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HomeMy WebLinkAbout2005-004 Gearhart, Kelly CITY OF ATASOADETO JULIE RODEWALD MF CONTRACT# San Luis Obispo County—Clerk/Recorder 3/08/2005 Recorded at the request of 8:00 AM Cuesta Title Company NO FEE DOCUMENT D 0 C#: 2005017911 Titles: 1 Pages: 6 Government Code§6103 '✓ Fees 22.00 RECORDING REQUESTED BY AND Taxes 0.00 Others 0.00 WHEN RECORDED MAIL TO: PAID $22.00 CITY OF ATASCADERO 6905 EI Camino Real, Suite 6 Atascadero, CA 93422 Attn: City Clerk (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) CITY OF ATASCADERO SUBDIVISION IMPROVEMENT AGREEMENT DATE OF AGREEMENT: ;), _ �,- — (`J�, NAME OF SUBDIVIDER: Mr. Kelly V. Gearhart SUBDIVISION: Tract 2491 (3 v a a 5 Pcc�e i1 `13- -1 ESTIMATED TOTAL COST OF IMPRO'VEME'NTS: - .." This Agreement made and entered into by and between the City of Atascadero, a municipal corporation of the State of California (hereinafter referred to as "City") and Atascadero Ventures. LLC (hereinafter referred to as "Subdivider'). RECITALS A. Subdivider has presented to the City Council of the City of Atascadero Tract 2491 for approva! but not all of the improvements required or conditions imposed by Title 11, Chapter 8 Articles 3 and 4 and Chapter 10 of the Atascadero Municipal Code have been completed or performed. B. Subdivider desires to record Tract 2491 after the same has been approved by the City Council of the City of Atascadero. C. The Subdivision Laws establish as a condition precedent to the approval of a parcel map that Subdivider must have either completed, in compliance with City a Standards, all of the improvements and land development work required by Tract 2491 or have entered 'Ihto a'°secured-agreement with City to complete the improvements and land development within a period of time specified by.City. D. In consideration of approval of Tract 2491 by the City Council, Subdivider desires to enter into this Agreement, whereby Subdivider promises to install and complete, at the Subdivider's own expense, all of the public improvement work required by City in connection with Subdivision. E. Improvement Plans for the construction, installation and completion of the improvements have been prepared by Subdivider and approved by the City Engineer. The Improvement Plans for Tract 2491 are on file in the Office of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement to the Improvement Plans shall include reference to any specifications for the improvements as approved by the City Engineer. F. An estimate of the cost for construction of the public improvements according to the Improvement Plans has been made and has been approved by the City Engineer. The Estimated Total Cost of Improvements is stated on Page 1 of this Agreement. The basis for the estimate is on file with the City of Atascadero. G. Subdivider recognizes that by approval of Tract 2491, City has conferred substantial rights upon Subdivider, including the right to sell, lease, or finance lots within the subdivision, and has taken the final act necessary to construct the public improvements within the subdivision. As a result, City will be damaged to the extent of the cost of installation of the improvements by Subdivider's failure to perform its obligations under this Agreement, including, but not limited to, Subdivider's obligation to commence construction of the improvements by the time established in this Agreement. City shall be entitled to all remedies available to it pursuant to this Agreement and law in event of a default by Subdivider. It is specifically recognized that the determination of whether a reversion to acreage or rescission of Tract 2491 constitutes an adequate remedy for default by the Subdivider shall be within the sole discretion of City. NOW THEREFORE, to the provisions contained in the Atascadero Mu_riicipat Code, Title 11, Chapter 10, sections 11-10.010 through 11-10.022, and in consideration of the approval by the City Council and the filing of Tract 2491, the parties hereto do promise and agree one with the other as follows: 1. Subdivider is to make and complete all of the improvements for Tract 2491 as shown on the Improvement Plans thereof and as required and set forth in Title 11, Chapter 8, Articles 3 and 4, and Chapter 10, of the Atascadero Municipal Code, or as amended. 2. Subdivider is to improve San Rafael Road from Los Osos Road to the project boundary to City Standard No. 401, Rural Local. 3. It is further understood and agreed by and between the parties hereto that the improvements as required by the conditions of approval for Tract 2491 shall be completed within one year from the Date of Agreement. These improvements include, but are not limited to the following: those shown on the plans accepted by the City Engineer and on included in the Engineer's Estimate on file with the City of Atascadero. 4. The Subdivider promises and agrees to complete all improvement work referred to hereinabove to the satisfaction of the City Engineer. 5. If said improvement work is not completed within one year of the Date of Agreement, the Subdivider agrees that the City may elect to complete the same. 6. In the event the City elects to complete said work or improvement, the Subdivider agrees that the City may exercise it's option to declare the bond or deposit, as hereinafter described, forfeited and utilize the proceeds, including any interest, to complete said improvements or that the City may complete said improvements and recover full cost and expense thereof including reasonable attorney fees from the Subdivider and his/her surety. 7. The Subdivider shall, prior to submitting the map for filing, file an improvement security with the City, in a form acceptable to the City Attorney, in the amount of the Estimated Total Cost of Improvements, which is the amount deemed sufficient by the City Engineer. In no case shall the improvement security be less than 100% of the Estimated Total Cost of Improvements. Further, the Subdivider shall file a security for labor and materials in the amount of the Estimated Total Cost of Improvements. The security for labor and materials shall be no less than 50% of the Estimated Total Cost of Improvements. Periodic progress payments may be authorized to the Subdivider as the improvements are completed if adequate security remains as determined by the City Engineer, however, no such progress payments shall be made for more than 90% of the value of any work. Progress payments shall only be paid on work that is completed to the satisfaction of the City Engineer. 8. The Subdivider hereby agrees that after the completion and acceptance of the improvements as specified in paragraphs 2 and 3, 10% of the improvement security shall be retained for the guarantee and warranty of the work for a period of one year. 9. It is understood and agreed by and between the parties hereto that this Agreement shall bind the heirs, executors, administrators, successors, and assigns of the respective parties to this agreement. 10. In the event legal action is taken to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover costs to enforce the Agreement, including reasonable attorney fees. 11. The Subdivider shall, defend, indemnifv and save harmless the City, its officers, agents and employees from any and all claims, demands, damages, costs, expenses, or liability occasioned by the performance and attempted performance of the provisions hereof, or in any way arising out of this Agreement, including, but not limited to, inverse condemnation, equitable relief, or any wrongful act or any negligent act or omission to act on the part of the Property Owner or of agents, employees, or independent contractors directly responsible to the Property Owner, providing further that the foregoing shall apply to any wrongful acts, or any actively or passively negligent acts or omissions to act, committed jointly or concurrently by the Applicant, the Property Owner's agents, employees, or independent contractors. Nothing contained in the foregoing indemnity provisions shall be construed to require the Property Owner to indemnify the City against any responsibility or liability in contravention of Section 2782 of the Civil Code. 12. Upon acceptance of the work on behalf of City and recordation of the Notice of Completion, ownership of the improvements constructed pursuant to this Agreement shall vest in City. 13. Sale or other disposition of this property will not relieve Subdivider form the obligations set forth herein. Subdivider agrees to notify City in writing at least 30 days in advance of any actual or pending sale or other disposition of the property. If Subdivider sells the property or any portion of the property within the Subdivision to any other person, Subdivider may request a novation of this Agreement and a substitution of security. Upon approval of the novation and substitution of securities, Subdivider may request a release or reduction of the securities required by this Agreement. Nothing in the novation shall relieve the Subdivider of the obligations under Paragraph 2 for the work or improvement done by Subdivider. 14. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this section. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States Mail. Notices shall be addressed as follows unless a written change of address is filed with City: City: City of Atascadero 6500 Palma Avenue Atascadero, CA 93422 Subdivider: Kelly V. Gearhart 6205 Alcantara Ave. Atascadero, CA.93422 Surety: Hurst Financial Corporation 7035 Morro Road Atascadero, CA 93422 14. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. 15. The Recitals to this Agreement are hereby incorporated into the terms of this Agreement. 16. This Agreement constitutes the entire Agreement of the parties with respect to the subject matter. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. In the case of City, the appropriate party shall be the City Manager. IN WITNESS WHEREOF the Property Owner has hereunto set his/her hand and the City has caused these presents to be signed by its duly sworn and authorized officers the day and year first hereinabove written. CITY OF ATASCADERO SUBDIVIDER: By: `ll ly t/ ;(notarize signature) Wade G. McKinney _.,.City Manager i�t�est:. f NF rcia:M;-irgerson U" <. -r✓�ty Grrt ry. .Ap ed as to c tent: S B. Kahn, P.E. City Engineer �1 Approveky City Atto State of California County of San Luis Obispo On �7C6&AAP_V 1% ,;)Q0'; before me, '� �Nl,l`('RIO"S " STAY Put�LI personally appeared KF-LVV V LEra�AT-- personally known to me (or proved to me on the basis of satisfactory evidence) to be the person N) whose name N) is/awe subscribed to the within instrument and acknowledged to me that, he/sh-&� executed the same in his/fir authorized capacity(i-") , and that by his/ite-r-� r signature (`s) on the instrument the person ('!q) or the entity upon behalf of which the person(,) acted, executed the instrument . WITNESS my hand and official seal . Signature (seal) P. HUTCHINS _COMM. #1475547 m NOTARY PUBLIC-CALIFORNIA SAN LUIS OBISPO COUNTY My Comm.Expires MAR.9,2006 CONTRACT# NO FEE DOCUMENT Government Code- 6103 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF ATASCADERO 6905 EI Camino Real, Suite 6 Atascadero, CA 93422 Attn: City Clerk (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) CITY OF ATASCADERO SUBDIVISION IMPROVEMENT AGREEMENT DATE OF AGREEMENT: _ U s NAME OF SUBDIVIDER: Mr. Kelly V. Gearhart SUBDIVISION: Tract 2491 ESTIMATED TOTAL COST OF IMPROVEMENTS: $295,336 This Agreement made and entered into by and between the City of Atascadero, a municipal corporation of the State of California (hereinafter referred to as "City") and Atascadero Ventures. LLC (hereinafter referred to as "Subdivider"). RECITALS A. Subdivider has presented to the City Council of the City of Atascadero Tract 2491 for approval but not all of the improvements required or conditions imposed by Title 11, Chapter 8 Articles 3 and 4 and Chapter 10 of the Atascadero Municipal Code have been completed or performed. B. Subdivider desires to record Tract 2491 after the same has been approved by the City Council of the City of Atascadero. C. The Subdivision Laws establish as a condition precedent to the approval of a parcel map that Subdivider must have either completed, in compliance with City Standards, all of the improvements and land development work required by Trac 2491 or have entered into a secured agreement with City to complete the improvements and land development within a period of time specified by City. D. In consideration of approval of Tract 2491 by the City Council, Subdivider desires to enter into this Agreement, whereby Subdivider promises to install and complete, at the Subdivider's own expense, all of the public improvement work required by City in connection with Subdivision. E. Improvement Plans for the construction, installation and completion of the improvements have been prepared by Subdivider and approved by the City Engineer:" The Improvement Plans for Tract 2491 are on file in the Office of the City Engineer and are incorporated into this Agreement by this reference. All references in this Agreement to the Improvement Plans shall include reference to any specifications for the improvements as approved by the City Engineer. F. An estimate of the cost for construction of the public improvements according to the Improvement Plans has been made and has been approved by the City Engineer. The Estimated Total Cost of Improvements is stated on Page 1 of this Agreement. The basis for the estimate is on file with the City of Atascadero. G. Subdivider recognizes that by approval of Tract 2491, City has conferred substantial rights upon Subdivider, including the right to sell, lease, or finance lots within the subdivision, and has taken the final act necessary to construct the public improvements within the subdivision. As a result, City will be damaged to the extent of the cost of installation of the improvements by Subdivider's failure to perform its obligations under this Agreement, including, but not limited to, Subdivider's obligation to commence construction of the improvements by the time established in this Agreement. City shall be entitled to all remedies available to it pursuant to this Agreement and law in event of a default by Subdivider. It is specifically recognized that the determination of whether a reversion to acreage or rescission of Tract 2491 constitutes an adequate remedy for default by the Subdivider shall be within the sole discretion of City. NOW, THEREFORE, pursuant to the provisions contained in the Atascadero Municipal Code, Title 11, Chapter 10, sections 11-10.010 through 11-10.022, and in consideration of the approval by the City Council and the filing of Tract 2491, the parties hereto do promise and agree one with the other as follows: 1. Subdivider is to make and complete all of the improvements for Tract 2491 as shown on the Improvement Plans thereof and as required and set forth in Title 11, Chapter 8, Articles 3 and 4, and Chapter 10, of the Atascadero Municipa Code, or as amended. 2. Subdivider is to improve San Rafael Road from Los Osos Road to the project boundary to City Standard No. 401, Rural Local. 3. It is further understood and agreed by and between the parties hereto that the improvements as required by the conditions of approval for Tract 2491 shall be completed within one year from the Date of Agreement. These improvements include, but are not limited to the following: those shown on the plans accepted by the City Engineer and on included in the Engineer's Estimate on file with the City of Atascadero. 4. The Subdivider promises and agrees to complete all improvement work referred to hereinabove to the satisfaction of the City Engineer. 5. If said improvement work is not completed within one year of the Date of Agreement, the Subdivider agrees that the City may elect to complete the same. 6. In the event the City elects to complete said work or improvement, the Subdivider agrees that the City may exercise it's option to declare the bond or deposit, as hereinaftdr described, forfeited and utilize the proceeds, including any interest, to complete said improvements or that the City may complete said improvements and recover full cost and expense thereof including reasonable attorney fees from the Subdivider and his/her surety. 7. The Subdivider shall, prior to submitting the map for filing, file an improvement security with the City, in a form acceptable to the City Attorney, in the amount of the Estimated Total Cost of Improvements, which is the amount deemed sufficient by the City Engineer. In no case shall the improvement security be less than 100% of the Estimated Total Cost of Improvements. Further, the Subdivider shall file a security for labor and materials in the amount of the Estimated Total Cost of Improvements. The security for labor and materials shall be no less than 50% of the Estimated Total Cost of Improvements. Periodic progress payments may be authorized to the Subdivider as the improvements are completed if adequate security remains as determined by the City Engineer, however, no such progress payments shall be made for more than 90% of the value of any work. Progress payments shall only be paid on work that is completed to the satisfaction of the City Engineer. 8. The Subdivider hereby agrees that after the completion and acceptance of the improvements as specified in paragraphs 2 and 3, 10% of the improvement security shall be retained for the guarantee and warranty of the work for a period of one year. 9. It is understood and agreed by and between the parties hereto that this Agreement shall bind the heirs, executors, administrators, successors, and assigns of the respective parties to this agreement. 10. In the event legal action is taken to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover costs to enforce the Agreement, including reasonable attorney fees. 11. The Subdivider shall, defend, indemnify and save harmless the City, its officers, agents and employees from any and all claims, demands, damages, costs, expenses, or liability occasioned by the performance and attempted performance of the provisions hereof, or in any way arising out of this Agreement, including, but not limited to, inverse condemnation, equitable relief, or any wrongful act or any negligent act or omission to act on the part of the Property Owner or of agents, employees, or independent contractors directly responsible to the Property Owner, providing further that the foregoing shall apply to any wrongful acts, or any actively or passively negligent acts or omissions to act, committed jointly or concurrently by the Applicant, the Property Owner's agents, employees, or independent contractors. Nothing contained in the foregoing indemnity provisions shall be construed to require the Property Owner to indemnify the City against any responsibility or liability in contravention of Section 2782 of the Civil Code. 12. Upon acceptance of the work on behalf of City and recordation of the Notice of Completion, ownership of the improvements constructed pursuant to this Agreement shall vest in City. 13. Sale or other disposition of this property will not relieve Subdivider form the obligatioA set forth herein. Subdivider agrees to notify City in writing at least 30 days in advance of any actual or pending sale or other disposition of the property. If Subdivider sells the property or any portion of the property within the Subdivision to any other person, Subdivider may request a novation of this Agreement and a substitution of security. Upon approval of the novation and substitution of securities, Subdivider may request a release or reduction of the securities required by this Agreement. Nothing in the novation shall relieve the Subdivider of the obligations under Paragraph 2 for the work or improvement done by Subdivider. 14. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this section. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States Mail. Notices shall be addressed as follows unless a written change of address is filed with City: City: City of Atascadero 6500 Palma Avenue Atascadero, CA 93422 Subdivider: Kelly V. Gearhart 6205 Alcantara Ave. Atascadero, CA 93422 Surety: Hurst Financial Corporation 7035 Morro Road Atascadero, CA 93422 14. The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect unless amended or modified by the mutual consent of the parties. 15. The Recitals to this Agreement are hereby incorporated into the terms of this Agreement. 16. This Agreement constitutes the entire Agreement of the parties with respect to the subject matter. All modifications, amendments, or waivers of the terms of this Agreement must be in writing and signed by the appropriate representatives of the parties. In the case of City, the appropriate party shall be the City Manager. IN WITNESS WHEREOF the Property Owner has hereunto set his/her hand and the City has caused these presents to be signed by its duly sworn and authorized officers the day and yearlirst hereinabove written. CITY OF ATASCADERO SUBDIVIDER: By: - (notarize signature) Wade G. McKinney City Manager Attest: Marcia M. Tor9 erson City Clerk Ap ed as to c tent: S B. Kahn, P.E. City Engineer Approv /d as rm: City Atto y State of Cal4fornia County of San Luis Obispo on before me, F H(-L- ciAto-S . N,,a!-4g-y Rut]'Lio personally appeared 'KELiy V rEAk uN9:T personally known to me (or proved to me on the basis of satisfactory evidence) to be the person N) whose name (') is/awe subscribed to the within instrument and acknowledged to me that, he/s'��i--y executed the same in his/k-e�e�r authorized capacity(ies) , and that by his/fter � - ' r signature (`s) on the instrument the person (`q) or the entity upon behalf of which the person (N,) acted, executed the instrument . WITNESS my hand and official seal . SignatureL �"� �'Yl� (seal) P.HUTCHINS COMM. #1475547 NOTARY PUBLIC-CALIFORNIA Q m SAN LUIS OBISPO COUNTY My Comm.Expires MAR.9,2008