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02-020 Tom McNair - 22261 McClellan Rd. City Hall 10300 Torre Avenue Cupertino, CA 95014-3255 (408) 777-3354 CUPERTINO CERTIFICATE OF COMPLETION AND PUBLIC WORKS DEPARTMENT NOTICE OF ACCEPTANCE OF COMPLETION NOTICE IS HEREBY GIVEN THAT I, Ralph A. Qualls, Jr., Director of Public Works and City Engineer of the City of Cupertino, California, do hereby certify that certain municipal improvements in conjunction with the following project: THOMAS NI. MCNAIR 22261 MCCLELLAN ROAD APN 357-04-067 have been completed in accordance with the approved improvement plans and acceptance of completion was ordered by the City Council on June 5, 2007. ~~ ~~(~~ Director of Public Works and City Engineer of the City of Cupertino Date: August 13, 2008 ~~ - ~ °~ "V AGREEMENT THIS AGREEMENT is made and entered into this ~~ day of 200, by and between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY" rind TOM MCNAIR, owner of unimproved property located at 22261 McClellan Road, Cupertino, California 95014, hereinafter referred to as "OWNER." WHEREAS, OWNER has applied to the CITY to construct a single family dwelling on property located at 22261 McClellan Road, Cupertino; and WHEREAS, CITY has approved such application; and WHEREAS, CITY and OWNER agree that access to the unimproved property from McClellan Road during construction may be hazardous to public health and safety; NOW, THEREFORE, in consideration of their mutual covenants, the parties agree as follows: ACCESS. Access during winterization/erosion control and construction shall only be by way of Scenic Boulevard through the CITY's access gate and across CITY property to the site at 22261 McClellan Road, Cupertino. Time of access shall be limited to work hours Monday through Friday from 9:00 A.M. to 4:30 P.M. OWNER and CITY agree that access shall be "pass through" access only. No parking shall be allowed on CITY property. No storal;e of materials shall be allowed on CITY property. The city-owned access shall be ade~~uately maintained by OWNER throughout the duration of the work. OWNER agrees that repair of damage to the access shall be presumed to be the responsibility of OWNER unless otherwise determined by CITY. APPROVALS. The winterization/erosionp1an must be reviewed and approved by Cotton, Shires and Associates as well as the CITY. The grading and construction project shall be commenced and completed only with appropriate CITY inspections and approvals a s required by the CITY. TERM. This AGREEMENT shall remain in ~:ull force and effect for one year from the date of its execution, or until the project is completed as determined by a final building inspection by the CITY, whichever comes sooner. If, after one year, the project is not completed, and CITY and OWNER mutually agree that access via Scenic Boulevard continues to be necessary, this AGREEMENT' may be renewed by written consent of the CITY. TEMPORARY SUSPENSION. The City Manager shall have the authority to suspend this AGREEMENT, wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of the OWNER to perform any provision of this AGREEMENT. INDEMNIFICATION. OWNER hereby agrees to indemnify and hold harmless CITY, its officers, agents and employees from and al;ainst: a. Any and all damage to or de;struction of the property of CITY occupied or used by or in the care, custody and control of OWNER, caused by any act or omission, negligent or otherwise, of OWNER or any subcontractor under this AC~REEMENT, or any employee or agent of OWNER or of any subcontractor. b. Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of or damage suffered or sustained by any person arising out of this AGREEMENT, excepting,llowever, any claims or demands arising out of the sole negligence or willful misconduct of CITY, its officers, agents or employees. c. Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any property damage suffered or sustained by any person arising out of this AGREEMENT, excepting, however, any claims or demands arising out of the sole negligence or willful misconduct of CITY, its officers, agents or employees. d. Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit by OWNER or his agents, employees or subcontractors. INSURANCE. OWNER agrees to obtain, and shall require any subcontractor engaged to perform work on the project to obtain, and maintain at all times during the term of this AGREEMENT, a policy of liability insurance naming the CITY as an insured. Said separate policy shall provide bodily injury and property damage coverage to the CITY 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 below. The insurance carrier rating shall be a minimum "B" rating as determined in accordance with the insurance industry standard. Each of said policies of insurance shall provide coverage in the following minimum amounts: For bodily injury, $1.0 million each. person; $2.0 million each occurrence, property damage, $1.0 million on account of any one occurrence with an aggregate limit of not less than $2.0 million. OWNER shall file with the CITY at or prior t~~ the time of execution of this AGREEMENT such evidence of said foregoing policy or policies of insurance. Each such policy or policies shall bear an endorsement precluding the cancellation or reduction in coverage without giving the CITY at least thirty (30) days advance notice thereof. The CITY shall be shown as additionally insured on a separate Endorsement provided along with the evidence of said foregoing policy or ~~olicies of Insurance. Insurance shall stay in full force and effect for the duration of this agreement, and until released by the CITY. AGREEMENT BINDING. The terms, covenz~nts, and conditions of this AGREEMENT shall apply to, and shall bind the heirs, succes:~ors, executors, administrators, assigns and subcontractors of OWNER. WAIVER. The waiver by either party of any breach or violation of any term, covenant or condition of this AGREEMENT shall not be deemed to be a waiver of any other term, covenant or condition or of any subsequent breach or violation of the same term, covenant or condition. USES SUBORDINATE. This AGREEMENT' is not a grant by CITY of any property interest. This AGREEMENT shall not create a vested right of any nature in OWNER to use the CITY access. This AGREEMENT is subject and subordinate to the prior and continuing right of CITY and its assigns to us~~ any and all of the CITY access for any lawful use. It is further subject to all deeds, e;~sements, dedications, conditions, covenants, restrictions, encumbrances and claims of title which may affect the CITY access. OWNER shall be solely responsible for obtaining all necessary permits and approvals from all public and private entities. NOTICES. All notices which shall or may be given pursuant to this AGREEMENT shall be in writing and transmitted through first cla:>s United States mail, or by private delivery systems, to the following address or such other address of which a party may give written notice: City: City of Cupertino City Manager 10300 Torre Avenue Cupertino, CA 95014 Owner: ~}~.~ M S S M ~ r~ 4,~ Coo l„o-CL(S L.ArG~ ASSIGNMENT. This AGREEMENT shall not be assigned by OWNER without CITY's prior written consent, which shall not be unre~~sonably withheld, and any such attempted assignment shall be void. OWNER shall give to CITY thirty (30) days' prior written notice of such transfer. The sale, lease or othf;r transfer of interests by OWNER of the property to third parties in the normal course of business shall not be deemed an Assignment. ENTIRE AGREEMENT. This AGREEMENT contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this AGREEMENT that are not fully expressed herein. AMENDMENTS. This AGREEMENT may :not be amended except pursuant to a written instrument signed by all parties. SEVERABILITY. If any one or more of the provisions of this AGREEMENT shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed separable from the remaining provisions of this AGREEMENT and shall in no way affect the validity of the remaining portions of this AGREEMENT. CONSTRUCTION OF AGREEMENT. This AGREEMENT shall be governed and construed by and in accordance with the laws of the State of California. In the event that suit is brought by a party to this AGREEMENT, the parties agree that trial of such action shall be vested exclusively in the state courts ~~f California, County of Santa Clara. IN WITNESS WHEREOF, the parties have executed this AGREEMENT on the date set forth above. CITY OF CUPERTINO OWNER j. 2G . 02 City Manager ATTEST: ~~~ City Clerk APPROVED AS TO FORM: / ~~ ~/ / -~~ ity Attorney