85-030 Ronald Swanson development of 10580 S. Foothill Blvd. Reso 6649 (Reso 6621 was rescinded)A G R E E M E N T
10580 SOUTH FOOTHILL BOULEVARD
This AGREEMENT made and entered into this lst
day of July 19 85 , by and between the
CITY OF CUPERTINO, a municipal corporation of the State of
California, hereinafter designated as CITY, and MR. SWANSON
heinafter designated as DEVELOPER.
W I T N E S S E T H
WHEREAS, the DEVELOPER has made application to the CITY for a
re
sro e l
a building permit from CITY to construct and maintain a eemmet-oeial
development, hereinafter referred to as "Project."
WHEREAS, CITY hereby approves the improvement plans and
specifications prepared for the Project by MR. SWANSON., a true copy
of said 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:
Page 1
SCHEDULE OF BONDS, FEES AND DEPOSITS
Street Improvement Category: N/A
PART A. Faithful Performance Bond: N/A
PART B. Labor and Material Bond: N/A
PART C. Checking and Inspection Fee: N/A
PART D. Indirect City Expenses: N/A
PART E. Development Maintenance Deposit: $ 322.50
Three Hundred Twenty Two and 50/100 Dollars
PART F. Storm Drainage Fee: N/A
PART G. One Year Power Cost: N/A
PART
H.
Street Trees
By Developer
PART
I.
Map Checking Fee:
N/A
PART
J.
Park Fee:
N/A
PART K. Water Main Extension Deposit: $ 800.00
Eight Hundred and No/100 Dollars
Page 2
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 r;,a 1 property
shown on Exhibit "A", which is attached hereto and a a part
hereof by reference. Said dedicated property sha be free and
clear of all liens or encumbrances except th e which the CITY
shall waive in writing. The DEVELOPER agrees to revoke said
n
offer of dedication, and to keep said off open until the CITY
accepts offer by resolution.
B. Upon execution of this AGR ENT the DEVELOPER agrees
to deliver a properly executed grant de to the CITY of the real
property described in Exhibit , and such other executed
conveyances, or instruments nece ary to convey clear title as
herein required. The DEVELOPE shall provide, at the DEVELOPER'S
sole cost and expense, to the Ci
(1) A preliminary ti e report issued by a title insurance
company relating to he property offered for dedication;
said Preliminary itle Report shall be furnished by:
DEVELOPER
(2) A standar policy of title insurance issued by a title
insurance mpany and insuring the CITY in the sum of:
N/A, and ich shall show said property free and clear of
all lie or encumbrances except those as the CITY shall
express waive in writing; said policy shall be furnished
at th time of acceptance of dedication and recordation of
dee Z.
Upon the condition precedent that the DEVELOPER shall
perform ach and every covenant and condition of this AGREEMENT,
the CITY agrees to accept said real property offered for
dedi ation.
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 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.
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
Page 3
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, sizes, 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 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. EXCAVATION 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 from the City Engineer before the commencement of
any excavation in, on, or under'the surface 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. QUITCLAIM DEED
It is further agreed that the DEVELOPER, when requested by the
CITY, shall quitclaim all his rights and interests in, and shall
grant to CITY authorization to extract water from the underground
strata laying beneath said project and DEVELOPER agrees to execute
a "Quitclaim Deed and Authorization" in favor of CITY, when
presented to him for signature.
S. 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 shall be the full cost of any payment to
be made under this AGREEMENT, the value of any land agreed to be
dedicated, and any improvements to be made under this AGREEMENT. In
the event that improvements are to be made under this AGREEMENT,
Page 4
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 materials required 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 AGREEMENT, 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 AGREEMENT or otherwise
indemnify the CITY for the DEVELOPER'S failure to so do.
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 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. INDIRECT EXPENSES
It is further agreed that DEVELOPER shall pay to CITY, prior to
execution of this AGREEMENT, indirect expense allocable to
processing these improvements, the amount as set forth herein at
Page 2 (Part D).
Page 5
7A. MAP FILING 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 I).
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 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
workmanship 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 CITY, the unused balance will be returned after
the release of the improvement bonds.
9A. 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 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).
9B. WATER 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 and adopted Water Master Plan.
The amount shown herein at Part K, Page 2, shall be the full
amount due.
10. ONE YEAR POWER COST
It is further agreed that the DEVELOPER shall pay to 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.
Page 6
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, as is
required within "Park Dedication Ordinance" Number 602, 1972, and
which is further stipulated under Part J, Page 2 herein.
13. MAINTENANCE OF WORK
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 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, all 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 CITY,
upon execution of this AGREEMENT, 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
13 above has been filed.
15. GOVERNMENT CODE
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 Government
Code, pertaining to special assessments or bonds, have been
complied with.
16. CENTRAL FIRE DISTRICT
It is further agreed that the DEVELOPER shall file with the
CITY, upon execution of this AGREEMENT, a letter from 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.
18. PACIFIC GAS AND ELECTRIC/PACIFIC TELEPHONE AND TELEGRAPH
It is further agreed that the DEVELOPER shall pay to Pacific
Gas and Electric Company and/or to Pacific Telephone and Telegraph
Company any and all fees required for installation of overhead
and/or underground wiring circuits to all electroliers within said
Page 7
property and any and all fees required for undergrounding 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 Teltphone and Telegraph Company that said fees are
due and payable.
19. 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 by the
CITY for the purpose of securing said easement and right-of-way,
that the DEVELOPER shall 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 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.
20. 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 aginst 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.
21. 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 of
liability 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 be excess insurance
only.
Page 8
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 ten (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 political
subdivision.
22. MAPS AND/OR IMPROVEMENT PLANS
It is further agreed that the DEVELOPER shall furnish CITY with
the following maps and/or plans at his own expense:
A. A mylar sepia and seven (7) prints of fully executed
parcel maps.
B. A mylar sepia and thirteen (13) prints of fully executed
tract maps.
C. A mylar sepia and eleven (11) prints of fully executed
improvement plans.
D. A direct duplicating silver negative microfilm aperature
card of all executed improvement plans and maps.
It is agreed that the sepia, prints and microfilm of maps will
be furnished within one month following recordation at the County
of Santa Clara.
It is also agreed that the sepia, prints and microfilm for
improvement plans will be furnished within one month following the
signing of the plans by the CITY.
23. SUCCESSORS
This AGREEMENT shall bind the heirs, administrators, executors,
successor, assignee and transferrees of the DEVELOPER. The
assignment of this AGREEMENT shall not be made without approval by
the City Council of the City of Cupertino.
Page 9
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.
Approved as to form:
City `Attorney
Notary Acknowledgement Required
GENERAL ACKNOWLEDGMENT
State of
County
CITY OF CUPERTINO
r:
City Clerk:
I
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Y:
On this the day of
SS.
the undersi- ned otja�
lic, personally appeared
19_ -,—,?before me,
NO. 201
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NO. 201
7110122 NAI IUNAL NU IAHY ASJUU1AI IUN • 23UIZ ventura Clva. • Y.U. COX 4625 • Woodland HIIIS, UA `J1J04
RESOLUTION NO. 6649
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
RESCINDING RESOLUTION NO. 6621, AND AUTHORIZING EXECUTION
OF STANDARD IMPROVEMENT AGREEMENT WITH RONALD A. SWANSON
FOR THE STREET FRONTAGE AT 10580 SOUTH FOOTHILL BOULEVARD
WHEREAS, the City Council, on July 1, 1985, adopted Resolution No.
6621, authorizing the execution of improvement agreement, specified as "deferred",
with Ronald A. Swanson; and
WHEREAS, said agreement is in fact a standard improvement agreement;
NOW, THEREFORE, BE IT RESOLVED, that Resolution No. 6621 is hereby
rescinded.
BE IT FURTHER RESOLVED that the City Council hereby approves the
execution of a standard improvement agreement with Ronald A. Swanson for his
frontage along 10580 South Foothill Boulevard; and the Mayor and the City Clerk
are hereby authorized to execute said agreement in behalf of the City of
Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of
the City of Cupertino this 5th day of August 1985, by the following
vote.
VOTE MEMBERS OF THE CITY COUNCIL
AYES: Gatto, Rogers, Sparks, Johnson
NOES: None
ABSTAIN: Plungy
ABSENT: None
ATTEST: APPROVED:
/s/ Dorothy Cornelius
City Clerk
/s/ Phil N. Johnson
Mayor, City of Cupertino
N RESOLUTION PTO. 6621 /
A RESOLUTION OF THE CI:1,7 UNC XFTBE CITY OF CUP INO
AUTHORIZING THE ECL]0 DEFERRED AGREFMEN'I' WITH
RONALD A. SWANS FOR OV�I OF FRONTAGE FOOTHIIL
VvIMREAS, there h %and
sented
for tZent f tt fron
E . Swd propoement
of st, gutteperic) years(6Vav saidd saidnt
the i.ty Council an agreement
\F08thill Boulevard by Ronald
.ains rovisions for the construction
for o er improvements within a
.s froml e date of execution of
been aper ed the the City Attorney;
1Z NON, TH=ORE, BE IT APESthat said agree.�,ent for the Lmorovement
of street frontage Foothill is hereby ap_provea, and the City Engineer
is hereby authorized to sigl plans when presentb_y the developer;
and the Mayor and the City hereby authorized to e cute the agreement
herein referred to in behality of Cuoertino.
BE IT FURTHER RES OL that the (:%-ty Clerk is authorized to file this
agreement with the Sant Clara County corder.
PASSED AND ADO at a regular mee 'ng of the City Council of the City
of Cupertino this st day of July ,,1985 by the following vote:
Vote M rs of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
None
, Plungy, Rogers, Sparks,
/s/ Dorothy Cornleius
City Clerk
V
APPR .
/s/ Phil N. Johnson
Mayor, City of Cupertino