88-004 Cupertino Nursery Investment Company, Improvement Agreement, Resolution No. 7431 AGREEMENT
NORTH DEANZA BOULEVARD
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This ACREEME T made and entered into this 16th day
of February , 1988 , by and between the CITY OF
CVPEPT. NO, a municipal corporation of the State of California, hereinafter
designated as CITY, and CUPERTINO NURSERY INVESTMENT COMPANY, A CALIFORNIA LIMITED
PARTNERSHIP, BY APPLE COMPUTER, INC. , hereinafter designated as DEVELOPER.
A GENERAL PARTNER
W I T N E S S E T H
WHEREAS, the DEVELOPER has made application-to the CITY for a
PARCEL MAP AND A BUILDING PERMIT
to construct and maintain a COMMERCIAL DEVELOPMENT
hereinafter referred to as "Project."
WHEREAS, CITY hereby approves the improvement plans and specifications
prepared for the Pruject by KIER & WRIGHT
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 inpravement plans and specifications shall be
hereinafter called the "Plans," and the work to be done under the Plans
shall be called the "Work."
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SAS, pursuant to the provisions of this AGREEMENT, the CITY hereby
. • established the amounts of Bonds, FePs, and Deposits -as set forth in the
• following schedule:
SCHEDULE OF BONDS, FEES AND DEPOSITS
Street Improvement Category:
PART A. Faithful Performance Bond: 0
PART B. Labor and Material Bond: 0
PART C. Checking and Inspection Fee: 0
PART D. Indirect City Enses: 0
PART E. Development Maintenance Deposit: 0
PART F. Storm Drainage Fee: $4,066.00
FOUR THOUSAND SIXTY SIX AND NO/100 DOLLARS
PART G. One Year Power Cost: 0 •
PART H. Street Trees: By Developer
PART I. Map Checking Fee: $ 210.00
TWO HUNDRED TEN AND NO/100 DOLLARS
PART J. Park Fee: 0
PART K. Water Main Extension Deposit: 0
PART L. Maps and/or Improvement Plans: ' 0
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NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the
. parties hereto as follows, TO WIT:
1. DEDICATION
A. The DEVELOPER offers to dedicate the real property shown on
Exhibit "A", which is attached hereto and made a part hereof by reference.
Said dedicated property shall be free and clear of all liens or
encumbrances except those which the CITY shall 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.
B. 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
ccmkoany relating to the property offered for dedication.
(2) A standard policy of title .insurance issued by a title
insurance co[[pany 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 shall expressly waive in
writing; said policy shall be furnished at the time of arrpptance
of dedication and recordation of deed.
C. Upon the condition precedent that the DEVELOPER shall
peafans 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 shall install and complete the Work within one (1)
year from the date of execution of this AGREEMENT, or such longer period
as may be specifirally 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
arthnrized to complete the Work in whatever manner the CITY shall decide.
InLatta event the CITY completes the Work,. the CITY may recover any and all
casts incurred thereby frnmm the DEVELOPER or the DEVELOPER'S surety or
both.
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
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final as to whether any material or workmanship meets the standards,
specifications, plans, sizes, lines and grades as set forth.
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• 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 of the 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
specifications 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. E3CCAVATICN PERMIT
It is further agreed that the DEVELOPER shall comply with Section
Three of Ordinance No. 130 of the CITY by obtaining an excavation permit
fruit the City Engineer before the cammencement of any excavation in, on,
or under the surfan of any existing public.street, lane, alley, sidewalk,
or other public place. it is further agreed that the DEVELOPER shall
notify the City Engineer of the exact date and time when the proposed
excavation is to commence.
4. QTRICLADI DDED
It is furt-dter agreed that the DEVELOPER, when requested by the CITY,
shall ri "in-Ta*'i all his rights and interests in, and shall grant to CITY
authorize. 'Italian to extract water from the underground strata lying beneath
said project and DEVELOPER agrees to execute a "Quitclaim Deed and
Authori i kda in favor of CITY,:when presented to him for signature.
• 5. EMS AND OTHER SECURITY
A. Upon the execution of this AM=t1E2NT, the DEVELOPER shall file
with tha, CITY a faithful performance bond to assure his full and faithful
performance of this AGREEMENT. The penal sum of said faithful performance
bond stall be the full cost of any payment to be made under this
AGREEMEIf, the value of any land agreed to be dedicated, and any
improvements to be made under this AGREEMENT. In the event that
improve:a=.LLare tobe 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 adequate to assure full payment of all labor
and materia 7 s rested to construct said improvements. The amount of said
bonds shall be as designated by the City Engineer. Said bonds shall be
executed by a surety company authorized to transact a surety business in
the State of California and must be 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 AGREEINENT, or to make any payment, or any dedication of land, or any
improvements herein required, the CITY shall call on the surety to perform
this AGREIIMENT or otherwise indemnify the CITY for the DEVELOPER'S failure
to so do.
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• 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 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 of land, or any
improvements herein required, the CITY may apply the proceeds of said
security thereto.
D. No release of surety bond, cash deposit, check, or certificate of
deposit, shall be made except upon approval of the City Council.
E. No interest shall be paid on any- security deposited with the
CITY.
6. CHECKING AND INSPECTION FEE
It is further agreed that DEVELOPER shall pay any and all necessary
direct expenses for inion, checking, etc., incurred by CITY in
connection with gnid Project, and that DEVELOPER shall have deposited with
CIn, 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 fromtan said stmt is calculated, the City Engineer shall notify
DEVELOPER of any adRitional sum due and owing as a result thereof.
7. INDIRECT MENSES .
It is further agreed that DEVELOPER shall pay to CITY, prior to
execution of this AGREDIENT, indirect expense allocable to processing
these imoravements, the amount as set forth herein at Page 2 (Part D) .
S. NAP CHECKING tEh.
- 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 I) .
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• . 9. DEVELOPMENTMAINTENANCE DEPOSIT
• It is further a a. that the DEVELOPER shall pay to the CITY, prior
to execution of this AGREEMENT, the amount set .forth herein at Page 2
(Part E) as a development maintenance deposit to insure proper dust
' control and cleaning during the construction period. The development
maintenance deposit may be utilized for repairs of defects and
imperfections arising out of or due to faulty worlunanship and/or materials
appearing in said- work during the period until release of the improvement
bonds by the CITY. Should the DEVELOPER complete the required repairs to
the entire satisfaction of the cm, the unused balance will be returned
after the release of the improvement bonds.
10. STOPM rRAIM E tht:
It is further agreed that the DEVELOPER shall deposit with the CITY,
prior to execution of this AGRE42', a storm drainage charge in
connection with said Project in accordance with the requirements
established in Resolution 4422, March 21, 1977, in the amount as set forth •
herein at Page 2 (Part F) .
11. WFIIER MAIN EXTENSION DEPOSIT
The DEVELOPER further agrees to deposit with the CITY those monies
required to comply with "Policy on Water Main Extensions Work and
Deposits" dated 9/30/77. The deposit shall be held by the CITY until said
monies are needed to implement improvements outlined by the Director of
Public Works or improvements outlined within the adopted Water Master
Plan.
The amount shown herein at Part K, Page 2, shall be the full amount
due.
12. ONE YEAR POWER CUSP .
It is further agreed that the DEVELOPER shall pay to CITY prior to
execution of this AGREE EENT, the amount as set forth herein at Page 2
(Part G) , which amount represents the power cost for street lights for one
year.
13. THE INSTALLATION OF sni.h Ya 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
fry the City approved list.
14. PARK FEES
It is further agreed that the DEVELOPER shall pay such feet and/or
dedicate such lard to the CITY, prior to execution, as is required within
"Park Dedication Ordinance" Number 602, 1972, and which is further
stipulated under Part J, Page 2 herein.
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15. MAINTENANCE OF Fn"�RK
It is further agreed that the DEVELOPER shall maintain the Work until
all deficiencies in the Work are corrected to conform to the Plans and the
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City standards and specifications for the Work. The DEVELOPER shall, upon
written notice thereof, immediately reeir or replace, without cost or
obligation to the City of Cupertino, and to the entire satisfaction of
said CITY, all defects and imperfections arising out of or due to faulty
workmanship and/or materials appearing in said Work.
16. SANITARY DISTRICT
It is further agreed that the DEVELOPER shall file with CITY, upon
execution of this AGREEENT, a letter from the Cupertino Sanitary District
stating that the DEVELOPER has entered into a separate AGREEMENT with the
said District to install sanitary sewers to serve all lots within said
Project and stating that a bond to insure full and faithful performance of
the construction of the said sanitary sewers and to insure maintenance of
said sanitary sewer in conformance with, the provisions as set forth in •
Paragraph 15 above has been filed.
17. GOVERNMENT NDE
It is further agreed that DEVELOPER shall file with CITY, upon
execution of this AGREEMENT, substantial evidence that all provisions of
Section 66493, Article 8, Chapter 4 of the Govennent Code, pertaining to
special assessments or bonds, have been conplied with.
18. CENTRAL rite. DISTRICT •
It is further agreed that the DEVELOPER shall file with the CITY, upon
execution of this AGREEMENT, a letter frau the Central Fire Protection
District of Santa Clara County, stating that the DEVELOPER has entered
into an AGREEMENT with said District to install fire hydrants to serve
said project and stating that all necessary fees have been deposited with
said District to insure installation and five (5) year rental fee of said
hydrants.
19. PACIFIC GAS AND ELECTRIC/PACIFIC HELL
It is further agreed that the DEVELOPER shall pay to Pacific Gas and
Electric Company and/or to PACIFIC HELY. Company any and all fees required
for installation of overhead and/or underground wiring circuits to all
electroliers within said property and any and all fees required for -
undergrmuding as provided in Ordinance No. 331 of CITY when DEVELOPER is
notified by either the City Engineer or the Pacific Gas and Electric
Company and/or PACIFIC HELS, Company that said fees are due and payable.
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A. Each of said policies of insurance shall provide coverage in the
following minimum amounts: For bodily injury, $100,000 each person;
' $300,000 each occurrence, property damage, $50,000 on account of any
one occurrence with an aggregate limit of not less than $200,000.
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 tern (10) days
advance notice thereof.
C. In the event that the Project covered herein should be mutually
situated in or affect the area of jurisdiction of a separate
municipality or political subdivision of the State of California, the
policies of insurance required herein and above shall co-name such
municipality or political subdivision and the provision set forth
herein and above for the protection of the CITY shall equally apply to
municipality and politirr1 subdivision.
23. MAPS AND/OR IMPROVEMENT PLANS
It. is further agreed that the CITY shall obtain the following map
and/or plans at the DEVELOPER'S expense:
A. A mylar sepia and seven (7) prints of fully executed parcel map.
B. A mylar sepia and ten (10) prints of fully executed improvement
plans.
C. A direct duplicating silver negative microfilm aperature card of
all executed iapxwement plans and map.
The DEVELOPER agrees to pay the CITY Liwu the development maintenance
deposit the cost for all-prints of plans and map required under Item 23.
24. SUCCESSORS
This AGREEMENT shall bind the heirs, administrators, executors,
successor, assignee and transferrees of the DEVELOPER. The assignment of
this Act cha» not be made without approval by the City Council of
the City of Cupertino.
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GENERAL ACKNOWLEDGMENT NO.201
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1 State of °all"PO VY11GL On this the a7�day of JO-nuaV9 19 82 ,before me, n
Si 'C� � nn SS. n/�
nCounty of v(Alt-l.- L Va_ MOXIIa K . 0AI-a ti
Rthe undersigned Notary Public,personally appeared
ti -. Vnthti
OFFICIAL SEAL Q" personally known to me `,
i, ,; � MARLA K. CABRAL ❑ proved to me on the basis of satisfactory evidence
o - a1 Notary Public-California to be the person$whose name IS subscribed to the S
^ +E? SANTA CLARA COUNTY
in�p within instrument,and acknowledged that 1� executed it.
1T '
6 - My Comm.Exp.Apr.26,1988 WITNESS my hand and official seal.
1 Notary's Si,nature o
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]116122 NATIONAL NOTARY ASSOCIATION•23012 Ventura Blvd.•P.O.Box 4625•Woodland Hills.CA 91364
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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 his name to be affixed
the day and year first above written.
CITY OF CUPERTINO:
rn. Air
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Approved as to form: Air `n•
•r /
City Attorney /
City Clerk
CUPERTINO NURSERY INVESTMENT COMPANY,
A CALIFORNIA LIMITED PARTNERSHIP, BY
APPLE COMPUTER, INC. , A GENERAL PARTNER
DEVELOPER:
Notary Acknowledgment Required
Exhibit A Attached
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(Rev. 5/9/86)