85-038 Kirkeby & Associates - Tract 7675 Forest Ave street, curbs, gutters, Reso 6660TRACT AGR EEM ENT
T zi s AGREF-MEi\T, :Wade and e -i tered into this 19th da,,,
of August lg 85 , bv. and between the CITY OF
CUPERTINO, a municipal corporation of the State of California,
hereinafter designated as CITY, and KIRKEBY & ASSOCIATES, INC. and
ROBERT KEHOE , hereinafter designated as DEVELOPER.
W I T N E a S E T H
WHEREAS, said DEVELOPER desires to subdivide certain land
within the City of Cupertino in accordance with the mao heretofore
filed with the Citv Council of the City of Cupertino, marked and
desi:;nated as TRACT 7675, FOREST AVENUE
Cupertino California, hereinafter designated as the "Tract"; and
WHEREAS, said map shows certain courts, drives and roads which
are offered for dedication for public use; and
WHEREAS, CITY hereby aoproves the improvement plans and
specifications prepared for t:le Tract: b -V KIRKEBY AND ASSOCIATES
, a true co -)y o = which improvement _,lans and
s ecifications are on file. in the Office of the Citv Engineer of
Cu ertiilo; and
iiH EREAS, the same are incoraorated 'herein bu reference, the
same as thouch set out in full;
NOW, THEREFORE, said im_ rovement plans and specifications shall
;e hereinafter called the "Plans," and the work to be done under
t,.e Plans shall be called the ":Vons."
PacTe 1
WHEREAS, pursuant to the provisions of this AGREEMENT, the CITY
nerebj established the amounts of Bonds, Fees, and Deoosits as set
forth in the following schedule:
SCHEDULE OF BONDS, FEES AND DEPOSITS
PART A. Faithful Performance Bond: $ 28,000.00
TWENTY EIGHT THOUSAND AND no/100 DOLLARS
PART B. Labor and Material Bond: $ 28,000.00
TWENTY EIGHT THOUSAND AND no/100 DOLLARS
PARI` C. Checking and Inspection Fee: $ 1,120.00 +1
ONE THOUSAND ONE HUNDRED TWENTY AND no/100 DOLLARS
PART D. Indirect Citta Expenses: $ 168.00
ONE HUNDRED SIXTY EIGHT AND no/100 DOLLARS
PART E. Man Filing Fee $ 112.00
ONE HUNDRED TWELVE AND no/100 DOLLARS
PART F. Development Maintenance De_osit:
$ 340.00
THREE HUNDRED FORTY AND no/100 DOLLARS
PART G. Storm Drainage Fee: $ 2,232.00
TWO THOUSAND TWO HUNDRED THIRTY TWO AND no/100 DOLLARS
PART H. One Year Power Cost: $ 36.00
THIRTY SIX AND no/100 DOLLARS
PART I. • Street Trees: N/A
PART J. Pari: Fee: ZO:1I.E $ 25, 272.00
TWENTY FIVE THOUSAND TWO HUNDRED SEVENTY TWO AND no/100 DOLLARS
P_1RT K. :dater Main Extension Deposit: N/A
Pa: -.e 2
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the
Parties hereto as follows, TO WIT:
1. 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
performed under the inspection and with the approval of the City
Engineer. The work shall be done in accordance with the existing
ordinances and resolutions of the City of Cupertino, 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 thereto.
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.
2. 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.
Page 3
3. 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.
4. 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, 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.
Page 4
5. 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.
6. 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) .
7. 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.
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 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).
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 H), which amount represents the power cost for street
lights for one year.
Page 5
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, as is
required within "Park Dedication Ordinance" Number 602, 1972, and
which is further stipulated under Part J, Page 3 herein.
12.a. PARK FEE ADJUSTMENT PROVISIONS
The value of the land used in establishing the "Park Fee" outlined herein on Page 2,
Part J, requires formal confirmation. The City will employ a qualified local
appraiser to provide a market value of the land. The City will calculate the "Park
Fee" based on the appraisal. The Developer agrees to pay for any deficiency within
thirty (30) days and the City agrees to refund overage within thirty (30) days.
Adjustments shall be made prior to acceptance of the subdivision improvements.
13. MAINTENANCE OF WORK
It is further agreed that the DEVELOPER shall maintain the
Work: A. For a period of one (1) year after acceptance of the
Work by the City Council of the City of Cupertino, or B. Until
all deficiencies in the Work are corrected to conform to the Plans
and the CITY standards and specifications for the Work, whichever
is the later to occur. 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
separat.e 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. BUSINESS AND PROFESSIONS CODE
It is further agreed that DEVELOPER shall file with CITY, upon
execution of this AGREEMENT, substantial evidence that all
provisions of Section 11603, Article S, Chapter 4 of the Business
and Professions Code, pertaining to special assessments or bonds,
have been complied with.
PAGE 6
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.
17. STREET LIGHTING - P. G. and E. RATE SCHEDULE SHALL APPLY
It is further agreed that the DEVELOPER shall apply for the
installation of electric power for street lighting at the earliest
date possible.
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
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 Telephone 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 as provided in
Paragraph 13 above, 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.
P AGE 7
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.
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. 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 September 9, 1977. 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 an adopted Water Master Plan.
The amount shown herein at PART K, Page 3, shall be the full
amount due.
PAGE 8
23• MAPS AND/OR IMPROVEMENT PLUMS
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.
3. A mylar sepia and thirteen (13) prinz-s of
tract maps, fully executed
C. A mylar sepia and eleven (11) prints of fully executed
improvement plans.
D. A direct duplicating silvlj.r negative :microfilm aperature
card of all executed improvement plans and maps.
It is agreed that the sepia, pri;-lts and microfilm of maps will
be furnished within one month following recordation at the County
of Santa Clara.
STATE OF CALIFORNIA,
County of ........
SANTA CLARA Iss.
on ...AUGUST 7, .1.9135 ............... before me...... the undersigned
. , a Notary Public in and for said
County and State personally appeared .MARV I N D. K I RKEB Y
• • • • • • • • • . . .. personally known to me or x
proved to me on the basis of satisfactory
evidence to be the person who executr:d the, within inSrrllnlen( I'M . . . . . . . . . . . . . . . . . . . . . . Prosidont IJXXXXxxxxxxxxxxxx(�xx(�( X
/xx�c�uxxxoa�a�aa�x�xx/w��rnaxx� xxxrxwx�a�ca�xlx�v�xt�x,wt�x�c�,�xw���S�xaci32����4x,)y�•y,��,�xxxxxxxxxxxxxx
9r'"XAXof the corporation that executed the within and foregoing instrument on behalf of the. corporation therein named and acknowledged to me That
such corporation executed the same.
DORIS ADAMO
NOTARY PUBLIC -CALIFORNIA
�i{•� SANTA CLARA COUNTY
My Commission Expires Sep. 13, 1985
Approved as to form:
itl to ney
RA d4j�
Notary Acknowledgment Required.
Page 9
WITNESS my hand and Official Seal.
,..
...........
ori S Adamo Notary Public
ACKNOWLEDGMENT -CORPORATION
VTC -12 7
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3y:
RESOLUTION NO. 6660
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING THE FINAL MAP AND IMPROVEMENT PLANS OF TRACT NO.
7675 LOCATED ON FOREST AVENUE, DEVELOPER KIRKEBY AND
ASSOCIATES, INC., AND ROBERT KEHOE ACCEPTING CERTAIN
EASEMENTS; AUTHORIZING SIGNING OF FINAL MAP AND
IMPROVEMENT PLANS; AUTHORIZING EXECUTION OF AGREEMENT
IN CONNECTION THEREWITH
WHEREAS, there has been presented to the City Council for approval
and for authorization to record final map of Tract No. 7675 located on
Forest Avenue showing certain avenues, drives, places, and roads by
Kirkeby and Associates, Inc., and Robert Kehoe; and
WHEREAS, there has been presented to the City Council a proposed
agreement for the construction of streets, curbs, and gutters, and for
other improvements, and good andsufficient bonds, fees, and deposits as
set forth in Exhibit "A" having been presented for the faithful performance
of said work and the carrying out of said agreement; and said map, agreement
and bonds having been approved by the City Attorney;
NOW, THEREFORE, BE IT RESOLVED THAT
a. Said final map and improvement plans of Tract No. 7675, be and
the same are hereby approved.
b. The offer of dedication for roadway and for easements is hereby
accepted.
C. The City Engineer and the City Clerk are hereby authorized to
sign final map.
d. The City Engineer is hereby authorized to sign the improvement plans.
e. The Mayor and the City Clerk are hereby authorized to execute the
agreement herein referred to.
PASSED AND ADOPTED at a regular meeting the the City Council of the
City of Cupertino this 19th day of August 1985 by the following
vote:
Vote Members of the Citv Council
AYES: Gatto, Plungy, Rogers, Sparks, Johnson
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
/s/ Dorothy Cornelius /s/ Phil N. Johnson
City Clerk
Mayor, City of Cupertino
RESOLUTION NO. 6660
EXHIBIT "A"
SCHEDULE OF BOND, FEES, AND DEPOSITS
DEVELOPMENT: Tract No. 7675
Kirkeby & Associates, Inc. and Robert Kehoe
LOCATION: Forest Avenue
A. Faithful Performance Bond:
$28,000.00
Twenty-eight Thousand and no/100 Dollars
B. Labor and Material Bond:
$28,000.00
Twenty-eight Thousand and no/100 Dollars
C. Checking and inspection Fee:
$ 1,120.00
One Thousand One Hundred Twenty and no/100
D. Indirect City Expenses:
$ 168.00
One Hundred Sixty-eight and no/100 Dollars
E. Map Filing Fee
$ 112.00
One Hundred Twelve and no/100 Dollars
F. Development Maintenance Deposit:
$ 340.00
Three Hundred Forty and no/100 Dollars
G. Storm Drainage Fee:
$ 2,232.00
Two Thousand Two Hundred Thirty-two and no/100 Dollars
G. One Year Power Cost:
$ 36.00
Thirty-six and no/100 Dollars
H. Street Trees:
N/A
I. Map Checking Fee:
N/A
J. Park Fee:
$25,272.00
Twenty-five Thousand Two Hundred Seventy-two and no/100 Dollars
K. Water Main Extension Deposit
N/A