Loading...
86-139-7 James H. Sisk Development of 10050 Pasadena Ave Commercial development Reso 7954AGREEMENT 10050 PASADENA APN #357-17-035 This A22EEMEVT made and entered into this 16th day of October , 19 89 , by and between the CITY OF CUPERTD40, a municipal corporation of the State of California, hereinafter designated as CITY, and JAMES SISK 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." *IEFS, CITY hereby approves the improvement plans and specifications prepared for the Project by KIRKEBY K ASSOCIATES 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, nEYdFaRE, said inprovement plans and specifications shall be hereinafter called the "Plans," and the work to be done Linder the Plans shall be called the "Work." File: 51,855 WHEREAS, pursuant to the provisions of this AGREZI', the CITY hereby established the amotmZts of Bonds, Fees, and Deposits as set forth in the following schedule: Street Improvement Category: PART A. Faithful Performance Bond: TWENTY ONE THOUSAND FIVE HUNDRED DOLLARS AND N0/100 PART B. Labor and Material Bond: TWENTY ONE THOUSAND FIVE HUNDRED DOLLARS AND NO/100 PART C. (necking and Inspection Fee: ONE THOUSAND TWO HUNDRED NINETY DOLLARS AND N0/100 PART D. Indirect City Expenses: ONE HUNDRED NINETY THREE DOLLARS AND N0/100 PART E. Developwnt Maintenance Deposit: ONE THOUSAND DOLLARS AND N0/100 PART F. Storm Drainage Fee: SEVEN HUNDRED SEVENTY FOUR DOLLARS AND N0/100 PART G. One Year Pourer Cost: THIRTY SIX DOLLARS AND N0/100 PART H. Street Trees: By Developer PART I. Map Checking Fee: TWO HUNDRED TEN DOLLARS AND NO/100 PART J. Park Fee: PART K. Water Main Extension Deposit: TWO THOUSAND FIVE HUNDRED DOLLARS AND N0/100 PART L. Maps and/or ngnwement Plans: (See Paragraph #23) PART M. "On Site" Checking Fee (6$): ONE THOUSAND SIX HUNDRED TWENTY DOLLARS AND N0/100 $21,500.00 $21,500.00 $ 1,290.00 $ 193.00 $ 1,000.00 $ 774.00 $ 36.00 $ 210.00 N/A $ 2,500.00 $ 1,620.00 NOW, 'IES, 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 AGREDEyr 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 ccanpany relating to the property offered for dedication. 12) A standard policy of title insurance issued by a title insurance company and insuring the CITY in the sun 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 ACRE MU, the CITY agrees to accept said real property offered for dedication. 2. I1ZT7k1r ON OF Wco< 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 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 ecuplete 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 ocuplete 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 arra 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. I 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 PE= 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 cmmencement 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 ccmTence. It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all his riots 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. :•ii`,11711• • lbism- s• - A. Upon the execution of this AGRED=, the DEVELOPER shall file with the CITY a faithful performance bond to assure his full and faithful performance of this AGFMM4T. The penal sum of said faithful performance bond shall be the full cost of any payment to be made under this AGREII=, 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 AGREEMM, 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 company authorized to transact a surety business in the State of California and mist 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 ttus AGREEKWr 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 secure this AGREMM 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 AGREE MERr, 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. «NI rJ 3,6J V 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 AGFM04r, the amount as set forth herein at Page 2 (Part C). Should construction cost vary materially from the estimate from which said sun 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 QTY, prior to execution of this AGFmm?r, indirect expense allocable to processing these improvements, the amotmt 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 ACREEMERr, for office checking of final map and field checking of street mcn mtients, in vcmpliance 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) . � 71 • ' 1�1 I• � 71 I• M � �1'q It is further agreed that the DEVELOPER shall pay to the QTY, prior to execution of this AGREE1=, the amount set forth herein at Page 2 (Part E) as a develcpnent 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 complete 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 AGREEMEar, 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 DEVELOPER further agrees to deposit with the CITY those marries 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 ACS, the amount as set forth herein at Page 2 (Part G) , whish amount represents the power cost for street lights for one year. 13. THE INS7A r A'rTON OF sTREEZ' TREE'S 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 FEE'S 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. r� 14-A. :!�K = ALLT ST!=T :Td7VT�ICNS r1he value of the land used in establish r,g the "Park Fee" cutiir ed herein on Page 2, Part J, requires formal confirmation. The CITY shall employ a qualified local aPPra;ear to pride a market value of the land. The City will calculate the "Park Feel based on the appraisal. The Developer agrees to pay for any deficierlcy";"within thirty. (3 0) days and the City agrees to refund overage within thirty (30) days. Adjustments shall be made prior to acceptance of the subdivision improvements. 15. MA12TIMNANCE OF FZR It I furt-` er agreed that the MV=P—=R, shall 1 maintain the Work until all deficiencies in the Work are corrected to conform to the Plans and the City starriards and specifications for the Work. The DEVELOPER shall, upon writ -t -en notice thereof , immediately ai i ately repair or replace, withcut c, -,St or obligation to the. City of C=ertinc, and to the entire satisfaction of said CI'T'Y, all defects and imperfections arising out of or due to faulty workmanship and/or materials arppezr; * g in said Work. 16. CRY DISTRICT It is further agreed that the DEV=pER execution of this AfI', a letter frcm thj stating that the DEVE'LDPM has eantzred into a said Dist-x,.ct to install sanitary suers to Project and stating that a bond to insure ful: the const, -action of the said sanitary sewers said sanitary suer in conformance with the Paragraph 15 above has been filed. shall file withLT'1'Y, ur_on Ot;xrtino Sanitary Disy.rict separate ACUMIM'T with the serve all lots w1th1n said . 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 ACRf3 r , substantial evidence that all provisions of Section 66493, Article 8, Chapter 4 of the C-oveanment Code, pertaining to special assessments or bonds, have been complied with. 18 . C.N'IRA,L FIRE DIS'TRICI' It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this AGFMXENr, a letter from the Central Fire Protection District of Santa Clara County, stating that the DEVETIJPER has entered into an AGUM= with said District to install fire hydrants to serve said Project and stating that all necessary fees have been deposited with said District to insum installation and five (5) year rental fee of said hydrants. 19. PACIFIC GAS AND ELEC'IRIC/PA=C BELL It is further agreed that the ==PER shall pay to Pacific Gas and Electric Ccmmany and/or to PACIE'IC BELL Ccmpany any and all fees required for ;nst'aUaticn of overhead and/or wiring circuits to all electroliers within said property and any and all fees required for undo grCund' ng as Provided in Ordinance No. 331 of CITY when ==PER is notified by either the City MTJ=eer or the Pacific Gas and Electric Ccapany and/or PACIFIC RRTT, Ccamany that said fees are due and payable. 7 2 0 . EASEMENTS AND RIGHT-OF-ii,Y It is further agreed that any easement and right-of-way necessary for ccnpletion 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 -Tway, that the DEVELOPER shall deposit with CITY a stns covering the reasonable market value of the land proposed to be taken and to be included in said sun shall be a reasonable allaaance 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. HID HARMIESS It is further agreed that, ccamnencing with the performance of the Work by the DEVELOPER or his contractor and continuing until the COMletion 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 raTerfozmance of the Work or the negligence or willful misconduct of the DEVELOPER or the DEVE7IJPER'S agents, eMloyees 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 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. A. Each of said- policies of insurance shall provide coverage in the following minimim, 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 ACS 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 improvement plans and map. The DEVELOPER agrees to pay the CITY from the developTent maintenance deposit the cost for all prints of plans and map required under Item 23. This AGREEMENT shall bind the heirs, administrators, executors, successor, assignee and transferrees of the DEVELOPER. The assignment of this ACEUM41 r 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 affixed by its Mayor and City Clerk, thereunto duly authorized by resolution of the City Council and said CEVEIAPER has hereunto caused his name to be affixed the day and year first above written. Approved as to form: 41 A Slate of County of City"Clerk California Onthisthe 5th Bayo( October _1989 ,befoieme, SS. Santa Clara Helen K. Yates the undersigned Notary Public, personally appeared mes H. Sisk personally known to me OFFICIAL SEAT HELEN K. YATES �I Proved tome on the basis of satisfactory evidence NOTARY PUBLIC - CALIFORMAi to be the person(s) whose name(s) i S subscribed to the 10, SANTA CLARA COUNTY within instrument, and acknowledged that he executed it. My Commission Expires May 10, 1991 WITNESS my hand and official seal. Notary's Signature _--1 rnC.MF171 ronM 1110057 PESOLUTION NO. 7954 RESOLUTION OF 1 COUNCIL OF I OF --TI • APPROVING PARCEL MAPANDIMPROVEMENT PIMS OF PROPERTY • SII AT 10050 PASADENA AVENUE 1 DEVELOPER, JAMESAUTHORIZING EXECUTION OF IMPROVEMENT AGREEMENT; AUTH• - I !! I OF PARCEL MAP AND IMPROVENENT PLANS WHEREAS, there has been presented to the City Council for approval of the parcel map and improvement plans of property located at 10050 Pasadena Avenue by James Sisk; and WFIE MA.S, there has been presented to the City Council for approval for the construction of streets, curbs, gutters, and for other improvements 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; a. Said parcel map and improvement plans herein referred to are hereby approved. b. The offer of dedication for street areas and all easement is hereby accepted. c. The City Engineer is hereby authorized to sign said improvement plans. d. The City Engineer and the City Clerk are hereby authorized to sign said parcel map and have it recorded. e. The Mayor and the City Clerk are hereby authorized to execute the agreement herein referred to. PASSEL) AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 16th day of October 1989, by the following vote: vote Members of the City Council AYES: Gatto, Johnson, Koppel, Rogers, Plungy ABS: None ABSTAIN: None ATTEST: None ATTEST: /s/ Dorothy Cornelius /s/ John J. Plungy, Jr. City Clerk Mayor, City of Cupertino