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HomeMy WebLinkAboutPM 2005-40 - Agreement/Covenant - 1/4/2007 PLEASE CONFORV3 THIS COPY Recording Requested by: Public Works Department City of Fresno No Fee-Gov't Code Section 6103 and 27383 When Recorded,Mail to 11/1311006 City Clerk 10060160846 City of Fresno 2600 Fresno Street Fresno,CA. 93721-3623 ------------------------------ABOVE SPACE FOR RECORDER'S USE----------------------------- APN No's 405-530-42, 43 & 44 PUBLIC WORKS DEPARTMENT CUP No. 04-318 CITY OF FRESNO PM 2005-40 PW File 8871 IMPROVEMENT AGREEMENT This Agreement is made and entered into at Fresno, California, and is effective this �`— + day of '�31 t2, 2006, by and between the CITY OF FRESNO, A municipal corporation, hereinafter designated and called "City, and PARK PLACE HOLDINGS, LP, a California Limited Partnership, hereinafter designated and called "Owner" without regard for number or gender. RECITALS A. The owner proposes to develop that property located at 7765 North Palm Avenue, Assessor's Parcel Numbers 405-530-42, 43 & 44 ("Subject Property"). See attached legal description (Exhibit "A"). B. The Owner hereby warrants that any and all parties having record title interest in the Subject Property which may ripen into a fee have subordinated to this instrument. C. All such instruments of subordination, if any, are attached hereto and made a part of this instrument. D. As a condition of City's approval of such development, the Owner is required to construct certain street improvements as described in Paragraph Two below. E. Owner has submitted a request to defer construction of the necessary street, traffic signal, sewer, water, Parcel Map monuments and storm drainage improvements on Palm Avenue and W. Nees Avenue. F. The Owners of the subject property or their successors in interest, will waive 1 the right to protest an assessment district formed for the purpose of constructing the improvements described in Paragraph Two below. G. Fresno Municipal Code Section 11-208(f)(6) allows the Public Works Director to accept specified types of security for the future construction of improvements in lieu of requiring completion of the work prior to allowing occupancy. AGREEMENT THEREFORE, IN CONSIDERATION of the foregoing recitals and the agreement by the City to permit and inspect the construction of the street improvements as described in paragraph two below: Owner agrees: 1. The Owner shall perform all work and install all improvements as described in Paragraph 2 below within 12 months of the execution of this Agreement by the City. The Public Works Director may require the installation of the deferred improvements prior to the end of the 12 month period if the continued deferral is deemed to be detrimental to the public safety or welfare. The time for completion may be extended if the Public Works Director determines that the granting of such an extension will not be detrimental to the public safety or welfare. No extension will be made except upon written application by the Owner and submitted to the City's Public Works Director at least 30 days prior to the expiration of the 12 month period for performance or any extension thereof stating the reasons and facts supporting such extension. 2. The work and improvements that the Owner shall perform and install are as follows: A. All street, traffic signal, sewer, water and storm drainage improvements as shown on the attached Engineers Cost Estimate (Exhibit "B") B. Install any necessary Parcel Map monuments per Subdivision Map Act code sections 66445 & 66496. C. Dedicate any easements as necessary to install the required improvements. D. Abandon any excess easements as necessary to conform to the approved improvement drawings. The performance and installation of the work and improvements shall comply with the 2002 Edition of the Standard Specifications and Drawings of the City, including details therewith and amendments thereto. In case there are not Standard Specifications of the City for this work and improvements,such performance and installation shall be in accordance with the 2 standards and specifications of the State of California, Department of Transportation. The Owner shall perform, install and provide all work, improvements and materials under the supervision of the Public Works Director, under whose direction the work shall be inspected as it progresses. 3. At the time of execution of this Agreement, the Owner shall provide the City with cash, a certificate of deposit, or a performance bond acceptable to the City in the amount of SEVEN HUNDRED TWELVE THOUSAND DOLLARS ($712,000.00) as security for the required work and improvements. The security will be released only when the work and improvements have been completed, inspected and accepted by the City. If the Owner fails to perform and install the work and improvements as specified in this Agreement, the Public Works Director may use this security to install all or a portion of the deferred improvements. Any excess beyond that necessary to complete the improvements will be returned to the owner. The City is not required or obligated by this agreement to construct or complete the improvements. If the City elects to install the improvements, the Owner shall be fully responsible for all costs incurred by the City in connection with completion of the improvements. A final accounting of such costs, when confirmed by the Director and recorded in the official records of the County, shall be a lien on the property. If the Owner does not pay the costs in full within 30 days after the date the Director mails notice of such costs, interest shall accrue on the unpaid costs at the maximum legal rate from the date the accounting of the costs was confirmed. The lien shall not be released until all such costs, including accrued interest, are paid in full, according to terms specified in this Agreement. The remedy provided in this paragraph shall be in addition to and without limitation on any other rights or remedies that may be available to the City, including but not limited to the right to resort to any security submitted by the Owner. 4. As a part of the obligation of the Owner, and in addition to any and all security furnished for the faithful performance of this Agreement, the City shall be entitled to costs and reasonable expenses and fees, including reasonable attorney's fees, which may be incurred in successfully enforcing this Agreement against the Owner. 5. All work and improvements shall be done at the sole cost and expense of the Owner. The costs of engineering, inspection,testing, surveying,staking, and all applicable fees as required by the Fresno Municipal Code shall be the sole responsibility of the Owner. 6. This agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective parties hereto. 7. Whenever the context requires, the neuter shall include the masculine or feminine, or both, and the singular shall include the plural. 8. Time is of the essence of this Agreement. 3 9. The Owner shall make no assignment of this Agreement or of any duty or obligation of performance hereunder, in whole or in part, without the prior written consent of the City. 10. Indemnification. To the furthest extent allowed by law, Owner shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Owner or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen out of performance of this Agreement or the performance of any or all work to be done in and upon the street rights-of-way in said Parcel Map and upon the premises adjacent thereto pursuant to this Agreement. Owners obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees or agents are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Owner should subcontract all or any portion of the services to be performed under this Agreement, Owner shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraphs. This section shall survive termination or expiration of this Agreement. 11. Insurance. Throughout the life of this Agreement, Owner shall pay for and maintain in full force and effect all policies of insurance described in this section with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than "A- VII" in Best's Insurance Rating Guide, or (ii) authorized by CITY'S Risk Manager. The following policies of insurance are required: (a)COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and shall include insurance for bodily injury, property damage and personal and advertising injury with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations,contractual liability(including imdemnity obligations underthis Agreement),with limits of liability of not less than $5,000,000 per occurrence for bodily injury and property 4 damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000 aggregate for products and completed operations. (b) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Business Auto Coverage Form CA 00 01 and shall include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1 - Any Auto) , with combined single limits of liability of not less than $5,000,000 per accident for bodily injury and property damage. (c)WORKERS'COMPENSATION insurance as required underthe California Labor Code. (d) EMPLOYERS LIABILITY with minimum limits of liability of not less than $1 ,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. The Owner shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Owner shall also be responsible for payment of any self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted 30 calendar day written notice in favor of City of policy cancellation of coverage, except for the Workers' Compensation policy which shall provide a 10 calendar day written notice of such cancellation of coverage. In the event any policies are due to expire during the term of this Agreement, Owner shall provide a new certificate evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy(ies). Upon issuance by the insurer, broker, or agent of a notice of cancellation in coverage, Owner shall file with City a new certificate and all applicable endorsements for such policy(ies). The General Liability and Automobile Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Owners insurance shall be primary and no contribution shall be required of City. Any Workers Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, employees and volunteers. Owner shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. Owner shall furnish City with copies of the actual policies upon the request of City's Risk Manager and this requirement shall survive termination or expiration of this Agreement. If at any time during the life of the Agreement or any extension, Owner fails to 5 maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately, and all payments due or that become due to Owner shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. If Owner should subcontract all or any portion of the services to be performed under this Agreement, Owner shall require each subcontractor to provide insurance protection in favor of City, its officers, officials, employees, volunteers and agents in accordance with the terms of each of the preceding paragraphs, except that the subcontractors'certificates and endorsements shall be on file with Owner and City prior to the commencement of any work by the subcontractor. 12. Notices Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally or deposited into the United States mail, with postage prepaid, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. 13. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of, or against any party, but rather by construing the terms in accordance with their generally accepted meaning. 14. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno, California. 15. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. this Agreement may be modified only by written instrument duly authorized and executed by both parties. 6 16. The provisions of this Improvement Agreement are severable. The invalidity or unenforceability of any one provision or part thereof shall not affect the validity or invalidity of any other provisions. The parties have executed this Agreement on the day and year first above written. CITY OF FRESNO OWNER: a municipal corporation PARK PLACE HOLDINGS, LP, a California Limited Partnership By: By: TUT LIAN & CO., IN California Mike T. Kirn P.E. Corpor ti G ner er City Engineer By: APPROVED AS TO FORM Cli or Tute , it's President James C. Sanchez City Attorney (Attach Notary Acknowledgments) By: UMailing Address: bdo'hity City Attorney 1401 Fulton Street, Suite 210 1U K- Fresno, CA. 93721 ATTEST: REBECCA E. KLISCH City Clerk By: l lZ- 0 tv epu C' I 7 CLERK'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On , 2006, before me, Z l g li-C 7 . PUPNTg1 personal y appeared Mike T. Kirn, PE City Engineer personAlly known tome (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument(s) the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. REBECCA E. KLISCH CITY CLERK By � ' A�01A�t� Deputy City C14Y ki SUBORDINATION The undersigned as holder of the beneficial interest in and under those certain Deeds of Trust recorded on November 23, 2005, in the office of the Fresno County Recorder as Document Nos. 20050276860 and 20050276861 of which the Deeds of Trust in by and between Park Place Holdings, LP, a California limited partnership, as Trustor, United Security Bank, as Trustee, and United Security Bank, as Beneficiary, hereby expressly subordinate said Deeds of Trust and its beneficial interest thereto to the foregoing Improvement Agreement. Dated: _ \ , 2006. Al By: Rhodlee A. Bra VP and CCO Ken onah , SVP and CFO 11/15/06 8 LEGAL DESCRIPTION EXHIBIT"A" Parcel A of Lot Line Adjustment No. 15-99, in the City of Fresno, County of Fresno, State of California, as evidenced by a Grant Deed recorded April 7,2000,as Instrument No. 2000-0041451,of Official Records,in the Office of the County Recorder of said County and being more particularly described as follows: That portion of the Section 32, Township 12 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno,County of Fresno, State of California,according to the United States Government Township Plat, described as follows: BEGINNING at a point on the North line of said Section which bears 1811.40 feet West of the Northeast corner thereof, said point being in the centerline of the San )oaquin Canal; thence following said centerline South 35030' West 316.0 feet South 62°24' West 130 feet; South 31027' West 164,62 feet, and South 74033' West 387.92 feet,thence leaving said centerline South 0041' West 586.95 feet;more of less,to a point which bears North 0014' East 2211.45 feet from that certain angle point"A" shown on the Record of Survey Map recorded in Book 18, Page 56 of Record of Survey, Fresno County Records, thence North 51026'East 301 feet,thence South 38053' East 221.5 feet; thence North 66°16' East 52.45 feet, thence North 33011' East 594.3 feet; thence North 73003' East 425.65 feet; thence-North 82°0' East 416.55 feet; thence Northerly and parallel to the East line of said Section 32 of the North line thereof,thence Westerly along said North line of Section 32, 809 feet, more or less, to the POINT OF BEGINNING; ALSO that portion of Lot 109 of Tract No.4637, recorded in Volume 62, Pages 39 through 48, inclusive of Plats, Fresno County Records, described as follows: BEGINNING at Northwest corner of said Lot 109;thence North 73003'17"East,along the Northerly line of said Lot 109, a distance of 425.48 feet; thence North 82001'17" East, along the Northerly line of said Lot 109, a distance of 292.17 feet to the beginning of a non-tangent curve, concave to the Northwest,whose radius point bears North 70°15'37'West;thence Southeasterly,along said non-tangent curve,also being the Easterly line of said Lot 109, having a radius of 1,145.00 feet,through a central angle of 10°29'07",a distance of 209 feet; thence North 89040'56" West, along the Southerly boundary of the 50 foot Pacific Gas and Electric Company Easement as per deed recorded May 20, 1960 as Document No. 36705, in Book 4390, Page 614 of Official Records of Fresno County, a distance of 161.04 feet; thence South 844703" West, along the Southerly boundary of said 50 foot Pacific Gas and Electric Company Easement,a distance of 494.21 feet to the Westerly line of said Lot 109; thence North 33°11'17" East, along said Westerly line, a distance of 82.62 feet to the POINT OF BEGINNING. ALSO EXCEPTING therefrom that portion thereof lying within the parcel described as follows: BEGINNING at the most Northerly corner of Lot 114 of said Tract No. 4637; thence North 48032'58" East, a distance of 394.50 feet; thence North 8404703"East, along the Southerly boundary of the 50 foot Pacific Gas and Electric Company Easement as per deed recorded February 26, 1959 as Document No. 14771 in Book 4184, Page 266 of Official Records of Fresno County and the Deed recorded May 20, 1960 as Document No. 36705, in Book 4390, Page 614 of the Official Records of Fresno County, a distance of 172.03 feet to the Westerly line of Lot 109; thence South 33°11'17" West, along the Westerly line of Lots 109 and 113 of said Tract No. 4637, a distance of 511.53 feet; thence South 66016'17" West, along the Northerlyl line of said Lot 113, a distance of 52.45 feet; thence North 38052'43" West, along the Northeasterly line of said Lot 114, a distance of 221.46 feet to the POINT OF BEGINNING. Assessor's Parcel Numbers: 405-530-42, affects a portion of land herein described. 405-530-43, affects a portion of land herein described. 405-530-44, affects a portion of land herein described. L. . EXHIBIT "B" GARY G. GIANNETTA ��oQ�OFESS(fl CONSULTING CIVIL ENGINEER G. F 2C 1119 "S" STREET , FRESNO, CA 93721 (559) 264-359031/07 3131/07 FAX (559) 264-0696 CIO- COST ESTIMATE OFC . � 0 PARK PLACE October 9, 2006 ITEM DESCRIPTION QUANTITY UNIT COST EXTENSION WATER CONSTRUCTION 1 . 12" Water Main 2 , 087 LF $ 32 . 00 $ 66, 784 . 00 2 . 8 " Water Main 974 LF 18 . 00 17 , 532 . 00 3 . 8" Detector Check 9 EA 4 , 500 . 00 40, 500 . 00 4 . Gate Valves 13 EA 1, 100 . 00 14 , 300 . 00 5 . 6" Blow Off 1 EA 1, 900 . 00 1, 900 . 00 6 . 2" Water Service 31 EA 1, 000 . 00 31, 000 . 00 7 . 4" Water Service 2 EA 1, 600 . 00 3, 200 . 00 8 . 6" Fire Service 3 EA 1, 800 . 00 5, 400 . 00 9 . 8" Fire Service 6 EA 2, 400 . 00 14 , 400 . 00 TOTAL $ 195 , 016 . 00 STORM DRAIN CONSTRUCTION 1 . 15" Storm Drain 167 LF $ 57 . 00 $ 9, 519 . 00 2 . 30" Storm Drain 590 LF 58 ..00 34 , 220 . 00 3 . 36" Storm Drain 980 LF 64 . 00 62, 720 . 00 4 . 42" Storm Drain 405 LF 70 . 00 28 , 350 . 00 5 . 8" Storm Drain 12 LF 45 . 00 540 . 00 6 . 10" Storm Drain 36 LF 50 . 00 1, 800 . 00 7 . 12" Storm Drain 24 LF 66 . 00 1 , 584 . 00 8 . Manhole 11 Ea 4 , 000 . 00 44 , 000 . 00 9 . Type "D" Inlet 2 Ea 3, 100 . 00 6, 200 . 00 TOTAL STORM DRAIN CONSTRUCTION $ 188 , 933 . 00 SEWER CONSTRUCTION 1 . 8 " Sewer Main 154 LF $ 40 . 00 $ 6, 160 . 00 2 . Manhole 1 EA 3, 000 . 00 3, 000 . 00 3 . Pavement Restoration LUMP SUM 3 , 500 . 00 $ 12 , 660 . 00 GARY G. GIANNETTA CONSULTING CIVIL ENGINEER 1119 "S" STREET FRESNO, CA 93721 (559) 264-3590 FAX (559) 264-0696 COST ESTIMATE PARCEL MAP 2005-40 November 2, 2006 ITEM DESCRIPTION QUANTITY UNIT COST EXTENSION 1 . Clearing and Grubbing LUMP SUM $ 3, 500 . 00 2 . Excavation and Grading LUMP SUM 4, 000 . 00 3 . Curb and Gutter 159 LF $ 12 . 50 1, 987 . 50 4 . Median Curb 167 LF 10 . 50 1, 753 . 50 5 . Sidewalk 416 SF 3 . 00 1, 248 . 00 6 . Return Landing 1 EA 850 . 00 850 . 00 7 . Median Cap 1, 547 SF 8 . 00 12, 376 . 00 8 . Pavement 5, 708 SF 3 . 50 19, 978 . 00 9 . Traffic Signal LUMP SUM 250, 000 . 00 TOTAL $ 295 , 693 .00 4' .26996 xp+res 1/0 OF Cm-� CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA Iss COUNTY OF FRESNO On 11- 16 -06 before me, KELLY G. SWERTFAGER, NOTARY PUBLIC personally appeared, � �Cti 1 NAME(S)OF SIGNER(S) personally known to me -OR-proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of KELLY G. SWERTFAGER which the person(s)acted,executed the instrument. COMM. #1658750 ~@MY FRESNO COUNTY WITNES y hand and official sealComm.Expires May 14,2010 CD NOTARY PUBLIC-CALIFORNIA �—1 61 SI ATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT INDIVIDUAL CORPORATE OFFICER TITLE(S) TITLE OR TYPE OF DOCUMENT PARTNER(S) LIMITED or GENERAL ATTORNEY-IN-FACT TRUSTEE(S) NUMBER OF PAGES GUARDIAN/CONSERVATOR OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S(OR ENTITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE i State of , r RIGHT THUMBPRINT lOptional) County of 47 c70sn0 On << before me, 12aiV-4z Oen. ATE) (NAME/TITLE OF OFFICER-i.e.'JANE DOE,NOTARY PUBLI i o personally appeared r—SINNT? INERIS{) R (�I CAPACITY CLAIMED BY SIGNERIS) pC t�� l� .(d.� DINDIVIDUAL(S) ❑CORPORATE personally known to me -OR- O proved to me on the OFFICERISI ,TIRES{ basis Of satisfactory ❑PARTNER(S) DLIMITED eviden to be the DGENERAL perso (s whose namfeq ❑ATTORNEY IN FACT Is/are bscribed t0 DTRUSTEE(S) within instrument and DGUARDIAN/CONSERVATOR acknowledged to me that ❑OTHER: he/she/they executed e same in authorized capacit SIGNER IS REPRESENTING: pI OF and that elr, (Name of Personls)or Entitylies) DRAKE P. DOERING signature on t COMM.#1589380 to Cr NOTARY PUBLIC-CALIFORNIAai instrument the perso s)) cn FRESNO COUNTY -N or the entity upon beh My COMM 14,r6ne23,2009 of which the perso acted, executed the RIGHT THUMBPRINT(Optional) instrument. Witness my hand and official seal. 3 /'2"e4 � r (SEAL{ G 0 ISIGNATU OF N ARP ) CAPACITY CLAIMED BY SIGNER(S) DINDIVIDUAL(S) ❑CORPORATE ATTENTION NOTARY OFFICER(S) The information requested below and in the column to the right is OPTIONAL. (TITLES) Recording of this document is not required by law and is also optional. It could, however, prevent fraudulent attachment of this certificate to any OPARTNER(S) ❑LIMITED unauthorized document. DGENERAL C ❑ATTORNEY IN FACT THIS CERTIFICATE Title or Type of Document �✓��Q rC�j�g � ,,, M p/'�J. Al• DTRUSTEE(S) MUST BE ATTACHED t � V DGUARDIAN/CONSERVATOR TO THE DOCUMENT Number of Pages Date of Document l I�� � ❑OTHER: DESCRIBED AT RIGHT: Signer(s)Other Than Named Above SIGNER IS REPRESENTING: (Name of Person(s)or Entitylies) WOLCOTTS FORM 63240 Rev.3-e4(price class 6.2A) 01884 WOLCOTTS FORMS,INC. ALL PURPOSE ACKNOWLEDGMENT WITH SIGNER CAPACITY/REPRESENTATION/TWO FINGERPRINTS I��III�II VIII I (IIIIII 7 67775 63240 8 Bond No.:2205330 Premium:$13,680.00 Improvement Aereement Performance Bond Whereas, the City Council of the City of Fresno, State of California, and Park Place Holdings, LP, a California Limited Partnership, ("principal")will be entering into an agreement whereby principal agrees to install and complete certain designated public improvements, which said agreement, identified as Improvement Agreement for property located at 7765 North Palm Avenue, Assessor's Parcel Numbers 405-530-42,43 and 44,is hereby referred to and made a part hereof;and Whereas, said principal is required under the terms of said agreement to furnish a bond for the faithful performance of said agreement. Now,therefore, we the principal and Insurance Company of the West, as surety, are held and firmly bound unto the City of Fresno,("City"),in the penal sum of Seven Hundred Twelve Thousand and Nol100($712,000.00)lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators,jointly and severally,firmly by these presents. The condition of this obligation is such that if the above bounded principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and provisions in the said agreement and any alteration thereof made as herein provided,on his or their part,to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless City, its officers, agents and employees,as therein stipulated,then this obligation shall become null and void;otherwise it shall be and remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefor, these shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation,all to be taxed as costs and included in any judgment rendered. The surety hereby stipulates and agrees that no change,extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the plans and specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time,alteration or addition to the terms of the agreement or to the work or to the specifications. IN WITNESS WHEREOF,this instrument has been duly executed by the principal and surety above named,on November 30, 2006. PRINCIPAL: ParkPI a oldi gs LP, al'for, imited Partnership By:T n o., a a fo Corporation,it's General Partner By: Clifford 7 to41,i ' resident SURETY: Insurance o pany of the t By: Justin Smi ttorney in Fact STATE OF California COUNTY OF Fresno On /1 30 L before me, Roberta Voss,Notary Public (here insert ame and We of the officer),personally appeared Justin Smit personally known to me o be the person( whose namem isrfm subscribed to the within instrument and acknowledged to me that he/Ah2lb texecuted the same in his✓lAdhk authorized capacity(ift and that by his/fl tr signature4on the instrument the person(-4 or the entity upon behalf of which the person(*acted,executed the instrument WITNESS my hand and official seal. ROBERTA VOSS -• COMM. #1632287 Signature (SEAL) Hlamy NOTARY PUBLIC-CALIFORNIA FRESNO COUNTY Comm.Expires Jan. This arra%ar OfJicia!Notarial Sea! OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OF TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR DR ITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE 0-1232(REV.12105) ALL-PURPOSE ACKNOWLEDGEMENT No. 0002608 ICW GROUP Power of Attorney Insurance Company of the West Explorer Insurance Company Independence Casualty and Surety Company KNOW ALL MEN BY THESE PRESENTS: That Insurance Company of the West,a Corporation duly organized under the laws of the State of California, Explorer Insurance Company,a Corporation duly organized under the laws of the State of California,and Independence Casualty and Surety Company,a Corporation duly organized under the laws of the State of Texas,(collectively referred to as the"Companies"),do hereby appoint MATT DEFENDIS, JUSTIN SMIT,ROBERTA VOSS their true and lawful Attomey(s)-in-Fact with authority to date,execute,sign,seal,and deliver on behalf of the Companies,fidelity and surety bonds,undertakings,and other similar contracts of suretyship,and any related documents. In witness whereof,the Companies have caused these presents to be executed by its duly authorized officers this Ist day of November,2005. 4E�OWNlYQR, `�gURR�yrc� �pfyTY gNoo pyoovoMrEn "f w�o°� ���o , * d G INSURANCE COMPANY OF THE WEST oSEAL v ie Al EXPLORER INSURANCE COMPANY INDEPENDENCE CASUALTY AND SURETY COMPANY Jeffrey D.Sweeney,Assistant Secretary John L.Hannum,Executive Vice President State of California } County of San Diego ss. On June 5,2006 before me,Mary Cobb,Notary Public,personally appeared John L.Hannum and Jeffrey D.Sweeney,personally known to me to be the persons whose names are subscribed to the within instrument,and acknowledged to me that they executed the same in their authorized capacities,and that by their signatures on the instrument,the entity upon behalf of which the persons acted,executed the instrument. Witness my hand and official seal. MARY COMM.4H60090 N3TARY NGLIc-c;wuUwA" SAN DMO COMM MSI Cardyliesbn Expiaee3 38"WABER?Q'2009 Mary Cobb,Notary Public RESOLUTIONS This Power of Attorney is granted and is signed,sealed and notarized with facsimile signatures and seals under authority of the following resolutions adopted by the respective Boards of Directors of each of the Companies: "RESOLVED: That the President,an Executive or Senior Vice President of the Company,together with the Secretary or any Assistant Secretary,are hereby authorized to execute Powers of Attorney appointing the person(s)named as Attomey(s)-in-Fact to date,execute,sign,seal,and deliver on behalf of the Company,fidelity and surety bonds,undertakings,and other similar contracts of suretyship,and any related documents. RESOLVED FURTHER: That the signatures of the officers making the appointment,and the signature of any officer certifying the validity and current status of the appointment,may be facsimile representations of those signatures,and the signature and seal of any notary,and the seal of the Company,may be facsimile representations of those signatures and seals,and such facsimile representations shall have the same force and effect as if manually affixed. The facsimile representations referred to herein may be affixed by stamping,printing,typing,or photocopying." CERTIFICATE I,the undersigned,Assistant Secretary of Insurance Company of the West,Explorer Insurance Company,and Independence Casualty and Surety Company,do hereby certify that the foregoing Power of Attorney is in full force and effect,and has not been revoked,and that the above resolutions were duly adopted by the respective Boards of Directors of the Companies,and are now in full force. IN WITNESS WHEREOF,I have set my hand this T rr day of &/ ll" Jeffrey D.Sweeney,Assistant Secretary To verify the authenticity of this Power of Attorney you may call 1-800-877-1111 and ask for the Surety Division. Please refer to the Power of Attorney Number,the above named individual(s)and details of the bond to which the power is attached. For information or filing claims,please contact Surety Claims,1CW Group, 11455 EI Camino Real,San Diego,CA 92130-2045 or call(858)350-2400.