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HomeMy WebLinkAboutTomity Corp Agreement For Purchase & Sale Of A Perm Pedestrian Easement Escrow Instructions.12.14.2022AGREEMENT FOR PURCHASE AND SALE OF A PERMANENT PEDESTRIAN EASEMENT AND ESCROW INSTRUCTIONS APNs 451-204-32 and 451-204-34 TOD BLACKSTONE & McKINLEY SIDEWALK (LINGO) PROJECT City Project No.: PW00926 This Agreement for a Permanent Pedestrian Easement (Agreement) is entered into by and between Tomity Corporation (Owner), without regard to number or gender, and the CITY OF FRESNO, a municipal corporation (City) for a permanent pedestrian easement and right-of-way for public street purposes on the following terms and conditions. 1. The real property which is the subject of this Agreement, hereinafter "Subject Property", is a Permanent Pedestrian Easement to facilitate the TOD Blackstone & McKinley Sidewalk (Lingo) Project (Project), situated in the City of Fresno, County of Fresno, State of California, being approximately 88 square feet in size, within Assessor's Parcel Numbers 451-204-32, and 451-204-34 , as described on Exhibit "A" and depicted on Exhibit "B", attached hereto and incorporated herein by reference. 2. Owner agrees to grant to the City a permanent pedestrian easement and right of way, (Easement) for public street purposes over, under, though, and across the Subject Property, free and clear of all liens, encumbrances, and restrictions of record . 3. City shall pay just compensation of ONE THOUSAND AND FIVE HUNDRED AND NO/100 DOLLARS ($1,500.00) for the Easement, including cost to cure damages, benefits and/or severance damages to the remainder, if any, for the Subject Property . 4. Clause 3 above may include payment for the replacement of improvements such as fencing and/or irrigation facilities that are within the area being acquired for this project and must be replaced in order to proceed with the construction of the project. If Owner does not replace said items , City may install temporary fencing on Owner's property lying immediately adjacent to the new right of way line, if necessary, to hold in livestock during construction of the road project , and/or plug the irrigation line(s) at Owner's property line. Owner hereby agrees to allow the City, its agents, employees, authorized contractors and subcontractors and their employees access to their remaining property to perform said work and that the cost for said work shall be billed to and paid for by Owner. 5. The Effective date of this Agreement shall be upon its duly authorized execution by the City and the payment of ONE THOUSAND AND FIVE HUNDRED AND NO/100 DOLLARS ($1,500.00) just compensation to the Owner . 6. Owner represents and warrants that it holds fee title to the Subject Property, and has the authority to enter into the Agreement herein made . 7. Owner agrees to hold the City harmless and reimburse the City for any and all losses and expenses as to the Subject Property by reason of any change in ownership or Lease of said Subject Property held by any tenant of the Owner. 8 . The transaction of the sale shall be processed by the City through an internal escrow at 2600 Fresno Street, Fresno, CA 93721 . The contact is Colleen Karby at 559-621-8697. a. The City shall pay the Owner the sums due directly by check. b. Payment of said sums, less Owner's cost to clear title, if any, may be made to Owner only when the City possesses a fully executed and acknowledged and recorded easement deed to the Subject Property free and clear of all liens, encumbrances and restrictions of record. c. The City reserves the right to accept title to the property interest to be acquired by City herein subject to certain defects in any or all matters of record title to the property. In consideration for Owner receiving the total sum as stated in Paragraph 3, the undersigned Owner covenants and agrees to indemnify and hold the City harmless from any and all claims and demands third parties may make or assert and causes of action third parties may bring which arise out of or are in connection with the foregoing defects in title to the property. The Owner's obligation herein to indemnify and hold harmless the City shall not exceed the amount paid to the Owner under specified in Paragraph 3. d. It is understood that Owner shall be responsible for the payment of all taxes, penalties, redemptions , and costs allocable to the Subject Property. e. The escrow fee , cost of policy of title insurance, recording fees (if any), shall be paid by the City. f. Disbursements of the purchase price to be in the amounts, at the times, and in all respects in accordance with the terms and conditions and subject to the limitations of this Agreement. 9. Owner shall indemnify, hold harmless, and defend the City, its officers, agents, employees, and volunteers from any liability, loss, fines, penalties, forfeitures, claims , expenses , and costs , whether incurred by the Owner, City, or any other third party, arising directly or indirectly from the release , presence or disposal of any hazardous substances or materials (as now or hereafter defined in any law, regulation, or rule) in, on, or about the Property on or before the effective date of this Agreement. This indemnity shall include, without limitation, any claims under the Comprehensive Environmental Response , Compensatior:i and Liability Act of 1980, as amended (CERCLA), or any other federal, state or local law whether statutory or common law, ordinance, or regulation . Costs or losses covered will include, without limitation, consultants, engineering, investigator fees, clean up or disposal costs and attorneys' fees, and damages. The Owner's obligation herein 2 to indemnify and hold harmless the City shall not exceed the amount paid to the Owner specified in Paragraph 3. This limitation does not preclude the City from bringing a claim against Owner for a loss on the adjacent property. 10. Miscellaneous Provisions: a. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provision of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. b. 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 any rights and duties hereunder shall be Fresno, California. c. Head ings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. d. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability or any one provision in this Agreement shall not affect the other provisions. e. 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. f. Attorney 's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. g. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. h. Cumulative Remed ies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 3 i. Exhibits and Attachments. Each Exhibit and Attachment referenced herein is by such reference incorporated into and made a part of this Agreement for all purposes. j. 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 the City and the Owner. [SIGNATURE PAGE TO FOLLOW] 4 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the Effective date of this Agreement as defined above. CITY OF FRESNO, TOMITY CORPORATION y L ~ homas Harold Downing Date Title: P~- RECOMMENDED FOR APPROVAL: By : _____ _ ___ ___ Date By: ____,:.::;._;______.__.i....:;__:~--+--/ -+~ ~":J-/J-?-iitle: Colleen Karby Da te Senior Real Estate Agent By ~~~ Scott i¼r Public Works Manager APPROVED AS TO FORM : ANDREW JANZ ATTEST: City Attorney TODD STERMER , CMC, MMC City Clerk A California By: ~~~~---'-1-4*- Public Attachments: 1. Exhibit "A" 2. Exhibit "B" 5 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the Effective date of this Agreement as defined above. CITY OF FRESNO, A California municipal corporation By:------------- Scott L. Mozier, PE, Date Public Works Director RECOMMENDED FOR APPROVAL: By: ___________ Colleen Karby Date Senior Real Estate Agent By:------------- Scott Tyler Date Public Works Manager APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By:------------- Deputy Date Attachments: 1 . Exhibit "A" 2. Exhibit "B" TOMITY CORPORATION By : ____~-\ -f)L Thomas Harold Downing Title: ()~ ---4----""---'i /.'--2.1/2-z.. Date By:~ 11/41/22- pimtti~ ~ Title : Chief Financial Officer ATTEST: TODD STERMER, CMC, MMC City Clerk By:------------- Deputy Date 5 --------- _::::,......_:::-------------::,-->' · Signers ~::.:.= CIVBl CODE§ ili189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California /l 11 County of -~" ~ On /vo J 2 '1 !)..p;;J... 6 before me. f)'/ith-eJ{e. An+CH,,o ·wlc,:z: No+a. vy R bl1'c..1 · Date . -/. Here Insert Name and Title of the Officer personally appeared / I V),'\ -------- ( I U '€.. / /-e.-r {_ C O . ~ --- \, =-~ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed t o the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(tes), and that by his/her/their signature(s) ·o_ll the i!7stru·ment the person(s), or the entity upon behalf of which the person(s) acted , execut ed the instrument. I certify under PENALTY OF PERJURY un der the laws of the State of California that the foregoing paragraph is tr:ue and correct. WI TN,S S my hand and official seal. Si~ Signature of Notary Public ~ Place Notary Sea/ Above ----------------oPnONAL --------------- L ough this section is optional, completing this information can deter alteration of the d~J,c;ument or · fraudulent reattachment of this form to an unintended docume t. -· . .....--Description of A aeh d Document Title or Type of Document: _ Number of Pages: ____ Signer(s Capacity(ies) Claimed by Signer(s) Signer's Name: --------~,...c.----e .:-------------- 0 Corporate Officer -Title{s): ~-=------0 Corporate O -Title(s): _. ______ □ Partner -□ Limited O..G neral □ Partner -□ Limited □ Individual 0_.bttorney in Fact □ Individual □ Attorney in □ Trustee ~□ Guardian or Conservator □ Trustee □ Other: S~er....fsRepresenting: _________ _ Signer ls Representing: __________ □ Other: L_ . neral □ Guardian or Conserv _______________ • ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT "A" APN 451-204-32 (portion) Pedestrian easement A portion of Lot 62 of Madren Park No . 2, according to the map thereof recorded in Volume 8 of Plats , at Page 32, Fresno County Records , lying in the Northeast quarter of Section 33, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno County of Fresno, State of California, more particularly described as follows: Commencing at the East quarter corner of said Section 33, thence No rth 0 °26 '54" East, on the East line of the Northeast quarter of said Section 33, a distance of 1240.15 feet; thence North 89°33'06" West, a distance of 55.00 feet to the Southeast corner of that portion of land dedicated as a pedestrian easement by deed recorded January 4, 1987 as instrument No. 88000084, Official Records Fresno County being on the westerly right of way line of existing North Blackstone Avenue as relinquished by the State of California by CAL TRANS Parcel No. 79910, recorded June 6, 1983 as Instrument No. 83049231, Official Records Fresno County and being the POINT OF BEGINNING of this description; thence South 0°26'54" West, on said right of way line, a distance of 9.00 feet; thence North 89°33'06" West, leaving said right of way line, a distance of 4.00 feet; thence North 0°26'54" East, a distance of 9.00 feet; thence South 89°33'06" East, a distance of 4 .00 feet to the POINT OF BEGINNING . Containing an area of 36 square feet, more or less . • • OF Cf\\.l'fO~ S-5-z,oz../ EXHIBIT "A" APN 451-204-34 (portion) Pedestrian easement Area 1 That portion of Lot 2 of the map of Hodges Colony, according to the map thereof recorded in Book 2 of Record of Surveys, at Page 64 , Fresno County Records, lying in the Northeast quarter of Section 33, Township 13 South , Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno County of Fresno , State of California, more particularly described as follows: Commencing at the East quarter comer of said Section 33, thence North 0°26'54" East, on the East line of the Northeast quarter of said Section 33, a distance of 926.65 feet; thence North 89°58'06" West, a distance of 55.00 feet to the westerly right of way line of existing North Blackstone Avenue as relinquished by the State of California by CAL TRANS Parcel No. 79910, recorded June 6, 1983 as Instrument No. 83049231, Official Records Fresno County and being the POINT OF BEGINNING of this description; thence North 0°26'54" East, on said right of way line, a distance of 8.50 feet; thence North 89°58'06" West, leaving said right of way line, a distance of 2.50 feet; thence South 0°26'54" West, a distance of 8.50 feet; thence South 89°58'06" East, a distance of 2.50 feet to the POINT OF BEGINNING. Area2 That portion of Lot 2 of the map of Hodges Colony , according to the map thereof recorded in Book 2 of Record of Surveys, at Page 64, Fresno County Records and a portion of Lot 68 of Madren Park No. 2, according to the map thereof recorded in Volume 8 of Plats, at Page 32, Fresn o County Records, lying in the Northeast quarter of Section 33, Township 13 South, Range 20 East, Mount Diablo Base and Meridian , in the City of Fresno County of Fresno, State of California, more particularly described as follows: Commencing at the East quarter comer of said Section 33, thence N1:>rth 0°26'54" East, on the East line of the Northeast quarter of said Section 33, a distance of 1021.65 feet; thence North 89°58'06" West, a distance of 55.00 feet to the westerly right of way line of existing North Blackstone Avenue as relinquished by the State of California by CAL TRANS Parcel No. 79910, recorded June 6, 1983 as Instrument No. 83049231, Official Records Fresno County and being the POINT OF BEGINNING of this description; thence North 0°26'54" East, on said right of way line, a distance of 8. 75 feet; thence North 89°58'06" West, leaving said right of way line, a distance of 2.50 feet; thence South 0°26'54" West, a distance of 8.75 feet; thence South 89°58'06" East, a distance of 2.50 feet to the POINT OF BEGINNING. Area 3 That portion of Lot 67 of Madren Park No. 2 , according to the map thereof recorded in Volume 8 of Plats , at Page 32, Fresno County Records, lying in the Northeast quarter of Section 33, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of Fresno County of Fresno, State of California, more particularly described as follow: Commencing at the Eastquartercomerofsaid Section 33, thence North 0°26'54" East, on the East line of the Northeast quarter of said Section 33, a distance of 1112.90 feet; thence North 89°58'06" West, a distance of 55.00 feet to the westerly right of way line of existing North Blackstone Avenue as relinquished by the State of California by CAL TRANS Parcel No. 79910, recorded June 6, 1983 as Instrument No. 83049231, Official Records Fresno County and being the POINT OF BEGINNING of this description; thence North 0°26'54" East, on said right of way line, a distance of 9.00 feet; thence North 89°58'06" West, leaving said right of way line, a distance of 2.50 feet ; thence South 0°26'54" West, a distance of 9.00 feet; thence South 89°58'06" East, a distance of 2.50 feet to the POINT OF BEGINNING. Containing an area of 66 square feet, more or less. EXHIBIT "B" EAST FLORADORA AVENUE 0~ e,'\ \)0\ . e,, V 7-11' ~g ­ ~,a\S• ~O · C, ?-· t-1 ~Jl-.t'-"-?,'l-• r--PEDESTRIAN EASEMENT PER -• o'?-'€-RECORDED 1-4-1987 AS \'II~ INSTRUMENT No. 88000084, APN 451-204-32 O.R.F.C. N 89°33'06" W 4.00'-TOM/TY CORPORATION INDICATES AREA TO BE DEDICATED AS A PUBLIC PEDESTRIAN EASEMENT, CONTAINING AN AREA OF 36 S.F. ±, 1"=20' 15' 10' 30' N 89°33'06" W 55.00' s 0°26'54" w 9.00' 15' 10' 30' REF.& REV. 2021-080 15-A-9919 PLAT 2356 CITY OF FRESNO DEPARTMENT OF PUBLIC WORKS AREA TO BE DEDICATED FOR PUBLIC PEDESTRIAN EASEMENT PURPOSES . ~ ~ ....u m 0< ::s i=: <( (.) ~ ~ ~ ~ (.) <(~ .....J co ~ a:: 0 ~ in,-. c::i 'Oil" C\j,-. IJ.J. 'Oil" !.O (0 C\j Q 0 <'. EAST QUARTER CORNER OF SECTION 33, TOWNSHIP 13 SOUTH, RANGE 20 EAST, M .D .B . & M., BEING THE POINT OF COMMENCEMENT ______.......__ RES TYPE ___PVV00926PROJ ID . 122512 ORG NO FUND NO 16990 1 1JAC. SHEET N0._ _ OF_1_SHEETS DR. BY JAC.CH.BY AUG 2, 2021DATE 1" = 20'SCAIE EXHIBIT "B" \ -N 0°26'54" E\ AREA3 -------- AREA2 ----- 9.00' I I / --- _,,,/ I I / APN 451-204-34 TOM/TY CORPORA T/ON ---- ~-Qr~ ~:xxa:ai~ -7..1,s--ZP \ s 0°26'54" w- 8.50' \ S 89°59'06" E ­ \ 2.50' "-. AREA 1 "' \ I - / /4 89°59'06" w 2.50' S 0°26'54"W 8.75' \ S 89°59'06" E \ 2.50' "' ---"' \ \ N 0°26'54" E I 8.50' ~ I / I ------------------- INDICATES AREA TO BE DEDICATED AS A PUBLIC PEDESTRIAN EASEMENT, CONTAINING AN AREA OF EAST QUARTER CORNER OF SECTION 33, TOWNSHIP 13 SOUTH,RANGE20EAST, M .D.B. & M., BEING THE POINT OF COMMENCEMENT <89°59'06" w / 2.50• 66S.F. ±. REF.&REV. 2021-076 15-A-9915 PLAT 2356 ~ ~ CITY OF FRESNO DEPARTMENT OF PUBLIC WORKS AREA TO BE DEDICATED FOR PUBLIC PEDESTRIAN EASEMENT PURPOSES. PROJ. ID . PW00928 RES TYPE ___1FUND N0_2=25c...12____ ORG. NO. 189901 1SHEET N0._ _ OF_1_sHEETS DR.BY_ .A;.;;.;.C.___,;;J.;._· CH.BY_ J-'-' C. __--' .A . ..;;.. DATE JULY 15, 2022 SC,A I F 1"=40'