81-051 Gregg C. Bunker Development of NW corner of Sunnyvale-Saratoga Rd. & Wildflower Way -Photo Drive-up business Reso 5740A G R E E M E N T
This AGREEMENT made and entered into thisday of
19�� , by and between the CITY OF CUPERTINO, a
municipal corporation of the State of California, hereinafter
designated as CITY, and Gregg C. Bunker, hereinafter designated as
DEVELOPER.
W I T N E S S E T H
WHEREAS, the DEVELOPER has made application to the CITY for a use
permit to maintain a Photo Drive -Up business, hereinafter referred to
as "Project."
WHEREAS, CITY hereby approves the improvement plans and specifi-
cations prepared for the Project by Kirkeby and Associates, Inc., 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:
SCHEDULE OF BONDS, FEES AND DEPOSITS
Page 1
PART A. Faithful Performance Bond:
Twenty -Five Thousand and no/100 Dollars
PART B. Labor and Material Bond:
Twenty -Five Thousand and no/100 Dollars
PART C. Checking and Inspection Fee:
One Thousand Two Hundred Fifty and no/100 Dollars
Part D. Indirect City Expenses:
One Hundred Eighty -Eight and no/100 Dollars
PART E. Development Maintenance Deposit:
Two Hundred Fifty and no/100 Dollars
PART F. Storm Drainage Fee:
Nine Hundred Eighty -Six and no/100 Dollars
PART G. One Year Power Cost:
Sixty -Three and no/100 Dollars
PART H. Street Trees:
PART I. Map Checking Fee:
PART J. Park Fee:
PART K. Water Main Extension Deposit
$25,000.00
$25,000.00
$ 1,250.00
$ 188.00
$ 250.00
$ 986.00
$ 63.00
By Developer
N/A
N/A
N/A
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 resolu-
tion.
(b) Upon execution of this AGREEMENT the DEVELOPER agrees to
deliver a properly executed grant deed to the CITY of the real prop-
erty described in Exhibit "A", and such other executed conveyances, or
Page 2
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 company relating to the property offered for
dedication; said Preliminary Title Report shall be
furnished: N/A
(2) A standard policy of title insurance issued by a
title insurance company 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 acceptance of dedication and recordation of
deed.
(c) Upon the condition precedent that the DEVELOPER shall perform
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 specifically authorized in writing by the City En-
gineer. In the event the DEVELOPER fails or refuses to complete the
Work within the specified period of time, the CITY, at its sole op-
tion, shall be authorized to complete the Work in whatever manner the
CITY shall decide. In the event the CITY competes 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 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 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.
Page 3
(c) It is further agreed that the Work shall be done in accor-
dance 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 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 sig-
nature.
5. 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 faith-
ful performance bond shall be the full cost of any payment to be made
Page 4
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 pay-
ment of all labor and materials required to construct said improve-
ments. 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 do so.
(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 con-
ditions 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 certi-
ficate 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
Page 5
It is further agreed that DEVELOPER shall pay any and all neces-
sary direct expenses for inspection, checking, etc., incurred by CITY
in connection with said Project, and that DEVELOPER shall have depos-
ited 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).
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 devel-
opment maintenance deposit may be utilized for repairs of defects and
imperfections arising out of or due to faulty workmanship and/or ma-
terials 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.A 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).
Page 6
9.B 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 an 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. FEES FOR THE INSTALLATION OF STREET TREES
It is .further agreed that the CITY 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 re-
quired within "Park Dedication Ordinance" Number 602, 1972 and which
is further stipulated under Part J., Page 2 herein.
13. MAINTENANCE OF THE 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 satisfation of said CITY, all defects and imperfections
Page 7
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 constructions 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, per-
taining 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 Pro-
tection 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
It is further agreed that the DEVELOPER shall apply for the in-
stallation of electric power for street lighting at the earliest date
possible.
18. P. G. and E. and P. T. and T.
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 under-
ground 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 DE-
VELOPER 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
Page 9
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 com-
pletion of the maintenance of the Work, 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.
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 in-
surance 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 per-
son; $300,000 each occurrence; property damage, $50,000 on account of
any one occurrence with an aggregate limit of not less that $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 evi-
dence 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 10 days advance
notice thereof.
Page 10
(c) In the event that the Project covered herein should be mu-
tually 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. SUCCESSORS
This AGREEMENT shall bind the heirs, administrators, executors,
successors, assign and transferees of DEVELOPER. The assignment of
this AGREEMENT shall not be made without approval by the City Council
of the City of Cupertino.
IN WITNESS WHEREOF, CITY has caused its name to be hereunto af-
fixed 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 CUPER NO
Approved as to form: Mayor: �►�
City Attorney City Clerk:
DEVELOPER:
5 2 �-
BY:
1
Page 11
STATE OF CALIFORNIA )
ss.
COUNTY OF SANTA CLARA)
On A-121w—ur',
! / , 19� , before me, the undersigned, a
Notary Public in nd for said State, personally appeared
known to me joPe the persons whose names are subscribed to the within
Instrument, and acknowledged to me that they executed the same.
WITNESS my hand and official seal.
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII;IIIIIIIIII!IIIIIIIIIIIIIIIIIIIIIIIIIIIIIiIII111111111tIiIIIIIII111IIIIIII1111111111111111111111Illlltlill - /
�P \r OFFICIAL SEAL
PIC
HARD G. HANSEN
NOTARY PUBLIC -CALIFORNIA
;1, o PRINCIPAL OFFICE IN i y
SANTA CLARA COUNTY = Notary Pllb11C 1F1 a d for the County
My Commission Expires Sept. 12,1985 = of Santa Clara, State of California
�uumnnunuuwnnnmuml luuumuulunnuunumuuunuuunumuuuunlumunuulnuuuuuunuuunnunfTf
CORPORATION ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA CLARA)
On , 19 , before me, the undersigned, a
Notary Public in and for the said State, personally appeared
, known to me
to be the of
the
corporation that executed the within Instrument, known to me to be the person
who executed the within Instrument, on behalf of the Corporation herein named,
and acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County of Santa Clara the day and year in this certificate first
above written.
Notary Public in and for the County
of Santa Clara, State of California
d
RESOLUTION NO. 5740
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF IMPROVEMENT AGREEMENT BETWEEN THE
CITY AND GREGG C. BUNKER: NORTHWEST CORNER OF SUNNYVALE -
SARATOGA ROAD AND WILDFLOWER WAY
WHEREAS, there has been presented to the City Council a proposed
agreement between the City of Cupertino and Gregg C. Bunker for the improve-
ment of the northwest corner of Sunnyvale -Saratoga Road and Wildflower Way
in conjunction with the Photo Drive -up; and good and sufficient bonds
(letter of credit), fees, and deposits as set forth in Exhibit "A" have been
presented for the faithful performance of said work and the prosecution of
said agreement; and said agreement and bonds having been approved by the
City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the Mayor and the City Clerk are
hereby authorized to execute the agreement referred to in behalf of the
City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City
of Cupertino this 2nd day of November 1981, by the following
vote:
Vote Members of the Citv Council
AYES: Gatto, Johnson, Plungy, Rogers, Sparks
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
/s/ Lucille Campagna-Blaise
Deputy City Clerk
APPROVED:
/s/ Reed Sparks
Mayor, City of Cupertino
Exhibit "A"
Res. No. 5740
H. Street Trees By Developer
I. Map Checking Fee: N/A
J. Park Fee: N/A
K. Water Main Extension Deposit N/A
SCHEDULE OF BONDS, FEES, AND DEPOSITS
DEVELOPMENT: Gregg C. Bunker, Photo Drive -Up
LOCATION: Northwest Corner of Sunnyvale -Saratoga Road
and Wildflower
Way
A.
Faithful Performance Bond:
$25,000.00.
Twenty -Five Thousand and n6/100 Dollars
B.
Labor and Material Bond:
$25,000.00
Twenty -Five Thousand and no/100 Dollars
C.
Checking and Inspection Fee:
$ 1,250.00
One Thousand Two Hundred Fifty and no/100 Dollars
D.
Indirect City Expenses:
$ 188.00
One Hundred Eighty -Eight and no/100 Dollars
E.
Development Maintenance Deposit:
$ 250.00
Two Hundred Fifty and no/100 Dollars
F.
Storm Drainage Fee:
$ 986.00
Nine Hundred Eight -Six and no/100 Dollars
G.
One Year Power Cost:
$ 63.00
Sixty -Three and no/100 Dollars
H. Street Trees By Developer
I. Map Checking Fee: N/A
J. Park Fee: N/A
K. Water Main Extension Deposit N/A