08-048, Bindiganavale & NatarajRECEIVBD
PUBLIC WORKS DEPAIrIMBN'T
MAY 0 $ 2008
CONSTRUCTION AND LIABILITY RELEASE AGREEMENT
BETWEEN
THE CITY OF CUPERTINO
AND
Mr. BINDIGANAVALE & Mrs. NAGAMANI NATARAJ
This Agreement (herein "Agreement") is made and entered into thislJr' day of ~_, 2008,
(herein the "Effective Date") by and between the City of Cupertino, a California municipal cooperation,
(herein "CITY") and Bindiganavale & Nagamani Nataraj (herein "OWNER").
RECITALS
WHEREAS:
A. The OWNER finds that it is in the OWNER's interest to allow the CITY to install a privacy trellis
on the west and south side portions of OWNER's existing rear yard concrete block "slump stone"
wall as a part of the Mary Avenue Bicycle Footbridge Project; and
B. The CITY has agreed to perform this work as described herein.
In consideration of the above referenced recitals and the following mutual covenants, agreements and
obligations of the parties, CITY and OWNER agree as follows:
AGREEMENT PROVISIONS
1. PROJECT DESCRIPTION:
The work to be performed under this Agreement will consist of installing a wooden privacy trellis
supported by steel anchors on top of a portion of the OWNER's existing rear yard concrete block
"slump stone" wall (herein the "PROJECT"). The work to be performed is more fully described
on Mary Avenue Bicycle Footbridge plan sheet no.73 of 121, entitled "Privacy Trellis" and dated
September 19, 2007, attached as Exhibit A.
2. CITY'S OBLIGATIONS:
CITY agrees as follows:
A. To act as the lead agency to administer the construction of the PROJECT.
B. To pay the entire cost of the trellis installation and the entire cost of any repair or cleaning
that is necessary due to the construction.
3. OWNER'S OBLIGATION:
OWNER agrees as follows:
A. To allow full access to OWNER'S rear yard during normal work hours, Monday through
Friday, as necessary for CITY's contractor to install the trellis, and;
B. To allow CITY'S contractor to trim existing shrubbery, plants and trees, as may be necessary
to safely and appropriately install the steel anchors and the wooden trellis, and ;
C. OWNER acknowledges that the structural system of the existing wall is not fully known by
OWNER and that documents that describe the structural condirions do not exist, and
therefore, OWNER agrees to accept any and all responsibility for the structural integrity of
the OWNER's existing concrete block "slump stone" wall following the installation of the
new steel anchors and the privacy trellis.
Page 1 of 4
D. Upon acceptance of the work by CITY, OWNER agrees to release any and all claims against
the CITY made as a result of the construction and installation of the trellis and the steel
anchors and will indemnify, defend, and hold the CITY harmless from any and all claims
from third parties regarding the trellis. This clause is binding on the Successor and herby
survives the expiration of the Agreement.
4. TERM OF AGREEMENT:
A. Unless otherwise modified by a written amendment to this Agreement, the term of this
Agreement between CITY and OWNER shall be fifty (50) years.
B. CITY shall cause the contractor to provide a labor and material warranty period for the
installation of the steel anchors and the wooden trellis of one (1) year from the trellis
acceptance date by the City.
5. OWNERSHIP AND MAINTENANCE:
A. Upon completion of all work under this Agreement, ownership and title to all materials,
equipment and appurtenances installed as a part of the PROJECT will automarically be vested
in OWNER, and no further agreement will be necessary to transfer ownership.
C. Upon completion of all work under this Agreement, OWNER shall release CITY of all
liability.
B. This Agreement does not change any authority or responsibility between CITY and OWNER
with regard to maintenance, or further repair responsibility.
6. CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR:
The contractor(s) hired by the CUPERTINO to perform the work included in the PROJECT shall
not be an agent or employee of either Party and will perform such work as independent contractor.
All persons employed by or contracted with such contractor(s) to furnish labor and/or materials in
connection with the work in the PROJECT shall not be employees of either Party in any respect.
7. TERMINATION:
CITY has awarded the construction contract for the PROJECT, the Agreement can be terminated
only upon the mutual written consent and terms acceptable to both parties.
8. NO THIRD PARTY BENEFICIARY:
This Agreement shall not be construed or deemed to be an agreement for the benefit of any third
party or parties and no third party or parties shall have any claim or right of action hereunder for
any cause whatsoever.
9. AMENDMENTS:
No altemation or violarion of the terms of this Agreement shall be valid unless made in writing
and signed by the parties.
10. NOTICES:
Notices are to be sent as follows:
To OWNER . Bindiganavale & Nagamani Nataraj
10599 Nathanson Ave.
Page 2 of 4
Cupertino, CA 95014
To CITY . Terry W. Greene, AIA
City Architect
City of Cupertino
_ 10300 Torre Avenue
C~pertino, CA 95014
11. SEVERABILITY CLAUSE:
In case any one or more of the provisions contained herein shall, for any reason, held be invalid,
illegal, or unenforceable in any respect, it shall not affect the validity of the other provisions which
shall remain in full force and effect.
12. HOLD HARMLESS / INDEMNIMCATION:
Neither of the respective Parties, their respective City Council, employees, officers, agents and
assigns shall be responsible for any damage or liability occurring by reason of anything done or
omitted to be done by the other party in connection with the PROJECT.
It is understood and agreed that pursuant to California Government Code Section 895.4, the
respecrive Parties shall fully indemnify and hold the other harmless from any liability imposed for
injury (as defined in Government Code Secrion 810.8) by reason of anything done or omitted to be
done by CITY or OWNER in connection with any work, authority or jurisdiction delegated to the
respective Party under this Agreement. This hold harmless and indemnification provision shall
apply to any activities, error or omission of the respective Party and/or the Party's officers,
employees, agents, consultants or contractor or any person or entity acting or omitting to act for or
on behalf of said City or such person or entiries as are specifically authorized and empowered by
the respective Party to act for the Party.
13. CAPTIONS:
The captions of the various sections, paragraphs and subparagraphs of this Agreement are for
convenience only and shall not be considered nor referred to for resolving quesrions of
interpretation of this Agreement.
14. INSURANCE REOUIREMENTS:
It is mutually understood on the PROJECT that the Contractor carries commercial general liability
or funded self-insurance program in amounts of not less than Two Million Dollars ($2,000,000);
automobile liability insurance and agreed that during the term of the construcrion activities on the
PROJECT, CITY will require the contractor(s) which performs any work policy with policy limits
in an amount not less that One Million Dollars ($1,000,000); and, a Workers' Compensation
Insurance policy with policy limits in an amount not less than One Million Dollars ($ 1,000,000).
CUPERTINO shall require that CITY, their officers, employees, and agents shall be named as
additional insureds on such policy.
15. STATUTES AND LAW GOVERNING CONTRACT:
This Agreement shall be governed and construed in accordance with the statues and laws of the
State of California.
16. WAIVER:
The parties' waiver of any term, condition ar covenant, or breach of any term, condition or
covenant shall not be construed as a waiver of any other term, condirion or covenant or breach of
any other term, condition or covenant.
Page 3 of 4
17. ENTIRE AGREEMENT:
This Agreement contains the entire Agreement between CUPERTINO and OWNER relating to the
PROJECT. Any prior agreements, promises negoriations, or representations not expressly set forth
in this Agreement are of no force or effect.
18. OTHER AGREEMENTS:
This Agreement shall not prevent either Party from entering into similar agreements with others.
The Parties acknowledge and accept the terms and condirions of this Agreement as evidences by
the following signatures of their duly authorized representatives. It is intent of the Parties that this
Agreement shall become operative on the effective date.
19 SUCCESSORS
This AGREEMENT shall bind the heirs, administrators, executors, successor, assignee and
transferees of the OWNER. Current OWNER and Successors shall disclose this Agreement to all
proposed buyers of OWNER'S property.
OWNER
' nature: ~ Signahue:
^ /1
,~,~~~ y ~~',~tti t,~ ~V c Date: 51 ~ ,.c~ ~ ~ , ~,~,,, 1~.~'~~pate: ~~ D ~/ L~ $
Bindiganavale Nataraj Naga ni Natara~
10599 Nathanson Ave. 10599 Nathanson Ave.
Cupertino, CA 95014 Cupertino, CA 95014
Notary Acknowledgment Required
APPROVED AS TO FORM:
~IARLES KILIAN
City Attorney
ATTEST:
CITY OF CUPERTINO, CALIFORNIA
~ ~ 5-~3.0~
David W. Knapp
City Manager
10300 Torre Avenue
Cupertino, CA 95014
Telephone: (408) 777-3200
KIM SMITH
City Clerk - Cupertino
Page 4 of 4
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of ~~~~. C,~!,~ :~
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On ~' y~ ,'W~ ~ before me, ~,{`,~.w~<~ L: ~.. , t~ ~:-~c;~y~1 '~..~\ ~C- ,
ate Here Insert Name Titl of the Officer
personally appeared ~ ~~~ ~P.t,'~~~r~~`r•%.~ln' ~ P~/nsr~: yC°~+~ (+;~~~~ ~!rl.~r:,~,~r~..~~ : ~~~ ,Y_~ ~'.., ~
J N~ne(s) of Signer(s)
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Santa Clarc County
My Corrxn. Expkes.ltm 6. 2009
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/a~r subscribed to the
within instrument and acknowledged to me that
he/she/t~executed the same in his/her/ he authorized
capacity ies), and that by his/her~r ignature(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.
Place Notary Seal Above
~~.~-~~~ ~
Signature
Signature of Notary Public
OPT/ONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named
Number of Pages:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
^ Individual
^ Corporate Officer - Title(s):
^ Partner - ^ Limited ^ General
^ Attorney in Fact • ~ -
^ Trustee Top of thumb here
^ Guardian or Conservator
^ Other:
Signer Is Representing:
r's
^ Indi`vidu,al
^ Corporate`~f.ic~
^ Partner - ^ Lir
^ Attorney in Fact
- Title(s): _
ted ^ General
^ Trustee
^ Guardian or Conservator
^ Other:
Signer Is Representing:
02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827
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