Deferred Improvement Agreement - Allen G. Dinsmore Trust and Holler Familly Living Trustt F`
RECORDING REQUESTED BY
City of Gilroy
DOCUMENT: 22891322 Pages: 10
IIIIIIIIIIIII
AMT PAID 52.00
REGINA ALCOMENDRAS RDE q 008
WHEN RECORDED, MAIL TO: SANTA CLARA COUNTY RECORDER 3/23/2015
Shawn. Freels Recorded at the request of 8:30 AM
City of Gilroy Owner
7351 Rosanna Street
Gilroy, CA 95020
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
Deferred Improvement Agreement No. 2014 -01
8595 Murray Avenue, Gilroy, CA
APN: 835 -01 -055
By and between
The City of Gilroy, California
and
Allen G. Dinsmore, as Trustee or Successor Trustee of the Allen G. Dinsmore Trust, and :. .
Billy Joe Holler and Amy B. Holler, as Trustees of the Billy Joe Holler and Amy -B. Holler :1
Family Living Trust
DEFERRED IMPROVEMENT AGREEMENT
AGREEMENT BY OWNERS OR HIS SUCCESSORS IN INTEREST TO
CONSTRUCT LAND DEVELOPMENT IMPROVEMENTS No..2014 -01
Project Identification: 8595 Murray Avenue, Gilroy, CA; A.P.N. 835 -01 -055 (other. associated
situs addresses: 8597 Murray Avenue & 8594 Forest Street, Gilroy)
This agreement ( "Agreement ") is entered into by the City of Gilroy, California; (thee "City "), and
Allen G. Dinsmore, as Trustee or Successor Trustee of the Allen - G. Dinsmore :Trust; and Billy
Joe Holler and Amy B. Holler, as Trustees of the Billy Joe Holler and Amy B. Holler Family
Living Trust, (the "Owners ") as of the date of City's execution hereof (the "Effective Date ").
Recitals
Owners own property located at 8595 Murray Avenue, Gilroy, CA, Assessor's parcel number
835 -01 -055, (the "Property "). Said Property is further depicted in Exhibit A, attached hereto.
Owners are constructing two (2) new industrial warehouse buildings: Building. "A" is a.2;400 sq.
ft. metal building and Building "B" is a 6,590 sq. ft. metal building with interior offices. (the
"Project ").
Owners wish to defer undergrounding of overhead utilities -that are along the' Murray Avenue .
frontage of the Property (the "Improvements "), and City . agrees to .:deferral of such
Improvements provided Owners agree 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!impose& shall be
binding upon and inure to the benefit of the Owners and: Owners'. 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 Owners of each such
parcel shall succeed to the obligations imposed on Owners by this agreement.
II. UTILITIES IMPROVEMENTS
A. City and Owners agree that Owners may defer construction of the Improvements.
(and/or payment of Owners' cost thereon 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
-1-
Undergrounding"). Prior to the commencement of the Adjacent Lot . :.
Undergrounding, Owners 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:
b. Twenty (20) 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 Owners
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 Owners 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 Owners in writing to commence installation, and,
construction of the Improvements and/or notify the Owners 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 Owners, _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 Owners with
the Notice set forth herein shall in no way excuse Owners' obligation to complete
the Improvements required in this Agreement. Owners 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 Owners 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.
-2-
III. PERFORMANCE OF THE WORK
If Owners are the party actually responsible for construction of the Improvements, Owners shall
acquire all permits 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
such permits. Owners 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. Owners 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. Owners agree 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, Owners shall contact the City Engineer, to work out an appropriate
time frame for completion of the Improvements). In the event .Owners fail to construct the,-
Improvements, City may, at its option, do the work and collect all costs from Owners.;.
Permission to enter onto the property of Owners is granted to City or -its contractor-as may be_
necessary to construct such improvements.
During construction, Owners agree 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
Owners agree 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 Owners disagree with the requirements set forth in any notice to commence :installation of.
improvements they 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 Owners.
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)
Owners shall offer (at no cost) to dedicate such improvements to ,the Utility. If..the Utility.
refuses to accept such offer after Owners' compliance with all City and Utility requirements,
Owners shall offer to dedicate same to City, however, City shall.be.under no- obligation:to accept
such offer. . _ - .
-3-
VII. BONDS
Prior to approval of improvement plans by the City, the City Administrator'or City Engineer, in ,
his or her discretion, may require Owners 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
Owners 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 Owners 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 Owners, their employees,
agents, contractors, sub - contractors, or any one 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. -
(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. Owners' 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 in enforcing: the
indemnification provisions of this Agreement.
The Owners' 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
MI
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
City against the liability for damage to th e
misconduct of the City of its agents, se
responsible to the City.
X. INDEPENDENT DEVELOPMENT
be deemed to require the Owners to Indemnify the
extent arising from the sole negligence or willful
rvants or independent contractors who are directly
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.
APPROVED AS TO FORM:
Linda A. Callon
City Attorney
City Clerk
-5-
T FzGILROY
za=��
Thomas J. Haglund
City Administrator
Dater
-Allen G. Dinsmore /
F �
EXHIBIT A
LEGAL DESCRIPTION
Real property located in the City of Gilroy, County of Santa Clara, State of.California, :. .
described as follows:
Being a portion of Lot 6, as shown on the Map entitled, "Map of the Subdivision of the
Southerly portion of Las Animas Ranch Lot 34 and sub Lot 2 ", which Map was
Recorded in Volume M of Maps at Page 79, Records of Santa Clara County,.
California, and being more particularly described as follows:
Beginning at a flush iron pipe in the centerline of Murray Avenue, distant thereon
North 22 deg. 20' West 158.4 feet from the corner common to Lots 6 and 7 as shown'
on said Map, and running thence along a line parallel with the line common to said
Lots 6 and 7, South 67 deg. 40' West 785.00 feet to the Northeasterly comer of that
certain parcel of land conveyed to be GE Manufacturing Co., a Corporation, by
Deed Dated August 12, 1953, and Recorded August 20, 1953 in Book 2706 of
Official Records, at Page 455, Santa Clara County Records thence along the
Northeasterly line of land so conveyed to be GE. Manufacturing Company, South 22
deg. 20' East 79.2 feet; thence parallel with the line common to said Lots 6 and 7,
North 67 deg. 40' East 785.00 feet to a point in the centerline of Murray Avenue;
thence along said centerline, North 22 deg. 20' West 79.2 feet to the Point of .
Beginning.
EXCEPTING THEREFROM:
That portion thereof described as Parcel One in the deed from John Vlahos, who
acquired title as John Vaahos, and Cynthia Vlahos to The City of Gilroy, recorded,
April 22, 1994, in Bok N407 at page 660, as Instrument No. 12459456,.descnbed, -
as follows:
A strip of land thirty feet wide over the Southwesterly portion of the Parcel of .
Land described in the Grant Deed from Costello to Peterson recorded in Book D
746, Official Records, Page 448, Santa Clara County, California, the Southwesterly
line of which is the Southwesterly line of the lands above referred to, and being
more particularly described as follows:
Beginning at the Southerly comer of said parcel of land, and thence along the
Southwesterly line, N 22 ° 20'00" W, 79.20 feet more or less to the Northwesterly .:
line of said Parcel and the terminus.
Assessor's Parcel Number: 835 -01 -055 =
State of California
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personally appeared
ANGIE BRANCO
Commission * 2019666
a Notary Public - California D
z Santa Clara County
My Comm. Expires Apr 13, 2017
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