CC Resolution No. 06-199
RESOLUTION NO. 06-199
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AN IMPROVEMENT AGREEMENT
WITH SHP CUPERTINO, LLC, 20955 STEVENS CREEK BOULEVARD #A
(WHOLE FOODS MARKET), APN 316-31-018 AND 316-31-020
WHEREAS, there has been presented to the City Council a proposed improvement
agreement between the City of Cupertino and developer, SHP Cupertino, LLC, 20955 Stevens
Creek Boulevard #A (Whole Foods Market), and said agreement having been approved by the
City Attorney, and developers having paid the fees as outlined in the attached Exhibit A;
NOW, THEREFORE, BE IT RESOL VED THAT the Mayor and the City Clerk are
hereby authorized to sign the aforementioned agreement on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 6th day of December 2006, by the following vote:
Vote
Members of the Citv Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Wang, Kwok, Lowenthal, Mahoney, Sandoval
None
None
None
ATTEST:
APPROVED:
rt'nlf(~7l ,/" /7'L<.tl
City Clerk v
Resolution No. 06-199
Page 2
EXHIBIT "A"
SCHEDULE OF BOND, FEES, AND DEPOSITS
DEVELOPMENT: SHP Cupertino, LLC
LOCA nON: 20955 Stevens Creek Boulevard #A (Whole Foods Market)
APN 316-31-018 and 316-31-020
A. Faithful Performance Bond $ 372,556.00
B. Labor and Material Bond $ 372,556.00
C. Checking and Inspection Fee $ 21,353.36.64
D. Development Maintenance Deposit $ 2,000.00
E. Storm Drainage Fee: Basin 2 $ 8,954.00
F. Street Light - One-Year Power Cost N/A
G. Map Checking Fee N/A
H. Park Fee: Zone II N/A
1. Reimbursement Fee N/A
AGREEMENT
20955 Stevens Creek Boulevard #A
Cupertino, CA 95014
326-31-018,326-31-020
This AGREEMENT made and entered into this _ day of , 2006, by and
between the CITY OF CUPERTINO, a municipal corporation of the State of California,
hereinafter designated as CITY, and SHP Cupertino, LLC, a California Limited Liability
Company, hereinafter designated as DEVELOPER.
WITNESSETH
WHEREAS, the DEVELOPER has made application to the CITY to secure a building
permit to construct a commercial development hereinafter referred to as "Project".
WHEREAS, CITY hereby approves the improvement plans and specifications prepared
for the Project by Kier and Wright Civil Engineers and Surveyors, Inc, a true copy of which
improvement plans and specifications are on file in the office of the City Engineer of Cupertino;
and
WHEREAS, the same are incorporated herein by reference, the same as though set out in
full;
NOW, THEREFORE, said improvement plans and specifications shall be hereinafter
called the "Plans", and the work to be done under the Plans shall be called the "Work".
WHEREAS, pursuant to the provisions of this AGREEMENT, the CITY hereby established
the amounts of Bonds, Fees, and Deposits as set forth in the following schedule:
SCHEDULE OF BONDS, FEES, AND DEPOSITS
Street Improvement Category:
PART A. Faithful Performance Bond:
110-2211
$ 372,556.00
PARTB. Labor and Material Bond:
110-2211
PART C. Checking and Inspection Fee:
110-4538
PART D. Development Maintenance Deposit:
110-2211
PARTE. Storm Drainage Fee: Basin 2
Account #: 215-4072
PART F. Street Light - One-Year Power Cost:
110-4537
PARTcG. Map Checking Fee:
110-4539
PART H. Park Fee: Zone II
Account #: 280-4082
PART I. Reimbursement Fee
$ 372,556.00
$ 21,353.36
$ 2,000.00
$ 8,954.00
N/A
N/A
N/A
N/A
Page 2 of 10
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the
parties hereto as follows, TO WIT:
1. DEDICATION
B. The DEVELOPER offers to dedicate the real property shown on Exhibit "A",
which is attached hereto and made a part hereofby reference. Said dedicated property
shall be free and clear of an liens or encumbrances except those, which the CITY sha1l
waive in writing. The DEVELOPER agrees not to revoke said offer of dedication, and
to keep said offer open until the CITY accepts offer by resolution.
C. Upon execution of this AGREEMENT, the DEVELOPER agrees to deliver a
properly executed grant deed to the CITY of the real property described in Exhibit
"A", and such other executed conveyances, or instruments necessary to convey clear
title as herein required. The DEVELOPER shall provide, at the DEVELOPER'S sole
cost and expense, to the City:
(1) A preliminary title report issued by a title insurance company relating to
the property offered for dedication.
(2) A standard policy of title insurance issued by a title insurance company
and insuring the CITY in the sum of N/A, and which shall show said
property free and clear of all liens or encumbrances except those as the
CITY shan expressly waive in writing; said policy shall be furnished at
the time of acceptance of dedication and recordation of deed.
D. Upon the condition precedent that the DEVELOPER shan perform each and
every covenant and condition of this AGREEMENT, the CITY agrees to accept said
real property offered for dedication.
2. INSTALLATION OF WORK
It is further agreed that:
A. The DEVELOPER shan install and complete the Work within one (1) year from
the date of execution of this AGREEMENT, or such longer period as may be
specifically authorized in writing by the City Engineer. In the event the DEVELOPER
fails or refuses to complete the Work within the specified period of time, the CITY, at
its sole option, shall be authorized to complete the Work in whatever manner the CITY
shall decide. In the event the CITY completes the Work, the CITY may recover any
and all costs incurred thereby from the DEVELOPER or the DEVELOPER'S surety
or both. No final inspection shall be granted or street improvements shan not be
accepted unless all the requirements for safety purposes are insta1led such as
sidewalks, handicap ramps, street lights, etc.
Page 3 ofl 0
B. The DEVELOPER shall install and complete the Work in a good and
workmanlike manner in accordance with the plans as approved by the City Engineer
of Cupertino. The Work shall be done in accordance with existing ordinances and
resolutions of the CITY and in accordance with all plans, specifications, standards,
sizes, lines, and grades approved by the City Engineer. The Work shall be done in
accordance with all State and County Statutes applicable hereto. The decision of the
City Engineer shall be final as to whether any material or workmanship meets the
standards, specifications, plans, size lines and grades as set forth.
C. It is further agreed that the Work shall be done in accordance with the most
current Standard Specifications of the Department of Public Works, California
Department of Transportation, State of California, and in accordance with the
specifications ofthe Cupertino Sanitary District where applicable.
Wherever the words "State" or "California Division of Highways" are mentioned in
the State Specifications, it shall be considered as referring to the CITY of Cupertino;
also wherever the "Director" or "Director of Public Works" is mentioned, it shall be
considered as referring to the City Engineer.
In case of conflict between the State Specifications and the speeifications of the CITY,
and/or the Cupertino Sanitary District, the specifications of the CITY and/or the
Cupertino Sanitary District shall take precedence over and be used in lieu of such
conflicting portions.
3. FURTHER IMPROVEMENTS
It is further agreed that the CITY reserves the right, at its sole discretion, to install
further improvements it deems necessary to mitigate traffic impacts resulting from the
Project. The DEVELOPER agrees to contribute up to $250,000 for said
improvements, as directed by City Council at its meeting of January 17, 2006. The
DEVELOPER shall maintain a deposit in this amount with the CITY in the form of a
faithful performance bond, as described in BONDS AND OTHER SECURITY.
4. QUITCLAIM DEED
It is further agreed that the DEVELOPER, when requested by the CITY, shan
quitclaim all his rights and interests in, and shall grant to CITY authorization to
extract water from the underground strata lying beneath said project DEVELOPER
agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when
presented to them for signature.
5. BONDS AND OTHER SECURITY
A. Upon the execution of this AGREEMENT, the DEVELOPER shall file with the
CITY a faithful performance bond to assure his full and faithful performance of this
AGREEMENT. The penal sum of said faithful performance bond is as set forth in
Page 4 of 10
Part A of the SCHEDULE OF BONDS, FEES AND DEPOSITS. In the event that
improvements are to be made under this AGREEMENT, the DEVELOPER shall, in
addition to said faithful performance, file with the CITY, a labor and materials bond
in a penal sum as set forth in Part B of the SCHEDULE OF BONDS, FEES AND
DEPOSITS. Said bonds shall be executed by a surety company authorized to transact
a surety business in the State of California and have been approved by the City
Attorney as to form and by the City Engineer as to sufficiency. In the event that the
DEVELOPER shall fail faithfully to perform the covenants and conditions of this
AGREEMENT, or to make any payment, or any dedication of land, or any
improvements herein required, the CITY shan call on the surety to perform this
AGREEMENT or otherwise indemnify the CITY for the DEVELOPER'S failure to do
so.
B. . In lieu of a surety bond, the DEVELOPER may elect to secure this
AGREEMENT by depositing with the CITY:
1. Cash; or,
2. A cashier's check, or a certified check payable to the order of the City of
Cupertino; or
3. A certificate of deposit, or instrument of credit meeting the requirements
of Government Code Section 66499 (b) or (c).
C. The amount of said cash, checks, certificate of deposit, or instrument of credit
shall be as designated by the City Engineer, and shall be the equivalent to that which
would have been required had the DEVELOPER furnished the CITY with a faithful
performance surety bond. In the event that the DEVELOPER shall fail faithfully to
perform the covenants and conditions of this AGREEMENT, or to make any payment,
or any dedication ofland, or any improvements herein required, the CITY may apply
the proceeds of said security thereto. In addition, the CITY may apply up to $250,000
from the proceeds from said faithful performance bond to make whatever further
improvements the CITY determines is necessary for the purpose of mitigating traffic
impacts resulting from the Project, as described in FURTHER IMPROVEMENTS.
D. No release of surety bond, cash deposit, check or certificate of deposit shall be
made except upon approval of the City Council.
1. Schedule for bond and insurance release for paper bonds are as follows:
A. Release of $122,556.00 of faithful performance bond upon
acceptance by City Council.
B. Release of remainder of faithful performance bond at one year
from acceptance after all FURTHER IMPROVEMENTS have been
identified, deficiencies have been corrected and in the absence of any
claim against such bond. In the event that further improvements are
required by the CITY, the DEVELOPER will enter into a new
Page 5 ofl 0
AGREEMENT, in which further fees, bond requirements and bond
release schedules will be specified.
C. Release of the entire labor and material bond at six months from
acceptance after all deficiencies have been corrected and in the absence
of any claim against such bond.
D. Liability insurance, provided by the DEVELOPER to hold the
CITY harmless in the event of liability arising from the project, to be
retired at the end of one year if all deficiencies have been corrected and
in the absence of any claim against such insurance.
6. CHECKING AND INSPECTION FEE
It is further agreed that the DEVELOPER shall pay any and all necessary direct
expenses for inspection, checking, etc. incurred by CITY in connection with said
Project, and that DEVELOPER shall have deposited with CITY, prior to execution of
this AGREEMENT, the amount as set forth herein at Page 2 (Part C). Should
construction cost vary materially from the estimate from which said sum is calculated,
the City Engineer shall notify DEVELOPER of any additional sum due and owing as a
result thereof.
7. MAP CHECKING FEE
It is further agreed that the DEVELOPER shall deposit with CITY, prior to execution
of this AGREEMENT, for office checking of final map and field checking of street
monuments, in compliance with Section 4:1 of Ordinance No. 47 (Revised 12/04/61) of
CITY, the amount as set forth herein at Page 2 (Part H).
8. DEVELOPMENT MAINTENANCE DEPOSIT
It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of
this AGREEMENT, the amount set forth herein at Page 2 (Part D) as a development
maintenance deposit. The deposit may be used at the discretion of the City to correct
deficiencies and conditions caused by the DEVELOPER or his contractor that may
arise during or after the construction of the development. The deposit shall also be
used for copies of approved plans for the CITY's files. If the cost exceeds the amount
deposited the DEVELOPER is required to pay actual overage prior to return of
original plans. Any unexpended amount will be returned to the DEVELOPER at the
time all bonds are released in accordance with paragraph 4 of this agreement.
9. STORM DRAINAGE FEE
It is further agreed that the DEVELOPER shall deposit with the CITY, prior to
execution of this AGREEMENT, a storm drainage charge in connection with the said
Page 6 of 10
Project in accordance with the requirements established in Resolution 4422, March 21,
1977, in the amount as set forth herein at Page 2 (Part E).
Page 7 ofl 0
10. STREET LIGHT - ONE YEAR POWER COST
It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of
this AGREEMENT, the amount as set forth herein at Page 2 (Part G), which amount
represents the power cost for street lights for one year.
11. THE INSTALLATION OF STREET TREES
It is further agreed that the DEVELOPER shall, at such time as deemed appropriate
by the City Engineer, plant street trees in conformance with the standards of the City
of Cupertino. Variety of tree shall be selected from the CITY approved list.
12. PARK FEES
It is further agreed that the DEVELOPER shall pay such fees and/or dedicate such
land to the CITY, prior to execution of this AGREEMENT, as is required within
Section 18-1.602, Park Land Dedication, Cupertino Municipal Code, and which is
further stipulated under Part H, Page 2 herein. Fees are also in accordance with action
adopted by the City Council on March 19, 1991 and Chapter 14.05 or Section 18-1.602
of the Cupertino Municipal Code
13. REIMBUSEMENT FEE
It is further agreed that the DEVELOPER shall deposit with the CITY, prior to
execution of this AGREEMENT, a reimbursement fee for the street improvements that
have been installed by the City, or by another property owner. Developer shall pay the
City for the cost of the land at the cost to the City, or another property owner, and shall
pay a street improvement reimbursement charge for the improvements which the City
or another property owner, installed on the street abutting or included in the benefited
property, in an amount equal to the total improvement costs for each particular
benefited property as set forth in a reimbursement agreement, in the amount as set
forth herein at Page 2 (Part I).. Payments for both land and improvements shall include
simple interest in the amount of seven percent per year, to be calculated in the following
manner:
1. Land Cost. Interest to accrue form the date the street improvements are accepted by
the City to the date the street improvements reimbursement charge is paid, or if the
land is purchased by the City for a City project, from the date of purchase to the
date the charge is paid;
2. Improvement Cost. Interest to accrue from the date the street improvements are
accepted by the City to the date the street improvement reimbursement charge is
paid, or if installed by the City, from the date installation commenced to the date the
charge is paid.
Page 8 of 10
3. Provided, however, that the interest shall be waived if the adjoining property owner
dedicates or has dedicated to the City land necessary for the street improvements, or
where no such dedication is necessary.
13. MAINTENANCE OF WORK
It is further agreed that the DEVELOPER shaU maintain the Work until all
deficiencies in the Work are corrected to conform to the Plans and the City Standards
and Specifications for the Work. The DEVELOPER shall, upon written notice thereof,
immediately repair or replace, without cost or obligation to the City of Cupertino, and
to the entire satisfaction of said CITY, aU defects and imperfections arising out of or
due to faulty workmanship and/or materials appearing in said Work.
14. SANITARY DISTRICT
It is further agreed that the DEVELOPER shall file with the CITY, upon execution of
this AGREEMENT, a letter from the Cupertino Sanitary District stating that the
DEVELOPER has submitted plans for review by the District and that sanitary sewers
are available to serve al1lots within said Project.
15. GOVERNMENT COSTS
It is further agreed that the DEVELOPER shall file with the CITY, upon execution of
this AGREEMENT, substantial evidence that all provisions of Section 66493, Article 8,
Chapter 4 of the Government Code, pertaining to special assessments or bonds, have
been complied with.
16. PACIFIC GAS AND ELECTRIC/PACIFIC BELL
It is further agreed that the DEVELOPER shall pay to Pacific Gas and Electric
Company and/or to Pacific Bell Company, any and all fees required for installation of
overhead and/or underground wiring circuits to aU electroliers within said property
and any and all fees required for undergrounding as provided in Ordinance No. 331 of
CITY when the DEVELOPER is notified by either the City Engineer or Pacific Gas
and Electric Company and/or Pacific Bel1 Company that said fees are due and payable.
17. EASEMENTS AND RIGHT-OF-WAY
It is further agreed that any easement and right-of-way necessary for completion of the
Project shall be acquired by the DEVELOPER at his own cost and expense.
It is provided, however, that in the event eminent domain proceedings are required,
the CITY for the purpose of securing said easement and right-of-way, that the
DEVELOPER shaU deposit with CITY, a sum covering the reasonable market value of
the land proposed to be taken and, to be included in said sum, shall be a reasonable
Page 9 of 10
allowance for severance damages, if any. It is further provided that in addition
thereto, such sums as may be required for legal fees and costs, engineering, and other
incidental costs in such reasonable amounts as the CITY may require shall be
deposited with the City of Cupertino.
Page 10 of 10
18. HOLD HARMLESS
It is further agreed that, commencing with the performance of the Work by the
DEVELOPER or his contractor and continuing until the completion of the
maintenance of the Work, the DEVELOPER shall indemnify, hold harmless and
defend the CITY from and against any or all loss, cost, expense, damage or liability, or
claim thereof, occasioned by or in any way whatsoever arising out of the performance
or nonperformance of the Work or the negligence or willful misconduct of the
DEVELOPER or the DEVELOPER'S agents, employees and independent contractors,
except to the extent any of the foregoing is eaused by the negligence or willful
misconduct of the CITY or the CITY'S agents, employees and independent
contractors.
19. INSURANCE
It is further agreed that: The DEVELOPER shall take out, or shall require any
contractor engaged to perform the Work to take out, and maintain at all times during
the performance and maintenance of the Work called for or required to be done
hereunder, a policy of insurance naming the CITY and members of the City Council of
the City of Cupertino individually and collectively, and the officers, agents and
employees of the CITY individually and collectively, as insured. Said separate policy
shall provide bodily injury and property damage coverage to the foregoing named
CITY and individuals covering all the Work performed by, for, or on behalf of said
DEVELOPER. Both bodily injury and property damage insurance must be on an
occurrence basis; and said policy or policies shall provide that the coverage afforded
thereby shall be primary coverage to the full limit ofliability stated in the declarations,
and if the CITY, its members of the City Council individually and collectively, and the
officers, agents and employees of the CITY, individually and collectively, have other
insurance against the loss covered by said policy or policies, that other insurance shall
not be called upon to cover a loss under said additional policy.
The insurance carrier shall provide proof of their ratings. All ratings should be Best's
Guide Rating of A, Class VII or better or that is acceptable to the CITY.
A. Each of said policies of insurance shall provide coverage in the following
minimum amounts: For general liability for bodily injury, personal injury and
property damage $1,000,000 each occurrence, with an aggregate limit of not less
than $2,000,000.
B. The DEVELOPER shall file with the City Engineer at or prior to the time of
execution of this AGREEMENT by the DEVELOPER such evidence of said
foregoing policy or policies of insurance as shall be satisfactory to said City
Engineer. Each such policy or policies shall bear an endorsement precluding the
cancellation or reduction in coverage without giving the City Engineer at least
ten (10) days advance notice thereof. The CITY shall be shown as additionally
Page 11 aflO
insured on a separate "Additional Insured Owners, Lessees or Contractors"
(Form A) or (Form B) Endorsement provided along with the evidence of said
foregoing policy of policies of Insurance.
C. In the event that the Project covered herein should be mutual1y situated in or
affect the area of jurisdiction of a separate municipality or political subdivision of
the State of California, the policies of in sura nee required herein and above shal1
co-name such municipality or political subdivision and the provision set forth
herein and above for the protection of the CITY shal1 equal1y apply to
municipality and political subdivision.
D. DEVELOPER to use City supplied forms for proof of insurance and
endorsements to policy as specified above.
20. MAPS AND/OR IMPROVEMENT PLANS
It is further agreed that the CITY shal1 obtain the fol1owing map and/or plans at the
DEVELOPER'S expense:
A. A mylar blackline and five (5) prints offul1y executed parcel map.
B. A mylar blackline and twelve (12) prints offul1y executed improvement
plans.
C. A scan in raster format of al1 executed improvement plans and map.
D. Two (2) Y2 size prints offul1y executed plans and map
The DEVELOPER agrees to pay the CITY from the development maintenance deposit
the cost for al1 prints of plans and maps. If costs exceed the amount deposited the
DEVELOPER is required to pay actual overage prior to return of original plans.
Page 12 of 10
21. SUCCESSORS
This AGREEMENT shall bind the heirs, administrators, executors, successor, assignee
and transferees of the DEVELOPERS. The assignment of this AGREEMENT shall
not be made without approval by the City Council of the City of Cupertino.
IN WITNESS WHEREOF, CITY has caused its name to be hereunto affixed by its
Mayor and City Clerk, thereunto duly authorized by resolution of the City Council
and said DEVELOPER has hereunto caused their name to be affixed the day and year
first above written.
CITY OF CUPERTINO:
Approved as to form:
Mayor
City Attorney
City Clerk
~~~
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Notary Acknowledgement Required
Exhibit A Attached
Page 13 of 10
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF ~ M A1""E:Q )
On lJovtrnl3e/3,2001o before me, P-m'oeY l<-esniQ0, ~-h~",bll u
DATE NAME, TITLE OF OFFICER- E.G.., "JANE DOE, NOTARY PUBLIC
-Petu Pevv-
personally appeared,
personally known to me (or 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.
WITNESS my hand and official seal.
r~ (2e~ClG
NOTARY PUBLIC SIGNATURE
(SEAL)
8....~ AMBER RESNICK
" COMM. .1589954 ~.
NOTARY PUBLIC . CAI.IPORNIA
. . SAN MATEO COUNTY
Comm. Exp. JUNE 25, 2009
OPTIONAL INFORMATION
THIS OPTIONAL INFORMATION SECTION IS NOT REQUIRED BY LAW BUT MAY BE BENEFICIAL TO PERSONS RELYING ON THIS NOTARIZED DOCUMENT.
TITLE OR TYPE OF DOCUMENT
DATE OF DOCUMENT
NUMBER OF PAGES
SIGNERS(S) OTHER THAN NAMED ABOVE
SIGNER'S NAME
SIGNER'S NAME
RIGHT THUMBPRINT
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