86-139-5 James H. Sisk Development of Empire and Grand Avenues single family residences Reso 7563AGREEMENT
EMPIRE AND GRAND AVENUES
This AGREEMEW made and entered into this 18th day
of July , 19 88 , by and between the CITY OF
CUPEFa'INO, a municipal corporation of the State of California, hereinafter
designated as CITY, and JAMES H. SISK
hereinafter designated as DEVELOPER.
W I T N E S S E T H
WAS, the DEVELOPER has made application to the CITY for a
TWO BUILDING PERMITS
to construct and maintain SINGLE FAMILY DEVELOPMENTS
hereinafter referred to as "Project."
WHEREAS, CITY hereby approves the improvement plans and specifications
prepared for the Project by* KIRKEBY AND ASSOC. INC. ;
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 impravenent plans and specifications shall be
hereinafter called the "Plans," and the work to be done under the Plans
shall be called the "Work."
*Plans prepared under contract by City of Cupertino
1
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:
Street Improvement Category:
PART A. Faithful Performance Bond:
THIRTEEN THOUSAND TWO HUNDRED AND 00/100 DOLLARS
PART B. Labor and Material Bond:
THIRTEEN THOUSAND TWO HUNDRED AND 00/100 DOLLARS
PART C. Checking and Inspection Fee:
SIX HUNDRED SIXTY AND 00/100 DOLLARS
PART D. Indirect City Expenses:
NINETY NINE AND 00/100 DOLLARS
PART E. Development Maintenance Deposit:
PART F. Storm Drainage Fee:
THREE HUNDRED SEVENTY AND 00/100 DOLLARS
PART G. One Year Prower Cost:
PART H. Street Trees: By Developer
PART I. Map Checking Fee:
PART J. Park Fee:
PART K. Water Main Extension Deposit:
PART L. Maps and/or Improvement Plans:
*See paragraph 5F
**Reimbursement for City Project 88-109 (96,424)
*$13,200.00 est.
*$13,200.00 est.
$ 660.00 est.
$ 99.00 est.
N/A
$ 370.00
N/A
N/A
N/A
N/A
**$ 3,240.00
N/A
NOTE: Additional right-of-way requirements must be confirmed prior to sale
of property.
Od
NOW, =EFORE, 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
crmpany relating to the property offered for dedication.
(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 AM:ZM T, the CITY
agrees to accept said real property offered for dedication.
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 AGR, or such longer period
as may be specifically authorized in writing by the City Engineer. In the
event the DEVELOPER fails or refuses to ccuplete the Work within the
specified period of tine, the CITY, at its sole option, shall be
authorized to ccnplete 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 in accordance with existing
ordinances and resolutions of the CITY and in accordance with all plans,
specifications, suds, 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.
3
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
where applicable. District
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 PE=
It is further agreed that the DEVELOPER shall ocnply with Section
Three of Ordinance No. 130 of the CITY by obtaining an excavation permit
from the City Engineer before the t 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 comTence.
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 lying beneath
said project arra DEVELOPER agrees to execute a "Quitclaim Deed and
Authorization" in favor of CITY, when presented to him for signature.
:• •. • • elf; y�i 1; MY�
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 AGRE2IT. 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 AGREEMEMr. In the event that
improvements are to be made under this AG MMEN r, 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 ccmpany 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 AGREEMERr, 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 AGREEMEMT or otherwise indemnify the CITY for the DEVELOPER'S failure
to so do.
4
B. In lieu of a surety bond, the DEVELOPER may elect to secu�„-e t^is
AGREFME:rI' 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 AGREEf , 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.
F. Within ten (10) days written notification from the City the Developer
shall convert the existing financial security (part A pg 2 herein) to a cash
deposit in the amount to be determined by a public bid of the City project.
Upon acceptance of the public improvement project by the City, a
final certification of the quantities of work by the engineer of work shall
be made. The City shall then provide final project accounting based on
contract amounts. The Developer shall provide additional monies within ten
(10) days written notice, or the City shall refund any excess monies.
The costs of P.G.& E. related overhead conversion to underground
facility shall also be included within said final accounting. The costs of
relocation of poles and facilities may also be included.
6. CHEC=G 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 stun is calculated, the City Engineer shall notify
DEVELOPER of any additional stun due and owing as a result thereof.
It is further agreed that DEVELOPER shall pay to CITY, prior to
execution of this AGREEMENT, indirect expense allocable to processing
these improvements, the amynmt as set forth herein at Page 2 (Part D).
5.
S. MAP ==G FEE
- It is further agreed that the DEVELfJPER shall deposit with CITY, prior
to execution of this AGREE=, 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).
• @ 9• • • 191 ' I• a I• M 91'•.
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 developTent 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 ccnplete the required repairs to
the entire satisfaction of the CITY, the unused balance will be returned
after the release of the improvement bonds.
It is further agreed that the DEVELOPER shall deposit with the CITY,
prior to execution of this AGREEMENT, a storm drainage change 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) .
/• 91• ►• � 9r 91 • � 91••.
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 COST
It is further agreed that the DEVELOPER shall pay to CITY prior to
execution of this AGFMMU, 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 ATION 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.
14. 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.
3
14-A. PA --U< F=— AZJrU='fLENT P'P�-IEICNS
The value of the lam used in establishir_g the "Park Fe°" cu-r—lire`:
herein on Page 2, Part J, requires forral =-ifirmaticn. The CITY
shall employ a qualified local appraiser to provide a market value of the
land. The City will calculate the "Park Fde" based on the appraisal. The
Developer agrees to pay for any deficiency within thirty. (30) days and the
City agrees to refund average within thirty (30) days. Adjustments shall
be made prior to acceptance of the subdivision improvements.
15. MAIM=, C OF ' Z?
It is further agreed that the DEV=P R 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, uncn
written notice the_-reof, , Mately rerair or replace, without c.^st or
obligation to the. City of Cupertino, and to the entire satisfaction of
said C+T''I'Y, all defects and imperfections arising out of or due to faulty
workmanship and/or materials appearing in said Work.
It is further agreed that the DEVE:LOP-7R
execution of this hZ;HH ', a letter from the
s-,.ati rg that the DEVELCPIIR has entered into a
said Dis-txIct to install sanitary suers to
Project and stating that a bond to insure ful:
the const�,zuction of the said sanitary sewers
said sanitary sewer in conformance with, the
Paragraph 15 above has been filed.
0 VA 10 U �"2rV131 �� na
shall file with Gil, =on
Cupertino Sanitary District
separate AGR=91T with the
serve all lots within said
and faithful performance of
and to insure maintenance of
provisions as set forth in
It is furtner agreed that DEVELOPER shall file with CITY, upon
execution of this AMEN', substantial evidence that all provisions of
Section 66493, Article 8, Chapter 4 of the GoverrmSent Ccde, pertaining to
special assessments or bonds, have been cm -plied with.
18. CENTRAL FIRE DISTRICT
It is further agreed that the DEVELOPER shall file with the CITY, upon
execution of this AGREEME`fr, a letter from the Central Fire Protection
District of Santa Clara County, stating that the DEVELOPER has entered
into an AMEEZ= with said District to install fire hydrants to serve
said Project and stating that all necessary fees have been deposited with
said District to irzure installation and five (5) year rental fee of said
hydrants.
19. PACLFIC GAS AND E CMIC/PA=C BELL
It is further agreed that the ==PER shall pay to Pacific Gas and
Electric Company and/or to PACIFIC BELL Ccamany 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 -
underground ng as provided in Ordinance No. 331 of CITY when DEVELOPER is
notified by either the City Engineer or the Pacific Cas and Electric
Company and/or PACIFIC BELL Ccamany that said fees are due and payable.
7
20. EASE1= AND RI=-OF4aY
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 stun 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.
21. HOLD HAFlMLESS
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 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.
i1I.RM
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 ply 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.
The insurance carrier shall provide proof of their ratings. All ratings
shall be a minimum of "Best A-7" in accordance with ABAG policies.
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 AGRMM4T 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.
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 inprovement plans and map.
The DEVELOPER agrees to pay the CITY from 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. Uie assigrm ent of
this AGREEMENT shall not be made without approval by the City Council of
the City of Cupertino.
E
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 DEVEIAPER has hereunto caused his name to be affixed
the day and year first above written.
Approved as to form:
Z _"� Z9
City Attorney
State of California
SS.
County of Santa Clara
!�C-Alr
Ma or
i
Citylark
On this the 14th day of _ July __ 1988 , before me,
Helen K. Yates
the undersigned Notary Public, personally appeared
James H. Sisk
":' �U` L`ChCR9LX9LX�i;X�CC'1�bGt')ud'JL`C')C(�it� personally known to me
Q OFFICIAL SEAL O proved to me on the basis of satisfactory evidence
W4M HELEN K. YATES to be the person(s) whose name(s) he subscribed to the
.2 0 NOt'MRY PUBLIC • CALIFORNIA'
0 SAN CA C4ARA COUNTY instrument, and acknowledged that he executed it.
H My Commission Expires May 10, 1991 WITNESS my hand and official seal.
Notary's Signatu
RESOLUTION NO. 7563
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING THE IMPROVEMENT OF FRONTAGE
LOCATED ON EMPIRE AVENUE AND GRAND AVENUE
DEVELOPER, JAMES H. SISK
AUTHORIZING EXECUTION OF AGREEMENT IN CONNECTION THEREWITH
WHEREAS, Developer James H. Sisk wishes to improve the street frontage
located at Empire Avenue and Grand Avenue in conjunction with the City's
project to be undertaken in the same area; and
WHEREAS, there has been presented to the City Council a proposed
agreement for the construction of streets, curbs, gutters, sidewalks, and
for other improvements, and good and sufficient bonds, fees and deposits
as set forth in Exhibit "A", having been presented for the faithful per-
formance of said work and the carrying out of said agreement; and said
agreement, and bonds having been approved by the City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the improvement of street frontage
at Empire Avenue and Grand Avenue be and the same is, hereby, approved; and
the Mayor and the City Clerk are hereby authorized to execute the agreement
herein 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 18th day of July 1988, by the following vote:
Vote Members of the City Council
AYES: Johnson, Koppel, Plungy, Rogers, Gatto
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
/s/ Dorothy Cornelius
City Clerk
APPROVED:
/s/ John M. Gatto
Mayor, City of Cupertino