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Deferred Improvement Agreement - Pacific Coast Iron and Metals - No. 2012-01RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 NDOLINGERl1036902.1 030712-04706091 DOCUMENT: 21667284 I'VI'��6���i�IIIIIIiWI�NIN'� � Pages: ' 0a' AMT PAID 5100 REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of Recording Service RDE # 007 5/14/2012 1031 AM (SPACE ABOVE LINE FOR RECORDER'S USE Deferred Improvement Agreement No. 2012- 320 and 340 Obata Court APN 841 -79 -004 and 841 -79 -005; By and between The City of Gilroy, California WIT01 Pacific Coast Iron and Metals, Inc. DEFERRED IMPROVEMENT AGREEMENT AGREEMENT BY OWNER OR HIS SUCCESSORS IN INTEREST TO CONSTRUCT LAND DEVELOPMENT IMPROVEMENTS No. 2012- O Project Identification: 320 and 340 Obata Court; A.P.N. 841 -79 -004 and 841 -79 -005 This agreement ( "Agreement") is entered into by the City of Gilroy, California, (the "City "), and Pacific Coast Iron and Metals, Inc., (the "Owner ") as of the date of City's execution hereof (the "Effective Date "). Recitals Owner owns property located at 320 and 340 Obata Court Assessor's parcel numbers 841 -79- 004 and 841 -79 -005, (the "Properly"). Said Property is further depicted in Exhibit "A," attached hereto. Owner is constructing a recycling facility (the "Project"). Owner wishes to defer the following portion of the project: undergrounding of overhead utilities and sidewalk improvements that are along the project frontage (the "Improvements "), which Improvements are further described in Exhibit "B," attached hereto, and City agrees to the deferral of such Improvements provided Owner agrees to construct the Improvements as herein provided. NOW, THEREFORE, IT IS AGREED: I. AGREEMENT RUNS WITH LAND AND IS BINDING ON SUCCESSORS IN INTEREST This Agreement is an instrument affecting the title or possession of the Property and shall be deemed to run with the land. All the terms, covenants and conditions herein imposed shall be binding upon and inure to the benefit of the Owner and Owner's successors in interest to ownership of the Property. Upon any division of the Property, the terms of this Agreement shall apply separately to each parcel subdivided from the Property, and the owner of each such parcel shall succeed to the obligations imposed on Owner by this Agreement. II. IMPROVEMENTS A. City and Owner agree that Owner may defer construction of the Improvements (and/or payment of Owner's cost thereof) until the earlier of the following: 1. The date that the owner(s) of real property located adjacent to the Property, that is, 300 Obata Court (APN: 841 -79 -006) OR 360 Obata Court (APN: 841 -79 -003) (the "Adjacent Lots "), commences, or permits commencement of, any construction upon EITHER' of the Adjacent Lots pursuant to legally approved plans that require the undergrounding of WDOLINGER11036902.1 -1- 030712-04706091 overhead utilities and frontage improvements (sidewalks), thereon ( "Adjacent Lot Improvements "). (Prior to the commencement of the Adjacent Lot Improvements, Owner shall plan and coordinate the Improvements with the owner(s) of said Adjacent Lot(s), so that the Improvements are .constructed at the same time as the Adjacent Lot Improvements); 2. Twenty -five (25) years after the Effective Date of this Agreement; or 3. The date the City Engineer determines, in his/her reasonable discretion, that the reasons for the deferment of the Improvements no longer exist. B. If the Property is ever subdivided, the responsibility to construct the Improvements shall be joint and several amongst the owners of the subdivided parcel(s). Failure of the owner of any of the parcels to pay for such Improvements shall not excuse the Owner or owners of any of the other parcels from completing such Improvements. C. Upon submission of any plans for new development of the Property, the Owner shall inform the City Engineer of the existence of this Deferred Improvement Agreement and provide City Engineer with a copy of the same, if so requested. When the City Engineer determines that the. Owner should commence construction, or (if applicable) pay its share of the cost of the Improvements because of the occurrence of any of the conditions set forth in Article II.A, the City Engineer shall notify Owner in writing to commence installation and construction of the Improvements and/or notify the Owner the amount of cost that will be due for the Improvements. The notice shall be mailed to the current owner or owners of the land, as shown on the latest adopted county assessment roll. The notice shall describe the work to be done by Owner, the time within which the work shall commence and the time within which the work shall be completed. All or any portion of said Improvements may be required by City at a specified time. D. If the Property has been subdivided, the owner of each such parcel shall participate on a pro rata basis (based on the percentage of the square footage of Property included within the parcel) in the cost of the Improvements to be installed. If any owner is obligated to pay a pro rata share of a cost of a facility provided by others, the notice shall include the percentage to be paid and the time when payment must be made. Failure of City Engineer to provide Owner with the Notice set forth herein shall in no way excuse Owner's obligation to complete the Improvements required in this Agreement. Owner shall be deemed notified upon mailing of such notice to the address kept by County Assessor for mailing of tax statements. for the Property, unless the Owner hereof specifically provides City with written notification of a different address. For purposes of this Agreement, the term "City Engineer" shall refer to the City Engineer or, in the event that the position of City Engineer is ever abolished, renamed or the duties thereof are changed, to the City official whose duties include the right to review and approve WDOLINGER10369021 -2- 030712- 04706091 development proposals related to undergrounding public utilities, which duties are currently held by the -City Engineer. III. PERFORMANCE OF THE WORK If Owner is the party actually responsible for construction of the Improvements, Owner shall acquire all permits necessary to construct the improvements on the date such constriction commences. All fees for such permits shall be those required as of the date of application for such permits. Owner shall cause plans and specifications for the Improvements to be prepared by competent persons legally qualified to do the work and to submit said improvement plans and specifications for approval prior to commencement of the work described in the notice and to pay City inspection fees. Owner shall construct the Improvements in accordance with City standards (as well as the standards of the appropriate utility or utilities (collectively, the "Utility ") in effect at the time improvement plans are submitted for approval. Owner agrees to commence and complete the work within the time specified in the notice given by the City Engineer and to notify the City at least forty -eight (48) hours prior to start of work. (If no notice is given by the City Engineer, Owner shall contact the City Engineer to work out an appropriate time frame for completion of the Improvements). In the event Owner fails to construct the Improvements, City may, at its option, do the work and collect all costs from Owner. Permission to enter onto the property of Owner is granted to City or its contractor as may be necessary to construct such improvements. During construction, Owner agrees to provide and maintain necessary temporary drainage facilities, access roads or other required improvements, to assume responsibility for the proper functioning thereof, to submit plans to the appropriate City agency and/or Utility for review, if required, and to maintain said improvements and facilities in a manner which will preclude any hazard to life or health or damage to adjoining property. IV. JOINT COOPERATIVE PLAN Owner agrees to cooperate upon notice by City with other property owners, the City and other public agencies to provide the Improvements set forth herein under a joint cooperative plan including the formation of a local improvement district, if this method is feasible to secure the installation and construction of the improvements. V. REVIEW OF REQUIREMENTS If Owner disagrees with the requirements set forth in any notice to commence installation of improvements he shall, within thirty (30) days of the date the notice was mailed, request a review of the requirements by the City Council, The decision of the Council shall be binding upon both City and Owner. VI. MAINTENANCE OF IMPROVEMENTS Upon construction and completion of the improvements specified in ' Section Ii in accordance with City standards and requirements (as well as standards and requirements of the Utility) WDOLINGE11036902.1 -3- 030712-04706091 Owner shall offer (at no cost) to dedicate such improvements to the Utility. If the Utility refuses to accept such offer after Owner's compliance with all City and Utility requirements, Owner shall offer to dedicate same to City, however, City shall be under no obligation to accept such offer. VII: BONDS Prior to approval of improvement plans by the City, the City Administrator or City Engineer, in his or her discretion, may require Owner to execute and deliver to the City a faithful performance bond and a labor and materials bond in an amount and form acceptable to City to be released by the City Council in whole or in part upon completion of the work required and payment of all persons fl rnishing labor and materials in the performance of the work. VIII. INSURANCE Owner shall maintain or shall require any contractor engaged to perform the work to maintain, at all times during the performance of the work called for herein, a separate policy of insurance in a form and amount acceptable to City. IX. INDEMNITY The Owner shall assume the defense and indemnify and save harmless the City, its officers, agents and employees, from: A. every expense, liability or payment by reason of injury "including death" to persons or damage to property suffered through any act or omission, including passive negligence or active negligence, or both, of the Owner, his employees,. agents, contractors; sub - contractors, or anyone directly or indirectly employed by either of them, or arising in any way from the work called for by this Agreement, on any part of the premises, including those matters arising out of the deferment of development of the overhead utility lines or the adequacy, safety,.use or non- use of temporary utility lines, and the performance or non - performance of the work. B. any and all claims, damages, losses, judgments, liabilities, expenses and other costs, including, without limitation, litigation costs and attorney's fees (incurred by City and/or other parties involved in related legal proceedings), arising out of, - resulting from, or in any way connected to the following conditions: any violation or claim of ' violation of any law, rule or regulation (including, but not limited to, laws, .rules or regulations relating to payment of prevailing wage) applicable to any portion or aspect of the Project. Owner's obligation to defend, indemnify and hold the City of Gilroy harmless specifically includes, but is not limited to, any suit or administrative action against the City of Gilroy which claims a violation of any prevailing wage law, rule or regulation applicable to any portion or aspect of the Project for which the permit has been issued; WDOLINGEM1036902,1 -4- 030712- 04706091 2. all of City's costs, fees, and damages incurred in enforcing the indemnification provisions of this Agreement. The Owner's obligations to defend, indemnify and hold the City harmless as set forth herein, shall include, but shall not be limited to, staff tune, copying costs, court costs, the costs of any judgments or awards against the City for damages, losses, litigation costs, and /or attorney fees arising out of any violation or claim of violation of any law, rule or regulation applicable to any portion or aspect of the Project and costs of any settlement representing damages, litigation costs and attorney's fees to be paid to other parties arising out of any such proceeding. The provisions of this Article IX shall not be deemed to require the Owner to Indemnify the City against the liability for damage to the extent arising from the sole negligence or willful misconduct of the City of its agents, servants or independent contractors who are directly responsible to the City. X. INDEPENDENT DEVELOPMENT The parties specifically acknowledge that the Project is a private development, that no party'is acting as the agent of the others in any respect hereunder, and that each party is an independent contracting entity with respect to the tentis, covenants and conditions contained in this Agreement. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the parties, or the affairs of City, or otherwise, or cause them to be considered joint venturers or members of any joint enterprise. IN WITNESS WHEREOF, the parties have executed this agreement as of the date set forth below. Y OF GILROY I C Y ' L Date; z- Thomas J. Haglund CITY ADMINISTRAT,6R ATTEST: f }�G Date: a Fre l CITY CLERK,. 7 APPRO ED AS TO FORM: Date: /Z Linda Callon CITY ATTORNEY OWNER WDOLINGEM1036902.1 -5- 030712- 04706091 OW NE aw�,� Date. Carl Sal has, President and Treasurer WDOLINGEM1036902,1 -6- 030712. 04706091 CALIFORNIA ALL - PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of ,. M Jn IN= personally appeared who proved to me on the basis of satisfactory evidence to be the person(,whose nam IeSentity �� subscribed to the within instrument and acknowledged to me that Ie s� /tkK executed the same i h t>y�ir authorized capacity(i� and that b his /tl�r signatureM on the instrument the perso or t upon behalf of which the persoriKacted, 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. F Comm �m* �7 W > WITNESS my ha end official seal =ti No Pub1k•Cal'rtornia a - Santa Clara County my Comte , A� 0 aj (Notary Seal) Signature of Notary Public ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer (Title) ❑ Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Other 2008 Version CAPA v 12.10.07 800 - 873 -9865 www.NotaryC]asses.com INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authori_ed capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he /she /gwe - is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document EXHIBIT A LEGAL DESCRIPTION All that portion of lots 4 and 5, Tract No. 9342, In the City of Gilroy, County of Santa Clara, State of California, as shown on map filed for record in Book 756, page(s) 23 -24 of Maps, on December 19, 2002, File #16697133, in the office of the County Recorder of said county. APN: 841 -79-004 and 841 -79 -005 j. �I W4,P I -L A 41 mill 41,11 110. 1 '1191 ' 1 0 E 1 f •E E I j • I QN p.L. rho ��a � *� N � � 8 B I� EXHIBIT B Improvements The improvements to be constructed are the following: new and existing utility lines, appurtenances, and associated equipment, including but not limited to electrical transmission, telephone, street lighting, and cable television shall be placed underground along project frontage and sidewalk as stated in the Conditions of Approval, Planning Staff Report dated November 12, 2010 "4 CALIFORNIA • ACKNOWLEDGMENT State of California,, County of rl,! I n On 156n),; Date personally appeared Clam. I 54 INGA ALONZO Commission # 1931989 Notary Public - California Santa Clara County MY Comm. Expires r 15, 2015 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person( whose name(PIgaFe subscribed to the within instrument and acknowledged to me that (9/she*ey executed the same in6Naoheir authorized capacity(iK), and that by hi heir signature on the instrument the person, or the entity upon behalf of which the personA -A 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 y nd and official seal. Signature Signature of Nota is OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: )dey yed I LiUch Document Date: �'� I Cb 19, Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER 13 02007 National Notary Association - 9350 De Soto Ave., PO. Box 2402 - Chatsworth, CA 91313-2402 - www.NationaiNotary.org Item #5907 Reorder: Call Toll -Free 1- 800 - 876 -6827