______________________________________________________________________________ APN: 479-050-04 (McDonald) City of Fresno/MLK ATIP/OWNER/Agreement 1 AGREEMENT FOR PURCHASE AND SALE OF PERMANENT STREET
AND PUBLIC UTILITY EASEMENTS AND ESCROW INSTRUCTIONS
APN 479-050-04
MLK - Active Transportation Infrastructure Program
City Project No.: PW00842 Federal Project No.: CML 5060(360)
This Agreement for a Permanent Street Easement and Public Utility Easement (“Agreement”) is entered into by and between Ruth McDonald, an unmarried woman , and Florine Par ish, an unmarried woman ( collectively “Owner”), without regard to number or gender, and the CI TY OF FRESNO, a municipal corporation (“City”), for permanent street and public utility easements 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 Street Easement being approximately 3,357± square feet in size for public street easement, and a Public Utility Easement being approximately 99 ± square feet in size for public utility ea sement, to facilitate the Fresno an d Browning Intersection Improvement Project (“Project”), situated in the City of Fresno, C ounty of Fresno, State of California, , within Assessor’s Parcel Number 479- 050-04, as described on Exhibit s “A” and “C” depicted on Exhibits “B” and “D” attached hereto and i ncorporated herein by reference.
2. Owner agrees to grant to the City a permanent street easement and public utility easement and right of way (“Easements”) for public street and utility purposes over, under, though, and across the Subject Property, free and clear of all liens, encumbrances, and restrictions of record.
3. City sha ll pay just co mpensation of EIGHT THOUSAND FI VE HUNDRED AND NO/100 DOLLARS ($ 8,500.00) for the Easement s, i ncluding cost to cure damages , benefits and/or severance damages to the remainder, if any, as indicated on Exhibit “ E”, attached hereto and incorporated herein by reference, for the Subject Property.
4. Clause 3 above may include paym ent 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 orde r 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 l ivestock during construction of the roa d proj ect, 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 remai ning property to perform sa id work and that the cost for sai d 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 EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00) 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.
______________________________________________________________________________ APN: 479-050-04 (McDonald) City of Fresno/MLK ATIP/OWNER/Agreement 2 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 L ease 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 possesse s fully executed and acknowle dged a nd recorded easement deed s to the Subject P roperty free and clear of all liens, encumbrances and restrictions of record.
c. The City reserves the right to accept title to the property interes t to be acquired by City herein subject to cer tain defects in a ny 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 a ny and all claims and demands th ird pa rties m ay 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 sh all not exceed the amo unt 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 an d conditions and subject to the limitations of this Agreement.
9. Owner shall indemnify, hold harmless, and defe nd the City, its officers, agents, employees, and volunteers from any liability, loss, fines, penalties, forfeitures, claims, expenses, and cos ts, whether incurred by t he Owner, City, or any other thi rd party, arising directly or indirectly from the releas e, 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 befor e the effective date of this Agr eement. This indemnity shall include, without limitatio n, any claims under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), or any other federal , state or local law whet her statutory or c ommon law, ordinance, or regulation. Costs or losses covered will inc lude, without limitation, consultants, engineering, investigator fees, clean up or disposal costs and attorneys' fees, and damages. The Owner’ s obligation herein t o indemnify and hold harm less the City shall not exceed the amount paid to the Owner specifi ed in Paragraph 3. This limitation ______________________________________________________________________________ APN: 479-050-04 (McDonald) City of Fresno/MLK ATIP/OWNER/Agreement 3 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 thi s 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 unl ess 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 sh all be governed by, a nd 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. Headings. The secti on 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 fi nal form is the resu lt 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 rathe r 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 suc h proceeding or action sha ll be e ntitled 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 ove r the terms and conditions expressed within the Exhibit or Attachment.
h. Cumulative Remedies . No remedy or election hereunder shall be deem ed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
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 al l prior negotiatio ns, representations or agreements, either written or oral. ______________________________________________________________________________ APN: 479-050-04 (McDonald) City of Fresno/MLK ATIP/OWNER/Agreement 4 This Agree ment may be modified only by written instrument duly authorized and executed by both the City and the Owner.
[SIGNATURE PAGE TO FOLLOW]
______________________________________________________________________________ APN: 479-050-04 (McDonald) City of Fresno/MLK ATIP/OWNER/Agreement 5 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the Effective date of this Agreement as defined above.
OWNER
Ruth McDonald, an unmarried woman, and Florine Parish, an unmarried woman
_________________________________ Date: _______________ Ruth McDonald
_________________________________ Date: _______________ Florine Parish
CITY OF FRESNO, a California municipal corporation
By: ______________________________ Date: _______________ Scott L. Mozier, P.D.
Public Works Director
RECOMMENDED FOR APPROVAL:
By: ______________________________ Date: _______________ Nancy Bruno
Supervising Real Estate Agent
APPROVED AS TO FORM:
Andrew Janz, City Attorney
By: ______________________________ Date: _______________ Deputy
ATTEST:
Todd Stermer, City Clerk
By: ______________________________ Date: _______________ Deputy
Attachments:
1. Exhibit “A”
2. Exhibit “B”
3. Exhibit “C”
4. Exhibit “D”
5. Exhibit “E”