Exhibit 99.7
SIXTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS SIXTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "Amendment") is made as of the 17th day of
February, 2000, by and between Inprise Corporation ("Seller") and
ScanlanKemperBard Companies, an Oregon corporation ("Buyer").
RECITALS
A. Buyer and Seller are parties to an Agreement of Purchase and Sale
and Joint Escrow Instructions, dated as of December 30, 1999, as amended by
a First Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of January 27, 2000, a Second Amendment to Agreement
of Purchase and Sale and Joint Escrow Instructions, dated as of February 8,
2000, a Third Amendment to Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of February 11, 2000, a Fourth Amendment to
Agreement of Purchase and Sale and Joint Escrow Instructions, dated as of
February 15, 2000, and a Fifth Amendment to Agreement of Purchase and Sale
and Joint Escrow Instructions dated as of February 16, 2000 ("Original
Agreement"), pursuant to which Seller agreed to sell to Buyer, and Buyer
agreed to purchase from Seller, certain real and personal property located
at 000 Xxxxxxxxxx Xxx, Xxxxxx Xxxxxx, Xxxxxxxxxx, and certain related
rights, all as more particularly described in the Original Agreement
(collectively, the "Property"); and
B. Buyer and Seller desire to amend the Original Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Definitions. Capitalized terms that are used but not defined in
this Amendment, shall have the respective definitions given to such terms
in the Original Agreement. As used herein, the term "Agreement" shall mean
the Original Agreement, as amended by this Amendment and any subsequent
amendments.
2. Entitlements. The following new Section 1.1.6 shall be added to
the Agreement immediately following Section 1.1.5:
"1.1.6 Seller's right, title and interest in and to any
and all rights and entitlements solely to the extent relating to
development of the Real Property (and not the Polo Ranch
property) (collectively, the 'Entitlements') including, without
limitation, (i) Seller's rights solely related to the Real
Property under that certain Owner Participation and Development
Agreement, dated December 25, 1991, by and between Borland
International, Inc., a Delaware corporation and the Redevelopment
Agency of the City of Scotts Valley, a public body, corporate and
politic of the State of California ('Agency'), and the City of
Scotts Valley, a municipal corporation ('City'), as amended from
time to time ('Development Agreement'), (ii) any development fee
credits and other credits toward fees relating to development of
the real property (collectively, 'Fee Credits') including,
without limitation, that certain off-site fee credit of $889,303
referred to in Resolution No. 1539 of the City Counsel of the
City of Scotts Valley and that certain development fee credit of
$288,243 referred to in that certain letter, dated April 28,
1995, from the Planning Director of the City of Scotts Valley to
Borland International (a copy of such Resolution and letter are
attached as Exhibit "A" to the Sixth Amendment to Agreement of
Purchase and Sale and Joint Escrow Instructions, dated as of
February 15, 2000, by and between Buyer and Seller). Prior to
the Close of Escrow, Seller shall, at Seller's expense but with
Buyer's cooperation, exercise commercially reasonable best
efforts to obtain the written consent of the City and Agency to
the assignment of all of Seller's rights to Buyer under the
Development Agreement and the assignment of the Fee Credits to
Buyer (the 'Transfer of Entitlements Consent'). Seller is not
making any representation or warranty that the Fee Credits are
transferable. Buyer shall provide to the City and Agency any and
all documents, including financial statements and/or tax returns,
reasonably requested by the City or Agency in connection with
their review of the assignment of Seller's rights to Buyer under
the Development Agreement."
3. Transfer of Entitlements. Section 3.3 of the Original Agreement
is hereby deleted and, in lieu thereof, the following shall be inserted:
"3.3 At the Close of Escrow, (i) Seller shall transfer its
right, title and interest to the Personal Property pursuant to a
xxxx of sale (the 'Xxxx of Sale') in a form to be prepared by
Seller prior to the Contingency Deadline and which shall be
reasonably satisfactory to Buyer, (ii) Seller shall transfer and
assign its right, title and interest in the Leases, and, to the
extent transferable, Approved Contracts and Documents pursuant to
an assignment (the 'Assignment of Leases, Approved Contracts and
Documents') in a form to be prepared by Seller prior to the
Contingency Deadline and which shall be reasonably satisfactory
to Buyer and (iii) Seller shall transfer and assign its right,
title and interest in the Entitlements, and Buyer shall assume
Seller's obligations under the Development Agreement to the
extent related to the Real Property, pursuant to an assignment
(the 'Assignment of Entitlements') in a form to be prepared by
Seller prior to the Contingency Deadline and which shall be
reasonably satisfactory to Buyer. Seller shall exercise good
faith efforts to obtain, at its sole cost and expense, any
consents needed for assignment to Buyer of the Leases, Approved
Contracts, Documents and Entitlements."
4. [Intentionally Omitted.]
5. Additional Buyer's Closing Condition. The following Section
5.1.8 shall be added to the Agreement immediately following Section 5.1.7:
"5.1.8 Transfer of Entitlements Consent. It shall be a
Buyer's Closing Condition that Buyer shall have received the
Transfer of Entitlements Consent, duly executed on behalf of the
City and the Agency."
6. Closing Deliveries. Section 6.1.2 of the Original Agreement is
hereby deleted and, in lieu thereof, the following shall be inserted:
"6.1.2 Two (2) executed counterparts of (i) the
Assignment of Leases, Approved Contracts and Documents, (ii) the
Xxxx of Sale and (iii) the Assignment of Entitlements."
Section 7.1.2 of the Original Agreement is hereby deleted and, in lieu
thereof, the following shall be inserted:
"7.1.2 Two (2) executed counterparts of (i) the
Assignment of Leases, Approved Contracts and Documents, (ii) the
Xxxx of Sale and (iii) Assignment of Entitlements."
7. Closing Date. Section 10.3 of the Original Agreement is hereby
deleted and, in lieu thereof, the following shall be inserted:
"10.3 The term 'Closing Date' shall mean the date upon
which the Close of Escrow shall occur, which date shall be
Friday, March 17, 2000, as such date may be extended pursuant to
the terms of this Agreement. The Closing Date shall occur on any
weekday from Tuesday through Friday. If any extension or
postponement of the Closing Date is scheduled for a Monday for
any reason, the Closing Date shall be automatically postponed
until the next business day."
8. Disbursements. A new subsection (b) shall be added to Section
11.1.1 of the Original Agreement as follows, and existing subsection (b)
shall be changed to subsection (c):
"(b) Retain Two Million Five Hundred Thousand Dollars
($2,500,000) of the Purchase Price in the Post-Closing Reserve in
accordance with the provisions of Section 11.2, below."
9. Post-Closing Reserve. The following new Section 11.2 shall be
added to the Agreement immediately following Section 11.1:
"11.2 Post-Closing Reserve.
"11.2.1 Establishment of Reserve. Upon the Close of
Escrow, Two Million Five Hundred Thousand Dollars ($2,500,000.00) of
the Purchase Price shall be retained in Escrow for the purposes
described in this Section 11.2 (the 'Post-Closing Reserve').
"11.2.2 Investing Funds in the Reserve. Escrow Holder
shall initially invest all funds held in the Post-Closing Reserve in
an interest-bearing bank account at a bank that Buyer and Seller
approve. Thereafter Escrow Holder may invest and reinvest the funds
held in the Post-Closing Reserve in bonds, notes, treasury bills or
other securities constituting direct obligations of, or fully
guaranteed by, the United States of America (and provided, further,
that such direct obligations or guarantees, as the case may be, are
entitled to the full faith and credit of the United States
government), or in certificates of deposit issued by Bank or any other
U.S. bank having assets not less than $500,000,000 and net worth not
less than $100,000,000 (provided, however, that not more than
$1,000,000 shall be invested in certificates of deposit in any one
bank without the prior written consent of Buyer and Seller (which may
be granted or withheld in their respective sole discretion). All of
the securities and investments described in the immediately preceding
sentence shall have a maturity of three (3) months or less, and all of
which shall mature on or prior to the second anniversary of the Close
of Escrow (the "Second Anniversary"). All interest, dividends and
other income or proceeds earned on funds in the Post-Closing Reserve
("Reserve Income") shall be allocated/taxed to Seller for all income
tax purposes. Escrow Holder shall disburse to Seller, within five (5)
days following written request by Seller, which request shall not be
made more frequently than once per calendar month, any Reserve Income
in Escrow. Neither Buyer nor Seller shall be liable in any manner to
the other as a result of any investment decision made, or any approval
of or failure to approve any investment decision, with respect to the
Post-Closing Reserve.
"11.2.3 Claims on Reserve.
"11.2.3.1 Entitlement to Funds. After Buyer has
incurred Two Million Five Hundred Thousand Dollars ($2,500,000.00) for
'Stated Expenditures' (as hereinafter defined), Buyer shall be
entitled to draw funds from the Post-Closing Reserve, up to the
maximum amount on deposit therein (exclusive of any Reserve Income),
to pay for, or reimburse itself for, any additional Stated
Expenditures that Buyer may reasonably incur; provided, however, the
maximum aggregate amount of funds that Buyer may draw from the Post-
Closing Reserve for 'Deferred Maintenance Items' (as defined below)
shall be Five Hundred Thousand Dollars ($500,000.00). After Buyer has
incurred $2,500,000 of Stated Expenditures, Buyer shall deliver
written notice to Seller stating that Buyer has incurred such amount
of Stated Expenditures and that Buyer will seek reimbursement for
additional Stated Expenditures (to the extent permitted under this
Agreement) from the Post-Closing Reserve. Such notice shall be
accompanied by reasonable back-up documentation (such as invoices
and/or copies of checks) identifying the Stated Expenditures incurred
to date. As used herein, the term 'Stated Expenditures' means: (1)
any repairs or improvements to, or replacements of, any portion of the
Property to the extent reasonably deemed necessary by Buyer as a
result of any deferred maintenance at the Property as of the Close of
Escrow ("Deferred Maintenance Items"), (2) any tenant improvement
costs or allowances with respect to any space at the Property;
provided, however, that any proposed tenant improvement cost or
allowance in excess of Ten Dollars ($10) per rentable square foot
shall be subject to approval by Seller, which approval shall not be
unreasonably withheld, delayed or conditioned, and which approval
shall be deemed granted if Seller fails to object in writing to such
cost or allowance within five (5) Business Days following delivery to
Seller of notice of such proposed tenant improvement cost or
allowance, (3) any leasing commissions with respect to leases for
space at the Property to the extent paid or payable by or on behalf of
Buyer to independent third parties, and (4) those certain retrofit
costs (including, without limitation the cost of demising space in
Modules A, B and C) as are referred to in that certain letter, dated
January 27, 2000, from Buyer to Seller, a copy of which is attached
as Exhibit "B" to the Sixth Amendment to Agreement of Purchase and
Sale and Joint Escrow Instructions, dated as of February 15, 2000, by
and between Buyer and Seller.
"11.2.3.2 Disbursement Notice. If Buyer believes
in good faith that it is entitled to draw funds from the Post-Closing
Reserve for Stated Expenditures, it shall deliver a written notice
('Disbursement Notice') to Escrow Holder, with a copy to Seller. The
Disbursement Notice shall (i) state the amount of disbursement Buyer
is seeking, (ii) specify the date such disbursement should be made
(which shall be no sooner than three (3) Business Days after the date
the Disbursement Notice is delivered to Escrow Holder), (3) contain
Buyer's statement that Buyer has previously incurred (and has not been
reimbursed for) $2,500,000 of its own funds for Stated Expenditures,
and that the requested disbursement is to pay or reimburse Buyer for
additional Stated Expenditures reasonably incurred by Buyer to the
extent reimbursable under this Section 11.2.3, (4) be signed by Buyer
and (5) be accompanied by copies of reasonable back-up documentation
(such as invoices and/or copies of checks) identifying the
expenditures for which the disbursement will be used and showing that
such expenditures have been paid or are payable. Except as expressly
provided in Section 11.2.3.3, below, Escrow Holder shall disburse
funds from the Post-Closing Reserve to Buyer (or as otherwise directed
by Buyer) in accordance with any Disbursement Notice delivered by
Buyer to Escrow, and Buyer and Seller hereby irrevocably instruct
Escrow Holder to make such disbursement. Escrow Holder shall have no
obligation or right to verify or question the accuracy or sufficiency
of information set forth in or accompanying any Disbursement Notice.
In addition, no consent or further instructions from Seller shall be
required as a condition to any such disbursement and, except as
expressly provided in Section 11.2.3.3, below, such disbursement shall
be made notwithstanding any contrary instructions that may be
delivered by Seller to Escrow Holder. In the event Seller disputes
any Disbursement Notice or Buyer's entitlement to funds from the Post-
Closing Reserve, Seller shall not be entitled to prevent disbursement
in accordance with the Disbursement Notice, whether through demand
made upon Escrow Holder or by injunction or other equitable remedy,
but Seller may cause certain future disbursements to be suspended
pending resolution of such dispute to the extent expressly provided in
Section 11.2.3.3, below. Escrow Holder shall not be liable with
respect to the sufficiency of or correctness as to form, manner of
execution of or validity of any Disbursement Notice deposited with
Escrow Holder, nor with respect to the identity, authority or rights
of any person executing the same.
"11.2.3.3 Disputes. In the event Seller shall in
good faith object to any Disbursement Notice, Seller shall deliver
written notice ("Dispute Notice") of such objection to Buyer and
Escrow Holder within ten (10) Business Days after delivery of the
disputed Disbursement Notice. Seller may object to a Disbursement
Notice only for the following reasons: (i) the disbursement is sought
for purposes other than paying or reimbursing Stated Expenditures,
(ii) Buyer is seeking disbursement for Deferred Maintenance Items
after Buyer has already received aggregate disbursements for Deferred
Maintenance Items which exceed $500,000, (iii) the requested
disbursement otherwise violates the terms of this Agreement, (iv)
Buyer has not applied prior disbursements in accordance with the
Disbursement Notices relating to such disbursements, or (v) the costs
incurred by Buyer for which it is requesting disbursement were not
reasonably incurred by Buyer. Notwithstanding anything to the
contrary in this Agreement or in the Dispute Notice, Escrow Holder
shall disburse to Buyer the full disbursement sought in the disputed
Disbursement Notice but Escrow Holder shall suspend future
disbursements (i.e., those requested in Disbursement Notices delivered
subsequent to Escrow Holder's receipt of a Dispute Notice) until
either (i) Buyer and Seller deliver to Escrow Holder a notice that
they have resolved their dispute (a 'Resolution Notice') or (ii) a
'Determination Notice' (as defined below) shall be delivered to Escrow
Holder. A Resolution Notice or Determination Notice need not be given
until any disbursements which Buyer has received in error (as agreed
upon by the parties or as determined by arbitration) shall have been
re-deposited by Buyer in the Post-Closing Reserve together with
interest thereon from the date of the disputed disbursement until re-
deposit at the rate of eight percent (8%) per annum.
"11.2.3.4 ARBITRATION OF DISPUTES. IF SELLER
SHALL DELIVER A DISPUTE NOTICE AND THE PARTIES ARE UNABLE TO RESOLVE
THE DISPUTE WITHIN FIVE (5) BUSINESS DAYS FOLLOWING DELIVERY OF THE
DISPUTE NOTICE, AT EITHER PARTY'S ELECTION, THE DISPUTE SHALL BE
RESOLVED EXCLUSIVELY BY BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR
CONDUCTED ACCORDING TO THE EXPEDITED PROCEDURES OF THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN
EFFECT ("AAA RULES"). UNLESS THE PARTIES OTHERWISE AGREE BETWEEN
THEMSELVES, THE ARBITRATOR SHALL BE SELECTED ACCORDING TO THE AAA
RULES. AS FAR AS IS PRACTICABLE, THE ARBITRATOR SELECTED SHALL HAVE AT
LEAST TEN YEARS' EXPERIENCE IN COMMERCIAL REAL PROPERTY MATTERS
INCLUDING AT LEAST FIVE YEARS' EXPERIENCE IN CONNECTION WITH REAL
PROPERTY CONSTRUCTION IN THE STATE OF CALIFORNIA. EITHER PARTY MAY
COMMENCE THE ARBITRATION BY FILING A DEMAND FOR ARBITRATION WITH THE
AMERICAN ARBITRATION ASSOCIATION AT ANY TIME FOLLOWING THE FIFTH (5th)
BUSINESS DAY AFTER SELLER DELIVERS A DISPUTE NOTICE AND PRIOR TO
DELIVERY OF A RESOLUTION NOTICE RELATING TO SUCH DISPUTE. THE
DETERMINATION OF THE ARBITRATOR SHALL BE FINAL AND BINDING UPON THE
PARTIES HERETO AND MAY NOT BE APPEALED. IT IS INTENDED THAT THE
DETERMINATION OF THE ARBITRATOR SHALL BE GIVEN FULL FAITH AND CREDIT
BY THE COURTS AND THAT THE COURTS SHALL ENTER ENFORCEABLE, RECORDABLE,
EXECUTABLE JUDGMENT GIVING EFFECT TO THE ARBITRATOR'S DETERMINATION
UPON THE REQUEST OF ANY PARTY HERETO. UPON CONCLUSION OF THE
ARBITRATION, AND FOLLOWING BUYER'S DEPOSIT INTO THE POST-CLOSING
RESERVE OF ANY DISBURSEMENT WHICH THE ARBITRATOR DETERMINED WAS
DISBURSED IN ERROR (TOGETHER WITH INTEREST AS PROVIDED IN SECTION
11.2.3.3, ABOVE) THE PARTIES HERETO SHALL CAUSE THE ARBITRATOR TO FILE
WITH ESCROW HOLDER WRITTEN NOTICE THAT THE ARBITRATION HAS BEEN
CONCLUDED AND THAT DISBURSEMENTS FROM THE POST-CLOSING RESERVE SHALL
RESUME ('DETERMINATION NOTICE'). ARBITRATION SHALL OCCUR IN SANTA
XXXX COUNTY, CALIFORNIA. THE COST OF THE ARBITRATION SHALL BE FIXED
BY THE ARBITRATOR AND BORNE BY THE LOSING PARTY. ONLY LIMITED
DISCOVERY SHALL BE PERMITTED, WITH SUCH LIMITED DISCOVERY CONSISTENT
WITH THE EXPEDITED NATURE OF THE PROCEEDING AND THE PARTIES' DESIRE
ONLY TO HAVE LIMITED DISCOVERY.
"NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN
THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY
AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE
'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO
ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
"WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
DISPUTES' PROVISION TO NEUTRAL ARBITRATION.
"BUYER: T.G. SELLER: H.McK.B.
-------- -------------
"11.2.3.5 Disbursement Delays. Notwithstanding
anything to the contrary in this Agreement, if the time for
disbursement pursuant to this Section 11.2.3 occurs prior to maturity
of investments by Escrow Holder in an amount sufficient to pay the
amount then due to Buyer, Escrow Holder shall pay to Buyer such
portion of the amount due as can then be paid without penalty and with
neither loss of principal nor loss of interest thereon at the rate
provided for on such investment, and shall pay the balance due to
Buyer as and when the balance can be paid without penalty or such loss
and shall also pay to or as directed by Buyer the interest earned,
from the 'Requested Disbursement Date' (as hereinafter defined) to the
payment date, on the portion of such investment which is equal to the
outstanding unpaid balance due to Buyer from time to time after the
Requested Disbursement Date. As used in this Section 11.2.3.5, the
'Requested Disbursement Date' with respect to a particular
Disbursement Notice means the date set forth in the Disbursement
Notice for disbursement of funds from the Post-Closing Reserve.
"11.2.4 Final Release of Funds from the Post-Closing
Reserve. Any Disbursement Notices must be delivered to Escrow Holder
on or prior to the Second Anniversary. All funds on deposit in the
Post-Closing Reserve on or after the Second Anniversary, except for
any funds remaining to be disbursed pursuant to any Disbursement
Notices delivered to Escrow on or prior to the Second Anniversary
('Pending Disbursements'), shall be disbursed to Seller within five
(5) Business Days following the Second Anniversary. In the event
that, after the Second Anniversary, Escrow Holder is notified (through
Resolution Notices delivered by Buyer and Seller or a Determination
Notice) that any funds being held as Pending Disbursements shall not
be disbursed as originally sought by Buyer in a Disbursement Notice,
such funds shall be disbursed within five (5) Business Days following
Escrow Holder's receipt of such notice to Seller.
"11.2.5 Escrow Fees. Escrow Holder's escrow fees and
charges relating to the Post-Closing Reserve shall be borne equally by
Buyer and Seller. Escrow Holder may withhold such fees and charges,
to the extent earned, out of disbursements to Buyer and Seller as
follows: (1) Escrow Holder may withhold Seller's share of such fees
from any disbursements to Seller under this Section 11.2 and (2)
Escrow Holder may withhold Buyer's share of such fees from any
disbursements to Buyer under this Section 11.2."
10. Assignment. The second to last sentence of Section 18.4 of the
Original Agreement is hereby deleted and, in lieu thereof, the following
shall be inserted: "Buyer shall not have the right to make any partial
assignment, delegation or other transfer of its rights, duties and
obligations under this Agreement; provided, however, notwithstanding any
assignment and delegation by Buyer of its rights, duties and obligations
under this Agreement, ScanlanKemperBard Companies shall have the right to
retain all rights, duties and obligations of Buyer under Section 16 of the
Agreement (the Put Option with respect to the Greenhills Property) and may
separately assign such rights, duties and obligations of Buyer under
Section 16 of the Agreement to any entity to whom an assignment is
permitted under this Section 18.4."
11. No Other Changes. Except as expressly modified or amended by
this Amendment, the Original Agreement shall remain in full force and
effect and be binding upon the parties in accordance with its terms.
12. Counterparts. This Amendment may be executed in two or more
counterparts each of which shall be an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
SELLER:
INPRISE CORPORATION, a Delaware
corporation
By /s/ Hobart McK. Birmingham
----------------------------------
Print Name: Hobart McK. Birmingham
Title: Chief Administrative Officer
BUYER:
SCANLANKEMPERBARD COMPANIES, an
Oregon corporation
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Print Name: Xxxx X. Xxxxxxx
Title: Vice President
EXHIBIT "A"
DOCUMENTATION REGARDING FEE CREDITS
[SEE ATTACHED]
CITY OF SCOTTS VALLEY
XXX XXXXX XXXXXX XXXXX XXXXXX XXXXXX, XXXXXXXXXX 00000 (408) 438-2324
April 28, 0000
Xxxxx Xxxxxxxx, Xxxxxxxx xx Xxxxxxxxx Xxxx Xxxxxx
Borland International
000 Xxxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
Ref: Borland Campus Phase I Development Fees
Dear Xxxxx:
In response to your letter of April 24, 1995, and based on the letters of
Xxxxx Xxxxxxxxxx, the architect for the Borland Headquarters, the City
acknowledges a development fee credit to Borland of $288,243. In the event
you proceed with the construction of Phase II in the future, that
construction will be given development fee credit in the amount of $288,243
consistent with the Development Agreement.
Sincerely,
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Planning Director
RJH:sa
cc: Xxxxx Xxxxxxxx, City Manager
Xxx Xxxxx, City Attorney
Xxx Xxxxxxxx, Public Works Director
RESOLUTION NO. 1539
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SCOTTS VALLEY
ESTABLISHING THE AMOUNT OF CREDIT DUE
BORLAND INTERNATIONAL FOR OFF-SITE IMPROVEMENTS
WHEREAS, the City of Scotts Valley ("City") and the Redevelopment
Agency of the City of Scotts Valley ("Agency") entered into an Owner
Participation and Development Agreement ("Agreement") with Borland
International, Inc. ("Property Owner") regarding the development of the
former Santa's Village site; and
WHEREAS, the Property Owner agreed to seek reimbursements established
under that Agreement by way of a credit against development impact fees for
related traffic impacts regarding the development of Phase II of the
remaining property owned by Property Owner; and
WHEREAS, the Property Owner has completed all of the improvements with
a total cost of improvements of One Million One Hundred Eighty-nine
Thousand Three Hundred Three Dollars ($1,189,303.00); and
WHEREAS, the City/Agency obligation, pursuant to the Agreement,
established the amount of the credit by deducting from the actual cost of
improvements the amount of $300,000; and
WHEREAS, the remaining amount due which may be credited to the Phase
II part of the development is Eight Hundred Eighty-nine Thousand Three
Hundred Three Dollars.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Scotts Valley, having been advised by its Public Works Department that the
amount of Eight Hundred Eighty-Nine Thousand Three Hundred Three Dollars
($889,303.00) has been established as the fee credit which may be used
toward construction of Phase II of Borland Headquarters, as per the
Agreement.
This Resolution was PASSED and ADOPTED on the 5th day of April 1995,
at a duly held meeting of the City Council of the City of Scotts Valley,
California, by the following vote:
AYES: Miller, Lopez, Cavallaro, Schmidt, Xxxxxxx
NOES: None
ABSENT: None
ABSTAIN: None
Approved: /s/ Xxxxxxx Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx, Mayor
Attest: /s/ Xxxx Xxxxxxx
--------------------------
Xxxx Xxxxxxx, City Clerk
EXHIBIT "B"
LETTER REGARDING RETROFIT COSTS
[SEE ATTACHED]
January 24, 2000
Mr. Xxxxx Xxxxx
Insignia/ES6
000 Xxxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: Budget Estimate
Dear Xxxxx,
Devcon is please to provide a budget estimate for various improvements at
Inprise, located in Scotts Valley, CA. Our budget estimate is based on
sketches provided by Nille Ostrgren & Associates. We offer the following
pricing:
1. Provide approximately 2,600 lf of 1-hour rated
tunnel corridors including demolition and
replacement of finishes. $1,522,700.00
2. Add three (3) each stairways to the second and
third floors. $732,000.00
3. Add one (1) each freight elevator where an
existing passenger elevator exists. $273,000.00
4. Add three (3) each stairways to the second and
third floors using the existing atrium openings
at each floor. $526,260.00
5. Provide glass walls at tunnel corridors where
they pass by atriums (200 lf total).
a) hollow metal and wire glass $91,300.00
b) fire light glass $270,900.00
6. At the exterior landscape around the lake, add
two (2) ea. stairways from grade elevation to
the second floor, and two (2) ea. Stairways
from the second floor to the third floor. $541,200.00
All work is intended to match the existing architecture. Design, permit
and fees are not included.
If you have any questions, please call me at (000) 000-0000.
Very Truly Yours,
DEVCON CONSTRUCTION, INC.
/s/ Xxx Xxxxx
------------------------------
Xxx Xxxxx
Project Manager
cc: Xxxx Fillzetti
