Recording requested by and
When recorded return to:
City of Merced, a California Charter
Municipal Corporation
678 W. 18th Street
Merced, CA 95340
(Space Above For Recorder's Use)
(RECORD AT NO FEE PURSUANT TO
CA GOVERNMENT CODE SECTION 27383)
AGREEMENT FOR USE OF CITY RIGHT OF WAY
THIS AGREEMENT FOR USE OF CITY RIGHT OF WAY ("Agreement") is made this day of _, 2023, by and between ATHOULA
GROUP, LLC, a California Limited Liability Company ("Owner") and the CITY OF MERCED, a California Charter Municipal Corporation ("City"). Owner and City are sometimes referred to collectively herein as the "Parties" and individually as a "Party."
RECITALS:
The following recitals are a substantive portion of this Agreement:
Owner holds fee title to the real property at and commonly known as 443 West 18t Street, Merced, California, APN 031-064-015, and more specifically described on the attached Exhibit "A" (the "Property").
Lity City Raght of, service easement as described on the attached -xhibit "B" (the
Owner desires to construct and maintain certain
improvements within the City Right of Way, including a grease interceptor and the necessary plumbing as described on Exhibit "C" and delineated on Exhibit "D" (the "Encroachments").
NOW, THEREFORE, in furtherance of the foregoing Recitals, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Owner and City hereby agree as follows:
1. Grant of Use and Nature of Agreement. City grants
Owner, its successors, assigns, licensees, suppliers, customers, tenants and employees the right to use the City Right of Way, including for the use, installation, repair and maintenance of the Off-Site Improvements as set forth more specifically in Exhibit "C" attached hereto. In so doing, and notwithstanding anything to the contrary in this Agreement, or pursuant to the course of dealings between the Parties, City expressly does not and shall not be deemed to have abandoned the City's Right of Way or waived any rights thereunder, and Owner, its heirs, successors, and assigns derive no basis for a claim of prescriptive, contractual, or other rights to maintain the Off-Site Improvements or otherwise utilize the City Right of Way except as expressly provided in this Agreement. This grant of right to use does not constitute a deed or grant of an easement or any other real property interest by the City.
2. Term of Agreement. City may terminate this Agreement with or without cause upon thirty (30) days advance written notice. If the City vacates the City Right of Way in accordance with California law, then this Agreement shall terminate and be of no further force and effect. Upon termination of this Agreement, and upon written request by the City, the Owner shall remove all Off-Site Improvements from the City's Right of Way and restore the Property back to its natural state existing prior to use by the Owner.
3. Use of City Right of Way. This grant of permission shall be subject to and subordinate to the prior continuing right of the City to use the City Right of way for public services. Any Off-Site Improvements shall not interfere with the City's existing utilities or use.
4. Damage to City Right of Way. Owner shall be solely responsible for any damage to City streets, sidewalks, curbs, utilities, or other City owned property due to the installation, maintenance, repair, or removal of its Off-Site Improvements in the City Right of Way, and shall repair, replace, and restore in kind the said damaged facilities at its sole expense.
Maintenance of Off-Site Improvements. Owner shall be solely responsible for any maintenance and/or repairs to the Encroachment. Owner shall maintain the Off-Site Improvements and surrounding area in good and safe condition and free from damage, to the reasonable satisfaction of the City.
Hazardous Materials. Owner agrees that Owner shall not bring onto the City Right of Way, or store or dispose of on the City Right of Way, nor knowingly allow others to bring onto, store or dispose on the City Right of Way, any hazardous material of any kind.
7. Insurance Requirements. Owner shall maintain a Commercial General Liability insurance policy against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) for bodily injury or death to any one person for any one accident or occurrence and at least one million dollars ($1,000,000.00) for property damage, or (i) the maximum amount of such liability insurance available to Owner under Owner's combined insurance policies (including any excess or "umbrella" policies) actually maintained by Owner, whichever is greater.
7.1 The City, its officers, officials, employees, agents, and volunteers, are to be covered as additional insureds on Owner's Commercial General Liability insurance policy.
7.2 Owner waives any and all rights of subrogation against the City and the City's elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers, which any insurer of Owner may acquire against the City.
7.3 For any and all claims related to this Agreement, Owner's insurance shall be primary non-contributing.
7.4 Owner shall furnish City with copies of all policies or certificates as outlined herein, whether new or modified, promptly upon receipt. No policy subject to the Owner's agreement with the City shall be canceled or materially changed except after thirty (30) days' notice by the insurer to City. Certificates, including renewal certificates, may be mailed or delivered to the City at 627 W. 18th Street, Merced, California 95340.
8. Defense and Indemnification. Owner shall indemnify, protect, hold harmless, and defend the City from any and all loss, cost, liability or expense, and from any judgments or damages to any person or property arising or resulting, directly or indirectly, from the condition of the Off-Site Improvements, or in connection with the installation and/or maintenance of the Off-Site Improvements.
Representations and Warranties. The Owner hereby represents and warrants that Owner has full power and authority to execute and deliver this Agreement and to make and accept the obligations contemplated hereunder.
10. Compliance With Laws. Each of the Parties shall at all times comply fully with all applicable governmental laws, ordinances, rules, codes, regulations, and permit requirements pertaining to the use of the City Right of Way and maintenance and repair of the Interceptors.
11. Waiver. The failure of any of the Parties or their successors to enforce any of the terms and provisions set forth herein shall not constitute a waiver of the right to enforce the same thereafter.
12. Entire Agreement. This Agreement constitutes the entire integrated agreement of the Parties with respect to the subject matter of this Agreement. This Agreement may not be amended or terminated except by a writing signed by authorized signatories of all Parties.
13. Construction. The section headings have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. Wherever the context hereof may so require, the singular shall include the plural and the masculine shall include the feminine and neuter. This Agreement shall be interpreted pursuant to its plain and ordinary meaning, as though prepared by both Parties, and in accordance with the laws of the State of California.
14. Successors and Assigns. The rights and obligations of the Parties hereunder shall be binding on and inure to the benefit of the Parties hereto and the successors and assigns of the Parties hereto. These obligations shall run with the land.
15. Recordation of Agreement. Any of the Parties may cause this Agreement or a memorandum thereof to be recorded in the Office of the County Recorder of Merced County, California.
16. Governing Law and Venue. The provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue for any legal action arising out of this Agreement shall be the Superior Court of the County of Merced, California.
17. Attorneys' Fees. Should it become necessary to take steps to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its attorneys fees and costs related to the enforcement of this Agreement.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have made and executed this Agreement on the day and year first above written.
CITY OF MERCED
A California Charter Municipal
Corporation
BY:
City Manager
ATTEST:
BY:
City Clerk
APPROVED AS TO FORM:
BY: /MDa 6-6-2023
City Attorney Date
ACKNOWLEDGMENT
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
County of
On , 20_, before me,
a Notary Public, Personally appeared
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Notary Public (seal)
ACCOUNT DATA:
BY:
Verified by Finance Officer
PROPERTY OWNER
BY:
Signature
Zaya. Daveal
Print Name
Manasing Member
Title
45/
ADDRESS 24 473 west 1gth Stret
MERCED, CA 95342
TELEPHONE: 207-580-4823
ACKNOWLEDGMENT
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
connor Muced
_ 2023 before me, _ R. Alejo, Notay Public
a Notary Public, Personally appeared
Z aya Davood
who proved to me on the basis of satisfactory evidence to be the personie, whose namels (flape subscribed to the within instrument and acknowledged to me that he/she/they executed the same in Lister/their authorized capacities, and that by his/her/their signaturest on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
R. ALEJO
Notary Public - California
Signature Merced County
Commission # 2411954
Notary Public My Comm. Expires Aug 22, 2026
(seal)
EXHIBIT A
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
MERCED, COUNTY OF MERCED, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
ALL OF LOT 11 IN BLOCK 146, ACCORDING TO MAP ENTITLED, "SUPPLEMENTAL MAP TO TOWN OF MERCED", ', ORIGINALLY RECORDED MARCH 4, 1889, IN VOL. 1 OF MAPS, PAGE 12, AND NOW APPEARS IN VOL. 2 OF MAPS, PAGE 12, MERCED COUNTY RECORDS.
A R
E K
AR
E
A
COURT HOUSE SQUARE F
U
SE
EXHIBIT B
A 20 mir
22.4-,660-ceт
8300
RAILROAD
RESERVATION
SUPPLEMENTAL
MAP
TOWN
MERCED
Scale 400 Feet to LInch.
EXHIBIT C
OFF-SITE IMPROVEMENTS
EXHIBIT 'A'
Grease Interceptor Location Within Alley
All that portion of the 20-foot-wide alley in Block 146 as shown on the Supplemental Map to Town of Merced recorded in Volume 2 of Official Plats at Page 12, Merced County Records, lying in Section 30, Township 7 South, Range 14 East, Mount Diablo Base and Meridian, in the City of Merced, County of Merced, State of California, described as follows:
Beginning at a point on the northeasterly line of Lot 11 in said Block 146 that lies S 65°20'00" E
21.74 feet from the most northerly corner of said Lot 11, said northeasterly line also being the southwesterly line of said alley; thence S 65°20'00" E 12.00 feet along said northeasterly line; thence N 24°40'00" E 3.50 feet; thence N 65°20'00" W 12.00 feet' thence S 24°40'00" W 3.50 feet to the point of beginning.
The area described is intended to contain that portion of the grease interceptor as installed within said alley near the northeasterly line of said Lot 11.
Containing 42.00 square feet, more or less.
LAND
ICENSED SURVEY
ZACHARY I. JANZ
14, 2023
JN: 22118 February 14, 2023
OT LOT 7
•02
SUPPLEMENTAL MAP TOWN OF MERCED LOT 8
LAND
DISNEDI SURVEYO BLOCK 148
ZACHARY _JANZ ALLEY
- LOCATION OF PORTION
LS8664 GREASE INTERCEPTOR THAT
LIES WITHIN ALLEY
STATE OF CALFORT
FEB 14,2023 S 24'40'00" ₩ 3.50'
LOT
MOST NORTHERLY CORNER 21.74' -N 65'20'00" ₩ 12.00'
OF LOT 11, BLOCK 146, S 65'20'00" E
2 O.P. 12, M.C.R.
N 24:40'00' E
NORTH S 65'20'00" E 12.00°- 3.50'
LOT
SCALE: 1" = 15' LOT
EXHIBIT B'
GOLDEN VALLEY Plat to accompany description of the location of the portion of grease interceptor that lies within the 20'
ENGINEERING & SURVEYING
405 W. 19th Street • P.O. Box 349. Mercec, CA 95340 wide alley in Block 146 as shown on "Supplemental Map to the Town of Merced" recorded in Volume 2 Phone (209) 722-3200 • Fax (209) 722-3254 of Official Plats, Page 12, M.C.R., lying in Section 30, T.7S., R.14E., M.D.B.&M., in the City of Job No. 22118 Date: 1/10/2023 Merced, County of Merced, State of California MILL
HO CUTE VAN NAILER DO WEE
SECRET, INT
A RAIER AND SANIANT G
WE SHIT AT SRICE UNE SEWER CONNECTION SITE PLAN KAL Ne
SE DEAL SEE ° 1O CASING OTT MAN
20 40 4 7/000
BANQUET HALL TI 443 WEST 18TH STREET MERCED, CA 95340 A.P.N. 031-064-015-000
RST FOOT
OF BUILDING IN LINE WITH CITY OF MERCED SANITARY SEWER MAP
SACT BAIN
CITY GE MERCED SANTARY SEWER MAP
WEST 18TH STREET
HOREST
WATER AND SANITARY SEWER CONNECTION SITE PLAN
SCALE: #* - 1'-0* COO
1000 GALLON
GREASENTERCEPTOR
579677
100000:000
OTY OF MARCED. CA
CRY OF VISORS CA
SAMPLING WARHOLE S-7
S-5B
BANOUET HALL TI 443 WEST 18TH STREET MERCED, CA 95340 A.P.N. 031-064-015-000
GREASE INTERCEPTOR DELETED SEWER VIEWER SAMPLING PORT SEWER LATERAL
REDPONED TRAVIS POM
SAEDATE 227.22
WATER SERVICE CONNECTION BACKFLOW PREVENTER ACTUAL DEVICE BACKFLOW PREVENTER CITY STANDARD C01
O1955-3
MILI
тру?
OTY OF MICE, CA W-33
W-16C EAT NES ROM SANTARY SOME W-16D
BANQUET HALL TI 443 WEST 18TH STREET MERCED, CA 95340 A.P.N. 031-064-015-000
CITY STANDARD CITY STANDARD CITY STANDARD CITY STANDARD
CANERAL JEE BEBRUNE PIPING NOELS
THEN ALLAN OF THIS CHeST BATER SYSTEM SHAL
NITe THE NEPA 24 2018 COISON, CFC 2016. & ALL LOCAL
CORES.
3. ALL UNCERCROUNO PIPE TO BE PVC C-900, CLASS 235 SIZED AS
ADICATED ON PLAN ALL PRING TO ABOVE CRACE TO ME DUCTNE
RON CISE AS SHORE ON PLAN DEALS.
UP. SEE STUB UP DETAL. NO FITINGS ALLOWED UNCER BULDNG
5. ALL FITRICS TO BE MECHANCAL JONT DUCTLE IRON OR CAST MON UL
APPROVED
6. MINIMUM PIPE BURY DEPTH TO BE 36ª MELCH FINSH GRADE MEASURED
7. ALL UNCERGACUNO PEE SHALL BE LAO MCM THE CENTFICAION DAD
FONG UP TO FERMET INSPECTION & VERFICATICN OF PPE CONCE
VINCIALKE IRONCH CEPTE TRENCH BACK/LL
8 PRNE & WAS BORED DUCTLE IRON PPE & FITINGS TO BE 5º ABOVE THENS- THE PINSHRO CRACE WITH POLIKEN $727 * A0O OR APPROMED
EQUAL ALL BOLTED JONI ACCESSCRES 10 ME OCATED RICH AN
OH OR SULAR NATHA
* COPTER TRACER WAL TO BE INSTALLED PER BU SPEOFKATEAS
11. SYSTEM TO BE MORO STACICALEY TESTED AT NOT LESS THAN 200 F$ FOR A MINAUN OF 2 HOURS.
12. SYSTEM SIAL BE FLUSHEO UNIL THE RATER IS CLEM & ACCEPTED
BY THE INSPECTOR BEFORE ANY CONNECTION IS MADE TO THE
NERHEAD PON
13. THE FOLLOWING NGPECTIONS REGUMED.
a. UNDERGROUNO HIOROSTATIC TEST
€. UNDERCROUNO FNAL SEE DATE. 17720:
WATER SYSTEM SPECIFICATIONS TRENCH DETAIL
C02
NICEEN ARE THE PROPERTY OF CAL MLL ENGER AND PROJECT MALESMENT, DEVISED SOLELY FOR TA CONTRACT HESE PLANS DAALL NOT BE USED IN NO. OR PART FOR ANY PURPOSE FOR MON THEY MORE VOT MENCED WITHOUT ENSESS RATTEN CONSENT OF
RESCATCOATE VALVES
MILT
veers aral coon ten and ta crunchs at 2 non seat sees eve valves shal rave tul epering fowlay of equal darest as the namal sze of connect pise Valves shal fave ter Oring stem seas
PAO WATER SAN • Did lee top or connection el any dad to de tom nopy see serene wie mee * Beel cler a das or any paren do nes Bocas unti neeraten nee cans wall and sol celerate wess nima
resting Tire / seese late ved sal be C-032905 51 8: G960 11.19 for 19 ard C 40 6 0D се ст поди олячни полони! Sassese
Bedding and Compatien, Sea Drawings 7.1 Draugh Ta cy rene Cy sears Green as el de semites unis agen
TRACER TAPE
ELENO OCPARTMENT ENO CEPARTMENT MA COPARTMENT
LACHILD CA CITY CE MERCEO, CA
WATER SYSTEM - CONSTRUCTION SPECIFICATIONS WATER SYSTEM - CONSTRUCTION SPECIFICATIONS WATER SYSTEM - APPROVED ALTERNATES W-15 W-16 W-16A WATER SYSTEM - CONSTRUCTION SPECIFICATIONS all are ATIOND BY W-17 BANQUET HALL TI 443 WEST 18TH STREET MERCED, CA 95340 A.P.N. 031-064-015-000
CITY CHEMICA
street render Age, a 4092309 71002
DOMESTIC. FLOR
NO DOVEST READ RUST A TRICE THERE SHALL BE SEPARATE FRE Slow severdon alterates stat be insated at the culturer's expense Sat F. SONSTRUCTION BEQUREMENIS
888888888
2 Yeen ele entend on et hydrent runs end on each ing of man 983 C. ERE HYDRANTS.
Facile 331 Mered Cly purse
na Dye Works
3333 88888
STY CE MERCED, CA МОНДИНО СОРАТНОН OTY OF MERCED, CA MANDING COPARTMEN OTY OF MERCED, CA
WATER SYSTEM - CONSTRUCTION SPECIFICATIONS WATER SYSTEM - CONSTRUCTION SPECIFICATIONS BACKFLOW CROSS CONNECTION CONTROL REOU REVENTS BACKFLOW CROSS CONNECTION CONTROL REQUIREMENTS W-22 W-23 APPROVED ST W-24 W-25
127/0
2/05
SHEET SEt
1 CITY OF MERCED WATER SYSTEM SPECIFICATIONS C03
SE PLANS SHALL NOT BE USED. IN WHOLE OR PART FOR ANY PURPOSE FOR WHICH THEY MERE NOT N'ENEE Water Meters 1° 112 ang23 B. Chenber and Dace issue feats shal eet te made uti 2e soe has tear backties as nacales in te precedea section A PROJECT MANAGCHENT Stenization
"Cry esperson resurre
ery species es the is ce body.
TESTING WATER SYSTEM DESIGN PRACTICES
Ai sess shal be made aber tenches have teen backled compadied and aporcued for lesteg
OTY OF MERCED, CA
WATER SYSTEM - CONSTRUCTION SPECIFICATIONS ZHENG CEPARTMENT CITY OF MERCED, CA
WATER SYSTEM - CONSTRUCTION SPECIFICATIONS WATER SYSTEM - CONSTRUCTION SPECIFICATIONS WATER SYSTEM - CONSTRUCTION SPECIFICATIONS ORAME KOE APRONED BY W-18 APPROMEO BY W-19 W-20 W-21
APPROVED BY GATE
CITY ONANCER 343T AMS 1/23/23 LEVSO: 020/04 BANQUET HALL TI 443 WEST 18TH STREET MERCED, CA 95340 848888
0999888
Store 38L 4330) and repared witn fee (3) dry ient.
Clandes or Otter Closed Faceles
i way it to te that be cenacts arcy to a fly man.
МОМЕЖНО ОСРАЙТИЕН* ATY OF MERCED, CA
BACKFLOWCROSS CONNECTION CONTRCL REQUIREMENTS BACKFLOWICROSS CONNECTION CONTROL REQU REMENTS W-26 W-27
PROVET •
CITY OF MERCED WATER SYSTEM SPECIFICATIONS C04