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83-025 Vidovich - Cupertino Limited Partnership, Improvement Agreements, Resolution No. 6122; Reciprocal Easement Agreement ' NO FEE IN ACCORDANCE] 1 021 5 9 61 WITH 60V CODE 6103 O •J [9 PAGE 6.47 MED_F'OFc RECORD' 47 REQUEST OF @ISTRICT MOM!, M! AUG 14 10 54 AM '89 ""OFFICAL RECORDS'^"' Recorded at the request of: SANTA CLARA COUNTY John T. Vidovich LAURIE HANE ---r AFTER RECORDING: MAIL TO c` -1 N® FEE RECORDER no AFTER OF THE CITY CLERK 10300 TORRE AVENUE CUPERTINO, CA 95014 . . J RECIPROCAL EASEMENT AGREEMENT This agreement is made this --,11-kIday of &al , l989 by the ` undersigned parties. WHEREAS: 1) The undersigned are the owners of Parcels 1 , 2 , and 3 of that certain Parcel Map recorded in Book 600 of Maps at Pages 26 and 27, Santa Clara County Records and lying within the City of Cupertino, California. 2) It is the intention of all the parties to provide for easements for shared parking as provided in this agreement. 3) It is the desire of all the parties to restrict said land according to a common plan as to use and permissible buildings so that all of said lands shall be benefited and each successive owner of all or a part of said lands shall be benefited by the preservation of the value and character of said lands. THEREFORE: In consideration of the mutual promises of the parties, each to the other as Covenators and Covenantees, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follows: 1) Parcels 2 and 3 grant a non-exclusive easement to Parcel 1 for 64 parking spaces to be used by Parcel 1 only during "non- business hours" . "Non-business hours" shall mean between the hours of 6 P.M. and 8 A.M. on Mondays through Fridays, and all day on Saturdays, Sundays, and Holidays. Parcels 2 and 3 reserve the right to issue reasonable rules and regulations governing the use of the parking spaces. 2) Parcels 2 and 3 shall each be responsible for any and all costs relating to the installation, maintenance, and restoration of any improvements to their respective parcel that may be required to allow Parcel 1 to receive the benefit of the easement described in this agreement. OR GINAL State of California SS. County of Santa Clara On this Seventh day of August, in the year 1989 , before me, Cheryl L. Allmaras, personally appeared John Vidovich personally known to me to be the person that executed this instrument, in behalf of the partnership and acknowledged to me that the partnership executed it. IN WITNESS WHEREOF, I hereunto set my hand and official seal. OFFICIAL SEAL-1 LØ CHERYL L ALLMARAS aeeirtalNOTARY PUBLIC -CALIFORNIA SANTA CUARA COUNTY Cher L. Allmaras My comm. expires DEC 9, 1991 • _. 056P46E 648 3) In the event of any controversy, claim, or dispute relating to this agreement, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorney' s fees, and costs. 4) This agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors, and assigns of the parties. . 5) The parties hereto agree that the rights granted herein may not be released or terminated without the prior approval to the City of Cupertino, California, a Municipal Corporation. To , = Avenue Properties, a California General Partnership, b V' dovich-Torre Ave. Limited Partnership, General Partner, by . 2hn T. Vidovich Owner of Parcel 1 • Avenue Properties, a California General Partnership, ; dovich-Torre Ave. Limited Partnership, General Partner, b •hn T. Vidovich i Owner of Parcel 2 •r . e Avenue Properties, a California General Partnership, • 'idovich-Torre Ave. Limited Partnership, General Partner, b ohn T. Vidovich Owner of Parcel 3 n ,f • %_t=\ ~ ' atm of Cupertino 10300 Torre Avenue P.O.Box SBO Cupertino,California 95014 Cupertino,California 95015 Telephone:(408)252-4505 OFFICE OF THE CITY CLERK July 18, 1983 Vidovich-Cupertino, A Limited Partnership 1307 South Mary Avenue Sunnyvale, CA 94087 IMPROVEMENT AGREEMENT Dear Mr. Vidovich: We are enclosing to you for your files one (1) copy of the Agreement by and between the City. of Cupertino and Vidovich-Cupertino Limited Partnership, along with one (1) copy of Resolution No. 6122, which was enacted by the City Council of the City of Cupertino, at their regular meeting of July 5, 1983. Sincerely, �/j- /41_,teLz...: i.tef, ' 24-27*-----(mac.-c DOROTHY CORNELIUS CITY CLERK CITY OF CUPERTINO DC/so encl. cc: Public Works Department AGREEMENT This AGREEMENT made and entered into this 5th day of July , 19 83 , by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and VIDOVICH-CUPERTINO LIMITED PARTNERSHIP, herein- after designated as DEVELOPER. " MITNESSETH WHEREAS, the DEVELOPER has made application to the CITY for a parcel map and is securing a building permit from CITY to construct and maintain a commercial building, hereinafter referred to as "Project. " WHEREAS, CITY hereby approves the improvement plans and specifi- cations prepared for the Project by Kirkeby and Associates; 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: Page 1 SCHEDULE OF BONDS, FEES AND DEPOSITS Improvement Category - N/A PART A. Faithful Performance Bond: Common Area - Public Right-of-Way - Landscaping $38 , 000 . 00 Thirty-Eight Thousand and no/100 Dollars PART B. Labor and Material Bond: Common Area - Public Right-of-Way - Landscaping $38, 000 . 00 Thirty-Eight Thousand and no/100 Dollars PART C. Checking and Inspection Fee: $ 1, 900 . 00 One Thousand Nine Hundred and no/100 Dollars PART D. Indirect City Expenses: $ 285. 00 Two Hundred Eighty-Five and no/100 Dollars PART E. Development Maintenance Deposit: $ 250 . 00 Two Hundred Fifty and no/100 Dollars PART F. Storm Drainage Fee: $ 3, 828 . 00 Three Thousand Eight Hundred Twenty-Eight and no/100 Dollars PART G. One Year Power Cost: $ 108 . 00 One Hundred Eight and no/100 Dollars PART H. Street Trees: By DEVELOPER PART I. Map Checking Fee: $ 50 . 00 Fifty and no/100 Dollars PART J. Park Fee: N/A PART K. Water Main Extension Deposit N/A PART L. Maps and/or Improvement Plans: By DEVELOPER NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows, TO-WIT: • Page 2 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 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 by DEVELOPER. ( 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. Page 3 (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. (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 Paan d 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 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. Page 5 • (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 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 • Page 6 • • 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) . 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 Page 7 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 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. Page 8 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 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 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. (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. MAPS AND/OR IMPROVEMENT PLANS ' 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. (b) A mylar sepia and thirteen (13 ) prints of fully executed tract maps. (c) A mylar sepia and eleven (11) prints of fully executed improvement plans. (d) A direct duplicating silver negative microfilm aperature card of all executed improvement plans and maps. It is agreed that the sepia, prints and microfilm of maps will be furnished within one month following recordation at the County of Santa Clara. It is also agreed that the sepia, prints and microfilm for improvement plans will be furnished within one month following the signing of the plans by the CITY. i _ • 23 . 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 CUPERTINO --fir Approved as to m: Mayor: I� OO' City At ney City Clerk: /42><( DEVELOPER: By: N„ M1 Acknowledgement attached. STATE OF CALIFORNIA ) ss. COUNTY OF SANTA CLARA) . • On this day of day of in the year of , before me , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he (she or they) executed it. WITNESS my hand and official seal. Notary Public in and for the County of Santa Clara, State of California CORPORATION ACKNOWLEDGEMENT STATE OF CALIFORNIA ) ss. COUNTY OF SANTA CLARA) On this day of day of in the year of , before me personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as president (or secretary) or on behalf of the corporation therein named and acknowledged to me that the corporation executed it. 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 STATE OF CALIFORNIA SS : COUNTY OF SANTA CLARA ON THIS , 22nd DAY OF June , 198 3 , BEFORE ME, Barbara Adams , A NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE, RESIDING THEREIN, DULY COMMISSIONED AND SWORN, PERSONALLY APPEARED John Vidovich KNOWN TO ME TO BE A GENERAL PARTNER IN VIDOVICH-CUPERTINO, A CALIFORNIA LIMITED PARTNERSHIP, PERSONALLY KNOWN TO ME TO BE THE PERSON WHO EXECUTED THIS INSTRUMENT, ON BEHALF 0OF THE PARTNERSHIP AND ACKNOWLEDGED TO ME THAT THE PART- NERSHIP EXECUTED IT. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED MY OFFICIAL SEAL IN THE COUNTY OF SANTA CLARA THE DAY AND YEAR OF THIS CERTIFICATE FIRST ABOVE WRITTEN. OFFICIAL SEAL �f L�C 6AiM7it ADAMS GLLC� �F. - NOTARY PUBLJC-CALIFORNIAN NOTARY PUBLIC, STATE OF CALIFORNIA eir My CSAomMmA x:ACOUNTYDe Expires c 20,7985!