Loading...
86-140 KMD Associates I (John T. Kontrabecki) Improvment of Frontage on Miller Ave for Commercial Development Reso 6911AGREEMENT MILLER AVENUE This AGREEMWr made and entered into this 21st day Of July 1986 by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and f< M 0 iti .Ss O G )R TE- S 3:7, c��- /- ) m ) T't:�:-6 /0 &�Q TN,Fk<S hereinafter designated as DEVELOPER. WITNESSETH WHEREAS, the DEVELOPER has made application to the CITY for a BUILDING PERMIT to construct and maintain a COMMERCIAL DEVELOPMENT hereinafter referred to as "Project . " WHEREAS, CITY hereby approves the improraiient plans and specifications prepared for the Project by KIER & WRIGHT, 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 improvement plans and specifications shall be hereinafter called the "Plans," and the work to be done under the Plans shall be called the "Work." 1 WHEMAS, pursuant to the provisions of this Ate, 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: $7,800.00 SEVEN THOUSAND EIGHT HUNDRED AND N0/100 DOLLARS PART B. Labor and Material Bond: $7,800.00 SEVEN THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS PART C. Checking and Inspection Fee: $ 468.00' FOUR HUNDRED SIXTY EIGHT AND N0/100 DOLLARS PART D. Indirect City Expenses: $ 70.00' SEVENTY AND NO/100 DOLLARS PART E. Development Maintenance Deposit: $1,000.00 ONE THOUSAND AND N0/100 DOLLARS PART F. Storm Drainage Fee: $ 272.00 TWO HUNDRED SEVENTY TWO AND N0/100 DOLLARS PART G. One Year Power Cost: $ 36.00 THIRTY SIX AND N0/100 DOLLARS PART H. Street Trees: By Developer PART I. Map Checking Fee: PART J. Park Fee: PART K. Water Main Extension Deposit: N/A PART L. Maps and/or Improvement Plans: _ E NOW, SORE, IT IS HEREBY MCUALLY AGRIM 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 AGREEKENr 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 company 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 stun 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 AGR, the CITY agrees to accept said real property offered for dedication. 2. INSTA,r.r TION OF %K)FT 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 AGREEMU, 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 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. 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 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 camrexr4ment 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. 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 and DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to him for signature. A. Upon the execution of this AGREEMENT, the DEVELOPER shall file with the CITY a faithful performance boned to assure his full and faithful performance of this AG UMEN '. 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 stun 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 c ampany 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. 4 B. In lieu of a surety bond, the DEVELOPER nay 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 Goverrnnent 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 c-2 L LUY l�l]T1C11. E. No interest shall be paid on any security deposited with the CITY. 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. It is further agreed that DEVELOPER shall pay to CITY, prior to execution of this AGRMMgT, indirect expense allocable to processing these improvements, the W=nt as set forth herein at Page 2 (Part D). 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) . 5 It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of this AGREEKM, 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 oomplete the required repairs to the entire satisfaction of the CITY, the unused balance will be returned after the release of the improvement bonds. • • N n- • / r d :la 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) . The LEVELOPER 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 isplement 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 AGFdMMM, 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 T= 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. 15. 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. 16. SANITARY DISTRICT' It is further agreed that the DEVELOPER execution of this AGR, a letter from the stating that the DEVELOPER has entered into a said District to install sanitary sewers to Project and stating that a bond to insure ful: the construction of the said sanitary sewers said sanitary sewer in conformance with the Paragraph 15 above has been filed. shall file with CITY, upon Cupertino Sanitary District separate AGREEMENT with the serve all lots within said L and faithful performance of and to insure maintenance of provisions as set forth in 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 cmplied with. 18. 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 AGREEMERT 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. 19. PACIFIC GAS AND E =C/PACIFIC BUT It is further agreed that the DEVELOPER shall pay to Pacific Gas and Electric Company and/or to PACIFIC DELL Ccmpany 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 RE.'LL Company that said fees are due and payable. 7 20. EASEMERM AND RIGM-OF-Jay It is further agreed that any easement and right-of-way necessary for ccm pletion 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. 21. HOLD HESS It is further agreed that, camTencing with the performance of the Work by the DEVELOPER or his contractor and continuing „g until the ccnnpletion of the maintenance of the Work, the DEVELOPER shall indemnify, hold harmless arra 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. 22. 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 occu xence 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. 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 AGREE = 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 (13) prints of fully executed parcel map. B. A mylar sepia and ten (11) prints of fully executed improvement plans. C. A direct duplicating silver negative microfilm aperature card of all executed improvement plans and nap. 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. The assignment of this AGREEMENT shall not be made without approval by the City Council of the City of Cupertino. 9 IN WITNESS MiEPMF, 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 TJEVELOPER has hereunto caused his name to be affixed the day and year first above written. Approved as to form: Ci J Attorney STATE OF CALIFORNIA ) COC -TTY OF SANTA CLARA) CM4M` � � 1J�l:�Y�►;� 4/mvo A�1�2'14 ' Malfor' City Clerk On this 30th day of June , 1986, before me, the undersigned a Notary Public in and for said County and State, personally appeared JOHN T KONTRABECKI Kammxtvxmrxx� proved to rte on :he basis of satisfactory evi.ience) to be the partner of KONTRABECKI-MASON DEVELOPERS '.1HICH ?ARTNFRSHIP is also k=,rn to me to be a partner of KMD ASSOCIATES, I. the partnership that executed the within instrument and acknowled--ed to ane that the partnership first above mentioned and that such partnership executed same. -KAREN - � ( J '�'1—IIIIIIEtnttl!It{'tl!!t!1!!I!i!!!!!'!1!tl!lifll I%A. COONS tl!!llil!R'.11•,!ITttlEf{1111_ t '; .� NOTAY Pu[3f.IC-CALIFORNIA NOTARY PUBLIC IN AND FOR SAID COL�ITY AND STATE - `� SAN i A CLARA Cit i?:'tY 5 6 1989 My commission expiry_ eW, (PARTNERSHIP AS A PARTNER OF A PARTNERSHIP) ItRlltt{:{t!itIC;I1tR1tlt11i1111!!tttitl!1tl!!t!tI:I!tl!1![ii!';i::u.,.,,,.::...1 1/93 RESOLUTION NO. 6911 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING FINAL PLAN FOR THE IMPROVEMENT OF FRONTAGE LOCATED ON MILLER AVENUE; DEVELOPER, KMD ASSOCIATES I, A CALIFORNIA LIMITED PARTNERSHIP; AUTHORIZING THE CITY ENGINEER TO SIGN THE FINAL PLAN AND AUTHORIZING EXECUTION OF AGREEMENT IN CONNECTION THEREWITH WHEREAS, there has been presented to the City Council for approval of the final plan for the improvement of street frontage located on 0 Miller Avenue by KMD Associates I, a California Limited Partnership; 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 performance of said work and the carrying out of said agreement; and said plan, agreement, and bonds having been approved by the City Attorney; NOW, THEREFORE, BE IT RESOLVED that said final plan for the improvement of street frontage on Miller Avenue be and the same is, hereby, approved; and the City Engineer is hereby authorized to sign said final plan; 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 this 21st day of July , 19 86 , by the following vote; Vote Members AYES: Gatto, Johnson, Plungy, Sparks, Rogers NOES: None ABSENT: None ABSTAIN: None Resolution No. 6911 EXHIBIT "A" SCHEDULE OF BOND, FEES, AND DEPOSITS DEVELOPMENT: COMMERCIAL DEVELOPMENT, KMD ASSOCIATES I, A CALIFORNIA LIMITED PARTNERSHIP LOCATION: MILLER AVENUE A. Faithful Performance Bond: $7,800.00 SEVEN THOUSAND EIGHT HUNDRED AND N0/100 DOLLARS B. Labor and Material Bond: $7,800.00 SEVEN THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS C. Checking and Inspection Fee: $ 468.00 FOUR HUNDRED SIXTY EIGHT AND N0/100 DOLLARS D. Inderect City Expenses: $ 70.00 SEVENTY AND NO/100 DOLLARS E. Development Maintenance Deposit: $1,000.00 ONE THOUSAND AND N0/100 DOLLARS F. Storm Drainage Fee: $ 272.00 TWO HUNDRED SEVENTY TWO AND N0/100 DOLLARS G. One Year Power Cost: $ 36.00 THIRTY SIX AND NO/100 DOLLARS H. Street Trees: By Developer I. Map Checking Fee: J. Park Fee: K. Water Main Extension Deposit: N/A L. Maps and/or Improvement Plans: