The URL can be used to link to this page

Home My WebLink AboutPM 2006-02 - Agreement/Covenant - 1/9/2008 12/28/2007120070227978 Recording Requested by: O Public Works Department LL Z City of Fresno O No Fee-Gov't Code Section U 6103 and 27383 U) When Recorded,Mail to Q City Clerk JCity of Fresno CL 2600 Fresno Street Fresno,CA. 93721-3623 ------------------------------ABOVE SPACE FOR RECORDER'S USE----------------------------- APN: 404-083-30 PUBLIC WORKS DEPARTMENT Parcel Map 2006-02 CITY OF FRESNO PW File: 5494-06-02 IMPROVEMENT AGREEMENT AND SUBORDINATION This Agreement is made and entered into at Fresno, California, and is effective this 2S T1-k day of L 0\/0-A knQ_ , 2007, by and between the CITY OF FRESNO, A municipal corporation, hereinafter designated and called "City", and MERIDIAN CHESTNUT LLC,a California limited Liability Company, hereinafter designated and called "Owner" without regard for number or gender. RECITALS A. The owner proposes to develop that property known as Tentative Parcel Map 2006-02,Assessor's Parcel Numbers 404-083-30("Subject Property"). See attached legal description. 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 Parcel Map 2006-02, the Owner is required to construct certain street and traffic signal improvements as described in Paragraph Two below. E. Owner has submitted a request to defer construction of the necessary street and traffic signal improvements. 1 F. The Owners of the subject property or their successors in interest, will waive 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 13-208(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 shown on approved City drawings numbered 15-C-15085 through 15-C-15092 inclusive and construct a traffic signal at the intersection of Chestnut and Alluvial Avenues. The performance and installation of the work and improvements shall complywith 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 standards and specifications of the State of California, Department of Transportation. The Owner shall perform, install and provide all work, improvements and materials under 2 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 FOUR HUNDRED EIGHTY NINE THOUSAND DOLLARS ($489,000.00) 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 priorwritten consent of the City. 10. To the fullest extent allowed by law including California Civil Code 2782, Owner shall indemnify, hold harmless, and defend the City and each of its officers, agents, and employees from any and all loss, liability, costs, and damages (whether in contract,tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including attorney's fees and legal expenses), arising or alleged to have arisen directly or indirectly out of or in any way connected with (a) performance or installation of the work or improvements by the Owner, its employees, officers, agents, contractors or subcontractors; or (b) design, installation, operation or maintenance of the work and improvements, regardless of whether the City is actively or passively negligent, except for liability, loss, costs or damages caused solely by the negligence or willful misconduct of the City or its officers, agents, or employees. 11. 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 directly or indirectly 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 Owner 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. 12. 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 4 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 under this Agreement),with limits of liability of not less than$2,000,000 per occurrence for bodily injury and property damage,$1,000,000 per occurrence for personal and advertising injury and $2,000,000 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 $1,000,000 per accident for bodily injury and property damage. (c)WORKERS' COMPENSATION insurance as required under the 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. 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 Citys Risk Manager at any time during the life of the 5 Agreement or any extension, 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 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 6 The parties have executed this Agreement on the day and year first above written. CITY OF FRESNO OWNER: a municipal corporation Meridian Chestnut LLC, a California Limited Liability Company By. By: Meridian Property Company, A Scott Mozier P.E. California Corporation, Its Assistant Director Managing Member APPROVED AS TO FORM By: William . P well, Pr 'dent James C. Sanchez City Attorney BY: 4ew ecm- ollo , CFO By: �� Pa& �UAYe I AWenfysian ATTEST: REBECCA E. KLISCH (Attach Notary Acknowledgments) City Clerk Mailing Address: By: Cl > � /ZJZ7 777 California Avenue Deputy City Clerk Palo Alto, CA. 94304 7 State of California CALIFORNIA ALL—PURPOSE County of (XI(AfF0 CbStCl ss' CERTIFICATE OF ACKNOWLEDGMENT On tjovembef 19 , U01 before me, �misi VeAq6ue ti'vicii Po Date Printed Name of Notary Public personally appeared Lgilliiiii C. P" dl t 161 vi Z. PoHnK Printed i of Signer(s) personally known to me -or- proved to me on the basis of satisfactory evidence: form(s)of identification CA D(Iiiii li4dASe- 7 credible witness(es) to be the person(s) whose name(s)4sare subscri to the within instrument and acknowledged to me authorized executed the same in I'liw+T0 ho rized capacity(ies), and that by merdfi�eir that *their their signature(s) on the instrument the person(s), or t e entity upon behalf of which the person(s) acre executed the instrument. WITNESS my hand and official seal. li -----' LUIS F. VELAS C——0 COMM.# 1515262 NOTARY PUBLIC-CALIFORNIA N'T CORA COSTA COUNTY p L_ COMM.EXP.SEPT.11,2008 Signature of Notary Public (Seal) OPTIONAL INFORMATION Although th e information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document Additionall, Informatiort titled/for the purpose of lAft ove,liAv me4't E]Additional Signer(s) ❑ Signer(s)Thumbprint(s) _ E]Other containing pages,and dated NVV. 21 L061 The signer(s) capacity or authority is/are as: D Individual(s) ❑ Attorney-in-Fact Xcorporate Officer(s) C,F.'Q Title(s) CIV 0 [A Guardian/Conservator ❑ Partner-Limited/General 0 Trustee(s) El Other: representing: )xenckliao cilte(lwt A tA4,91iii WiAtt Name(s)of Person(s)or Endi Signer is Representing Lca�hcl�fi/ PA. .........i ................. Copyright 2004 Notary Rotary,Inc.925 29th St_Des Moines,IA S0312-3612 form ACK02. 02/04. To ie-order,call toll-free t-877-349-6588 or visit us on the Internet at http://wwwthenOtafY5hopcom CLERK'S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) CITY OF FRESNO ) On21 , 2007, before me, personally appeared Scott Mozier, PE Assistant Pub is Works Director 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(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 n- cc:.c Deputy City CI rk ' 8 LEGAL DESCRIPTION Real property in the City of Fresno, County of Fresno, State of California, described as follows: PARCEL 6 OF PARCEL MAP 85-10, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 45, PAGES 25 AND 26 OF PARCEL MAPS, FRESNO COUNTY RECORDS; TOGETHER WITH THOSE PORTIONS OF NORTH DEARING AVENUE, ALSO KNOWN AS NORTH CHESTNUT AVENUE, AS VACATED BY RESOLUTION RECORDED FEBRUARY 21, 1989, AS INSTRUMENT NO, 89-18650, OFFICIAL RECORDS WHICH WOULD PASS BY A CONVEYANCE OF SAID LAND UNDER SECTION 813 AND 1112 OF THE CIVIL CODE. APN: 404-083-30 SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on August 31, 2006, in the office of the Fresno County Recorder Recorder as Document No. 2006-0183658, of which the Deed of Trust in, by and between: Meridian Chestnut LLC, a California limited liability company, as Trustor with PRLAP, Inc., as Trustee, and Bank of America, N. A., a national banking association, as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Statement of Covenants. Dated: �/O& 7 ' 2007 BENEFICIARY BANK OF AMERICA, N.A., a national banking association By: _'164- Jimmy K Assistant Vice President; Relationship Underwriter Subordination of Covenants STATE OF ss. COUNTYOFI,n On QQ \ before me, (here insert name and title o the officer) personally appeared 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 which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) fd6l +`�"'`+` 11A �..w, Noor * 1596121 Y RA*c - cantcMia Son Fwcbco Cj#V MYCamm. Jul?T