Deferred Improvement Agreement - Walton, Gary - PIA No. 2008-02
DOCUMENT: 19964384
RECORDING REQUESTED BY
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Fees. .
Taxes.
Copies.
AMT PAID
Pages:
10
36.00
36.00
City of Gilroy
WHEN RECORDED, MAIL TO:
Shawna Freels
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
REGINA ALCOMENDRAS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Ci ty
ROE *'* 010
8/25/2008
2:31 PM
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
Deferred Improvement Agreement No. 2008-02
60 Fourth Street
APN 799-06-068;
By and between
The City of Gilroy, California
and
Gary Walton
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DEFERRED IMPROVEMENT AGREEMENT
AGREEMENT BY OWNER OR HIS SUCCESSORS IN INTEREST TO
CONSTRUCT LAND DEVELOPMENT IMPROVEMENTS No. 2008-02
Project Identification: 60 Fourth Street, Gilrov, CA; A.P.N. 799-06-068
This agreement ("Agreement") is entered into by the City of Gilroy, California, (the "City"), and
Gary Walton, (the "Owner") as of the date of City's execution hereof (the "Effective Date").
Recitals
Owner owns property located at 60 Fourth Street, Assessor's parcel number 799-06-068, (the
"Property"). Said Property is further described in Exhibit A, attached hereto.
Owner is constructing a mixed use development consisting of residential, office and retail units
(the "Project").
Owner wishes to defer undergrounding of overhead utilities crossing Eigleberry Street to the
parcel, currently utilized as a post office, which parcel is further described as 7559 Eigleberry
Street, Assessor's Parcel Number 799-06-023, (the "PO Lot") which undergrounding is further
described in Article II.A, below (the "Improvements") and City agrees to 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. UTILITIES IMPROVEMENTS
A. City and Owner agree that Owner may defer its share of the undergrounding of existing
overhead/above-ground utilities running from the utility pole located closest to the
northwest corner of the Property ("Owner Utility Pole") to the center of Eigleberry
Street. The current placement of said poles is further depicted in Exhibit B. Said
undergrounding of existing overhead/above-ground utilities shall herein be referred to as
the "Improvements".
B. Owner may defer commencement of construction or payment of Owner's share of cost
for the Improvements until the earlier of the following:
1. The date that the City commences construction of the proposed street
improvement along Fourth Street. If the Improvements have not been
commenced prior to this Date, City shall perform (or cause to be performed) the
actual construction of the Improvements and Owner shall pay the City a
proportion of the cost equal to the then current estimated or actual total cost of
constructing the Improvements from the Owner Utility Pole to the center of
Eigleberry Street.
2. The date that owner of the PO Lot ("PO Lot Owner") commences construction
or development on the PO Lot ("PO Lot Property Improvements"). At such
time, Owner shall pay the City a proportion of the cost equal to the then current
estimated or actual total cost of constructing the Improvements from the Owner
Utility Pole to the center of Eigleberry Street.
3; Twenty-five (25) years after the Effective Date of this Agreement, at such time the
Owner shall pay the City a proportion of the cost equal to the then current
estimated or actual total cost of constructing the Improvements from the Owner
Utility Pole to the center of Eigleberry Street.
C. 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.
D. When the City Engineer determines that the Owner should commence construction, or
pay its share of the cost, of the Improvements because of the occurrence of any of the
conditions set forth in Article II.B, the City Engineer shall notifY Owner in writing to
commence their installation and construction and/or notifY the Owner the amount of cost
that will be due for such undergrounding. 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 at a specified time.
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
development proposals related to undergrounding public utilities, which duties are
currently held by the City Engineer.
E. If, at any time, the PO Lot Owner and Owner enter into an Agreement to construct,
and/or jointly construct, the Improvements, Owner and the PO Lot Owner shall thereafter
be jointly and severally liable for satisfactory completion of the Improvements and any
and all liabilities resulting from such construction.
F. The Owner recognizes that the Owner Utility Pole and PO Utility Pole may at some point
be moved. For purposes of this agreement, if such utility poles are moved, the Owner
Utility Pole shall be defined as that utility pole located along 4th Street, which pole is
closest to the northwesterly corner of the Property; the PO Utility Pole shall be defined as
that utility pole located along 4th Street, which utility pole is closest to the northeasterly
corner of the PO Lot.
III. PERFORMANCE OF THE WORK
Should the Owner be required to construct the Improvements, Owner agrees to acquire all
permits necessary to construct the improvements on the date that Owner commences such
improvements. 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 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 REOUIREMENTS
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)
Owner shall offer (at no cost) to dedicate such improvements to the Utility. If the Utility refuses
to accept such offer after Owner compliance with all City and Utility requirements, Owner shall
offer to dedicate same to City, however, City shall be under no obligation so 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 furnishing 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:
(1) 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
act of negligence, or both, of the Owner, his employees, agents, contractors, sub-
contractors, or anyone directly or indirectly employed by either ofthem, 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.
(2) 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:
(a) 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;
(b) all of City's costs, fees, and damages incurred III 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 time, 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.
ARTICLE X
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 terms, 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 WITNE S WHEREOF th parties have executed this agreement as of the date set forth
below.
APPROVED AS TO FORM:
Y~().'M~
Linda A. Callon, City Attorney
OWNER
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
.
State of California
County of to..S-ai11tL t!kr~
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, Date
personally appeared
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I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
Signatu
Though the information below is not required by law, it may prove valuable to persons relying on the document
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@2007 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
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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he/ e/they executed the same in@Ztier/their authorized
apacity(ies), and that b@er/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.
Place Notary Seal Above
WITNESS/!J.l~nd official seal.
Signatu~~, d.Z1~ .
OPTIONAL
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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: '~PLrrpcIX'rnp('()ve.lvlen-fJ1]J R.lfYJ()fl-L ;;( aot-iJ2
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Signer Is Representing:
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@2007 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
EXHIBIT "A"
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF SANTA CLARA,
CITY OF GILROY, STATE OF CALIFORNIA DESCRIBED AS FOLLOWS:
All that certain, property as set forth In mat certain Certificate of CompJiance (Lot Merger) recorded October 3,
2006 under Series 19t28734,. Offidal Records, Santa aara County, and more particularly d~bed as'follows.'
Being all of Parcels One and Two as described by Deed recorded in'Santa aara County Recorders Document
No 14772516 and all of that certain Parcel of Land as described by.~ in.Recorder'$ DOc. No. 17909352 of
said County; said Parcels located in the City of Gilroy, County of Santa aara, State of California, more
particularly describe9 as follows:
BegInning at the Intersection of the Easterly line of Elglebeny Street (75.00 f.eet in width) with the Southerly
! IIn~ of Fourth S~ (66.00 feet I,n width) and running thence Southerly along the Easterly line of said
. 8g1eberry Street 99~80 feeti.thence Easterlyand.parallel wfth said Sout;herfy line of Fourth Street 142.00 feet,
more or less to a poInt on the Westerly line of an alley (16.00 feet In width); thence Northerly along sald~Alley
99.80 feet more or less to a point on sai~ Southerly line of Fourth Street; thence Westerly along sale! Sc;>utherly
line of Fourth . Street 142.00 feet, I more or less to the point of beginning and ~jng a portion Qf Lot 4 In BlOck 2
Nori:h,. Range 1 west, of the aty of Gilroyl as designated and deflneated upon Map ,No.5, accompanying the
report of the referees in the partition suit of Hener.y Miller, et ai, .plalntiff.vs. Massey Thomas, et al defendants
in the SUperior Court: of the State of Califomi~, In the County of Sa.nm Cara, ~e Number 5536.
799-06-040, 66, 67
02007
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