINT OF BEGINNING, BEING A PORTION OF LOT 5, BLOCK 6, AS
DESIGNATED AND DELINEATED UPON A MAP ENTITLED “MAP OF THE RE‐SUBDIVISION OF BLOCK 6,
SUNNYSIDE ADDITION, MAYFIELD, CAL, AS RECORDED IN BOOK "K" OF MAPS, PAGE 47," WHICH SAID
MAP WAS FILED ON JANUARY 04, 1906, FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER
OF SANTA CLARA COUNTY, CALIFORNIA, IN BOOK "L" OF MAPS AT PAGE 15.
THE HEREINABOVE DESCRIBED PARCEL ALSO BEING THE SAME AS THAT CONVEYED BY ANABELLE DIAL
FAIRFIELD AND BARTON W. FAIRFIELD TO THE SOUTHERN PACIFIC COMPANY AND DESCRIBED IN DEED
DATED AUGUST 24, 1911 AND RECORDED SEPTEMBER 25, 1911 IN BOOK 376 OF DEEDS, AT PAGE 90.
PARCEL THREE :
BEGINNING AT A POINT IN THE NORTHWESTERLY LINE OF FOREST AVENUE, WHICH POINT LIES
SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE OF FOREST AVENUE, A DISTANCE OF 105.60 FEET
FROM THE INTERSECTION OF THE SOUTHWESTERLY LINE OF THIRD STREET AND THE NORTHWESTERLY
LINE OF FOREST AVENUE;
THENCE NORTHWESTERLY AT RIGHT ANGLES TO SAID NORTHWESTERLY LINE OF FOREST AVENUE, A
DISTANCE OF 119.66 FEET TO A POINT;
THENCE SOUTHWESTERLY AT RIGHT ANGLES AND PARALLEL WITH THE SAID NORTHWESTERLY LINE OF
FOREST AVENUE, A DISTANCE OF 50 FEET TO A POINT;
THENCE AT RIGHT ANGLES SOUTHEASTERLY AND PARALLEL WITH THE SAID SOUTHWESTERLY LINE OF
THIRD STREET, A DISTANCE OF 119.66 FEET TO A POINT IN THE NORTHWESTERLY LINE OF SAID FOREST
AVENUE;
THENCE NORTHEASTERLY ALONG SAID NORTHWESTERLY LINE OF FOREST AVENUE, A DISTANCE OF 50
FEET TO THE POINT OF BEGINNING.
BEING ALL OF LOT 6 IN BLOCK 6 AS DESIGNATED AND DELINEATED UPON A CERTAIN MAP ENTITLED
"MAP OF THE RE‐SUBDIVISION OF BLOCK 6, SUNNYSIDE ADDITION, MAYFIELD, CALIFORNIA, AS
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RECORDED IN BOOK "K" OF MAPS AT PAGE 47," WHICH SAID MAP WAS RECORDED ON JANUARY 04,
1906 IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, IN BOOK L OF MAPS AT PAGE 15.
THE HEREINABOVE DESCRIBED PARCEL ALSO BEING THE SAME AS THAT CONVEYED BY W.W.
JOHNSTONE, ET UX, TO SOUTHERN PACIFIC RAILROAD COMPANY IN DEED DATED AUGUST 18, 1911,
AND RECORDED SEPTEMBER 25, 1911 IN BOOK 376 OF DEEDS, AT PAGE 88, RECORDS OF SAID COUNTY.
PARCEL FOUR :
BEGINNING AT A POINT IN THE NORTHWESTERLY LINE OF FOREST AVENUE, DISTANT THEREON 55.60
FEET SOUTHWESTERLY FROM THE INTERSECTION OF THE SOUTHWESTERLY LINE OF THIRD STREET AND
THE NORTHWESTERLY LINE OF FOREST AVENUE;
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE OF FOREST AVENUE, A DISTANCE OF 50
FEET TO A POINT;
THENCE AT A RIGHT ANGLE NORTHWESTERLY, A DISTANCE OF 119.66 FEET TO A POINT;
THENCE AT RIGHT ANGLES NORTHEASTERLY AND PARALLEL WITH THE SAID NORTHWESTERLY LINE OF
FOREST AVENUE, A DISTANCE OF 50 FEET TO A POINT;
THENCE AT A RIGHT ANGLE SOUTHEASTERLY AND PARALLEL WITH THE SAID SOUTHWESTERLY LINE OF
THIRD STREET, A DISTANCE OF 119.66 FEET TO THE POINT OF BEGINNING.
BEING ALL OF LOT 7 IN BLOCK 6 AS DESIGNATED AND UPON A CERTAIN MAP ENTITLED "MAP OF THE RE‐
SUBDIVISION OF BLOCK 6, SUNNYSIDE ADDITION, MAYFIELD, CALIFORNIA, AS RECORDED IN BOOK "K"
OF MAPS AT PAGE 47," WHICH SAID MAP WAS RECORDED ON JANUARY 04, 1906 IN THE OFFICE OF THE
COUNTY RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, IN BOOK L OF MAPS AT
PAGE 15.
THE HEREINABOVE DESCRIBED PARCEL ALSO BEING THE SAME AS THAT CONVEYED BY J.F. CLARKE, ET
UX, TO SOUTHERN PACIFIC RAILROAD COMPANY IN DEED DATED AUGUST 24, 1911, AND RECORDED
SEPTEMBER 25, 1911 IN BOOK 376 OF DEEDS, AT PAGE 95, RECORDS OF SAID COUNTY.
PARCEL FIVE :
BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHWESTERLY LINE OF FOREST AVENUE AND
THE SOUTHWESTERLY LINE OF THIRD STREET;
THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY LINE OF FOREST AVENUE, A DISTANCE OF
55.60 FEET TO A POINT;
THENCE NORTHWESTERLY AT RIGHT ANGLES A DISTANCE OF 82 FEET TO A POINT;
THENCE IN A NORTHEASTERLY DIRECTION ON A CURVE TO THE RIGHT WITH A RADIUS OF 492.276 FEET,
A DISTANCE OF 61.12 FEET, MORE OR LESS, TO A POINT IN THE SOUTHWESTERLY LINE OF THIRD STREET;
THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY LINE OF THIRD STREET, A DISTANCE OF 56.6
FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
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BEING A PORTION OF LOT 8 IN BLOCK 6 AS DESIGNATED AND DELINEATED UPON A CERTAIN MAP
ENTITLED "MAP OF THE RE‐SUBDIVISION OF BLOCK 6, SUNNYSIDE ADDITION, MAYFIELD, CALIFORNIA,
AS RECORDED IN BOOK "K" OF MAPS AT PAGE 47,” WHICH SAID MAP WAS RECORDED ON JANUARY 04,
1906 IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, IN BOOK L OF MAPS AT PAGE 15.
THE HEREINABOVE DESCRIBED PARCEL ALSO BEING THE SAME AS THAT CONVEYED BY B.W. FAIRFIELD,
ET UX, TO SOUTHERN PACIFIC RAILROAD COMPANY IN DEED DATED AUGUST 24, 1911, AND RECORDED
SEPTEMBER 25, 1911 IN BOOK 376 OF DEEDS, AT PAGE 93, RECORDS OF SAID COUNTY.
PARCEL SIX :
ALL THAT CERTAIN REAL PROPERTY IN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA AS
GRANTED TO SOUTHERN PACIFIC COMPANY BY DEED WHICH RECORDED IN THE OFFICE OF THE
RECORDER OF THE COUNTY OF SANTA CLARA ON SEPTEMBER 25, 1911 IN BOOK 376 OF DEEDS, PAGE 92
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHWESTERLY LINE OF FOREST AVENUE, WHICH POINT LIES 560.55
FEET DISTANT THEREON NORTHEASTERLY FROM THE NORTHEASTERLY LINE OF FIRST STREET;
THENCE NORTHWESTERLY AND PARALLEL WITH THE SAID NORTHEASTERLY LINE OF FIRST STREET, A
DISTANCE OF 95.26 FEET TO A POINT IN THE EASTERLY LINE OF THE SAN JOSE‐LOS GATOS INTERURBAN
RAILWAY COMPANY’S RIGHT OF WAY;
THENCE SOUTHERLY ALONG SAID EASTERLY RIGHT OF WAY LINE AND FOLLOWING THE CURVATURE
THEREOF, A DISTANCE OF 120 FEET, MORE OR LESS, TO A POINT DISTANT 450 FEET NORTHEASTERLY
FROM AND AT RIGHT ANGLES TO SAID NORTHEASTERLY LINE OF FIRST STREET;
THENCE SOUTHEASTERLY AND PARALLEL TO SAID NORTHEASTERLY LINE OF FIRST STREET, A DISTANCE
OF 46.50 FEET, MORE OR LESS, TO A POINT IN THE WESTERLY LINE OF FOREST AVENUE;
THENCE AT RIGHT ANGLES NORTHEASTERLY ALONG SAID WESTERLY LINE OF FOREST AVENUE, A
DISTANCE OF 110.55 FEET TO THE POINT OF BEGINNING; BEING A PORTION OF LOTS 10 AND 11 IN
BLOCK 5 OF THE SUNNYSIDE ADDITION TO THE TOWN OF MAYFIELD, RECORDED IN BOOK K AT PAGE 47
OF MAPS IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA.
EXCEPTING FROM PARCELS TWO, THREE, FOUR, FIVE AND SIX ABOVE, ALL THAT PORTION OF SAID LAND
AS GRANTED TO SUTTER PACKING COMPANY BY DEED DATED OCTOBER 18, 1940 AND RECORDED IN
THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA ON JANUARY 14, 1941 IN BOOK 1022,
OFFICIAL RECORDS, PAGES 1 AND 2 AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE NORTHWESTERLY LINE OF FOREST AVENUE AND THE
SOUTHWESTERLY LINE OF THIRD STREET, AS SAID AVENUE AND STREET ARE SHOWN UPON A MAP
ENTITLED, "MAP OF THE RE‐SUBDIVISION OF BLOCK NO. 6, SUNNYSIDE ADDITION, MAYFIELD,
CALIFORNIA, AS RECORDED IN BOOK "K" OF MAPS, AT PAGE 47," WHICH MAP WAS FILED FOR RECORD
IN THE OFFICE OF THE COUNTY RECORDER OF SANTA CLARA COUNTY ON JANUARY 04, 1906, IN BOOK
"L” OF MAPS, AT PAGE 15;
THENCE NORTHWESTERLY ALONG THE SOUTHWESTERLY LINE OF THIRD STREET AS SAME IS SHOWN ON
ABOVE DESCRIBED MAP 0.70 FEET TO THE POINT OF BEGINNING OF THE PARCEL OF LAND TO BE
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DESCRIBED, SAID POINT BEING DISTANT 14.50 FEET SOUTHEASTERLY, MEASURED RADIALLY, FROM THE
CENTER LINE OF AN EXISTING WYE TRACK OF THE SOUTHERN PACIFIC COMPANY;
THENCE SOUTHWESTERLY ON A CURVE CONCAVE TO THE LEFT, HAVING A RADIUS OF 435.70 FEET,
(TANGENT TO SAID CURVE AT THE POINT OF BEGINNING DEFLECTS 57° 34' 24" TO THE LEFT FROM SAID
SOUTHWESTERLY LINE OF THIRD STREET) AN ARC DISTANCE OF 329.606 FEET TO A POINT ON THE
COMMON BOUNDARY LINE BETWEEN LOTS 9 AND 10 IN BLOCK 5 OF THE SUNNYSIDE ADDITION TO THE
TOWN OF MAYFIELD ACCORDING TO THE MAP THEREOF RECORDED IN THE OFFICE OF THE COUNTY
RECORDER OF SANTA CLARA COUNTY, CALIFORNIA, IN BOOK "K" OF MAPS, AT PAGE 47, SAID POINT
BEING DISTANT 14.50 FEET SOUTHEASTERLY MEASURED RADIALLY FROM THE CENTER LINE OF SAID
EXISTING WYE TRACK;
THENCE SOUTHEASTERLY ALONG SAID COMMON BOUNDARY LINE BETWEEN SAID LOTS 9 AND 10 AND
PARALLEL TO SAID SOUTHWESTERLY LINE OF THIRD STREET 20.75 FEET TO THE MOST WESTERLY
CORNER OF THE PROPERTY DESCRIBED IN THE DEED FROM SOUTHERN PACIFIC RAILROAD COMPANY,
AND SOUTHERN PACIFIC COMPANY TO SUTTER PACKING COMPANY DATED APRIL 15, 1937 AND
RECORDED SEPTEMBER 22, 1937 IN BOOK 844, PAGE 139, OFFICIAL RECORDS IN THE OFFICE OF THE
COUNTY RECORDER, SANTA CLARA COUNTY;
THENCE NORTHEASTERLY, FOLLOWING THE BOUNDARY LINE AS DESCRIBED IN SAID DEED AND
PARALLEL TO THE ABOVE DESCRIBED NORTHWESTERLY LINE OF FOREST AVENUE 60.00 FEET TO THE
MOST NORTHERLY CORNER OF PROPERTY DESCRIBED IN SAID DEED;
THENCE SOUTHEASTERLY, FOLLOWING THE BOUNDARY LINE AS DESCRIBED IN SAID DEED AND
PARALLEL TO THE ABOVE DESCRIBED SOUTHWESTERLY LINE OF THIRD STREET 40.00 FEET TO THE MOST
EASTERLY CORNER OF THE PROPERTY DESCRIBED IN SAID DEED, SAID POINT BEING ON THE SAID
NORTHWESTERLY LINE OF FOREST AVENUE;
THENCE SOUTHWESTERLY FOLLOWING THE BOUNDARY LINE AS DESCRIBED IN SAID DEED AND ALONG
SAID NORTHWESTERLY LINE OF FOREST AVENUE 60.00 FEET TO THE MOST SOUTHERLY CORNER OF THE
PROPERTY DESCRIBED IN SAID DEED, SAID CORNER BEING ON THE ABOVE DESCRIBED COMMON
BOUNDARY LINE BETWEEN LOTS 9 AND 10;
THENCE SOUTHEASTERLY PARALLEL TO SAID SOUTHWESTERLY LINE OF THIRD STREET, 15.00 FEET TO A
POINT;
THENCE NORTHEASTERLY, PARALLEL TO AND DISTANT 15.00 FEET SOUTHEASTERLY, MEASURED AT
RIGHT ANGLES, FROM SAID NORTHWESTERLY LINE OF FOREST AVENUE 110.55 FEET TO A POINT;
THENCE SOUTHEASTERLY, PARALLEL TO SAID SOUTHWESTERLY LINE OF THIRD STREET 15.00 FEET TO A
POINT;
THENCE NORTHEASTERLY PARALLEL TO AND DISTANT 30.00 FEET SOUTHEASTERLY MEASURED AT RIGHT
ANGLES FROM SAID NORTHWESTERLY LINE OF FOREST AVENUE 205.60 FEET TO A POINT ON SAID
SOUTHWESTERLY LINE OF THIRD STREET;
THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE OF THIRD STREET 30.70 FEET TO THE
POINT OF BEGINNING.
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ALSO EXCEPTING FROM PARCEL SIX ABOVE ALL THAT PORTION OF SAID LAND AS GRANTED TO SUTTER
PACKING COMPANY BY DEED RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA
CLARA ON SEPTEMBER 22, 1937 IN BOOK 844, OFFICIAL RECORDS, PAGE 139 AND 140 AND BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE NORTHWESTERLY LINE OF FOREST AVENUE AND THE
SOUTHWESTERLY LINE OF THIRD STREET AS SAID AVENUE AND STREET ARE SHOWN UPON A MAP
ENTITLED, "MAP OF THE RE‐SUBDIVISION OF BLOCK NO. 6, SUNNYSIDE ADDITION, MAYFIELD,
CALIFORNIA, AS RECORDED IN BOOK “K" OF MAPS, AT PAGE 47," WHICH MAP WAS FILED FOR RECORD
IN THE OFFICE OF THE COUNTY RECORDER OF SANTA CLARA COUNTY ON JANUARY 04, 1906, IN "L" OF
MAPS, AT PAGE 15;
THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE OF FOREST AVENUE AS SAME IS SHOWN
ON ABOVE DESCRIBED MAP 256.15 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUING SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE OF FOREST AVENUE AS
SAME IS SHOWN ON ABOVE DESCRIBED MAP 60.00 FEET TO A POINT ON THE COMMON BOUNDARY
LINE BETWEEN LOTS 9 AND 10 IN BLOCK 5 OF THE SUNNYSIDE ADDITION TO THE TOWN OF MAYFIELD
ACCORDING TO THE MAP THEREOF RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SANTA
CLARA COUNTY, CALIFORNIA IN BOOK "K" OF MAPS AT PAGE 47;
THENCE NORTHWESTERLY ALONG SAID COMMON BOUNDARY LINE BETWEEN SAID LOTS 9 AND 10 AND
PARALLEL TO SAID SOUTHWESTERLY LINE OF THIRD STREET 40.00 FEET TO A POINT;
THENCE NORTHEASTERLY PARALLEL TO SAID NORTHWESTERLY LINE OF FOREST AVENUE AS SAME IS
SHOWN ON ABOVE DESCRIBED MAP 60.00 FEET TO A POINT;
THENCE SOUTHEASTERLY PARALLEL TO SAID SOUTHWESTERLY LINE OF THIRD STREET 40.00 FEET TO THE
POINT OF BEGINNING.
PARCEL SEVEN :
BEGINNING AT A POINT AT OR ABOUT ENGINEER’S STATION "B" 459 + 24.95 OF THE ADOPTED
LOCATION OF THE SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY, SAID POINT BEING IN THE
NORTHERLY BOUNDARY LINE OF FIRST STREET AND DISTANT SOUTH 73° 57' EAST 179.49 FEET FROM
THE POINT OF INTERSECTION OF THE SAID NORTHERLY LINE OF FIRST STREET WITH THE EASTERLY LINE
OF PALM AVENUE AND RUNNING THENCE SOUTH 73° 57' EAST ALONG THE SAID NORTHERLY LINE OF
FIRST STREET A DISTANCE OF 40 FEET TO A POINT;
THENCE NORTH 16° 03’ EAST, A DISTANCE OF 24. 55 FEET TO A POINT;
THENCE TO THE LEFT BY A CURVE OF VARYING RADIUS A DISTANCE OF 336.91 FEET TO A POINT;
THENCE TO THE LEFT BY A CURVE OF 995.04 FEET RADIUS A DISTANCE OF 208.44 FEET TO A POINT IN
THE NORTHERLY BOUNDARY LINE OF BLOCK 5, OF THE SUNNYSIDE ADDITION TO THE TOWN OF
MAYFIELD;
THENCE NORTH 73° 57' WEST ALONG THE SAID NORTHERLY BOUNDARY LINE OF BLOCK 5, A DISTANCE
OF 86.84 FEET TO A POINT;
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THENCE SOUTHERLY BY A CURVE OF 915.04 FEET RADIUS ALONG A LINE CONCENTRIC TO AND DISTANT
40 FEET FROM THE ADOPTED LOCATION OF THE SAID SAN JOSE‐LOS GATOS INTERURBAN RAILWAY
COMPANY, A DISTANCE OF 224.10 FEET TO A POINT;
THENCE SOUTHERLY BY A CURVE OF VARYING RADIUS ALONG A LINE PARALLEL TO AND DISTANT 40
FEET FROM THE ADOPTED LOCATION OF THE SAID SAN JOSE‐LOS GATOS INTERURBAN RAILWAY
COMPANY, A DISTANCE OF 324.09 FEET TO A POINT;
THENCE SOUTH 16° 03' WEST, A DISTANCE OF 24.55 FEET TO A POINT IN THE NORTHERLY LINE OF FIRST
STREET;
THENCE SOUTH 73° 57' EAST ALONG THE SAID NORTHERLY LINE OF FIRST STREET, A DISTANCE OF 40
FEET TO THE POINT OF BEGINNING; ALL BEARINGS MAGNETIC.
THE ABOVE DESCRIBED REAL PROPERTY BEING A STRIP OF LAND 80 FEET WIDE, PARALLEL TO AND
DISTANT 40 FEET ON EACH SIDE OF THE ADOPTED LOCATION OF THE SAN JOSE‐LOS GATOS INTERURBAN
RAILWAY COMPANY AND BEING A PART OF LOTS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 AND 15 OF
BLOCK 5 OF THE SUNNYSIDE ADDITION TO THE TOWN OF MAYFIELD, SANTA CLARA COUNTY, STATE OF
CALIFORNIA, BEING A RESUBDIVISION OF THE "LAMBERT TRACT".
THE HEREINABOVE DESCRIBED PARCEL ALSO BEING THE SAME AS THAT CONVEYED BY PERCY BEAMISH
TO THE SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY AND DESCRIBED FIRSTLY IN DEED
DATED NOVEMBER 27, 1905 AND RECORDED JUNE 30, 1909 IN BOOK 348 OF DEEDS, AT PAGE 280.
PARCEL EIGHT:
BEGINNING AT A POINT AT OR ABOUT ENGINEER’S STATION "B" 464 + 95.7 OF THE ADOPTED LOCATION
OF THE SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY, SAID POINT BEING IN THE
SOUTHWESTERLY BOUNDARY LINE OF THE LAND OF BARTON W. FAIRFIELD AND DISTANT
SOUTHEASTERLY 98.8 FEET FROM THE INTERSECTION OF THE SAID SOUTHWESTERLY BOUNDARY LINE
WITH THE SOUTHEASTERLY LINE OF PALM AVENUE;
THENCE SOUTHEASTERLY ALONG THE SAID SOUTHWESTERLY BOUNDARY LINE A DISTANCE OF 20.86
FEET TO A POINT;
THENCE NORTHEASTERLY ALONG THE LINE PARALLEL TO AND DISTANT SOUTHEASTERLY 119.66 FEET
FROM THE SOUTHEASTERLY LINE OF PALM AVENUE, A DISTANCE OF 51.3 FEET TO A POINT;
THENCE TO THE LEFT BY A CURVE OF 995.04 FEET RADIUS, A DISTANCE OF 176.4 FEET TO A POINT IN
THE SOUTHWESTERLY LINE OF THIRD STREET;
THENCE NORTHWESTERLY ALONG THE SAID SOUTHWESTERLY LINE OF THIRD STREET A DISTANCE OF
31.2 FEET TO THE INTERSECTION OF THE SAID SOUTHWESTERLY LINE OF THIRD STREET WITH THE
SOUTHEASTERLY LINE OF PALM AVENUE;
THENCE SOUTHWESTERLY AT RIGHT ANGLES ALONG THE SAID SOUTHEASTERLY LINE OF PALM AVENUE,
A DISTANCE OF 98.1 FEET TO A POINT;
THENCE BY A CURVE OF 915.04 FEET RADIUS ALONG A LINE CONCENTRIC TO AND DISTANT 40 FEET
FROM THE ADOPTED LOCATION OF THE SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY, A
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DISTANCE OF 119.2 FEET TO A POINT IN THE SOUTHWESTERLY BOUNDARY LINE OF THE SAID LAND OF
BARTON W. FAIRFIELD;
THENCE SOUTHEASTERLY ALONG THE SAID SOUTHWESTERLY BOUNDARY LINE, A DISTANCE OF 43.58
FEET TO THE POINT OF BEGINNING.
THE ABOVE DESCRIBED REAL PROPERTY BEING A STRIP OF LAND 80 FEET WIDE, PARALLEL TO AND
DISTANT 40 FEET ON EACH SIDE OF THE ADOPTED LOCATION OF THE SAN JOSE‐LOS GATOS INTERURBAN
RAILWAY COMPANY AND BEING A PART OF LOT 1, IN BLOCK 6 OF THE SUNNYSIDE ADDITION TO THE
TOWN OF MAYFIELD, AS SAID LOT AND BLOCK ARE SO NUMBERED AND DESIGNATED UPON A MAP
ENTITLED "MAP OF SUNNYSIDE ADDITION" TO THE TOWN OF MAYFIELD, SANTA CLARA COUNTY, STATE
OF CALIFORNIA, AS RECORDED IN BOOK "K" OF MAPS AT PAGE 47, RECORDS OF SANTA CLARA COUNTY.
THE HEREINABOVE DESCRIBED ALSO BEING THE SAME AS THAT CONVEYED BY BARTON W. FAIRFIELD TO
THE SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY AND DESCRIBED IN DEED DATED
NOVEMBER 28, 1905 AND RECORDED JUNE 30, 1909 IN BOOK 345 OF DEEDS, AT PAGE 269.
PARCEL NINE:
ALL THAT PORTION OF LOTS 1, 2, 3, 4, 5, 6 AND 7 IN BLOCK 5, LYING NORTHWESTERLY OF THE
NORTHWESTERLY LINE OF THAT CERTAIN 1.049 ACRE TRACT SECONDLY DESCRIBED IN THE DEED FROM
PERCY BEAMISH TO SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY, A CORPORATION, DATED
NOVEMBER 27, 1905 AND RECORDED JUNE 30, 1909 IN BOOK 348 OF DEEDS, AT PAGE 280, SANTA
CLARA COUNTY RECORDS, AS SAID LOTS AND BLOCK ARE SHOWN UPON THAT CERTAIN MAP ENTITLED
"MAP OF SUNNYSIDE ADDITION TO THE TOWN OF MAYFIELD", WHICH MAP WAS FILED FOR RECORD IN
THE OFFICE OF RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON FEBRUARY 28,
1905 IN BOOK K OF MAPS, PAGE 47.
PARCEL TEN:
THE NORTHEASTERLY 24.17 FEET, FRONT AND REAR MEASUREMENTS OF LOT 2, IN BLOCK 9, AS SHOWN
ON THAT CERTAIN MAP ENTITLED "MAP NO. 2 SUNNYSIDE ADDITION TO THE TOWN OF MAYFIELD,
SANTA CLARA CO., CALIFORNIA", WHICH SAID MAP WAS FILED FOR RECORD IN THE OFFICE OF THE
RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON DECEMBER 19, 1905 IN BOOK
"L" OF MAPS, AT PAGE 12.
PARCEL ELEVEN:
PORTION OF LOTS 1, 2, 3 AND 8, AS SHOWN UPON THAT CERTAIN MAP ENTITLED, "MAP OF THE RE‐
SUBDIVISIONS OF BLOCK NO. 6 SUNNYSIDE ADDITION", WHICH MAP WAS FILED FOR RECORD IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON JANUARY 4,
1906 IN BOOK L OF MAPS, PAGE 15, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF THIRD STREET AT THE EASTERLY COMMON
CORNER FOR LOTS 1 AND 8, AS SAID STREET AND LOTS ARE SHOWN UPON THE MAP ABOVE REFERRED
TO;
RUNNING THENCE NORTHWESTERLY ALONG THE SAID SOUTHWESTERLY LINE OF THIRD STREET, FOR A
DISTANCE OF 88.46 FEET TO THE INTERSECTION THEREOF WITH THE SOUTHEASTERLY LINE OF THAT
CERTAIN PARCEL OF LAND DESCRIBED IN THE DEED FROM BARTON W. FAIRFIELD, TO SAN JOSE‐LOS
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GATOS INTERURBAN RAILWAY COMPANY, A CORPORATION, DATED NOVEMBER 28, 1905, RECORDED
JUNE 30, 1909 IN BOOK 345 OF DEEDS AT PAGE 269; SANTA CLARA COUNTY RECORDS;
RUNNING THENCE SOUTHWESTERLY ALONG THE SOUTHEASTERLY LINE OF THE LAND SO DESCRIBED IN
THE DEED TO SAN JOSE‐LOS GATOS INTERURBAN RAILWAY COMPANY, A CORPORATION, ON A CURVE
TO THE RIGHT, WITH A RADIUS OF 995.04 FEET FOR A DISTANCE OF 176.40 FEET TO THE INTERSECTION
THEREOF, WITH THE DIVIDING LINE BETWEEN LOTS 3 AND 6, AS SAID LOTS ARE SHOWN UPON THE MAP
ABOVE REFERRED TO;
RUNNING THENCE NORTHEASTERLY ALONG THE DIVIDING LINE BETWEEN SAID LOTS 3 AND 6, AND 2
AND 7, OF SAID SUBDIVISION FOR A DISTANCE OF 98.70 FEET TO THE COMMON CORNER FOR SAID LOTS
1, 2, 7 AND 8;
RUNNING THENCE SOUTHEASTERLY ALONG THE DIVIDING LINE BETWEEN SAID LOTS 7 AND 8, FOR A
DISTANCE OF 37.66 FEET TO THE INTERSECTION THEREOF WITH THE NORTHWESTERLY LINE OF THAT
CERTAIN PARCEL OF LAND DESCRIBED IN THE DEED FROM BARTON W. FAIRFIELD, ET UX, TO SOUTHERN
PACIFIC RAILROAD COMPANY, A CORPORATION, DATE AUGUST 24, 1911 AND RECORDED SEPTEMBER
25, 1911 IN BOOK 376 OF DEEDS, AT PAGE 93, SANTA CLARA COUNTY RECORDS;
RUNNING THENCE IN A NORTHEASTERLY DIRECTION ON A CURVE TO THE RIGHT WITH A RADIUS OF
492.276 FEET, FOR A DISTANCE OF 61.12 FEET, MORE OR LESS, TO A POINT IN THE SAID
SOUTHWESTERLY LINE OF THIRD STREET; RUNNING THENCE NORTHWESTERLY ALONG SAID LAST
NAMED LINE, 63.06 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE NORTHEASTERLY 11.00 FEET OF PREMISES AS CONDEMNED FOR STREET
PURPOSES IN THAT CERTAIN DECREE IN CONDEMNATION ENTERED ON NOVEMBER 26, 1951, IN THE
SUPERIOR COURT IN AND FOR THE COUNTY OF SANTA CLARA, ENTITLED, "CITY OF PALO ALTO, A
MUNICIPAL CORPORATION, PLAINTIFF VS. S. M. CUTHBERTSON, ET AL, DEFENDANTS", CASE NO. 80491,
A CERTIFIED COPY OF WHICH DECREE WAS RECORDED NOVEMBER 26, 1951 IN BOOK 2322 OFFICIAL
RECORDS, PAGE 108.
AS SHOWN ON EXHIBIT “B” ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
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EVCHARGINGONLYEVCHARGINGONLY
EVCHARGINGONLYEVCHARGINGONLY
NOPARKING EVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLY
EVCHARGINGONLY
EVCHARGINGONLYEVCHARGINGONLY
EVCHARGINGONLY
EVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLY
EVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLY
EVCHARGINGONLY EVCHARGINGONLY
EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY
EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLYEVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLYEVCHARGINGONLY EVCHARGINGONLY EVCHARGINGONLY
NOPARKINGNOPARKING EVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLYEVCHARGINGONLY EVCHARGINGONLY
VAN EVCHARGINGONLYNOPARKING
NOPARKINGNOPARKING
PA
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LAMBERT AVENUE
AS
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OLIVE AVENUE
PORTAGE AVENUE
MATADE
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ACACIA AVENUE
ASH STREET
BIRCH STREET
N
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OF
JOB
DR. BY
SCALE
DATE
SHEET NO.
3350 Scott Boulevard, Building 22
Santa Clara, California 95054
Phone: (408) 727-6665
www.kierwright.com
PORTAGE DEVELOPMENT SITE
PALO ALTO CALIFORNIA
10/26/2023
N/A
MC
A10128-7
1 1
Exhibit B: Plat
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EXHIBIT C
SCHEDULE OF PARTIES’ OBLIGATIONS AND
REMEDIES FOR DEFAULT OR BREACH
# Deadline Owner and City Phasing Obligations
and Remedies
1 Ongoing from Effective Date to
completion of Townhomes.
Owner to provide regular updates to the
City regarding the status of the Project,
permitting, construction and marketing
efforts, and City to provide the Owner
with regular updates regarding the status
of any permits or approvals under
review.
Prior to Physical Work Commencing.
2 Within 90 Days of Effective Date Owner has prepared and submitted
applications, including all applicable
application fees, for the necessary
ministerial permits for Phase A as
described in the Project Approvals,
including (i) relocation of the City’s
above ground powerline, (ii) the Parking
Garage, (iii) the rehabilitation/renovation
of the Remaining Cannery (including the
Retail/Display and Outdoor Seating
Area), and (iv) demolition of the portion
of the Cannery (the “Phase A Work”)
consistent with this Agreement and the
Approvals. City’s exclusive remedy for
an Owner’s failure to meet this deadline
for this Section is termination of the
Agreement and Approvals.
The City will accept and process such
permit applications expeditiously and in
good faith pursuant to Section
6.1. Owner’s exclusive remedy for the
City’s Default in processing is (1)
specific performance and (2) an
extension to this and all remaining
deadlines in this schedule.
3 Within 90 days of the City issuance of
a permit ready letter(s) for all Phase
Owner has Commenced Construction on
the Phase A Work. For the purposes of
this Section, “Commenced Construction”
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# Deadline Owner and City Phasing Obligations
and Remedies
A work (upon Owner’s payment of all
applicable fees) to Owner.
means the Owner has obtained all
necessary ministerial permits (including
the payment of all applicable fees),
entered a construction contract and
started physical grading and/or site
preparation work related to the Phase A
Work. City’s exclusive remedy for an
Owner’s failure to meet this deadline for
this Section is termination of the
Agreement and Approvals.
Once Owner Commences Construction
on the Phase A Work, as long as the
Owner is in good faith compliance with
all applicable permits related to such
work, the City will no longer have the
right to terminate the Approvals (as
opposed to the Agreement). In the event
Owner Abandons the Phase A Work, the
City retains the right to terminate both
the Agreement and the Approvals. For
the purposes of this Section “Abandons”
means the Owner has stopped all work
for more than 180 consecutive days
without a good faith reason, extension or
Event of Force Majeure.
The City will issue such permits, subject
to Owner’s submittal of all required
plans, information and fees,
expeditiously and in good faith pursuant
to Section 6.1. Owner’s exclusive
remedy for the City’s Default in issuing
permits requested by Owner is (1)
specific performance and (2) an
extension to this and all remaining
deadlines in this schedule.
After Physical Work Commences, but Prior to Recordation Final Map Creating
Townhome Parcel and BMR/Park Dedication Parcel.
4 24 months from Commencement of
Construction of the Phase A Work.
Owner has completed the Parking
Garage (meaning the City has issued a
final inspection and cars are allowed to
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# Deadline Owner and City Phasing Obligations
and Remedies
park in the structure in the normal
course) and completed Demolition of the
applicable portion of the Cannery. For
the purposes of this Section
“Demolition” means either that (i) the
portion of the building is removed so that
there is no longer a building over a new
property line creating the Townhome
Parcel or (ii) the City approves the
recordation of the Final Map creating the
Townhome Parcel with the portion of the
Cannery to remain vacant and
unoccupied on the property line until
issuance of build permit for the
Townhomes. City’s exclusive remedies
for an Owner’s failure to meet this
deadline for this Section are (1) specific
performance; (2) termination of the
Agreement, and/or (3) the City may
withhold occupancy permits for New
R&D uses in the Remaining Cannery,
and/or Park Building. For the purpose of
this Section “New” means a use that is
not subject to an existing lease as of the
Effective Date. If a New R&D use has
occupied the Park Building (subject to
the required notices to such tenant of the
requirements of this Agreement), the
City also has the remedy to require such
user to cease any R&D use of the Park
Building within three (3) years of the
tenant’s initial occupancy.
The City will schedule inspections and
issue final inspections expeditiously and
in good faith pursuant to Section
6.1. Owner’s exclusive remedy for the
City’s Default in issuing final
inspections is (1) specific performance
and (2) an extension to this and all
remaining deadlines in this schedule
pursuant.
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# Deadline Owner and City Phasing Obligations
and Remedies
5 Within 60 days of City’s issuance of
final certificates of occupancy for all
of the Phase A Work (including the
Demolition of the portion of the
Cannery Building as defined above).
Owner has submitted a request, with all
supporting documentation and applicable
fees, to the City to record a Final Map
that includes both the creation of the
Townhome Parcel and the BMR/Park
Dedication Parcel consistent with this
Agreement and the Approvals. City’s
exclusive remedies for an Owner’s
failure to meet this deadline for this
Section are (1) specific performance; (2)
termination of the Agreement, and/or (3)
the City may withhold occupancy
permits for New R&D uses in the
Remaining Cannery and/or Park
Building. For the purpose of this Section
“New” means a use that is not subject to
an existing lease as of the Effective Date.
If a New R&D use has occupied the Park
Building (subject to the required notices
to such tenant of the requirements of this
Agreement), the City also has the
remedy to require such user to cease any
R&D use of the Park Building within
three (3) years of the tenant’s initial
occupancy.
The City will process such Final Map in
expeditiously and in good faith pursuant
to Section 6.1. The City will not
withhold recordation of the Final Map
for acceptance of the BMR/Park
Dedication Parcel if the Final Map is
otherwise ready to record consistent with
this Agreement and the
Approvals. Owner’s exclusive remedy
for the City’s Default in processing is (1)
specific performance and (2) an
extension to this and all remaining
deadlines in this schedule.
After Recordation of Final Map Creating Townhome Parcel and BMR/Park
Dedication Parcel, but Prior to Acceptance by City and/or Completion of
Townhomes.
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# Deadline Owner and City Phasing Obligations
and Remedies
6 N/A Once Owner has recorded the Final Map
creating the Townhome Parcel and
BMR/Park Dedication Parcel, including
an offer on the Final Map to dedicate the
BMR/Park Dedication Parcel to the City
in fee, the City may not withhold
demolition permits, grading permits (if
not previously issued), building permits,
occupancy permits, permits for offsite
improvements, or any other post-
discretionary entitlements development
permits under this Agreement related to
the Remaining Cannery, Park Building,
Ash Building or Townhomes. The
City’s exclusive remedies are (1)
termination of this Agreement (but not
the Approvals) or (2) specific
performance.
The City will accept the offer of
dedication expeditiously and in good
faith pursuant to Section 6.2. Owner’s
exclusive remedy for the City’s Default
in accepting the offer of dedication is (1)
specific performance and (2) an
extension to all remaining deadlines in
this schedule.
After BMR/Park Dedication Accepted by City but Prior to Completion of
Townhomes.
7 End of Term The City and Owner acknowledge the
Townhomes will be constructed at the
time dictated by the market, but in the
event the Townhomes have not been
constructed by the end of the Term,
Owner will pay the full amount of the
Public Benefit Fee to the City pursuant
to Section 5.8(b). The City’s exclusive
remedy for an Owner Default in the
payment of the Public Benefit fee is
specific performance.
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In addition to notice and opportunity to cure as provided in Section 9.2, extensions by formal
written amendment as provided in Section 10.2, and Force Majeure, the deadlines in this Exhibit
C may be extended by each or a combination of the following:
• City Extension: The deadlines set forth in this Exhibit C are subject to a ninety (90) day
extension, provided (1) that the Owner submits a written request for an extension prior to
the deadline which shall include the rationale for the request and summary of the actions
Owner has taken to satisfy the obligation prior to the deadline and (2) the extension request
is approved by the City Manager, which such approval shall not be unreasonably withheld
or delayed.
• Owner Extension. The deadlines set forth in this Exhibit C are also subject to a maximum
of six extensions of 30 days each (no more than 180 days) upon written notice to City and
an increase of $25,000 for each such 30-day extension shall be added to the Public Benefit
Fee.
• City Review: The deadlines set forth in this Exhibit C are each contingent upon the City
reviewing and providing comments or approving the ministerial permit and improvement
plans submitted by Owner within thirty (30) days of submission of complete plans. This
30-day period shall commence anew each time that Owner submits revised plans in
response to City comments on the prior version of the permit or improvement
plans. Owner shall be solely responsible for submitting complete plans that satisfy all code
and City requirements. Owner shall be responsible for payment of all required City
building permit fees including costs for City to retain contract plan check services. In the
event that City review exceeds 30 days, the relevant deadline set forth in this Section 13
shall be extended one day for each day the City review exceeds 30 days.
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EXHIBIT D
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attn:
(Space Above for Recorder’s Use)
[FORM OF] ASSIGNMENT OF RIGHTS AND ASSUMPTION OF OBLIGATIONS
UNDER DEVELOPMENT AGREEMENT
(______________)
THIS ASSIGNMENT OF RIGHTS AND ASSUMPTION OF OBLIGATIONS UNDER
DEVELOPMENT AGREEMENT (this “Assignment”) is made and entered into as of _________,
20__, by and between _______, a _________ (“Assignor”), and __________________, a
____________ (“Assignee”), and approved and agreed to by the City of ______, a ________
(“City”).
RECITALS
A. Assignor and City entered into that certain Development Agreement dated as of
______ for the _____ project, and recorded on _____ in the Official Records of the _____ County
Recorder’s Office (“Official Records”) as Document No. _______, (the “Development
Agreement”), with respect to approximately ____ acres of land within the City, as more
particularly described in Exhibit A attached hereto (the “Property”).
B. Assignor and Assignee have entered into that certain Agreement for Purchase and
Sale ____________ dated ____________ (as may be amended from time to time, the “Purchase
Agreement”), pursuant to which Assignor intends to transfer to Assignee the Property.
Concurrently with transfer of the Property to Assignee, and solely in connection with such transfer
in accordance with the Purchase Agreement, Assignor desires to assign to Assignee, and Assignee
desires to accept from Assignor the rights, interests and obligations as Owner under the
Development Agreement.
C. Section 12.1 of the Development Agreement provides that the Owner shall be
released from its obligations under the Development Agreement upon the assignment of the
Owner’s rights, interests and obligations under the Development Agreement if the City agrees to
such release in writing, and Assignor wishes to memorialize that, upon the effective date of this
Assignment, as set forth in Section 4 hereof, Assignor is hereby fully released from the duties and
obligations of “Owner” with respect to the Development Agreement, including, without limitation,
the Project Approvals, which release is hereby given by the City’s execution of this Assignment
as provided below.
AGREEMENTS
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NOW, THEREFORE, in consideration of the foregoing recitals and for the purposes and
in consideration of the mutual covenants hereinafter contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, Assignor and Assignee agree as
follows:
1. Defined Terms. All capitalized terms used but not defined in this Assignment shall
have the meanings given to them in the Development Agreement.
2. Assignment and Assumption. Assignor hereby assigns to Assignee and Assignee
hereby expressly and unconditionally assumes from Assignor, all rights, title, duties, interests and
obligations under the Development Agreement.
3. Compliance with Assignment Requirements; Release. Approval of this
Assignment by the City pursuant to Section 12.1 of the Development Agreement is an express
condition precedent to the effectiveness of this Assignment. Each of Assignor and Assignee has
complied with and satisfied all of the requirements and conditions under the Development
Agreement with respect to assignment and assumption of the Assigned Interests, and all of the
requirements and conditions under the Development Agreement for the release of Assignor from
those obligations related to the Assigned Property and the Assigned Interests (collectively, the
“Requirements”). Upon approval by the City, Assignor shall be fully released from all of the
duties, obligations and liabilities of the “Owner” under the Development Agreement with respect
to the Assigned Interests.
Assignee on behalf of itself and its successors and assigns, waives any right to recover
from, and forever releases, acquits and discharges, Assignor and its directors, officers, employees
and agents of and from any and all claims, demands, losses, liabilities, damages (including
foreseeable and unforeseeable consequential damages), liens, obligations, interest, injuries,
penalties, fines, lawsuits and other proceedings, judgments and awards and costs and expenses,
(including, without limitation, reasonable attorneys’ fees and costs and consultants’ fees and costs)
of whatever kind or nature, known or unknown, contingent or otherwise, whether direct or indirect,
known or unknown, foreseen or unforeseen, that Assignee may now have or that may arise at any
time on account of or in any way be connected with the Development Agreement.
In connection with the foregoing release, Assignee acknowledges that it is familiar with
Section 1542 of the California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Assignee agrees that the release contemplated by this Section includes unknown claims.
Accordingly, Assignee hereby waives the benefits of Civil Code Section 1542, or under any other
statute or common law principle of similar effect, in connection with the releases contained in this
Section.
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Assignor Assignee
Without limiting the foregoing and notwithstanding any contrary provision in the
Development Agreement, City (i) acknowledges and agrees to the terms and conditions of this
Assignment and that the Requirements have been satisfied, (ii) hereby fully releases Assignor, and
Assignor is fully released, from all of the duties and obligations of the “Owner” under the
Development Agreement and (iii) shall look solely towards Assignee with respect to performance,
compliance and satisfaction of all covenants and obligations of Developer related to the Assigned
Property.
4. Effective Date. Subject to the condition precedent set forth in Section 3 above, this
Assignment shall be effective upon the later to occur of (i) the date all Parties have duly executed
this Assignment and (ii) the date of the transfer of the Assigned Property to Assignee (the
“Effective Date”). The Parties shall use a mutually acceptable escrow agent to record this
Assignment Agreement and establish the Effective Date pursuant to mutually acceptable joint
escrow instructions.
5. Acknowledgement of the Development Agreement and Project Approvals.
Assignee further agrees that: (i) Assignee has had adequate opportunity to obtain and review copies
of the Development Agreement and Project Approvals, and all other documents and materials
containing or relating to the terms and conditions of the development of the project; (ii) Assignee
has read and understands all of the terms and conditions of said documents and materials; (iii)
Assignor has not made any representations or warranties with respect to the Assigned Property,
the Project Approvals or any other aspect of development of the Property or the Development
Agreement, and (iv) with such knowledge and understanding, which includes the nature and extent
of the fees, taxes, assessments and other financial mechanisms and obligations described in such
documents and materials, Assignee nevertheless has voluntarily, freely and knowingly assumed
and agreed to perform all obligations and requirements and be bound by all of the provisions of
such documents and materials.
6. Terms of Development Agreement Not Affected. Except that Assignee shall be
subject to, and Assignor shall be released from, the Development Agreement, the provisions of the
Development Agreement shall remain in full force and effect and shall not be altered, amended or
modified by this Assignment.
7. Modifications. This Assignment may be amended, terminated or otherwise
modified in any respect only by a writing duly executed on behalf of Assignor and Assignee and
approved by the City.
8. Attorneys’ Fees. In the event of any controversy, claim, dispute, or litigation
between the parties hereto to enforce or interpret any of the provisions of this Assignment or any
right of either party hereto, the non-prevailing party to such litigation agrees to pay to the
prevailing party all costs and expenses, including, without limitation, reasonable attorneys’ fees,
incurred therein by the prevailing party, including, without limitation, fees incurred during a trial
of any action and any fees incurred as a result of an appeal from a judgment entered in such
litigation. To so recover, it shall not be necessary that the prevailing party prevail in each and every
DocuSign Envelope ID: 73A9744B-FA70-46E2-99F8-A2DA15AA4DC2
-12-
one of its claims. Rather, the amount of the award of attorneys’ fees shall, in the court’s discretion,
reflect the degree to which the prevailing party or parties have prevailed in some of their claims.
9. Consent of City. By signature of the City Manager below, the City approves and
agrees to the assignment, assumption and release set forth in this Assignment. The City is a party
to this Assignment solely respect to Section 3 and Section 4 hereof.
10. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of California, as they apply to contracts executed in and to be carried out
entirely within California.
11. Further Assurances. Each party to this Assignment, upon the request of any other
party to this Assignment, will execute, acknowledge and deliver such further documents or
instruments and perform such further acts as may be necessary, desirable or proper to carry out
more effectively the purpose of this Assignment. Each of the individuals executing this
Assignment certifies that he or she is duly authorized to do so.
12. Counterparts. This Assignment may be executed in one or more counterparts. All
counterparts so executed shall constitute one agreement, binding on all parties, even though all
parties are not signatory to the same counterpart.
[Signatures appear on the following page]
DocuSign Envelope ID: 73A9744B-FA70-46E2-99F8-A2DA15AA4DC2
HK 8 18 23
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date
and year first above written.
ASSIGNOR:
__________, a ____________
By:
Name:
Its:
By:
Name:
Its:
ASSIGNEE:
______________________, a
________________________
By:
Name:
Its:
By:
Name:
Its:
ATTEST:
By:
APPROVED AS TO FORM:
By:
ACKNOWLEDGED AND APPROVED
TO BY CITY:
CITY OF PALO ALTO, _________
By:
Name:
Its:
[Signatures must be notarized]
DocuSign Envelope ID: 73A9744B-FA70-46E2-99F8-A2DA15AA4DC2
Certificate Of Completion
Envelope Id: 73A9744BFA7046E299F8A2DA15AA4DC2 Status: Completed
Subject: DocuSign: Ordinance 5595 - Development Agreement
Source Envelope:
Document Pages: 62 Signatures: 5 Envelope Originator:
Certificate Pages: 2 Initials: 0 Vinhloc Nguyen
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
250 Hamilton Ave
Palo Alto , CA 94301
Vinhloc.Nguyen@CityofPaloAlto.org
IP Address: 199.33.32.254
Record Tracking
Status: Original
11/7/2023 10:07:30 AM
Holder: Vinhloc Nguyen
Vinhloc.Nguyen@CityofPaloAlto.org
Location: DocuSign
Security Appliance Status: Connected Pool: StateLocal
Storage Appliance Status: Connected Pool: City of Palo Alto Location: DocuSign
Signer Events Signature Timestamp
Albert Yang
Albert.Yang@CityofPaloAlto.org
Assistant City Attorney
City of Palo Alto
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 97.113.134.194
Sent: 11/7/2023 10:09:56 AM
Resent: 11/7/2023 11:18:30 AM
Viewed: 11/7/2023 3:52:47 PM
Signed: 11/7/2023 3:52:56 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Jonathan Lait
Jonathan.Lait@CityofPaloAlto.org
Interim Director Planning and Community
Environment
City of Palo Alto
Security Level: Email, Account Authentication
(None)
Signature Adoption: Uploaded Signature Image
Using IP Address: 99.88.42.180
Sent: 11/7/2023 3:52:58 PM
Viewed: 11/17/2023 12:41:29 PM
Signed: 11/17/2023 12:41:49 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Ed Shikada
Ed.Shikada@CityofPaloAlto.org
Ed Shikada
City of Palo Alto
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 199.33.32.254
Sent: 11/17/2023 12:41:51 PM
Viewed: 11/17/2023 4:24:18 PM
Signed: 11/17/2023 4:24:24 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Lydia Kou
Lydia.kou@cityofpaloalto.org
Council Member
Security Level: Email, Account Authentication
(None)Signature Adoption: Pre-selected Style
Using IP Address: 50.204.42.240
Sent: 11/17/2023 4:24:26 PM
Viewed: 11/18/2023 8:25:29 AM
Signed: 11/18/2023 8:25:51 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Signer Events Signature Timestamp
Mahealani Ah Yun
Mahealani.AhYun@CityofPaloAlto.org
Interim City Clerk
Security Level: Email, Account Authentication
(None)Signature Adoption: Pre-selected Style
Using IP Address: 98.51.1.158
Sent: 11/18/2023 8:25:53 AM
Viewed: 11/18/2023 5:18:15 PM
Signed: 11/18/2023 5:18:47 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 11/7/2023 10:09:56 AM
Envelope Updated Security Checked 11/7/2023 11:18:21 AM
Envelope Updated Security Checked 11/7/2023 11:18:21 AM
Envelope Updated Security Checked 11/7/2023 11:18:21 AM
Envelope Updated Security Checked 11/7/2023 11:18:21 AM
Envelope Updated Security Checked 11/7/2023 11:18:21 AM
Envelope Updated Security Checked 11/7/2023 11:18:21 AM
Certified Delivered Security Checked 11/18/2023 5:18:15 PM
Signing Complete Security Checked 11/18/2023 5:18:47 PM
Completed Security Checked 11/18/2023 5:18:47 PM
Payment Events Status Timestamps