125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
CREATED: 05/17/22
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Recording Requested by
CITY OF PATTERSON
After Recording Return to
CITY OF PATTERSON
ATTN: CITY CLERK
POST OFFICE BOX 667
1 PLAZA
PATTERSON, CA 95363
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(Space above this line for recorder’s use)
SECURED DEFERRAL AGREEMENT FOR PUBLIC IMPROVEMENTS
125 POPPY AVENUE, PATTERSON, CALIFORNIA
PATTERSON OUTDOOR VENUE PROJECT
THIS AGREEMENT is made and entered into this day of , 2022, by and among City of Patterson, hereinafter called (“CITY”), Imelda A. Ruiz, hereinafter called (“DEVELOPER”).
WHEREAS, DEVELOPER is the owner of the property located at 125 Poppy Avenue, Patterson, CA 95363, more specifically displayed in “Exhibit “A”, attached hereto and herein by reference APN# 048-043-015-000 (the “Property” or “Land”); and WHEREAS the DEVELOPER is seeking to utilize the existing property as an outdoor event venue as approved in their Conditional Use Permit #21-11, located at 125 Poppy Avenue, Patterson, CA 95363 (“Project”); and
WHEREAS the CITY requires that public improvements be constructed or guaranteed in accordance with Government Code Section 66485, and City Ordinance No. 508 (Municipal Code Section 16.40.020) (“Developer Improvements”); and WHEREAS CITY, DEVELOPER, and PROPERTY OWNER agree that it is not essential to the intended use of the Property to construct all the developer improvements at this time, and that these developer improvements may be deferred to a future time (“Developer Improvements”); and
NOW, THEREFORE, for and in consideration of the mutual covenants and considerations contained herein, the CITY, DEVELOPER, and PROPERTY OWNER agree as follows:
1. Scope. The purpose of this Agreement is to set forth the conditions (approved by Conditional Use Permit #21-11) and security and assure the future construction 125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
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and installation of all the Developer Improvements, at the expense of the DEVELOPER, to certain standards as required by the CITY and that each and every one of the provisions of this Agreement herein contained shall bind and inure to the benefit of the successors in interest of the parties hereto in the same manner as if they had herein been expressly named.
2. Developer Obligations. DEVELOPER agrees:
a. To guarantee the construction of the Developer Improvements upon approval and recordation of this Agreement to construct and install the Developer Improvements required by the City Engineer and as described in this Agreement.
b. To install the following Developer Improvements: installation of frontage improvements which include sidewalks, curb, gutter, commercial driveway, storm drain utilities, street lighting, frontage landscaping, and fire hydrants.
The installation of these Improvements will be required within two (2) years of the execution of this agreement or sooner if the adjacent properties also install frontage improvements, whichever comes first. c. The DEVELOPER is required to properly abandon and destroy the private well and septic tank immediately after connection to the City’s water and sewer mains, per the City’s municipal code. The DEVELOPER is required to obtain proper permits from the City and Stanislaus County, hire a licensed contractor, and perform the abandonment/destruction to approved City/County standards.
d. To submit necessary construction plans to the CITY for the Developer Improvements within 60 days after receipt of written notification from the CITY; commence construction of the project within 60 days after receiving approval from the CITY; and complete all Developer Improvements within 120 days after commencement of construction. This includes proper abandonments and destruction of the private well and septic tank immediately after connection to the City’s water and sewer mains. e. To disclose and provide copies of this Agreement, together with all exhibits, to any buyer(s) of any portion of the Land. PROPERTY OWNER shall obtain a confirmation form from each buyer confirming that the buyer(s) receipt of the Agreement and shall provide a copy of such form to the CITY for their records.
f. Upon completion and approval of Developer Improvements, PROPERTY OWNER and DEVELOPER shall execute a written instrument offering and irrevocably dedicating in fee for public purposes to CITY the Developer Improvements and the real property upon which the Developer Improvements are constructed.
g. In the event developer fails to make the improvements as required, City May complete the improvements and cause the cost thereof to be made a lien against the property.
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
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3. City Obligations. CITY agrees:
a. Defer construction of the Developer Improvements, as provided herein; and b. To provide the DEVELOPER and PROPERTY OWNER with a release and satisfaction exonerating this Agreement once all the Developer Improvements, as provided herein, have been completed and accepted by the CITY.
4. Security Device. In order to guarantee that Developer shall fulfill his obligations, the City requires that a security device, such as a bond, cashier’s check, or other approved device, be filed with the City. The security device amount shall be equal to the total amount listed on the Construction Estimate, Exhibit C, and cover engineering design, plan check, construction management services, inspections, etc. The construction estimate must be prepared and stamped by a licensed Engineer and approved by the City’s Engineer to establish the amount of the security device.
5. Waiver. CITY or CITY’S officers, employees, agents, representatives, or contractors may inspect or make statements indicating that certain work or materials used to complete construction the Developer Improvements comply with the terms of this Agreement. The CITY’S acceptance of certain portions of the Developer Improvements shall not relieve DEVELOPER of the obligations in this Agreement or serve as a basis or defense in any action brought by CITY against DEVELOPER for any damages arising from the breach of any term or condition of this Agreement by DEVELOPER.
6. Terms of this Agreement. The term of this Agreement shall be binding on DEVELOPER and PROPERTY OWNER beginning on the date that it is executed by the CITY.
7. Land. The Land shall be held, sold, leased, conveyed, encumbered, hypothecated, used, occupied, and improved subject to the terms and provisions of this Agreement, which shall constitute restrictions, reservations, rights, covenants, conditions, and equitable servitudes, all of which are for the purpose of enhancing and protecting the value, attractiveness, and desirability of the Project. Such restrictions, reservations, rights, covenants, conditions and equitable servitudes shall (i) run with the Land and shall be binding upon all persons having or acquiring any interest in the Land or any part thereof, their heirs, successors and assigns; (ii) inure to the benefit of every portion of the Land and any interest therein; and (iii) inure to the benefit of and be binding upon each Owner(s) and each Owner(s) successors in interest.
This Agreement and the terms of this agreement will be recorded along with the Land’s Deed of Trust to ensure that all obligations of this Agreement remain valid 125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
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and in effect until all DEVELOOPER IMPROVEMENTS have been completed and approved by the CITY.
8. Assignment. DEVELOPER and PROPERTY OWNER shall remain liable under the terms of this Agreement unless and until:
a. The Developer Improvements are constructed/installed and accepted by the CITY; or
b. DEVELOPER and PROPERTY OWNER assigns/their rights and obligations to a third party and those assignments are accepted by the CITY.
9. Notices. All notices required by this Agreement shall be in writing and sent by regular US mail, postage prepaid; commercial overnight courier; or facsimile.
Unless a party to this Agreement has given (10) day notice of a change of person and address for purposes of notice under this Agreement to the other party in writing, notices shall be directed to the following:
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
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Notices to the CITY:
Mike Willett, Public Works Director
City Hall
1 Plaza Circle
Patterson, CA 95363
Telephone: (209) 895-8060
Fax: (209) 895-8069
E-mail: [email protected]
With copy to:
Nubia Goldstein, City Attorney
1 Plaza
City Hall
Patterson, California 95363
Tel: (209) 895-8000
Fax: (209) 895-8019
Notices to DEVELOPER:
Imelda A. Ruiz
2121 Orange Avenue
Patterson, CA 95363
Telephone: (209) 604-5742 or (209) 996-3075
Fax: N/A
E-mail: [email protected]
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
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10. Amendment. This Agreement shall not be amended, modified, or canceled without the written consent of the parties.
11. Venue. Venue for all legal proceedings shall be in the Superior Court for the County of Stanislaus in the State of California.
12. Governing Law. The laws of California, excluding its conflict of laws rules, shall govern the rights and obligations of the parties and the interpretation and performance of this Agreement.
13. Attorney Fees. In any litigation, arbitration, or other proceeding by which any of CITY, DEVELOPER, or PROPERTY OWNER either seeks to enforce its rights under this Agreement or seeks a declaration of any rights or obligations under this Agreement, the prevailing party will be awarded reasonable attorney fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
14. 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. Any facsimile copies hereof or signature thereon shall, for all purposes, be deemed an original.
15. Recording. Upon the effective date of this Agreement, the CITY shall file this Agreement at the Stanislaus County Recorder’s Office, Modesto, California for recording and it shall be binding on DEVELOPER, PROPERTY OWNER, and their successors, assigns and transferees.
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
CREATED: 05/17/22
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IN WITNESS WHEREOF, the CITY, DEVELOPER, and PROPERTY OWNER have executed this Agreement the day and year first above written.
CITY OF PATTERSON, CALIFORNIA
By:
Ken Irwin, City Manager
Dated:
ATTESTATION BY CITY CLERK:
Aracely Alegre, City Clerk
Dated:
DEVELOPER AND PROPERTY OWNER:
Imelda A. Ruiz
2121 Orange Avenue
Patterson, CA 95363
By:
Imelda A. Ruiz, Property Owner
Dated:
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
CREATED: 05/17/22
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(NOTARIES ON THE FOLLOWING PAGES)
NOTARY ACKNOWLEDGMENT
State of California )
)
County of ____________ )
On _________________, 20 , before me, , 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. Notary Name: ____________________ Commission #:
Commission Expires: ________________
Notary Public Signature
[Seal]
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.
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
CREATED: 05/17/22
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NOTARY ACKNOWLEDGMENT
State of California )
)
County of ____________ )
On _________________, 20 , before me, , 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. Notary Name: ____________________ Commission #:
Commission Expires: ________________
Notary Public Signature
[Seal]
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.
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
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EXHIBIT A
SITE MAP
125 POPPY AVENUE DEFERRED IMPROVEMENT AGREEMENT
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EXHIBIT B
LEGAL DESCRIPTION
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EXIBIT C
PRELIMINARY OPINION OF PROBABLE CONSTRUCTION COSTS
FUTURE OFFSITE PUBLIC IMPROVEMENTS & LANDSCAPING
(TO BE PROVIDED TO THE CITY PRIOR TO RECORDING OF THE SIGNED
AGREEMENT)