Agmt01 Western Innisfree Ventures LLC

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exceed the sum of Twenty Million Dollars ($20,000,000), the City and/or the Agency shall be solely responsible for any and all such excess costs and expenses of developing and constructing the Parking Structure Project, and Developer shall have no further obligation or liability of any kind whatsoever for such excess costs and expenses. If the total amount of the Parking Structure Project Costs upon completion of the development and construction of the Parking Structure Project is less than Twenty Million Dollars ($20,000,000), then the Developer shall contribute to the City a sum equal to the difference between (i) the total amount of the Parking Structure Project Costs and (ii) Twenty Million Dollars ($20,000,000), and Developer shall have no further rights thereto. No later than the date shown in the Schedule of Performance, the City and Developer shall develop and agree upon a pre-construction design budget (the "Pre-Construction Design Budget") reflecting the estimated amount required to carry out preliminary design work for the Parking Structure Project. The amount of the Pre-Construction Design Budget shall not exceed the sum of One Hundred Thousand Dollars ($100,000). Subject to compliance with the Pre- Construction Design Budget, Developer shall pay the expenses incurred for preliminary design work for the Parking Structure Project, and the total sum of such payments made by Developer shall be credited against the amount of the Parking Structure Contribution required to be made by Developer pursuant to the provisions of this Section 518-A. B. Developer shall be responsible for overseeing the design, development and construction of the Parking Structure Project pursuant to, and subject to the terms and provisions contained in, a design build agreement (the "Design Build Agreement") to be entered into between the City and Developer in accordance with the Schedule of Performance. The Design Build Agreement shall be generally in the form of, and shall contain provisions (including a provision for the payment of fees and reimbursement of expenses to Developer) generally comparable to those customarily contained in, development management agreements used on comparable projects in San Mateo and Santa Clara Counties and design build agreements customarily used by the City. C. Notwithstanding that the City shall have the right under the Design Build Agreement to approve the design of the Parking Structure, it is understood and acknowledged by the City that Developer has a material interest in the design, appearance and functionality of the Parking Structure because of the fact that the Parking Structure will be integrated with the Office Building and will also function as an integral part of the overall Project. Accordingly, the City and Developer agree to proceed in good faith to agree upon reasonable design and construction criteria for the Parking Structure Project, in order to ensure the Developer that the quality of design and esthetics of the Parking Structure, the quality of materials and finishes used in construction of the Parking Structure, including, without limitation, the elevators and stairwells, and the access to and functionality of the Parking Structure is consistent and compatible with a first-class office building of the quality of the Office Building to be constructed by the Developer on the Office Building Parcel. D. The Developer shall, pursuant to the Design Build Agreement, enter into a construction contract with the general conf,'actor for the construction of the Project, which construction contract shall otherwise be on such terms and conditions as the City may approve in its reasonable discretion. E. In accordance with the Schedule of Perfom,ance, the City and Developer shall enter into a parking agreement (the "Parking Rights Agreement"), providing for certain fights and obligations of the parties with respect to the use of parking spaces within the Parking Structure by tenants of the office building to be constructed on the Office Building Parcel, including, without limitation, the right to use approximately 320 parking spaces in the Parking Structure for daytime office parking, Mondays through Fridays, 7:30 AM to 6:00 PM, excluding S1 DOC$SFl:495065.9 9975-5 NWN