81-044 Five Forty El Camino, Ltd. - Development of Tract 7099 - Reso 5694A G R E E M E N T
This AGREEMENT, made and entered into this 17th day of
August , 1981, by and between the CITY OF CUPERTINO, a
municipal corporation of the State of California, hereinafter design-
z�ted as CITY, and FLARK--McNTA--VISTA; hereinafter designated as
FIVE FORTY EL CAMINO, LTD.
DEVELOPER.
W I T N E S S E T H
WHEREAS said DEVELOPER desires to subdivide certain land within
the City of Cupertino in accordance with the map heretofore filed with
the City Council of the City of Cupertino, marked and designated Tract
7099 Cupertino California, hereinafter designated as the "Tract;" and
WHEREAS, said map shows certain courts, drives and roads which are
offered for dedication for public use; and
WHEREAS, said DEVELOPER desires to construct dwellings on the lots
in said "Tract;" and
WHEREAS, CITY hereby approves the improvement plans and spec-
ifications prepared for the Tract by Ruth, Going and Curtis,
Incorporated, 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."
PAGE 1
WHEREAS, pursuant to the provisions of this AGREEMENT, the CITY
hereby established the amount of bond, fees and deposit as set forth
in the following schedule.
SCHEDULE OF BONDS, FEES AND DEPOSITS
Part A. Faithful Performance Bond: $300,000.00
Three Hundred Thousand and no/100 Dollars
Part B. Labor and Material Bond: $300,000.00
Three Hundred Thousand and no/100 Dollars
Part C. Checking and Inspection Fee: $ 12,000.00
Twelve Thousand and no/100 Dollars
Part D. Indirect City Expenses: $ 1,800.00
One Thousand Eight Hundred and no/100 Dollars
Part E. Map Filing Fee: $ 174.00
One Hundred Seventy -Four and no/100 Dollars
Part F. Development Maintenance Deposit: $ 805.00
Eight Hundred Five and no/100 Dollars
Part G. Storm Drainage Fee: $ 9,945.00
NineThousand Nine Hundred Forty -Five and no/100 Dollars
Part H. One Year Power Cost:
Three Hundred Twenty -Four and no/100 Dollars
$ 324.00
Part I. Street Trees: By Developer
Part J. Park Fees: $145,854.00
One Hundred Forty -Five Thousand Eighty Hundred Fifty -Four and no/100
Dollars
Part K. Water Main Extension Deposit: $ 11,096.00
Eleven Thousand Eight Hundred Ninety -Six and no/100 Dollars
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the
parties hereto as follows, TO WIT:
1. INSTALLATION OF WORK
It
is agreed
that in consideration of
the
approval
of said
map
and the
acceptance
on behalf of the public
of
the courts,
drives
and
PAGE 2
roads offered for dedication,
(a) The DEVELOPER shall install and complete the Work within one
(1) year from the date of execution of the this AGREEMENT, 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 op-
tion, 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 performed under the in-
spection and with the approval of the City Engineer. The Work shall be
done in accordance with existing ordinances and resolutions of the
City of Cupertino, 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, spec-
ification, plans, sizes, lines and grades as set forth.
(c) It is further agreed that the Work shall be done in ac-
cordance 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
PAGE 3
"State" or "California Department of Transportation" 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 of Cupertino and/or the Cupertino Sanitary
District, the specifications of the City of Cupertino and/or the Cu-
pertino Sanitary District shall take precedence over and be used in
lieu of such conflicting portions.
2. EXCAVATION PERMIT
It is further agreed that the DEVELOPER shall comply with Section
Three of Ordinance No. 130 of City of Cupertino by obtaining an ex-
cavation 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.
3. QUITCLAIM DEED - UNDERGROUND WATER RIGHTS
It is further agreed that DEVELOPER shall quitclaim all his
rights and interests in, and shall grant to CITY authorization to
extract water from the underground strata lying beneath said Tract and
DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in
favor of CITY, when presented to him for signature.
PAGE 4
4. BONDS
It is further agreed that prior to, or concurrent with, the ex-
ecution of this AGREEMENT, the DEVELOPER shall execute and deliver to
the City Engineer a faithful performance bond running to the CITY, as
obligee, and a labor and material bond running to the CITY and to all
contractors, subcontractors, laborers, material, men and other persons
referred to in Chapter 2, Title 4, Part 3 of the Code of Civil
Procedure of the State of California, as obligees, said performance
and labor and materials bonds shall each be in the amount as estab-
lished in the Schedule of Bonds, Fees, and Deposit as set forth herein
at Page 2 (Parts A and B) and shall conform with the provisions of
Resolution 1591 of the City Council of Cupertino. Said bonds shall be
in a form acceptable to the City Engineer and shall be approved by him
prior to or concurrent with the execution of this agreement by the
CITY.
5. 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 Tract, and that DEVELOPER shall have de-
posited 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
6. INDIRECT EXPENSES
PAGE 5
It is further agreed that DEVELOPER shall pay to CITY, prior to
execution of this AGREEMENT, indirect expenses allocable to processing
this improvement, the amount as set forth herein at Page 2 (Part D)
7. 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 E).
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 de-
velopment 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 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. 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 es -
PAGE 6
tablished in Resolution 4422, March 21, 1977 in the amount as set
forth herein at Page 2, (Part G).
10. ONE YEAR POWER COST
It is further agreed that the DEVELOPER shall pay to the CITY,
prior to execution of this AGREEMENT, the amount as set forth herein
at Page 2 (Part H), which amount represents the power cost for street
lights for one year.
11. INSTALLATION 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.
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
required 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
(a) for a period of one (1) year after acceptance of the Work by the
City Council of the City of Cupertino, or (b) until all deficiencies
in the Work are corrected to conform to the Plans and the CITY stan-
dards and specifications for the Work, whichever is the later to oc-
PAGE 7
cur. The DEVELOPER shall, upon written notice thereof, immediately
repair or replace, without cost or obligation to the City of Cuper-
tino, 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.
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 Tract and stating that a bond to insure full and
faithful performance of the construction of the said sanitary sewers
and to insure maintenance of said sanitary sewer in conformance with
the provisions as set forth in Paragraph No. 13 above, have been
filed.
15. BUSINESS AND PROFESSIONS CODE
It is further agreed that DEVELOPER shall file with CITY, upon
execution of this AGREEMENT, substantial evidence that all provisions
of Section 11603, Article 8, Chapter 2 of the Business and Professions
Code, pertaining to special assessments or bonds, have ben 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 -
PAGE 8
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 Tract 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 - P. G. AND E. RATE SCHEDULE SHALL APPLY
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 Tract 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 DEVELOPER at his
own 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
PAGE 9
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 CITY.
PAGE 10
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 completion of the maintenance of the Work as provided in Paragraph
13 above, the DEVELOPER shall indemnify, hold harmless and defend the
CITY from and against any or all loss, cost, expense, damage or li-
ability, 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 or the
Work called for or required to be done hereunder, a policy of in-
surance naming 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
Page 11
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 than $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 cov-
erage without giving the City Engineer at least ten (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 of Cupertino shall
equally apply to municipality and political subdivision.
22. WATER MAIN EXTENSION DEPOSIT
The DEVELOPER further agrees to deposit with the City those
Page 12
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.
23. TERMS AND CONDITIONS
It is further agreed that the above named terms and conditions
for the said Tract, shall bind the heirs, successors, administrators,
or assigns of the DEVELOPER. The assignment of this AGREEMENT shall
not be made without approval by the City Council of said CITY.
IN WITNESS WHEREOF, said 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 DEVELOPER has hereunto caused
his name to be affixed the day and year first above written.
App
Notary Acknowledgment Required.
CITY OF C �E
Mayor.OZ 0/-
City Clerk:
l
DEVELOPER:
#i0f/Nw,00
•
/4 C�GoF�vtA//u'/ COit�b/1i4��4r
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Page 13
STATE OF CALIFORNIA )
ss.
COUNTY OF SANTA CLARA)
On , 19 , before me, the undersigned, a
Notary Public in and for said State, personally appeared
known to me to be 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.
Notary Public in and for the County
of Santa Clara, State of California
----------------------------------------------------------------------------
CORPORATION ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF SX)
SAN MATEO
On August 11 , 1981 , before me, the undersigned, a
Notary Public in and for the said State, personally appeared
Jack T. Chamberlain
, known to me
to be the President of of FIVE FORTY EL CAMINO LTD' 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.
OFFICIAL SEAL
MARIE A. JACOBSON
NOTARY PUBLIC - CALIFORNIA Notary Public in and fo the County
PRINCIPAL OFFICF IN of Santa Clara, State o California
SAN MATEO COUNTY
My Commission Exp. Aug. 6, 198
f
RESOLUTION NO. 5694
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING THE FINAL MAP AND IMPROVEMENT PLANS OF TRACT
NO. 7099, PARK MONTA VISTA LOCATED AT THE INTERSECTION OF
VOSS AVENUE AND LOCKWOOD DRIVE; DEVELOPER FIVE FORTY EL
CAMINO, LTD.; ACCEPTING CERTAIN EASEMENTS; AUTHORIZING
SIGNING OF FINAL MAP AND IMPROVEMENT PLANS; AUTHORIZING
THE EXECUTION OF AGREEMENT IN CONNECTION THEREWITH
WHEREAS, there has been presented to the City Council for approval and
for authorization to record the final map of Tract No. 7099, Park Monta Vista
located at the intersection of Voss Avenue and Lockwood Drive showing certain
avenues, drives,.places, and roads by Five Forty El Camino, Ltd.; and
WHEREAS, there has been presented to the City Council a proposed agreement
for the construction of streets, curbs, gutters, and for other improvements, and
good and sufficient bonds, fees, and deposits as forth in Exhibit "A" having
been presented for the faithful performance of said work and the carrying out of
said agreement; and said map, agreement, and bonds having been approved by the
City Attorney;
NOW, THEREFORE, BE IT RESOLVED THAT
a. Said final map and improvement plans of Tract No. 7099, Park Monta Vista,
be and the same are hereby approved.
b. The offer of dedication for roadway and for easements is hereby accepted.
c. The City Engineer and the City Clerk are hereby authorized to sign said
final map.
d. The City Engineer is hereby authorized to sign the improvement plans.
e. The Mayor and the City Clerk are hereby authorized to execute the agree-
ment herein referred to.
PASSED AND -ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 17th day of p„g„Gr , 1981, by the following vote:
Vote Members of the City Council
AYES: Gatto, Johnson, Plungy, Rogers, Sparks
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: ' APPROVED:
/s/ Dorothy Cornelius
City Clerk
/s/ Reed Sparks
Mayor, City ot CuperE-Ino
RESOLUTION NO. 5694
Exhibit "A"
SCHEDULE OF BONDS, FEES AND DEPOSITS
+ Development: Tract No. 7099, Park Monta Vista
Five Forty E1 Camino, Ltd.
r r
Location: Voss Avenue and Lockwood Drive
A.
Faithful Performance Bond:
$300,000.00
Three Hundred Thousand and no/100 Dollars
B.
Labor and Material Bond:
$300,000.00
Three Hundred Thousand and no/100 Dollars
C.
Checking and Inspection Fee:
$ 12,000.00
Twelve Thousand and no/100 Dollars
D.
Indirect City Expenses:
$ 1,800.00
One Thousand Eight Hundred and no/100 Dollars
E.
Map Filing Fee:
$ 174.00
One Hundred Seventy -Four and no/100 Dollars
F.
Development Maintenance Deposit
$ 805.00
Eight Hundred Five and no/100 Dollars
G.
Storm Drainage Fee:
$ 9,945.00
Nine Thousand Nine Hundred Forty -Five and no/100 Dollars
H.
One Year Power Cost:
$ 324.00
Three Hundred Twenty -Four and no/100 Dollars
I.
Street Trees:
By Developer
J.
Park Fees:
$145,854.00
One Hundred Forty -Five Thousand Eighty Hundred Fifty -
Four and no/100 Dollars
K.
Water Main Extension Deposit:
$11,096.00
Eleven Thousand Eight Hundred Ninety -Six and no/100
Dollars