91-028 Street and Bridge Improvement Agreement - Sobrato - North De Anza Blvd.STREET AND BRIDGE IMPROVEMENT AGREEMENT
This Street and Bridge Improvement Agreeme ("Agreem t") i
made and entered into effective as of the day, of
1991, by and between Sobrato Development Company # 910, a
California general partnership ("Sobrato"), and the City of
Cupertino ("City").
RECITALS
A. As used herein, the term "Land" refers to approximately
32.5 net acres of land located on the east side of North De Anza
Boulevard, between Interstate 280 and Mariani Avenue.
B. By Application 11-U-90, Sobrato has applied to the City
for a Use Permit ("Use Permit") for demolition of four buildings on
the Land, and construction on the Land of approximately 856,000
gross square feet (and 785,000 net square feet) of office
buildings and related improvements ("Project"). At their regular
meeting of November 19, 1990, the City Council granted a Negative
Declaration, and approved Sobrato's Application 11-U-90 with
certain conditions, which conditions were subsequently modified
City Council action on February 4, 1991.
. C. By Application 16 -TM -90 Sobrato has applied to the City
for a vesting tentative map (the "Vesting Tentative Map") to
subdivide the Land. At their regular meeting of May 6, 1991, the
City Council approved Sobrato's Application 16 -TM -90 with certain
conditions.
D. Condition 1 to the City Council's approvals of
Application 11-U-90 and Application 16 -TM -90 ("Condition 111),
requires Sobrato to contribute to the cost of certain street
improvements, and improvements to the De Anza Boulevard Bridge over
Interstate 280.
E. Sobrato intends to convey, or has conveyed the Land to
Cupertino Gateway Partners, a California general partnership (the
"Partnership"), which Partnership shall develop the Project,
provided that Sobrato assumes the obligations, and shall be fully
responsible for satisfaction of the requirements of Condition 1 set
forth in this Agreement.
F. The City and Sobrato intend that this Agreement shall
satisfy the requirements of Condition 1 set forth in this
Agreement, and that the City shall look solely to Sobrato for the
fulfillment of the obligations set forth in this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. Improvements to Add a Right Turn Lane to the Southern
Approach to Intersection of De Anza Boulevard and Mariani Avenue.
With respect to adding a right turn lane to the southern approach
to the intersection of De Anza Boulevard and Mariani Avenue, the
parties agree as follows:
A. Right Turn Lane. If annual City monitoring of
traffic conditions at the intersection of De Anza Boulevard and
Mariani Avenue following completion of the Project, establishes
that the level of service during peak hours at this intersection is
E or F (as such levels of service -are defined in Table 2 of the
Initial Study prepared for the City by Brady and Associates, dated
September 20, 1990), the City may, at Sobrato's expense, construct
a right turn lane at the southern approach to this intersection,
which turn lane may require a widening of De Anza Boulevard to the
north of the intersection.
B. Security. As security for Sobrato's obligation to
pay for the work described in subparagraph 1.A above, Sobrato
shall deliver to the City prior to the issuance of the first
building permit for the Project, a letter of credit in the amount
of $130,000, which letter of credit shall be renewed continuously
for a period of seven (7) years from the effective date of the Use
Permit.
2. Widening of the De Anza Boulevard Bridge over Route 280.
W`.th respect to the widening of the De Anza Boulevard Bridge over
Route 280, the parties agree as follows:
A. Construction Cost. The City shall have the right to
cause the De Anza Boulevard Bridge over Route 280 to be widened.
Sobrato shall pay sixty percent (50%) of the total cost of widening
improvements if a separate pedestrian bridge is constructed, or
fifty percent (50%) of the total widening cost if a new structure
is attached to the existing overpass; provided, however, the
maximum amount Sobrato shall be required to contribute for such
work shall not exceed $1,000,000 in either case (the "Maximum
Contribution"). Notwithstanding the foregoing, the Maximum
Contribution shall be adjusted quarterly until the date the bid
documents for such construction are circulated, to that amount
which is equal to the product obtained by multiplying (i)
$1,000,000, by (ii) a fraction, the numerator of which is the
Marshall Swift Index published immediately preceding the date upon
which the adjustment is to be made, and the denominator of which is
the Marshall Swift Index published immediately preceding the date
of delivery of the letter of credit described in subparagraph 2.B
below. As used herein, the term "Marshall Swift Index" shall mean
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the Quarterly Cost Indexes (1926 = 100) for Buildings -Western
District, Building Class B, as published in Marshall & Swift's
Marshall Valuation Service, an example of which index is attached
hereto as Exhibit "A". If the Marshall Swift Index is discontinued,
Sobrato shall select an alternative index to implement the
provisions of this paragraph to achieve substantially the same
result as if the Marshall Swift Index had not been discontinued,
which alternative index selected by Sobrato shall be subject to the
approval of City.
B. Security. Sobrato's obligation to pay the costs
described in subparagraph 2.A above shall be secured by an
irrevocable letter of credit in the amount of $1,000,000, to be
delivered to City prior to the issuance of the first building
permit for the Project, which letter of credit shall be renewed
continuously for a period of seven (7) years from,the effective
date of the Use Permit.
3. Notices. All notices or other communications hereunder
shall be in writing. The addresses for notices to Sobrato and City
are as follows:
SOBRATO:
John A. Sobrato
Sobrato Development Companies
' 10600 North De Anza Boulevard, Suite 200
Cupertino, California 95014-2031
CITY:
City Manager
City of Cupertino
10300 Torre Avenue
'Cupertino, California 95014-3255
City or Sobrato may change its address by sending a notice in
accordance with this paragraph.
4. Entire Agreement. This Agreement constitutes the entire
agreement between Sobrato and the City with respect to the subject
matter hereof, and supersedes the terms of any prior or oral
agreements with respect to the subject matter hereof. Neither this
Agreement, nor any term, covenant, or condition hereof may be
modified or amended, except by an agreement in writing, executed by
City and Sobrato.
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5. Miscellaneous. The headings of the paragraphs in this
Agreement are for convenience of reference only, and shall not be
considered in the construction or interpretation of any provision
hereof. This Agreement shall governed by and construed in
accordance with the laws of the State of California. If any suit
or proceeding is commenced by any party to enforce or interpret any
of the terms of this Agreement, the prevailing party shall have the
right to recover its reasonable attorneys' fees and costs of suit
from the other party. Should any provision of this Agreement prove
to be invalid or illegal, such invalidity or illegality shall in no
way affect, impair or invalidate any other provision hereof, and
such remaining provisions shall remain in full force and effect.
6. Obligations Personal to Sobrato. The obligations of
Sobrato hereunder are personal to Sobrato, and shall not run with
the Land. City and Sobrato agree that Sobrato's performance -
pursuant to this Agreement shall satisfy the requirements covered
in this Agreement which are included under Condition 1, and that
City shall look solely to Sobrato for the performance of the
obligations set forth in this Agreement. A violation of this
Agreement shall not affect the validity of the Use Permit, the
Vesting Tentative Map, or any certificate of occupancy that has
been issued for any completed Project building. This Agreement
shall not be recorded.
IN WITNESS WHEREOF, this Agreement was signed as of the dates
set forth below.
"SOBRATO"
SOBRATO DEVELOPMENT
COMPANY #910,
a California general
pa;toership
By: I 11VW
Joh Mic ael Sobrato, Trustee
and r the JOHN MICHAEL SOBRATO
1985 SEPARATE PROPERTY TRUST
Its: General Partner
Date:
"CITY"
CITY OF CUPERTINO
By: Ax"�k
Its: Mayor
Date:
APP OV AS TO FORM -
C ty A torney
ATTES
SQ - C ty Clerk
w8V061.R3 -4 -
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