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Deferred Improvement Agreement - Arroyo, Jose Luis and Alma D. 0'3 Pages: 8 RECORDING REQUESTED BY: Iliiillliiiil 30.00 Fees. . . . Taxes. . . Cop i es. . AMT PAID City of Gilroy 30.00 ROE ** 012 3/19/2008 8:33 AM 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 (SP ACE ABOVE THIS LINE FOR RECORDER'S USE) Deferred Improvement Agreement No. 2007-08 345 Leavesley Road APN 835-01-019; Jose Luis and Alma D. Arroyo IVPAPP1731650.1 071207-04706089 DEFERRED IMPROVEMENT AGREEMENT AGREEMENT BY OWNER OR HIS SUCCESSORS IN INTEREST TO CONSTRUCT LAND DEVELOPMENT IMPROVEMENTS No. 2007-08 Project Identification: 345 Leavesley Rd.. Gilroy. CA. A.P.N.835-01-019 This is an agreement between the City of Gilroy, hereinafter referred to as "City", and Jose Luis and Alma D. Arroyo, hereinafter referred to as "Owner" as of the date of City's execution hereof (the "Effective Date"). Recitals Owner owns property located at 345 Leavesley Road, Assessor's parcel number 835-01- 019, referred to herein as the "Property". Said Property is further depicted in Exhibit A, attached hereto. Owner wishes to defer construction of overhead utilities, which overhead utilities are described in Article 11. A, below (the "Improvements") and City agrees to such deferment provided Owner (or Successor in interest) agrees to construct the Improvements as herein provided. NOW, THEREFORE, IT IS AGREED: 1. 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'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 the undergrounding of existing overhead/above-ground utilities that are along the frontage of the Property. Said undergrounding of existing overhead/above-ground utilities along the Property frontage shall herein be referred to as the "Improvements." B. Owner may defer commencement of construction of the Improvements until the earlier of the following: -1- IVPAPP1731650.1 071207-04706089 a. The date that the Owner submits plans for new development on the Property to the City; or b. Twenty-five (25) years after the Effective Date of this Agreement. C. If the Property is ever subdivided, the responsibility to construct the Improvements shall 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. Upon submission of such plans for new development of the Property, the Owner shall inform City Engineer of the existence of this Deferred Development 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 of the Improvements because of the occurrence of any of the conditions set forth in Article ILB, the City Engineer shall notify Owner in writing to commence their installation and construction. 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. Owner agrees to provide to the City a ten (10) foot Public Service Easement ("PSE") along the entirety of the Property's frontage adjacent to Leavesley Road. Owner will provide a parcel map and pay all fees for the map with the PSE no later than the date of City acceptance of the Improvements. 111. PERFORMANCE OF THE WORK 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 -2- IVPAPP1731650.1 071207.04706089 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 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) 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. -3- IVPAPP\731650.1 071207-04706089 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 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 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. This provision shall not be deemed to require the Owner to Indemnify the City against the liability for damage 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. EOF, City has executed this agreement as of January 10., 2008. CIT 5TB~ i3;k~ ~nn Interim City Administrator '-,.J APPROVED AS TO FORM: J\.1 ],jftdjA~ ~ \...- . c( !. 4. ~r-"'"'}CITY ATTORNEY f-t' ~,~ January 9, 2008 IN WITNESS WHEREOF Owner has execnted this agreement as of ~F~pM OWNER -4l/ f &/!.oy 0 _ ~Uls oyo OWNER -4- IVPAPP\731650.1 071207.04706089 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ~~~~~~ County of Santa Clara --. } State of California On 1-9-2008 Dale before me, Patricia K. Bentson, Notary Public Here Insert Name and Title of the Officer personally appeared Jose Luis Arroyo and Alma 'D:r~':;:'<A}!'TOYO Name(s) of Signer(S~ e. Com"'. de. ~"'III7_ I Notary PublIc . California I IanfaCtGra County .- J~~--__~~~~~~JI who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) i~ubscribed to the within instrument and acknowledged to me that he/she~xecuted the same in)lisLQ~authorized capacity(ies), and that by his/her/~ignature(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 L Signatu 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: Deferred Improvement Agreement 2007-08 Document Date: 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 [l Trustee C Guardian or Conservator -1 Other: Top of thumb here Signer's Name: [] Individual [] Corporate Officer - Title(s): o Partner - 0 Limited 0 General D Attorney in Fact o Trustee o Guardian or Conservator =:' Other: Signer Is Representing: Signer Is Representing: ~~~-g,.~~~-g,.~~~~~-g,.~~~~~-g,.~~~~~~~~ @2007 ~Jational Notary Association. 9350 De Soto Ave.. PO. Box 2402. Chatsworth. CA 91313-2402. w'M,.NationaINotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827 ACKNOWLEDGMENT STATE OF CALIFORNIA ) )ss. COUNTY OF SANTA CLARA ) TITLE OF DOCUMENT: Deferred Improvement Agreement No. 2007-08 345 Leavesley Road APN: 835-01-019 Jose Luis and Alma Arroyo On January 14, 2008, before me, Susan R. Johnson, Notary Public, personally appeared Anna Jatczak, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person 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. l~~-~~~~~-~~~~ @ SUSAN R. JOHNSON _ -~ Commission # 1543104 i. .. Notary Public. Calnomla ~ ~ Santa Clara County f _ _ _ ~y .:o:m,;.. 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"".- ........_~.... ~ I<..- :-r -~ r3 llII: Ol f~l 2; :r u Z C II: J.-3fII atI frf ..9 3W .i.e") . .. c :IE Z 4 ~ -- .... ..z :iSl a~ A" __ a: .YL -- cri '" .. ... ~ ~-. - !2 >- .~ B! ! q ~ 2 :z f i ~ I .. .. 1 ....... ...- @ . u c .... ... ,.: i _.!c-l @ VICINITY SITE MAP 345 Leavesley Road, Gilroy, CA APN: 835-01-019 Jose Luis and Alma Arroyo Exhibit A