ORDINANCE NO. 6. 2023
AN ORDINANCE OF THE CITY OF MOUNTAIN VIEW
APPROVING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOUNTAIN VIEW
AND PUBLIC STORAGE FOR THE TERRA BELLA PUBLIC STORAGE PROJECT FOR PUBLIC STORAGE LOCATED AT 1040 TERRA BELLA AVENUE AND 1055 SAN LEANDRO AVENUE THE CITY COUNCIL OF THE CITY OF MOUNTAIN VIEW DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Findings and Purpose. The City Council of the City of Mountain View does hereby find as follows:
1. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted Government Code Sections 65864 to 65869. 5 authorizing municipalities to enter into Development Agreements in connection with the development of real property within their jurisdiction by qualified applicants with a requisite legal or equitable interest in the real property, which is the subject of such Development Agreement.
2. Public Storage, a Maryland real estate investment trust (" Owner" or " Applicant"), has a legal interest in certain real property located in the City of Mountain View consisting of approximately 3.8 acres, generally located at the northwest corner of Terra Bella Avenue and San Rafael Avenue, commonly known as 1040 Terra Bella Avenue and 1055 San Leandro Avenue, and more particularly described in Exhibits A and B to the attached Development Agreement collectively, the " Property"). The Property is located in the MM ( General Industrial) Zoning District.
3. Owner desires to redevelop the Property by demolishing existing buildings, landscaping, and improvements and reconfigure existing parcels to donate 0.5 acre to Alta Housing, a nonprofit agency, to allow the construction of a 100% affordable housing project with 108 units by Alta Housing on Alta' s property adjacent to the Property and constructing on the Property two public storage structures consisting of a six -story building ( Building One) and a four- story building ( Building Two) for a total site floor area ratio ( FAR) of 2.5 ( collectively, the Project"). Owner has requested various entitlements to effectuate the Project, which the City Council approved on March 14, 2023, together with this Development Agreement for Application No. PL- 2022- 045 (" Agreement").
4. The City is desirous of encouraging quality economic growth in Mountain View in parallel with affordable housing residential development to ensure a jobs/ housing balance, thereby advancing sustainable equitable growth in the interests of the City' s residents, taken as a whole. The City has determined the Project complies with the plans and policies set forth in the General Plan and the P (Planned Community) District standards for the project. 1-
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5. A primary purpose of this Agreement is to assure the Project can proceed without disruption caused by a change in City' s planning policies and requirements following the Project approval and to ensure the required community benefits, public benefits, and required exactions.
Applicant is committing to provide in connection with development of the Project are timely delivered. Applicant also desires the flexibility, subject to a two- phase requirement of the development, to develop the Project in response to market conditions.
6. By entering into this Agreement, the City is receiving assurances of orderly growth and quality development of the Project, in accordance with the goals and policies set forth in the General Plan and the proposed Planned Community standards, and timely delivery of required improvements, community benefits, and public benefits. The City also recognizes that this Agreement will facilitate the donation of 0. 5 acre to Alta Housing, who will construct a 100% affordable housing project with 108 units on their larger, reconfigured parcel adjacent to the Property, and that implementation of a project of the scope and scale of the Project requires phased construction, extensive resources, and a long- term commitment by the Applicant.
7. 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 adopted Ordinance No. 20.94 on November 9, 1994, establishing the procedures and requirements for consideration of development agreements within the City. City Code Sections 36. 54. 15( a)( 1)-( 7) and 36. 54. 15( d) contain the required findings for adoption of an ordinance approving a Development Agreement, and all of these findings are made as follows in Paragraphs 8 through 15 below.
8. The Agreement is consistent with the objectives, policies, general land uses, and programs specified in the General Plan because the General Industrial Land Use Designation allows for personal storage use, and the Agreement facilitates the timely donation of land to substantially increase affordable housing. Further, as proposed, the site would be rezoned to the P (Planned Community) District, and the Project will be compatible with the adjacent uses by providing adequate parking; improving the Project frontages to include California - native and drought - tolerant landscape; increasing the width of the sidewalks ( fronting Linda Vista Avenue) to accommodate new landscaping and street trees; conforming with the Mountain View Green Building Code, including no natural gas to be used in the new buildings; and supporting General Plan goals and policies, such as LUD 6.3: Street presence, LUD 8.7: Sustainable streets, and LUD
10. 5: Building energy efficiency.
9. The Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because the Project complies with the allowable land uses in the General Industrial Land Use Designation; meets the requirements of the General Industrial ( MM) Zoning Designation, including landscape requirements and setback requirements as prescribed in the proposed P ( Planned Community) District; provides 40% on -site canopy exceeding the General Industrial Land Use Designation 2-
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standards; and compatible with surrounding use developments and plans, including the Moffett Field Comprehensive Land Use Plan (CLUP) for the nearby Moffett Federal Airfield.
10. The Development Agreement is in conformity with the public convenience, general welfare, and good land use practice because the design of the new Public Storage buildings and open space, including tree canopy, is compatible with the General Plan policies, goals, and allowable land uses. The Project complies with General Plan policy POS12.2: Urban tree canopy, as it increases tree canopy coverage with expanded shade areas, enhances aesthetics, and helps reduce greenhouse gases by planting 81 new trees on a site with no existing trees. Further, the project includes public right- of- way and on -site improvements with approximately 43,843 square feet of landscape ( or 26% of the site). The buildings will be designed to front streets leading to passive activation, and the project will improve on -site and street lighting to comply with the City' s requirements.
11. The Agreement will not be detrimental to the health, safety, and general welfare of the community because the proposed Project is consistent with the provisions of the General Plan and will conform to City, State, and Federal codes and regulations for design, construction, and operations of the planned development.
12. The Agreement will not adversely affect the orderly development of property or the preservation of property values because the development of the project site with personal storage buildings, including updated landscape on project frontages, new street trees, and enhanced building architecture, aligns with the vision and development standards of the General Plan and is compatible with the surrounding industrial uses, research and development offices, and residential developments nearby.
13. The Agreement is needed by the Applicant due to the complexity, cost, and infrastructure requirements for development to allow for flexibility in the timing and phasing of the Project because the Project involves phased construction of two buildings, demolition of 18 existing single -story storage buildings with interim operations during the phased construction, and a Lot Line Adjustment to accommodate a 0.5-acre land swap and donation for the construction of an adjacent affordable housing development, which would otherwise exceed the City' s standard approval and permit extension period.
14. The Agreement is advantageous to and benefits the City because the Project' s public benefit contributes to creating more affordable housing by providing a land swap and donation of 0. 5 acre to an affordable housing project ( Alta Housing). This land reconfiguration allows the affordable housing development to accommodate more affordable units and leads to better site and building design, including enhanced landscape, street trees, and other passive activation improvements ( i. e., a seating plaza, educational landscape signage, and bicycle racks) on Terra Bella Avenue.
15. The Agreement complies with the California Environmental Quality Act ( CEQA) as an Initial Study/ Mitigated Negative Declaration ( IS-MND) has been prepared for the Project, in 3-
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conformance with CEQA, demonstrating the project would have less than a significant impact with the incorporation of mitigation measures and standard City conditions of approval. The City Council adopted the IS-MND on March 14, 2023 prior to approval of this ordinance and the Agreement.
16. The Agreement has been reviewed by the City Attorney.
17. The City has determined that the project is a development for which a Development Agreement is appropriate. A Development Agreement will improve the potential for the Project to be constructed in an orderly fashion along with the significant project benefits, such as the land donation of over 0.5 acre by the applicant, and otherwise achieve the goals and purposes of Article XVI, Division 14 of the City Code related to Development Agreements, including meeting the required contents of a Development Agreement as set forth in Section 36. 54. 20 of the City Code.
18. In exchange for significant public benefits of the Project, the Applicant desires to receive assurances that the City shall grant permits and approvals required for the development of the project in accordance with procedures provided by law and in the Development Agreement, and that the applicant may proceed with the project in accordance with existing City laws, with extended expiration dates for entitlements up to 10 years, with allowable extension, from the Effective Date, as defined in the Development Agreement. In order to effectuate these purposes, the parties desire to enter into the Development Agreement.
19. On February 22, 2023, after conducting a duly noticed public hearing pursuant to Article XVI, Division 16 of the City Code, the Zoning Administrator recommended that the proposed Development Agreement be approved by the City Council.
Section 2. The City Council finds that entering into that certain Development Agreement entitled " Development Agreement By and Between the City of Mountain View and Public Storage for the Terra Bella Public Storage Project" and attached hereto as Exhibit A, is consistent with the City' s General Plan and the City' s Zoning Ordinance and provides substantial public benefits, which exceed the exactions for public benefits required in the normal development review process under Federal, State, or local law. The City Council further finds that the Development Agreement is in compliance with Government Code Sections 65864 through 65869. 5 and Article XVI, Division 14 of the City Code and, therefore, may be approved.
Section 3. The City Council hereby approves and adopts the Development Agreement, which shall be dated upon execution by the parties on or following the effective date of this ordinance.
Section 4. The City Council authorizes and directs the City Manager or designee to execute the Development Agreement in substantially the form attached hereto as Exhibit A, subject to minor technical conforming changes as may be approved by the City Attorney. 4-
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Section 5. The provisions of this ordinance shall be effective thirty ( 30) days from and after the date of its adoption.
Section 6. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be unconstitutional, such decision shall not affect the validity of the other remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared unconstitutional.
Section 7. Upon this effectiveness of this ordinance, the City Clerk or designee is hereby directed to file a Notice of Determination with the County Clerk of the County of Santa Clara, pursuant to the provisions of CEQA.
Section 8. Pursuant to Section 522 of the Mountain View City Charter, it is ordered that copies of the foregoing proposed ordinance be posted at least two ( 2) days prior to its adoption in three ( 3) prominent places in the City and that a single publication be made to the official newspaper of the City of a notice setting forth the title of the ordinance, the date of its introduction, and a list of the places where copies of the proposed ordinance are posted. 5-
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The foregoing ordinance was regularly introduced at the Regular Meeting of the City Council of the City of Mountain View, duly held on the 14th day of March 2023, and thereafter adopted at the Regular Meeting of said Council, duly held on the 3rd day of April 2023, by the following roll call vote:
AYES: Councilmembers Abe- Koga, Kamei, Matichak, Ramirez, Ramos, Vice Mayor Showalter, and Mayor Hicks
NOES:
ABSENT:
ATTEST:
HEAT ' ER GLAS R
CITY 1 LERK
None
None
Date of Attestation:
MayHp
1 1- 0 2-3
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Exhibit: A. Development Agreement
6-
APPROVED:
AL F ON HICKS
MAYOR
ti- - -- ) - J
Pursuant to Mountain View Charter § 709( b), I do hereby certify that the foregoing is an original or a correct copy of the ordinance passed and adopted by the City Council of the City of Mountain View at a Regular Meeting held on the 3rd day of April 2023, by the foregoing vote, and was published in the Daily Post by reference on the 31st day of March 2023, and, posted in three prominent places in said City.
City CI r
City o Mountain View
Ordinance No. 6. 2023
Exhibit A
Recording Requested by and Please Return to:
City Clerk
City of Mountain View
500 Castro Street
P. O. Box 7540
Mountain View, CA 94039- 7540
This Intrument Benefits City Only.
No Fee Required. Gov. 27383.
SPACE ABOVE THIS LINE FOR RECORDER' S USE
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOUNTAIN VIEW
AND
PUBLIC STORAGE
FOR THE TERRA BELLA PUBLIC STORAGE PROJECT
2023
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Ordinance No. 6. 2023
TABLE OF CONTENTS
ARTICLE I — PROPERTY AND TERM 4
1. 1 Property Subject to the Development Agreement 4
1. 2 Term of Development Agreement and Effective Date 4
1. 3 Expiration Date 4
ARTICLE II — DEVELOPMENT OF THE PROPERTY 5
2. 1 Project Development 5
2. 2 Right to Develop; Expiration of Approvals 5
2. 3 Subsequent Approvals 5
2. 4 Permitted Uses 6
2. 5 Development Timing and Restrictions 6
2. 6 Development Fees, Assessments, Exactions, and Dedications 8
2. 7 Mitigation Measures and Conditions 8
2. 8 Applicable Codes 8
ARTICLE III — PUBLIC BENEFITS 9
3. 1 Public Benefits 9
ARTICLE IV — OBLIGATIONS OF THE PARTIES 10
4. 1 Owner 10
4. 2 City. 11
ARTICLE V— DEFAULT, REMEDIES, TERMINATION 11
5. 1 Remedies for Breach 11
5. 2 Notice of Breach 11
5. 3 Applicable Law 12
ARTICLE VI — REVIEW, PERMITTED DELAYS, AND AMENDMENTS 12
6. 1 Annual Review 12
6. 2 Changes in State or Federal Law 12
6. 3 Permitted Delays 13
6. 4 Certain Waivers 13
6. 5 Life Safety and Related Matters 14
6. 6 Modification Because of Conflict with State or Federal Laws 14
6. 7 Amendment by Mutual Consent 14
6. 8 City Costs for Review 14
6. 9 Minor Amendments 14
6. 10 Amendment of Approvals 15
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6. 11 Alternative Approvals 16
6. 12 Cancellation by Mutual Consent 16
ARTICLE VII— COOPERATION AND IMPLEMENTATION 16
7. 1 Cooperation 16
7. 2 City Processing 16
7. 3 Other Governmental Permits 17
ARTICLE VIII— TRANSFERS AND ASSIGNMENTS 17
8. 1 Transfers and Assignments 17
8. 2 Covenants Run with the Land 17
ARTICLE IX — MORTGAGE PROTECTION; CERTAIN RIGHTS OF CURE 18
9. 1 Mortgage Protection 18
9. 2 Mortgagee Not Obligated 18
9. 3 Notice of Default to Mortgagee 18
ARTICLE X— GENERAL PROVISIONS 18
10. 1 Project is a Private Undertaking 18
10. 2 Notices, Demands, and Communications between the Parties 19
10. 3 No Joint Venture or Partnership 20
10. 4 Severability 20
10. 5 Section Headings 20
10. 6 Entire Agreement 20
10. 7 Estoppel Certificate 20
10. 8 Statement of Intention 20
10. 9 Indemnification and Hold Harmless 21
10. 10 Defense and Cooperation in the Event of a Litigation Challenge 21
10. 11 Recordation 22
10. 12 No Waiver of Police Powers or Rights 22
10. 13 City Representations and Warranties 22
10. 14 Owner Representations and Warranties 23
10. 15 Counterparts. 23
10. 17 Time is of the Essence 24
10. 18 Venue 24
10. 19 Surviving Provisions 24
10. 20 Construction of Agreement 24
EXHIBITA— Legal Description
EXHIBIT B— Property Diagram
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Ordinance No. 6. 2023
DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF MOUNTAIN VIEW AND PUBLIC STORAGE
THIS DEVELOPMENT AGREEMENT (" Development Agreement") is made and entered into this day of 2023, by and between the CITY OF MOUNTAIN VIEW, a California charter city and municipal corporation, organized and existing under the laws of the State of California (" City"), and PUBLIC STORAGE, a Maryland real estate investment trust (" Owner"), pursuant to Government Code Section 65864, et seq.
RECITALS
A. WHEREAS, 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 Section 65864, et seq., of the Government Code Development Agreement Legislation"), which authorizes 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; and
B. WHEREAS, pursuant to Government Code Section 65865, City has adopted procedures and requirements for consideration of Development Agreements, Section 36.54 of the Mountain View City Code (" City Code"). This Development Agreement has been processed, considered, and executed in accordance with such procedures and requirements; and C. WHEREAS, Owner has a legal interest in certain real property located in City consisting of approximately 4. 3 acres and commonly known as 1040 Terra Bella Avenue ( collectively, the Property"), which Property is described in the attached Exhibit A, and shown on the map attached as Exhibit B; and
D. WHEREAS, Owner desires to redevelop the Property by constructing two ( 2) new self - storage facilities on the Property ( the " Project"). The new self - storage facilities (" Buildings") will be developed in two ( 2) phases, which would incrementally replace existing single - story storage structures on the Property. Phase I will consist of the development of a six ( 6) story structure consisting of approximately two hundred eighty- five thousand twelve ( 285,012) gross square feet of space and related site improvements. Phase 11will consist of the development of a four ( 4) story structure consisting of an additional approximately one hundred twenty- three thousand nine hundred fifty- two ( 123, 952) gross square feet of space, and related additional site improvements, for a total project not to exceed four hundred eight thousand nine hundred sixty- four ( 408, 964) gross square feet; and
E. WHEREAS, as part of the Project, Owner also intends to process a lot line adjustment that will enable Owner to convey an approximately twenty- four thousand five hundred thirty- one ( 24,531) square foot portion of the Property ( the " Owner Contribution Parcel") to Alta EM/ 6/ CDD
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Housing, a California nonprofit corporation, or its successor - in -interest (" Alta Housing" or " Alta").
The conveyance of the Owner Contribution Parcel to Alta Housing will allow Alta Housing to increase the number of affordable housing units Alta can develop on its property ( located at 1020 Terra Bella Avenue) from fifty- six ( 56) to approximately one hundred eight ( 108) units Affordable Housing Project"), while also buffering such affordable housing units from U.S. 101 with the reconfigured parcel of land owned by Owner and to be developed with the Project; and F. WHEREAS, prior to or concurrently with approval of this Development Agreement, City has taken several actions to review and plan for the future development of the Project.
These actions include the following:
1. CEQA Compliance. The potential environmental impacts of the Project have properly been reviewed and evaluated by City pursuant to the California Environmental Quality Act (" CEQA"), Public Resources Code Section 21000, et seq. Pursuant to CEQA and in accordance with the recommendation of City' s Environmental Planning Commission ( the " Planning Commission"), the City Council adopted an Initial Study/ Mitigated Negative Declaration by Resolution No. ( the " CEQA Document");
2. General Plan Text Amendment. Following review and recommendation by the Planning Commission, and after a duly noticed public hearing and adoption of the CEQA Document, the City Council, on , approved a General Plan Text Amendment by Resolution No. ( the " GPA");
3. Zoning Map Amendment. Following review and recommendation by the Planning Commission, and after a duly noticed public hearing and adoption of the CEQA Document, the City Council, on , approved a Zoning Map Amendment of the Property to Planned Community ( P) District by Ordinance No. ( the " P District Rezoning");
4. Planned Community Permit. Following review and recommendation by the Planning Commission, and after a duly noticed public hearing and adoption of the CEQA Document, the City Council, on , approved a Planned Community Permit pursuant to Section 36. 50. 30 of the City Code by Resolution No. ( the " Planned Community Permit"); and
5. Development Review Permit. Following review and recommendation by the Planning Commission, and after a duly noticed public hearing and adoption of the CEQA Document, the City Council, on , approved a Development Review Permit for the Project by Resolution No. ( the " Development Review Permit").
The approvals described in this Recital F are collectively referred to as the " Existing Approvals." The Existing Approvals, together with any Subsequent Approvals ( defined in Section 2. 7), are referred to herein collectively as the " Approvals"; and EM/ 6/ CDD
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G. WHEREAS, the lot line adjustment for the Owner Contribution Parcel described in Recital E (" Lot Line Adjustment") will be a condition of approval for the Existing Approvals and will be considered for approval by City' s Subdivision Committee at a subsequent public hearing consistent with the Existing Approvals and this Development Agreement; and H. WHEREAS, City is desirous of encouraging affordable housing, quality economic growth, and expanding its employment base within City, thereby advancing the interests of its residents, taken as a whole. City has determined that the Project complies with the plans and policies set forth in the General Plan and Zoning Code, as amended by the Existing Approvals; and
I. WHEREAS, a primary purpose of this Development Agreement is to assure that the Project can proceed without disruption caused by a change in City' s planning policies and requirements following the Approvals and to ensure that the community benefits Owner is 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 is uncertain due to the COVID-19 pandemic, and to ensure that the Approvals remain valid over the projected development period; and
J. WHEREAS, City has determined that, by entering into this Development Agreement, City is receiving assurances of orderly growth and quality development in the Project area in accordance with the goals and policies set forth in the General Plan, and City will receive certain public benefits, including, most importantly, the contribution of the Owner Contribution Parcel and the facilitation of the Alta Affordable Housing Project. The land donation has an Owner - estimated public benefit value of approximately Ten Million Two Hundred Thousand Dollars 10, 200, 000); and
K. For the reasons stated herein, among others, City and Owner have determined that the Project is a development for which a development agreement is appropriate. This Development Agreement will, in turn, eliminate uncertainty in planning for and securing orderly development of the Project. City has also determined that the Project presents public benefits and opportunities and will facilitate affordable housing; strengthen City' s economic base with high - quality, long- term jobs, in addition to shorter - term construction jobs; generate revenues for City in the form of one- time and annual fees, taxes, and other fiscal benefits; promote high - quality design and development; enhance the use of transit; and otherwise achieve the goals and purposes for which the Development Agreement Legislation was adopted; and L. WHEREAS, the terms and conditions of this Development Agreement have undergone review by City staff, the Zoning Administrator, and the City Council at publicly noticed meetings and have been found to be fair, just, and reasonable; and M. WHEREAS, City has given notice of City' s intention to adopt this Development Agreement, conducted public hearings thereon pursuant to Government Code Section 65867, and the City Council hereby finds that: ( 1) the provisions of this Development Agreement and its EM/ 6/ CDD
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purposes are consistent with the General Plan, Chapter 36 (Zoning) of the City Code (the " Zoning Ordinance"), and CEQA; ( 2) the Project and this Development Agreement are compatible with the uses authorized in, and the regulations prescribed for, the General Plan land use districts in which the Property is located; ( 3) this Development Agreement complies in all respects with City' s Ordinance No. 9. 00, as adopted effective May 1, 2000 ( the " Development Agreement Ordinance"); ( 4) this Development Agreement will not be detrimental to the health, safety, and general welfare of the community; ( 5) this Development Agreement will not adversely affect the orderly development of property or the preservation of property values; ( 6) this Development Agreement would facilitate the development of the Property in the manner proposed and is needed by Owner due to the timing constraints on the redevelopment of the Property; ( 7) the proposed development should be encouraged in order to meet important economic, social, environmental, or planning goals of City, including the facilitation of much -needed affordable housing; ( 8) Owner has made commitments to a high standard of quality; ( 9) this Development Agreement is in conformity with public convenience, general welfare, and good land use practice; and ( 10) this Development Agreement is advantageous to, and benefits, City; and N. WHEREAS, following a duly noticed public hearing, this Development Agreement was approved by the City Council of City by Ordinance No. , which was introduced on and finally adopted on and became effective thirty ( 30) days thereafter, and was duly executed by the parties as of
AGREEMENT
NOW, THEREFORE, City and Owner agree as follows:
ARTICLE I — PROPERTY AND TERM
1. 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.
1. 2 Term of Development Agreement and Effective Date. The term of this Development Agreement (" Term") shall commence upon the effective date of the ordinance approving this Development Agreement (" Effective Date"), and, unless earlier terminated in accordance with the terms hereof, shall continue in full force and effect until the Expiration Date ( as defined in Section 1. 3 below) ( subject to extension as provided in Section 6.3(b)).
1. 3 Expiration Date. Except as otherwise provided in Section 6. 3( b), the Term of this Development Agreement shall expire on the tenth ( 10th) anniversary of the Effective Date ( the Expiration Date").
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ARTICLE II — DEVELOPMENT OF THE PROPERTY
2. 1 Project Development. Development of the Project will be governed by the Approvals and this Development Agreement. City acknowledges the timing of the completion of development of the Project is subject to market forces, and Owner shall have no liability whatsoever if the contemplated development of the Project fails to occur.
2. 2 Right to Develop; Expiration of Approvals. Owner shall have the vested right to develop the Project in accordance with and subject to: ( a) the terms and conditions of this Development Agreement and the Approvals and any amendments to any of them as shall, from time to time, be approved pursuant to this Development Agreement; and ( b) the Existing Standards ( as defined in Section 2. 5( b)). Nothing contained herein shall restrict 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 Development Agreement, no future modifications of the following shall apply to the Project: ( a) the General Plan; ( b) the City Code; or ( 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; or ( ii) impose new dedications, improvements, other exactions, design features, or moratoria upon development, occupancy, or use of the Property or the Project.
Notwithstanding Section 18.77. 090, and to the extent permitted by State law, including the Subdivision Map Act ( Government Code Section 66410, et seq.), the Existing Approvals and Subsequent Approvals shall be extended and shall not expire during the Term of this Development Agreement.
2. 3 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: lot line adjustment approvals, 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 Existing Standards ( except as otherwise provided in Section 2. 5( c)) and the Existing Approvals and shall not prevent development of the Property for the uses provided under the Approvals, the Existing Standards, and this Development Agreement (" Permitted Uses"), or reduce the density and intensity of development, or limit the rate or timing of development set forth in this Development Agreement, as long as Owner is not in default under this Development Agreement. Any subsequent discretionary action or discretionary approval initiated by Owner that is not otherwise permitted by or contemplated in the Existing 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 City then in effect, and City reserves full and complete discretion with respect to any findings to be made in connection therewith. Owner acknowledges that the Lot Line Adjustment shall require submittal and approval of a Lot Line Adjustment application to the Community Development Department, submittal and approval of Lot Line Adjustment materials EM/ 6/ CDD
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to the Public Works Department for preparation of a Notice of Lot Line Adjustment, recordation of the Lot Line Adjustment and any ancillary documents, demolition and abatement of existing structures and site improvements associated with the Lot Line Adjustment and other related approvals, and compliance with other City requirements, all of which must be completed prior to issuance of any building permits to construct the Project and conveyance of the Owner Contribution Parcel to Alta Housing as required by Section 3. 1.
2. 4 Permitted Uses. The Permitted Uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, the installation, location, and maintenance of on -site and off -site improvements, the installation and location of public utilities, and other terms and conditions of development applicable to the Property shall be those set forth in this Development Agreement, the Approvals, and any amendments to this Development Agreement or the Approvals made in accordance with this Development Agreement and shall be considered vested for the Term.
2. 5 Development Timing and Restrictions.
a) The parties acknowledge that Owner cannot at this time predict when, or the rate at which, the Project would be developed. Such decisions depend upon numerous factors which are not all within the control of Owner. It is the intent of City and Owner that, notwithstanding any future amendment to the General Plan, the Zoning Ordinance, or any other ordinance, policy, plan, rule, or procedure of City or any other of the Existing Standards or the adoption of any ordinance, policy, plan, rule, or procedure ( whether amended or adopted by means of an ordinance, City Charter amendment, initiative, resolution, policy, order, or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission, Zoning Administrator, or any other board, commission, or department of the City or any officer or employee thereof, or by the electorate by referendum or initiative), Owner, subject to the terms of this Development Agreement, shall have the right to develop the Project in such order and at such rate and times as Owner deems appropriate within the exercise of Owner' s sole and subjective business judgment. Such right is consistent with, and necessary to, the 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. This subsection is not intended to affect or relate to the Owner' s obligations with respect to the Lot Line Adjustment or conveyance of the Owner Contribution Parcel hereunder. b) Development of the Property shall be subject to all, and only, the standards in the General Plan, the City Code, the zoning classification and standards, and other rules, regulations, ordinances, and official policies applicable to the Project on the Effective Date collectively, the " Existing Standards"), as of the Effective Date, except as otherwise provided herein. If and to the extent any changes in the Existing Standards ( whether adopted by means of an ordinance, City Charter amendment, initiative, resolution, policy, order, or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission, Zoning Administrator, or any other board, commission, or department of City or any EM/ 6/ CDD
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officer or employee thereof, or by the electorate by referendum or initiative) are in conflict with the Existing Approvals, the Existing Standards, or the provisions of this Development Agreement, then the Existing Approvals, the Existing Standards, and the provisions of this Development Agreement shall prevail, except as otherwise specified herein. Notwithstanding any other provision hereof to the contrary, the parties agree the time limits for completion of off -site improvements as specified in the City' s standard improvement agreement shall govern. c) Notwithstanding anything to the contrary in this Development Agreement, the following " New City Standards" shall apply to development of the Property:
I) New City Standards 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 New City Standards are uniformly applied on a Citywide basis 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 Development Agreement;
ii) Other New City Standards that are determined by City to be reasonably required in order to protect occupants of the Project, and/ or residents of City, from a condition dangerous to their health or safety, or both, as further described in Section 6.5; iii) Other New City Standards that do not conflict with the Existing Standards, this Development Agreement, or the Approvals, provided such New City Standards are uniformly applied on a Citywide basis to all substantially similar types of development projects and properties. A New City Standard conflicts only if it purports to: ( a) limit or reduce the density or intensity of the Project or otherwise require any material reduction in the square footage of a building or any improvements from that permitted under this Development Agreement or the Approvals; ( b) limit or reduce the height or bulk of individual proposed buildings or other improvements that are part of the Project from that permitted under this Development Agreement; ( c) reduce or relocate the allowed location of vehicular access or parking from that described in the Approvals; ( d) prohibit any Project land uses from that permitted under this Development Agreement or the Approvals; ( e) limit the location of building sites, grading, or other improvements on the Property in a manner that is inconsistent with the Existing Approvals; f) limit or control the ability to obtain public utilities, services, infrastructure, or facilities; or g) impose requirements for reservation or dedication of land for public purposes other than as provided in or contemplated by the Approvals, the Existing Standards, or this Development Agreement; and
iv) Other New City Standards 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 New City Standards are accepted in writing by Owner in Owner' s sole discretion.
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To the extent one ( 1) or more New City Standards apply to the Property and/ or Project in accordance with the terms set forth above, the Existing Standards shall be deemed modified to include such New City Standards.
d) If any governmental entity or agency other than City passes any State or Federal law or regulation after the Effective Date which prevents or precludes compliance with one ( 1) or more provisions of this Development Agreement or requires changes in plans, maps, or permits approved by the City notwithstanding the existence of this Development Agreement, then the provisions of this Development 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 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 Development Agreement. In addition, Owner shall have the right to challenge the new law or regulation preventing compliance with the terms of this Development Agreement, and, to the extent such challenge is successful, this Development 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 City or any entity affiliated with 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.
2. 6 Development Fees, Assessments, Exactions, and Dedications. Owner shall pay all applicable City fees, including processing fees, impact fees, and 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; all at the rates in effect at the time Owner pays applicable fees, assessments, and exactions in connection with the Project.
Owner shall be subject to all increases in fees established by City from time to time during the Term and that generally apply to all developments of the same type in City. No new fee, assessment, exaction, or required dedication policy not in effect on the Effective Date shall be imposed on the Project. If any building permit lapses after issuance and the permit can be renewed or reissued under the City Code, the fees in effect at the time of renewal or reissuance shall apply.
2. 7 Mitigation Measures and Conditions. If Owner constructs the Project, Owner shall satisfy and comply with the Mitigation Measures as set forth in the CEQA Document and the Mitigation Monitoring and Reporting Program as well as all Conditions of Approval for the Project, which are incorporated in this Development Agreement by reference. Owner' s obligations under this Section 2. 7 shall survive the expiration or earlier termination of this Development Agreement.
2. 8 Applicable Codes. Unless otherwise expressly provided in this Development Agreement, the Project shall be constructed in accordance with the provisions of the EM/ 6/ CDD
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Construction Codes in effect at the time of approval of the appropriate building, grading, or other construction permit( s) for the Project. " Construction Codes" means, collectively, the California Building Code, Green Building Code, Energy Code, Mechanical, Plumbing, Electrical, and Fire Codes, all as adopted by the City of Mountain View, City standard construction specifications including, but not limited to, the Public Works Department Standard Provisions and Standard Details); Title 24 of the California Code of Regulations, City solid waste program development guidelines, and City stormwater quality guidelines for development projects.
The Project will require a City Excavation Permit( s) for any infrastructure improvements in City' s right- of- way or City easements. Such improvements will be constructed in accordance with the latest version in effect at the start of construction of such infrastructure, including, but not limited to, the Standard Provisions of the City of Mountain View, the Standard Details of the City of Mountain View, the Standard Specifications of the Department of Transportation of the State of California ( Caltrans) dated 2018 and subsequent updates to that 2018 edition, the Standard Plans of the Department of Transportation of the State of California Caltrans) dated 2018 and subsequent updates to that 2018 edition, the latest version of the California Manual of Uniform Traffic Control Devices, and the Project Improvement Plans prepared by the Project' s Engineer( s) and as approved by the City Engineer.
The Project shall apply for a Caltrans Encroachment Permit for all work within Caltrans' jurisdiction, if any. Any work within the State right- of- way must be in accordance with Caltrans requirements. The Project shall apply for the appropriate Encroachment Permit ( or as otherwise required by City) with City for all work within City' s jurisdiction. Work within City' s right- of- way must be in accordance with City requirements. The Project shall obtain formal clearance and approval from PG& E for all work in areas subject to a PG& E easement or other property or regulatory interest.
ARTICLE III — PUBLIC BENEFITS
3. 1 Public Benefits. Consistent with Owner' s proposed public benefits in the Project application, as described in the Recitals to this Development Agreement and incorporated into Existing Approvals and Subsequent Approvals, and to receive other benefits afforded to Owner under this Development Agreement, including vested rights, Owner shall do the following:
a) Within six ( 6) months of the Effective Date, Owner shall: ( 1) submit application( s), including all applicable application fees, for the necessary permits and approvals for the Lot Line Adjustment described in Section 2. 3 and thereafter timely respond to any comments and requests by City for additional information until approval; and ( ii) submit evidence to City of a binding contract with Alta Housing that commits Owner to donate the Owner Contribution Parcel to Alta Housing; and
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b) By the earliest of the following, Owner shall have completed the Lot Line Adjustment process described in Section 2.3 and the Existing Approvals and conveyed the Owner Contribution Parcel to Alta Housing:
I) Issuance of any building permit for the physical construction of Owner' s Project pursuant to the Existing Approvals, which does not include demolition and building permits ( including any necessary off -site improvements and utility service relocations) required for approval of the Lot Line Adjustment or to allow Owner' s continued use of existing storage buildings partially demolished as a result of the Lot Line Adjustment; ii) In sufficient time for Alta Housing to proceed with the Affordable Housing Project ( which shall mean, but not be limited to, by such time Alta Housing requires such conveyance to qualify for and/ or receive any project financing or permit approvals) regardless of whether Owner has any immediate plan to construct the Project; iii) Four ( 4) years from the Effective Date. Owner agrees to act diligently and in good faith to obtain the Lot Line Adjustment and facilitate the land donation in a timely manner according to the deadlines and processes described in this Development Agreement. In the event the Owner Contribution Parcel has not been conveyed to Alta Housing within the time established in this Section, then this Development Agreement and all adjudicative Approvals will immediately terminate and have no further force or effect, other than those provisions which expressly survive termination.
Upon termination of this Development Agreement, City will have the option but not the obligation, at City' s sole discretion, to amend all legislative Approvals through City' s normal procedures. Owner acknowledges that City may not be able to rezone any housing designation on the Owner Contribution Parcel and that any portion of Owner' s facilities on that parcel may be considered legal nonconforming. This provision will survive the termination of this Development Agreement.
Owner agrees that the public benefits are justified, appropriate, and in compliance with applicable law as a consequence of City approval of the Existing Approvals and to receive other benefits afforded to Owner under this Development Agreement, and Owner accepts and covenants not to challenge any of the public benefits.
ARTICLE IV — OBLIGATIONS OF THE PARTIES
4. 1 Owner.
a) Development in Conformance with Agreements and Approvals. In consideration of City entering into this Development Agreement, Owner has agreed that development of the Project during the Term of this Development Agreement shall be in conformance with all of the terms, covenants, and requirements of this Development Agreement EM/ 6/ CDD
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and the Approvals, as they may each be hereafter amended with the consent of City and Owner in accordance with the provisions of Sections 6.6, 6.7, 6.9, or 6.10.
4. 2 City.
a) City' s Good Faith in Proceedings. As further provided in Section 2.3, in consideration of Owner entering into this Development Agreement, City agrees that City will accept, process, and review in good faith and in a timely manner all applications related to the Project for environmental and design review, demolition, grading, and building permits, Lot Line Adjustment, or other permits or entitlements for use of the Property, in accordance with the terms and spirit of this Development Agreement. The parties acknowledge Owner has several responsibilities to perform related to the Owner Contribution Parcel and agree that City' s compliance with this provision, with respect to the Lot Line Adjustment, may be a factor in Owner' s ability to timely perform Owner' s obligation under this Development Agreement related to the Owner Contribution Parcel.
b) Additional Approvals. City shall cooperate with Owner, at Owner' s expense, in Owner' s endeavors to obtain any other permits and approvals as may be required from other governmental or quasi - governmental agencies having jurisdiction over the Project as set forth in Section 7. 3.
ARTICLE V— DEFAULT, REMEDIES, TERMINATION
5. 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 City 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. In addition to the foregoing remedies, City shall be entitled to recover monetary damages with respect to monetary amounts payable by Owner under this Development Agreement. 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.
5. 2 Notice of Breach.
a) Prior to the initiation of any action for relief specified in Section 5.1 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 EM/ 6/ CDD
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shall specify with reasonable particularity the reasons for the allegation of breach and the manner in which the alleged breach may be satisfactorily cured. 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 nondefaulting 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.
5. 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 VI — REVIEW, PERMITTED DELAYS, AND AMENDMENTS
6. 1 Annual Review. The annual review required by California Government Code Section 65865. 1 shall be conducted pursuant to City Code Section 36. 54. 30 by the Community Development Director every twelve ( 12) months from the Effective Date for compliance with the provisions hereof. The Community Development Director shall notify Owner in writing of any evidence which the Community Development 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 Section 5. 2 above whereby either 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 5.2. Owner shall pay City' s actual costs for City' s 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.
6. 2 Changes in State or Federal Law. 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 EM/ 6/ CDD
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acceptable modifications to such obligations to allow the Project to proceed as planned to the extent practicable.
6. 3 Permitted Delays.
a) Force Majeure. Subject to the limitations set forth below, the time within which either party shall be required to perform any act under this Development Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably and beyond the reasonable control of the party seeking the delay by strikes, lockouts, and other labor difficulties; Acts of God; unusually severe weather, but only to the extent that such weather or its effects ( including, without limitation, dry -out time) result in delays that cumulatively exceed twenty ( 20) days for any winter season occurring after commencement of construction of the Project; failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body; changes in local, State, or Federal laws or regulations; any development moratorium or any action of other public agencies that regulate land use, development, or the provision of services that prevents, prohibits, or delays construction of the Project; enemy action; civil disturbances; wars; terrorist acts; fire; unavoidable casualties; or mediation, arbitration, litigation, or other administrative or judicial proceeding involving the Existing Approvals or this Development Agreement ( each a Force Majeure Delay"), provided that, except as otherwise provided in Section ( b) below, the Term shall not be extended by reason of any Force Majeure Delay. An extension of time for any such cause shall be for the period of the Force Majeure Delay and shall commence to run from the time of the commencement of the cause, if notice ( as defined in Section 10. 2) by the party claiming such extension is sent to the other party within sixty ( 60) days of the commencement of the cause. If notice is sent after such sixty ( 60) day period, then the extension shall commence to run no sooner than sixty ( 60) days prior to the giving of such notice. Times of performance under this Development Agreement may also be extended in writing by the mutual agreement of the City Manager and Owner. Owner' s inability or failure to obtain financing shall not be deemed to be a cause outside the reasonable control of Owner and shall not be the basis for a Force Majeure Delay.
b) Extension of Term Due to Moratoria. In the event of any publicly declared moratorium or other interruption in the issuance of permits, approvals, agreements to provide utilities or services or other rights or entitlements by any State, local, 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 ( b) 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.
6. 4 Certain Waivers. City shall have the right to waive or reduce the burden of provisions of the Approvals as they apply to any portion of the Property, with the consent of the owner of such portion, so long as: ( a) the waiver, reduction, or revision does not conflict with the land EM/ 6/ CDD
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uses or improvements that are the subject of the Approvals ( or any permit or approval granted thereunder); ( b) such reduction or waiver does not increase the burden imposed upon a portion of the Property owned by any other owner; ( c) the waiver, reduction, or revision is not inconsistent with the purpose and goals of the General Plan; and ( d) such waiver or reduction is made with the written consent of the owner of the portion of the Project as to which such waiver or reduction is granted.
6. 5 Life Safety and Related Matters. Nothing contained herein shall be deemed to prevent adoption and application to improvements upon the Property of laws, ordinances, uniform codes, rules, or regulations pertaining to or imposing life safety, fire protection, environmental, energy or resource efficiency, mechanical, electrical, and/ or building integrity requirements at the time permits for construction of such improvements are issued. This Section 6. 5 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 City to deal with material endangerments to persons on the Property not adequately addressed in the Approvals.
6. 6 Modification Because of Conflict with State or Federal Laws. 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 2.5(c) above. 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.
6. 7 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 in Section 6. 9), and in accordance with the procedures of State law and the City Code.
6. 8 City Costs for Review. During the Term of this Development Agreement, Owner shall promptly reimburse City for costs incurred by City to have City' s staff, consultant, or outside counsel review, approve, or issue assignments, estoppel certificates, transfers, amendments to this Development Agreement, and the like. Owner' s obligations under this Section 6. 8 shall survive expiration or earlier termination of this Development Agreement.
6. 9 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 EM/ 6/ CDD
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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 6. 7, 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 1.2; (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; or ( f) monetary contributions by Owner as provided in this Development Agreement, 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 Zoning Administrator 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 City does not then have a Community Development 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 Community Development Director); and provided further, that the Community Development 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 6.9 or whether the requested refinement is of such a character to constitute an amendment hereof pursuant to Section 6.7. The Community Development 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 6.9, and not " major modifications" subject to the provisions of Section 6.7.
6. 10 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 Section 1.2; (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; or ( f) monetary contributions by Owner as provided in this Development Agreement.
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.
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6. 11 Alternative Approvals. Notwithstanding any provisions in this Development Agreement, Owner may apply for, and City may thereafter review and grant, in accordance with applicable law, amendments or modifications to the Approvals or 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 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 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 Alternative Approvals granted by City, without such permits and approvals being vested hereby.
6. 12 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 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 City, and any sums then due and owing to City shall be paid as part of the cancellation.
ARTICLE VII— COOPERATION AND IMPLEMENTATION
7. 1 Cooperation. It is the parties' express intent to cooperate with one another and to diligently work to implement all land use and building approvals for development of the Project in accordance with the terms hereof. City will not use City' s 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.
7. 2 City Processing.
a) By City. 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, Subdivision Committee, and Zoning Administrator in accordance with the City Council' 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 Owner' s nominees.
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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 City' s obligations hereunder, and Owner shall cause Owner' s planners, engineers, and all other consultants to submit in a timely manner all necessary materials and documents.
7. 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 Owner' s endeavors to obtain such permits and approvals at no cost to City. If, pursuant to the Existing Standards, 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 VIII— TRANSFERS AND ASSIGNMENTS
8. 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 a form reasonably acceptable to City, 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.
8. 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 EM/ 6/ CDD
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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 IX — MORTGAGE PROTECTION; CERTAIN RIGHTS OF CURE
9. 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.
9. 2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 9.1 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 9.2 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.
9. 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 X— GENERAL PROVISIONS
10. 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 EM/ 6/ CDD
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Property herein described subject only to the limitations and obligations of Owner under this Development Agreement.
10. 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:
With a copy to:
and to:
Owner:
With a copy to:
With a copy to:
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City Manager' s Office
City of Mountain View
Attn: City Manager
500 Castro Street— P. O. Box 7540
Mountain View, CA 94039- 7540
Office of the City Attorney
Attn: City Attorney
City of Mountain View
500 Castro Street— P. O. Box 7540
Mountain View, CA 94039- 7540
Community Development Department
Attn: Community Development Director
City of Mountain View
500 Castro Street— P. O. Box 7540
Mountain View, CA 94039- 7540
Public Storage
Attn: Real Estate Legal Dept.
701 Western Avenue
Glendale, CA 91201
Email: hsvensk@publicstorage. com
Public Storage
Attn: Andres Friedman
701 Western Avenue
Glendale, CA 91201
Email: afriedman@publicstorage. com
Holland & Knight
Attn: Tamsen Plume
560 Mission Street, 19th Floor
San Francisco, CA 94111
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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.
10.3 No Joint Venture or Partnership. Nothing contained in this Development Agreement or in any document executed in connection with this Development Agreement shall be construed as making City and Owner joint venturers or partners.
10. 4 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.
10. 5 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.
10. 6 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: Property Diagram
10. 7 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 do so within twenty ( 20) business days following the receipt thereof. Either the City Manager or the Community Development 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.
10. 8 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 EM/ 6/ CDD
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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 Owner' s 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.
10. 9 Indemnification and Hold Harmless. Owner shall indemnify, defend ( with counsel reasonably acceptable to City), and hold harmless City and City' s 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 10.9 includes any and all present and future Claims arising out of or in any way connected with Owner' s or Owner' s 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 10. 9 shall survive expiration or earlier termination of this Development Agreement.
10. 10 Defense and Cooperation in the Event of a Litigation Challenge. a) City and Owner shall cooperate in the defense of any claim, action, or court proceeding instituted by a third party or other governmental entity or official seeking to attack, set aside, void, annul, or otherwise challenge City' s consideration and/ or approval of this Development Agreement or the Approvals or challenging the validity of any provision of this Development Agreement or the Approvals (" Litigation Challenge"), and the parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. Owner shall take the lead role defending such Litigation Challenge and may elect to be represented by the legal counsel of Owner' s choice, subject to City' s right to approve counsel, with the costs of such representation, including Owner' s administrative, legal, and court costs, paid solely by Owner.
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Challenge and shall execute a joint defense and confidentiality agreement in order to share and protect information under the joint defense privilege recognized under applicable law. b) Owner shall indemnify, defend, release, and hold harmless City Parties from and against any damages, attorneys' fees, or cost awards, including attorneys' fees awarded under Code of Civil Procedure Section 1021. 5, assessed or awarded against City by way of judgment, settlement, or stipulation, and any costs, expenses, reasonable attorneys' fees, or expert witness fees that may be asserted or incurred by the City Parties, including, but not limited to, those arising out of or in connection with approval of this Development Agreement or the Approvals.
Any proposed settlement of a Litigation Challenge shall be subject to City' s and Owner' s approval not to be unreasonably withheld, conditioned, or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Development Agreement or any Approvals, the settlement shall not become effective unless such amendment or modification is approved by City and Owner in accordance with applicable law, and City reserves City' s full legislative discretion with respect to any such City approval. If Owner elects not to contest or defend such Litigation Challenge, City shall have no obligation to do so, but Owner shall be liable for any costs or awards that may arise from resolving the Litigation Challenge in favor of the party bringing the Litigation Challenge, including, but not limited to, costs the City incurs to void approval of this Development Agreement or the Approvals or take other action as resolution of the Litigation Challenge may direct. Owner shall reimburse City for City' s costs incurred in connection with the Litigation Challenge within thirty ( 30) days following City' s written demand therefor, which may be made from time to time during the course of such litigation. Owner' s obligations under this Section 10. 10 shall survive expiration or earlier termination of this Development Agreement.
10. 11 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.
10. 12 No Waiver of Police Powers or Rights. In no event shall this Development Agreement be construed to 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 City' s residents.
10. 13 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.
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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 City' s 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 10.13 not to be true, immediately give written notice of such fact or condition to Owner.
10. 14 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 Owner' s 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 Owner' s inability to pay Owner' s 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 10. 14 not to be true, immediately give written notice of such fact or condition to City.
10. 15 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.
10. 16 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 EM/ 6/ CDD
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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 ( 1) 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.
10. 17 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.
10. 18 Venue. Any legal action regarding this Development Agreement shall be brought in the Superior Court for Santa Clara County, California, except for actions that include claims in which the Federal District Court for the Northern District of the State of California has original jurisdiction, in which case the Northern District of the State of California shall be the proper venue.
10. 19 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 2. 7, 3. 1( b)( iii), 6. 8, 10. 9, and 10. 10.
10. 20 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.
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IN WITNESS WHEREOF, City and Owner have executed this Development Agreement as of the date first written above.
CITY": " OWNER":
CITY OF MOUNTAIN VIEW, PUBLIC STORAGE,
a California charter city and municipal a Maryland real estate investment trust corporation
By: By:
Kimbra McCarthy, City Manager
Print Name:
Attest: Title:
Heather Glaser, City Clerk
APPROVED AS TO CONTENT: Taxpayer I. D. Number
Aarti Shrivastava
Assistant City Manager/
Community Development Director
FINANCIAL APPROVAL:
Derek Rampone
Finance and Administrative
Services Director
APPROVED AS TO FORM:
Sandra Lee
Senior Assistant City Attorney
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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
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.
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WITNESS my hand and official seal
NOTARY PUBLIC, STATE OF CALIFORNIA
My Commission No.:
Expires:
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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
County of Santa Clara
On , before me, Heather Glaser, City Clerk, 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 paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ( Seal)
Heather Glaser, City Clerk
City of Mountain View
Government Code § 40814
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EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Mountain View, County of Santa Clara, State of California, described as follows:
PARCEL ONE:
BEING LOTS 25, 26, 27, 46, 47 AND 48 AS SHOWN UPON THAT CERTAIN MAP ENTITLED " TERRA BELLA ACRES, PART OF SECTIONS 15 AND 16, TOWNSHIP 6 SOUTH, RANGE 2 WEST MOUNTAIN VIEW, CALIFORNIA", WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON MAY 8, 1928 IN BOOK " W" OF MAPS, PAGE 56, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THOSE PORTIONS OF LOTS 47 AND 48 CONVEYED TO THE STATE OF CALIFORNIA BY DEED DATED APRIL 5, 1932 AND RECORDED MAY 13, 1932 IN BOOK 610, OFFICIAL RECORDS OF SANTA CLARA COUNTY, CALIFORNIA AT PAGE 432 AND BY DEED RECORDED OCTOBER 19, 1957 IN BOOK 3940, PAGE 450 OF OFFICIAL RECORDS.
PARCEL TWO:
A PORTION OF THOSE PARCEL OF LAND DESCRIBED IN DEED NOS. 11996 AND 11997 TO THE STATE OF CALIFORNIA, RECORDS NOVEMBER 7, 1957 IN BOOK 3940 AND 3932 AT PAGES 450 AND 323, RESPECTIVELY, BOTH OF THE OFFICIAL RECORDS OF SANTA CLARA COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
COMMENCING AT THE MOST WESTERLY CORNER OF SAID PARCEL ( 3940 OR 450); THENCE ALONG THE NORTHERLY LINE OF LAST SAID PARCEL SOUTH 88 DEGREES 19 MINUTES 01 SECONDS EAST 1. 42 FEET;
THENCE ALONG A TANGENT CURVE TO THE RIGHT WITH A RADIUS OF 272. 00 FEET, THROUGH AN ANGLE OF 26 DEGREES 06 MINUTES 10 SECONDS, AN ARC LENGTH OF 123. 92 FEET; THENCE SOUTH 62 DEGREES 12 MINUTES 51 SECONDS EAST, 155. 75 FEET; THENCE ALONG A TANGENT CURVE TO THE RIGHT WITH A RADIUS OF 2, 972. 00 FEET, THROUGH AN ANGLE OF 2 DEGREES 27 MINUTES 18 SECONDS AN ARC LENGTH OF 127. 34 FEET; THENCE SOUTH 59 DEGREES 45 MINUTES 33 SECONDS EAST 259. 19 FEET; THENCE ALONG A TANGENT CURVE TO THE RIGHT WITH A RADIUS OF 34. 00 FEET; THROUGH AN ANGLE OF 60 DEGREES 55 MINUTES 57 SECONDS, AN ARC LENGTH OF 36. 16 FEET; EM/ 6/ CDD
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THENCE SOUTH 1 DEGREE 10 MINUTES 24 SECONDS WEST, 24. 21 FEET; THENCE SOUTH 88 DEGREES 49 MINUTES 36 SECONDS EAST 26. 00 FEET TO THE EASTERLY LINE OF SAID PARCEL ( 3932 OR 323);
THENCE ALONG LAST SAID LINE AND ALONG THE SOUTHWESTERLY LINE OF LAST SAID PARCEL AND ALONG THE GENERAL SOUTHWESTERLY LINE OF SAID PARCEL ( 3940 OR 450) SOUTH 1 DEGREE 10 MINUTES 24 SECONDS WEST 87. 03 FEET NORTH 54 DEGREES 44 MINUTES 38 SECONDS WEST 579. 67 FEET, AND NORTH 57 DEGREES 12 MINUTES 49 SECONDS WEST 190. 95 FEET TO THE POINT OF COMMENCEMENT.
PARCEL THREE:
ALL OF PARCEL ONE, AS SAID PARCEL IS SHOWN ON THAT CERTAIN PARCEL MAP FILED FOR
RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON JANUARY 23, 1974 IN BOOK 335 OF MAPS, AT PAGE 19.
APN: 153- 15- 030 ( Affects Parcels One and Two)
153- 15- 002 ( Affects Parcel Three)
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EXHIBIT B
PROPERTY DIAGRAM
to be inserted in execution version]
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