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Deferred Improvement Agreement - Planned Parenthood Mar Monte - No. 2009-01 RECORDING REQUESTED BY City of Gilroy WHEN RECORDED, MAIL TO: Shawna Freels City of Gilroy 7351 Rosanna Street Gilroy, CA 95010 DOCUMENT: 20207057 111111111111111111111111111111111111111111 REG!NA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded a~ the request of I t:/ Fees Taxes Copies AMT PAID ,':Jages 9 33 00 33 00 ROE fl (3 I I 4/10/2009 2 27 P,~ (SPACE ABOVE THIS LINE FOR RECORDER'S USE) Deferred Improvement Agreement No. 1009-0 I IVPAPPI764803.2 062308-04706091 770 Renz Lane, Gilroy, CA APN 841-10-053 By and between The City of Gilroy, California and Planned Parenthood Mar Monte DEFERRED IMPROVEMENT AGREEMENT AGREEMENT BY OWNER OR HIS SUCCESSORS IN INTEREST TO CONSTRUCT LAND DEVELOPMENT IMPROVEMENTS No. 1009-01 Project Identification: 770 Renz Lane, Gilroy, CA; A.P.N. 841-10-053 This agreement ("'Agreement") is entered into by the City of Gilroy, California, (the "City"), and Planned Parenthood Mar Monte, (the "Owner") as of the date of City's execution hereof (the "Effective Date"). Recitals Owner owns property located at 770 Renz Lane, Gilroy, CA, Assessor's parcel number 841-10- 053, (the "Property"). Said Property is further depicted in Exhibit A, attached hereto. Owner is constructing a medical office (the "ProjecC). Owner wishes to defer undergrounding of overhead utilities that are along the frontage of the Property (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 construction of the Improvements (and/or payment of Owner's cost thereof) until the earlier of the following: a. The date that the owner(s) of real property adjacent to the Property ("'Adjacent Lot") commences, or permits commencement of, construction upon said Adjacent Lot, pursuant to legally approved plans that require the undergrounding of overhead utilities thereon ("Adjacent Lot Undergrounding"). Prior to the commencement of the Adjacent Lot Undergrounding, Owner shall plan and coordinate the Improvements with the owner(s) of said Adjacent Lot, so that the Improvements are constructed at the same time as the Adjacent Lot Undergrounding. IVPAPPI764803.2 062308-04706091 -1- b. Twenty (10) years after the Effective Date of this Agreement; or c. When 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 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, 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 Propcrty, unless the Owncr hcreof 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 cver 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. III. PERFORMANCE OF THE WORK If Owner is the party actually responsible for construction of the Improvements, Owner shall acquire all pennits necessary to construct the improvements on the date such construction commences. All fees for such permits shall be those required as of the date of application for IVPAPPI764803.2 062308-04706091 -1- 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 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 IVPAPPI764803.2 062308-04706091 -3- 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 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. (1) 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 Ab'feement. 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. IVPAPPI764803.2 062308-04706091 -4- 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 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 WITNESS WHEREOF, the parties have executed this agreement as of the date set forth below. (7(~ tj. ~ Linda A. Callon, City Attorney Giambruno VP Finance & Admini APPROVED AS TO FORM: IVPAPPI764803.2 062308-04706091 -5- TItle No. 07-98202766-MC Locate No. CACT17743-7743-2982-0098202766 LEGAL DESCRIPTION EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Being a portion of Ranch Lot 43 as shown on Map No.7 accompanying the Report of the Referees in the Las Animas Rancho Partition Suit, Action No. 5536 had in the Superior Court of the State of California, in and for the County of Santa Clara, and being also a portion of the certain 41.117 acre parcel of land shown as Parcel One, Henry Brem, on the Map entitled, "Record of Survey for Brem Brothers in Ranch Lots 43, 44, and 47", which Map is recorded in Book 69 of Maps, at Page 17, Records of Santa Clara County, California, and being more particularly described as follows: Beginning at the point of intersection of the Southwesterly line of Pacheco Pass Highway with the Northwesterly line Ninth Street, 60.00 feet in width; thence from said Point of Beginning South 51030' East along the Southwesterly line of Pacheco Pass Highway for a distance of 160.97 feet; thence along a tangent curve to the left having a radius of 217.8 feet for an arc length of 58.55 feet to the Northwest corner of that certain 0.804 acre parcel of land described in the Deed to Albin F. Todd and Lorraine Todd filed for record on March 24, 1958 in Book 4036 of Official Records at Page 121; thence South 0009'50" West along the Westerly line of said 0.304 acre parcel and its Southerly prolongation for a distance of 260 feet more or less to the point of intersection thereof with the Northeasterly line of that certain parcel of land described as Parcel 2 A in that Final Order of Condemnation filed for record on July 12, 1968 in Book 8189 of Official Records at Page 556; thence Northwesterly along the said Northeasterly line along an arc of a curve to the right from a tangent bearing North 77058'37" West with a radius of 347.00 feet, through a central angle of 55012'13" for an arc length of 334.33 feet; thence North 22046'24" West 165.42 feet to the point of intersection thereof with the Northwesterly line of said Ninth Street; thence North 70041'10" East along the Northwesterly line of said Ninth Street for a distnace of 146.71 feet to the Point of Beginning. Excepting therefrom, that portion of land deeded to the State of California recorded June 17, 1980 in Book F397 Page 546 Official Records, being more particularly described as follows: All that certain real property in the City of Gilroy, County of Santa Clara, State of California, being a portion of Ranch Lot 43 as shown on Map No.7 accompanying the Report of the Referees in the Los Animas Ranch Partition Suit, Action No. 5536 had in Superior Court of the State of California, in and for the County of Santa Clara, being also a portion of the certain 41.17 acre parcel of land shown as Parcel One, Henry Brem, on the Map entitled, "Record of Survey for Brem Brothers in Ranch Lots 43, 44 and 47" which Map is recorded in Book 69 of Maps, Page 17, Records of Santa Clara County, more particularly described as follows: Beginning at the point of intersection of the Southwesterly line of Renz Lane (formerly Pacheco Pass Highway) with the Northwesterly line of Ninth Street (vacated); thence along the Southwesterly line of said Renz Lane S 50043'47" E, 164.47 feet to the beginning of a tangent curve concave to the Northeast and having a radius of 217.80 feet; thence along said curve, beign also said Southwesterly line, through an angle of 4049'38", 18.35 feet; thence leaving said Southwesterly line S 39042'03" W, 240.24 feet to a point of intersection with the Easterly line of that certain parcel of land described as Parcel 2A in that Final Order of Condemnation filed for record on July 12, 1968 in Book 8198 at Page 556, Official Records of said County, said Easterly line being a curve concave to the Northeast and having a radius of 347.00 feet, a radial line through said point of intersection bears S. 47044'34" W, thence along said Easterly line through an angle of 19029'02", 118.00 feet, thence continuing along said Easterly line N 22046'24" W, 165.42 feet to the Northerly line of Ninth Street (vacated) thence along said Northerly line S 70041'10" E, 146.71 feet to the Point of Beginning. APN: 841-10-053 2 ClTA P'ellmlnary Report Form - Modmed (11/17/06) CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of ~~ C\C\.1f ~ On :::L- \ ~ -() C) before me. personally appeared -=::s O~ \\ f. c;\ C\~\uf\JJ\U who proved to me on the basis of satisfactory evidence to be the person~ whose nam~ is~e subscribed tv the within instrument and acknow'ledged to me that he/~he/thcy executed the same in his/ller/thcH- authorized capacity(~'s). and that by his/her/their signature(y} on the instrument the person(j), or the entity upon behalf of which the person~ acted. executed the instrument. I certif\ under PENALTY OF PERnJRY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and offiCIal seal. ~~~ Signature of ~ ol.1r\' Public (:\ol.1rv Seal) ROSE SHEA ~ COMM. # 1750566 ::. NOTARY PUBLIC . C~IFORNIA G) SANTA CLARA COUNTY () CONM. EXPIRES JULY 9. 2011 .. . . () O\~\\ critIc or description . al1.1chcd document) __A\-r:' "',\. '\ld~~ ~I' h dd --- '." ~r cscrlptlOn 0 all.1c e ocument contmucu) ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM .oJm' acknOl<'iedl7"enc compleced In ("aliforma must contam verhlage exactly as appears ahove In che notarv sectIOn or a separate acknawledl7"ent form must be properlv completed and attached to that document. The only exceptIOn IS If a drX'ument IS to be recorded outSide of California. In such mstances. any alternatl\'e acknowledgment ,'erblage as may be printed on such a document so long as the verhlage does not reqUIre the notary to do .<omethmg that IS Illegal for a notary In California (I.e. certlfi'mg the authonzed capaCity of the sIgner). Please check ,',e document carefi,llvfor proper notanal wording and attach thL,(orm Ifreqwred. DESCRIPTION OF THE ATTACHED DOCIJMI':NT (..\dditional information) . Statc and County information must be the Sl.1te and County. where the document S1gner(s) personally appeared before the nota~. public for acknowledgment. . Dale of nol.1rization must be the date that the signer(s) pc:T!lonally aweared which must also be the same dale the acknowledgment is completed. . The nota~. public must print his or h~T 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 p~TSonally awear at the time of notarization. . Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. hooshe'lftw,- is '.....) or circling the correct forms. Failure to correctl\" indicate this information may lead to rejection of document recording. . The nol.1~' seal impression mu..t be clear and photographicall\" reproducible. Impression must not co\"er text or lin~'S. If scal impression smudgcs. re-seal if a sufTicient area permits. oth~TWise complete a diff~Tt:nt acknowledgment form. . Signature of the nol.1ry 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 diffCT'CTlt document. Indicate title or type of attached documenl number of pages and date. Indic.1te the capacity claimed by the signer. If the claimed c.1pacit~' is a corporate officer. indicate the title (i.e. CEO. CFO. Secretary). . Securely atl.1ch this document to the signed document Numher of Pages ~ LAlCument Date CAPACITY Cl.AIMED BY TIlE SIGNER c::: [ndi\ldual (s) L Corporate Ortieer (TItle) L Partner( s ) c::: AttorneY-in-Fact c: lmstee( s) C Other 200X \"crslOn <'.-\I'A \ 12.10.07 800-873-9865 www:\ol.1~Classcs.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT <x.<X..c<'..c<'.c<'..c<'.c<'.c<'.c<'.c<'.c<'.<X.<X.<X.<X.<X..c<'..c<'..c<'..c<'.(X"c<>c<:'.c<'.c<'.c<'.c<'.c<'.c<'.<X.<X.<X.<X.<X..c<'..c<'.c<'.c<'.c<'.c<'.c<'.c<'.c<'.c<'.c<'.c<'-C< personally appeared t( CtJ(,--- It State of California County Of~( r1t(, On MJ C1/ ifCf...(/ Date who proved to. my on the basis of satisfactory evidence to be the person~ whose name($)~ subscribed to the ;v-~t.hin instrument and acknow~~ged to me that ~ftelthey executed the ~me in ~erfttmir authorized capacity(~, and that b s 9f4fletr signature(<< on the instrument the person~, r the entity upon behalf of which the person(9l acted, executed the instrument. r - - - - -: : -- - - . CUlm~D~"" 1 I __Nllc.~ I ..... CIaIa COUfIIy - 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 my h \ Signature \ 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~.c. unrnt _ J Title or Type of Document: _ ut-rtu~ Document Date: I Ji'lprDL C fYJ f.) d j!-l0&lJJ t/lt-- ____________________ 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's Name: Individual Corporate Officer - Title(s): Partner - Limited General Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: Signer Is Representing: ~'C(.. 'C(..'C(.. 'C(..'C(.. 'C(..'C(.. 'C(..'c.cc<-'c.(.:<:.<., 'C(..'c.(,:<:.<., 'C(.. 'C(..'C(.. 'C(..'C(.. 'C(.. '<.'-<.X:'<"'C(.. '<'-<,:<:.<., 'C.(,;<:.<'/C.(.-'C(.. '<:,(,;<.;z.'<--<.;<:'<"'C(.. 'C(..'C(..'C(.. 'C(.. 'C(.. 'C(..'<.'-<.;<:'<"'<.'-<.:cz-c< (C) 2007 National Notary ASSociation. 9350 De Solo Ave _ POBox 2402 . Chatsworlh, CA 9 1313.2402. wwwNatlonalNoliuyorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827